[00:00:00] Speaker 03:
save these United States and this honorable court.

[00:00:04] Speaker 03:
Please be seated.

[00:00:08] Speaker 03:
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. And we will hear first from Mr. Lucero. You may proceed.

[00:00:39] Speaker 05:
Good morning, Your Honors.

[00:00:41] Speaker 05:
May it please the Court, Richard Lucero, appearing on behalf of the petitioner, Ms. Morales-Belloso.

[00:00:49] Speaker 05:
Getting straight to the point, Your Honors, the Court made three inquiries of counsel on this case. The first inquiry was whether or not the petitioner failed to exhaust her administrative remedies by...

[00:01:06] Speaker 05:
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. With respect to the court's question on that issue, admittedly, that issue was not sufficiently raised with the Board of Immigrations. There was 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 as an expert.

[00:01:37] Speaker 05:
However, the specific issue of whether or not in the judge's order he mischaracterized the purpose 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, he did it entirely backwards. But that was never called to the attention of the BI.

[00:02:17] Speaker 05:
That's 100% correct, Your Honor.

[00:02:18] Speaker 04:
It wasn't until the brief.

[00:02:19] Speaker 05:
So there was a failure to exhaust. It was, Judge. Admittedly, it was. There's no way I can make the argument that it was raised when it clearly wasn't. Okay. So obviously, that begs the question.

[00:02:30] Speaker 05:
Did counsel for the government...

[00:02:34] Speaker 05:
waive the exhaustive issue by not raising it. And I would assert that by not raising the issue in their brief that the council did not exhaust this remedy, they forfeited that issue. And in Santo Zacharias, the court specifically stated that 1252D1 is subject to waiver and forfeiture, and they also cited to Nutraceuticals stating that it was subject to waiver and forfeiture. And in this particular case, the waiver of forfeiture was known and intelligently.

[00:03:07] Speaker 05:
The issue with respect to the witness was clearly articulated in the brief. However, counsel failed to raise the exhaustion issue.

[00:03:16] Speaker 04:
You clearly raised it in your opening brief, the issue about getting it backwards, and then the red brief didn't say, well, you didn't tell the BIA that. Correct. The forfeiture on your forfeiture, and then they forfeited the objection to your forfeiture.

[00:03:32] Speaker 05:
Yeah, correct. Now, they did raise the 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 waived the exhausted issue.

[00:03:48] Speaker 04:
But do you think they, I mean, do you think they made a conscious decision that, you know, knowing and voluntary, we're going to let that go? Or they just. Did you notice that it had not been raised before the BIA?

[00:04:01] Speaker 05:
Maybe they just didn't want to address it because it's clearly, clearly the judge made an error in the decision. He got it all backwards like you stated. So maybe they just didn't want to address the issue. But, I mean, the issue is clear today articulated in the brief to the government. So I'm not exactly sure why they failed to raise the issue when they did on another point.

[00:04:20] Speaker 04:
Then that gets us to the issue that the, court expressly reserved in Santos Sicarius, which is when you have this situation, the petitioner fails to exhaust, but the government fails to timely raise the claim processing rule of requiring exhaustion. Does the court have discretion, sui sponte, to nonetheless enforce the exhaustion rule?

[00:04:49] Speaker 05:
Correct. So it looks like the...

[00:04:53] Speaker 05:
The appeal court seemed to be under the impression that the court does have sua sparta authority to raise exhaustion issues. But what I found interesting in the sense – Who is under that? Well, I think that there was a – for example, the Tenth Circuit.

[00:05:06] Speaker 04:
But there's a Tenth Circuit. Yeah, yeah, yeah. But this isn't – I mean, I'm by the Tenth Circuit.

[00:05:11] Speaker 05:
Yeah, I understand. It's not binding here.

[00:05:12] Speaker 04:
But is there any Ninth Circuit case that you were able to find that addresses this issue? There was not, Your Honor, but what I do find interesting... So it's an open question. So you tell us why you think it should be resolved in your favor.

[00:05:25] Speaker 05:
Yes, Your Honor. So in a footnote, in Santo Zacharias, 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 05:
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 exhausted 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 05:
Yeah, so in the case, I don't see any exception. Once the government has forfeited that issue, that permits this court to sua sponte address the exhaustion issue. I mean, like you said, the Tenth Circuit case ruled the opposite, but that's the Tenth Circuit. And the Ninth Circuit law, I don't see any exception once the government forfeited that issue that would allow this court to sua sponte 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 05:
I wouldn't say give you a pass, but again, I would point back to the same from the Santos case where just because it wasn't raised, it doesn't preclude this court from addressing the issue. 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. 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 05:
You may proceed. It's your argument. Okay. So, again, in sum, now that we got to that point, those are the three inquiries. So, number one, no, it wasn't sufficiently raised. Number two, I do feel that the government knowingly and intelligently waived the issue by not bringing it up. And number three, I don't see any case law which says that this court can sue Esponte, 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 05:
It has to go back.

[00:07:49] Speaker 04:
The BIA said we don't have anything from the BIA about it?

[00:07:54] Speaker 05:
Yeah, well, I mean, it would have to go back to the BIA first, I think, for them to address the issue, and then they would decide what they want to do with it. 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:
Do you want to save some time?

[00:08:16] Speaker 05:
I do, Judge. I don't have any more argument. If the court would respectfully allow me a couple minutes in case I want to rebut.

[00:08:22] Speaker 04:
All right. Thank you, counsel. Thank you, Your Honors. We'll hear now from Ms. Doe.

[00:08:32] Speaker 01:
Good morning, Your Honors. Linda Doe for the respondent, the United States Attorney General.

[00:08:36] Speaker 01:
Turning to petitioner's due process claim, petitioner did not set forth any allegation of IJ mischaracterization in his appeal to the board. In fact, this is a stance opposite to that taken before the board.

[00:08:50] Speaker 04:
In his appeal to the board... He's conceded that. He's conceded that he raised before the board his request that Dr. Green should have been qualified. 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.

[00:09:09] Speaker 01:
Well, Your Honor, I'd like to... that petitioner went so far as to perpetuate the error in his appeal to the board. He states that he had 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. And this is set forth at pages 16, 20, and 21 in the certified administrative record.

[00:10:02] Speaker 04:
But you didn't raise the exhaustion issue in your red brief. The failure to exact, because the blue brief clearly raises the issue about getting it backwards, and you didn't call out in the red brief, hey, what are you saying that for?

[00:10:15] Speaker 01:
You didn't tell the boy that. I have two responses for this, Your Honors. First, it was not a knowing waiver. If anything, it's most a forfeiture.

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

[00:10:27] Speaker 01:
At the time of briefing, 1252D1 was a jurisdictional 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 properly acknowledged the reason for which Dr. Green was being proffered. 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.

[00:11:05] 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:
Is that 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 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 to the conditions of women generally. And then he took that under submission.

[00:11:46] Speaker 04:
He basically said there will be another hearing if I qualify her.

[00:11:51] Speaker 04:
And then he does it all backwards and thinks that she's qualified on the subject that was at issue and that it's indigenous. And so we don't really know that he properly exercised his discretion as to whether to qualify her on the subject. 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 petitioner counsel to raise that before the BIA. The BIA is in a best position to rectify any procedural errors that a petitioner is setting forth. Here, a petitioner did not raise that claim and did not afford the board the opportunity to consider or address the issue.

[00:12:35] 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 good reasons here to exercise sua sponte 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. I believe this court's decision, Tall v. Mukasey, held that procedural errors that are rectifiable by the board are not excluded from an 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 promote the deliberate avoidance of the administrative scheme. And that was set forth in Montez v. Thornburg and Lange v. Ashcroft. In those cases, the court considered that 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. 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. Here, a petitioner set forth an 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 Suis-Ponte issue one way or the other on a par with the Tenth Circuit case?

[00:14:34] 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. I believe it was Vang.

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

[00:14:46] Speaker 04:
Because the Supreme Court acknowledged the issue and then expressly reserved it. So they've left it open. 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. I believe that it is open.

[00:15:03] Speaker 01:
I believe that the court can sua sponte, invoke the lack of exhaustion, and decline to reach the issue. Alternatively, should the court deem that the board had exhausted it, by reaching the merits of the issue, then the petitioner's argument of I.J. Arrow would be irrelevant.

[00:15:26] Speaker 02:
Do you have in mind a test that would apply for when the Court of Appeals should raise this sui sponte? Because it seems to me that this arguably should be treated like any other affirmative defense.

[00:15:39] Speaker 01:
Well, as Your Honor noted, the Supreme Court noted in Day v. McDonnell It could be applied in instances where an affirmative offense or procedural error arose. In that case, it was the statute of limitations where the state had not invoked the statutory decision at the time, but the court could do so sua sponte.

[00:16:01] Speaker 01:
As you noted, the Senate Circuit also found that 1252D1 was also possibly to be invoked sua sponte. And again, whereas here, it is a procedural error that would be able to be corrected by the board, 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 raise these claims.

[00:16:31] Speaker 01:
And then finally, Your Honors, the petitioner hasn't shown that the record evidence compels a contrary conclusion the denial of cat protection, and petitioner had further failed to exhaust the grounds for which the immigration judge had denied asylum and withholding.

[00:16:49] Speaker 04:
But suppose we conclude that we have to reach the merits of whether Dr. Green should have been qualified as an expert here. 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:
Your Honor, again, this is not presented to the board.

[00:17:19] Speaker 04:
Suppose we're past all that. We've gotten a sua sponte exercise of discretion. We've declined to enforce 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. What do we do then?

[00:17:44] Speaker 01:
Well, Your Honor, the first instance, the petitioner did not allege any error in the board's denial in considering the proffer. As the board explained, there was no prejudice. Even assuming there was an error, there was no prejudice.

[00:17:59] Speaker 04:
The petitioner did not show how... How can you say that when the IJ promised that there would be a further hearing... If Dr. Green was qualified as an expert, he said that. So we don't know what he didn't then put the petitioner to make a proffer as to what would happen. 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 I set forth in the record, the immigration judge didn't preclude the expert from testifying or sorry, the witness from testifying. The immigration stated specifically that even if not qualified as an expert, she could still be called to testify. It was petitioner herself or petitioner's counsel who said that they declined to have her own witness testify. It wasn't the immigration judge that had precluded her.

[00:18:48] Speaker 01:
The record shows, I think it was 110, 111, that the immigration judge was more than willing to allow petitioner's expert to testify.

[00:18:58] Speaker 00:
How does that work in an immigration hearing? She's not a fact witness, and she's not an expert. She testified, but what value is her testimony then? I'm not sure how much you would credit.

[00:19:11] Speaker 01:
Again, it would be, I guess, to background, and it's uncertain necessarily what that would be. But the immigration judge during the hearing noted that she did not have any personal knowledge of the witness, had not interviewed the witness, I mean, sorry, had not interviewed the petitioner.

[00:19:25] Speaker 01:
And the witness's declaration was submitted into the evidence, and the entirety of her declaration was premised on violence against Indigenous women. So it was fair to the immigration judge to inquire, how would this be relevant to petitioner's claim? And as the board noted, petitioner did not indicate that her expert would have testified to the unable and unwilling 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, petitioners 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 03:
All right. Thank you, counsel. All right. We'll hear rebuttal now.

[00:20:26] Speaker 05:
Just to sum up, Your Honors, the court asked government counsel if she could say to any authority where this court would have to still respond to raise the issue of exhaustion, and she's really stated that there was none.

[00:20:42] Speaker 05:
The court asked her what kind of test might there be for the court to do that, and that's a great question. I guess that's open, maybe a compelling interest of the court.

[00:20:49] Speaker 04:
But what's your response? I mean, there's some force to the argument that if we get to the, 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 petitioner's counsel at the IJ hearing, but if that counsel 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.

[00:21:40] Speaker 04:
So it seems like a case that maybe if we have discretion, it should be enforced here. What's your response to that?

[00:21:48] Speaker 05:
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. So I think that this would be an instance where the court might not want to bring up the exhaustion issue because there was a compelling interest, that being the fact that there was a grave, grave error at the trial level.

[00:22:12] Speaker 02:
So government counsel seemed to proffer an efficiency test when I asked that question. You're referring to it as a compelling interest test.

[00:22:20] Speaker 05:
Yeah, sure, and that's just off the top of my head. I mean, I haven't had time to think that up, but that's what I would just offer.

[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. That's what I would say.

[00:22:33] Speaker 05:
Obviously, as practitioners, we try to bring all the issues to the forefront at the very beginning, but we make errors. So if the court, I think like in Dave, sees a grave, grave error, I think this court should have, permitted to be able to address it and even send the case back if need be. All right. Thank you.