[00:00:10] Speaker 03:
Good morning, and welcome to the Ninth Circuit. We've submitted several cases already. They are Valdez-Zamacona v. Blanche, Otero-Rosas v. Blanche, Quanzapeda v. Blanche, and People of the State of California v. Chiquita Canyon, LLC.

[00:00:29] Speaker 03:
The first case we have for argument is Luong v. Blanche.

[00:00:34] Speaker 03:
Hopefully, counsel, you can hear us.

[00:00:36] Speaker 04:
I can hear you, Your Honor. Good morning. Good morning to all honors.

[00:00:43] Speaker 03:
Counsel, whenever Mr. Gerardo, whenever you're ready, you can begin. Hopefully, you can see the clock. So if you want to reserve time for rebuttal, just pay attention to the clock.

[00:00:54] Speaker 04:
Okay.

[00:00:59] Speaker 04:
May it please the court. I reserve two minutes for rebuttal. My name is Michael Jurado, and I represent the petitioner in this matter, Mr. Chan Luong.

[00:01:08] Speaker 04:
Here, the BIA never had the opportunity to evaluate Mr. Luong's diligence under the legal standard that this court recently articulated under a skillion. The immigration judge himself found that removability was unobtainable for decades due to the repatriation of Vietnamese nationals.

[00:01:29] Speaker 04:
Askillian requires that these facts be evaluated under the correct diligence standard that is present today before this court. Because that standard was never properly evaluated by the BIA, this court should remand.

[00:01:44] Speaker 04:
This case comes down to when should the diligence clock have started running for Mr. Lewalk?

[00:01:50] Speaker 04:
Well, the BIA said it started in 1991 when he was placed in deportation proceedings. But Askillian says something different. It says that the petitioner who cannot be realistically removed, the diligence clock does not start until that removability becomes a realistic possibility.

[00:02:10] Speaker 04:
And Mr. Long could not realistically be removed for decades. The immigration said so in his findings when he denied the original motion to reopen, that it could not be effectuated due to the repatriation to Vietnam was unobtainable for policies at the time. That's the immigration. Can I ask a question?

[00:02:28] Speaker 02:
Should we remand to the BIA for the BIA to consider Escalonian in the first instance, or should we try to apply it here?

[00:02:39] Speaker 04:
Well, Your Honor, I believe we should remand to the agency. They have not yet analyzed the Escalonian Doctrine.

[00:02:48] Speaker 04:
They need to analyze it on its first instincts. Doing so today before this court, without having the opportunity for the agency to make their own findings, would not be correct. So I believe the court should be remanded so the BIA gets its opportunity.

[00:03:07] Speaker 02:
Okay. And my only second question is Escalian relies heavily on the fact that the petitioner was a stateless person.

[00:03:18] Speaker 02:
Your client is Vietnamese, and so it's not quite the same. Is that the distinction that would make a difference in this case?

[00:03:28] Speaker 04:
Yes, Your Honor. The petitioner in Eskilian was stateless. Mr. Long, in our case, is a national of Vietnam, so he's not stateless. But that doesn't necessarily change the analysis, in a sense, because Mr. Long has been here for decades. And we can show that the government wasn't able to effectuate his removal because he was on an order of supervision for years, coupled with the bilateral agreement that the United States had with Vietnam at the time.

[00:04:00] Speaker 04:
So there is a distinction can be made from statelessness to an individual who cannot be removed from this country.

[00:04:12] Speaker 03:
In your view, when should the clock have started for him to file a motion to reopen?

[00:04:18] Speaker 04:
I think the record supports that as early, there's no exact date, but I think the record supports a factual finding of no earlier than 2017 when the immigration says, the immigration judge said in his decision denying the motion to reopen that the United States was beginning to repatriate the Vietnamese nationals as early as 2017.

[00:04:46] Speaker 04:
So I believe that's when the clock should start no earlier than 2017, not 1991, where the board and the immigration judge started the clock.

[00:04:56] Speaker 00:
In Eskilian, the board actually provided notice to Eskilian that she was now removable, that there was a way to remove her. Has that ever happened here?

[00:05:13] Speaker 04:
Well, Your Honor, my client, Mr. Long, in his declaration that he provided in the motion to reopen, there's no specific date where he became aware or he was told he would be effectually removed. He just did a Google search on his own sometime in 2018, and he acted. He hired counsel to hire for the 1473 motion to vacate in California.

[00:05:42] Speaker 04:
Additionally, for years, sometime in 2012 and 2013, one of Mr. Luong's previous counsel indicated and told him that it was nearly impossible for him to be sent back to Vietnam and he was not going to be removed. So for years, he didn't act because it wasn't possible.

[00:06:04] Speaker 02:
Was the agreement with Vietnam...

[00:06:08] Speaker 02:
to not repatriate enacted before his final order of removal?

[00:06:13] Speaker 04:
Yes. Hold on. I apologize, Your Honor. It is for when Vietnamese nationals who entered pre-July 12, 1995, and Mr. Luong entered this country as a refugee roughly at the age of four in 1986, I believe, or 87, well before the 1995 date, the repatriation treaty analyzed. Okay.

[00:06:35] Speaker 00:
My understanding is In 2008, there was an agreement to start repatriating some people to Vietnam, but that they agreed they would not repatriate anyone who arrived here before 1995. So I think before 2008, there was no one being repatriated to Vietnam. Is that correct?

[00:06:58] Speaker 04:
Yes, Your Honor. Yes and no, because the Memorandum of Understanding began with starting...

[00:07:07] Speaker 04:
after 1995. They made a distinction between pre-95 and after 95.

[00:07:14] Speaker 00:
The way I see it, in 2008, they said we're going to start repatriating people to Vietnam, but only people who arrived here after 1995. Is that correct?

[00:07:24] Speaker 04:
That is correct, Your Honor.

[00:07:25] Speaker 00:
That implies before 2008, they weren't repatriating anyone. Is that correct?

[00:07:33] Speaker 04:
That is correct, Your Honor. Before 2008, no Vietnamese nationals were being repatriated back to their home country.

[00:07:39] Speaker 00:
And then, I'm not sure what was happening between, it's unclear. It seems to me that there is a new agreement as of November 2020 that allows for repatriation of people who entered before 1995, but it's not clear to me what was happening between 2017 and 2020?

[00:08:05] Speaker 00:
Maybe that's a question for the government's council, but it seems to me there was no official agreement until November 2020.

[00:08:13] Speaker 00:
Is that correct?

[00:08:15] Speaker 04:
That is correct, Your Honor.

[00:08:18] Speaker 04:
Yes.

[00:08:26] Speaker 04:
So going back, Your Honors, The due diligence is.

[00:08:32] Speaker 04:
Well, let me backtrack. This argument doesn't just live and die by the scaling argument or the equitable tolling. There's another issue. There's independent grounds for remand, such as missing the 2022 Vatican order in of itself, which will. is material evidence that affects Mr. Luong's removability, and that the BIA still had not the opportunity to view the complete record of the Vatican, nor analyze the new correct due diligence standard. So if we were to remand Dr. Ford, they can analyze under the correct standard with the facts already in this record, in addition to being able to view the complete 2022 Vatican order.

[00:09:13] Speaker 00:
Do you understand what happened after? So there was a motion 1473.7 motion and then there was the state court reduced the conviction right modified the conviction from i think second degree robbery to first degree robbery and then it's unclear to me was there an appeal was there a second motion was there something else that resulted in a complete vacator or is that something that you're saying needs to be established in a new um

[00:09:46] Speaker 04:
There was a secondary motion, but that's not in the administrative record, Your Honor. So my client did have a second motion to vacate in 2022, and it's not in the record.

[00:09:56] Speaker 03:
Okay. Counsel, you have about a minute if you want to save that time. Can I save it for rebuttal, Your Honors? Yes. Thank you. Great. Thank you.

[00:10:10] Speaker 03:
Ms. Nahas, whenever you're ready.

[00:10:13] Speaker 01:
Good morning, Your Honors. May it please the court. My name is Rebecca Nahas, and I'm representing the United States Attorney General.

[00:10:21] Speaker 01:
The court should dismiss the petition in part and deny in remaining part. Petitioner waived any challenge to the agency's denial of sua sponte reopening, so the court should dismiss the petition as to that claim. The only issue before the court is petitioner's statutory motion to reopen, which is undisputedly filed 24 years late. And so the question before the court is due diligence. And the agency acted well within its discretion in finding that petitioner did not satisfy the due diligence requirement to warrant equitable tolling of the filing deadline.

[00:10:59] Speaker 01:
And Eskilian does not change that result.

[00:11:03] Speaker 01:
for at least three reasons. First, petitioner did not exhaust the claim that was raised in Eskilian.

[00:11:11] Speaker 01:
Petitioner, instead of arguing that he should be excused from the filing deadline because he was not removable, instead of arguing that, he said he was diligent because he filed within a reasonable period of 1473 being enacted. And Even though Eskilian hadn't been decided yet at the time of briefing, he could have, just like the petitioner in Eskilian, raised this claim in the first instance.

[00:11:39] Speaker 02:
But counsel, is that really a claim? The claim was that he was regionally diligent, and so therefore the tolling should be excluded. I don't think you have to make that precise argument in order for it to put the BIA on notice of what reasonable diligence would be.

[00:12:00] Speaker 01:
Well, I think that the agency reasonably applied the Benz standard of when a reasonable person would have learned of the adverse consequences of a criminal conviction, and that was an NTA.

[00:12:12] Speaker 02:
Right. And then as Skellion says, that the reasonable person wouldn't be concerned about that if there's no possibility of removal.

[00:12:19] Speaker 01:
Right. So at no point was this claim raised before the agency.

[00:12:23] Speaker 02:
That's my point. Is that a claim? That's not a claim. That's just an argument.

[00:12:28] Speaker 01:
Right.

[00:12:29] Speaker 02:
The claim is reasonable diligence, right?

[00:12:32] Speaker 01:
Sure, Your Honor. But I think that the argument itself also needs to be exhausted in order to provide the agency an opportunity to consider it.

[00:12:40] Speaker 02:
Do you have precedent that suggests that that type of fine-tune exhaustion is required? I thought it's under our precedent. It's just whether or not the BIA has put on notice of what's being challenged.

[00:12:58] Speaker 01:
I don't have anything off the top of my head, Your Honor. I apologize. And I'm happy to turn to our secondary arguments that even if this claim is exhausted, that Iskilian does not change the outcome of this case. First, petitioner did not provide the date on which he learned that he could be removed as the petitioner in Iskilian did.

[00:13:19] Speaker 00:
Well, in Iskilian, the agency the record reflected the agency actually specifically told a skillion you're now removable so it seems to me that that's possible that it's not in the record because that's never happened here in which case uh it would seem that mr long has actually been far more diligent than a skillion because he's been acting uh even without any such notice

[00:13:53] Speaker 01:
Well, I don't know that the absence of evidence that he was told means that he wasn't told. He was appearing for his supervised periodic meetings with ICE. I think the last one was in 2018. And I don't think it's unreasonable to assume that at that point, at least when he filed his complaint, motion to reopen at the very least that he was aware of that he could possibly be removed.

[00:14:26] Speaker 01:
But in any event, Your Honor, there's also a reasonable person standard. And so Eskilian was focused on the subjective nature of the inquiry. So petitioner in that case said that she learned of the removability in 2018.

[00:14:44] Speaker 01:
But there's also an objective component of when would a reasonable person have learned of the removability of Vietnamese nationals. And we think that as petitioner acknowledges the, a reasonable person would have learned around 2017 when the Trump, the first Trump administration began removing Vietnamese nationals and even petitioners attorneys affidavit indicates that this was common knowledge, not only among immigration practitioners, but also Vietnamese citizens.

[00:15:14] Speaker 01:
And that it was widely noted in the media that these that, the administration had begun removing individuals to Vietnam as early as 2017. So even if we measure, if we generously measure the point at which we assess diligence from 2017, we still have a failure in proof because the next thing that we know is that he hired an attorney in December of 2018. So that's at least a year gap where he was not pursuing his rights.

[00:15:48] Speaker 01:
And so I think that the diligence finding is, is the same either.

[00:15:54] Speaker 02:
That requires some fact finding, doesn't it? And so shouldn't we remand to the BIA to do that fact finding in the first instance?

[00:16:03] Speaker 01:
Well, I, I think that it would be futile just because of the nature of the evidence before the court. And this is, you know, a motion to reopen that, petitioner bears the burden of proof, and it's a heavy burden of presenting the evidence and making out the claim, and we just don't have sufficient facts.

[00:16:21] Speaker 00:
The IJ said 2017, so even using that, it's a foregone conclusion that he didn't... So there is, I mean, first of all, the IJ didn't have the benefit of a skill, and neither did the petitioner, but also, I mean, it seems to me that at most we have is a limited report of some discussion of limited returns in 2017. And we don't have an actual agreement to repatriate people in the circumstances of Mr. Long until 2020.

[00:16:52] Speaker 00:
Is that correct?

[00:16:54] Speaker 01:
That's my understanding, Your Honor.

[00:16:56] Speaker 01:
But I do think we have the affidavit from his attorney indicating that it was widely known that the U.S. had begun removal efforts with Vietnamese citizens.

[00:17:07] Speaker 01:
But our third argument, I think, is it's independently dispositive and I think doesn't really turn on this Gillian framework. And this is even if we assume that petitioner gets to toll the deadline through the date that the state court vacated the conviction, he still waited one year after that date to file his motion to reopen. And he hasn't provided any explanation for that failure yet.

[00:17:35] Speaker 00:
That depends on really when he was – because under Escalian, one argument would be that he didn't have to start doing anything until the agency said circumstances have changed and you are now subject to repatriation to Vietnam. And it's not clear to me that's ever happened, in which case everything he did was more than was reasonably required under Escalian. So if especially if there was no formal agreement to start removal until November 2020.

[00:18:11] Speaker 00:
I think the other it's just there's also unclear right now, it seems to me he was continuing efforts to get complete vacator of his conviction, which would be another form of of diligence. So I'm not sure. It's just I think part of the problem here is that we don't have a complete record of what was occurring there. what the agency actually informed Mr. Luong and when there was actually a realistic possibility that he was going to be removed to Vietnam and whether he was notified of that by the agency.

[00:18:49] Speaker 00:
So it seems to me that there's been a significant change in the law that needs to be reconsidered on remand.

[00:19:01] Speaker 01:
To your question about the record, yes, I do agree that the record has a lack of evidence, but I think that that burden rests on petitioner having been the party moving for reopening. And I think it would be an unreasonable read of a skillion to carry the date of when we measure diligence to the present if the petitioner never learned. I think there needs to be a reasonable person standard as the court has applied in every other context in assessing due diligence.

[00:19:36] Speaker 01:
I think it would be unreasonable to say that the person gets to carry the deadline, you know, especially, you know, what prevents them from sticking their head in the sand and not learning about this in order to benefit from this equitable tolling argument. Um, But and then I think with regard to sorry, with regard to the evidence of the new vacature, I think that the proper course would be for petitioner to file a motion to reopen. This is new evidence. It was never submitted or considered by the agency.

[00:20:09] Speaker 01:
And so we don't think that that's a proper basis to remand.

[00:20:13] Speaker 00:
So before we move on to your question. Running out of time, I did have one other question about the alternative basis. So it seems to me that IJ denied – said even if there was equitable tolling, 1473.7A1 grant for the – would not – essentially would be a vacator for – to avoid immigration consequences. But we held – Otherwise, in Bent, we said it's actually a procedural or substantive vacator.

[00:20:47] Speaker 00:
And the BIA didn't seem to adopt the IJ's reasoning. It just said it wasn't clear which subsection of 1473.7 the motion was granted under. But I'm not sure why that matters now because both A1, A2, and A3 would all be now after Bent.

[00:21:11] Speaker 00:
substantive or procedural reasons for vacating or modifying the conviction. So it seems to me there's also a, is there a reason why the BAE, it mattered which subsection motion was granted under?

[00:21:29] Speaker 01:
I'll just start by stating our position that this issue has been waived because petitioners opening brief changed course and argued of a vacature under A3, not A1.

[00:21:45] Speaker 01:
So we will continue to argue that that issue is waived, but I would like to answer your question that we believe that the, I think that you're right that regardless of what subsection, 1473, I do think that it, sorry, the IJs, the court need not decide or reach that board's decision regarding whether a petitioner proved which subsection the provision was vacated under because even if he proved it was A1, which was his claim below, the IJ's decision is correct because our position, the government's position is that Bent has not decided the question of whether a vacature under A1 is substantive or procedural because the court looked at the plain language and remanded for the agency to decide that question on remand.

[00:22:44] Speaker 01:
And we think that there remains an argument that the vacature under 1473A1 expands the rights of individuals beyond what the constitution, the federal constitution requires, and therefore the government doesn't it doesn't meet the federal standard of whether an immigration conviction remains valid for immigration purposes.

[00:23:16] Speaker 01:
And this is, of course, something that we didn't brief because our position is that it was waived, but that is our position.

[00:23:23] Speaker 00:
Okay. I understand.

[00:23:26] Speaker 03:
Great. Thank you. Thank you.

[00:23:28] Speaker 01:
Thank you, Your Honors.

[00:23:41] Speaker 03:
Whenever you're ready, Mr. Hirata.

[00:23:45] Speaker 04:
Thank you, Your Honor. I'll be short. Yes, all of the facts, although the record in this case is not complete, the factual building blocks are complete in this case, enough for the scaling framework to be properly analyzed on its first instance for the board. With remand, the board can view the complete record apply the correct legal framework as it stands today, and then make its decision after analyzing the complete record as it is.

[00:24:17] Speaker 04:
Thank you.

[00:24:19] Speaker 03:
Great. Thank you both for the helpful argument and apologies to both for mispronouncing your last names.

[00:24:25] Speaker 03:
I guess I was equal in botching both your names. So thank you. The case is submitted.