[00:00:00] Speaker 04:
Good morning. May it please the court. My name is Manuel Rios, and I represent the petitioner, Mr. Emilio Rios. I'd like to reserve three minutes for rebuttal.

[00:00:10] Speaker 04:
This is a petition for review of the Immigration Board of Immigration Appeals denial of Mr. Rios' sua sponte motion to reopen his reinstated removal order from 1998. The motion was based on the set-aside or the vacatur of his criminal conviction that served as the basis for the deportation order. Formerly, before the deportation order, Mr. Rios enjoyed the rights of a legal permanent resident of the United States.

[00:00:39] Speaker 04:
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 04:
Now, the board's denial of the motion to reopen Suis Bonte was based on the board's conclusion that it did not have jurisdiction, that, in fact, The reinstatement provision found at 1231.85 of 8 U.S.C. 1231.85 served as a jurisdictional bar that absolutely precluded reopening.

[00:01:11] Speaker 02:
I don't know. Where are you getting that? I mean, they said because the respondent is subject, we're without authority. Do you interpret that to mean we lack jurisdiction?

[00:01:22] Speaker 04:
I do. I do, Your Honor.

[00:01:25] Speaker 04:
It seems to toe the line. as far as all of the other cases that have ever been decided prior to Suat de Oriana. If we look back, starting with one of the first cases, which is Garcia de Recon, that 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. So I think I would interpret that authority, lack of authority, as to be equivalent of lack of jurisdictions.

[00:01:54] Speaker 01:
We now know in Swathe Oriana that this section, 1231A5, is not a jurisdictional bar. It's a claims processing bar. So 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 04:
Well, I think that 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 04:
I believe that that is a legal error that the court can use for remand. And I think that as a result of that, there are other issues that are going to flow from that as far as You know, what is the proper standard that would that would potentially allow someone to overcome the claims processing rule? Right. Or is there already one existing? If you if the court looks at the procedural posture of SWAT Oriana, that seems to it's not especially clear.

[00:03:13] Speaker 04:
But they mentioned that it did come to the board. underneath various theories. 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 sua sponte motion to reopen. So those were two of the theories that Suathe Oriana came up to the court and the court decided that it did have jurisdiction.

[00:03:44] Speaker 04:
So, you know, it seems to me that the, In some ways, the court accepted the fact that there are equitable avenues around this claims processing rule, and I think that that's really what the issue is going to be. Go ahead.

[00:03:59] Speaker 01:
I'm sorry. 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. Is that right?

[00:04:19] Speaker 04:
That is correct.

[00:04:21] Speaker 01:
But then it could look at the denial of the motion to reopen, which is different than attacking directly the deportation order, correct?

[00:04:35] Speaker 04:
Sure. Maybe I'm a bit confused, Your Honor, but Mr. Rios' motion to reopen was to the board, right? I understand. I'm sorry?

[00:04:43] Speaker 03:
I'm sorry?

[00:04:44] Speaker 04:
It was to the board. It was not to the immigration judge.

[00:04:47] Speaker 01:
I said the BIA. I'm sorry if I didn't.

[00:04:49] Speaker 04:
Maybe I just misunderstood.

[00:04:51] Speaker 01:
I meant the BIA if I misstated. I'm sorry. But I was talking about the BIA.

[00:04:58] Speaker 01:
There's this mandatory aspect of 1231.

[00:05:01] Speaker 01:
So the BIA doesn't have any discretion to review the underlying deportation order. I think you agree with me on that.

[00:05:12] Speaker 04:
I think that I agree with you at the time of the decision that is true. I do not believe that is true now.

[00:05:18] Speaker 02:
Well, how is that right? I mean, the statute says that for somebody in your client's position who's subject to a reinstated removal order, that it's not subject to being reopened or is not subject to being reopened. So aren't you here asking on a motion to reopen to do just that?

[00:05:36] Speaker 04:
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 seems to be absolute prohibitions on, 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 Swati Oriana.

[00:06:02] Speaker 02:
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 filed something in the board opposing this relief, and they continue to do so here.

[00:06:24] Speaker 04:
Well, I think the way that I understood SWATE, Your Honor, is that the court specifically found that the board could entertain jurisdiction, take jurisdiction over motions to reopen reinstated orders. That seems fairly clear. It didn't have any type of conditional language on that, but it specifically stated that, and that is at 631 of that decision. So, and furthermore, it stated that any of the prior jurisprudence that followed the fact that 1231.85 was a jurisdictional, absolute jurisdictional bar, then those have been abrogated because they're inconsistent with the Supreme Court decision.

[00:07:08] Speaker 04:
So as a result, I think that the difference between a claims processing rule and a jurisdictional bar makes all the difference in the world. That's the rub in this case, Your Honor. And in, you know, jurisdictional bars are subject to equitable considerations such as equitable tolling or perhaps sua sponte to overcome, to preside to- You mean claims processing. Oh, excuse me. Yes.

[00:07:32] Speaker 01:
I think we, it's hard to not confuse the two here because I've been back and forth with the cases, but you mean claims processing bars have an outlet.

[00:07:42] Speaker 04:
That is correct. All right. Thank you, Your Honor, for that clarification. And I think that, you know, as a result of that, you know, this court has suggested that, you know, that jurisdictional bars, they have harsh, often result in harsh outcomes, whereas the claims processing rules allow for equitable considerations to make the rules not apply. For example, equitable tolling or what we have here is the sua sponte motion to reopen, which would allow someone to attack.

[00:08:15] Speaker 03:
Claims processing rules can be mandatory rules.

[00:08:18] Speaker 04:
Sure. Your Honor, I'm not saying that we have to ignore them. 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 02:
A claims processing rule, as Judge Pia's reference, can be mandatory. And it seemed here it would be if it was properly invoked by the government. Do you contend the government did not properly invoke it?

[00:08:49] Speaker 04:
I do not.

[00:08:49] Speaker 02:
I believe that – I think that – If that's true, how do we override the mandatory nature of it, or do you claim it's not mandatory?

[00:08:58] Speaker 04:
I do not claim that it's mandatory. I don't think that that's what Suathe Ariana said. I think 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 the government didn't waive it. The government has vigorously stated that the whole time. So 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?

[00:09:36] Speaker 04:
And then they're going to remand it, and in the remanded proceedings, that the government is not going to be futile or an idle, you know, lark that simply because the government cannot raise that at that time.

[00:09:48] Speaker 02:
So 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 04:
Oh, Your Honor, if I stated that it's mandatory, then I'm mistaken. I do not believe it is mandatory. So you think it's just not mandatory? That is correct. 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. Okay, I understand. It is a non-mandatory claims processing rule. And so where are you getting that from then?

[00:10:18] Speaker 02:
I was just going to ask that. Because the statute seems pretty clear that that it can't be, it says it's not subject to being reopened.

[00:10:25] Speaker 04:
True.

[00:10:25] Speaker 02:
So why is that not mandatory?

[00:10:27] Speaker 04:
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. That is the same type of mandate that shall not be reopened. However, as in Bravo Bravo and Cuenca, they recognize that that the regulations have carve-outs for withholding of removal, CAT claim, U visas, T visas, all of those are available to someone whose case has been reinstated.

[00:11:01] Speaker 04:
So even though it appears to be mandatory and it has language that's mandatory, in reality, the same exact part of the statute has been found to allow for exceptions. So that's why I would say that in this particular case as well, it should be accepted. So what...

[00:11:19] Speaker 03:
bottom line, your time is running out. I just want you to explain to me how you want us to decide this case.

[00:11:29] Speaker 03:
Well, Your Honor, I think that... I mean, if you were in my shoes, so to speak, how would you... What is the analytical framework that you would apply to get to the result that you want?

[00:11:46] Speaker 04:
Well, Your Honor, I would I would think that I would ask the court to remand this and find that it is a, that 1230185 is a non-mandatory claims processing rule. We know it's a claims processing rule, but we don't, the mandatory, non-mandatory part, it seems to be at issue. But if we look at it in context of the other, 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 04:
At least the other ones don't. Why would that be any different, right? 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. So, for example, in Swathe, Ariana, they allowed for at least, you know, one of the theories was equitable tolling or sua sponte motion reopening. The sua sponte motion to reopen is an existing procedure or vehicle that seems to be a good type of kind of way to exempt non-mandatory claimant's processing rules, such as time and number bars to motions to reopen.

[00:13:02] Speaker 04:
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. So that's what I'd ask the court to send back.

[00:13:11] Speaker 02:
We'll make sure you have time for rebuttal. I mean, one question on that would be, You know, we have this case, Bravo Bravo, which kind of addressed the Suizpante 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 04:
Yes, I think that's what Suizpante said. It specifically pointed out that Cuenca and Bravo were no longer controlling.

[00:13:36] Speaker 02:
Excuse me. Never mind.

[00:13:43] Speaker 02:
We'll put two minutes on the clock for rebuttal.

[00:13:46] Speaker 04:
Okay. Thank you very much.

[00:14:17] Speaker 00:
Good morning, Your Honor. May it please the Court, Shelley Clemons, on behalf of the Attorney General.

[00:14:23] Speaker 00:
This Court should deny the petition for review because the Board did not err in denying Petitioner's motion to reopen based off the strict statutory language in Section 1231A5.

[00:14:34] Speaker 00:
Cases decided since the initial briefing in this case preclude Petitioner's claims and disposes of all of his arguments.

[00:14:42] Speaker 00:
There is nothing in Suwate Orellano that changes change the label of this rule from that of jurisdictional to claims processing that undermines or changes those rulings.

[00:14:57] Speaker 00:
As this court has noted in the previous argument in Quainsa, in Bravo Bravo, and also noted in Arbrius Gutierrez-Zavala, this court has addressed all the arguments finding that this particular statute does not conflict with 1229.87.

[00:15:11] Speaker 00:
There are no temporal time limits such that refuting petitioner's argument that it only applies during the reinstatement proceedings, that it is not overly punitive.

[00:15:22] Speaker 00:
And in this particular case, when we look at Swati or Alana, we're still looking at the same rules. We have in this situation a case where the board said it did not have the authority to rule on petitioner's motion to reopen, specifically citing the language of 1231 . The government would dispute that that is a jurisdictional finding 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, , bravo, bravo, and other cases, that is mandatory and unambiguous text that requires the court to, required the board to decline to reopen the case where a reinstatement of the previous removal order had been entered.

[00:16:08] Speaker 03:
So what are we actually doing in reinstatement proceedings? Because the petitioner can, in those circumstances, attempt to show gross miscarriage of justice, yes, in a reinstatement proceeding with respect to the underlying.

[00:16:27] Speaker 00:
Correct.

[00:16:28] Speaker 03:
So what's going on there?

[00:16:31] Speaker 00:
So had petitioner chosen to seek review of the board's denial, or of the – I'm sorry, of DHS's issuance of the reinstatement order. 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. But this court has consistently said at that point he could have collaterally attacked the underlying removal order asking for miscarriage of justice.

[00:17:09] Speaker 00:
But that's not the case here. A petitioner has basically forfeited his right. Right.

[00:17:12] Speaker 03:
So now we're in the land of motions to reopen. Right. So what is distinct about – in this context, when we remove these jurisdictional bars, what is distinct about a motion to – or how does the motion to reopen differ or why is it so distinct from the reinstatement proceedings? In other words, why aren't they at base the same?

[00:17:42] Speaker 00:
Well, I'm assuming they're not based the same because Congress has expressed intent for reinstatement. Once an alien has illegally reentered falling removal, sort of self-help, and then had his remainder illegally and then had a reinstatement order issued, Congress's intent was to streamline the removal process from that point.

[00:18:03] Speaker 03:
Yes, got that.

[00:18:04] Speaker 00:
And to make basically, as his court has said, it's a less generous system at that point. Of what they can raise. And so Congress specifically cut that off.

[00:18:13] Speaker 03:
But why can't a motion to reopen accomplish the same purpose?

[00:18:21] Speaker 00:
Well, because Congress has made it clear they don't want there to be so many bites at the apple.

[00:18:29] Speaker 00:
He had an opportunity to raise this purpose.

[00:18:32] Speaker 03:
Well, Congress has also allowed for motions to reopen and the Supreme Court has said they're very important and blah, blah, blah.

[00:18:38] Speaker 00:
And they are important, which is why a petitioner would also have the ability to do a withholding of removal or a CAD claim based off changed circumstances or country conditions evidence, because we're not so blinded to poor conditions in other countries. And we certainly don't want to send somebody back to the same country.

[00:18:56] Speaker 00:
But in Perez-Guzman, yes.

[00:18:58] Speaker 01:
Let's hope the attorney general agrees with that statement. But I'll just leave it at that. That's a political comment. We're not. No, no, it's a legal question.

[00:19:06] Speaker 00:
Yes, but the legal question.

[00:19:09] Speaker 00:
is what types of relief are available. But in this particular instance, the language is very clear, and the court brought up the questions about whether or not this is a mandatory versus just a regular claims processing rule. 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. And there simply aren't in this case.

[00:19:30] Speaker 01:
So it's kind of an odd thing, because in footnote 5 of Suate Oriana – It says the government acknowledges that 1231A5 does not affect our court's jurisdiction to review the denial of a motion to reopen. Okay. So that's kind of where we are now. Right. So the motion to reopen has been denied.

[00:19:52] Speaker 01:
We now look at it. So my first question is, under what standard are we reviewing the denial post-Suate Orellana?

[00:20:05] Speaker 00:
I think you'd be reviewing it for whether there was constitutional or legal error.

[00:20:10] Speaker 00:
And given the plain language of the statute and the fact that the government did raise this down below, there's no error in this particular case. I think it's important to look at what, we talk a lot about what Swati Arlano did do, which is change this label, but let's talk about what Swati Arlano didn't do. 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 01:
So it's a kind of an odd thing where, okay, it's a claims processing rule, but it kind of becomes mandatory, doesn't it? I believe it's mandatory. But once it's mandatory, what do we have to review?

[00:20:52] Speaker 00:
I guess this would be one of the situations, kind of like SWAT or ELANO, what's left to review is, was there an inadvertent forfeiture that the board should have addressed? But what Sveta Orlano didn't do was he didn't say that there are other avenues for relief. It didn't open the door to other avenues of relief. It just said the board has jurisdiction to look at it, but 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 02:
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. So how do you respond on that point?

[00:21:43] Speaker 00:
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 U visas. And in that case, Perez-Guzman was discussing the language about why somebody couldn't apply for asylum as opposed to withholding removal, where the language says no relief under Title 12 and asylum is in, I'm sorry, Chapter 12 and asylum is in Chapter 12. And the court noted that there could be various reasons.

[00:22:15] Speaker 00:
For instance, used 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, Fernandez Vargas, where the court noted that it's not 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 this case to allow, based off changed circumstances, for a petitioner to argue that they shouldn't be removed back to their original country because of these changed circumstances, but it's a higher burden of proof.

[00:22:56] Speaker 00:
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 01:
So you're saying, as I understand it, that there's no constitutional or illegal error that's claimed here and that would then lead to denial on appeal.

[00:23:16] Speaker 00:
That is correct. Because the government very clearly, as the court noted and counsel conceded, we raised 1231A5 and noted that it was a statutory bar.

[00:23:27] Speaker 00:
The court noted it didn't have any authority under the language of the statute.

[00:23:31] Speaker 00:
And so we have preserved that issue in review, and the court was very clear. But regardless, at this point, and we've heard a lot of argument about the sua sponte nature, but at that time, the board came back and said it would also not entertain a sua sponte or a claim of gross miscarriage of justice. And it's important to note that it didn't do so much that on jurisdictional grounds. It noted that It just didn't see a reason for that. Also, miscarriage of justice had to be raised in a collateral attack.

[00:24:01] Speaker 00:
That was before Bravo Bravo was issued that pulled Suis Fonte also into the language of 1231A5 as being precluded. But given that, it's very clear that the board then, thinking it still had discretion, didn't see a reason to grant Suis Fonte reopening. 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 02:
Can we go back to Perez-Guzman? 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?

[00:24:50] Speaker 00:
Let's see if I can pull that up real quick. I have that language.

[00:24:59] Speaker 00:
Basically, in that case, the court noted that 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 that other relief.

[00:25:15] Speaker 02:
You mean withholding being mandatory? Yes.

[00:25:17] Speaker 00:
Okay.

[00:25:19] Speaker 00:
not necessarily allowing them to stay in the U.S., but ensuring they didn't go back to their initial country of removal.

[00:25:25] Speaker 00:
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 00:
But that's not the case here. We're not in reinstatement proceedings. We're in reopening proceedings.

[00:25:46] Speaker 00:
And because, in this case, Congress didn't carve out claims, and in Swati Arulano, the court did not carve out extra claims, such as miscarriage of justice, the plain language of the 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.

[00:26:09] Speaker 00:
So I think right there, that is kind of the justification. I apologize if it's not made, but these have been addressed, 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 02:
But could the government change its regulations and decide that someone who's subject to a reinstated removal order cannot seek withholding of removal?

[00:26:33] Speaker 02:
Or is that something that is actually statutorily required through some other source?

[00:26:38] Speaker 02:
Because the reinstate, you know, this provision we're looking at says you're not eligible, you may not apply for any relief.

[00:26:44] Speaker 02:
And withholding of removal seems like it might be relief, but it's nonetheless allowed.

[00:26:50] Speaker 00:
In very limited circumstances and non-discretionary, higher burden of proof.

[00:26:55] Speaker 02:
Right. 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 00:
I don't think so because I think that this court has time and time again said that that's a permissible – Okay, but I guess that would require changing regulations, and then this court would have to assess whether that's appropriate.

[00:27:20] Speaker 02:
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 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. I take your position to be That's because withholding of removal is itself a mandatory form of relief, and that's the distinction perhaps.

[00:27:52] Speaker 00:
Yes. Well, it's also – it's not a motion – it's not part – it's not something being granted as part of this motion to reopen. It's something that comes about once the person is reinstated and they give a reasonable fear interview. Right. And then it's determined that they might have a reasonable fear and they're entitled to these separate proceedings.

[00:28:14] Speaker 01:
You're drawing the line between the motion to reopen and then the reinstatement proceedings, correct?

[00:28:19] Speaker 00:
Yes, that's what I'm doing, Your Honor.

[00:28:24] Speaker 00:
If the court doesn't have any further questions, we don't believe that Swate or Ilano changes the landscape in this particular case.

[00:28:33] Speaker 00:
Swato Erlano's holding was very limited and very unique to the circumstances where they were noting that the government raised 1231A5 very, very late in the proceedings after both the board had decided on the merits and therefore they had forfeited. But it's not applicable in this case. 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 statutes. 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 00:
The court has no further questions.

[00:29:10] Speaker 01:
The government will submit. I have a question, but it's unrelated to the argument. And that's just a note on the docket sheet that you're listed as an assistant U.S. attorney. Is that from the District of Columbia or where?

[00:29:24] Speaker 00:
No, I'm a trial attorney with the Office of Immigration Litigation. I used to be an assistant U.S. U.S. attorneys, I don't know if they're – But now you're at DOJ. But now I'm at DOJ. Thank you. I'm not sure how that happened.

[00:29:36] Speaker 01:
I was just curious because sometimes there are attorneys who have been seconded, not only from the U.S. attorney but from other agencies. So I was just curious. Thank you. Thank you.

[00:29:45] Speaker 02:
Thank you.

[00:30:07] Speaker 04:
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? So anything after 90 days, then someone is going to need to use some type of equitable remedy 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.

[00:30:41] Speaker 04:
And, you know, the fact that the court and it's what the Oriana made this distinction that this that two thirty two thirty one or thirteen twenty one thirteen twenty eight five is a claims processing rule rather than a jurisdictional bar.

[00:31:04] Speaker 04:
It seems odd to me that the court would do that for no reason. Right. And just it's a distinction without a difference. 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 not they didn't say it. And I'm not saying they said it, but a non it's a non-mandatory claims processing rule. Otherwise, it seems like it would be. a distinction without a difference.

[00:31:35] Speaker 02:
I don't know. I mean, we have a lot of rules in lots of areas that are not jurisdictional, but are nonetheless mandatory claims processing rules. So this wouldn't be particularly exotic.

[00:31:49] Speaker 04:
I think that after, let's see, as far as I can recall, in 2008 is when Garcia de Rancon came out, right? And so we're in 2024, 25 when Swati or 24 when Oriana came out. That's 16 years of precedent that went along with this.

[00:32:09] Speaker 04:
And just to change the name, it seems like that's that's a lot to think about. Maybe they did it just to make sure that all the books were correct, Your Honor. But I'm just I'm just thinking. But in another thing is, you know, even with the the even under the the jurisdictional regulations, 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 04:
So even when we're talking about a jurisdiction, and that would be in the context of the review of the reinstatement order. And one of the reasons that was put forth for that is that it's like a safety valve. But in addition, that it's going to expedite the removal of the non-citizens in this procedure. Well, you know, the petitioner is currently scheduled for its merits hearing on this particular, on his withholding of removal case for December 3rd, 2029.

[00:33:17] Speaker 04:
His case was reinstated in 2014. That's 15 years. It does not seem to be very expeditious.

[00:33:26] Speaker 04:
The court doesn't have any other questions.

[00:33:28] Speaker 01:
So let me just understand what his status is between now and the time of the hearing.

[00:33:37] Speaker 04:
He is in withholding of removal proceedings. He's out of custody and he's in withholding of removal proceedings. Now, 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. And in those proceedings, we would be able to attack, collaterally attack, the underlying proceedings according to the board's decision here. Again, it doesn't seem like a good use of time and resources.

[00:34:08] Speaker 04:
It seems like a motion to reopen would be a much better way to do this.

[00:34:13] Speaker 01:
I appreciate your argument. Thank you.

[00:34:14] Speaker 04:
Thank you.

[00:34:15] Speaker 01:
Thank you.

[00:34:16] Speaker 02:
I thank both counsel. This case is submitted.