[00:00:00] Speaker 03:
So let's go ahead and proceed.

[00:00:02] Speaker 04:
Thank you, Your Honors, and good morning.

[00:00:04] Speaker 04:
May it please the Court, Jesse Evans Schroeder on behalf of David, Petitioner David Ixba Santiago, who is referred to in the record as Epifanio Nape Santiago.

[00:00:16] Speaker 04:
What do you call him?

[00:00:18] Speaker 04:
His true name is David Ixba Santiago, but I think he's been referred to in briefing through his alias Nape Santiago.

[00:00:28] Speaker 03:
All right, so did both of you, I guess, both of you wanted us to, I think both of you contended that another case had priority and so that we need to wait.

[00:00:44] Speaker 03:
Is that right?

[00:00:47] Speaker 04:
I did not contend that another case has priority, but I concede and recognize that this court is entertaining argument in, I believe it's Navarette in this month that may bear on this case.

[00:01:05] Speaker 04:
It has not, the jurisdictional issues in that case have not been raised in this case or briefed in this case.

[00:01:11] Speaker 04:
If the court does want to hear more on that, then I would ask for an opportunity for supplemental briefing.

[00:01:17] Speaker 01:
Just briefly, and maybe we would need to do this for supplemental briefing, are the cases exactly parallel?

[00:01:26] Speaker 01:
Is this one exactly parallel to Navaret, do you know?

[00:01:31] Speaker 04:
I don't believe so, Your Honor.

[00:01:32] Speaker 04:
I mean, the Navaret case deals with Riley as cases

[00:01:39] Speaker 04:
Addressing jurisdiction over challenges to reinstated orders, and in this case, we're really dealing with just the review of a discretionary continuance denial in withholding only proceedings.

[00:01:53] Speaker 03:
Well, if NAVARAD has priority and to interpret post-Reilly jurisdictional issues, then we would be bound by that.

[00:02:07] Speaker 03:
You're saying there's no jurisdictional issues here.

[00:02:10] Speaker 03:
I'm not sure I agree with that.

[00:02:12] Speaker 03:
I think there are other.

[00:02:13] Speaker 03:
I'm not saying that.

[00:02:14] Speaker 04:
I'm just saying they have not been raised at all in this case, Your Honor.

[00:02:18] Speaker 01:
I understand that.

[00:02:18] Speaker 01:
But my understanding here is that the order that you're challenging, which was the withholding and cat only proceedings, and I understand what you're challenging about it are the continuances, but what you're

[00:02:37] Speaker 01:
But the ultimate thing you're challenging are the withholding and cat-only proceedings.

[00:02:42] Speaker 01:
But the order in that case included a removal order.

[00:02:51] Speaker 01:
In other words, it could be that there is a second removal order here and that these two were decided together.

[00:03:00] Speaker 04:
That's correct, yes.

[00:03:04] Speaker 02:
Wait, so sorry, is this a cat only proceeding?

[00:03:09] Speaker 04:
No, I mean, there is a separate cat claim that is pending in addition to the withholding claim.

[00:03:15] Speaker 02:
But is it withholding of removal under cat?

[00:03:18] Speaker 04:
No, there's a statutory withholding claim as well as a convention against torture claim.

[00:03:23] Speaker 01:
But there was a reinstated removal order sometime before this, and there was a reasonable fair proceeding, and then there was this cat and withholding.

[00:03:34] Speaker 01:
only proceeding.

[00:03:35] Speaker 01:
Is that much right so far?

[00:03:37] Speaker 04:
Yes.

[00:03:39] Speaker 01:
All right.

[00:03:39] Speaker 01:
Then the order in the cat and removal and withholding order proceeding, ordered the prior removal order to be reinstated itself.

[00:03:52] Speaker 01:
In other words, that order seems to have included a deportation order, even though there was also an earlier order.

[00:04:04] Speaker 04:
I agree.

[00:04:06] Speaker 01:
So it might be quite different for that reason.

[00:04:10] Speaker 04:
I'm sorry, what might be quite different?

[00:04:12] Speaker 01:
From Navarette, because there was one order which included both the denial of the withholding in cat claim and stated that there was a reinstatement of the prior removal order in the same order, I think.

[00:04:34] Speaker 04:
Your Honor, honestly, I would have to have to submit supplemental briefing.

[00:04:38] Speaker 01:
So it might be useful to have briefing on whether this is really the same as never at least.

[00:04:45] Speaker 04:
I would be completely open to that.

[00:04:47] Speaker 02:
I think a related question is, okay, so you wanted these continuances, but what underlying proceeding were you trying to continue?

[00:04:59] Speaker 04:
Well, the applications for withholding and cap protection.

[00:05:05] Speaker 04:
which I acknowledge was in a reinstated removal proceedings.

[00:05:13] Speaker 04:
If I may, Your Honors, go to the issues that were briefed in this case.

[00:05:18] Speaker 03:
All right.

[00:05:19] Speaker 03:
Well, it's pretty, I think, I think we're probably going to have to find out if NAVERET has priority over us.

[00:05:26] Speaker 03:
There's a jurisdictional issue that post-Reilly is going to have to be addressed by someone.

[00:05:31] Speaker 03:
So that could affect things.

[00:05:32] Speaker 03:
That being said,

[00:05:34] Speaker 03:
factually what you have here, you have a couple of issues.

[00:05:38] Speaker 03:
You have the continuance for expert testimony and the continuance for the U visa.

[00:05:42] Speaker 03:
Correct.

[00:05:43] Speaker 03:
Okay.

[00:05:44] Speaker 03:
And if we are allowed to get to that, if we, because Navarette could go a certain way that you're out.

[00:05:52] Speaker 03:
Understood.

[00:05:53] Speaker 03:
Or we could go a certain way depending on who has, but that, so on the continuance for expert testimony,

[00:06:00] Speaker 03:
Dr. Hernandez's declaration was over 20 pages long and the IJ reviewed it and discussed it.

[00:06:05] Speaker 03:
Why wasn't that enough to allow your client to meaningfully present this case?

[00:06:10] Speaker 04:
Well, I mean, first of all, Your Honor, the first thing that we look at is the good cause standard for granting a continuance.

[00:06:18] Speaker 04:
And so one of the factors in that, which is relevant to your question, I think, is the nature of the evidence that was excluded.

[00:06:26] Speaker 04:
And at the time that the continuance request was lodged with the court 11 weeks before the merits hearing, the IJ was being asked to allow

[00:06:35] Speaker 04:
live expert testimony in context on issues that were plainly central to petitioners' claims.

[00:06:41] Speaker 04:
And those issues are really highlighted by the IJ's later claim of an absence of evidence as to those issues in the record.

[00:06:51] Speaker 03:
Okay, but you said in your brief that you did not explicitly agree to the Tuesday, November 14, 2017 hearing.

[00:07:00] Speaker 03:
But at the January 17 hearing, the IJ made it clear

[00:07:04] Speaker 03:
that Wednesday and Thursdays are not Tucson calendar dates because the IJ would be at the prison those days.

[00:07:12] Speaker 03:
Counsel for the petitioner, which I believe was Rebecca Eisenberg, responded by asking if Fridays were available.

[00:07:20] Speaker 03:
When the IJ said no, counsel for petitioner stated Tuesday is fine then, Your Honor.

[00:07:27] Speaker 03:
So would you agree that it appears from the exchange that Petitioner accepted having the merits hearing on a Tuesday and then sought an expert that wouldn't be available on a Tuesday?

[00:07:39] Speaker 04:
No, I think that's really a big mischaracterization of the record, Your Honor.

[00:07:44] Speaker 03:
What the Council for... Well, I'm reading from some things in the record.

[00:07:47] Speaker 04:
What counsel for petitioners said in the January 2017 hearing was, we may opine that we will present an expert.

[00:07:56] Speaker 04:
And then she understood that she accepted the October 2017 hearing date.

[00:08:06] Speaker 04:
In March, the court sent a notice to Petitioner's Council moving the hearing date by a month to November.

[00:08:14] Speaker 04:
And I know there's been some doubt about whether that was, how that was delivered to Respondent's Council, but the court will find at the administrative record at 394, the court notice with a stamp

[00:08:29] Speaker 04:
on the top right corner that says, attention, your hearing date has been rescheduled, disregard any previous notice you may have received.

[00:08:40] Speaker 04:
We don't know from the record when the petitioner was able to obtain and retain a qualified expert.

[00:08:48] Speaker 04:
So what's really critical in this case, Your Honor, is that

[00:08:51] Speaker 04:
he did make this request for a continuance 11 weeks before the merits hearing and when we do know that at that time he had a qualified expert as it's noted in the opening brief it's not easy to find qualified experts to talk about these very detailed well it's my understanding though that too that you can have people appear by telephone in these hearings I don't see that there was any effort for that or you could have secured someone else I don't see that there was any effort for that so

[00:09:21] Speaker 04:
Well, we did request telephonic testimony, it appeared, or the petitioner did, but given the expert's schedule, which is documented, Your Honor, in his motion to continue, he submitted, the petitioner's counsel submitted a letter from the expert as well as his teaching schedule showing that he was not available because he was lecturing and holding student conferences during that time.

[00:09:43] Speaker 04:
As far as saying, well, the petitioner could have found an additional expert, I think this is sort of along the same lines as the court saying,

[00:09:51] Speaker 04:
the petitioner could have

[00:09:54] Speaker 04:
submitted supplemental briefs or supplemental affidavits, this court's precedent does not require that individuals either predict what the judge is ultimately going to conclude in order to supplement the record in advance, particularly when what is being asked for is something that is live testimony responsive to the ongoing proceedings.

[00:10:21] Speaker 02:
Can I ask about the U visa before you run out of time?

[00:10:25] Speaker 02:
Is there an update on the U visa situation?

[00:10:30] Speaker 04:
Not in the record, but the respondent did receive, and government counsel is aware of this, the bona fide determination that Your Honors may have heard of that is the first screening that appears he's eligible.

[00:10:42] Speaker 04:
The processing times right now lead me to believe that within a few months he will have the ultimate decision on that U visa.

[00:10:51] Speaker 02:
The idea that he was prima facie eligible was already true, right?

[00:10:56] Speaker 02:
We knew that already.

[00:10:56] Speaker 02:
That was true back when the agency proceedings were happening.

[00:11:00] Speaker 02:
But so you wanted a continuance back in around 2020, but so would the continuance still need to be in effect because he still doesn't have the U visa?

[00:11:14] Speaker 04:
I submit, Your Honor, that if you look at the framework laid out in Sanchez-Sosa, LNY, and even LABR, the primary consideration continues to be the applicant's prima facie eligibility, contrary to the government's assertion that a single sentence in LABR signifies that long processing times will

[00:11:39] Speaker 04:
categorically mean that a continuance is not warranted.

[00:11:44] Speaker 03:
Really, that sentence... Does he have... He doesn't have a U visa.

[00:11:46] Speaker 03:
That was part of... That was the lead-in.

[00:11:48] Speaker 03:
He doesn't have one yet, right?

[00:11:50] Speaker 03:
Not yet, no.

[00:11:51] Speaker 02:
But your argument is that relying on the time it would take alone is an error, and that is what you think the agency did here.

[00:11:59] Speaker 04:
Absolutely.

[00:11:59] Speaker 01:
But also, your representation is that this is apparently a two-stage process, and he has finally gotten through the first substantive part of it.

[00:12:09] Speaker 04:
That is true as well.

[00:12:10] Speaker 04:
Thank you.

[00:12:11] Speaker 02:
Oh, wait, sorry.

[00:12:11] Speaker 02:
But I thought he already had gotten through the first substantive part back when they... Well, I wouldn't... Sorry to interrupt, Your Honor.

[00:12:16] Speaker 04:
I wouldn't say that he... I mean, what happened was the IJ found that he was not prima facie eligible.

[00:12:22] Speaker 04:
The board passed on that question and sustained the denial of the continuance simply based on long processing times.

[00:12:28] Speaker 04:
He has now received a bona fide determination from USCIS.

[00:12:32] Speaker 02:
Oh, sorry.

[00:12:33] Speaker 02:
And so that is something that happened.

[00:12:34] Speaker 02:
So I guess I misunderstood that.

[00:12:36] Speaker 02:
So that had not happened yet at the time of the proceeding.

[00:12:39] Speaker 02:
They were just speculating at that point.

[00:12:42] Speaker 04:
The board simply did not address the IJ's finding that he was not prima facie eligible.

[00:12:49] Speaker 04:
They passed on that and denied the continuance simply based on long processing times.

[00:12:53] Speaker 02:
And then when did he get the determination?

[00:12:58] Speaker 04:
Oh boy, I believe it was about three years ago.

[00:13:04] Speaker 04:
Which by the way, grants deferred action as well as work authorization.

[00:13:08] Speaker 03:
So it was three years ago he got the bonafide and now he still doesn't have a U visa?

[00:13:14] Speaker 04:
I'd ask that you don't hold me to that date, but it's been a few years at least.

[00:13:19] Speaker 01:
But you also said that he should have the U visa in a few months.

[00:13:23] Speaker 01:
Where does that come from?

[00:13:25] Speaker 04:
Um, the current processing times as I track them are that I'm seeing approvals come in for June of 2017 and his application was submitted in November of 2017.

[00:13:36] Speaker 03:
So, um, do you want to save any time for rebuttal?

[00:13:41] Speaker 04:
Sure.

[00:13:42] Speaker 04:
Thank you.

[00:13:42] Speaker 03:
Okay.

[00:13:45] Speaker 03:
All right.

[00:13:45] Speaker 03:
We'll hear from the government.

[00:13:48] Speaker 00:
Uh, good morning, your honors.

[00:13:49] Speaker 00:
May I please the court?

[00:13:50] Speaker 00:
My name is Justin Markall and I represent the attorney general.

[00:13:53] Speaker 00:
I thought I might start by just kind of clarifying some of the differences between this case and Navarrete, because you guys were interested in it.

[00:14:03] Speaker 00:
The primary difference is that Navarrete also involved... I guess the panel is interested in it, not you guys.

[00:14:10] Speaker 00:
I'm sorry, Your Honor.

[00:14:15] Speaker 00:
The Inavaret, that case also involved the reinstated order removal, like our case.

[00:14:21] Speaker 00:
But unlike our case, Inavaret, the petitioner was found not to have a reasonable fear of persecution.

[00:14:29] Speaker 00:
So he never moved on to the withholding only proceedings like that occurred in this case.

[00:14:35] Speaker 00:
Arguably, I would renew my request that

[00:14:40] Speaker 00:
to the extent the court is interested in this issue, we should probably wait and hold this case for Navarrete to be decided, or allow for supplemental briefing on the issues.

[00:14:52] Speaker 00:
Because I, too, am not especially prepared to talk about the nuances of Navarrete, and in particular, Justice Clarence Thomas's concurrence, which inspired the argument in Navarrete.

[00:15:05] Speaker 00:
But to the extent you have some questions, I'm happy to do my best to appeal some of them.

[00:15:10] Speaker 01:
I mean, the one that I mentioned earlier, the nature of the actual order that was being reviewed here, and there may be others.

[00:15:18] Speaker 01:
So, and in fact, if in Navarette there was no withholding and cat determination, then it's hard to see how the cases are parallel.

[00:15:29] Speaker 01:
But in any event, it may be worth having, would it be worth having briefing in this case as to whether Navarette is likely to govern before we decide whether to hold it?

[00:15:39] Speaker 00:
Yes, Your Honor, I think that might be wise.

[00:15:43] Speaker 00:
Your Honor, do not have any further questions on that particular issue.

[00:15:47] Speaker 00:
I'm happy to move on to the other issues.

[00:15:52] Speaker 02:
It seems like we probably need to get briefing on that.

[00:15:54] Speaker 02:
So yes, moving on, let's assume we have jurisdiction for now and then move on to what you would say on the merits.

[00:15:59] Speaker 00:
Yes, Your Honor.

[00:16:00] Speaker 00:
This case involves a petitioner who's already been removed from the United States on four separate occasions.

[00:16:08] Speaker 00:
Regarding the issue raised and briefed, the court should reject petitioner's claim that the board erred in finding he failed to challenge the immigration judge's determination that he could avoid persecution by internally relocating within Mexico, despite petitioners' broad claims.

[00:16:27] Speaker 01:
Because of the video, if you could slow down a little in your speech, that would help.

[00:16:32] Speaker 00:
Yes, Your Honor, I'm very sorry about that.

[00:16:34] Speaker 00:
Despite Petitioner's broad claims, Petitioner did not present any arguments specifically challenging the internal relocation finding, and therefore the Court should affirm the Board's determination that that particular issue was waived.

[00:16:49] Speaker 00:
Regarding the denial of convention against torture protection, the Court should also find that

[00:17:01] Speaker 00:
Petitioner failed to establish that these individuals were tied to a larger criminal organization and petitioner failed to identify any record evidence that would compel reversal of that finding or compel the conclusion that these individuals had nationwide reach within Mexico.

[00:17:17] Speaker 00:
The petitioner's entire argument is premised on the possible involvement of the Mexican government is comprised of a single sentence, where he simply asserts that he submitted substantial evidence – or submitted extensive evidence that there is a consistent pattern of government acquiescence to the torture he fears.

[00:17:38] Speaker 02:
However, petitioner does not explain – Sorry, could I – before – just so we don't have enough time, could you talk about the continuance issues?

[00:17:43] Speaker 02:
It seems like you've started with the issues that were not the ones we were talking about

[00:17:46] Speaker 02:
Oh, sure.

[00:17:47] Speaker 00:
I'm happy to talk about the continuances issues.

[00:17:50] Speaker 00:
Regarding, which one would you like me to talk about first?

[00:17:54] Speaker 02:
Well, I'd be interested in the U visa first.

[00:17:57] Speaker 00:
Okay.

[00:17:57] Speaker 00:
Well, the U visa one, a particular note, it does seem like the core issue here is whether or not the board erred and relying on the time it takes to adjudicate the U visa.

[00:18:07] Speaker 01:
I'm relying only on that.

[00:18:11] Speaker 00:
Your Honor, yes.

[00:18:13] Speaker 00:
Yes, we can say relying only on that.

[00:18:16] Speaker 00:
And I would say that all of the precedent that petitioner cites can be distinguished from this case.

[00:18:23] Speaker 01:
In particular, in all those cases, they involve... You know what I always tell my law clerks when they say things can be distinguished, anything can be distinguished.

[00:18:31] Speaker 01:
That's really not the question.

[00:18:32] Speaker 01:
The question is why is it different in a way that matters?

[00:18:39] Speaker 00:
Well, exactly.

[00:18:40] Speaker 00:
I hope to point that out to you because all those cases involved aliens in 240 proceedings.

[00:18:47] Speaker 00:
In this case involves an alien who was in reinstatement proceedings.

[00:18:51] Speaker 00:
So he he already had a reinstated or removal at the time he filed his continuance.

[00:18:56] Speaker 00:
And so the

[00:19:01] Speaker 00:
and his proceedings were supposed to be expedited.

[00:19:04] Speaker 00:
Meaning, in those other cases, to the extent the continuance was granted, and the alien eventually received whatever collateral relief they were seeking, it would have affected their, whether or not

[00:19:17] Speaker 00:
a final order of removal was ever issued in their case.

[00:19:20] Speaker 00:
However, in our case, that's not the situation.

[00:19:22] Speaker 00:
The final order of removal was already issued before he filed for his continuance or filed for the new visa.

[00:19:30] Speaker 01:
And arguably- Well, you're essentially saying that we should go out on a new road and say that in this circumstance, the time frame question

[00:19:44] Speaker 01:
can be determined, even though it can't otherwise.

[00:19:47] Speaker 01:
You have no authority for that, I assume.

[00:19:50] Speaker 01:
You're making an argument from first principles, essentially.

[00:19:53] Speaker 00:
Yes, and that the precedent cited for the opposite conclusion did not involve the same facts as our case, meaning those other cases, they all were in 240 proceedings.

[00:20:04] Speaker 02:
So, like, Melilia is the one I'm most worried about.

[00:20:08] Speaker 02:
That's a case from our court that says you can't just look at the time it will take to get a U visa.

[00:20:13] Speaker 02:
You're saying that doesn't apply here because this was this expedited proceeding instead.

[00:20:18] Speaker 00:
That's correct, Your Honor.

[00:20:19] Speaker 00:
I mean, it's important to point out in those cases, too.

[00:20:22] Speaker 00:
So in Melilla, not only was the person in 240 proceedings, meaning they did not have a reinstated or removal, it was not expedited proceedings, but they were seeking adjustment of status, I think, based on a family visa petition.

[00:20:38] Speaker 00:
And if the continuous is not granted in that particular case,

[00:20:41] Speaker 00:
The final order removal would have been a very severe obstacle to them if not foreclosed their ability to get lawful permanent residence status.

[00:20:51] Speaker 03:
Well, the IJ gave a lot of reasons for denying the continuance, right?

[00:20:57] Speaker 00:
Yes, Your Honor.

[00:20:57] Speaker 03:
But then the DIA, but then the BIA seemed to, can you say whether the BIA adopted the IJ's reasoning and didn't get as explicit or what's the,

[00:21:11] Speaker 03:
Are you are you conceding that the only reason that the BIA gave was the time.

[00:21:18] Speaker 00:
I would I would say it's a little unclear your honor.

[00:21:22] Speaker 00:
The board starts its analysis of the continuances by saying that it's for the reasons stated in the immigration judge's determination it was affirming the denial of the continuances.

[00:21:34] Speaker 00:
And then it moved on and addressed the continuance regarding the expert witness.

[00:21:40] Speaker 00:
And then it talked about the continuance relate to the U visa.

[00:21:46] Speaker 00:
Arguably, it's a little unclear if that first statement was referencing both the denial of the continuance for the expert or it was referencing also the denial of the continuance for the new visa.

[00:22:01] Speaker 00:
Admittedly, the government did not raise this or distinguish this in its brief.

[00:22:07] Speaker 02:
Because your brief assumed it was just the timing was the only reason, right?

[00:22:11] Speaker 00:
Yes, Your Honor, primarily because it appears to be what the board did.

[00:22:15] Speaker 00:
But there's a decent argument that that first statement about adopting the reasons why the immigration judge provided for denying the continuances should have extended to both.

[00:22:26] Speaker 00:
And arguably, in hindsight, I probably would have made the argument.

[00:22:30] Speaker 02:
Can I ask you back to your way of distinguishing Melilia?

[00:22:34] Speaker 02:
If he had already had a U visa, let's just say he didn't need an extension, he had the U visa, do you acknowledge that that would have been a reason that would have helped him?

[00:22:45] Speaker 02:
Like the U visa is relevant to this expedited proceeding, is that right?

[00:22:50] Speaker 00:
Yes, Your Honor.

[00:22:51] Speaker 00:
So the petitioner in this case already has a final order of removal.

[00:22:56] Speaker 00:
That does not prevent him from getting the U visa.

[00:22:59] Speaker 00:
It does not prevent him from ultimately adjusting his status.

[00:23:05] Speaker 00:
If he had the U visa before the reinstatement order, arguably, he would have moved through the process, got the visa, and then would have adjusted status, depending on the timeline of how those things occurred.

[00:23:20] Speaker 02:
And so are you arguing, though, that even though a U visa would have allowed him to adjust status, and the U visa is about people who are here testifying to help the government, that no extension for a U visa is ever appropriate

[00:23:34] Speaker 02:
In these expedited proceedings, what is your timing issue that you're arguing takes us out of Melilia?

[00:23:41] Speaker 02:
Like, what should the rule be, are you saying, in this context?

[00:23:44] Speaker 00:
Arguably, you know, in the expedited proceeding context, I would argue there shouldn't be probably any continuances granted to await the U visas.

[00:23:59] Speaker 00:
especially at early phases like this one.

[00:24:02] Speaker 02:
Sorry, maybe I missed this, but is that an argument you made in your brief?

[00:24:05] Speaker 02:
Because I do think you're trying to take us into a novel area, and now you're asking for a very new, pretty aggressive rule.

[00:24:13] Speaker 02:
Is that a rule that you argued for in your brief?

[00:24:16] Speaker 00:
No, Your Honor, I didn't, admittedly.

[00:24:21] Speaker 00:
But I was just trying to answer your question.

[00:24:23] Speaker 00:
I mean, to the extent that the

[00:24:26] Speaker 00:
Court wants to know whether or not an expedited removal, how to interpret these other cases in light of the fact that this case has different facts than those cases.

[00:24:35] Speaker 00:
My point of view would be the fact that expedited removal proceedings probably should weigh in favor of no continuance as being granted.

[00:24:42] Speaker 00:
And if you were gonna grant a continuance, it should be for a reasonably foreseeable future.

[00:24:48] Speaker 00:
It shouldn't be for eight or nine years, 10 years.

[00:24:50] Speaker 03:
It seems to me like the better argument

[00:24:52] Speaker 03:
here based on what you've argued in the past and whatever is that the IJ gave a very detailed description as to why the continuance for the U visa wasn't appropriate and the opening statement of the BIA was that I'm adopting what the IJ did on the continuances and then the IJ doesn't say every single thing that the IJ said but sort of pulled that in and therefore it really was part of the,

[00:25:22] Speaker 03:
you're saying, you know, I don't, I don't know what you're saying.

[00:25:26] Speaker 00:
Well, on that point, I'm saying that that is a reasonable interpretation of the board's decision, but it just happens that that's not what exactly I briefed.

[00:25:35] Speaker 02:
Because it wasn't how you read it at first, apparently.

[00:25:38] Speaker 00:
Probably at the time.

[00:25:38] Speaker 00:
I have to say this brief was written in December of 2020 when the pandemic was going on and I was at home with my child.

[00:25:45] Speaker 00:
because my wife worked at a hospital and we're digging through the backlog of all these cases when we couldn't get childcare.

[00:25:52] Speaker 00:
So, I mean, we're talking about a situation that was rushed through.

[00:25:56] Speaker 00:
And in the hindsight, I probably would have briefed it differently on that particular issue.

[00:26:00] Speaker 02:
And do you have a response to the idea that he probably is now about to get the U visa?

[00:26:06] Speaker 00:
No, and I can also provide some information on that.

[00:26:11] Speaker 00:
The bona fide determination was made in 2022.

[00:26:15] Speaker 00:
So I don't know when in 2022, so approximately three to four years as petitioner counsel indicated.

[00:26:22] Speaker 00:
And I have no reason to doubt opposing counsel's rough estimate for what the current grant rate is and where we are.

[00:26:31] Speaker 03:
So where is he right now?

[00:26:32] Speaker 03:
Where is he right now?

[00:26:34] Speaker 03:
The petitioner?

[00:26:35] Speaker 03:
Is the petitioner here?

[00:26:36] Speaker 00:
Oh, I don't know if the petitioner's in the courtroom.

[00:26:40] Speaker 02:
Sorry.

[00:26:41] Speaker 00:
In the United States?

[00:26:42] Speaker 00:
Yes, petitioner's in the United States.

[00:26:44] Speaker 02:
And it seems like we are going to need to get briefing on this jurisdictional issue.

[00:26:50] Speaker 02:
And it's probably going to take us months to decide this case.

[00:26:53] Speaker 02:
So let's just hypothetically say that even figuring out if we can get to the merits is going to take us a few months.

[00:26:58] Speaker 02:
By then, will he have the U visa?

[00:27:00] Speaker 02:
And what would happen then?

[00:27:01] Speaker 02:
Then would we be moot?

[00:27:04] Speaker 00:
I can't predict whether or not he would have the U visa, because it could still be denied on the merits, even if they made a decision.

[00:27:11] Speaker 03:
But if he had the U visa?

[00:27:13] Speaker 03:
Would it be moved at that point?

[00:27:16] Speaker 00:
Yes, we would probably move to dismiss the case if he had the U visa.

[00:27:20] Speaker 01:
And when – the IAJ's other set of reasoning that the BIA did not allude to or adopt as such was that he wasn't prima facie

[00:27:38] Speaker 01:
likely to get the U visa, but the bona fide determination is contrary to that.

[00:27:45] Speaker 01:
So why isn't at least that much of it moved?

[00:27:50] Speaker 00:
Well, I mean, as we argued in our brief, we think that the reason the board specifically provided, meaning the fact that that wasn't going to be granted a reasonable foreseeable future, and the guy was, you know, we now.

[00:28:03] Speaker 01:
No, no, I understand that.

[00:28:04] Speaker 01:
But you were saying that

[00:28:08] Speaker 01:
You had a dialogue with Judge Callahan about whether the IJ's reasoning should be assumed to have been affirmed by the board or not, and that in your brief you assumed that it was not, but now you're saying, well, maybe it was.

[00:28:24] Speaker 01:
But I'm saying that that reasoning has now been just essentially disavowed by the agency itself.

[00:28:32] Speaker 01:
Well, it was a different agency, and the question before the court is whether or not the agency... But if he has a bona fide claim to a U visa, then he certainly has a prima facie case for a U visa.

[00:28:47] Speaker 00:
Yes, but the question before the court is whether or not the immigration judge aired that time, not whether or not it was later proven that someone else decided that he had a bona fide case.

[00:28:58] Speaker 01:
But it was sort of peculiar to

[00:29:01] Speaker 01:
to affirm on the basis that it has now been by the responsible agency disavowed.

[00:29:20] Speaker 02:
Can I ask a different, it seems like maybe you don't have an answer, do you?

[00:29:24] Speaker 00:
Was that a question?

[00:29:25] Speaker 01:
Well, the question is why wouldn't it be an odd way to proceed to say he doesn't have a prima facie case when we know that the agency determined that he did have a

[00:29:36] Speaker 01:
I mean, I'm not sure, but I gather they're basically overlapping questions, which look at the same considerations.

[00:29:43] Speaker 00:
Well, I guess now that I've thought about it a little bit more, the prima facie determination does not explain why the person was determined to be prima facie, and we don't know what the USCIS will ultimately decide.

[00:29:56] Speaker 00:
So the immigration judge found he wasn't prima facie eligible because

[00:29:59] Speaker 00:
The immigration judge concluded that he did not demonstrate the requisite mental anguish.

[00:30:05] Speaker 00:
And so we just don't know what the prima facie bona fide determination concluded.

[00:30:12] Speaker 00:
We don't know why they found this person to have a bona fide.

[00:30:15] Speaker 00:
And it's possible they consider different factors when they made that determination.

[00:30:20] Speaker 03:
So I might suggest that it's not helpful to me to say that, you know, the dog ate my homework.

[00:30:28] Speaker 03:
or in terms of my COVID things, it was a tough time.

[00:30:33] Speaker 03:
We all sat during COVID and we still decided cases according to the law.

[00:30:39] Speaker 03:
There's a saying, close only counts in horseshoes and hand grenades.

[00:30:44] Speaker 03:
I don't know that COVID can be an excuse for not doing a good brief.

[00:30:50] Speaker 00:
Well, Your Honor, as I stated earlier, I admitted that, I didn't raise the issue.

[00:30:55] Speaker 00:
So I was only answering the court's question about whether or not it was a reasonable reading of the board's decision.

[00:31:02] Speaker 00:
And to the extent the court read the decision differently than me, I wanted the court to know that I agree that that was a possible interpretation of the board's decision.

[00:31:10] Speaker 02:
OK.

[00:31:11] Speaker 02:
Can I ask?

[00:31:12] Speaker 02:
OK.

[00:31:12] Speaker 02:
I'm just looking ahead at how this case is going to proceed.

[00:31:16] Speaker 02:
And it seems that the jurisdictional issue in this case is quite complicated and is one that is going to be decided

[00:31:25] Speaker 02:
perhaps in a published opinion, even if Naaret has its own opinion, because this case is a little bit different.

[00:31:31] Speaker 02:
And so we are not looking at being able to decide this case quickly, probably.

[00:31:35] Speaker 02:
We're probably going to need to get briefing from you.

[00:31:38] Speaker 02:
We're going to have to think about it.

[00:31:39] Speaker 02:
We may need to write an opinion.

[00:31:41] Speaker 02:
Also, you are asking for a new law rule on expedited proceedings and continuances.

[00:31:46] Speaker 02:
So that also might be a complicated thing.

[00:31:49] Speaker 02:
If this case has a timeline that is very long,

[00:31:53] Speaker 02:
and yet also has the potential for becoming moot along the way.

[00:31:56] Speaker 02:
Should we do all this work or should we send you to mediation?

[00:32:00] Speaker 02:
What should we do here?

[00:32:01] Speaker 02:
Because this seems like we're on a collision course with ourselves in this case at this point.

[00:32:09] Speaker 00:
As we requested initially, the easiest step or first step might be to simply hold for Navarat and see where we are then.

[00:32:18] Speaker 02:
And because that we might become moot while that case goes along, perhaps through en banc proceedings.

[00:32:24] Speaker 00:
I mean, that's also, that's also correct.

[00:32:26] Speaker 00:
Yes.

[00:32:27] Speaker 02:
Okay.

[00:32:28] Speaker 02:
That's helpful.

[00:32:29] Speaker 02:
All right.

[00:32:30] Speaker 03:
Um, we'll go to, I'm going to give, uh, the petitioner two minutes for rebuttal.

[00:32:36] Speaker 03:
I'll give you a little extra time since we went over here.

[00:32:40] Speaker 00:
Thank you.

[00:32:41] Speaker 03:
Thank you.

[00:32:43] Speaker 04:
Thank you, Judge.

[00:32:44] Speaker 04:
I would assert to the government's new argument that there really is only one way to read the BIA decision.

[00:32:53] Speaker 04:
Although they have what might be construed as a sort of catch-all phrase introducing the denial of the continuances, they devote an entire paragraph to the denial of the continuance for the expert

[00:33:04] Speaker 04:
and an entire paragraph to the denial of the continuance for the UBISA, and also say even assuming that he was prima facie approvable, long processing time's way against granting a continuance.

[00:33:18] Speaker 04:
I would note to Judge Berzon's point that

[00:33:23] Speaker 04:
The agency that is actually qualified to adjudicate UBISA's USCIS made the bona fide determination in Petitioner's case.

[00:33:33] Speaker 04:
And to the government's novel new proposition that all of the UBISA and agency-related delay cases for this court should be reconsidered if an individual is in withholding only proceedings.

[00:33:49] Speaker 03:
Well, let me ask you this.

[00:33:52] Speaker 03:
If we were just reviewing what the IJ said, did the IJ say enough about why the continuance was denied?

[00:34:00] Speaker 04:
So he denied on no prima facie approval and long processing times, I believe.

[00:34:07] Speaker 03:
It was rather extensive what the IJ did.

[00:34:11] Speaker 04:
and also made a finding that the applicant could get a stay of removal, which was very speculative and not one of the factors.

[00:34:21] Speaker 04:
So you're saying the I.J.

[00:34:22] Speaker 04:
wasn't good enough either?

[00:34:24] Speaker 04:
Well, we disagreed with the I.J.'

[00:34:26] Speaker 04:
's finding that he was not prima facie approval.

[00:34:30] Speaker 03:
But I might disagree with you that the I.J.'

[00:34:32] Speaker 03:
's reasoning wasn't incorporated with the BIA in the sense that

[00:34:36] Speaker 03:
Having been a prior trial judge, a lot of times we start with, okay, I agree with all that, and then we drill down a little more as far as, so you could probably say a reasonable person couldn't read it that way, but I'm not sure you want to say that to me.

[00:34:54] Speaker 04:
Fair enough.

[00:34:55] Speaker 04:
I believe that the IJ's reasoning was insufficient in light of the factors.

[00:35:00] Speaker 04:
that are laid out in Sanchez-Sosa and LNY.

[00:35:03] Speaker 04:
He did not address the applicant's diligence and timeliness in applying.

[00:35:08] Speaker 04:
It was erroneous to find that he was not prima facie approvable, and I assume that that's why the board assumed that he was prima facie approvable.

[00:35:16] Speaker 03:
Well, I think we've gone over time on all of this, and thank all of you for your arguments.

[00:35:21] Speaker 03:
And it might be possible that you would hear from the panel that we would want you to mediate this while we're doing everything else.

[00:35:27] Speaker 03:
So stay tuned.

[00:35:30] Speaker 04:
Thank you.

[00:35:30] Speaker 03:
All right.

[00:35:31] Speaker 03:
Thank you.

[00:35:31] Speaker 03:
The court is going to take a short recess for 10 minutes and then we'll come back and finish the calendar.

[00:35:37] Speaker 03:
Thank you.