[00:00:00] Speaker 02:
All right, we're ready.

[00:00:01] Speaker 02:
You have 15 minutes total.

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

[00:00:04] Speaker 00:
And good morning.

[00:00:05] Speaker 00:
May it please the court, Benjamin Wiesinger for the petitioner Manuel Baquera.

[00:00:11] Speaker 00:
Nobody likes being ignored.

[00:00:13] Speaker 00:
Certainly not me.

[00:00:15] Speaker 00:
I've been representing this gentleman for 15 years, I believe.

[00:00:20] Speaker 00:
And I've been making the same argument that entire time, that this case is about the cumulative effect of hardship

[00:00:30] Speaker 00:
upon his qualifying relatives, his five US citizen children.

[00:00:33] Speaker 00:
The cumulative effect.

[00:00:35] Speaker 00:
And yet, in neither decision of the BIA do they even make a passing reference, even in boilerplate language, about that part of the hardship analysis.

[00:00:48] Speaker 00:
And this isn't just me complaining about being ignored and having my arguments ignored.

[00:00:54] Speaker 00:
This court has a long history of telling the board, you

[00:00:59] Speaker 00:
are not free to simply ignore arguments of respondents and their counsel.

[00:01:05] Speaker 00:
And that in and of itself, Your Honors, is reversible error.

[00:01:09] Speaker 00:
The board said in its first decision, the respondent has not shown exceptional, extremely unusual hardship to a qualifying relative.

[00:01:20] Speaker 00:
And then in the second decision on the motion to reopen, it treats the hardship analysis separately as to two of the children,

[00:01:29] Speaker 00:
And doesn't, again, even hint at that the board is considering hardship in the aggregate or in the totality of the circumstances or in the cumulative effect.

[00:01:41] Speaker 00:
And yet that's been in my pre-trial brief.

[00:01:44] Speaker 00:
That was in argument to the immigration court.

[00:01:47] Speaker 00:
That's been on the briefs and on appeal.

[00:01:49] Speaker 00:
That's been on the motion to reopen.

[00:01:50] Speaker 00:
It's everywhere and yet nowhere in either of the board's decisions in this case.

[00:01:55] Speaker 02:
So the motion to reopen was based on Mr. Varquero's voluntary decision to move out of the communal house.

[00:02:03] Speaker 02:
And can you cite any case where a motion to reopen was granted based on the applicant's voluntary action like that?

[00:02:11] Speaker 00:
No, Your Honor, not that I have found.

[00:02:14] Speaker 00:
But it is a change in circumstance.

[00:02:18] Speaker 00:
And the argument is that

[00:02:21] Speaker 00:
without the constant care and support of all these other family members that the case is much more akin to the Racinas matter, you know, single mothers, six children.

[00:02:34] Speaker 02:
Well, but if we were to agree with your argument, doesn't that mean that everyone then can, if the first argument doesn't work, then they can do something else and then make the argument again, take a voluntary action,

[00:02:50] Speaker 02:
I mean, you could become homeless and then say, well, this is really going to be a hardship to my family or... Well, the implication, Your Honor, is that... I mean, it was kind of shocking how many people were all living in one house to start out with.

[00:03:05] Speaker 04:
Related to that, was this voluntary?

[00:03:08] Speaker 04:
There was something in one of the documents that said that there was some kind of an order to do something.

[00:03:15] Speaker 04:
No, Your Honor, I don't believe that was... The wife said something about that, I thought.

[00:03:21] Speaker 04:
Not necessarily related to him, but to something about the change in the circumstances.

[00:03:27] Speaker 00:
In testimony and in some of the affidavits, but in testimony especially, the mother of my client's children mentions how difficult that living situation was.

[00:03:39] Speaker 04:
No, I meant on the reopening.

[00:03:41] Speaker 04:
There was some document that suggested that as to some aspect of the living

[00:03:45] Speaker 04:
arrangement there was outside intervention?

[00:03:51] Speaker 00:
I'm not recalling that, Your Honor.

[00:03:52] Speaker 00:
I apologize.

[00:03:53] Speaker 00:
I'll take another look during my... But that's not what you expect to establish.

[00:03:58] Speaker 00:
No, Your Honor.

[00:04:00] Speaker 00:
And so the implication of that argument is that my client moved out just to try to help better his immigration case.

[00:04:11] Speaker 00:
There's nothing in the record that actually says that, but

[00:04:15] Speaker 00:
My client felt compelled to move out for any number of reasons, not the least of which, he was living under the same roof as his partner's husband.

[00:04:26] Speaker 00:
And so he was going to move out eventually.

[00:04:31] Speaker 02:
So when the BIA on January 22nd, 2021 denied Mr. Vaquera's motion to reopen, the Ninth Circuit had yet to issue its opinion in Fonseca, Fonseca versus Garland.

[00:04:45] Speaker 02:
Why should we apply the standards set forth in Fonseca, Fonseca to the BIA's earlier decision?

[00:04:53] Speaker 00:
Because Fonseca did not announce a new rule or a new standard.

[00:04:57] Speaker 00:
It merely clarified

[00:04:59] Speaker 00:
what the board's own standards are.

[00:05:02] Speaker 00:
And if you look at Fonseca, right there in the first two paragraphs of the decision, it cites to LOG matters of LOG and matters of SV, which actually provide the correct standard of review.

[00:05:15] Speaker 00:
And so this standard of review for motion to reopen has been there since the 90s and early 2000s.

[00:05:21] Speaker 00:
And Fonseca, I believe, merely crystallized what the standard always was.

[00:05:27] Speaker 01:
But I thought that it would likely change.

[00:05:30] Speaker 01:
At least there was COLO.

[00:05:33] Speaker 01:
I'm not quite sure how to say that.

[00:05:34] Speaker 01:
I mean, the second paragraph of Fonseca talks about how there were two standards.

[00:05:40] Speaker 01:
And now, after Fonseca, it's reasonable likelihood instead of would likely change.

[00:05:47] Speaker 00:
Correct.

[00:05:48] Speaker 00:
And so the board's own precedent might have been a little murky there.

[00:05:51] Speaker 00:
But the board correctly stated what the standard is in SV and LOG.

[00:05:57] Speaker 00:
I believe it might have been the different procedural postures, different types of cases, Coelho versus SV and LOG.

[00:06:07] Speaker 00:
And so maybe that was what was causing the confusion.

[00:06:10] Speaker 00:
But no, Fonseca merely stated what the standard always was and said, this is the standard you are to apply.

[00:06:18] Speaker 02:
It seems to me it would just be futile to send it back.

[00:06:22] Speaker 02:
So how do you answer the futility argument?

[00:06:25] Speaker 00:
because of the board's failure to address my client's arguments in the first instance.

[00:06:31] Speaker 00:
The cumulative hardship effect, which is only increased by moving out and being on his own with his five children.

[00:06:40] Speaker 01:
So with the moving out, are you assuming that the children could not still be taken care of by the people who are still in the group house?

[00:06:49] Speaker 00:
Yes.

[00:06:49] Speaker 01:
If your client left?

[00:06:50] Speaker 01:
Why is that?

[00:06:52] Speaker 00:
Well, because that's what was said in the

[00:06:55] Speaker 00:
testimony that these other, you know, the husband and the other children had no interest in caring for and parenting my client's children.

[00:07:05] Speaker 00:
We have to take their testimony at face value on this one.

[00:07:08] Speaker 01:
And does that have to do with the moving out or was that just already true?

[00:07:12] Speaker 00:
That one is a little unclear, actually.

[00:07:16] Speaker 00:
The record does not make that actually clear.

[00:07:19] Speaker 00:
And I will concede that the mother of my client's children is still actively involved in their lives.

[00:07:25] Speaker 00:
And so it's not like she wouldn't be there anymore, but then she'd be in that same position of having to care for all these children by herself.

[00:07:37] Speaker 04:
The reference I had was in the wife's letter or declaration on reopening, she says,

[00:07:46] Speaker 04:
My older teen adults have moved out due to the Honorable Judge Richardson decision on communicable living.

[00:07:55] Speaker 04:
It caused outrage, mixed emotions, arguments, and emotional stress.

[00:08:00] Speaker 04:
What was that about?

[00:08:02] Speaker 00:
That simply is what my client's wife says.

[00:08:06] Speaker 04:
So you don't know if we sent it back and it was actually determined to be reopened, whether that would lead to any

[00:08:14] Speaker 04:
conclusion that this wasn't voluntary.

[00:08:16] Speaker 04:
You don't know.

[00:08:17] Speaker 00:
No, Your Honor.

[00:08:19] Speaker 00:
But now, I do remember reading that now, and the court is obviously correct about that.

[00:08:25] Speaker 00:
For whatever reason... Do you know what the order was?

[00:08:26] Speaker 01:
Do you know what it's refer... Do you know what the order is that she's referring to?

[00:08:31] Speaker 00:
Well, I can only conclude that it was Judge Richardson's order denying my client's application.

[00:08:35] Speaker 00:
No, no, no.

[00:08:36] Speaker 00:
I don't think so.

[00:08:37] Speaker 01:
It sounds more like some sort of family law order or something.

[00:08:40] Speaker 01:
I guess I'm not sure.

[00:08:41] Speaker 00:
She actually mentioned Judge Richardson, right?

[00:08:44] Speaker 00:
Yes.

[00:08:44] Speaker 00:
Well, that was who we were before in court.

[00:08:48] Speaker 01:
In the IJ?

[00:08:49] Speaker 00:
Yes.

[00:08:52] Speaker 00:
So for whatever reason, whatever reason, my client felt compelled to move out.

[00:08:58] Speaker 00:
The situation wasn't great to begin with.

[00:09:01] Speaker 00:
He moved out.

[00:09:02] Speaker 00:
And the facts speak for themselves.

[00:09:07] Speaker 00:
We have a single father, five US citizen kids.

[00:09:11] Speaker 00:
Three of them have at least some medical issues.

[00:09:13] Speaker 00:
And I'll concede on the record that no, the hardship to one single qualifying relative was not sufficient to meet the standard.

[00:09:21] Speaker 00:
But again, that's not the point.

[00:09:23] Speaker 00:
The main point has always been the cumulative effect, the totality of the circumstances.

[00:09:27] Speaker 00:
The board failed to properly analyze the case the first time and the second time.

[00:09:35] Speaker 00:
And so regardless of whether the

[00:09:39] Speaker 01:
In the first time the board cited Burbano, so are you also saying that the IJ didn't consider everything?

[00:09:47] Speaker 00:
Judge Richardson did pay lip service to the correct legal standard in his decision.

[00:09:52] Speaker 00:
I'll concede that.

[00:09:53] Speaker 00:
But then, so the board in that first decision cites the matter of Burbano, but then there's that strange sentence right after the parenthetical.

[00:10:03] Speaker 00:
The respondent has not shown exceptional, extremely unusual hardship to a qualifying

[00:10:09] Speaker 00:
Relative.

[00:10:10] Speaker 00:
So how old are the kids now?

[00:10:12] Speaker 00:
I believe the oldest is 19.

[00:10:16] Speaker 00:
And I can't track the rest of them, Your Honor.

[00:10:18] Speaker 02:
Well, it's been a long time.

[00:10:20] Speaker 00:
It has.

[00:10:20] Speaker 02:
It's been going on a long time.

[00:10:22] Speaker 02:
So they're a lot older now, right?

[00:10:24] Speaker 00:
Correct.

[00:10:25] Speaker 00:
Correct.

[00:10:26] Speaker 02:
If they were all over 18, would that make a difference now?

[00:10:29] Speaker 00:
No, Your Honor, for two reasons.

[00:10:32] Speaker 00:
One, as long as they're under 21, they're still qualifying.

[00:10:35] Speaker 02:
So if they were all over 21, would that make a difference?

[00:10:38] Speaker 00:
I've made the argument a number of times that no, that this court's decision deferring to the board's analysis on that issue, that once the children are over 21, they cannot be qualifying relatives, and the ages are set when the judge makes the decision.

[00:10:57] Speaker 02:
Well, if they were all over 40, would that make a difference?

[00:11:00] Speaker 02:
At some point, does their age make a difference?

[00:11:03] Speaker 00:
At some point, yes.

[00:11:04] Speaker 00:
I'll concede that.

[00:11:05] Speaker 02:
OK, that much.

[00:11:07] Speaker 00:
I'll concede that at some point.

[00:11:08] Speaker 00:
However, this is a future-oriented analysis.

[00:11:11] Speaker 00:
The matter of Figueroa says that.

[00:11:14] Speaker 00:
Do you want to save any time for rebuttal?

[00:11:15] Speaker 00:
You didn't tell me that.

[00:11:16] Speaker 00:
I was about to ask for that.

[00:11:18] Speaker 00:
So I'll just make my real quick point that it is a separate legal issue regarding this age-out question.

[00:11:24] Speaker 00:
And I'd be happy to brief that issue.

[00:11:26] Speaker 00:
I've actually briefed it any number of times to this court.

[00:11:28] Speaker 04:
But I haven't said it on any theory now, so it doesn't matter.

[00:11:33] Speaker 00:
Right.

[00:11:34] Speaker 00:
OK.

[00:11:35] Speaker 00:
I'll save the rest of my time for rebuttal.

[00:11:36] Speaker 00:
Thank you.

[00:11:38] Speaker 02:
All right, we'll hear from the government.

[00:11:42] Speaker 03:
Good morning.

[00:11:43] Speaker 03:
Good morning.

[00:11:44] Speaker 03:
May it please the court, Your Honors.

[00:11:46] Speaker 03:
Joanna Watson on behalf of the government.

[00:11:49] Speaker 03:
Substantial evidence supports the agency's determination that Mr. Viqueur did not demonstrate the requisite hardship in the instant case.

[00:11:58] Speaker 03:
I mean, these cases are all very sad, and nobody wants to lose a parent to have to go back to the removal country.

[00:12:06] Speaker 03:
But we have the five kids, none of them have anything significant.

[00:12:11] Speaker 03:
You know, they've had some learning disabilities that appears, some treatable conditions, and none of that, you know, cumulatively reaches that high standard of exceptional.

[00:12:28] Speaker 04:
This is the key question here.

[00:12:29] Speaker 04:
I mean, first of all, do you agree that the, I think the board did agree, I think you did agree in the,

[00:12:35] Speaker 04:
in your brief that the board on reopening applied the wrong reopening standards.

[00:12:42] Speaker 04:
Correct.

[00:12:43] Speaker 03:
And so the question is, what do we do about that?

[00:12:46] Speaker 03:
If anything?

[00:12:47] Speaker 03:
Well, I argued, you know, I see, you know, conceded that in the brief, but futility and park I've raised.

[00:12:59] Speaker 03:
I mean, this, what, what would happen if this got sent back?

[00:13:03] Speaker 03:
For the reasonable likelihood is the board is just going to reach the same conclusion with slightly different terminology.

[00:13:10] Speaker 03:
There I mean he on reopening.

[00:13:13] Speaker 03:
You know he he submitted they moved out of the house.

[00:13:19] Speaker 03:
One of the top children who is actually you were asking the age of the children now and at the time of the hearing there were 68911 and 13 and now they are.

[00:13:31] Speaker 03:
15, 14, 19, 17, and the oldest daughter is 20, who had the learning disabilities and behavioral issues.

[00:13:41] Speaker 03:
And so they moved out of the house.

[00:13:44] Speaker 03:
She had continued issues in school, but assuming she's graduated, I think by now, and then one of the other children,

[00:13:52] Speaker 03:
was being evaluated or had an IEP in place for some learning issues.

[00:13:59] Speaker 03:
But it showed that the mother is still in their lives.

[00:14:03] Speaker 03:
She was listed on the form to contact for the IEP.

[00:14:09] Speaker 03:
And the only reason she didn't participate was because she was unfamiliar with technology during the pandemic.

[00:14:17] Speaker 02:
So why isn't the change of the children's stomacelle

[00:14:21] Speaker 02:
require a re-evaluation of the hardships inherent in Mr. Vaquera's removal?

[00:14:28] Speaker 02:
What factors indicate a remand would be futile?

[00:14:32] Speaker 03:
Because of the fact that nothing has changed about where the children will remain in the United States, which is unlike Maduro Racinas, where you had a single mother who had custody of five or six children, and she had no other support.

[00:14:51] Speaker 03:
and had family in the United States.

[00:14:54] Speaker 03:
In this case, there's no indication that they wouldn't be able to live with the mother.

[00:15:01] Speaker 03:
There's nothing in here.

[00:15:03] Speaker 03:
So they're at board presidential case that says that, you know, assuming if there's not evidence to the contrary, you assume that the children are going to remain with the parent that remains in the United States.

[00:15:17] Speaker 03:
And there's no indication here.

[00:15:19] Speaker 03:
You know, they're in the same town, like you could take judicial notice of the addresses.

[00:15:23] Speaker 03:
They live three miles apart.

[00:15:25] Speaker 03:
So I would think the mother is still very much in their life.

[00:15:29] Speaker 03:
And she talks about also all the other children that had moved out of her house.

[00:15:33] Speaker 03:
So it seems like it's possibly a less chaotic situation now.

[00:15:37] Speaker 03:
And then getting to the medical issues, they were all treatable conditions and they'd still be able to maintain their insurance.

[00:15:47] Speaker 03:
or be treated at the native hospital, because the mother's Native American and presumably has a lot of resources based on that.

[00:15:56] Speaker 03:
And I mean, I concede that these cases are sad, but it's a high bar.

[00:16:04] Speaker 03:
And even with the reasonable likelihood, changing that, the board applying that standard, there just isn't, but it hasn't been met.

[00:16:15] Speaker 03:
Even under a reasonable because that's all we have is as another child with an IEP and.

[00:16:22] Speaker 03:
You know, another child who is having behavioral issues in school is presumably graduated at this point.

[00:16:31] Speaker 01:
Don't we have to speculate to reach that result though?

[00:16:33] Speaker 01:
I mean, the board applied the wrong standard.

[00:16:35] Speaker 01:
It should have been a more lenient standard.

[00:16:37] Speaker 01:
There was a change because the first decision relied on the resources in the group house.

[00:16:44] Speaker 01:
They moved out for some reason, which suggests that the group house isn't functioning very well.

[00:16:49] Speaker 01:
So how is it not possible that under a less lenient or under a more lenient standard, the board would think of this differently?

[00:16:58] Speaker 03:
Because it's his burden and he presented no evidence whatsoever.

[00:17:06] Speaker 03:
that his partner, which she actually referred to as partners, if they're like still together in the letter she submitted at the beginning of it, there's no indication that she would not be able to take in these kids.

[00:17:20] Speaker 03:
And that was his burden.

[00:17:22] Speaker 03:
I mean, if this was a different scenario, you know, you had a child who's in the hospital with a debilitating condition and

[00:17:30] Speaker 03:
they were going back with him and there's no indication that you'd be able to get medical, you know, the children would get medical care or they had severe, severe learning disabilities and things like that.

[00:17:41] Speaker 03:
And they were going back to Mexico, which is the matter of Rosina's scenario, which petitioner keeps repeatedly relying on, which is a completely different scenario.

[00:17:53] Speaker 03:
There just isn't, there isn't enough.

[00:17:55] Speaker 03:
They moved out, but there's,

[00:17:58] Speaker 03:
There's no indication that the mother would not be able to care for these children, particularly.

[00:18:03] Speaker 02:
Are you aware of any case where someone takes a voluntary action of moving out, say?

[00:18:11] Speaker 02:
Any case that says that a voluntary action to make your circumstances worse, you can't take advantage of that?

[00:18:21] Speaker 02:
Or is there anything out there on that point?

[00:18:25] Speaker 03:
I can't think of anything off-hand.

[00:18:28] Speaker 02:
If I do, I'd be happy to submit a 28-day after the fact, but I can't think of... Well, your friend on the other side said he's not aware of anything that...how the voluntary...it just seems like if...that we wouldn't want a situation to incentivize people to make their situation worse so that they could have a redo, but on the other hand, he wasn't aware of anything.

[00:18:51] Speaker 02:
You're not either.

[00:18:53] Speaker 03:
No, I'm not aware of anything.

[00:18:55] Speaker 03:
And actually, you know, this could be looked at almost as, I mean, I don't want to, you know, he owns a house now.

[00:19:03] Speaker 03:
He has a house he could sell and have equity to actually help support his kids and help this transition.

[00:19:09] Speaker 03:
But I don't, I'm saying it could be looked at from that perspective.

[00:19:14] Speaker 03:
But the board here, even under the likely, reasonable likelihood standard, there's just,

[00:19:20] Speaker 03:
There just isn't enough here.

[00:19:22] Speaker 03:
You know, I would say if he had shown like the mother was just completely out of their lives, which was the situation when we're seeing us, she had received like $150 a month in child support that had stopped and the father was nowhere to be found.

[00:19:39] Speaker 03:
We just don't, we don't have a situation like this.

[00:19:42] Speaker 03:
And it was his burden to show, you know,

[00:19:48] Speaker 03:
a reasonable likelihood, and he hasn't shown that his wife, not his wife, his partner would not be able to take in these kids.

[00:19:58] Speaker 03:
And then you have in the underlying case too, she had taken in nieces and nephews, and I think a son was stabbed and she took in the grandchildren for a while, but that was a temporary situation.

[00:20:10] Speaker 03:
So based on this woman's actions and adopted children, on having so many children,

[00:20:17] Speaker 03:
There's just nothing here that she wouldn't take those children in.

[00:20:27] Speaker 03:
So if there's no further questions, I would ask that the court deny the petition as to the first petition because there was no exceptional and extremely unusual hardship.

[00:20:40] Speaker 03:
And as to the second petition, if the court truly believed that a reasonable likelihood standard would have changed the board's analysis, I'm not saying it would.

[00:20:54] Speaker 03:
I'm saying they'd reach the same finding, but just using different terminology.

[00:20:59] Speaker 03:
But if the court would find that, then you could remand that case separately.

[00:21:06] Speaker 03:
But there'd be no reason under the first one.

[00:21:09] Speaker 03:
But ultimately, it had

[00:21:11] Speaker 03:
request the court to deny the petition as to both cases.

[00:21:15] Speaker 02:
All right.

[00:21:15] Speaker 02:
Any additional questions?

[00:21:17] Speaker 02:
They're not, do not appear to be.

[00:21:19] Speaker 02:
Thank you for your argument.

[00:21:21] Speaker 02:
Thank you.

[00:21:22] Speaker 02:
All right.

[00:21:23] Speaker 02:
Mr. Weisinger, are you, or Weesinger?

[00:21:25] Speaker 02:
It's Weesinger.

[00:21:26] Speaker 02:
Thank you.

[00:21:26] Speaker 00:
Weesinger.

[00:21:27] Speaker 02:
Thank you.

[00:21:27] Speaker 02:
I know the German, you pronounce the second vowel, right?

[00:21:31] Speaker 02:
I should get that right on the second day.

[00:21:33] Speaker 00:
Thank you, Your Honor.

[00:21:37] Speaker 00:
reaching the same conclusion based on using slightly different language.

[00:21:42] Speaker 00:
That's got to bother you a little bit.

[00:21:45] Speaker 00:
What Miss Watson is essentially saying is that remand is useless because the board is just going to deny it again.

[00:21:54] Speaker 00:
And they'll incorporate the right magic language.

[00:21:57] Speaker 02:
When you're a trial judge, you make those sort of decisions all the time.

[00:22:01] Speaker 02:
If there's errors all the time, and you decide that they're harmless or prejudicial,

[00:22:05] Speaker 02:
And so here, it's basically, is it futile?

[00:22:08] Speaker 02:
And if you think that it's basically, it's a change without, yes, you acknowledge that it's a change, but under the circumstances, you can't see any reasonable juror or any jurist reaching a different conclusion.

[00:22:24] Speaker 02:
The law does allow you to find futility, right?

[00:22:27] Speaker 00:
It does.

[00:22:29] Speaker 04:
We don't have a harmless error standard in immigration cases.

[00:22:33] Speaker 04:
No, we do not.

[00:22:35] Speaker 04:
It's sort of complicated.

[00:22:36] Speaker 04:
It's partly for a chennery sort of reason in that we're not supposed to decide things.

[00:22:42] Speaker 04:
The board's supposed to decide it.

[00:22:44] Speaker 04:
And the ordinary remand rule and all that.

[00:22:46] Speaker 04:
So if they made an error, there's a little carve out for futility, which is something different than harmless error, I gather.

[00:22:56] Speaker 04:
I mean, what is the standard for how obvious it has to be that this is useless?

[00:23:05] Speaker 04:
for us to not remand.

[00:23:08] Speaker 00:
That's a tough question, Judge Berzon.

[00:23:10] Speaker 04:
Of course it's a tough question.

[00:23:12] Speaker 00:
You know, if I'm being completely frank.

[00:23:15] Speaker 04:
Well, I certainly would want you to be.

[00:23:17] Speaker 04:
That's what you're here for.

[00:23:18] Speaker 00:
Do I have confidence that the board's going to do the right thing, given a third chance?

[00:23:23] Speaker 00:
No, not much.

[00:23:25] Speaker 00:
Not without this court telling it to.

[00:23:26] Speaker 04:
You don't have to have confidence that they will.

[00:23:29] Speaker 04:
I mean, that's what I'm asking you.

[00:23:33] Speaker 04:
Where does this futility standard come from?

[00:23:36] Speaker 04:
We have a case that says the standard's futility.

[00:23:39] Speaker 00:
No, no.

[00:23:40] Speaker 00:
But not that I know of at any rate.

[00:23:43] Speaker 00:
But the court, your question speaks to whether remand would be any good, would make any difference.

[00:23:54] Speaker 04:
And all we can do from a- How sure do we have to be that it wouldn't make any difference?

[00:23:57] Speaker 04:
That's what I'm asking you.

[00:23:59] Speaker 00:
I think this court would have to be 100% sure.

[00:24:01] Speaker 00:
that it would make zero difference in order to not remand.

[00:24:04] Speaker 02:
But frankly, you're 100% sure it's not going to make any difference.

[00:24:08] Speaker 00:
Is that what you're saying?

[00:24:10] Speaker 00:
That's the cynic in me speaking, Your Honor.

[00:24:12] Speaker 00:
Doing this for a long time and knowing that the Board of Immigration Appeals, ever since we've seen this, has almost been walking that decision back with the few published cases that have come out, with the published case that's come out last year,

[00:24:26] Speaker 00:
about children with autism not rising to the level of exceptional and extremely unusual hardship.

[00:24:33] Speaker 00:
So it's the cynic in me saying it's probably not going to make a difference, but it should and the court should make sure that we tell the board that this is the standard and to properly decide this case on the right standard.

[00:24:45] Speaker 00:
Thank you very much for the time, Your Honors.

[00:24:47] Speaker 00:
I appreciate it on behalf of my colleagues.

[00:24:48] Speaker 02:
We won't see you again because this is our last day.

[00:24:51] Speaker 00:
This is our last day here.

[00:24:51] Speaker 00:
Have a good weekend.

[00:24:52] Speaker 00:
Thank you, Your Honor.

[00:24:53] Speaker 02:
Thank you to the government as well.

[00:24:55] Speaker 02:
This matter is submitted.