[00:00:00] Speaker 04:
And I hope I pronounced it right. If not, you can correct me.

[00:00:03] Speaker 00:
Yes, Your Honor. Thank you. Good morning. Niloufar Mazhari. May it 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. So essentially, merits hearing was held in September of 2024.

[00:00:42] Speaker 00:
Matter was denied October of 2024. A timely notice of appeal was filed. 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, 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. 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 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.

[00:01:49] Speaker 00:
primarily the underlying, 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. And Additionally, the fact that the government did not oppose the underlying motion to reopen, we respectfully submit.

[00:02:26] Speaker 00:
And finally, the fact that the case in and of itself is quite meritorious in our opinion.

[00:02:32] Speaker 00:
The matter should be remanded to the BIA for full consideration on the merits.

[00:02:37] Speaker 04:
Let me make sure if I understand the record.

[00:02:40] Speaker 04:
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 04:
So the only thing the BIA had in front of it is no brief, right? Correct. Okay. Thank you.

[00:02:55] Speaker 04:
Any other questions? Okay. Thanks.

[00:03:09] Speaker 01:
May it please the Court, Robert Tennyson for the government.

[00:03:14] Speaker 01:
Three things.

[00:03:15] Speaker 01:
The instant petition for review should be denied. The petitioners, in their opening brief, waived any challenge to the boards March 27, 2015. Decision denying the motion to reopen.

[00:03:29] Speaker 01:
Not contesting it, but because it wasn't contested. Second, the petitioners challenged a summary dismissal order. That's untimely. It comes more than 30 days after, 30 days before the petition for review was filed and can't reach end. Third, you can't reach the merits of the case because, again, the case was summarily denied.

[00:03:49] Speaker 01:
I think the petitioner here made the point that the government didn't oppose, but there's no statement that the government that in the motion to reopen that was filed before the board. I just double checked. There's no indication that DHS affirmatively stated that it had no opposition. It's just the motion. It just didn't file.

[00:04:08] Speaker 01:
DHS didn't file. DHS could have filed, but it doesn't – whether or not DHS – No, I understand.

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

[00:04:20] Speaker 01:
That is correct. So 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. This court has no questions for me.

[00:04:39] Speaker 03:
Counsel, how do you respond to the opposing counsel's argument? Of course, typically try to decide cases on the merits, not on procedural defects or defaults. Why should we not overlook the delay here? What's the harm?

[00:04:53] Speaker 01:
So, one, I'm assuming the merits of the immigration judge's decision or the merits of the summary denial?

[00:05:07] Speaker 03:
we're not going to get to the merits of the immigration decision because of the procedural flaws.

[00:05:11] Speaker 01:
Right. That's just a pure chenery issue. 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. So we can't get to that.

[00:05:27] Speaker 01:
And second, you can't even get to the summary denial because it's untimely.

[00:05:33] Speaker 01:
the petition for review was filed more than 30 days after the summary denial decision, so that's not even before the court.

[00:05:40] Speaker 02:
And what was the deadline? What was the deadline?

[00:05:43] Speaker 01:
So the deadline for the petition review, if they had wanted to file a petition for review from the summary denial, which was on February 6, 2025, it would have had to have been filed by March 3rd, assuming that's not a weekend, of 2025, but the petition for review didn't come until March 27th. After the, wait, April of, I think April 16th 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 01:
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 01:
If this court has no further questions for me, um, government rest. Thank you.

[00:06:33] Speaker 04:
Very good. Rebuttal?

[00:06:39] Speaker 00:
Thank you, Judge. Just very briefly, it's kind of six of one, half a dozen of the other defendants.

[00:06:46] Speaker 00:
DHS's argument, we just want the matter considered on the merits. So, 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. So should the case go back to the BIA for consideration on the merits of the factual statements and the decision made by the IJ? Again, we believe in the interest of justice. That should happen. We just want to be heard on the merits of the case. So with that, we submit.

[00:07:34] Speaker 00:
Thank you.

[00:07:35] Speaker 04:
Thank you both for your arguments this morning. The case just heard will be submitted for decision and we will be in recess for the morning.