[00:00:00] Speaker 02:
All right, thank you, counsel.

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

[00:00:02] Speaker 02:
The case just argued will be submitted.

[00:00:09] Speaker 02:
And we will proceed then to hear argument on the next case on calendar for argument this morning, which is 20-70816, Floriberto Miguel Lopez versus Pamela Bondi.

[00:00:51] Speaker 02:
And we will hear first from Ms.

[00:00:54] Speaker 02:
Levesque.

[00:00:56] Speaker 02:
Did I pronounce that correctly?

[00:00:57] Speaker 03:
Levesque, Your Honor.

[00:00:58] Speaker 02:
Levesque.

[00:00:59] Speaker 02:
All right.

[00:01:01] Speaker 02:
You may proceed when you're ready.

[00:01:05] Speaker 03:
Good morning, Your Honors.

[00:01:07] Speaker 03:
May it please the court?

[00:01:07] Speaker 03:
My name is Angela Levesque.

[00:01:09] Speaker 03:
I represent the petitioner, Floriberto Miguel Lopez.

[00:01:12] Speaker 03:
I'd like to reserve three minutes for a battle.

[00:01:15] Speaker 03:
Your Honors, this case should be remanded because the agency applied the wrong legal standards to establish the established record.

[00:01:24] Speaker 03:
I'd like to talk about the exception to the asylum filing deadline, the past persecution and nexus arguments, and then I'd like to discuss the due process violations because of the transcription and video conference errors in the hearing, as well as the BIA's failure to rule on the motion.

[00:01:49] Speaker 01:
Would you mind just jumping to your cat relief argument first and tell us what what you consider to be your best argument in support of that?

[00:01:58] Speaker 03:
Admittedly that perhaps is not the strongest argument petitioner has however in terms of the cat argument I believe there was evidence to the fact that There is there there can be torture to individuals in the petitioners group if he is returned to

[00:02:18] Speaker 03:
There was some evidence submitted on the record regarding all of that, but admittedly that is perhaps not the strongest.

[00:02:28] Speaker 03:
Regarding the agency applying the wrong legal standard to the asylum filing deadline, however, the immigration judge, if we look at his decision, he indicates that to establish chain circumstances, the petitioner would have needed to testify that he had no fear of Los Cetas when he entered the U.S.

[00:02:47] Speaker 03:
in 2006 and then only feared them later.

[00:02:49] Speaker 03:
But that's not the law that's not the standard that should be applied Change circumstances do not require a brand new conflict or a sudden emergence of fear and that's in the horror of the holder In that case this court has held that applicants can wait until later developed

[00:03:09] Speaker 03:
developments materially increase the risk and make an asylum claim more viable.

[00:03:15] Speaker 03:
And that's what happened here.

[00:03:17] Speaker 03:
The petitioner testified, yes, that he was scared of los setas when he left Mexico.

[00:03:22] Speaker 03:
But after he left, the danger intensified more.

[00:03:26] Speaker 03:
The record does show this.

[00:03:28] Speaker 03:
The record shows that there's increasing cartel violence, specifically of los setas.

[00:03:33] Speaker 03:
In fact, I think they are even talking about

[00:03:36] Speaker 03:
those that does expanding their territory even into Guatemala.

[00:03:41] Speaker 03:
That's corroborated by the Department of State reports and even acknowledged by the immigration judge.

[00:03:47] Speaker 03:
And then of course in 2013, the record shows that the petitioner's father was violently attacked.

[00:03:53] Speaker 03:
So again, that happened after the petitioner left.

[00:03:57] Speaker 03:
So there is a change of circumstances.

[00:04:00] Speaker 03:
This does fit squarely into that exception.

[00:04:05] Speaker 03:
Secondly, going to now withholding a removal, the immigration agency improperly found that harm did not rise the level of past persecution.

[00:04:16] Speaker 03:
We do have undisputed facts here, multiple encounters with Losetas.

[00:04:21] Speaker 03:
In 1993, the petitioner at age 16 was approached by armed members of Losetas.

[00:04:29] Speaker 03:
They confronted him, shoved him,

[00:04:31] Speaker 03:
and basically said, join or die.

[00:04:33] Speaker 03:
Then in 1998, they once again confronted him, this time demanding monthly payments and robbed him.

[00:04:42] Speaker 03:
Then lastly, in 2013, individuals believed to be Losetas broke into the petitioner's father's home, violently beat the petitioner's father, and asked, where is Miguel?

[00:04:53] Speaker 03:
Where is the petitioner?

[00:04:55] Speaker 03:
This court has held that.

[00:04:56] Speaker 01:
Would you address the argument that those were really three isolated incidents and so there's substantial evidence to support the BIA decision?

[00:05:05] Speaker 03:
I think there's a link to the in all of those instances.

[00:05:08] Speaker 03:
We have individuals claiming to be Losetas that's not been contested.

[00:05:13] Speaker 03:
That sure there is some time that has passed but in each instance a petitioner went back to his hometown

[00:05:21] Speaker 03:
and he was personally attacked twice, right, one at age 16 and again in 1998 by Los Etas, and then again Los Etas came in and attacked the father personally.

[00:05:35] Speaker 03:
Because some time has passed, I don't think that that necessarily means that it is not linked.

[00:05:43] Speaker 03:
Again, we have specific and menacing threats combined with violent or near violent confrontations.

[00:05:50] Speaker 03:
That can constitute persecution.

[00:05:52] Speaker 03:
And of course, we should look at these things cumulatively.

[00:05:54] Speaker 03:
So I think that that's what I'm arguing here in addressing those three separate incidents.

[00:05:59] Speaker 03:
It's a cumulative thing.

[00:06:00] Speaker 03:
Here we have threats, join or die.

[00:06:03] Speaker 03:
We have pay or die.

[00:06:04] Speaker 03:
We have confrontations at gunpoint.

[00:06:07] Speaker 03:
We have physical aggression, robbery, and violence directed towards a family member.

[00:06:12] Speaker 03:
I did want to note that the immigration judge made an error in dismissing the attack on the petitioner's father simply because the petitioner was not present.

[00:06:21] Speaker 03:
Again, this court has recognized that violence against family members that connected to the threat is considered persecution.

[00:06:29] Speaker 03:
So I think taken together, we do see that the harm does rise to the level of persecution.

[00:06:36] Speaker 03:
Next, I do want to talk about Nexus.

[00:06:41] Speaker 03:
I think that the agency overlooked the circumstantial evidence in addressing Nexus.

[00:06:47] Speaker 03:
Importantly, I want to look at the social group.

[00:06:50] Speaker 03:
Pardon me.

[00:06:52] Speaker 03:
The agency acknowledged that the core social group is indigenous Mexican men.

[00:06:58] Speaker 03:
And the immigration judge specifically said that that is a cognizable or maybe a cognizable particular social group.

[00:07:04] Speaker 03:
Prior counsel did add other elements, having children.

[00:07:08] Speaker 02:
We see a lot of these cases where, you know, they're worried about gang activity and, you know, the agency will look at

[00:07:19] Speaker 02:
the circumstances of the case and then make a conclusion that you're really worried about general lawlessness in Mexico.

[00:07:28] Speaker 02:
And it's not, they're not coming after you because you're in this particular group.

[00:07:32] Speaker 02:
They're coming after you because they're thugs who go after anyone who's available to them.

[00:07:37] Speaker 02:
And we have to review that deferentially.

[00:07:39] Speaker 02:
So how can we say that substantial evidence doesn't support the determination that this is

[00:07:46] Speaker 02:
due to general lawlessness and the gangs are just indiscriminate thugs?

[00:07:54] Speaker 03:
I agree, Your Honor.

[00:07:55] Speaker 03:
Many times it is general instances, right?

[00:07:59] Speaker 03:
It is a general violence.

[00:08:00] Speaker 03:
But in this case, I think we look at the circumstantial evidence, and I think that here is where the immigration judge, the agency failed.

[00:08:07] Speaker 03:
They didn't look at the circumstantial evidence.

[00:08:09] Speaker 03:
So I think that if we look at that, in addition to the fact that these are attacks not generally, this is specifically to the petitioner, to the petitioner's father, that we can say this goes past those generalized claims of fear.

[00:08:24] Speaker 03:
This is very specific.

[00:08:25] Speaker 03:
And I think that substantial evidence, we could say that substantial evidence does support that.

[00:08:31] Speaker 03:
Again, so I kind of want to look and make sure that we're seeing that, yes, the prior council did add these other elements, but specifically the agency did find that core element, that core social group, and I think that we could focus the analysis on that, and that is cognizable.

[00:08:50] Speaker 03:
So that I think the agency then made an error indicating that the protected group,

[00:08:56] Speaker 03:
Well, the protected group need only be a reason, and that motive is proven by that circumstantial evidence.

[00:09:02] Speaker 03:
So I don't think that when the immigration judge says that there's no evidence in the record that the cartel targeted the petitioner, I think that is not looking at the circumstantial evidence that was submitted.

[00:09:15] Speaker 03:
I do want to also talk about how the petitioner was denied a full and fair hearing.

[00:09:22] Speaker 03:
So in this hearing, we had a video conference between Boise and Salt Lake City.

[00:09:28] Speaker 02:
In... Was there ever a formal motion to change venue to Boise?

[00:09:35] Speaker 03:
No.

[00:09:36] Speaker 03:
If you look at the record towards the end, it's 152 and 153.

[00:09:39] Speaker 03:
After all of those interruptions, it was like eight in total in two and a half hours.

[00:09:44] Speaker 03:
The immigration judge ultimately said, we're shutting this down.

[00:09:48] Speaker 03:
We're going to do this by teleconference.

[00:09:51] Speaker 03:
And there was no indication to counsel, to petitioners counsel.

[00:09:57] Speaker 02:
One of the things that's odd about this case is that the immigration judge is in Salt Lake City, which is not in this circuit.

[00:10:09] Speaker 02:
Correct.

[00:10:10] Speaker 02:
But your client was in Boise.

[00:10:14] Speaker 02:
Yes.

[00:10:14] Speaker 02:
But the judge announces at the beginning of the hearing, I'm conducting it from Salt Lake City.

[00:10:23] Speaker 02:
And then he issues a ruling where he cites only 10 circuit authority.

[00:10:28] Speaker 02:
And so that was why I was wondering, is there a formal order that transferred the venue to Boise so that it's clear that the venue is

[00:10:39] Speaker 02:
is Boise.

[00:10:40] Speaker 02:
I mean, we had a similar case, exactly this problem, where someone's in Boise.

[00:10:46] Speaker 02:
And in the early documents of the case, the immigration court for Boise was headquartered in Portland, and then it got shifted to Salt Lake City.

[00:10:54] Speaker 02:
And you see that in the documents in this case.

[00:10:57] Speaker 02:
So I'm just wondering, is it clear that the venue was Boise?

[00:11:02] Speaker 03:
I'm fairly certain that the immigration judges do indicate the venue is Boise.

[00:11:08] Speaker 03:
I would have to refer to the record to be sure.

[00:11:11] Speaker 02:
But nobody's contested venue in this case.

[00:11:13] Speaker 03:
Right, having practiced before this case.

[00:11:15] Speaker 03:
They typically do say venue is Boise.

[00:11:18] Speaker 02:
But I think that that- But it's odd that the judge seemed to think that he was in the 10th Circuit.

[00:11:22] Speaker 02:
He didn't sign any 9th Circuit cases.

[00:11:24] Speaker 03:
They're all 10th Circuit cases.

[00:11:26] Speaker 03:
He did.

[00:11:26] Speaker 03:
And this is, again, one reason why I think that we need to stress 9th Circuit law here.

[00:11:31] Speaker 03:
And I think that maybe there was that disconnect between the standards.

[00:11:35] Speaker 02:
I think it's kind of odd that the immigration courts have set themselves up so that they have courts that straddle circuits, which is very confusing.

[00:11:42] Speaker 03:
And again, we are now back in Portland being in Boise.

[00:11:47] Speaker 03:
But again, I do think that we do have that

[00:11:51] Speaker 03:
We have so many interruptions in this hearing.

[00:11:55] Speaker 00:
Can you identify potential prejudice?

[00:11:57] Speaker 00:
I think the record is clear.

[00:11:59] Speaker 00:
There's a lot of technical difficulties.

[00:12:00] Speaker 00:
What's the prejudice?

[00:12:01] Speaker 03:
So if we look at where the interruptions occurred, most of them occurred...

[00:12:08] Speaker 03:
like three or four occurred during the petitioner's testimony.

[00:12:12] Speaker 03:
And then the rest, and I think it's the majority, occurred during DHS Council's closing.

[00:12:16] Speaker 03:
I think that that's important because the petitioner's attorney was not afforded an opportunity to really understand what was being said.

[00:12:24] Speaker 03:
And then

[00:12:26] Speaker 03:
Because the judge immediately foreclosed anything else, he said, we're going to a telephonic hearing, and I'm going to issue a written decision.

[00:12:36] Speaker 03:
And basically told the petitioner's attorney, you understand that, correct?

[00:12:40] Speaker 03:
And did not give the petitioner's attorney an opportunity to maybe address the, maybe in a rebuttal closing argument, those issues that these counsel highlighted.

[00:12:51] Speaker 03:
I think that there's potential prejudice there.

[00:12:53] Speaker 03:
Maybe the attorney would have addressed the nexus, the chain circumstances, all these issues that the judge... Did the judge do an oral ruling?

[00:13:05] Speaker 02:
that it was just a written ruling later.

[00:13:08] Speaker 02:
Correct.

[00:13:09] Speaker 02:
And how much later was it?

[00:13:10] Speaker 02:
Pardon me?

[00:13:11] Speaker 02:
How much later was it?

[00:13:14] Speaker 03:
I don't believe it was too much later, Your Honor.

[00:13:16] Speaker 03:
I would have to check the dates exactly.

[00:13:18] Speaker 02:
If counsel wanted to submit something further, couldn't counsel have submitted something further?

[00:13:25] Speaker 03:
Admittedly, he could have.

[00:13:26] Speaker 03:
But if you look at the record, the immigration judge basically foreclosed that option and indicated the record is closed.

[00:13:35] Speaker 03:
Lastly, I do want to touch on just the Board of Immigration Appeals not addressing the motion to terminate.

[00:13:41] Speaker 03:
I mean, that's just antithetical just to the idea of jurisprudence.

[00:13:44] Speaker 03:
We have courts to be able to decide on issues.

[00:13:49] Speaker 03:
There was zero indication that the Board of Immigration Appeals even acknowledged that motion.

[00:13:54] Speaker 03:
They should have at least acknowledged it.

[00:13:55] Speaker 03:
There was nothing, and I think that that definitely demands remand.

[00:14:00] Speaker 03:
My time is nearly up.

[00:14:01] Speaker 03:
I do want to reserve some time for... All right.

[00:14:03] Speaker 02:
Thank you, counsel.

[00:14:04] Speaker 02:
We'll hear now from Ms.

[00:14:09] Speaker 02:
Morgan.

[00:14:10] Speaker 02:
You may proceed.

[00:14:21] Speaker 04:
Good morning, Your Honors.

[00:14:22] Speaker 04:
I'm Carmel Morgan on behalf of the respondent, the United States Attorney General.

[00:14:27] Speaker 04:
I first want to address the two 28-J letters that the government submitted.

[00:14:32] Speaker 04:
The first dealt with a recent Ninth Circuit case, Ruiz, in which the court decided that the change circumstances or extraordinary circumstances excuse for an untimely asylum application remains reviewable as a mixed question of fact and law.

[00:14:55] Speaker 02:
But the standard is differential.

[00:14:57] Speaker 04:
The standard is deferential.

[00:14:58] Speaker 04:
I just wanted to point out that I want to be careful on behalf of the government to say that we're not withdrawing our argument.

[00:15:05] Speaker 04:
We would like to preserve that for appeal, but we recognize that in Ruiz's... We're bound by Ruiz.

[00:15:11] Speaker 02:
Correct.

[00:15:12] Speaker 02:
Yes, Your Honor.

[00:15:12] Speaker 02:
But you may want to take that up.

[00:15:13] Speaker 04:
Correct your honor With regard to the second 28 J letter there was a footnote in respondents brief There had been some question about the standard of review for a past persecution Determination that has now been resolved very recently by the US Supreme Court, and that is substantial evidence I think we said in our brief it wouldn't have mattered what the standard was But it is substantial evidence and that issue has now been resolved

[00:15:43] Speaker 04:
There are a number of issues in this.

[00:15:46] Speaker 02:
Can I just ask you, just out of my own curiosity, is it clear from the record that the venue is in fact Boise?

[00:15:54] Speaker 02:
I mean the BIA cites 9th Circuit decisions, but it really was striking that the IJ cites only 10.

[00:16:00] Speaker 02:
The IJ seemed to think that this was the case in the 10th Circuit.

[00:16:06] Speaker 04:
Yeah, I think I think it's very clear from the case law that it's it's it's where The notice to appear issues and the case originates unless there's a motion to change actually change venue The venue originally was Boise.

[00:16:21] Speaker 02:
It was Portland.

[00:16:22] Speaker 02:
I think it was poor.

[00:16:23] Speaker 04:
Yes But Portland or Boise nobody's disputing that the correct law to apply in this case is Ninth Circuit law Okay

[00:16:35] Speaker 04:
With regard to the untimely asylum application, it's the government's position that substantial evidence does support the agency's determination that the petitioner did not come forth with information sufficient to show a material change

[00:16:53] Speaker 04:
in circumstances that would impact the filing of his asylum application.

[00:16:59] Speaker 04:
It's a little unclear.

[00:17:00] Speaker 04:
The petitioner seemed to be making two arguments.

[00:17:03] Speaker 04:
One was that there was an increase in power among the Los Zetas gang.

[00:17:11] Speaker 04:
He also seemed to be making the argument before the board, which the board addressed, that the 2013

[00:17:18] Speaker 04:
incident was what completely changed his outlook and made him want to apply for asylum.

[00:17:27] Speaker 04:
To the extent that he's relying on information in the record

[00:17:31] Speaker 04:
about changes in the strength of the gang.

[00:17:35] Speaker 04:
I don't think that the record supports that that's a material change when the petitioner was aware as far back as 1993 that the gang was appearing in his home village and was harassing young men.

[00:17:53] Speaker 04:
That wasn't a new

[00:17:54] Speaker 04:
circumstance.

[00:17:56] Speaker 04:
He even admits before the immigration judge that he understood that things were the same in his home village.

[00:18:07] Speaker 04:
With regard to the incident involving his father in 2013, he admits on the record that he doesn't know who the assailants were.

[00:18:18] Speaker 04:
So you can't tie that to

[00:18:22] Speaker 04:
a change in circumstances when it's unclear who assaulted his father or what the circumstances were.

[00:18:30] Speaker 04:
His story changed a little bit, or at least he added details.

[00:18:34] Speaker 04:
And one of the added details about that incident was that his father was asked about his location.

[00:18:45] Speaker 04:
Where's Miguel?

[00:18:46] Speaker 04:
But it's unclear from that statement why they were looking for him.

[00:18:51] Speaker 04:
So I don't think that that incident and the board determined it was not material to a change or extraordinary circumstance and therefore substantial evidence does support the determination.

[00:19:06] Speaker 04:
Even setting that aside, nexus is a bigger problem for the petitioner in this case.

[00:19:13] Speaker 04:
The evidence just does not strongly support that there's a nexus to

[00:19:18] Speaker 02:
Even the shortened... So if we were to agree with you on the Nexus point, would we even have to reach the timeliness issue?

[00:19:27] Speaker 04:
No, Your Honor, you wouldn't.

[00:19:28] Speaker 04:
Nexus is determinative of both asylum and withholding of removal in this case.

[00:19:35] Speaker 04:
On the Nexus element, even if you consider the shortened version of a particular social group, and that would be the indigenous Mexican men,

[00:19:47] Speaker 04:
Petitioner doesn't set forth any facts that would lead you to believe that's why he was approached for the first time in 1993 by the gang.

[00:19:57] Speaker 04:
There's no evidence that they asked him or mentioned his ethnic background.

[00:20:05] Speaker 04:
If that second incident occurred, he seemed to say in his live testimony that that was the only incident, the 1993 one, but he did mention in his declaration there was a second incident some years later when he returned to his hometown.

[00:20:20] Speaker 04:
Again, they asked him for money.

[00:20:22] Speaker 04:
It's not clear at all that the record would support a finding that his indigenous ethnicity was related to why they were demanding money from him.

[00:20:35] Speaker 04:
And the same goes for the third incident, which occurred in 2013 when the petitioner was already in the United States.

[00:20:46] Speaker 04:
It can't go to past persecution.

[00:20:48] Speaker 04:
because he was not present.

[00:20:51] Speaker 04:
That wouldn't be considered persecution of petitioner himself.

[00:20:55] Speaker 04:
If something dreadful, and it did, dreadful happened to his father, that might be relevant to future persecution, but here there's no evidence that his father was attacked based on his ethnicity or that those attackers wanted to pursue the petitioner in this case based on his ethnicity.

[00:21:17] Speaker 04:
And so substantial evidence in the record does support the immigration judges finding that the evidence just simply is insufficient to show a nexus to one of the protected grounds.

[00:21:31] Speaker 04:
With regard to past persecution, the story changed somewhat there, too.

[00:21:36] Speaker 04:
Initially, he did not mention a death threat.

[00:21:40] Speaker 04:
I don't think he mentioned any death threats except to his father, perhaps.

[00:21:46] Speaker 04:
But even setting that aside, the agency seemed to credit his later testimony that he was threatened with death in 1993.

[00:21:56] Speaker 04:
But that was a very brief incident.

[00:22:00] Speaker 04:
And I think, depending on which version of his facts you look at, they also asked him for money.

[00:22:07] Speaker 04:
It's not clear that that would rise to the level of persecution.

[00:22:14] Speaker 04:
Someone, I forget which of you mentioned, isolated incidents.

[00:22:19] Speaker 04:
But these do seem to be isolated in time.

[00:22:21] Speaker 04:
The 1993 incident, many years later, I think 1998, he goes back to his hometown, and then again, 2013, when he's not even present.

[00:22:33] Speaker 04:
But even together, considering all of the circumstances cumulatively, they don't add up to a past persecution finding.

[00:22:45] Speaker 04:
With regard to cat protection, I think Petitioner almost conceded that there's really very little that would amount to substantial evidence in support of a torture claim in this case.

[00:22:59] Speaker 04:
That certainly is the government's position that it's insufficient simply to show generalized poor country conditions.

[00:23:07] Speaker 02:
The sentence there that we see in the BIA's ruling

[00:23:15] Speaker 02:
is we also affirm as lacking clear error.

[00:23:19] Speaker 02:
The immigration judge's finding that the respondent did not establish that any future harm he would experience in Mexico would be by or with the consent or acquiescence, including the willful blindness of a government official.

[00:23:33] Speaker 02:
Is that sort of composite sentence?

[00:23:35] Speaker 02:
Is that just an acquiescence finding in your view, or does it also include a future harm finding?

[00:23:45] Speaker 04:
I read it as including both there, Your Honor.

[00:23:49] Speaker 04:
I mean, you have to have both to make a torture claim successful.

[00:23:56] Speaker 02:
So you read that as a BIA saying the standard is you have to show that there would be harm that would be with the acquiescence.

[00:24:05] Speaker 02:
And here, you fail that standard because any future harm that you might have shown wouldn't rise to the level.

[00:24:14] Speaker 02:
Yeah, I think that- Or wouldn't involve acquiescence.

[00:24:18] Speaker 02:
Right.

[00:24:18] Speaker 02:
Et cetera.

[00:24:19] Speaker 02:
Yeah, okay.

[00:24:20] Speaker 04:
With regard to the interruptions, the government disagrees that any prejudice was shown.

[00:24:28] Speaker 04:
The petitioner hasn't come forward with specific evidence of what might have been missing, what was overlooked, and particularly with regard to Nexus, which is dispositive of the asylum and withholding claims.

[00:24:42] Speaker 04:
There's no identification of what the immigration judge failed to consider.

[00:24:49] Speaker 04:
The petitioner certainly was able to get out the facts of his case and clearly the immigration judge considered them.

[00:24:58] Speaker 04:
The very end of the hearing, I read the record as showing that the parties had rested by the time that the immigration judge switched to the telephonic recitation at the end of the hearing.

[00:25:15] Speaker 04:
that issue specifically with regard to switching to the telephone was was not raised before the board and so the board didn't address it but it doesn't appear that despite those few interruptions that the petitioners testimony what was somehow not

[00:25:33] Speaker 04:
coherent or understood.

[00:25:36] Speaker 04:
Certainly council could have asked to, you know, please continue the hearing.

[00:25:44] Speaker 04:
Let's not go forward.

[00:25:46] Speaker 04:
I'd like a chance for rebuttal or any of these things.

[00:25:49] Speaker 04:
And there's nothing reflected in the record that that was asked of the immigration judge at the hearing.

[00:25:57] Speaker 04:
It is unfortunate I could not find in the administrative record that the board addressed the motion to terminate.

[00:26:06] Speaker 04:
So it does appear that that motion was unfortunately overlooked.

[00:26:11] Speaker 04:
However, at this time it is very clear

[00:26:15] Speaker 04:
that under Bastid Hernandez, a decision of this court, that jurisdiction does rest with the immigration court under these circumstances, so.

[00:26:28] Speaker 02:
Even though it was overlooked, and normally there'd be chennery issues here, the absolute pointless futility of sending it back, which is an exception to chennery, you'd think covers that.

[00:26:40] Speaker 04:
Yes, your honor.

[00:26:41] Speaker 04:
That is the government's position.

[00:26:43] Speaker 04:
And in addition, I think the fact that it's a jurisdictional issue and the court can always examine its jurisdiction is perhaps relevant here, too.

[00:26:52] Speaker 04:
Correct, your honor.

[00:26:56] Speaker 04:
Please let me know if I haven't addressed any areas of concern.

[00:27:00] Speaker 04:
But if you have no further questions, the government will ask.

[00:27:05] Speaker 01:
I have one.

[00:27:05] Speaker 01:
Great.

[00:27:06] Speaker 01:
If Nexus takes care of withholding an asylum,

[00:27:10] Speaker 01:
Does this issue of the failure to rule on the motion to terminate in any way undercut those grounds or the nexus as a basis for ruling in your favor?

[00:27:24] Speaker 04:
It can't hear your honor because it's just so perfectly clear that jurisdiction vested with the immigration court, so no.

[00:27:33] Speaker 04:
There wouldn't be any impact.

[00:27:37] Speaker 04:
So if there are no further, yeah.

[00:27:40] Speaker 02:
So the transcript we have in the record, is that prepared based on a recording of the matter?

[00:27:54] Speaker 04:
Yes, that's my understanding.

[00:27:55] Speaker 02:
But isn't like a court reporter taking down in?

[00:27:59] Speaker 04:
No, no, there isn't a court reporter present.

[00:28:02] Speaker 02:
So this is just, so what we have here reflects what

[00:28:05] Speaker 02:
Audio was captured that is correct your honor through the various means yes, okay?

[00:28:12] Speaker 04:
They don't prepare those Transcripts unless there is an appeal generally okay, so that's done after the fact all right.

[00:28:20] Speaker 02:
Thank you.

[00:28:21] Speaker 02:
Yes Thank you your honors all right move here rebuttal

[00:28:28] Speaker 03:
Thank you, Your Honors.

[00:28:29] Speaker 03:
I want to take up the issue of the motion to terminate.

[00:28:34] Speaker 03:
Yes, this court in Vasily Hernandez did address the underlying arguments in the petitioner's motion to terminate, but if we look at the concurrence in that motion to terminate,

[00:28:45] Speaker 03:
We see that these are callable arguments.

[00:28:49] Speaker 03:
These are arguments that the concurrence indicated maybe the Supreme Court would later overturn and maybe indicate that one notice to appear

[00:29:03] Speaker 03:
If it's complete does it does control jurisdiction.

[00:29:06] Speaker 03:
So I think that given that there is somewhat of a colorful argument, the Board of Immigration Appeals should have at least addressed it.

[00:29:13] Speaker 02:
You're referring to Judge Friedland's concurrence?

[00:29:16] Speaker 03:
I believe so.

[00:29:20] Speaker 03:
We should at least be able to have that decision because this is, again, what we do with appeals.

[00:29:27] Speaker 03:
If there's an adverse decision that we take an issue with, we can address it in the courts higher up.

[00:29:34] Speaker 03:
And perhaps, as the concurrence indicated, the Supreme Court would address the notice to appear, given that the Supreme Court in with Bereta and Ms.

[00:29:44] Speaker 03:
Chavez was, again, very strict with the treatment of that notice to appear.

[00:29:49] Speaker 03:
So perhaps later on, immigration law changes all the time.

[00:29:53] Speaker 03:
It just depends on the day.

[00:29:54] Speaker 03:
So this is, I think, that we should at least get an articulated decision from the BIA on this motion.

[00:30:05] Speaker 03:
In addition, regarding the interruptions, you know, the interruptions, yes, it occurred at the end, but reading the record, it does seem like, to me, the immigration court just completely foreclosed any other options, just said, I'm going to issue an oral decision, did not allow counsel

[00:30:30] Speaker 03:
Do anything more and I think that could have been that the argument to convince the court to rule otherwise Thank you your honors.

[00:30:41] Speaker 02:
Thank you counsel the case just argued will be Submitted and the court will stand in recess for ten minutes All right