[00:00:00] Speaker 01:
And I hope I pronounced it right.

[00:00:01] Speaker 01:
If not, you can correct me.

[00:00:03] Speaker 00:
Yes, Your Honor.

[00:00:03] Speaker 00:
Thank you.

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

[00:00:04] Speaker 00:
Milou Farman's Harry may please the court appearing for the petitioners.

[00:00:14] Speaker 00:
fairly limited issue of whether the BIA should have allowed the motion to reopen to consider the brief that was filed further to the denial of the underlying case at the merits hearing.

[00:00:33] Speaker 00:
So essentially,

[00:00:36] Speaker 00:
Merit's hearing was held in September of 2024.

[00:00:42] Speaker 00:
Matter was denied October of 2024.

[00:00:45] Speaker 00:
A timely notice of appeal was filed.

[00:00:48] Speaker 00:
However, a brief was not filed with the BIA, which caused the BIA to summarily dismiss the appeal.

[00:01:00] Speaker 00:
We filed a timely motion to reopen

[00:01:04] Speaker 00:
which DHS did not oppose, explaining the circumstances why there was an error, essentially because there was miscommunication between our office and the client, some financial issues, but primarily miscommunication.

[00:01:21] Speaker 00:
So when we filed the motion to reopen, we did file our brief, which granted should have been filed earlier, but that's the issue before the court.

[00:01:31] Speaker 00:
is whether the BIA abuses discretion by not allowing the brief to be considered.

[00:01:40] Speaker 00:
So just based on the fact that it is a discretionary matter, we understand that, primarily the underlying, the

[00:01:56] Speaker 00:
the courts generally the law preferring to dispose of matters based on their merits as opposed to procedural issues, especially something like this, which is a failure by an attorney to file something in a timely manner, which was again corrected later.

[00:02:15] Speaker 00:
And additionally, the fact that the government did not oppose the underlying motion to reopen

[00:02:24] Speaker 00:
we respectfully submit.

[00:02:25] Speaker 00:
And finally, the fact that the case in and of itself is quite meritorious in our opinion, the matter should be remanded to the BIA for full consideration on the merits.

[00:02:37] Speaker 01:
Let me make sure if I understand the record.

[00:02:40] Speaker 01:
The brief wasn't filed, and there was no motion for an extension of time.

[00:02:44] Speaker 00:
Correct.

[00:02:45] Speaker 01:
So the only thing the BIA had in front of it is no brief, right?

[00:02:52] Speaker 01:
Correct.

[00:02:52] Speaker 01:
OK.

[00:02:53] Speaker 01:
Thank you.

[00:02:55] Speaker 01:
Any other questions?

[00:03:09] Speaker 04:
May it please the court, Robert Tennyson for the government.

[00:03:14] Speaker 04:
Three things.

[00:03:15] Speaker 04:
The instant petition for review should be denied.

[00:03:17] Speaker 04:
The petitioners in their opening brief

[00:03:20] Speaker 04:
waived any challenge to the boards March 27, 2015.

[00:03:25] Speaker 04:
Decision denying the motion to reopen.

[00:03:27] Speaker 04:
Not contesting it, but because it wasn't contested.

[00:03:31] Speaker 04:
Second petitioners challenge the summary dismissal order.

[00:03:35] Speaker 04:
That's untimely.

[00:03:37] Speaker 04:
It comes more than 30 days after 30 days before the petition for review was filed and can't reach and Third you can't reach the merits of the case because again the case was summarily denied I think the petitioner here made the point that the government didn't oppose but there's no statement that the government that

[00:03:55] Speaker 04:
in the motion to reopen that was filed before the board.

[00:03:58] Speaker 04:
I just double-checked.

[00:04:01] Speaker 04:
There's no indication that DHS affirmatively stated that it had no opposition.

[00:04:05] Speaker 04:
It's just the motion to reopen.

[00:04:06] Speaker 04:
It just didn't file.

[00:04:08] Speaker 04:
DHS didn't file.

[00:04:10] Speaker 04:
DHS could have filed, but it doesn't.

[00:04:12] Speaker 04:
Whether or not DHS... No, I understand.

[00:04:14] Speaker 01:
I think your point was they didn't affirmatively say, we agree, but they just didn't file anything.

[00:04:19] Speaker 01:
They just didn't file.

[00:04:20] Speaker 04:
That is correct.

[00:04:23] Speaker 04:
Because the issue is waived with regard to the motion to reopen, and any consideration of the summary dismissal is untimely, this court should affirm the board's decision, the agency decision.

[00:04:37] Speaker 04:
This court has no questions for me.

[00:04:39] Speaker 03:
Council, how do you respond to opposing counsel's argument?

[00:04:41] Speaker 03:
Of course, typically try to decide cases on the merits, not on procedural defects or defaults.

[00:04:47] Speaker 03:
Why should we not overlook the delay here?

[00:04:51] Speaker 03:
What's the harm?

[00:04:52] Speaker 04:
So, one, I'm assuming the merits of the immigration judge's decision or the merits of the summary denial.

[00:05:05] Speaker 03:
Well, we're not going to get to the merits of the immigration decision because of the procedural flaws.

[00:05:11] Speaker 03:
Right.

[00:05:13] Speaker 04:
That's just a pure chennery issue.

[00:05:15] Speaker 04:
I mean, the agency's reasoning for its decision in the summary denial, that means that whatever the immigration judge said below, those aren't the reasons of the agency.

[00:05:24] Speaker 04:
So we can't get to that.

[00:05:26] Speaker 04:
And second, you can't even get to the summary denial because it's untimely.

[00:05:32] Speaker 04:
it the petition for review was filed more than 30 days after the summary denial decision so that's not even before the court.

[00:05:39] Speaker 02:
What's what was the deadline.

[00:05:41] Speaker 02:
What was the deadline.

[00:05:43] Speaker 04:
So the deadline for the petition review it if they if they had wanted to file a petition for review.

[00:05:49] Speaker 04:
from the summary denial, which was on February 6, 2025, it would have had to have been filed by March 3, assuming that's not a weekend, of 2025.

[00:06:04] Speaker 04:
But the petition for review didn't come until March 27, after the, wait, April of, I think April 16 of 2025, which is more than two months after it would have been, well, more than a month after it would have needed to be filed.

[00:06:18] Speaker 04:
It's within 30 days of the denial of the motion to reopen, but not 30 days of the summary dismissal.

[00:06:27] Speaker 04:
If this court has no further questions for me, government rest.

[00:06:32] Speaker 04:
Thank you.

[00:06:33] Speaker 01:
Very good.

[00:06:34] Speaker 01:
Rebuttal?

[00:06:39] Speaker 00:
Thank you, Judge.

[00:06:41] Speaker 00:
Just very briefly, it's kind of six of one, half a dozen of the other defendant, DHS's argument.

[00:06:50] Speaker 00:
We just want the matter considered on the merits.

[00:06:53] Speaker 00:
And again, there is a very clear policy in our laws that matters should be disposed of on their merits.

[00:07:03] Speaker 00:
Given that they did not oppose the motion to reopen, I understand that doesn't necessarily mean that they didn't concede it, but they didn't oppose it.

[00:07:10] Speaker 00:
So should the case go back to the BIA for consideration on the merits of the factual statements and the

[00:07:23] Speaker 00:
Decision made by the IJ again.

[00:07:25] Speaker 00:
We believe in the interest of justice that should happen We just want to be heard on the merits of the case so without we submit.

[00:07:34] Speaker 01:
Thank you Thank you both for your arguments this morning the case just heard won't be submitted for decision, and we will be in recess for the morning