[00:00:04] Speaker 00:
Ms. Murcia, whenever you're ready.

[00:00:10] Speaker 01:
Good morning. May it please the Court. Amy Hutchinson on behalf of the petitioner. I'd like to reserve two minutes for rebuttal. I will also be .

[00:00:17] Speaker 00:
And I apologize. That was the name on my day sheet.

[00:00:20] Speaker 01:
Oh, no, that's okay. I figured you meant me.

[00:00:24] Speaker 01:
So petitioner raised two arguments in his opening brief, and unless the Court has specific questions, I'm going to focus my time on the second issue. that of the Board of Immigration Appeals denial of petitioner's request for administrative closure, which, although it was included in petitioner's BIA appeal brief, the Board did characterize as a motion. That request was filed on August 19th, 2022, at which time the Board permitted the government, the non-moving party, 13 days to respond to motions.

[00:00:57] Speaker 01:
That was in the Board Practice Manual, Chapter 5.11, as of 2024.

[00:01:02] Speaker 01:
The government did not respond and therefore pursuant to the board's own rules as they existed at the time of petitioner's appeal and at the time of briefing meant that the motion was unopposed.

[00:01:14] Speaker 01:
Now at the same time that DHS shows... That doesn't really make a difference.

[00:01:18] Speaker 00:
BIA is not required to grant unopposed motions.

[00:01:22] Speaker 01:
No, absolutely not. No. What they are required though is to follow their own rules. And so at the time, at least, and this is a consideration for later, at the time, an unopposed motion, a motion, not a brief, not an appeal, an unopposed motion, or rather a lack of response meant that it was unopposed.

[00:01:42] Speaker 00:
If they hadn't described it as a motion, would your position be the same?

[00:01:49] Speaker 00:
In other words, what if it was just, it really was just in the brief. And the BIA describes it as a motion, but it's really an argument in the brief.

[00:01:59] Speaker 00:
What does that mean?

[00:02:00] Speaker 01:
I think because they referenced the factors for motions for administrative closure, our position would be the same, that it was a motion and that they should at least consider that at the time, the government didn't respond, and so at least at the time, that meant that they were unopposed.

[00:02:18] Speaker 00:
Okay, so if it's considered as a motion, but the BIA cited the relevant regulation, why should we assume that they didn't? take into account the factors in the relevant regulation?

[00:02:31] Speaker 01:
I think there are a couple of reasons that we can assume. The first one being, really the board cited two reasons in their ultimate denial. So the first was that DHS did not join or express non-opposition to the motion. And while that is relevant under the regulations, I think it ignores the fact that there was a different framework in 2022 when briefing was done and when they didn't respond. Now, I don't think that they can, I do believe that they have to adjudicate the motion or the brief, the case, as of what the laws are on the day that they adjudicate it, and not, well, the day that the briefing was done.

[00:03:10] Speaker 00:
Put that aside. They cite the relevant regulation, which has the factors in it. Do they have to go through those factors and tell you which ones they relied on?

[00:03:19] Speaker 01:
They do not need to go through every factor. They do need to go through the ones that are relevant to the case. And in this case, I would argue that the only two that they chose are that there was non-opposition, which, yes, is a relevant factor, and that petitioner failed to provide any evidence of a pending application or relief.

[00:03:37] Speaker 01:
What I argue that that misses is that you are not required under the regulations to show that there is a pending application or form of relief.

[00:03:44] Speaker 00:
No, I understand, but can't, even though it's not a requirement, it's something to be taken into account. Can the BIA say, in this case, we find that to be the most important factor and we deny relief?

[00:03:55] Speaker 01:
I think that this would be a much more difficult question for the court if that's what they had done. If they had said, we find this to be the most important factor. Instead, they use that blanket phrase, well, we've considered the totality of the circumstances, which I would argue is untrue given the other circumstances, the other factors that they didn't at least list.

[00:04:16] Speaker 00:
Here's my concern.

[00:04:21] Speaker 00:
It looks to me on the facts that are there and the facts in your in the motion or in the brief, if you will, that there's not a very good argument for administrative closure. And what you're really complaining about is they didn't give lots of reasons to turn us down.

[00:04:39] Speaker 00:
What's your best argument for administrative closure?

[00:04:42] Speaker 01:
That is a very fair question. And I do agree that based on the facts in the record, there is no relief available. There is nothing that he can apply for outside of the court. However, Although administrative closure is meant to be, yes, it's temporary until resolution of the case, the reality is that it is used often as the ultimate resolution of the case.

[00:05:04] Speaker 00:
Well, but at least according to the regs and the law, it's supposed to be used to wait and to see whether somebody can get some other form of relief.

[00:05:15] Speaker 02:
Or some other reason other than simply to put the case aside forever.

[00:05:23] Speaker 00:
And you don't seem to have either another alternative for relief or any other reason here for administrative closure other than it would be a great outcome for your client.

[00:05:33] Speaker 01:
Of course. Yeah, no, my dream for this client and for many others is that, you know, under different administrations, we have different policies. And we were very lucky in the last, not the last year, but the four years before that, where clients' cases were getting dismissed. And the dream for a lot of them is that, yeah, we can keep the case going until prosecutorial discretion comes back. And I realize that that's not a strong position before this court.

[00:05:58] Speaker 00:
I'm sympathetic, but I'm not sure we can say. No, I should have administrative closure because you may get a better administration. Yes, I agree.

[00:06:06] Speaker 02:
Appreciate your addressing the other question, which is, I understand precluded by our case law, but I've developed some serious questions about whether our case law is... correct about whether the failure to raise an issue that is raised in a notice of appeal in a brief ought to preclude or result in a non-exhaustion rule. And I note that at least one of the circuit has directly disagreed with us.

[00:06:44] Speaker 02:
One of my concerns about Suggesting that we reconsider that question in this case is that it isn't clear to me at all that what was in the notice of appeal complies with the requirements for a notice of appeal. So it would be helpful to me if you address that.

[00:07:02] Speaker 01:
To be frank, Your Honor, I do concede that I don't think this would be a good case for you guys to revisit, for the court to revisit its prior precedent in Abib.

[00:07:13] Speaker 01:
I would agree that the language contained in the notice of appeal to the board was less than specific and not necessarily a legal issue raised. The reason for preserving it, of course, is I do think that in the future there is absolutely an argument that exhaustion is prudential. And the question is whether the board had an opportunity to pass on it. They clearly did. They did pass on it. They acknowledged that there was an argument. So I would say just because something is not briefed, if it is at least included in the notice of the appeal and gives notice of what the issue or concern is, it certainly doesn't preclude the court from at least addressing it, or sorry, excuse me, the board from addressing it, even if it's not later included in the brief.

[00:07:54] Speaker 01:
I don't think it should be a black and white rule.

[00:07:57] Speaker 02:
The regulations, I mean, I found the, again, circuit is the opinion in the other circuit, which is, I think the seventh circuit, maybe.

[00:08:10] Speaker 02:
No, whichever circuit it is, third circuit, I guess. Anyway. quite persuasive in two regards. One is that the regulation, unlike the federal rules of civil procedure, are very specific as to what has to be in a notice of appeal, and it has to be fairly specific. There's nothing about what has to be in a brief.

[00:08:29] Speaker 02:
And so the emphasis seems to be on the notice of appeal and specificity.

[00:08:37] Speaker 02:
And there is no particular reason why you should carry the rule over from Rule 15 of the Federal Rules of Civil Procedure to this situation where the rules are quite different. So it's not just a question of prudential authority as what the regulations actually contemplate as the procedure before the board. But as I say, and you've now conceded, this case is probably not the right one to look at that problem because the statements in the notice of appeal probably don't meet the regulations with regard to notice of appeal.

[00:09:18] Speaker 02:
So, thank you.

[00:09:21] Speaker 00:
Yes, I do agree with that. Yeah, I want to direct your attention, and I'll give you a little bit of time for rebuttal, to another problem that I see in this case, which is that you do agree that at this point your client has no qualifying relative.

[00:09:34] Speaker 01:
Yes.

[00:09:35] Speaker 00:
So, the argument has to be, well, that's not his fault, right?

[00:09:41] Speaker 00:
And this is where it's sort of I want to ask about. It's not his fault because he was lucky enough to get administrative closure before, and the administration was kind enough not to seek the revocation of administrative closure.

[00:09:55] Speaker 00:
Without regard to whether those arguments are somewhat contradictory, isn't it true that your client could have asked to get out of administrative closure at any point before his qualifying relative turned 21?

[00:10:07] Speaker 01:
Yes, frankly, he could have done that, and frankly, he could have also filed a motion to advance his hearing before his daughter turned 21. Thank you.

[00:10:15] Speaker 00:
We'll give you a little bit of time for rebuttal. Let's hear from the government.

[00:10:29] Speaker 03:
May it please the court. My name is Stephanie Savorin Jay, and I represent the government in this matter.

[00:10:36] Speaker 03:
Given petitioner's failure to exhaust cancellation of removal, the court's review is limited to one discrete issue, whether the board exercises discretion properly in denying an undeveloped yet counseled request to administratively close proceedings. Because the agency reached a reasoned decision supported by the record, and more specifically, in response to the request as presented, the court should affirm the board's denial of administrative closure and deny the petition for review.

[00:11:09] Speaker 03:
So as petitioner's counsel concedes before this court, administrative closure was largely not addressed in the brief, or was addressed in the brief, but cancellation of removal was not. Rather, in the notice of appeal, pardon me, sorry, I'm getting a little confused, So the Board properly exercises discretion in denying the undeveloped request for administrative closure.

[00:11:37] Speaker 03:
So in the appellate brief to the Board, he primarily argued for the favorable exercise of prosecutorial discretion by asserting that he was not a priority under various ICE memoranda.

[00:11:49] Speaker 03:
And so, contrary to what petitioner's counsel has said, I don't think the Board provided only two reasonings for denying the request for administrative closure. I think there were four. First, the Board recognized the premise for the request, which is largely the first factor that is both encapsulated by a matter of , as well as the regulations that went into effect in July 2024.

[00:12:14] Speaker 03:
Second, pursuant to the regulations, the Board observed that it was not a joint or a non-opposed motion.

[00:12:22] Speaker 03:
In that circumstance, the Board shall consider the totality of the circumstances as relevant to the particular case. Moreover, the regulations specifically supply that the Board is to consider the various factors as the circumstances of the case warrant. Here, the time at which the request for administrative closure was made was in 2021. Matter of Advertisement was issued in 2012. So, counsel who, Represented petitioner before the Board had more than 12 years of notice of what needed to be addressed in a request for administrative closure.

[00:13:05] Speaker 00:
Following the observation... Well, but just, let's just stop for a second because I'm not sure why that's relevant here. We had an administrative closure, correct? You had an administrative... That was done by the Board?

[00:13:19] Speaker 03:
It was a joint motion.

[00:13:20] Speaker 00:
Joint motion. Yep. So... So I guess I have a quick, and that leads me to a question that I'm not sure I know the answer to, and then later revoke administrative closure, because he's applying for renewed administrative closure here, right?

[00:13:38] Speaker 03:
Renewed administrative closure, but many years later.

[00:13:41] Speaker 00:
Okay, so my question is, the original administrative closure, how did it stop?

[00:13:48] Speaker 03:
DHS filed a motion to recalendar, So administrative closure was initially requested in 2013. Right. And DHS unilaterally moved, pursuant to a matter of pass or return.

[00:13:59] Speaker 00:
You're entitled to move, and you're entitled on motion to have administrative closure ended.

[00:14:05] Speaker 03:
In 2018.

[00:14:05] Speaker 00:
Right, and you did that. Do you have to have a reason for that? I know that we can judicially review the failure to give administrative closure, and that's what we're here today about. Can we review your question? whether your request was based on anything?

[00:14:23] Speaker 03:
So the language of the motion for administrative closure, and as referenced in DHS's motion to recalendar the case, references Casaritum. And the language therein provides that any party may request that the case be returned to the active docket at any point in time.

[00:14:40] Speaker 00:
For any reason?

[00:14:41] Speaker 03:
For any reason.

[00:14:42] Speaker 00:
And those reasons are not reviewable?

[00:14:46] Speaker 00:
Nobody brings it up today. I'm trying to figure out.

[00:14:50] Speaker 00:
If an administration had the position that we're going to revoke all administrative closures, a hypothetical administration, not this one, could we review that?

[00:15:02] Speaker 03:
I believe it is with the discretion of the agency to decide what the decisions are. And being that it's been agreed upon by the parties that they could recalendar at any point in time, I don't believe that the court may review them, but I would be happy to conduct research.

[00:15:16] Speaker 00:
But we can review, and that's not in front of us in this case. What's in front of us in this case is review of the decision not to grant new administrative closure. Correct. And you agree that's reviewable?

[00:15:28] Speaker 03:
That is reviewable, not to grant new administrative closure.

[00:15:31] Speaker 02:
One thing that I find a bit mysterious is that one of the criteria are the basis for any opposition to administrative closure. Now, here there was no opposition to administrative closure. closure and the board seems to rely on the absence of an opposition or joint motion or the absence of a concurrence as a reason. Is that consistent with the criterion?

[00:16:01] Speaker 03:
So yes, under the regulations, if there's a joint motion for administrative closure or a motion that is not opposed, the board should grant the motion unless there are clear, identified, unusual, and specific reasons for denying that motion. So, it gives considerable deference to the parties.

[00:16:21] Speaker 02:
However, where there is ... This one wasn't ... This one was not opposed, right?

[00:16:26] Speaker 03:
Right. Well, I can state on the record, DHS did not file any sort of response indicating one way or another.

[00:16:33] Speaker 00:
We're not required to look into their minds today to find out whether they opposed it. No. The record doesn't disclose any opposed opposition, correct?

[00:16:40] Speaker 03:
Correct. doesn't disclose any opposition.

[00:16:43] Speaker 02:
So they moved to re-calendar it, but they didn't oppose the motion to reinstate it.

[00:16:52] Speaker 02:
Yes, yes.

[00:16:54] Speaker 03:
So I wouldn't quite qualify it as a motion to reinstate.

[00:16:57] Speaker 00:
Well, it's a motion for new administration. It's a motion for new. But Judge Berzon's question, I think, however you characterize it, is the one that troubled me before. The same agency...

[00:17:08] Speaker 00:
that moved to end administrative closure, not very long thereafter, files something that says we don't oppose, or doesn't oppose, I'm sorry, the motion for new administrative closure. Shouldn't that have been weighed by the board? The fact that you had an opportunity to oppose it and you didn't.

[00:17:31] Speaker 03:
Correct. And I think with that comes a change of administration, right? And also in the time since before, there is a change in the regulations. And I think the board looked to it more as a basis for how to rule. Should it give greater deference to what the parties are concerned about as far as administrative closure? Or is it entitled to do more of its own due diligence in assessing whether or not?

[00:17:57] Speaker 02:
It appears that the board actually considered to not opposition in the other direction.

[00:18:03] Speaker 02:
It says the respondent seeks to administratively close or dismiss these proceedings on the premise that it's not an enforcement priority. However, the DHS in this case has not joined in or expressed a non-opposition to the respondent's motion. Moreover, the DHS's internal guidance is not binding. So the board seems to be considering the non-opposition as a negative factor somehow.

[00:18:29] Speaker 03:
I would have to disagree with you, Justice Burson. I think it goes more to the fact of how they should approach the motion for administrative closure. Again, whether or not they should more consider what the parties are agreeing to, whether or not they want to move towards administrative closure.

[00:18:46] Speaker 00:
So you don't think it was a negative factor? You think the board was just saying, well, we have to decide this because the parties didn't agree to it?

[00:18:53] Speaker 03:
Correct, Your Honor.

[00:18:55] Speaker 00:
If that's the case, there's only one factor cited. which is the apparent ineligibility for any form of relief.

[00:19:05] Speaker 03:
Well, they recognize a premise for the request, which refers to the first factor, which is a reason for administrative closure. And then they go further to explain why that reason is not warranted here. So I would say that there are more than one reasons provided, more than one factors addressed. In the government's position, it was for that they recognize a premise for the request, that they stated that the guidance is not binding on the board and that prosecutorial discretion is within the authority of DHS, but not the board or the immigration judge.

[00:19:37] Speaker 03:
And then lastly, there is no evidence of pending application for a relief for which the petitioner was potentially eligible. In all of the cases in which this court has taken issue with the board and its consideration of various factors under matter of vatician, these are cases for instance, where the petitioner was potentially eligible for relief. Here in the request for administrative closure, petitioner did not set forth or identify that he was potentially eligible for any relief.

[00:20:10] Speaker 03:
And so, for instance, petitioner's counsel refers to Valdez Morales on pages 16 to 18 of her brief, and there it was about an I-130 petition for an alien relative, and the board said it was speculative. But since that time, this regulation has come into place, and the board has given more discretion about how it weighs its circumstances.

[00:20:34] Speaker 03:
And I see that I'm out of time, and if I may just have one second to address cancellation of removal.

[00:20:41] Speaker 00:
You are out of time, so I want to see if either of my colleagues have any questions. I don't have a question. I think we'll rely on your brief for your response to the cancellation of removal issue.

[00:20:55] Speaker 03:
Thank you, Your Honors.

[00:20:58] Speaker 00:
Why don't we give a minute for rebuttal here?

[00:21:04] Speaker 01:
Thank you. And actually, I really just wanted to ask, there were some procedural things, just some timeline things that were incorrect. I don't know that they're necessarily important, but just to lay out that at the time of the final hearing in May, there was no admin closure. then admin closure came back, right? And then the regulations changed in 2024, so just some of that procedural background.

[00:21:30] Speaker 00:
Is there a record about why administrative closure was agreed to in the first place?

[00:21:38] Speaker 01:
There is the joint motion for administrative closure.

[00:21:41] Speaker 00:
Right, and I think the joint motion says, as I recall, it's because there's an application for cancellation of removal pending.

[00:21:47] Speaker 01:
Oh, did it? I don't remember that. I do remember it saying just as an exercise of prosecutor discretion.

[00:21:53] Speaker 00:
It doesn't refer to the pending application?

[00:21:55] Speaker 01:
I don't think so. I'd have to check, though.

[00:22:00] Speaker 00:
Any questions of my colleagues?

[00:22:02] Speaker 02:
No.

[00:22:02] Speaker 00:
All right. With thanks to both sides for their briefing and argument, this case will be submitted.