[00:00:00] Speaker 04: Thank you. Thank you, Your Honors. Thank you. The next case is Martinez-Hernandez versus Blanche. [00:00:10] Speaker 04: Give counsel a moment to come forward. [00:01:08] Speaker 04: YOU MAY PROCEED. [00:01:10] Speaker 00: THANK YOU. [00:01:12] Speaker 00: GOOD MORNING, YOUR HONORS, AND MAY IT PLEASE THE COURT. MY NAME IS LYDIA, AND I REPRESENT THE PETITIONER, MR. DANIEL MARTINEZ-HERNANDEZ, ALONG WITH MY CO-COUNSEL, KAYIN MCCLEARY AND KARI HONG. [00:01:26] Speaker 00: I WILL LEAVE THREE MINUTES FOR REBUTTAL AND I WILL WATCH THE CLOCK. [00:01:31] Speaker 00: THIS CASE IS ABOUT A DETAINED, ILLITERATE, MENTALLY ILL MAN WHO WAS DENIED A FAIR HEARING before the Executive Office of Immigration Review. [00:01:42] Speaker 00: Because this competency in this case affects everything else here, I will start with that and move on to the Convention Against Torture, particularly serious crime and asylum issues, if time allows. [00:01:54] Speaker 00: Moving first to competency, the critical error in this case, which affects all other issues. [00:02:01] Speaker 00: Due process requires that individuals before the EOIR must be competent to proceed. They must have a rational, factual understanding of the nature and object of the proceedings, be able to consult with counsel if available. [00:02:16] Speaker 04: Because your time is limited, let me just start asking you some questions here. In the PSC determination, I think you're arguing, I believe, that the sentence imposed by the state court cuts against the BIA's PSC finding, but it seems or it appears that the BIA and IGA did consider the terms of the sentence imposed. So I was just curious to find out what would you have wanted the agency to have done differently here? [00:02:49] Speaker 00: I think the critical error that we spoke to in the particularly serious crime piece is ensuring limitations on what evidence can be considered and how it's used in making that PSC determination There, Alcarez Enriquez versus Garland does require certain limitations on hearsay evidence. These have the same reliability concerns in that context as anywhere else. The agency, the IJ, relied heavily on the affidavit of probable cause and hearsay therein and did not give Mr. Daniel Martinez-Hernandez the opportunity to confront the witnesses against him did not require the Department of Homeland Security to procure the witnesses against him. [00:03:37] Speaker 04: So you're going to the right to cross-examine then in challenging the sentence imposed, in questioning the sentence imposed? Because it seems like it appears that what you have to do is see if the BIA and the IEJ considered the terms of the sentence imposed, and it looks like they did. So I was just trying to figure out if there was anything else to that. [00:04:12] Speaker 00: Yes, Your Honor. Of course, the agency can look at a wide array of evidence in making its particularly serious crime consideration. I think there were multiple errors here. [00:04:25] Speaker 00: In part, they did misstate the significance of the Alford plea, not allowing him to assert his innocence in this new venue. Additionally, in terms of the facts of the sentence themselves, the facts of the sentence I don't believe were fully considered by the agency there. [00:04:49] Speaker 03: How do we know? I mean, what tells us that the BIA... [00:04:54] Speaker 03: stated that he was sentenced to a suspended term of between two to nine years in prison and five years of probation. The IJ noted that he was required to pay a fine. I'm just not sure what tells us that they didn't fully consider the terms of the sentence here. [00:05:14] Speaker 00: Your Honor, they did not consider that he was given credit for time served. [00:05:19] Speaker 00: They... [00:05:22] Speaker 00: I do not believe looked correctly at the sentence, which was five years probation and a two to nine-year term. [00:05:35] Speaker 02: But that's all in the VA's opinion. [00:05:38] Speaker 04: Trying to figure out what makes you argue that when it's reflected in the record that it appears that they did. [00:05:46] Speaker 00: Your Honor... [00:05:52] Speaker 00: terms of the what they didn't consider as far as the actual sentence in the Idaho Court my understanding is that they relied more so on the possible sentence rather than what actually was served by mr. Martinez Hernandez additionally they relied more so on what was charged rather than the facts of the conviction and the sentence, which were that he was not required to register as a sexual offender. [00:06:24] Speaker 00: And he was ultimately served two years of the sentence. [00:06:33] Speaker 04: It seems like the IJ may consider all reliable evidence. That's our case law. And so I'm just trying to figure out how the IJ would have a abused its discretion in not considering, um, the Alford plea or any of the other sort of, um, points that you're raising here, um, that, uh, the IJ didn't do, um, when the IJ can consider so much. Um, if we can move, you know, you're on to the, what you assert is the right to cross-examine a witness, um, and, uh, that I guess comes up when there are contested facts. [00:07:20] Speaker 04: Did petitioner here contest the facts within the probable cause affidavit at the merits hearing? [00:07:29] Speaker 00: Yes, Your Honor. In terms of, I do just want to say one thing about the Alford plea, which you mentioned. I think it's important here that Mr. Martinez-Hernandez did try to dispute the underlying conviction and the facts from that underlying conviction repeatedly, including by pleading Alford. The immigration judge incorrectly told him that he pled guilty and there was no way he could assert his innocence. [00:08:00] Speaker 00: That is a misstatement of the significance of an Alford plea, and he also asserted his innocence on page 131 and 151 of the record. Therefore, he was disputing the allegations in the affidavit of probable cause as well as his innocence writ large. [00:08:20] Speaker 02: On appeal to the BIA, he didn't contest the facts of conviction. He didn't indicate any wish to cross-examine the victim or the drafter of the probable cause affidavit, didn't challenge the immigration judge's consideration of the probable cause affidavit. So why have you failed haven't you failed to exhaust this procedural due process claim? [00:08:47] Speaker 00: Your Honor, before the BIA... And I'm looking at the brief right now. [00:08:53] Speaker 02: It just raises all that categorical approach, modified categorical approach arguments that are in your brief to us. I don't see anything actually challenging the probable cause affidavit. [00:09:06] Speaker 00: Your Honor, before the BIA, the pro se brief raised the issue of withholding of removal, which was denied on particularly serious crime grounds on the administrative record at page 12 in 77 and 79. The BIA squarely addressed this issue, so I believe this was exhausted twice over, and the BIA addressed this issue on... Addressed the issue of the right to cross-examine? [00:09:35] Speaker 00: Your Honor, address the issue of the particularly serious crime piece. [00:09:39] Speaker 02: Right. So are you saying if an agency addresses the merits, then any procedural argument with regard to that claim is also exhausted? Is that your argument? [00:09:49] Speaker 00: Your Honor, my argument is that pro se briefs should be construed liberally. He did raise the withholding issue, and the BIA addressed the particularly serious crime issue, and therefore— it's exhausted under this. [00:10:04] Speaker 02: But how was the agency supposed to just figure out that he's raising a claim that he didn't raise regarding the right to cross examine? [00:10:15] Speaker 00: Your honor. I think ultimately what this goes back to is that Mr. Martinez Hernandez was denied a fair hearing before the EOIR. [00:10:26] Speaker 00: And he therefore was unable to, uh, effectively contest evidence, effectively confront the witnesses against him. [00:10:35] Speaker 02: But where's the prejudice here? I mean, he himself admitted to sexually abusing the victim six to eight times when she's eight years old. [00:10:44] Speaker 02: And so where's the prejudice here? Whether it's six to eight times or more times than the victim can count, whether it's when the victim was eight years old versus when she was five to 14 years old. Either way, it seems like there's definitely enough facts here for the convictions. [00:11:03] Speaker 00: Your Honor, we're not challenging, obviously, the conviction before this court. [00:11:09] Speaker 00: There is many reasons that people confess early on in police interrogations. In fact, it's been shown that folks of limited English proficiency falsely confess at higher rates. What we're requesting here is that he be given an opportunity to effectively represent himself and understand the proceedings before the Executive Office of Immigration Review, that he be given the opportunity to contest the particularly serious crime finding, as well as all the other findings that we raised in our briefing. [00:11:45] Speaker 02: And that is... You know, on the mental competency, we normally have something more than just unclear testimony. And in this case, Mr. Martinez-Hernandez, when he entered his Alford plea on his criminal case, which was just five months before the immigration merits hearing, he said, I don't have a mental disorder. I, you know, mentally understand what's happening. He, you know, I've not been diagnosed with a mental health disorder. [00:12:16] Speaker 02: I'm not under the care of a mental health professional. I'm capable of understanding these proceedings. I'm not claiming that I'm mentally incapable of understanding these proceedings. [00:12:27] Speaker 00: Your Honor, if you're referring to the I-213 and the underlying criminal forms, those were not filled out by Mr. Martinez-Hernandez. We do have unresponsive answers to questions. We do have inability to respond to questions. We have mental illness and we have illiteracy all present before. [00:12:46] Speaker 02: Well, I'm talking about the guilty plea form where he had both a Spanish interpreter and counsel. [00:12:51] Speaker 00: Yes, Your Honor. [00:12:54] Speaker 00: My understanding is that the standard in the criminal context is different than the standard here where my client was not entitled to counsel. So I think that before the EOIR, we have myriad indicia of incompetency. We can consider all those indicia together according to Lemus Rodriguez versus Bondi. The EOIR did not do that and Therefore, he was denied a fair hearing, denied the rigorous procedural safeguards that are required in that context. [00:13:36] Speaker 04: Beyond your time. [00:13:37] Speaker 00: Yes, Your Honor. Thank you. [00:13:52] Speaker 01: May it please the Court, Rebecca Hofberg Phillips, on behalf of the United States Attorney General. [00:13:58] Speaker 01: There are a number of issues in this case that have been unexhausted and therefore unreviewable, and the remaining issues warrant denying the petition for review. I'm going to start with the particularly serious crime inquiry, as this Court has chosen to largely focus on that at this point. [00:14:14] Speaker 01: Your Honors are absolutely correct that the right to cross-examination exists, but it must be raised before the agency. It was neither raised before the IJ nor raised before the board, and therefore it was unexhausted. The idea that you can just raise a withholding of removal claim and dispute that on the merits and somehow expect that that is a challenge to a particularly serious crime finding at all is beyond credulity in the first place. But then to extend that further and to decide that that would actually warrant exhaustion of a procedural due process claim, as this court has recognized, is even further strained. [00:14:54] Speaker 01: There was absolutely no allegation of any due process violation before the IJ or before the board. This court should not reach any issue related to that. [00:15:04] Speaker 02: But wouldn't you agree that the BIA does seem to have credited the testimony of the victim over the petitioner? [00:15:14] Speaker 02: He said anything only happened when she was eight. [00:15:18] Speaker 02: Only the victim said it happened over the nine years that she was 5 to 14, and that's what they say in their decision. [00:15:25] Speaker 01: I think because nothing was raised about the particularly serious crime determination, obviously the government believes the board should have just deemed it waived and not decided anything at all. But because the board did say something about the particularly serious crime determination, yet nothing was raised about it before the board. [00:15:43] Speaker 04: Did the petitioner contest any facts within the probable cause affidavit At the merits hearing? No, Your Honor. And would it be enough, though, that his account of the criminal conduct differed from the victim's account in the affidavit? [00:16:00] Speaker 01: If he had raised before the agency that he wanted cross-examination of the witness or the author of the document, that would have been something for the agency to consider. [00:16:12] Speaker 01: Our position at this point is that he didn't do that, and nevertheless, it doesn't matter, because to this very moment, he's not disputing his own statements in that probable cause affidavit, which is the fundamental point here that your honors have already picked up on. What's the difference between he sexually harmed someone while she was eight for a year versus numerous years? Sure, it's horrible if it were numerous years. It's also horrible that it was one year. It's also horrible that it was an eight-year-old. when has he ever disputed these basic facts underlying the particularly serious crime determination? [00:16:46] Speaker 01: He has not. And the fact that he says, I did not do this, that's exactly consistent with an Alford plea. And I just want to go through that very quickly. An Alford plea is when you recognize that the prosecution has the facts against you to secure the conviction, but you are nevertheless saying that you're innocent. In this case, that's what he did. He submitted an Alford plea. Just because he submitted an Alford plea, does that mean in every case when there's an Alford plea, we find someone innocent and that they didn't do anything wrong? [00:17:16] Speaker 01: It defeats the whole point of having a conviction in the first place. So if you're going to say that you didn't do something wrong, okay, in this case, it seemed like he didn't do what he was initially accused of, which was much more of the sexual offenses. What he was ultimately found convicted of, which is what the agency recognized, was the felonious injury to a child. Right. [00:17:35] Speaker 03: The assertions, I believe, were just that he didn't do it. [00:17:39] Speaker 01: Exactly. [00:17:39] Speaker 03: Your honor. It's a little unclear about maybe what he actually did. [00:17:44] Speaker 01: Exactly. And that's different than saying I did not do a single thing that they're saying I said that I did in that probable cause affidavit. There's a huge difference in that. And they're still not saying that now. I still haven't seen in the opening brief or the reply brief, which would be impermissible at this point anyway because it would not be facts on the record, but they're not even suggesting that his own statements in that probable cause affidavit should be discounted. Now, the agency did identify what the witness said happened, and to the extent that he's conflicting with that, perhaps that that was not correct to do that, but it doesn't make a difference, and he didn't raise it. [00:18:21] Speaker 01: And so the fact of the matter is that there is no prejudice in this case, even if there was a reviewable due process claim, which the court should find that there is not. [00:18:29] Speaker 02: Because when you commit an injury upon a child of this nature with this – So you're saying go on – you would advocate for going on exhaustion and prejudice, but you actually might concede there might be error. [00:18:42] Speaker 01: To the extent, if he had raised it, the agency would have had a chance to do the cross-examination and evaluate – But if just for argument's sake you want to say that there was conflicting accounts and the agency seemed to give some credit to what the witness said, arguably I will say the IJ did not specifically find that. They said abuse to a child over a period of time, over a long period of time. [00:19:10] Speaker 02: No, I'm pretty sure the IJ and the BIA said 5 to 14 years old. [00:19:15] Speaker 01: Well, in the IJ's conclusion, he said harm to a child over a long period of time is why I'm finding this to be a particularly serious crime without putting a timestamp on it. But let's just say that they looked at the witness statements again. Let's say that they did. The fact is, again, Your Honor, I completely agree, unexhausted and lack of prejudice because under this court's case law, you shouldn't be able to review this in the first place. And even if you did, you should find that consistent with the other cases, this type of crime cannot be in doubt to be particularly serious. [00:19:48] Speaker 01: It is against a child, and any documents can be reviewed. As this court has already recognized, we are not confined to the modified categorical approach or the categorical approach in this case. [00:20:00] Speaker 02: There's a sentence that says the factual basis for the respondent's conviction is that the respondent committed a series of lewd and lascivious acts upon a minor who was under the age of 16, namely between her ages of 5 and 14 years. [00:20:11] Speaker 02: And these acts are described in the criminal complaint. I agree that he does later say that the crime was perpetrated over a long period of that child's life. But it does seem like he is crediting the complaint there, and that isn't what the petitioner pled guilt or made the Alford plea to. [00:20:37] Speaker 01: I took that to mean he's looking, that's where the factual basis is contained. It's titled the lewd and lascivious acts against a child. That's where that complaint, I thought he was more identifying where he was finding that because that original complaint is the one that's in the record. And so he's looking at the evidence, but then recognizing, of course, that the actual conviction was for a crime of violence under a different section. So this is, I'm sorry, to clarify, this is on page 88 of the record. [00:21:03] Speaker 01: And you can see where the IJ starts off by identifying the factual basis, but I think he's really just identifying the document that he's looking at. And then he's going through and saying he was convicted of this crime. It states, you know, these things about his offense in addition to the sentence, in addition to the fine, and then concludes the fact that he has been convicted of a crime that was perpetrated on a young child over a long period of that child's life and continue to commit these offenses. And then from there, at the bottom of 88. So that's how he bases his conclusion without making those specific facts about the original charge. [00:21:36] Speaker 01: So our position is that no error was made because he didn't challenge that finding of the IJ to the board in any way, and that the board addressed particularly serious crime merely to really rubber stamp what the IJ did because the board really could and should have found that it was deemed waived by completely failing to address it, but nevertheless said something. To the extent that it's before the court, the actual arguments on cross-examination and due process are required under Alcariz and Riquez and subsequent cases looking at it, they have required exhaustion of those issues. [00:22:08] Speaker 01: It's if the petitioner raises them. That much is very clear, you know, in cases that have since relied on them. I can just give you, for example, Feng v. Garland, 2023, Westlaw 2707188, It says, and if a petitioner objects to the admission of the interviewing officer's notes or contests a portion of the documents, it's along those lines. That's an example. It's if it's raised. And in Alcarez itself, it was raised. It was not raised here. [00:22:39] Speaker 01: I'd like to move on unless the court has any other questions because we do have other issues. I wanted to address the mental competency finding in this case and also the deferral. In this case... [00:22:52] Speaker 01: I would actually like to just say that with respect to mental competency, the only reason why documents would be presented is if there was an indicia of mental competency. And here you have someone who was illiterate, not very skilled at answering questions, but that describes most petitioners, Your Honors. And if that were the test, everyone would be considered incompetent just based on the fact that they lack education or they're not as eloquent necessarily. In this case, there was nothing on the record. There was nothing indicating an indicia of mental incompetency that would have potentially called it into question to trigger any of those further processes that go along with that. [00:23:31] Speaker 01: I would like to point out that he only vaguely asserts to what mental competency he may or may not have had at the time. I did actually take it upon myself to try to figure out if there was anything, because really what he should have done is presented documents to the board if he wanted to raise mental competency for the first time. As far as I can tell, before the IJ, he had no medical history at that point, and that was based on an intake form that DHS had. [00:24:02] Speaker 01: And again, this is not in the record because he chose not to try to present this kind of evidence. So I'm not advocating for the court to consider it. But at the time of the IJ's decision, it doesn't appear that there was anything to point to both from a medical perspective or from him raising it at all. So to say that there was any obligation on behalf of the government, I don't know where that obligation would have possibly come from. He raises it for the first time on appeal to the board, makes vague statements without actually supporting it with a shred of evidence, and then before this court expects the IJ should have conducted a competency hearing when in fact nothing was raised to indicate that he lacked competency. [00:24:39] Speaker 01: And my brief goes through exactly the scenarios that my opposing counsel points out, that say this shows incompetency when, in fact, he was answering the questions perhaps imperfectly. I see that my time is out. Unless the Court has any further questions, the government will rest on its brief. I'm happy to address the deferral. I know we didn't get to that, but I don't know if the Court has further questions. [00:24:58] Speaker 04: Thank you. [00:24:58] Speaker 01: Okay. Thank you, Your Honor. [00:25:05] Speaker 04: Ms. Dallin-Gore, you're out of time, but I'll give you one minute. Thank you. [00:25:14] Speaker 00: Thank you, Your Honor. [00:25:15] Speaker 00: I'd like to address two points on rebuttal. [00:25:18] Speaker 00: First, Mr. Martinez-Hernandez did assert his innocence through an Alford plea. I believe opposing counsel conflates a no-low contingent and an Alford plea. [00:25:31] Speaker 00: The Alford plea is a constitutional right to be able to maintain your innocence while pleading guilty. That is what he did at the state court's level. [00:25:41] Speaker 04: Moving to... No, an offer plea is not a plea of innocence. It's a plea that they agree that the government could possibly prove what they say they're going to prove, but there's no statement. It's not a piece of exculpatory evidence. It's not a plea of innocence. [00:26:03] Speaker 00: Your Honor, it does have the same, of course, procedural impacts. Moving to whether or not he specifically... [00:26:11] Speaker 00: asserted an issue with the hearsay evidence. That's the point. He needed procedural safeguards here, given that there was a dish of incompetency before the IJ. I see that my time has elapsed. I'll submit my case to the court if there are no further questions. [00:26:26] Speaker 04: Thank you. Thank you. Thank you, Ms. Del Nogari and Ms. Phillips. Really appreciate your oral argument presentations. The case of Martinez-Hernandez v. Blanche is now submitted. And we are adjourned. Thank you very much.