[00:00:00] Speaker 01:
Okay, I'm just going to reserve two minutes for rebuttal, Your Honors.

[00:00:02] Speaker 01:
May I please the court, Siobhan, Sheridan, Ayala... Could you speak up or into the microphone?

[00:00:07] Speaker 01:
Yes.

[00:00:08] Speaker 01:
May I please the court, Siobhan, Sheridan, Ayala, on behalf of Mr. Odia Sepulveda, petitioner.

[00:00:14] Speaker 01:
In this case, we're asking the court to remand the case, the board to correct errors from the board's decision below.

[00:00:23] Speaker 01:
First of all, the board indicated under

[00:00:28] Speaker 01:
previous law that it would have been there was no prejudice in denying a motion to reopen because the decision for cancellation of removal was unreviewable at that time.

[00:00:41] Speaker 01:
And in the interim we've had Wilkinson and so the board does review mixed questions of law and fact.

[00:00:52] Speaker 01:
However, I think that the board did apply the wrong standard.

[00:00:57] Speaker 01:
It indicated that it recognized there was a rebuttable presumption of prejudice when an appeal was not filed.

[00:01:10] Speaker 01:
However, it just glossed over that and then found that there was the presumption of prejudice was not rebutted in this case.

[00:01:19] Speaker 01:
And I think that is an error

[00:01:21] Speaker 01:
The standard is whether or not there's a plausible ground for relief.

[00:01:28] Speaker 01:
And Mr. Urias was able to show that he did have a plausible ground for relief.

[00:01:35] Speaker 01:
The previous council who filed the motion to reopen didn't file a plethora of evidence.

[00:01:41] Speaker 01:
However, there was an affidavit which indicated that the daughter had Well, in your supplemental opening brief at page 10, you state

[00:01:50] Speaker 04:
that quote unquote new evidence was offered in support of the motion to reopen.

[00:01:54] Speaker 04:
What was that evidence?

[00:01:56] Speaker 04:
Where might I find it in the record?

[00:01:58] Speaker 01:
It's at AR 28.

[00:01:59] Speaker 01:
It's 14, part of the affidavit.

[00:02:03] Speaker 01:
He says that his daughter has received many awards from her school, including a presidential award.

[00:02:09] Speaker 01:
The presidential award was submitted originally with

[00:02:13] Speaker 01:
the underlying application, but the fact that she had many awards was not.

[00:02:17] Speaker 01:
So it's an affidavit.

[00:02:20] Speaker 01:
That's the evidence that was submitted.

[00:02:22] Speaker 04:
So how would that change anything?

[00:02:23] Speaker 04:
I'm just not, I'm having difficulty in seeing how you could meet a plausible showing of relief.

[00:02:33] Speaker 01:
Well, Your Honor, the board has indicated in matter of pilch that educational opportunities can affect the hardship analysis.

[00:02:43] Speaker 01:
And so if the daughter had some exceptional abilities that were necessary for her education in the U.S.

[00:02:51] Speaker 01:
and if her father's deportation would have affected those educational opportunities, then that could qualify for exceptional, extremely unusual hardship based on the fact of how exceptional she was.

[00:03:02] Speaker 01:
or is, excuse me.

[00:03:06] Speaker 02:
What about the fact that there was another claim, another issue of ineffectiveness, which was the failure to file a timely, the prevention of filing a timely petition for review here, because you didn't tell them.

[00:03:24] Speaker 02:
You didn't argue that in your opening brief, I don't think, at all, is that right?

[00:03:29] Speaker 02:
But you did mention it in your supplemental brief?

[00:03:32] Speaker 01:
Yes, I mean, the failure of the previous attorney was multiple.

[00:03:38] Speaker 01:
I mean, he's been disbarred.

[00:03:40] Speaker 01:
And so he didn't, because the board did say they reopened the case based on a matter of lazada and then dismissed the motion to reopen at the same time.

[00:03:53] Speaker 01:
So the board did consider the fact that he didn't file the petition for review, but it

[00:04:02] Speaker 01:
It said it basically that it wasn't prejudicial.

[00:04:05] Speaker 01:
So did you go the Losada route?

[00:04:10] Speaker 01:
Yes, the motion to reopen is very full of Losada arguments.

[00:04:16] Speaker 04:
No, but did you comply with Losada?

[00:04:19] Speaker 02:
Yes, it was complied with.

[00:04:22] Speaker 02:
And they held it, you did.

[00:04:24] Speaker 02:
Mm-hmm.

[00:04:24] Speaker 02:
Yeah, they held it, you did.

[00:04:27] Speaker 02:
Yes.

[00:04:28] Speaker 02:
There was no petition for a view filed here and there should have been or could have been.

[00:04:33] Speaker 02:
Then what?

[00:04:34] Speaker 02:
I mean, the BIA found that there was no plausible grounds, but they were sort of predicting what we would do because it's a

[00:04:44] Speaker 02:
for review here, not with the board.

[00:04:47] Speaker 01:
Exactly.

[00:04:47] Speaker 01:
And I think the proper action that the board should have taken would have been to remand because... Remand why?

[00:04:54] Speaker 01:
Because the regulations specifically say that the board is not a fact-finding entity, and if there's fact-finding that needs to happen, it should be remand.

[00:05:03] Speaker 02:
What fact?

[00:05:04] Speaker 02:
We know that he didn't, in fact, that there was no petition for review filed here, and they seem to accept the notion that

[00:05:13] Speaker 02:
It was his fault and that it was an effective assistance that there wasn't one.

[00:05:17] Speaker 02:
Then what do we do next?

[00:05:20] Speaker 01:
What's the point of a remand?

[00:05:23] Speaker 01:
Well, it would be to develop the, because the Ninth Circuit or the board, they have to look at the facts that are established at the trial court level.

[00:05:32] Speaker 01:
And so the development of the trial court level.

[00:05:37] Speaker 02:
I'm sorry?

[00:05:38] Speaker 02:
We know what was established at the trial court level.

[00:05:40] Speaker 02:
The question is, what would the petition for review have said?

[00:05:44] Speaker 01:
Well, but the problem is that the facts established were faulty.

[00:05:48] Speaker 01:
I mean, they were not developed.

[00:05:49] Speaker 02:
But that's a different question from the one I'm asking.

[00:05:51] Speaker 02:
I want to focus on the fact that there was, because of his ineffectiveness, there was no petition for review filed in this court.

[00:06:01] Speaker 02:
that petition for review would have been based on the existing record, not some other record.

[00:06:06] Speaker 02:
So there's no point in a remand for that, because there's no fact finding to be done.

[00:06:11] Speaker 02:
So the question is, what do we do at that point?

[00:06:15] Speaker 02:
Do we then decide what we would have done had there been a petition for review filed?

[00:06:23] Speaker 02:
Or what do we do?

[00:06:25] Speaker 01:
Well, Your Honor, we would ask that the court remand the case.

[00:06:28] Speaker 01:
For what?

[00:06:29] Speaker 01:
for fact-finding because the motion to reopen was twofold.

[00:06:33] Speaker 01:
I understand it.

[00:06:34] Speaker 02:
I'm not asking about the first fold.

[00:06:35] Speaker 02:
I'm asking about the second fold.

[00:06:37] Speaker 02:
Okay.

[00:06:38] Speaker 02:
Just focus on that.

[00:06:39] Speaker 01:
Okay.

[00:06:39] Speaker 01:
So if you, if the court, so then I mean I guess the court could consider whether or not based on Wilkinson and Gonzales whether or not there is

[00:06:53] Speaker 01:
based on the mixed question of fact and law, whether or not there is enough evidence to indicate exceptional, extreme, and neutral hardship.

[00:06:59] Speaker 02:
In other words, we would essentially, in effect, be deciding the petition for review as if it had been filed.

[00:07:08] Speaker 01:
Exactly.

[00:07:09] Speaker 01:
It made the essence.

[00:07:10] Speaker 01:
Right.

[00:07:11] Speaker 01:
And I understand your honor is not wanting to talk so much about the remand, but the fact of the matter is that he had an attorney who has not been disbarred

[00:07:23] Speaker 01:
And there is evidence of facts that were not developed at the court.

[00:07:30] Speaker 01:
Exactly what fact?

[00:07:32] Speaker 01:
Well, the extent of her achievements.

[00:07:34] Speaker 01:
That she got a presidential award.

[00:07:37] Speaker 02:
No, I thought that was already in the record.

[00:07:39] Speaker 01:
No, that there was other accolades that she had.

[00:07:42] Speaker 02:
Other than the presidential award, because the presidential award was already in the record.

[00:07:46] Speaker 01:
Right.

[00:07:46] Speaker 01:
So there was the extent of other

[00:07:51] Speaker 01:
accolades that she had and like the extent.

[00:07:54] Speaker 02:
So it doesn't sound like you're relying on the ineffective assistance with regard to the petition for review.

[00:07:59] Speaker 02:
You don't seem interested in that.

[00:08:00] Speaker 01:
Well, I mean, I feel like that the board remedied that by reopening the case in that regard and allowing us to file a petition for review, although we can't really actually argue those issues.

[00:08:14] Speaker 01:
So thank you.

[00:08:15] Speaker 04:
Do you want to reserve the balance?

[00:08:16] Speaker 04:
Yes.

[00:08:17] Speaker 04:
Okay.

[00:08:18] Speaker 04:
Thank you.

[00:08:18] Speaker 04:
Any other questions before?

[00:08:20] Speaker 04:
Okay, go ahead.

[00:08:21] Speaker 04:
All right, we'll hear from the government.

[00:08:23] Speaker 04:
Good morning.

[00:08:26] Speaker 00:
Good morning, Erin Nelson, for the respondent to attorney general.

[00:08:30] Speaker 00:
At the outset, I want to thank the court for granting me leave to appear remotely.

[00:08:35] Speaker 00:
I know it was a last minute request based on my familial circumstances.

[00:08:39] Speaker 00:
I greatly appreciate that.

[00:08:42] Speaker 00:
Now, with respect to this case, I note that Ms.

[00:08:44] Speaker 00:
Ayala said that the motion to reopen did not present a plethora of evidence

[00:08:51] Speaker 00:
I would say that's quite an understatement.

[00:08:55] Speaker 00:
In fact, this case fails for petitioner because of the failure to make the threshold showing at the motion to reopen a threshold showing of prejudice.

[00:09:08] Speaker 00:
If you look at the record on that motion to reopen, the entirety of the evidence that was appended with the motion discussed the representation agreement,

[00:09:20] Speaker 00:
Discussed the deficiency of his first attorney and so the board said Fine, we see that you've made that showing but you never made the showing of prejudice and Miss Ayala points to his declaration in the record at 28 in which petitioner says

[00:09:39] Speaker 00:
that he was told to bring birth certificates, certificates from school.

[00:09:43] Speaker 00:
He was asked if he had a sick child.

[00:09:44] Speaker 00:
He said he did not have a sick child.

[00:09:46] Speaker 00:
And he said, well, he didn't ask me for other additional information regarding my daughter who was gifted and has received many awards from her school, including a presidential award.

[00:09:55] Speaker 00:
Implication there is that the first attorney who was ineffective didn't ask him to present the presidential academic achievement award.

[00:10:03] Speaker 00:
Well, parenthetically, I note that that is in the record.

[00:10:07] Speaker 00:
The motion to reopen was the time and the place for petitioners to set forth the claim for relief that he could have presented if he had the opportunity.

[00:10:24] Speaker 02:
Your opposing counsel said that the board granted the motion to reopen, but that's not true.

[00:10:28] Speaker 02:
It didn't grant the motion to reopen, right?

[00:10:31] Speaker 02:
It denied the motion to reopen.

[00:10:32] Speaker 00:
No, we're here on a denial of a motion to reopen based on the failure to show prejudice.

[00:10:37] Speaker 00:
And I just say that under abusive, I would reframe the discussion today.

[00:10:42] Speaker 00:
Under abusive discretion, that board decision from 2020 is good.

[00:10:47] Speaker 00:
It holds.

[00:10:48] Speaker 00:
And again, the motion to reopen based on ineffective assistance of counsel was petitioners' opportunity to make that threshold showing.

[00:10:57] Speaker 00:
He did not make the threshold showing.

[00:10:58] Speaker 02:
He only said- But what about the fact that there was also ineffective assistance of counsel?

[00:11:04] Speaker 02:
that resulted in the inability to file a petition for review in this court.

[00:11:08] Speaker 02:
You're not contesting that that's true, right?

[00:11:12] Speaker 00:
So the presumption, there's a presumption of ineffectiveness and... Is it a presumption?

[00:11:19] Speaker 04:
You mean a presumption of prejudice?

[00:11:21] Speaker 04:
Of prejudice, but... If showing of a denial of due process by the BIA in its consideration of a motion reopened, there is a presumption of prejudice.

[00:11:30] Speaker 04:
So how was that presumption of prejudice rebutted?

[00:11:34] Speaker 00:
So it was rebutted in this case it was rebutted as the board notes in the record at four by the fact that any petition for review at that time would have been met with a jurisdictional bar because it was deemed a discretionary determination for which there was no standard.

[00:11:54] Speaker 02:
And so you think we should be looking at what would have happened at that time as opposed to what should have happened because

[00:12:02] Speaker 02:
that there really isn't a jurisdictional bar?

[00:12:07] Speaker 00:
I mean, it's possible.

[00:12:08] Speaker 02:
I haven't thought of it, but.

[00:12:11] Speaker 00:
I think if we agree, and I think we must, that we're in a standard of review that is abuse of discretion, we have to look at the board decision from 2020 and ask, where did it abuse its discretion in applying faithfully the law of this circuit

[00:12:29] Speaker 00:
at that time.

[00:12:31] Speaker 00:
It didn't abuse its discretion.

[00:12:32] Speaker 00:
If we entertain petitioners' post hoc claim that Wilkinson is now what should have been applied, it's basically effectively saying, well, the court's going to exercise de novo review, which I would respectfully say we are not at de novo review on the denial of a motion to reopen.

[00:13:00] Speaker 03:
If we were at de novo review, what would be the analysis?

[00:13:06] Speaker 00:
Well, if as we say in our supplemental brief, because we have to answer petitioners claims in the supplemental and her supplemental opening brief, opposing counsel that Wilkinson now opens a possibility of relief.

[00:13:24] Speaker 00:
What we would say as we say in our supplemental answer is that

[00:13:31] Speaker 00:
she still, I mean the board's decision, the board's sentence at four still holds and that is the presumption is rebutted if the alien cannot show that he had plausible grounds for relief.

[00:13:43] Speaker 00:
So if we go beyond what I've already said we really shouldn't and get into de novo review or a total new analysis,

[00:13:52] Speaker 00:
He has to show that he had plausible grounds for relief.

[00:13:55] Speaker 00:
OK, we're in a new world.

[00:13:56] Speaker 00:
We're looking at Wilkinson.

[00:13:57] Speaker 03:
But then we would look at what our court would have done if a petition for review had been filed, right?

[00:14:02] Speaker 03:
Or what we would do now, maybe?

[00:14:07] Speaker 03:
I mean, this time frame thing is very odd.

[00:14:09] Speaker 03:
But the best case scenario for a petitioner would be we look at what our court would do now with such a petition for review, right?

[00:14:16] Speaker 00:
I mean, I guess that would be the best case for

[00:14:20] Speaker 00:
best-case scenario for petitioner, and it would be doing him a great favor, and it would be taking this case outside of its frame, which is the denial of a motion to reopen.

[00:14:29] Speaker 03:
But if we do that, it seems like you probably still have an argument that reopening wouldn't even be valid or wouldn't be required now.

[00:14:37] Speaker 03:
I assume that's your argument, even if we were under today's standards.

[00:14:41] Speaker 00:
Even under today's standards, because he has failed to show plausible grounds for relief,

[00:14:46] Speaker 00:
He says again that we would do that essentially to novel because the board.

[00:14:54] Speaker 02:
A didn't decide that and B they'd be deciding about what we would do.

[00:14:58] Speaker 02:
So we would decide what it amounts to is we would decide the petition for review as if it had been filed essentially.

[00:15:07] Speaker 00:
And that's.

[00:15:08] Speaker 00:
counterfactual to the procedural posture that we are here for.

[00:15:13] Speaker 00:
I would submit that petitioner could have filed a motion to reopen based on a change of law with the board and could have made his argument there that Wilkinson now opens a whole new avenue for relief.

[00:15:26] Speaker 00:
But the supplemental opening brief does address Wilkinson and hangs his hat on the idea that now he has a plausible grounds for relief.

[00:15:34] Speaker 00:
As we say in our supplemental answer,

[00:15:37] Speaker 00:
uh... his claim that there was no that uh... that that the agency failed to take account of economic and emotional harm first of all that's the first we've heard of it is the supplemental opening brief second of all it's belied by the record immigration judge did uh... did take a take account of that which often happens in these cases and third it's basically a quibble with the fact-finding uh... we we wish that the facts had been found differently on economic and

[00:16:08] Speaker 00:
and emotional hardship.

[00:16:11] Speaker 00:
So for all of these reasons, I think there are problems with granting this petition for review on its current posture.

[00:16:22] Speaker 00:
Are there any other questions?

[00:16:28] Speaker 04:
No, we don't appear to.

[00:16:29] Speaker 04:
OK, thank you very much.

[00:16:32] Speaker 04:
Thank you.

[00:16:38] Speaker 01:
Okay, I'm available to answer any questions if the court has any further questions.

[00:16:42] Speaker 01:
I don't have any other statements.

[00:16:43] Speaker 04:
We don't appear to.

[00:16:44] Speaker 01:
Okay.

[00:16:45] Speaker 01:
Thank you.

[00:16:45] Speaker 04:
This matter will stand submitted.