[00:00:00] Speaker 00:
Morning, Yarners, and may it please the court.

[00:00:02] Speaker 00:
My name is Marco Savella, and I'm here for the petitioner, Mr. Omar Ramos-Quintana.

[00:00:08] Speaker 00:
We're here today because we're asking the court to review a petition based on the petitioner's right to a fair appeal.

[00:00:16] Speaker 00:
Specifically, we do acknowledge that the Board of Immigration Appeals has very wide discretion to deny a motion for a late-filed brief.

[00:00:23] Speaker 00:
However, that discretion is not unlimited, and that's why we're here before the court.

[00:00:28] Speaker 00:
We're arguing

[00:00:29] Speaker 00:
before the court that there was an abuse of discretion first.

[00:00:32] Speaker 00:
The decision from the BIA was a boilerplate decision.

[00:00:37] Speaker 00:
It stated that the brief, or excuse me, the motion from the petitioner was insufficient.

[00:00:44] Speaker 00:
That's a very conclusory decision.

[00:00:46] Speaker 05:
So, but the reason, the specific arguments by Mr. Quintana were basically

[00:00:58] Speaker 05:
The law firm got it, but the law firm didn't tell the lawyer, was that?

[00:01:02] Speaker 00:
That's correct, Your Honor.

[00:01:03] Speaker 05:
All right.

[00:01:03] Speaker 05:
So there isn't an issue about whether notice was required, but internally, they didn't communicate.

[00:01:14] Speaker 05:
So the question is, then that's why they denied it.

[00:01:19] Speaker 05:
They didn't find that to be a good reason.

[00:01:22] Speaker 00:
Is that what we're reviewing?

[00:01:23] Speaker 00:
Perhaps, Your Honor, but that's not exactly what the argument is.

[00:01:27] Speaker 00:
It's not whether that was a good reason or not.

[00:01:29] Speaker 00:
It was that they indicated nothing to show that they even considered that.

[00:01:33] Speaker 00:
It was very conclusory.

[00:01:34] Speaker 00:
It was one word insufficient.

[00:01:36] Speaker 00:
And the board, excuse me, this circuit, this court has addressed very similar facts before.

[00:01:42] Speaker 00:
And that case was cited in the brief, Gomez v. Gonzalez.

[00:01:46] Speaker 03:
The problem seems to be that we have two cases.

[00:01:48] Speaker 03:
One is Garcia Gomez, which does seem to very much support your

[00:01:54] Speaker 03:
argument and then we have another one called Satani Satino where they said they have discretion and that's it and we don't do anything.

[00:02:03] Speaker 00:
Yes.

[00:02:03] Speaker 03:
Although they didn't really address the question of whether there is an obligation to give a reason and what kind of reason has to be given.

[00:02:12] Speaker 00:
Yes, Your Honor.

[00:02:13] Speaker 00:
And I do have a response.

[00:02:13] Speaker 03:
What do we do with that?

[00:02:15] Speaker 00:
There is what appears to be a conflict.

[00:02:17] Speaker 04:
Could you move the microphone closer to you?

[00:02:19] Speaker 04:
It's kind of hard to hear you.

[00:02:21] Speaker 00:
There does appear to be a conflict on the surface, but I don't believe there actually is a conflict as far as the Zatino case and the Gomez case.

[00:02:32] Speaker 00:
In the Zatino case, the court specifically addressed under the facts of this case, we find that the board's decision to deny the motion to accept the untimely filed brief were insufficient.

[00:02:46] Speaker 00:
One word was enough in that case.

[00:02:49] Speaker 00:
We asked the board, excuse me, this court to consider that the facts in that case, the Zettino case, were very limited.

[00:02:59] Speaker 00:
Essentially it was the student who was, the law student who was representing the petitioner wanted to accommodate spring break or winter break, excuse me, exams and winter break.

[00:03:11] Speaker 00:
It was very brief.

[00:03:13] Speaker 00:
Here we have a very different situation.

[00:03:14] Speaker 00:
We have a factual record which has been developed in the motion

[00:03:18] Speaker 00:
to accept untimely file a brief.

[00:03:20] Speaker 00:
There's evidence in support.

[00:03:21] Speaker 00:
There's an affidavit.

[00:03:22] Speaker 05:
This is more similar to the Gomez case in which... Well, it's IAC, basically what it is, and I don't know why the procedures for IAC complaints in the matter of Lozada aren't fault.

[00:03:33] Speaker 05:
Why don't they don't apply here?

[00:03:35] Speaker 05:
I mean, that's the only reason that they could have denied it, is the law firm got the notice, didn't communicate it to the lawyer.

[00:03:46] Speaker 00:
I do want to address, Your Honor, your question.

[00:03:49] Speaker 00:
I did want to complete my thought on the previous question, if I may.

[00:03:52] Speaker 00:
Go ahead.

[00:03:52] Speaker 00:
Sure.

[00:03:53] Speaker 00:
So the Zettino case is also different, distinguishable, because 2014, four years later, this court addressed the standard of review for abuse of discretion in Tereboisian.

[00:04:06] Speaker 00:
Tereboisian acknowledged the existing standard regarding

[00:04:13] Speaker 00:
an arbitrary decision, irrational decision, contrary to law decision.

[00:04:17] Speaker 00:
But it specifically addressed that when the BIA fails to provide a reasoned explanation, that is an abuse of discretion.

[00:04:25] Speaker 00:
So it's maybe not changing the law, but it's adding details to the abuse of discretion standard.

[00:04:30] Speaker 00:
And here, that's exactly what happened.

[00:04:31] Speaker 00:
There was a failure to provide any reasoned explanation.

[00:04:36] Speaker 04:
To address- Well, sorry, you have a pending question.

[00:04:39] Speaker 00:
So I would like to address your Honor's question regarding the ineffective assistance of counsel claim.

[00:04:47] Speaker 00:
In this case, that may be something that ultimately is in this case for the respondent.

[00:04:53] Speaker 05:
So if the BIA had said we're denying this because the notice went to the law firm and it's a law firm's problem that they didn't tell the lawyer, was that a good enough reason?

[00:05:07] Speaker 00:
At that point, it would be... Would that be an abusive discretion?

[00:05:12] Speaker 00:
It would depend on the facts of that decision.

[00:05:15] Speaker 00:
Well, no.

[00:05:15] Speaker 05:
If they had said that, how would that be an abusive discretion then?

[00:05:21] Speaker 00:
It's potentially not an abusive discretion.

[00:05:23] Speaker 03:
And at that point... But you would then at least have the firm basis for an IEC claim.

[00:05:29] Speaker 00:
Yes.

[00:05:30] Speaker 00:
At this time, there is an argument to be made that there was a very good reason for the late-file brief.

[00:05:35] Speaker 00:
The board failed to consider that, so the petitioner has every reason to protect.

[00:05:40] Speaker 03:
It wasn't a very good reason, but it was a reason.

[00:05:43] Speaker 03:
I mean, what Judge Kalin had saying is it was an ineffective assistance reason.

[00:05:48] Speaker 00:
If he would have gone down the ineffective assistance route, that's abandoning his right to a fair appeal, the motion for the late-filed brief.

[00:05:56] Speaker 03:
But wasn't it also true that the time frame was such that there's like an automatic 30 days.

[00:06:03] Speaker 03:
It was within 30 days that was refiled.

[00:06:08] Speaker 00:
Yes, Your Honor.

[00:06:08] Speaker 00:
It was 13 days after the briefing schedule deadline.

[00:06:12] Speaker 00:
13 days after the deadline, the council received the briefing schedule and the actual brief was filed 21 days after the deadline.

[00:06:20] Speaker 00:
So this is well within the 90-day period.

[00:06:22] Speaker 00:
by regulation that the board is authorized to grant an extension.

[00:06:25] Speaker 00:
So this fits within that.

[00:06:27] Speaker 00:
The board had every right to deny but also to find good cause.

[00:06:31] Speaker 00:
So we're here not with an ineffective assistance of counsel claim but rather a right to a fair appeal claim because the board was within its statutory, its regulatory authority to review it and they failed to review it in a way that's meaningful.

[00:06:47] Speaker 03:
If they have reviewed it... From the board's point of view, you think it would make a lot more sense to take this

[00:06:51] Speaker 03:
delay briefs and to have a motion to reopen an ineffective assistance claim and start all over again.

[00:06:59] Speaker 03:
And they might have thought that if they'd looked at it.

[00:07:02] Speaker 00:
That's our position, Your Honor, and I do agree with Your Honor, had they articulated the reasons

[00:07:08] Speaker 00:
for their denial, then it very likely could be an effective assessment.

[00:07:13] Speaker 04:
So there's a regulation about when a case can be dismissed by the board, and I'm wondering, I think you cited it maybe once in your brief, I'm wondering if part of your argument is about whether this case could actually be dismissed when there wasn't compliance with a regulation about how there needs to be an explanation for why the excuse for filing the brief wasn't good enough.

[00:07:34] Speaker 00:
Yes, Your Honor, in the motion, in the order of the BIA,

[00:07:38] Speaker 00:
they didn't mention anything.

[00:07:40] Speaker 00:
They just said there was nothing filed.

[00:07:42] Speaker 00:
And of course they addressed it with a separate order on the motion to accept the untimely file of brief, but in the actual order removal, there was nothing discussed there.

[00:07:52] Speaker 04:
But are you arguing only that there was no explanation for not taking the brief, or are you also arguing that the case was improperly dismissed later when

[00:08:02] Speaker 04:
there was no brief so they dismissed it without explaining in the dismissal order why there wasn't an explanation for why the late brief was not explained.

[00:08:11] Speaker 00:
Yes.

[00:08:12] Speaker 00:
Your Honor, we're also arguing that.

[00:08:13] Speaker 00:
Those two are intimately tied together.

[00:08:14] Speaker 00:
The decision to not accept untimely filed brief was then overlooked in the removal order, essentially.

[00:08:22] Speaker 00:
So they are intimately tied together.

[00:08:24] Speaker 00:
I think they are very much overlapping arguments.

[00:08:29] Speaker 05:
Do you want to save the balance of your time for rebuttal?

[00:08:31] Speaker 05:
Yes.

[00:08:32] Speaker 05:
Thank you.

[00:08:33] Speaker 05:
from government.

[00:09:03] Speaker 01:
Morning, Your Honors.

[00:09:04] Speaker 01:
Morning.

[00:09:05] Speaker 01:
Samer Budair, representing the respondent, the United States Attorney General, may please the Court.

[00:09:10] Speaker 01:
The Board acted well within its discretion when it denied Petitioner's motion to accept his late filed brief.

[00:09:18] Speaker 01:
To be clear, the Petitioner's contention in this case is really simple and straightforward.

[00:09:22] Speaker 01:
As we've discussed here already, Petitioner's counsel conceded that there was an administrative oversight at his law firm.

[00:09:30] Speaker 01:
It sounds like, to me from the affidavit,

[00:09:32] Speaker 01:
paralegal notified counsel 13 days after the briefing deadline had passed.

[00:09:39] Speaker 01:
And so obviously that led to the filing of his motion.

[00:09:42] Speaker 03:
And the board's decision... The board has the discretion to accept a late brief.

[00:09:47] Speaker 03:
The board has within its discretion to accept a late brief and obviously... We have the Garcia Gomez case saying that it needs to give an explanation.

[00:09:55] Speaker 01:
Yes, Your Honor.

[00:09:55] Speaker 03:
We have a regulation that seems to say that it has to give a regulation before it dismisses it for that reason.

[00:10:01] Speaker 01:
Your Honor, just to be clear, the facts of this case mimic a case that this Court has already upheld with regard to the Board's summary language, if you will.

[00:10:12] Speaker 01:
Donair-Alvarado, 2024, there was literally the exact same argument made, which was an administrative oversight, and the Board used very summary language, saying that was insufficient.

[00:10:22] Speaker 02:
What case are you talking about?

[00:10:23] Speaker 01:
Donair-Alvarado, 2024, and as I was also... Is that a published opinion?

[00:10:28] Speaker 01:
I'm sorry, Your Honor.

[00:10:29] Speaker 02:
You had a presidential opinion.

[00:10:30] Speaker 01:
That was not a presidential opinion.

[00:10:31] Speaker 02:
All right, so let's not talk about it.

[00:10:33] Speaker 02:
So go ahead.

[00:10:33] Speaker 01:
Yes, Your Honor.

[00:10:35] Speaker 01:
A matter of Cono Perez in 2012 as well, there was essentially the same kind of summary language used for a situation where the board simply acknowledged the basis, but again used summary language denying the motion to accept the late file brief.

[00:10:51] Speaker 01:
But I do want to turn, Your Honor, to your question.

[00:10:53] Speaker 01:
Zatino really is the guiding case here.

[00:10:56] Speaker 01:
Zatino does a, in that case, I can think,

[00:10:59] Speaker 01:
that the facts clearly made it clear it was petitioners' fault for failing to file the late brief.

[00:11:04] Speaker 01:
The board had actually extended the deadline because of the change of address form.

[00:11:10] Speaker 01:
He had extra time, still didn't file it, and said, you know, we're going to deny this.

[00:11:14] Speaker 01:
Obviously, that was this court's decision to support that decision.

[00:11:18] Speaker 01:
In Zatino, they very explicitly stated that even if there was ineffective assistance of counsel, and there was not in that case,

[00:11:27] Speaker 01:
This court went out of its way to say even if it was an effective assistance of the council, excuse me, it would not constitute a due process violation for the board to deny the motion to accept the late file brief.

[00:11:38] Speaker 01:
So they did address IAC in Zatino.

[00:11:41] Speaker 01:
Zatino also cited Singh, 2004.

[00:11:44] Speaker 01:
In Singh, the board made a clear error because there was an example where the board had sent debriefing notice

[00:11:53] Speaker 03:
So we have this regulation, ADFR 1003.1D2, et cetera, that the board can summarily dismiss if the party concerns indicates that he or she will file a briefer statement and their effort does not or reasonably explain his or her failure to do so within the time set for filing.

[00:12:19] Speaker 03:
So what about the reasonably explain his

[00:12:23] Speaker 03:
or failure to do so, but if he's going to dismiss it, then they don't have to say why they didn't reasonably explain the failure.

[00:12:29] Speaker 01:
Your Honor, I'm not going to say that Garcia Gomez is not good law in the sense that certainly this court has found that there's context to when a reasonable explanation is in fact sufficiently reasonable or detailed.

[00:12:45] Speaker 04:
Sorry, I think the question is different.

[00:12:47] Speaker 04:
8 CFR 1003.1D2IE is about dismissal of the case, not the acceptance of the brief exactly, but it loops back to that because it says a single member, a single board member or panel may summarily dismiss any appeal or portion of any appeal in any case in which the party concerned indicates on a form that she will file a brief or statement in support of the appeal and thereafter does not

[00:13:16] Speaker 04:
file such a brief and does not reasonably explain.

[00:13:19] Speaker 04:
So it suggests that in order to actually dismiss the case, you have to reasonably explain why you're dismissing the case.

[00:13:25] Speaker 04:
And I don't see how that was complied with here.

[00:13:28] Speaker 01:
I think that case is saying that, you know, what the board found in this decision, the board decision is not just one sentence, right?

[00:13:33] Speaker 01:
It notes that he filed the brief, it notes the warning on there that it will be dismissed as your honor is citing, and it said that the board made it clear that it reviewed the record and did not find a reasonable justification, that it was reasonably explained.

[00:13:47] Speaker 04:
How do we know that the board thought about whether there was a reasonable explanation?

[00:13:52] Speaker 01:
It says it right there, Your Honor, right?

[00:13:53] Speaker 01:
It says that the Board reviewed the record, the last portion of the Board's decision.

[00:13:58] Speaker 01:
It reviewed the record, it found that the brief was in fact untimely, and he had failed to reasonably explain why it was untimely.

[00:14:05] Speaker 03:
I'm sorry, where does it say that?

[00:14:07] Speaker 01:
At the very end of the decision, Your Honor.

[00:14:11] Speaker 04:
But it just is the language.

[00:14:12] Speaker 04:
It doesn't say what was unreasonable.

[00:14:15] Speaker 01:
I take your point, Your Honor.

[00:14:17] Speaker 01:
I take your point.

[00:14:18] Speaker 01:
I would imagine that everybody would have, including myself, and I don't mean this sarcastically, I would have felt better if the board added one sentence saying, your reason is inadequate, period.

[00:14:29] Speaker 01:
Or, you know, the fact that the paralegal didn't get it.

[00:14:32] Speaker 01:
I'm sorry, Your Honor.

[00:14:33] Speaker 03:
I thought at the time they denied the brief they had a sentence saying something like, the reason's insufficient.

[00:14:37] Speaker 01:
Yes, that's right.

[00:14:38] Speaker 01:
They said you did not provide a reasonable, it was not reasonably explained.

[00:14:43] Speaker 03:
The rationale stated by the respondent is insufficient.

[00:14:45] Speaker 01:
Right.

[00:14:46] Speaker 01:
That's right.

[00:14:47] Speaker 01:
And quite frankly, the facts of this case really don't warrant much more, do they?

[00:14:52] Speaker 01:
I mean, this is about as simple and straightforward of an issue as we have, you know.

[00:14:55] Speaker 01:
The paralegal didn't get it to me in time.

[00:14:58] Speaker 01:
I mean, what more do we ask from the board here?

[00:15:00] Speaker 01:
Do we ask for the board to dissect the internal dynamics of the law firm?

[00:15:03] Speaker 01:
And, you know, was there a snowstorm?

[00:15:06] Speaker 01:
Was there anything else?

[00:15:07] Speaker 01:
That would delay the filing by two weeks.

[00:15:09] Speaker 01:
Was there any medical emergency?

[00:15:11] Speaker 01:
What are we asking the board to provide more than simply say?

[00:15:14] Speaker 04:
I mean, why couldn't the board say something like what you just said, that we expect lawyers to notice when the mail comes?

[00:15:21] Speaker 04:
I mean, if they had said something like that, we would have a reason.

[00:15:24] Speaker 04:
But in fact, the amount of time is pretty short.

[00:15:27] Speaker 04:
I mean, the deadline is pretty quick.

[00:15:29] Speaker 04:
It could have been a snowstorm or a long weekend or something, and that would be a reason.

[00:15:34] Speaker 04:
I mean, there's no content other than just stating the language of the rule.

[00:15:41] Speaker 04:
It's like if we have a motion dismissed and we just say it doesn't state a claim period without any explanation, that's not very much of a reason.

[00:15:47] Speaker 01:
I really, I understand your honor, I would posit that these facts are really sufficiently just bare bones and straightforward.

[00:15:53] Speaker 05:
Like for example, I found on published cases where... What else could they have based it on other than what they said?

[00:16:00] Speaker 01:
Nothing, Your Honor.

[00:16:01] Speaker 01:
To be frank, nothing.

[00:16:02] Speaker 01:
I mean, there are cases I found unpublished where there was a one-business-day late filing, and the petitioner's counsel had claimed that he tried to go to the mail, and the ECAS, that e-filing system wasn't working.

[00:16:12] Speaker 01:
There are certain contexts where the facts are, in fact, plentiful enough where the board should address those.

[00:16:17] Speaker 01:
But in this case, we have a clear situation where he's saying, look, it's paralegal, you know, excuse my colloquial language, paralegal screwed up.

[00:16:24] Speaker 01:
Didn't get me the notice for about two and a half weeks after the deadline, and I'm sorry, basically.

[00:16:28] Speaker 01:
You know, petitioner's counsel to his credit throws himself and says, you know, this is an internal firm error.

[00:16:32] Speaker 01:
What's the board supposed to say?

[00:16:34] Speaker 01:
It's just, you know, they probably get a lot of these a day, at least many times a month saying, you know, it's the firm's fault.

[00:16:41] Speaker 01:
But Zatino makes clear that even if it's ineffective assistance of counsel, it's not a due process violation for the board to summarily dismiss or deny the motion to accept the late filed brief.

[00:16:50] Speaker 01:
I will say that in Gomez, again, there was indicia, in Garcia Gomez, there was sufficient indicia for this court to remand to the board

[00:16:58] Speaker 01:
because there was an error in the third-party mailing system, like a third, like the USPS or even a third-party private company in getting and delivering the briefing schedule.

[00:17:08] Speaker 01:
So again, that Gomez, Garcia Gomez had specific facts that warranted the board to say more, right?

[00:17:14] Speaker 01:
Board, why didn't you address the fact that a third-party mailing agent might have delayed the briefing schedule?

[00:17:21] Speaker 01:
Here, we just don't have those facts.

[00:17:22] Speaker 03:
There's also a Seventh Circuit case that's fairly closely on point.

[00:17:26] Speaker 03:
Yeah.

[00:17:28] Speaker 03:
And in that case, apparently the individual was pro se, but it was his fault.

[00:17:37] Speaker 03:
He had a pile of paper and he didn't open his letter until it was too late.

[00:17:41] Speaker 03:
And the court said the fact that BIA found, and it was the same language that was used with regard to the brief, the fact that he found the reason insufficient is implicit in his rejection of his motion, but it's given the court no indication that it took account

[00:17:57] Speaker 03:
various things, criteria, process, status, education, language skills, any other factors that might be relevant to the merits of the motion.

[00:18:05] Speaker 03:
We cannot tell from the board's order whether it was heard and sought or merely reacted.

[00:18:11] Speaker 03:
So why isn't that?

[00:18:13] Speaker 03:
I mean, what strikes me here, I understand that the firm screwed up.

[00:18:24] Speaker 03:
It was a very short period of time.

[00:18:26] Speaker 03:
It was within the time frame that I think there's even an automatic extension had they asked for one.

[00:18:33] Speaker 03:
And by not accepting it, the board is, from its own point of view, you would think, creating an extreme inefficiency because now there's going to be an IAC claim and then there's going to be a new motion to reopen and there's going to be more proceedings.

[00:18:54] Speaker 03:
You think that they simply want to get this finished within the timeframe.

[00:19:00] Speaker 03:
So that makes one think they didn't actually look at the reason.

[00:19:03] Speaker 03:
They didn't really give any reaction to whether it makes more sense to take this two-week late brief or have three years of more proceedings.

[00:19:16] Speaker 01:
Your Honor, respectfully, I just want to note it was due on the 12th of April.

[00:19:20] Speaker 01:
He didn't get notice until 13 days later, filed the brief approximately one week later.

[00:19:24] Speaker 01:
So we're talking two and a half, three weeks.

[00:19:26] Speaker 01:
I know when I miss a briefing deadline by one day, I have a heart attack, right?

[00:19:30] Speaker 04:
But the amount of time between notice and when the brief deadline was is only like two weeks itself or something.

[00:19:34] Speaker 04:
Or 10 days or some very short time.

[00:19:36] Speaker 04:
I mean, it's really not a long time to get the notice and write the brief and file it, right?

[00:19:42] Speaker 01:
Your Honor, it was March 22nd.

[00:19:43] Speaker 01:
The notice was sent, and the deadline was the 12th of April.

[00:19:46] Speaker 01:
So we're talking about three weeks.

[00:19:48] Speaker 01:
That's sufficient time for him to file an extension, certainly.

[00:19:51] Speaker 01:
But if the paralegal isn't going to get to him the notice until six weeks after, you know, the board is going to have to start now, you know, setting a standard if the court were to say, you know, well, sorry, three weeks is not enough for, you know, you should reopen this case.

[00:20:04] Speaker 01:
Now, every time it's going to have to build in a three-week buffer.

[00:20:07] Speaker 01:
I mean, it's a little much.

[00:20:09] Speaker 01:
I know when I miss a deadline by day, I freak out and I immediately try to, you know, rectify my error.

[00:20:14] Speaker 01:
a couple days, again, snowstorms, medical illness, emergencies, but we're talking almost three weeks beyond the deadline when the brief was initially filed.

[00:20:21] Speaker 01:
I think that's why the board was very straightforward about just it being an inadequate justification.

[00:20:25] Speaker 01:
It does not want to open up the doors to every opposing council submitting nearly three-week-old briefs past the deadline to just say, listen, board, you have to, every single one, you have to put an explicit explanation that three weeks is insufficient.

[00:20:38] Speaker 03:
Does the board have a policy of granting 21-day extensions generally?

[00:20:44] Speaker 01:
I'm sorry, Your Honor, could you say that again?

[00:20:46] Speaker 03:
Does the Board have a policy of granting 21-day extensions generally?

[00:20:50] Speaker 03:
My understanding is that it does.

[00:20:53] Speaker 01:
My understanding, Your Honor, is... If asked for.

[00:20:54] Speaker 01:
I'm sorry, Your Honor?

[00:20:55] Speaker 03:
Yes, if asked for.

[00:20:57] Speaker 01:
If asked for timely?

[00:20:58] Speaker 03:
Yes, I'm sure they... I mean, I don't think... So basically, this was within the time that it would have been filed out and they asked for a 21-day automatic extension.

[00:21:05] Speaker 01:
I think the timeliness is key, Your Honor, right?

[00:21:07] Speaker 01:
I'm sorry?

[00:21:08] Speaker 01:
The timeliness is the whole issue, right, Your Honor?

[00:21:11] Speaker 01:
Had they requested an extension in a timely fashion, I'm not the board, but I see no reason why.

[00:21:20] Speaker 01:
I certainly think they would have had a much better chance of getting an extension if they filed it timely, almost certainly, than three weeks after the fact.

[00:21:28] Speaker 01:
That's what we have here.

[00:21:29] Speaker 03:
But what I'm asking is whether that 21-day extension is essentially automatic, if asked.

[00:21:33] Speaker 01:
No, I don't think there's any built-in automatic extension by statute or regulation, Your Honor.

[00:21:37] Speaker 03:
I think the board... Well, apparently the filing instructions said it is the board's policy to grant one briefing extension per party in non-detained cases.

[00:21:46] Speaker 01:
Yes, Your Honor.

[00:21:47] Speaker 01:
Yes, Your Honor.

[00:21:48] Speaker 03:
I mean, what I'm trying to say is there's no... The BIA's practice manual says if a briefing extension is granted, the board's policy is to grant an additional 21 days

[00:21:56] Speaker 03:
to file a brief regardless of any amount of time requested.

[00:22:00] Speaker 01:
If a briefing extension is granted, yes.

[00:22:01] Speaker 01:
All right.

[00:22:02] Speaker 03:
So this is within the automatic extension time period.

[00:22:07] Speaker 03:
I understand you didn't ask for the extension, but it's within the time period.

[00:22:11] Speaker 01:
Well, Your Honor, I mean, when you ask for an extension, as we do before any court, you have to provide good cause, and I think that doesn't... Well, no, but this says you don't.

[00:22:18] Speaker 03:
That's what I'm trying to point out.

[00:22:19] Speaker 01:
Right.

[00:22:20] Speaker 03:
It doesn't say you have to provide good cause for the 21 days.

[00:22:23] Speaker 03:
You automatically, it says the board's policy is to grant one brief extension per party in non-detained cases if timely requested.

[00:22:33] Speaker 01:
Yes, if timely requested.

[00:22:34] Speaker 01:
Yes, Your Honor, yes.

[00:22:35] Speaker 03:
Not for good cause, just because.

[00:22:38] Speaker 01:
Yes, Your Honor.

[00:22:39] Speaker 01:
I mean, I'm not going to dispute that if timely filed that the board would have extended it, but I just don't see how that's at play in this case, Your Honor.

[00:22:46] Speaker 01:
Again, he had three weeks.

[00:22:47] Speaker 03:
So don't you think they might want to explain why they were

[00:22:52] Speaker 03:
rejecting this, even though it came in at the same time that it would have come in had they asked for an automatic 21-day extension.

[00:23:00] Speaker 01:
Your Honor, would that not apply to every lay brief within three weeks, within 21 days?

[00:23:04] Speaker 03:
So the board... Well, it might.

[00:23:10] Speaker 03:
The fact that you need an explanation, yes.

[00:23:13] Speaker 01:
I don't have very little to counteract your statement, Your Honor.

[00:23:20] Speaker 01:
If the court wishes to require the board for every late-filed brief within 21 days after the deadline, it has to give a sufficient reason.

[00:23:27] Speaker 01:
That would be certainly presidential case law.

[00:23:29] Speaker 01:
But the board's not aware, and I'm not aware of anything that would require the board to start doing the math on how many weeks late a brief is and whether they have to provide a reasonable

[00:23:38] Speaker 01:
And that's perhaps the issue here, right?

[00:23:39] Speaker 01:
At what point does the board can just rely on straightforward facts such as, hey, the brief is three weeks late and it's our fault.

[00:23:46] Speaker 01:
And the board says that's not good enough.

[00:23:47] Speaker 01:
And I think that's pretty clear from the record, Your Honor.

[00:23:49] Speaker 01:
But I agree with Your Honor.

[00:23:50] Speaker 01:
I really do.

[00:23:51] Speaker 01:
I mean, there's nothing that, you know, if the court were just to draw a red line in the sand and say, hey, this is it.

[00:23:57] Speaker 01:
If it's within the automatic three weeks, that would be brand new presidential decision.

[00:24:04] Speaker 01:
I mean, there's nothing there for the board

[00:24:06] Speaker 01:
The board did not abuse his discretion, Your Honor, essentially is what I'm trying to say.

[00:24:09] Speaker 04:
So as I read Garcia Gomez and Zatino, in both of them, even though there was this, we're not accepting the brief issue, the board seems to have evaluated the merits of the cases anyway and talked about the merits also.

[00:24:22] Speaker 04:
We don't have that in our case because it was just dismissed.

[00:24:26] Speaker 04:
So I don't really understand how Gomez and Zatino would control the question of whether it was appropriate to dismiss without saying why the explanation wasn't a reasonable explanation.

[00:24:40] Speaker 01:
I agree with you, Your Honor, because those cases involved much more specific fact patterns that needed to be analyzed.

[00:24:45] Speaker 01:
Zatino as well as Garcia Gomez.

[00:24:47] Speaker 05:
If I understand your position, you're just saying they gave one

[00:24:51] Speaker 05:
They gave a reason.

[00:24:52] Speaker 05:
They said we got the notice, the paralegal didn't give it to me, and that's why I didn't file it.

[00:24:58] Speaker 05:
So that's what we're reviewing.

[00:25:01] Speaker 05:
Was that abuse a discretion or not?

[00:25:03] Speaker 01:
For the board to have denied it after it was three weeks late because the paralegal didn't get it to the attorney in time.

[00:25:08] Speaker 01:
That's what we're reviewing.

[00:25:08] Speaker 01:
That's it.

[00:25:09] Speaker 01:
I mean, that's about as simple and straightforward as we have here.

[00:25:11] Speaker 01:
Those two cases, your honor, are notably more complicated.

[00:25:15] Speaker 01:
I will note, and this is not, I think, addressed by counsel Ormey, Hernandez v. Garland, 2022, this court issued a decision.

[00:25:22] Speaker 01:
It basically says, even if the board's decision is not of ideal clarity, as long as the board gives us a reasonable path for us to discern, you know, why they acted the way they acted, that's sufficient.

[00:25:34] Speaker 01:
And I just can't imagine a case more simple than this case.

[00:25:37] Speaker 01:
I mean, what was the board, I mean,

[00:25:39] Speaker 01:
It's literally you're asking that we know remand and if you if I theoretically if this court honorable court to remand to the board I would imagine they would add a sentence about how it's insufficient for the paralegal for this excuse to be justified or so it's not justifiable I mean

[00:25:54] Speaker 01:
That's all the board would have to say.

[00:25:55] Speaker 01:
I don't know what else you would expect of the board for counsel falling on his sword and saying it's our fault.

[00:26:01] Speaker 01:
It's an ineffective assistance of counsel claim respectfully.

[00:26:03] Speaker 01:
I mean, I mean that with all due respect.

[00:26:04] Speaker 01:
I don't mean to impugn the firm, but it's, you know, they're taking credit for it.

[00:26:08] Speaker 01:
They're saying we, it's an internal law firm error and it's three weeks beyond the deadline.

[00:26:12] Speaker 01:
Those are the facts in this case.

[00:26:13] Speaker 01:
There's nothing more simple than that.

[00:26:15] Speaker 01:
I mean, it happens all the time I can imagine at law firms.

[00:26:19] Speaker 05:
Thank you for your argument.

[00:26:21] Speaker 01:
Thank you.

[00:26:33] Speaker 00:
I would like I would like to address my colleagues statements that there are ABC reasons that the board could have denied this motion for late filing or late fall brief.

[00:26:48] Speaker 00:
He's correct.

[00:26:49] Speaker 00:
The board had many reasons to deny it but they didn't.

[00:26:52] Speaker 00:
That's why we're here.

[00:26:55] Speaker 00:
The reason we're here is

[00:26:56] Speaker 00:
because the board did not actually review or provide a reason as to why they denied.

[00:27:01] Speaker 03:
And suppose, so if they added a sentence that said the ineffective assistance of a counsel by mishandling the time frame is not a sufficient reason to violate.

[00:27:19] Speaker 00:
Yes, Your Honor.

[00:27:20] Speaker 00:
If they hadn't mentioned, we believe this is ineffective assistance.

[00:27:23] Speaker 03:
And if we reviewed that, what would we review it for?

[00:27:27] Speaker 03:
Is there any argument that they're not entitled to do that?

[00:27:31] Speaker 00:
No, there's no argument to that, Your Honor.

[00:27:33] Speaker 00:
I'm sorry?

[00:27:33] Speaker 00:
There is no argument to that, Your Honor.

[00:27:35] Speaker 00:
We would likely have an IIC plan.

[00:27:36] Speaker 03:
Well, then what's the point of having a sentence?

[00:27:39] Speaker 00:
Because the lack of a sentence indicates a lack of review, and essentially... Well, it doesn't say they didn't look at it.

[00:27:46] Speaker 05:
It does say they looked at it, and you have... The reason that you gave is we got it, a paralegal didn't give it to a boyer.

[00:27:54] Speaker 05:
And that's not, and they said, that's not good enough.

[00:27:57] Speaker 05:
So.

[00:27:58] Speaker 00:
I would like to close.

[00:27:58] Speaker 00:
I have a few seconds left in response to the court's question.

[00:28:02] Speaker 00:
The answer to this lies in this court's presidential decisions and OV Gonzalez and, and Tereboisian, which described that there needs to be a reasoned explanation.

[00:28:13] Speaker 00:
That's what's lacking here.

[00:28:14] Speaker 00:
A reasoned explanation.

[00:28:15] Speaker 00:
Any reason.

[00:28:16] Speaker 03:
But the reason you want a reasoned explanation is, in order, is so as to have a basis for

[00:28:23] Speaker 03:
review in this court.

[00:28:26] Speaker 00:
Yes, Your Honor, and the facts in this case are more developed than my colleague asserts.

[00:28:32] Speaker 00:
In Zatino, that is far less complicated.

[00:28:35] Speaker 00:
The law student wanted a vacation.

[00:28:38] Speaker 00:
That's straightforward.

[00:28:39] Speaker 00:
To find that that's insufficient is reasonable, and that's what the court did.

[00:28:43] Speaker 00:
In this case, there are facts which show this happened, this did not happen within a law firm,

[00:28:49] Speaker 00:
It's more complicated.

[00:28:50] Speaker 00:
There's evidence.

[00:28:51] Speaker 00:
There's an affidavit.

[00:28:52] Speaker 00:
That's more similar to the level of complication in Gomez.

[00:28:57] Speaker 05:
But I understood you to say if they had said, we don't find it sufficient that the facts that you've alleged, we don't find it sufficient that you got it and a paralegal blew it.

[00:29:10] Speaker 05:
We don't find that a sufficient reason.

[00:29:12] Speaker 05:
That would have been enough.

[00:29:14] Speaker 00:
Yes, Your Honor.

[00:29:15] Speaker 00:
That's not for the court to decide.

[00:29:16] Speaker 00:
That's not for my colleague to decide.

[00:29:17] Speaker 00:
It's not for me to decide.

[00:29:18] Speaker 00:
That's for them to decide.

[00:29:19] Speaker 00:
And that's why we're here.

[00:29:21] Speaker 05:
Okay.

[00:29:22] Speaker 05:
Thank you.

[00:29:23] Speaker 05:
Thank you both for your argument.

[00:29:24] Speaker 05:
Stan submitted.

[00:29:25] Speaker 05:
Court's in recess for the week.