[00:00:02] Speaker 04:
Good morning.

[00:00:06] Speaker 04:
May it please the Court, my name is Ashley Gambourian, and I represent Mr. Igor Popov in his petition for review.

[00:00:14] Speaker 04:
We have two issues today, this morning, that we would like to ask the Court to consider. The first one is the timeliness of Mr. Popov's motion to reopen, and the second one is the BIA's refusal to reopen the case based on sua sponte. So when the first issue is the timeliness, we would like to ask the court to consider the caricature of his convictions that were the basis of his removal proceedings that vitiated the entire removal order, basically the basis for the order, would trigger the diligence at that point.

[00:00:55] Speaker 02:
What do we do about the fact that the statute that authorized The motion to seek that vacature was in 2017, but no actions were taken, I believe, until the first actions taken in 2020. And the agency held that against him.

[00:01:12] Speaker 04:
Yes, Your Honor. First of all, Mr. Popo was not in the United States. He had been removed all before even the enactment.

[00:01:22] Speaker 02:
During the entire relevant time period, he's in Russia?

[00:01:25] Speaker 04:
Yes, Your Honor.

[00:01:25] Speaker 02:
Is he still in Russia?

[00:01:27] Speaker 04:
He is now in detention, actually, in immigration detention, because he returned and applied for asylum in 2024, November of 2024.

[00:01:38] Speaker 02:
So, well, under the Bent case... Are there ongoing proceedings with respect to him arising from that? Is there another notice to appear and another immigration proceeding that's on its way?

[00:01:54] Speaker 04:
Yes, Your Honor. It was... He's... His asylum claim was denied, and he's appealing that decision.

[00:02:02] Speaker 02:
So there's a pending, another petition in this, is it in this court or another circuit?

[00:02:07] Speaker 04:
At the BIA.

[00:02:08] Speaker 02:
Oh, it's at the BIA level still. Okay.

[00:02:10] Speaker 04:
The judge found him credible but denied his case for other reasons.

[00:02:14] Speaker 00:
Okay. Counsel, in 2020, when he contacted a lawyer, was he aware of the 2017 statute then? No, Your Honor.

[00:02:20] Speaker 04:
No, Your Honor. I'm the one who informed him about it.

[00:02:23] Speaker 00:
Okay. So why shouldn't that time be counted against him? Since he didn't know about the statute in 2017, and he didn't know about it in 2020, this is a blind contact to an attorney. And he could have contacted the attorney in 2019, 2018, 2017, all the way back to 2015, which would have preceded the California statute. He didn't take any efforts to contact an attorney to see if there was any avenue

[00:02:53] Speaker 04:
As stated in his declaration, Your Honor, he was in a very bad situation. He had just been deported. He was taken care of.

[00:03:02] Speaker 00:
Why does that toll the statute? Why does that toll the time?

[00:03:05] Speaker 04:
Because the Bend case says that we have to look at each case on its own merits. And if a reasonable person under his circumstances would have been that way. He would have done exactly what he had done.

[00:03:17] Speaker 00:
Is the California statute California's codification of the Supreme Court's decision in Padilla v. Kentucky?

[00:03:25] Speaker 04:
I'm sorry, Your Honor.

[00:03:27] Speaker 00:
Is California's statute California's codification of a principle raised by the Supreme Court in Padilla v. Kentucky?

[00:03:38] Speaker 04:
I'm not understanding.

[00:03:39] Speaker 00:
Well, the Padilla case is decided in 2010 by the Supreme Court.

[00:03:44] Speaker 00:
which suggests that the failure of a criminal defense attorney to advise his client of the immigration conduct, of the immigration consequences, may be ineffective assistance of counsel.

[00:03:57] Speaker 04:
That's right.

[00:03:58] Speaker 00:
Is that the basis for California's enactment of the statute in 2017? Partially, yes.

[00:04:03] Speaker 04:
Okay.

[00:04:05] Speaker 00:
The Padilla case was decided well before he was sent out of the United States. So he could have raised it at the time that he was sent out.

[00:04:14] Speaker 04:
But there was no avenue to do it until 1473.

[00:04:17] Speaker 00:
Yes, there was. There was a Supreme Court case in Padilla v. Kentucky.

[00:04:20] Speaker 04:
But 1473.7 was enacted.

[00:04:23] Speaker 00:
There wasn't a statute, but there was a Supreme Court case that said that he might have been able to take measures directly against his attorney.

[00:04:31] Speaker 04:
But he didn't have an attorney. He was in procé. He represented himself in removal proceedings. He had no idea that there was an issue about ineffective assistance of counsel or any other issue for his conviction that he could have actually even gone that way, even considered vacating his conviction.

[00:04:54] Speaker 03:
The basis for the request to the California State Court is that he wasn't properly informed of the immigration consequences of his NOLO pleas. But when he was issued a notice to appear back many years earlier, wouldn't he have at that point been put on notice that there may be some issues with the criminal conviction and what it means for him from his ability to remain in this country?

[00:05:23] Speaker 04:
Yes, but in immigration court, they're not supposed to relitigate the conviction. So once you're convicted, you're convicted and the judge takes that as a conviction and the removal order is based on that and the notice to appear is based on that. He had no idea that he could have actually challenged that conviction. He was acting pro se. He didn't have money to get an attorney. He was detained.

[00:05:50] Speaker 03:
But one thing we might consider under Bent is just was there even diligence at that earlier stage to do something, to try to do something? And the premise of his actions in the California state court is that he was surprised effectively by the immigration consequences of his plea. And you might think that if that was true later, it would have been true earlier.

[00:06:11] Speaker 04:
But the Bent case said that in Bent they measured the time from the data, 1473.7 was enacted. And even then they said we have to look at each case under reasonable person standard, right?

[00:06:28] Speaker 03:
So where did the agency err here in not considering his personal circumstances? What personal circumstances do you think the agency failed to take into account?

[00:06:38] Speaker 04:
The agency didn't take into account his own dire situation. They held him to a higher standard, maximum feasible diligence, where the judge said that he should have done this, he should have acted pro se, he should have gotten pro bono attorney, he should have contacted an attorney. Those are all speculation and requiring a person in his circumstances to act more diligently, then you would require a reasonable person to act in his situation.

[00:07:17] Speaker 04:
Well, the fact that when his conviction was vitiated, then it was vacated, it was done for constitutional rights violations. So once that's done, then the court can the immigration judge should have just reopened the case and restored his lawful permanent resident status.

[00:07:44] Speaker 04:
I think the timeliness should be from that time, because once he gets it, he gets vacated. Because before that, he couldn't have filed a motion to reopen to begin with. And when we filed a motion to reopen, while the case was pending, a bent case came in, and the judge made a decision. Yes, he mentioned the bent case, but he brushed it off, and then he required maximum feasible diligence. So we filed a motion to reconsider his decision, bringing up the fact that he erred in his decision, and he should have considered the timeliness from the date that it was vacated.

[00:08:23] Speaker 04:
And then I would like to reserve two more minutes for my rebuttal, Your Honor.

[00:08:27] Speaker 02:
All right. Thank you, Counsel. All right. We will hear now from Mr. Pennington.

[00:08:37] Speaker 01:
Thank you, Judge Collins, and good morning. Greg Pennington for the government.

[00:08:41] Speaker 01:
What Mr. Pawpaw wants is the court to decide that the agency must reopen a proceeding any time a movement files a motion to reopen within 90 days of a vacator of a conviction. That's unsupported by this court's precedent and contrary to longstanding finality principles and the agency's discretion over motions to reopen. I'll start with this court's precedent, Perez Camacho, which lays out the four ways that Someone with a vacated conviction can go to the agency to see what can be done.

[00:09:11] Speaker 01:
One is through a timely motion to reopen, and that clearly wasn't the case here. It was 10 years late. Two, through a reinstatement order. They have not reinstated Popov's original order of removal. He is in current 240 proceedings with a pending appeal before the board.

[00:09:28] Speaker 01:
Three, to show equitable tolling. Or four, sua sponte, which this court lacks jurisdiction to consider. So the only avenue we have is equitable tolling under Perez Camacho. And then we turn to Bent and the court's recent decision in Eskilian. Where does the diligence start? It starts with issuance of the notice to appear, or once a movement knows that they're going to be placed in removal proceedings, as Eskilian's case was.

[00:09:55] Speaker 01:
And so the notice to appear was issued in 2015, and then the agency received found reasonably within his discretion that there simply wasn't enough evidence to show what he did during those nine years.

[00:10:08] Speaker 03:
Well, let's start with the first two. From 2015 to 2017, before the California statute went into effect, what do you think he was supposed to do then?

[00:10:19] Speaker 01:
Well, as Judge Bybee mentioned, Padilla v. Kentucky was the law of the land. Even if he was pro se, he could have reached out to pro bono attorneys.

[00:10:26] Speaker 02:
The agency didn't rely on that theory, did it?

[00:10:28] Speaker 01:
That's correct.

[00:10:29] Speaker 02:
So we can't consider that under January, right?

[00:10:32] Speaker 01:
That's correct.

[00:10:34] Speaker 02:
They didn't explicitly cite that, but I think that... They relied on the statute and took the statute and said that he wasn't diligent after the date of the statute. They didn't say he should have brought the substance of the statutory argument before 2017.

[00:10:47] Speaker 01:
I think that's correct. I think the immigration judge first said he did nothing from 2015 on.

[00:10:53] Speaker 01:
to 2017, specifically noting that despite the removal order by the immigration judge and his reservation of the right to appeal that to the board, he did not file an appeal, and he spent three more months in the United States before he was removed. So the immigration judge considered that, that he still had time and did not exercise his rights to appeal to the board the conviction or do anything else. But then the immigration judge did the backfall of the 2017 statute, and that I try to take the court back to the motion to reopen, which never even mentioned equitable tolling.

[00:11:26] Speaker 01:
Mr. Popov argued in the motion to reopen that he had an absolute right to reopen based on the vacate conviction alone. Only in a single paragraph at the end of the motion did he say he was diligent, again, without mentioning equitable tolling.

[00:11:39] Speaker 02:
The agency decided the equitable tolling issue, so it's fully there and for our review.

[00:11:45] Speaker 01:
It is in the motion to reopen, but as I argued in the brief, that's not properly before the court. The motion to reconsider the denial of the motion to reopen is, and then that confines the court to reviewing.

[00:11:55] Speaker 00:
So did he have to take a separate appeal from the denial of the motion to reopen?

[00:12:01] Speaker 01:
Correct.

[00:12:02] Speaker 00:
He would have had to appeal that motion. They don't merge? If he files a motion for reconsideration, if you file a PF, you lose here, and you file a PFR. Do you have to take a separate appeal from the first judgment and then a denial from the PFR?

[00:12:16] Speaker 01:
That's correct. That's what the Supreme Court said in stone, that when Congress enacted 1252B6, the consolidation provision, they're envisioning separate petitions from each agency decision. And the statute provides –

[00:12:36] Speaker 02:
the underlying ruling to the BIA and just appeal the reconsideration to the BIA, or do I have that wrong?

[00:12:42] Speaker 01:
That's correct. He only filed the motion to reconsider with the immigration judge. Once you appeal to the board, then jurisdiction for any further motions remains with the board.

[00:12:52] Speaker 02:
Does the board's jurisprudence show that it follows the stone rule that you need to, or does it follow the rule that we would follow versus district court, which is it all merges?

[00:13:03] Speaker 01:
I am unaware of that specifically. I just don't know. I do know that the board in this case said its limited review over the immigration judge's decision was over the motion to reconsider. They say that at the beginning when laying out the standards for reconsideration and in a footnote saying all references are to the immigration judge's denial of a motion to reconsider.

[00:13:22] Speaker 03:
Does this materially affect our decision in the sense that the review of both would appear to be abuse of discretion?

[00:13:29] Speaker 01:
It doesn't affect the standard of review, but it limits the court's review only to the reasons stated in the motion to reconsider.

[00:13:36] Speaker 00:
You know, counsel, on page two of the BIA's decision in the second full paragraph, I see where they – I know what you're referring to. But the board also says after taking into consideration the arguments made on appeal and conducting a thorough review of the record – we affirm the immigration judge's conclusion that the respondent did not show his personal circumstances warrant an equitable tolling. That looks like that's on the merits.

[00:14:03] Speaker 01:
I think that's in light of the arguments made in the motion to reconsider. There were two arguments made in the motion to reconsider. One, that the immigration judge improperly applied bent. And two, that the immigration judge did not consider whether the vacator was an extraordinary circumstance on its own to warrant reopening. So I do understand that to say that the personal circumstances were considered, but only to the extent that the motion to reconsider argued that it wasn't through the motion to reconsider citation of the Bent decision as the error of law.

[00:14:36] Speaker 00:
Because it, and it's, I would also say it's also a little, a little ambiguous in the opening paragraph of the BIA's decision because it, it recites that he is appealing from the decision denying his motion to reconsider the immigration judge's decision in which the immigration denied the respondent's motion to reopen his proceedings. It does feel like, you know, we're going to address all of this. It all merges together. It's the same arguments. I don't see why we're drawing these kinds of technical distinctions.

[00:15:06] Speaker 01:
If we don't want to get into the weeds on that, it's our position that we clearly win on the merits of the motion to reopen as well. As explained, the avenues for challenging –

[00:15:17] Speaker 00:
claiming that he has to file a first notice of appeal and then file a second notice of appeal from, I mean, that's not the way that we handle things in the district court. It's not the way that you respond to proceedings in this court. Your time for cert is told if you file a PFR. It's not if you file a PFR-EB, but it is if you file a motion for a PFR for panel rehearing. That's the ordinary way we conduct things. So, I mean, this is – I'm a little surprised at the government taking this position here.

[00:15:49] Speaker 01:
Well, I mean, I would – if the court's that interested, I would love the opportunity to put that in writing because I just don't know the BIA's practice. I know that it would require a separate notice of appeal, the filing fee for the appeal of the denial of a motion to reopen. And I'm pretty sure on the notice of appeal form for the board – that there are boxes to check whether this is an appeal from a direct order of removal or a motion to reopen or a motion to reconsider. So I think they treat them differently.

[00:16:15] Speaker 02:
Going to the underlying merits, you know, the petitioner filed the 20HA letter with the Eskilian case. And the Eskilian case suggests that just looking at the number of years since the 2017 statute went into effect, without considering the individual circumstances about what happened during that period, would be error. And yet looking at the IJ's decision, the IJ seemed to rely just on the length of time and didn't really consider that.

[00:16:48] Speaker 02:
I don't see the consideration of the circumstances.

[00:16:52] Speaker 01:
Well, the judge did cite his affidavit submitted with the motion to reopen. The judge recognized his arguments that he was destitute and didn't have anything until 2020. I know, but it says it

[00:17:04] Speaker 02:
Given the plain language of this statute, the court fails to see how respondents' absence contributed to the lengthy delay in seeking a vacature under this provision, particularly given that good cause for his absence clearly existed. It seems close to a per se rule, doesn't it?

[00:17:22] Speaker 02:
Where are we talking about in the judge's decision? I'm on page 67 of the record in the IJ's decision of August 27th.

[00:17:35] Speaker 01:
Oh, so he's talking about the California statute.

[00:17:37] Speaker 02:
Correct.

[00:17:38] Speaker 01:
So I think that was the response to his argument that it took so many years after the statute until he sought the vacator. So he didn't file the motion for vacator until April of 2024, I think the record reflects, in the state court judge's order. So the seven years, he didn't show how his absence from the country contributed it because the statute itself allows for the movement to not be there in person.

[00:18:10] Speaker 01:
So I think the judge was just looking at all the factors.

[00:18:13] Speaker 03:
I thought I read this part of the decision to be referring to the period after he's retained a lawyer and the judge is assessing whether there was any additional delay in that period and seemed to think maybe there was because these lengthy negotiations with the city attorney's office may not have been necessary.

[00:18:34] Speaker 01:
Right, because the statute didn't require any of that. That's just the judge, in our view, considering all the factors that Mr. Popov claims he ignored. I see my time's up. We would argue that there was no abuse of discretion and ask the court to deny the petition for review.

[00:18:48] Speaker 02:
Right. Thank you, counsel. We'll hear rebuttal now.

[00:18:54] Speaker 04:
Thank you. First of all, I want to mention that under CFR, the code, the HCFR 1003.23, once you file a notice of appeal of a decision, the jurisdiction vests with the BIA and the judge cannot reconsider the motion to reopen anymore. So you cannot file two appeals at the same time.

[00:19:18] Speaker 04:
And also I wanted to... So what does that mean? If you can't file two appeals at the same time, did you... Then you have to file a motion to reconsider or you choose to file a motion to appeal the motion to reopen.

[00:19:31] Speaker 00:
Okay, and then if you file the motion to reconsider and then file an appeal, does that limit the BIA to considering the motion to reconsider?

[00:19:41] Speaker 04:
Of course not, Your Honor. The BIA has to decide the motion to reopen... in order to decide if the judge erred in any way in his motion to reconsider. So it's the same issue, the same argument.

[00:19:54] Speaker 02:
Does the BIA have a rule similar to what we have in our rules that if you file a motion to reconsider, it tolls the time to appeal to the BIA on the underlying order?

[00:20:05] Speaker 04:
Once the BIA assumes jurisdiction, the judge can no longer make any decisions. on any case, on any motion to reopen motion or even on a merits case, on a case.

[00:20:20] Speaker 02:
I know, but it could, you know, you could theoretically have a situation where you either go to the BIA or you seek motion for reconsideration and you can only go up on the motion for reconsideration. Is there any provision of the BIA rules that says that it tolls the time to seek an appeal of the underlying order while you're seeking, we can do, we have an explicit rule to that effect in our rules.

[00:20:45] Speaker 04:
I'm not aware of such a rule.

[00:20:47] Speaker 02:
Okay.

[00:20:49] Speaker 04:
And also I wanted to mention under SUA's bondage jurisdiction for this court to review, the BIA itself in its decision said that they admitted that it was an extra, the vacature of the convictions was an extraordinary circumstance, situation, warranting reopening. However, they said that, oh, at the time, that he was ordered deported, he was convicted, properly convicted. So that was the whole point of our argument, that he was not properly convicted.

[00:21:19] Speaker 04:
That's why the conviction was vacated. Okay.

[00:21:22] Speaker 02:
All right. Thank you, counsel. The case just argued will be submitted. Can I make one more? No. The case is submitted. Thank you.