[00:00:00] Speaker 01:
save these United States and this honorable court.

[00:00:04] Speaker 04:
Please be seated.

[00:00:08] Speaker 04:
Good morning.

[00:00:11] Speaker 04:
We'll proceed to hear argument in the first case on calendar for argument this morning, which is 20-71914, Elvia Otilia Morales Belloso.

[00:00:25] Speaker 04:
And we will hear first from Mr. Lucero.

[00:00:29] Speaker 04:
You may proceed.

[00:00:39] Speaker 03:
Good morning, Your Honors.

[00:00:40] Speaker 03:
May it please the court, Richard Lucero, appearing on behalf of the petitioner, Ms.

[00:00:46] Speaker 03:
Morales-Peyoso.

[00:00:49] Speaker 03:
Getting straight to the point, Your Honors, the court made three inquiries of counsel on this case.

[00:00:55] Speaker 03:
The first inquiry was whether or not the petitioner failed to exhaust her administrative remedies by

[00:01:06] Speaker 03:
fully presenting to the board the issue of whether or not the judge's order completely mischaracterized the ground on which the petitioner sought to qualify Dr. Green as an expert.

[00:01:16] Speaker 03:
With respect to the court's question on that issue, admittedly, that issue was not sufficiently raised with the Board of Immigrations.

[00:01:24] Speaker 03:
There were some talk about the due process issues with respect to how the judge handled the expert witness and how the judge did not qualify, how the judge should have qualified the witness

[00:01:36] Speaker 03:
as an expert however the specific issue of whether or not in the judge's order he mischaracterized the purpose of

[00:01:45] Speaker 03:
of characterizing her as an expert, that was not raised.

[00:01:48] Speaker 04:
Okay, so the issue that it should have come, she should have been qualified, we should have had the further hearing that the judge had promised, but it wasn't on the fact that the judge had just completely gotten the whole thing backwards, because the issue at the hearing was she was admittedly qualified on one ground and the question is she could be qualified on the other, and when he gave the ruling both orally and in writing,

[00:02:13] Speaker 04:
He did it entirely backwards.

[00:02:15] Speaker 04:
But that was never called the attention of the DIA.

[00:02:17] Speaker 03:
That's 100% correct, Your Honor.

[00:02:18] Speaker 03:
It wasn't until the brief.

[00:02:19] Speaker 03:
So there was a failure to exhaust the matter.

[00:02:21] Speaker 03:
It was, Judge.

[00:02:21] Speaker 03:
Admittedly, it was.

[00:02:23] Speaker 03:
There's no way I can make the argument that it was raised when it clearly wasn't.

[00:02:25] Speaker 03:
OK.

[00:02:26] Speaker 03:
So obviously, that begs the question.

[00:02:30] Speaker 03:
Did counsel for the government waive the exhaustive issue by not raising it?

[00:02:36] Speaker 03:
And I would assert that by not raising the issue in their brief,

[00:02:42] Speaker 03:
Council did not exhaust this remedy.

[00:02:47] Speaker 03:
They forfeited that issue.

[00:02:50] Speaker 03:
And in Santo Zacarias, the court specifically stated that 1252D1 is subject to waiver and forfeiture.

[00:02:57] Speaker 03:
And they also cited to nutraceuticals stating that it was subject to waiver and forfeiture.

[00:03:02] Speaker 03:
And in this particular case, the waiver and forfeiture was knowing and intelligently.

[00:03:07] Speaker 03:
The issue with respect to the witness was

[00:03:11] Speaker 04:
Clearly articulated in the brief however council failed to raise the exhaustion issue you clearly raised it in your opening brief the issue about getting it backwards and Then the red brief didn't say well.

[00:03:24] Speaker 04:
You didn't tell the PIA that Correct now they did a forfeiture on your forfeiture, and then they forfeited the objection to your forfeiture correct now they did raise the

[00:03:37] Speaker 03:
Exhausted issue with respect to another issue in the brief, but not to this one so again That's why I would argue that they knowingly and intelligently Wave the exhaust and do you think they I mean do you think they made a conscious decision that?

[00:03:52] Speaker 04:
You know knowing involved if we're gonna let that go or they just Had not been raised before the BIA that's it well Maybe they just didn't want to address it because it's

[00:04:03] Speaker 03:
Clearly, clearly, the judge made an error in the decision.

[00:04:05] Speaker 03:
He got it all backwards, like you stated.

[00:04:07] Speaker 03:
So maybe they just didn't want to address the issue.

[00:04:09] Speaker 03:
But I mean, the issue is as clear a day articulated in the brief to the government.

[00:04:14] Speaker 03:
So I'm not exactly sure why they failed to raise the issue when they did on another point.

[00:04:19] Speaker 04:
So then that gets us to the issue that the court expressly reserved in Santos Zacarias, which is when you have this situation, the petitioner fails to exhaust

[00:04:32] Speaker 04:
but the government fails to timely raise the claim processing rule of requiring exhaustion, does the court have discretion, sua sponte, to nonetheless enforce the exhaustion rule?

[00:04:50] Speaker 03:
Correct.

[00:04:50] Speaker 03:
So it looks like the appeal court seemed to be under the impression that the court does have sua sponte.

[00:04:56] Speaker 03:
authority to raise exhausting issues.

[00:04:59] Speaker 03:
But what I found interesting in the Senate... Who is under that?

[00:05:03] Speaker 03:
Well, I think that there was a... Well, for example, the 10th Circuit.

[00:05:06] Speaker 04:
But there's a 10th Circuit.

[00:05:07] Speaker 03:
Yeah, yeah, I understand.

[00:05:08] Speaker 04:
But this isn't... I'm not bound by the 10th Circuit.

[00:05:11] Speaker 03:
Yeah, I understand.

[00:05:11] Speaker 03:
It's not binding here.

[00:05:12] Speaker 04:
But is there any 9th Circuit case that you were able to find that addresses this issue?

[00:05:17] Speaker 03:
There was not, Your Honor, but what I do find interesting... So it's an open question.

[00:05:21] Speaker 04:
So you tell us why you think it should be resolved in your favor.

[00:05:25] Speaker 03:
Yes, Your Honor.

[00:05:26] Speaker 03:
So in a footnote, in Santo Zacarias, the court specifically stated that they rejected the government's contention that Congress precluded the court from considering any issues that had not been presented to the board.

[00:05:43] Speaker 03:
So I think this leaves the door open for the court to possibly review this issue on its own, even though in spite of the exhausting issue.

[00:05:55] Speaker 04:
So you're conceding that we have the discretion and asking us not to exercise it, or are you arguing we don't really have the discretion that the government should be held to its forfeiture?

[00:06:08] Speaker 03:
Yeah, so in the case law, I don't see any exception.

[00:06:11] Speaker 03:
Once the government has forfeited

[00:06:15] Speaker 03:
that issue that permits this court to so respond to address the exhaustion issue.

[00:06:20] Speaker 03:
I mean, like you said, the 10th Circuit case ruled the opposite, but that's the 10th Circuit.

[00:06:24] Speaker 03:
In the 9th Circuit law, I don't see any exception once the government forfeited that issue that would allow this court to so respond to bring up that issue.

[00:06:32] Speaker 04:
But assuming that we, suppose we don't agree and we have discretion, do you think that under the exercise of discretion, we should give you a pass on this?

[00:06:42] Speaker 03:
I wouldn't say give you a pass, but again, I would point back to the same language from the Santos case, where just because it wasn't raised, it doesn't preclude this court from addressing the issue.

[00:06:55] Speaker 03:
So I'm not necessarily saying that the court should be adjudicating issues that were never brought before the board, because that obviously wouldn't be good practice.

[00:07:04] Speaker 03:
But I think that there's a compelling interest that this court can address the issue and perhaps remand it to the board for further adjudication of that issue.

[00:07:18] Speaker 03:
You may proceed.

[00:07:20] Speaker 03:
OK.

[00:07:20] Speaker 03:
OK.

[00:07:22] Speaker 03:
So again, in sum, not that we got to that point.

[00:07:24] Speaker 03:
Those are the three inquiries.

[00:07:25] Speaker 03:
So number one, no, it wasn't sufficiently raised.

[00:07:29] Speaker 03:
Number two, I do feel that the government knowingly and intelligently waived the issue by not bringing it up.

[00:07:35] Speaker 03:
And number three, I don't see any case law which says that this court can still respond to bring this up if the government waived the issue.

[00:07:42] Speaker 04:
And you think if we get to the merits of the issue of the IJ's mistake, you think it has to go back?

[00:07:48] Speaker 03:
It has to go back.

[00:07:49] Speaker 04:
It has to go back, because there is no... The BIA said we don't have anything from the BIA about it?

[00:07:55] Speaker 03:
Yeah, well, I mean, it would have to go back to the BIA first, I think, for them to address the issue.

[00:07:59] Speaker 03:
And again, they would decide what they want to do with it.

[00:08:01] Speaker 03:
But if this court sees that there's a compelling interest, because clearly there was a mistake, the judge got it backwards, I think this court should be permitted to be able to send it back to the BIA to be able to address that issue.

[00:08:15] Speaker 04:
OK.

[00:08:15] Speaker 04:
Do you want to save some time?

[00:08:16] Speaker 03:
I do, Judge.

[00:08:17] Speaker 03:
I don't have any more argument if the court would respectfully allow me a couple of minutes in case I want to rebut.

[00:08:22] Speaker 04:
All right.

[00:08:23] Speaker 04:
Thank you, counsel.

[00:08:24] Speaker 04:
We'll hear now from Ms.

[00:08:26] Speaker 04:
Doe.

[00:08:32] Speaker 01:
Good morning, honors.

[00:08:33] Speaker 01:
Linda Doe for the respondent, the United States Attorney General.

[00:08:36] Speaker 01:
Turning to petitioners due process claim, petitioner did not set forth any allegation of IJ mischaracterization in his appeal to the board.

[00:08:45] Speaker 01:
In fact, this is a stance opposite to that taken before the board.

[00:08:50] Speaker 01:
in his appeal to the board.

[00:08:51] Speaker 04:
He's conceded that.

[00:08:52] Speaker 04:
He's conceded that he raised before the board his request that Dr. Green should have been qualified.

[00:09:00] Speaker 04:
But he admits that he didn't raise as one of the grounds for that that the IJ had made this error of getting everything backwards.

[00:09:10] Speaker 01:
Well, Your Honor, I'd like to submit that petitioner went so far as to perpetuate the error in his appeal to the board.

[00:09:16] Speaker 01:
He states that he had

[00:09:19] Speaker 01:
sought to present Dr. Green as an expert on Guatemalan indigenous women and violence, and then claimed that the immigration judge had failed to permit her or qualify her as an expert in that regard, and then claimed that it violated her due process rights because Dr. Green would have clarified the issue of nexus in a particular social group.

[00:09:45] Speaker 01:
Again, this is the exact opposite of the argument raised before this court.

[00:09:51] Speaker 01:
Accordingly, a petitioner has not exhausted his administrative remedies with respect to that claim.

[00:09:56] Speaker 01:
And this is set forth at pages 16, 20, and 21 in the certified administrative record.

[00:10:01] Speaker 04:
But you didn't raise the exhaustion issue in your red brief, the failure to exhaust.

[00:10:07] Speaker 04:
Because the blue brief clearly raises the issue about getting it backwards, and you didn't

[00:10:13] Speaker 04:
call out in the red brief, hey, what are you saying that for?

[00:10:15] Speaker 04:
You didn't tell the boy that.

[00:10:18] Speaker 01:
I have two responses for this, Your Honors.

[00:10:20] Speaker 01:
First, it was not an annoying waiver.

[00:10:24] Speaker 01:
If anything, it's most a forfeiture.

[00:10:26] Speaker 04:
At most, it's a forfeiture, a default.

[00:10:27] Speaker 01:
Yes.

[00:10:27] Speaker 01:
At the time of briefing, 1252D1 was a jurisdictional

[00:10:32] Speaker 01:
requirement at the time.

[00:10:35] Speaker 01:
As to not addressing this specific argument, I believe it's arguable that the board had addressed the merits of the claim, wherein the board profferably acknowledged the reason for which Dr. Green was being proffered.

[00:10:51] Speaker 01:
And the board's decision acknowledges, although Dr. Green may be an expert on violence against indigenous women, Petitioner is not indigenous and did not show how the testimony would be relevant or bear on the outcome of the case.

[00:11:07] Speaker 01:
In light of the board's decision, it would render any error by the IJ irrelevant.

[00:11:13] Speaker 01:
and petitioner does not allege that the board had erred in its decision.

[00:11:16] Speaker 04:
That's clear because here's the problem is that we don't know that the IJ correctly assessed the decision that he took under submission because what happened at the hearing is he actually, you know, had her put on the stand, had the voir dire done in order to assess whether her expertise extended from the one conceded area about indigenous women

[00:11:42] Speaker 04:
to the conditions of women generally and then he took that under submission he basically said there will be another hearing if I qualify her and then

[00:11:53] Speaker 04:
he does it all backwards and thinks that she's qualified on the subject that was at issue and that it's indigenous.

[00:12:00] Speaker 04:
And so we don't really know that he properly exercised his discretion as to whether to qualify her on the subject.

[00:12:09] Speaker 04:
We just don't have a ruling that makes any sense that we can rely on.

[00:12:13] Speaker 01:
Well, that's why it's incumbent upon petitioners council to raise that before the BIA.

[00:12:19] Speaker 01:
BIA is in a best position to

[00:12:23] Speaker 01:
rectify any procedural errors that petitioner is sending forth.

[00:12:27] Speaker 01:
Here, petitioner did not raise that claim and did not afford the board the opportunity to consider or address the issue.

[00:12:33] Speaker 04:
So you're arguing that even if we find that he procedurally defaulted and you procedurally defaulted by failing to note his procedural default, that there are

[00:12:51] Speaker 04:
good reasons here to exercise Sue Espante authority because this is an error that could have been fixed if it had been called out on the spot.

[00:12:59] Speaker 01:
Exactly, Your Honors.

[00:13:00] Speaker 01:
I believe in this court's decision, Tal versus McKaysey.

[00:13:04] Speaker 01:
held that procedural errors that are rectifiable by the board are not excluded from the exhaustion requirement.

[00:13:12] Speaker 01:
Additionally, this court has considered in the context of a non-statutory prudential exhaustion requirement, considered whether waiving the lack of exhaustion would

[00:13:26] Speaker 01:
promote the deliberate avoidance of the administrative scheme and that was set forth in Montez versus Thornburg and Lang versus Ashcroft.

[00:13:40] Speaker 01:
In those cases the court considered that you know in doing so would promote

[00:13:47] Speaker 01:
judicial inefficiency, if you will, on an incorrect record, where the petitioner could have raised these arguments to the board for them to consider it and correct it at the time, but did not do so.

[00:14:01] Speaker 01:
In light of the foregoing, I request that this is a proper instance in which the court should and can exercise its sua sponte authority to invoke the exhaustion requirement under 1252D1.

[00:14:15] Speaker 01:
Here, a petitioner set forth an

[00:14:17] Speaker 01:
diametrically opposite claim before the board, which is now setting forth before the court.

[00:14:22] Speaker 04:
So were you able to find any Ninth Circuit precedent that addresses the Sue Espante issue one way or the other on a par with the Tenth Circuit case?

[00:14:33] Speaker 01:
No, Your Honors, I do believe that in Day v. McDonald, the Supreme Court has cited a Ninth Circuit case in the context of a habeas.

[00:14:42] Speaker 01:
I believe it was Vang.

[00:14:43] Speaker 04:
But nothing in this.

[00:14:45] Speaker 04:
I mean, because the Supreme Court acknowledged the issue and then expressly reserved it.

[00:14:50] Speaker 04:
So they've left it open.

[00:14:52] Speaker 04:
And is it your view that it's also open in this court as well, such that we might need to decide that here?

[00:15:01] Speaker 01:
Correct, Your Honors.

[00:15:01] Speaker 01:
I believe that it is open.

[00:15:03] Speaker 01:
I believe that the court can, Sue Espante, invoke the lack of exhaustion and decline to reach the issue.

[00:15:10] Speaker 01:
Alternately, should the court deem that the board had exhausted it by, you know, alternatively by reaching the merits of the issue, then the petitioner's argument of I.J.

[00:15:23] Speaker 01:
Arrow would be irrelevant.

[00:15:25] Speaker 02:
Do you have in mind a test that would apply for when the Court of Appeals should raise this to a sponte?

[00:15:32] Speaker 02:
Because it seems to me that this arguably should be treated like any other affirmative defense.

[00:15:38] Speaker 01:
As your honor noted, the Supreme Court noted in Day v. McDonough,

[00:15:44] Speaker 01:
It could be applied in instances where an affirmative offense or procedural error arose.

[00:15:50] Speaker 01:
In that case, it was the statute of limitations where the state had not invoked the Secretary of Justice at the time, but the court could do so suesponte.

[00:16:00] Speaker 01:
As you noted, the Senate Circuit also found that 1252-D1 was also possibly to be invoked in Suizuante.

[00:16:08] Speaker 01:
And again, whereas here it is a procedural error that would be able to be corrected by the board, you know, judicial efficiency, you suggest that the court should invoke it in instances such as these.

[00:16:21] Speaker 01:
It should not be permitted to make an end round around the agency in order to, you know, raise these claims.

[00:16:31] Speaker 01:
and then finally your honors you know petitioner hasn't shown that you know the record evidence compels a country occlusion to the denial of cap protection and petitioner had further failed to exhaust the grounds for which the immigration judge had denied asylum and withholding but suppose we conclude that we have to reach the merits of

[00:16:57] Speaker 04:
whether Dr. Green should have been qualified as an expert here.

[00:17:03] Speaker 04:
Does it have to go back, because the IJ's ruling shows that his exercise of discretion was tainted by confusion?

[00:17:15] Speaker 01:
Well, Your Honor, again, this is not presented to the board.

[00:17:18] Speaker 04:
I understand, but I suppose we're past all that.

[00:17:22] Speaker 04:
We've gotten a sua sponte exercise of discretion.

[00:17:24] Speaker 04:
We've declined to enforce

[00:17:28] Speaker 04:
the exhaustion requirement here assume that and we're now getting to the merits of the issue of whether Dr. Green should have been qualified as an expert and there should have been a further hearing.

[00:17:42] Speaker 04:
What do we do then?

[00:17:44] Speaker 01:
The first instance, the petitioner did not allege any error in the board's denial and considering

[00:17:51] Speaker 01:
the proffer.

[00:17:52] Speaker 01:
As the board explained, there was no prejudice.

[00:17:56] Speaker 01:
Even assuming there was an error, there was no prejudice.

[00:17:59] Speaker 04:
Petitioner did not show how... How can we say that when the IJ promised that there would be a further hearing if Dr. Green was qualified as an expert?

[00:18:08] Speaker 04:
He said that, so we don't know what... He didn't...

[00:18:12] Speaker 04:
then put the petitioner to make a proffer as to what would happen.

[00:18:17] Speaker 04:
He said, you'll get the hearing and then you'll develop whatever testimony you want from her and then it'll just, we don't know.

[00:18:23] Speaker 01:
But as set forth in the record, the immigration judge didn't preclude the witness from testifying.

[00:18:31] Speaker 01:
The immigration stated specifically that even if not qualified as an expert, she could still be called to testify.

[00:18:38] Speaker 01:
It was petitioner herself or petitioner's counsel who said that they declined to have her own witness testify.

[00:18:44] Speaker 01:
It wasn't the immigration judge that had precluded her.

[00:18:48] Speaker 01:
And the record shows, I think it was 110,

[00:18:51] Speaker 01:
111 that the immigration judge was more than willing to allow petitioners expert to testify.

[00:18:57] Speaker 00:
How does that work in an immigration hearing if you're not she's not a fact witness but if she and she's not an expert she testified but what what values her testimony then I'm not sure how much you would credit.

[00:19:10] Speaker 01:
Again it would be I guess to background and it's uncertain necessarily

[00:19:14] Speaker 01:
What that would be, but the immigration judge during the hearing and noted that she did not have any personal knowledge of the witness had not interviewed the witness I mean sorry had not been treated the petitioner and the witnesses declaration was submitted into the evidence submitted into the evidence.

[00:19:31] Speaker 01:
And the entirety of her declaration was premised on violence against indigenous women.

[00:19:38] Speaker 01:
So it was fair to the immigration judge to inquire how would this be relevant to Petitioner's claim.

[00:19:44] Speaker 01:
And as the board noted, Petitioner did not indicate that her expert would have testified to the unable and unwilling grounds, which was the sole basis of which the IJ had denied her asylum withholding claims.

[00:19:58] Speaker 01:
In her appeal to the board, petitioner specifically stated that the expert would have testified as to nexus and particular social group, which was wholly irrelevant in this instance where the immigration judge did not deny her claim based on that premise.

[00:20:15] Speaker 04:
All right.

[00:20:16] Speaker 04:
Thank you, counsel.

[00:20:17] Speaker 04:
All right.

[00:20:18] Speaker 04:
We'll hear rebuttal now.

[00:20:26] Speaker 03:
Just to sum up, Your Honors, the court asked government counsel if she could cite to any authority where this court would have to so respond to raise the issue of exhaustion, and she's really stated that there was none.

[00:20:42] Speaker 03:
The court asked her what kind of test might there be for the court to do that, and that's a great question.

[00:20:46] Speaker 03:
I guess that's open, maybe a compelling interest.

[00:20:49] Speaker 03:
What's your response?

[00:20:50] Speaker 04:
I mean, there's some force to the argument that if we get to the

[00:20:55] Speaker 04:
Third question, and we decide that we have discretion, sua sponte, to choose whether or not to enforce the exhaustion rule here.

[00:21:07] Speaker 04:
Her argument is that this is a really good case to enforce it because this error could have been fixed if, I know you weren't

[00:21:16] Speaker 04:
Judiciary's counsel at the IJ hearing but if that council had stood up right away on the spot and said your honor I think you said that backwards it could have been fixed on the spot and rather than six years later where we are today, and if it had been told to the BIA Hey, this was backwards the BIA could have shipped it back quickly and it it so it seems like a case that maybe If we have discretion it should be enforced here

[00:21:46] Speaker 04:
What's your response to that?

[00:21:48] Speaker 03:
Yeah, I think this would be maybe even a compelling interest not to bring it up, because obviously there was a clear, clear, clear error at the immigration judge level.

[00:21:57] Speaker 03:
So I think that this would be an instance where the court might not want to bring up the exhaustive issue, because there was a compelling interest, that being the fact that there was a grave, grave error at the trial level.

[00:22:11] Speaker 02:
So government counsel seemed to proffer an efficiency test when I asked that question.

[00:22:17] Speaker 02:
You're referring to it as a compelling interest test.

[00:22:20] Speaker 03:
Yeah, sure.

[00:22:20] Speaker 03:
And that's just off the top of my head.

[00:22:22] Speaker 03:
I mean, I haven't had time to think that up, but that's what I would just proffer.

[00:22:25] Speaker 04:
You're saying that the error is so obvious that no discretion should be exercised to overlook something that's bad.

[00:22:32] Speaker 03:
That's what I would say.

[00:22:33] Speaker 03:
Obviously, as practitioners, we try to bring all the issues to the forefront at the very beginning, but we make errors.

[00:22:38] Speaker 03:
So if the court

[00:22:40] Speaker 03:
I think like when Dave sees a grave, grave error, I think this court should be permitted to be able to address it and even send the case back if need be.

[00:22:52] Speaker 03:
All right.

[00:22:52] Speaker 03:
Thank you.