[00:00:00] Speaker 04:
GOOD MORNING, YOUR HONORS. NICHOLAS MARKIE ON BEHALF OF MR. HARAKLEO ROBLEZ ISHLAKWAK.

[00:00:07] Speaker 04:
MAY IT PLEASE THE COURT.

[00:00:09] Speaker 04:
THIS IS A PEEL FROM THE BIA AND THE IMMIGRATION JUDGES, THEIR DENIAL OF A MOTION TO CONTINUE AS WELL AS THE DENIAL OF A REQUEST FOR RELEASE OF CANCELLATION OR REMOVAL. THE, OH, AND I APOLOGIZE, ONE MINUTE FOR REBUTTAL.

[00:00:31] Speaker 04:
I think the facts are fairly important to this issue of the continuance.

[00:00:36] Speaker 04:
Mr. Robles was detained back 12-13-2011. He had his first immigration hearing in detention. His second hearing was on January 6, 2012, where he was released and set for an out-of-custody master. That first out-of-custody master was 1-16-2013.

[00:00:58] Speaker 04:
It was reset again for the submission of an application for relief, which was cancellation or removal. On 3-12-2014, an individual hearing was set for March 13, 2015.

[00:01:16] Speaker 02:
What is the prejudice? How did this harm your client, not having the continuance?

[00:01:23] Speaker 04:
The prejudice, Your Honor, I think is quite clear. Counsel came in on the day of the individual hearing, indicated that she has had a rough time, mental health issues, anxiety. She was homeless. She said she wasn't prepared to file or proceed with the case. And in this case, it's clear from the record she wasn't. There was no pre-hearing statement that was filed.

[00:01:45] Speaker 02:
What additional evidence would you now bring forward?

[00:01:48] Speaker 04:
I would bring forward, Your Honor, a mental health evaluation of the qualifying relatives. There was never one that was done. You have to show extreme.

[00:01:58] Speaker 02:
Has that now been done? In other words, did you proffer to the BIA, this is what we were unable to show and this is what we would show?

[00:02:06] Speaker 04:
No, because BIA is not a fact-finding agency. The BIA could remand it. But again, when you ask for a remand, that may have been futile. Here we're asking that you're saying, what was the prejudice? Why wasn't anything submitted? And what we're saying is what to be submitted would be with the immigration judge so he could hear the evidence.

[00:02:25] Speaker 02:
Well, right, but I mean the BIA, I think, pointed out that your client hadn't submitted to the BIA an indication of what he would provide. Is your position that you didn't have to do that?

[00:02:38] Speaker 04:
Number one, he did put that in his brief. They did mention the mental health examination and saying the problem we have, Your Honor, is with these cases that last two, three, four, five years, if you get one mental health examination, say within six months of your death, Hearing, great. But what happens when that hearing isn't set for two or three or four years? When do you get it? And we don't know when we're going to get it.

[00:03:03] Speaker 03:
As I recall, the IJ here said, well, the next available date is in 2000 or something. 2020, he said. 2020, which was quite a ways down the road, right?

[00:03:15] Speaker 04:
It could have been, but here's the problem with that. They had bumped this case for what they said was a priority case. If the judge wanted to set this case, he could have set it out at 220 and then moved it back in. So his reliance on this myopic focus on the calendar was inappropriate. He didn't even discuss the decision of denying the motion to continue.

[00:03:39] Speaker 01:
The relief you want on the denial of the continuance is a remand and remand to the IJ?

[00:03:46] Speaker 04:
To the IJ, yes, Your Honor. So we can present the mental health information that both the immigration judge spoke about, as well as opposing counsel has said in her opening brief, or her responding brief, that there was no mental health evaluation that was conducted.

[00:04:02] Speaker 03:
You make one legal argument.

[00:04:06] Speaker 03:
That is that the IJ did not, the agency or the IJ did not consider the aggregate harm to the children. There were five children, I believe. Is that right?

[00:04:16] Speaker 04:
That's correct.

[00:04:18] Speaker 03:
So what was wrong with what they did?

[00:04:20] Speaker 04:
Well, it should have been a more thorough analysis of all of the harm to each one independently. Here the IJ did the first three older children, then the two older children. And we don't suspect that that's not sufficient enough. You must look at each individual qualifying relative as to each fact.

[00:04:41] Speaker 01:
But isn't what he did was they were in the same age range, they had the same individual with whom they lived, with whom he interacted and that sort of thing. So what's the prejudice here?

[00:04:54] Speaker 04:
The prejudice is the insufficient facts to each qualifying relative. Here, the judge grouped them in the older and the younger. Here he said the older live with the grandparents. And that was true.

[00:05:10] Speaker 01:
Each of them lived with the grandparents. So that's an individual determination.

[00:05:14] Speaker 04:
But what ties into the motion to continue was There was no testimony about how the children related with the grandparents, whether the grandparents, the qualifying relatives, were taken care of by the grandparents. Nothing from the grandparents had said anything about how the kids felt about their father, how the separation would affect them. Nothing like that.

[00:05:36] Speaker 03:
So I thought your argument was that they needed to look at the totality of all of them. You do look... That is, not just on an individual... Excuse me.

[00:05:46] Speaker 03:
You look at the harm not just on an individual basis. You can do that. I mean, certainly you do that, but you also need to look at the harm in the totality of the circumstances. That is, you look at the aggregation.

[00:06:01] Speaker 04:
And I agree with you can also look at that, but you also have to take the individual part.

[00:06:06] Speaker 03:
Yeah, I understand that, but so what's the proper analysis?

[00:06:14] Speaker 03:
From your perspective, you just look at each individual and that's it?

[00:06:16] Speaker 04:
Each individual, and then you can move to the totality of the circumstances. In this case, the immigration test didn't do that.

[00:06:21] Speaker 01:
But if you were kind of making five negatives equal a plus, if there's not really sufficient background or information to make that determination that you need, how does cumulative even help you?

[00:06:37] Speaker 04:
Well, that's the problem with this case itself. We don't have enough information to help us about how the qualifying relatives would suffer their harm. Here, you don't have any mental health information. You had the mother of the two youngest children testifying about how they would feel, but that was the extent of it. There needs to be more, and that ties into the motion to continue that was denied. Counsel said she wasn't prepared to go forward. She said she wasn't prepared to go forward because she was having mental health issues and had been homeless for a while.

[00:07:12] Speaker 04:
She asked for 45 days, which is more than reasonable in this context, to put on a case. You can get some experts. You can get the grandparents to come in and testify. There was no pre-hearing statement. We didn't have declarations from the grandparents. We didn't have declarations from teachers, things like that.

[00:07:30] Speaker 03:
Let me ask you this. From your perspective, what you want is for us to say that there was an abuse of discretion in not granting the continuance and remanding it back to the agency with directions to send it back to the IJ to pick up from there.

[00:07:47] Speaker 04:
Yes.

[00:07:48] Speaker 03:
Is that what you're asking for? That's what I want. We don't need to address anything else. If we agree with you on that, you're home free, so to speak.

[00:07:57] Speaker 04:
I would agree with that because I can't establish the burden for the cancellation removal because I don't have the facts that were submitted by the counsel that she didn't submit.

[00:08:10] Speaker 02:
Whose obligation is this, I guess? Because when we're looking at a due process violation, we're asking, is there prejudice? And you're representing that there are things that you would try to do and develop. But I think from the agency's perspective, the BIA's perspective, this wasn't provided to them.

[00:08:25] Speaker 04:
Well, the government argues that she provided letters, she provided documents. But the government also maintains that she didn't have any information about the mental health and how that would affect.

[00:08:37] Speaker 04:
Clearly, that's prejudicial if you don't have that type of evidence of emotional mental health evaluations, how the children are doing at school, things like that. All the IJ had here was the petitioner's testimony about how he paid money and about how he saw the children.

[00:08:58] Speaker 01:
And Vasquez Marico also testified.

[00:09:01] Speaker 04:
Pardon me?

[00:09:02] Speaker 01:
That's because Mike also testified about the children and the situation and what the relationship was.

[00:09:08] Speaker 04:
Right. But I'm saying that the prejudice is counsel could have gotten an evaluation to address those issues. It's a high burden for the petitioner to establish the relief. And most of the time, if not all, the immigration judges require some sort of evaluation on your qualifying relatives. And here we didn't have it because counsel couldn't couldn't get it for whatever, well, for the reasons that she said. She couldn't function properly.

[00:09:39] Speaker 04:
And that's where we say the prejudice is.

[00:09:41] Speaker 02:
We'll give you some time for rebuttal, but before you sit down, the BIA seemed to understand your argument to be on the aggregation of harms, that what you were asking was that the harm be aggregated essentially across qualifying relatives. That seems to be how they interpreted your position. In other words, that you would take the the harm experienced by one, two, three people, and you would kind of combine them all together. Is that your argument?

[00:10:07] Speaker 04:
My argument is you must look at each independent qualifying relative first and then get all of those facts. And then at a certain point, you can step up to take the aggregate. But the case law seems to indicate that you should look at each qualifying relative and the harm to that relative.

[00:10:25] Speaker 02:
Well, what if for each qualifying relative, It's not exceptional and extremely unusual hardship. Do you then stop there, or would you then actually sort of add them all together and come up with some composite hardship?

[00:10:38] Speaker 04:
If you don't establish it per the individual, I don't know how you can get to the aggregate.

[00:10:44] Speaker 04:
That's my argument. You first have to look at the individual.

[00:10:50] Speaker 03:
The way I read some of the BIA cases, they don't seem to agree with you.

[00:10:55] Speaker 04:
I would agree with that. They don't agree with me, and that's why I'm saying it should be changed.

[00:11:00] Speaker 03:
I'm sorry?

[00:11:01] Speaker 04:
I'm saying they don't agree with me.

[00:11:02] Speaker 03:
I agree.

[00:11:05] Speaker 03:
Well, I'm not sure what to make of your statement. I mean, as I read the BIA's decision, you can aggregate.

[00:11:12] Speaker 03:
In response to just the question that Judge Press just asked you.

[00:11:17] Speaker 04:
And what I'm saying is you can aggregate once you take into each individual qualifying relative. Here, the immigration judge didn't do that. He just lumped them up, two groups, and said the financial aid is not sufficient.

[00:11:31] Speaker 02:
Your answers are somewhat confusing just because I would have thought what your argument was was that we will look and see what each hardship was. And even if it doesn't rise to the level of exceptional and extremely unusual, nonetheless, when you have multiple relatives, we can kind of stack them and conclude from that that everyone has experienced a hardship that qualifies.

[00:11:54] Speaker 02:
I understand. Okay, why don't we leave you two minutes for rebuttal? We'll hear from the government.

[00:12:06] Speaker 00:
Good morning. Can you hear me?

[00:12:08] Speaker 02:
We can. Good morning.

[00:12:09] Speaker 00:
Yes, thank you. Thank you.

[00:12:12] Speaker 00:
Mona Youssef for the U.S. Attorney General. And I just wanted to take a quick thank you to opposing counsel and to this court for allowing me to appear remotely today.

[00:12:23] Speaker 00:
The court should deny this petition. Here, the IJ properly applied the BIA's en banc decision in Monreal to conclude that the petitioner here did not establish that his removal would result in hardship substantially beyond the ordinary hardship that is limited to truly exceptional circumstances. But I want to take a quick minute to respond to what counsel has been talking about in terms of the continuance. This case was, he first filed his cancellation removal application in 2013.

[00:12:57] Speaker 00:
He submitted documents then. He submitted documents again a year later. And then in 2015, the court did extend, continue his removal proceedings from 2015 to 2017. That was plenty of time in order for any mental records or medical records to be submitted in the record. Unfortunately, his counsel had a problem in June of of 2017. That was only a month or so before the hearing.

[00:13:28] Speaker 00:
But up until then, all these documents should have been requested. And even if they now believe that there are documents that should be provided, they've had ample time to provide those through a motion to reopen to the board to say, here, these are the documents.

[00:13:43] Speaker 03:
Did the IJ, during that interval that you just described, did the IJ impose any deadlines for getting the work done?

[00:13:53] Speaker 03:
I don't believe so. And submitting matters to the court?

[00:13:58] Speaker 00:
I honestly don't remember from the transcript. Usually what IJs do is that they at least allow maybe 15 days before the trial date to submit your documents. 15 or 30 days is typically what I've seen in most cases.

[00:14:12] Speaker 03:
And do you recall if there was any such deadline here? I do not recall. I am sorry. You're on.

[00:14:19] Speaker 03:
Well, you know, it sounded like...

[00:14:22] Speaker 03:
Her personal circumstance, that is the lawyer's personal circumstances, were pretty serious. Am I misreading the record there?

[00:14:32] Speaker 00:
No, I don't want to downplay what she probably went through. They said she was homeless and she was having mental problems. But she also said when she said that she wasn't ready, that was in response to the IJ asking if there were any documents she said she wanted to submit. And she said, no, I'm not ready. I don't have anything. But the odd thing is, later on in the hearing, she actually did submit some documents. And she did ask the proper questions when the petitioner was on the stand and the petitioner's girlfriend was on the stand. They asked about the children.

[00:15:02] Speaker 00:
They asked about how much money he provides, how often he sees them. He asked if there was any medical problems. They asked the mother of the two younger children if there were medical problems. And she said no. So I don't see.

[00:15:15] Speaker 03:
You know, I understand that what took place after the request for continuance was denied. But, you know, it seems like it was a reasonable request under the circumstances.

[00:15:29] Speaker 03:
Well, I believe that the board – Wasn't asking for an extensive period of time. And the IJ just came back and said, well, you know, the next available date is – was it about a year and a half out?

[00:15:40] Speaker 00:
I think it was three years out. Three years out. It was three years out.

[00:15:43] Speaker 03:
And I will say – That's not her fault, is it?

[00:15:45] Speaker 00:
No, absolutely not. And I will say that the board did acknowledge that they did not rule on the matter of whether it was an abuse of discretion. They said that they didn't like the fact or they were uncomfortable with the fact that the only reason that the IJ gave was the timing, because I guess the docket was so booked up, you couldn't get another hearing for another year.

[00:16:06] Speaker 03:
We've said that, too, in our in our opinions that, you know, we don't look favorably upon timeliness is the, you know, the need to get it done. When there are circumstances that suggest that a continuance is probably worth, you know, is meritorious.

[00:16:23] Speaker 00:
Well, that said, to get a continuance, you also have to, one of the factors is to prove what evidence you would need, you're going to submit in order to justify the continuance. And that was never really done here.

[00:16:37] Speaker 00:
So it may be if the opposing counsel had said, well, I still need to go get medical records or something like that, maybe the IJ would have changed their mind. But that wasn't the argument that was made in front of the in front of the IJ. And like I said, the board didn't really put their stamp of approval on the fact that it was only about the three years of timing. But they did say there is no prejudice. And even in his briefs before the B.I.A., And even now, there's been no mention about what documents would be brought. This is the first I've heard about a mental evaluation or anything.

[00:17:08] Speaker 00:
And in that case, they still could have filed a motion to reopen over that span of time, too.

[00:17:14] Speaker 01:
Would you address the question of dealing with the children in group of younger children and older children as opposed to each individually?

[00:17:24] Speaker 00:
Yes.

[00:17:25] Speaker 00:
The IJ here did do it in two different groups, but I think of it as two different households. And The agency's decisions are the product of the way this case was argued. He argued that he saw his three older kids. He saw them once a month. They lived together. They were supported by grandma. He provided about $1,900 a year for the three of them in child support. Then they had the younger children, again, another household.

[00:17:56] Speaker 00:
So the mother there testified she's trying not to get the kids too emotionally attached. That's why he doesn't live in those house in that household. So what you're really dealing with here is five qualifying relatives in two different households, neither of which petitioner belongs to. And those no question that they might not have as much financial aid if petitioner is moved to Mexico because his earnings won't be as great as they are here. And his kids will probably miss him.

[00:18:26] Speaker 00:
But those are common hardships. And even when you aggregate those two households together, you still have common hardships that you can't aggregate to make exceptional and extremely unusual hardships. What you need is there needs to be something unusual about the hardship to at least one of the qualifying relatives in order to reach that standard. Otherwise, you can have five kids in five different states and say, you know, I provide a little bit of money to all of them.

[00:18:53] Speaker 00:
And I talk to them, you know, every once in a while. But that really doesn't add up to the hardship that we're looking at, say, in Racine, where there's a single mother. All the kids are going to go move back with her. She's going to be by herself because her LPR mother is still in the United States. So she won't have her backup caretaker. So she's solely responsible for those four. Well, there are six kids, four of them are U.S. citizens and children. But her hardships affect them. So it's not that.

[00:19:24] Speaker 00:
they aggregated the hardships of mom, grandma, and the kids. They just saw how all the hardships of mom and grandma or not having grandma around to take care of them affected those four children.

[00:19:34] Speaker 03:
Let me ask you this. Would you agree that the board has recognized the use of aggregation in some circumstances? I mean, you just pointed to Racina's.

[00:19:47] Speaker 00:
Yeah, I mean, they did. And they actually said that in this case too, they said, Let's see. There's the first sentence where they're basically affirming the IJ's decision. And I argue that the IJ did get that right. And then they're responding to petitioner's argument in his brief. And that time he argued that they should have aggregated household number one and household number two, which the IJ actually did do in his opinion. And then they said the immigration judge and we consider the hardship in the aggregate. So they're saying that that was done in this case and that is the proper standard.

[00:20:21] Speaker 02:
What do we mean by that, though, I guess?

[00:20:24] Speaker 02:
Because it could mean one of two things. It could mean for each person we aggregate all the different types of harms they would experience, financial, educational, emotional, health, all these things.

[00:20:35] Speaker 00:
Yes.

[00:20:36] Speaker 02:
Or it could mean we take an aggregation of multiple people and we look at the harms to person one, two, three, and four, and we combine those. What do you understand the BIA to be saying here? in both this case and in its other decisions?

[00:20:54] Speaker 00:
I mean, that's a very good question. If you look at Monreal, they actually do have two different households in that case. There's a household with the kids and there's a household of the LPR parents. And at the end of the decision, they said, there's going to be some financial and emotional hardship to the kids. There's going to be some emotional hardship to the parents if the alien is removed. And at the end, they said, They neither established hardships to the children or the parents. So it looks like there they're not aggregating the two households together.

[00:21:27] Speaker 00:
But in Racine, it's like I said, there's one household. I think it's another way of saying totality of the circumstances.

[00:21:35] Speaker 00:
If you were to have at least one relative that has something unusual in whether it be a medical condition that can't be taken care of in Mexico or one of the LPR parents absolutely is solely dependent on the alien who is going to be removed.

[00:21:54] Speaker 00:
Your focus is basically on that relative, but that doesn't mean you can't consider the other factors involved to the other people. And I hope that made a little bit of sense. And please let me know if I need to clarify. I apologize.

[00:22:06] Speaker 03:
No, I agree.

[00:22:09] Speaker 03:
I appreciate the finesse with which you just explained your position there.

[00:22:19] Speaker 00:
Thank you. It looks like I'm out of time unless anyone has any questions.

[00:22:24] Speaker 02:
Okay. Hearing none, I want to thank you for your presentation and we'll hear two minutes of rebuttal.

[00:22:29] Speaker 00:
Thank you for your time.

[00:22:32] Speaker 04:
Your Honor, the only issue I want to address is the continuance that was denied. And I think counsel is right. I don't believe that there was a scheduling order issued by the judge to set dates for things to be completed. And that is a problem. Typically, I think it's a 30-day filing deadline with the practice manual. And because counsel had such stress and emotional distress and her personal problems, she couldn't make that.

[00:23:03] Speaker 04:
So I think that's what the prejudice is. She couldn't get it together to get the documents that she needed.

[00:23:10] Speaker 04:
That's all I have.

[00:23:12] Speaker 02:
Okay. Thank you. We thank both counsel for the briefing and argument. This case is submitted.