[00:00:00] Speaker 00: Good morning. [00:00:02] Speaker 00: May it please the court? [00:00:02] Speaker 00: My name is Manuel Rios and I represent the petitioner Mr. Amidio Rios. [00:00:07] Speaker 00: I'd like to reserve three minutes for rebuttal. [00:00:10] Speaker 00: This is a petition for review of the Immigration Board of Immigration Appeals denial of Mr. Rios's Sue Espante motion to reopen his reinstated removal order from 1998. [00:00:21] Speaker 00: The motion was based on the set-aside or the vacatur of his criminal conviction that served as the basis for the deportation order. [00:00:30] Speaker 00: Formerly, before the deportation order, Mr. Rios enjoyed the rights of the legal permanent resident of the United States. [00:00:39] Speaker 00: The court has jurisdiction to review the board's decision, only to the extent to determine whether or not the board's decision was based on a legal or constitutional error. [00:00:48] Speaker 00: Now, the board's denial of the motion to reopen Sue Espante was based on the board's conclusion that it did not have a jurisdiction, that in fact, the reinstatement provision found at 1231-85 of the 8 U.S.C. [00:01:04] Speaker 00: 1231-85 served as a jurisdictional bar that absolutely precluded reopening. [00:01:11] Speaker 04: I don't know. [00:01:11] Speaker 04: Where are you getting that? [00:01:12] Speaker 04: I mean, they said because the respondent is subject, we're without authority. [00:01:18] Speaker 04: Do you interpret that to mean we lack jurisdiction? [00:01:22] Speaker 00: Yeah, I do. [00:01:23] Speaker 00: I do, Your Honor. [00:01:25] Speaker 00: It seems to toe the line as far as all of the other cases that have ever been decided prior to Suate Oriana. [00:01:33] Speaker 00: If we look back, starting with one of the first cases, which is Garcia de Recon, that [00:01:39] Speaker 00: From that point on, the court had stated that there's a jurisdictional bar that's found here that can't be overcome and they don't have the jurisdiction. [00:01:47] Speaker 00: So I think I would interpret that authority, lack of authority, as to be equivalent of lack of jurisdiction. [00:01:54] Speaker 02: But we now know in Suate Oriana that this section, 1231A5, is not a jurisdictional bar. [00:02:03] Speaker 02: It's a claims processing bar. [00:02:08] Speaker 02: As a procedural matter, what does it look like for us to review the denial of a motion to reopen while at the same time respecting that 1231A5 is a claims processing bar? [00:02:25] Speaker 00: Well, I think that [00:02:27] Speaker 00: The board's decision to not decide the case on the merits because of this, the former interpretation of 1231-85 requires a remand. [00:02:42] Speaker 00: I believe that that is a legal error that the court can use for remand. [00:02:46] Speaker 00: And I think that as a result of that, there are other issues that are gonna flow from that as far as what is the proper standard that would [00:02:55] Speaker 00: That would potentially allow someone to overcome the claims processing rule, right? [00:03:03] Speaker 00: Or is there already one existing if you. [00:03:06] Speaker 00: If the court looks at the procedural posture of Suate Oriana, that seems to, it's not especially clear, but they mentioned that it did come to the board underneath various theories. [00:03:20] Speaker 00: Two of them are equitable considerations that no one, the board did not quibble with, nor did the court, as far as equitable tolling and [00:03:32] Speaker 00: a Siwa-Sponte motion to reopen. [00:03:34] Speaker 00: So those were two of the theories that Suate Oriana came up to the court and the court decided that it did have jurisdiction. [00:03:44] Speaker 00: So it seems to me that in some ways the court accepted the fact that there are equitable avenues around this claims processing rule. [00:03:55] Speaker 00: And I think that that's really what the issue is going to be. [00:03:58] Speaker 04: Go ahead, I'm sorry. [00:04:00] Speaker 02: Well, just carrying on, if 1231, if the BIA lacks discretion once that is invoked, then it can't really review the underlying deportation order. [00:04:18] Speaker 02: Is that right? [00:04:19] Speaker 00: That is correct. [00:04:21] Speaker 02: But then it could look at the denial of the motion to reopen, which is different than [00:04:31] Speaker 02: attacking directly the deportation order, correct? [00:04:35] Speaker 00: Sure. [00:04:35] Speaker 00: Maybe I'm a bit confused, Your Honor, but this Mr. Rios' motion to reopen was to the board, right? [00:04:42] Speaker 00: I understand. [00:04:43] Speaker 01: I'm sorry. [00:04:44] Speaker 00: It was to the board. [00:04:45] Speaker 00: It was not to the immigration judge. [00:04:47] Speaker 00: It was to the board. [00:04:47] Speaker 02: I said the BIA. [00:04:48] Speaker 02: I'm sorry if I didn't. [00:04:50] Speaker 00: Maybe I just misunderstood you. [00:04:51] Speaker 02: I meant the BIA. [00:04:52] Speaker 02: If I misstated, I'm sorry. [00:04:53] Speaker 02: But I was talking about the BIA. [00:04:58] Speaker 02: there's this mandatory aspect of 1231. [00:05:01] Speaker 02: So the BIA doesn't have any discretion to review the underlying deportation order. [00:05:10] Speaker 02: I think you agree with me on that. [00:05:12] Speaker 00: I think that I agree with you at the time of the decision that is true. [00:05:16] Speaker 00: I do not believe that is true now. [00:05:18] Speaker 04: How is that right? [00:05:19] Speaker 04: I mean, the statute says that that for somebody in your client's position who's subject to a reinstated removal order that it's not subject to being reopened [00:05:27] Speaker 04: or is not subject to being reopened. [00:05:30] Speaker 04: So aren't you here asking on Emotion to reopen to do just that? [00:05:36] Speaker 00: I am, but if the starting point is that 1231.85 is a claims processing rule, which if the court looks at the other what seem to be absolute prohibitions that are contained within that, such as the absolute prohibition on relief that has been carved out through regulations to allow for relief, and I think this is not an absolute bar, and I think that that's what the opening is through Suate Oriana. [00:06:03] Speaker 04: I guess, be that as it may, and I don't think I disagree with that, I guess the question would be, did the government forfeit that, because that was the issue in Swate, was that the government had forfeited that, or arguably had forfeited that mandatory claims processing rule, whereas here I understand they've, they filed something in the board opposing this relief, and they continue to do so here. [00:06:24] Speaker 00: Well, I think the way that I understood Swate Ariana, Your Honor, is that [00:06:31] Speaker 00: the court specifically found that the board could entertain jurisdiction, take jurisdiction over motions to reopen reinstated orders. [00:06:39] Speaker 00: That seems fairly clear. [00:06:41] Speaker 00: It didn't have any type of conditional language on that, but it specifically stated that, and that is at 631 of that decision. [00:06:50] Speaker 00: So, and furthermore, it stated that any of the prior [00:06:55] Speaker 00: that followed the fact that 1231A5 was the absolute jurisdictional bar, then those have been abrogated because they're inconsistent with the Supreme Court decision. [00:07:10] Speaker 00: As a result, I think that the difference between a claims processing rule and a jurisdictional bar makes all the difference in the world. [00:07:16] Speaker 00: That's the rub in this case, Your Honor. [00:07:18] Speaker 00: And jurisdictional bars are subject to equitable considerations, such as equitable tolling, or perhaps sue espante to overcome, to preside to. [00:07:29] Speaker 02: You mean claims processing. [00:07:31] Speaker 00: Oh, excuse me. [00:07:32] Speaker 02: Yes. [00:07:32] Speaker 02: I think it's hard to not confuse the two here, because I've been back and forth with the cases. [00:07:38] Speaker 02: you mean claims processing bars have an outlet? [00:07:42] Speaker 00: That is that is correct. [00:07:43] Speaker 00: All right. [00:07:44] Speaker 00: Thank you your honor for that clarification and I think that you know as a as a result of that that you know the this court has suggested that you know that jurisdictional bars they have harsh often result in harsh outcomes whereas the claims processing rules [00:07:59] Speaker 00: allow for equitable considerations to you know to have to make the rules not apply for example equitable tolling or the what we have here is the sua sponte motion reopen which would allow someone to to attack processing rules can be mandatory [00:08:18] Speaker 00: Sure, Your Honor, I'm not saying that we have to ignore them. [00:08:22] Speaker 00: What I'm saying is that there may be existing or other types of equitable considerations that may come up that allow for the court or the board to take jurisdiction over it. [00:08:37] Speaker 04: A claims processing rule, as Judge Paia's reference, can be mandatory. [00:08:42] Speaker 04: You know, it seemed here it would be if it was if it was properly invoked by the government. [00:08:46] Speaker 04: Do you contend the government did not properly invoke it? [00:08:49] Speaker 00: I do not. [00:08:49] Speaker 00: I believe that. [00:08:51] Speaker 00: I think that. [00:08:53] Speaker 04: That's true. [00:08:53] Speaker 04: How do we override the mandatory nature of it? [00:08:56] Speaker 04: Or do you claim it's not mandatory? [00:08:58] Speaker 00: I do not claim that it's mandatory. [00:09:00] Speaker 00: I don't think that that's what that's what the Ariana said. [00:09:03] Speaker 00: I think that that for purposes of this particular case that the waiver claim is a red herring that it doesn't apply to this particular case because government didn't waive it. [00:09:15] Speaker 00: The government has has [00:09:17] Speaker 00: has vigorously stated that the whole time. [00:09:20] Speaker 00: So what what our position is is that it can be overcome and if the court looks at you know even before we get to the waiver part of the decision the court has already made this decision that the board can take jurisdiction over it right and then that they're going to remand it and in the remanded proceedings [00:09:39] Speaker 00: that the government, it's not going to be futile or an idle, you know, a lark that simply because the government cannot raise that at that time because. [00:09:48] Speaker 04: If it is mandatory and if the government did raise it, where do you, where do you get from that that nonetheless, we don't have to enforce it? [00:09:58] Speaker 00: Oh, Your Honor, if I stated that it's mandatory, then I'm mistaken. [00:10:04] Speaker 00: I do not believe it is mandatory. [00:10:05] Speaker 00: So you think it's just not mandatory? [00:10:07] Speaker 00: That is correct. [00:10:07] Speaker 00: I believe it is a claims processing rule, and I believe that it is... Just to be clear, a claims processing rule can be mandatory. [00:10:13] Speaker 00: Okay, I understand. [00:10:14] Speaker 00: It is a non-mandatory claims processing rule. [00:10:17] Speaker 04: So where are you getting that from, then? [00:10:18] Speaker 04: I was just going to ask that. [00:10:19] Speaker 04: Because the statute seems pretty clear that it says it's not subject to being reopened. [00:10:25] Speaker 00: True. [00:10:26] Speaker 04: So why is that not mandatory? [00:10:27] Speaker 00: Well, Your Honor, that same exact statute says that once the prior order has been reinstated, that the non-citizen is not eligible for relief and shall be removed. [00:10:38] Speaker 00: That is the same type of mandate that shall not be reopened. [00:10:44] Speaker 00: However, [00:10:45] Speaker 00: as in Bravo, Bravo, and Cuenca, they recognize that the regulations have carve-outs for withholding removal, cat claim, U visas, T visas, all of those are available to someone whose case has been reinstated. [00:11:01] Speaker 00: So even though it appears to be mandatory and it has a language that's mandatory, in reality, the same exact part of the statute has been found to allow for exceptions. [00:11:12] Speaker 00: So that's why I would say that in this particular case as well, it should be accepted. [00:11:19] Speaker 01: Bottom line, your time is running out. [00:11:20] Speaker 01: I just want you to explain to me how you want us to decide this case. [00:11:29] Speaker 01: Well, Your Honor, I think that... I mean, if you were in my shoes, so to speak, what is the analytical framework [00:11:41] Speaker 01: that you would apply to get to the result that you want? [00:11:46] Speaker 00: Well, Your Honor, I would I would think that I would ask that I asked the court to remand this and find that it is a that 12 through 185 is a non mandatory claims processing rule. [00:12:00] Speaker 00: We know it's a claims processing rule, but we don't the mandatory non mandatory part. [00:12:04] Speaker 00: It seems to be at issue. [00:12:06] Speaker 00: But if we look at it in context of the other [00:12:10] Speaker 00: you know, purported mandatory sections in that same exact statute, we know that it doesn't really seem to be mandatory. [00:12:17] Speaker 00: At least the other ones don't. [00:12:18] Speaker 00: Why would that be any different, right? [00:12:20] Speaker 00: So I would ask the court to remand this case with instructions for the board to determine, you know, under what circumstances that would trigger the ability for someone to reopen this case. [00:12:33] Speaker 00: So for example, in Suate Ariana, they allowed for at least [00:12:41] Speaker 00: You know, one of the theories was equitable tolling or Sue Espante motion reopen. [00:12:46] Speaker 00: The Sue Espante motion reopen is an existing procedure vehicle that seems to be a good type of kind of way to exempt non-mandatory claimants processing rules such as time and number bars to motions to reopen. [00:13:01] Speaker 00: So I personally think that that would be the proper vehicle But I'm not with the board and I can't make that in the first instance. [00:13:09] Speaker 04: So that's what asked the court to send back We'll make sure you have time for rebuttal. [00:13:12] Speaker 04: I mean one question on that would be You know, we have this case Bravo Bravo, which kind of addressed the Sue Espante Authority and said no that does not work So to get to where you want us to be what would we say about that case that it's been fully overruled? [00:13:30] Speaker 00: Yes, I think that's what Swati Oriyana said. [00:13:32] Speaker 00: It specifically pointed out that Cuenca and Bravo were no longer controlling. [00:13:39] Speaker 04: We'll put two minutes on the clock for rebuttal. [00:13:46] Speaker 00: Okay, thank you very much. [00:14:17] Speaker 03: Good morning, Your Honor. [00:14:18] Speaker 03: May it please the Court, Shelley Clemens, on behalf of the Attorney General. [00:14:23] Speaker 03: This Court should deny the petition for review because the Board did not err in denying petitioners' motion to reopen based off the strict statutory language in Section 1231A5. [00:14:34] Speaker 03: Cases decided since the initial briefing in this case preclude petitioners' claims and disposes of all of his arguments. [00:14:42] Speaker 03: There is nothing in Swate Oriolano which changed the label of this rule from that of jurisdictional to claims processing that undermines or changes those rulings. [00:14:56] Speaker 03: In, as this court has noted in the previous argument, in Cuenza, in Bravo Bravo, and also noted in our briefs, Gajira Sivala, this court has addressed all the arguments finding that this particular statute does not conflict with Title 2987. [00:15:11] Speaker 03: There are no temporal time limits such that refuting petitioners' argument that it only applies during the reinstatement proceedings, that it is not overly punitive. [00:15:22] Speaker 03: And in this particular case, when we look at spot there, Alana, we're still looking at the same rules. [00:15:28] Speaker 03: We have in this situation, a case where the board said it did not have the authority. [00:15:34] Speaker 03: And then to rule out petitioners motion to reopen, specifically citing the language of twelve to thirty one, five. [00:15:43] Speaker 03: The government would dispute that that is a jurisdictional finding. [00:15:47] Speaker 03: by the court because if you look at the very plain language of the statute and as this court has noted time and time again quains of Bravo Bravo and other cases that is mandatory and unambiguous tax that requires the court to require the board to decline to reopen the case where reinstatement of the previous removal order had been entered. [00:16:08] Speaker 01: So what are we actually doing in reinstatement proceedings? [00:16:11] Speaker 01: Because Petitioner can, in those circumstances, attempt to show gross miscarriage of justice in a reinstatement proceeding with respect to the underlying proceedings. [00:16:28] Speaker 01: Correct. [00:16:29] Speaker 01: So what's going on there? [00:16:30] Speaker 03: So had Petitioner chosen to seek review [00:16:36] Speaker 03: of the board's denial or of the, I'm sorry, of DHS's issuance of the reinstatement order. [00:16:43] Speaker 03: What he could have then done is appealed that and he could have sought, I believe it's three factual underlying facts, whether or not he tried to prove that there was an error in finding that he was an alien that had been removed and illegally reentered. [00:16:58] Speaker 03: But this court has consistently said at that point he could have collaterally attacked the underlying removal order [00:17:06] Speaker 03: asking for miscarriage of justice. [00:17:09] Speaker 03: But that's not the case here. [00:17:10] Speaker 01: A petitioner has basically forfeited his right... Right, so now we're in the land of motions to reopen. [00:17:16] Speaker 01: So what is distinct about, in this context, when we remove these jurisdictional bars, what is distinct about a motion to open, or how does the motion to reopen differ [00:17:31] Speaker 01: or why is it so distinct from the reinstatement proceedings? [00:17:35] Speaker 01: In other words, why aren't they at base the same? [00:17:42] Speaker 03: Well, I'm assuming they're not based the same because Congress has expressed intent for reinstatement. [00:17:47] Speaker 03: Once an alien has illegally re-entered falling removal, sort of self-help, [00:17:54] Speaker 03: and then had his remain here illegally and then had a reinstatement order issued, Congress's intent was to streamline the removal process from that point. [00:18:03] Speaker 01: Got that. [00:18:04] Speaker 03: And to make, basically, as this court has said, it's a less generous system at that point of what they can raise. [00:18:11] Speaker 03: And so Congress specifically cut that off. [00:18:13] Speaker 01: But why can't a motion to reopen accomplish the same purpose? [00:18:21] Speaker 03: Well, because Congress has made it clear they don't want there to be so many bites at the apple. [00:18:29] Speaker 03: He had an opportunity to raise this purpose. [00:18:32] Speaker 01: Well, Congress has also allowed promotions to reopen and the Supreme Court has said they're very important and blah, blah, blah. [00:18:38] Speaker 03: And they are important. [00:18:39] Speaker 03: And which is why Petitioner would also have the ability to do a withholding of removal or a CAD claim based off chain circumstances or country conditions evidence, because we're not so blinded to poor conditions in other countries. [00:18:52] Speaker 03: And we certainly don't want to send somebody back to the same country. [00:18:56] Speaker 03: But in Perez-Guzman, yes. [00:18:58] Speaker 02: Let's hope the Attorney General agrees with that statement. [00:19:02] Speaker 02: I'll just leave it at that. [00:19:03] Speaker 02: That's a political comment. [00:19:03] Speaker 02: No, no, it's a legal question. [00:19:06] Speaker 03: Yes, but the legal question is what types of relief are available. [00:19:11] Speaker 03: But in this particular instance, the language is very clear. [00:19:15] Speaker 03: And the court brought up the questions about whether or not this is a mandatory versus just a regular claims processing rule. [00:19:21] Speaker 03: And what we look at is if it's mandated by law or rule and whether it's flexible or if there's any carve-outs. [00:19:28] Speaker 03: And there simply aren't in this particular case. [00:19:31] Speaker 02: So it's kind of an odd thing. [00:19:32] Speaker 02: Footnote 5 of Suate Oriana says the government acknowledges that 1231A5 does not affect our court's jurisdiction to review the denial of a motion to reopen. [00:19:45] Speaker 02: Okay. [00:19:45] Speaker 02: So that's kind of where we are now. [00:19:47] Speaker 02: So the motion reopens been denied. [00:19:52] Speaker 02: We now look at it. [00:19:53] Speaker 02: So my first question is, [00:19:57] Speaker 02: Under what standard are we reviewing the denial post-Suerte Oriana? [00:20:05] Speaker 03: I think you'd be reviewing it for whether there was constitutional or legal error. [00:20:10] Speaker 03: And given the plain language of the statute and the fact that the government did raise this down below, [00:20:16] Speaker 03: there's no error in this particular case. [00:20:19] Speaker 03: I think it's important to look at what, we talk a lot about what Suatay Arlano did do, which is change this label, but let's talk about what Suatay Arlano didn't do. [00:20:27] Speaker 03: It didn't change the mandatory language of the statute or state that the board could ignore the language of 1231A5 absent waiver or forfeiture. [00:20:37] Speaker 02: So it's a kind of an odd thing where, okay, it claims processing rule, but it kind of becomes mandatory, doesn't it? [00:20:44] Speaker 02: I believe it's mandatory. [00:20:45] Speaker 02: But once it's mandatory, what do we have to review? [00:20:52] Speaker 03: I guess this would be one of those situations, kind of like Swarte Orlano, what's left to review is was there an inadvertent forfeiture that the board should have addressed. [00:21:01] Speaker 03: But what Swarte Orlano didn't do was they didn't say that there are other avenues for relief. [00:21:06] Speaker 03: It didn't open the door to other avenues of relief. [00:21:09] Speaker 03: It just said the board has jurisdiction to look at it, but [00:21:14] Speaker 03: the plain language of the statute still precludes their authority, which is what the board found in this case, from doing anything other than what the statute mandates. [00:21:22] Speaker 04: So your opposing counsel took issue with it being mandatory, and one of the arguments he made was that we do allow people who are subject to reinstated removal orders to seek withholding of removal, notwithstanding the fact that you might read 1231A5 to preclude that. [00:21:40] Speaker 04: So how do you respond on that point? [00:21:42] Speaker 03: I would respond that that was something that this court addressed in Perez Guzman, where the court noted that in addition to withholding in CAT, there's also the ability to seek UV visas. [00:21:56] Speaker 03: And in that case, Perez Guzman was discussing the language about why somebody couldn't [00:22:02] Speaker 03: apply for asylum as opposed to withholding removal where the language says no relief under Title XII and asylum is in, I'm sorry, Chapter XII and asylum is in Chapter XII. [00:22:12] Speaker 03: And the court noted that there could be various reasons. [00:22:15] Speaker 03: For instance, U.S. [00:22:16] Speaker 03: visas came up afterwards, but also noting the language in the Supreme Court's ruling of Fernandez V. Vargas or Fernandez Vargas V. Bondi, not Bondi, different attorney general. [00:22:27] Speaker 03: Fernandez August where the court noted that there it's not. [00:22:32] Speaker 03: Out of the realm of possibility that the court was discussing the differences between discretionary versus non discretionary relief and that that would be appropriate in in this case to. [00:22:43] Speaker 03: allow based off change circumstances for a petitioner to argue that they shouldn't be removed back to their original country because of these change circumstances, but it's a higher burden of proof. [00:22:56] Speaker 03: And that is kind of what this lower burden of proof is what they forfeit by illegally coming in and then trying to reopen the proceedings. [00:23:04] Speaker 02: So you're saying, as I understand it, that there's no constitutional or illegal error that's claimed here. [00:23:12] Speaker 02: and that would then lead to denial on appeal. [00:23:16] Speaker 03: That is correct. [00:23:17] Speaker 03: Because the government very clearly, as the court noted and counsel conceded, we raised 1231A5 and noted that it was a statutory bar. [00:23:26] Speaker 03: The court noted it didn't have an authority under the language of the statute. [00:23:30] Speaker 03: And so we have preserved that issue in review and the court was very clear. [00:23:35] Speaker 03: But regardless, at this point, and we've heard a lot of argument about the Susponte nature, [00:23:42] Speaker 03: At that time, the board came back and said it would also not entertain a suespante or a claim of gross miscarriage of justice. [00:23:49] Speaker 03: And it's important to note that it didn't do so much that on jurisdictional grounds. [00:23:54] Speaker 03: It noted that it just didn't see a reason for that. [00:23:56] Speaker 03: Also, a gross miscarriage of justice had to be raised in a collateral attack. [00:24:01] Speaker 03: That was before Bravo Bravo was issued that pulled Sue Espante also into the language of 1231A5 as being precluded. [00:24:09] Speaker 03: But given that, it's very clear that the board then, thinking it still had discretion, didn't see a reason. [00:24:16] Speaker 03: to grant Suez-Fonte reopening. [00:24:18] Speaker 03: So therefore, remand at this point would be an idle and useless formality, both under the language of the statute and the fact the board's posture on the underlying reopening, denial of reopening, was they just didn't see a reason to grant it in this particular case. [00:24:32] Speaker 04: Can we go back to Perez-Guzman? [00:24:33] Speaker 04: What is the justification for, and maybe some of this is in regulations, for allowing a petitioner who's subject to a reinstated removal order to seek withholding of removal but not to seek reopening? [00:24:49] Speaker 03: See if I could pull that up real quick. [00:24:52] Speaker 03: I had that language Basically in that case The court noted that there was there was a reasonable line that could be drawn between discretionary and non-discretionary relief and With the practical import being that the petitioner had to meet a higher standard To get withholding being mandatory. [00:25:17] Speaker 03: Yes, okay [00:25:18] Speaker 03: not necessarily allowing them to stay in the US, but ensuring they didn't go back to their initial country of removal. [00:25:25] Speaker 03: And the court noted that the Supreme Court has found that there's nothing inconsistent between the absolute terms of 1231A5 and the government's decision to make certain forms of relief available in reinstatement proceedings. [00:25:39] Speaker 03: But that's not the case here. [00:25:40] Speaker 03: We're not in reinstatement proceedings. [00:25:42] Speaker 03: We're in reopening proceedings. [00:25:45] Speaker 03: And because, in this case, Congress didn't carve out claims, and in Swate Arilano, the court did not carve out extra claims such as miscarriage of justice, the plain language of this statute indicates it's not an exception to the statutory bar to motion to reopen, but still allows for relief for people who would meet that higher burden of proof. [00:26:08] Speaker 03: So I think right there that is kind of the justification. [00:26:12] Speaker 03: I apologize if it's not artfully made, but these arguments have been addressed by this court and rejected as found to be an appropriate distinction between discretionary and non-discretionary. [00:26:25] Speaker 04: Could the government change its regulations and decide that someone who's subject to reinstated removal order cannot seek withholding of removal? [00:26:33] Speaker 04: Or is that something that is actually statutorily required through some other source? [00:26:38] Speaker 04: Because the reinstate, you know, this provision we're looking at says you're not eligible. [00:26:42] Speaker 04: You may not apply for any relief. [00:26:44] Speaker 04: And withholding of removal seems like it might be relief, but it's nonetheless allowed. [00:26:50] Speaker 03: In very limited circumstances and non-discretionary, higher burden approved. [00:26:55] Speaker 04: Right. [00:26:55] Speaker 04: And so what I'm asking is, could the government disallow someone like this in this situation from seeking withholding of removal? [00:27:05] Speaker 03: I don't think so because I think that this court has time and time and again said that that's a permissible thing, but I guess that would require changing regulations and then this court would have to assess whether that's appropriate, but I don't think at this point that the court, that the government... Yeah, I guess I was more asking as a matter of statutory interpretation between this provision and other provisions because I think what I'm trying to understand is [00:27:31] Speaker 04: It's mandatory, your position is it's mandatory as to motions to reopen, but it's not necessarily mandatory as to withholding of removal. [00:27:40] Speaker 04: And I take your position to be that's because withholding of removal is itself a mandatory form of relief. [00:27:50] Speaker 04: And that's the distinction perhaps. [00:27:52] Speaker 03: Yes. [00:27:52] Speaker 03: Well, it's also, it's not a motion. [00:27:57] Speaker 03: It's not something being granted as part of this motion to reopen. [00:28:00] Speaker 03: It's something that comes about once the person is reinstated and they give a reasonable fear interview. [00:28:07] Speaker 03: And then it's determined that they might have a reasonable fear and they're entitled to these separate proceedings. [00:28:14] Speaker 02: You're drawing the line between the motion to reopen and then the reinstatement proceedings, correct? [00:28:20] Speaker 03: Yes. [00:28:20] Speaker 03: That's what I'm doing, Your Honor. [00:28:24] Speaker 03: If the court doesn't have any further questions, we don't believe that swatter along changes the landscape in this particular case swatter. [00:28:34] Speaker 03: I was holding was very limited and very unique to the circumstances where they were noting that the government raised 1231 a five very, very late in the proceedings. [00:28:43] Speaker 03: after both the board had decided on the merits and therefore they had forfeit it. [00:28:47] Speaker 03: But it's not applicable in this case. [00:28:49] Speaker 03: And we believe that the language in Bravo and Bravo and Quinta, yes, they did use the words jurisdictional, but they also based it on the very mandatory and very unambiguous text of the statute. [00:29:01] Speaker 03: And therefore, we believe that just changing this label from jurisdictional to mandatory claims processing doesn't change the law in this regard. [00:29:08] Speaker 03: If the court has no further questions, the government will submit. [00:29:12] Speaker 02: I have a question, but it's unrelated to the argument, and that's just I note on the docket sheet that you're listed as an assistant U.S. [00:29:19] Speaker 02: attorney. [00:29:20] Speaker 02: Is that from the District of Columbia or where? [00:29:24] Speaker 03: No, I'm a trial attorney with the Office of Immigration with litigation. [00:29:28] Speaker 03: I used to be an assistant U.S. [00:29:31] Speaker 03: attorneys. [00:29:32] Speaker 03: I don't know if there's... But now you're at DOJ. [00:29:34] Speaker 03: But now I'm at DOJ. [00:29:35] Speaker 03: Thank you. [00:29:36] Speaker 02: I was just curious because sometimes there are... [00:29:38] Speaker 02: attorneys who've been seconded, not only from the U.S. [00:29:41] Speaker 02: Attorney, but from other agencies. [00:29:43] Speaker 02: So I was just curious. [00:29:44] Speaker 02: Thank you. [00:29:45] Speaker 02: Thank you. [00:29:45] Speaker 04: Thank you. [00:30:06] Speaker 00: I'd like to address just like the practical aspect of these types of proceedings in that as a general rule, if someone is ordered removed, they're physically removed, they come back to the United States, you know, the general motion reopen period is 90 days, right? [00:30:26] Speaker 00: So anything after 90 days, then someone is going to need to use some type of an equitable remedy. [00:30:31] Speaker 00: In order to overcome the plain language of the statute as far as the bars to temporal bars and potentially the numerical bars to reopening and you know the fact that the court and it's what the Oriana Made this distinction That this that 230 231 or 1321 1329 a5 is a claims processing rule [00:31:01] Speaker 00: rather than a jurisdictional bar, it seems odd to me that the court would do that for no reason, right? [00:31:08] Speaker 00: And just, it's a distinction without a difference. [00:31:13] Speaker 00: It doesn't make sense, the reason why they would do that, if there weren't another reason for that, and that is to show that it is a non, they didn't say it, and I'm not saying they said it, but a non, [00:31:27] Speaker 00: it's a non-mandatory claims processing rule. [00:31:30] Speaker 00: Otherwise, it seems like it would be a distinction without a difference. [00:31:35] Speaker 04: I don't know. [00:31:36] Speaker 04: I mean, we have a lot of rules in lots of areas that are not jurisdictional, but are nonetheless mandatory claims processing rules. [00:31:43] Speaker 04: So this wouldn't be particularly exotic. [00:31:49] Speaker 00: I think that after, let's see, as far as [00:31:53] Speaker 00: As far as I can recall, in 2008 is when Garcia de Rincón came out, right? [00:32:00] Speaker 00: And so we're in 2020-25 when Suate or 24 when Oriana came out. [00:32:05] Speaker 00: That's 16 years of precedent that went along with this. [00:32:09] Speaker 00: And just to change the name, it seems like that's [00:32:13] Speaker 00: That's a lot to think about. [00:32:14] Speaker 00: Maybe they did it just to make sure that all the books were correct, Your Honor, but I'm just I'm just thinking. [00:32:21] Speaker 00: But in another thing is, you know, even with the the [00:32:26] Speaker 00: even under the jurisdictional, the absolute language that says this cannot be reopened or reviewed under 1231-85, that as the board in this case stated, that there still did remain some type of a collateral attack. [00:32:44] Speaker 00: So even when we're talking about a jurisdiction, and that would be in the context of the review of the reinstatement order, [00:32:51] Speaker 00: And one of the reasons that was put forth for that is that it's like a safety valve. [00:32:57] Speaker 00: But in addition, that it's going to expedite the removal of the of the non citizens in this in this procedure. [00:33:04] Speaker 00: Well, you know, [00:33:06] Speaker 00: The petitioner is currently scheduled for its merits hearing on this particular, on his withholding of removal case for December 3rd, 2029. [00:33:16] Speaker 00: His case was reinstated in 2014, that's 15 years. [00:33:21] Speaker 00: It does not seem to be very expeditious. [00:33:26] Speaker 00: The court doesn't have any other questions. [00:33:28] Speaker 02: So let me just understand what his status is between now and the time of the hearing. [00:33:37] Speaker 00: He is in withholding of removal proceedings. [00:33:40] Speaker 00: He's out of custody and he's in withholding removal proceedings. [00:33:45] Speaker 00: Ostensibly, let's say the worst happens and we don't prevail, then we can appeal that to the board and then we would appeal that to the court. [00:33:55] Speaker 00: And in those proceedings, we would be able to attack the, collateral attack the underlying, the underlying proceedings according to the board's decision here. [00:34:05] Speaker 00: Again, doesn't seem like a good use of time and resources. [00:34:08] Speaker 00: It seems like a motion to reopen would be a much better way to do this. [00:34:13] Speaker 02: appreciate your argument. [00:34:14] Speaker 02: Thank you. [00:34:14] Speaker 02: Thank you. [00:34:17] Speaker 00: Thank both counsel. [00:34:18] Speaker 00: This case is submitted.