[00:00:00] Speaker 04:
The first case on the oral argument calendar is Aeschylian versus Bondy.

[00:00:06] Speaker 04:
May proceed.

[00:00:11] Speaker 00:
May it please the court.

[00:00:13] Speaker 00:
My name is Armina Ibrahimian.

[00:00:14] Speaker 00:
I represent Petitioner Suzy Eskelean.

[00:00:17] Speaker 00:
Ms.

[00:00:17] Speaker 00:
Eskelean entered the United States as a lawful permanent resident at the age of one in January of 1978 after fleeing the USSR with her family.

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She has not departed the United States ever since.

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She's a homeowner, a taxpayer, the wife of a U.S.

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citizen, the mother of two U.S.

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citizen children, a drug and counselor who has dedicated her career to helping Americans overcome addiction.

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Mrs. Gillian is also stateless.

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No country recognizes her as a national or a citizen.

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The sole conviction that rendered her removable from the United States has now been vacated due to a constitutional defect and dismissed.

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The record demonstrates that Mrs. Gillian acted with due diligence to seek vacature of her conviction.

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In June of 2018,

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Immigration Customs Enforcement, ICE, informed her for the first time that Armenia would accept her removal, making the risk of removal imminent.

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She immediately sought legal assistance.

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By October of 2018, she learned that there was a constitutional defect in her conviction.

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A motion to vacate was filed and granted under California Penal Code Section 1473.7.

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By July of 2019, I filed a motion to reopen with the immigration court based on this new evidence.

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The immigration judge denied the motion finding a lack of due diligence and seeking vacature of her conviction.

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I took full responsibility for not addressing due diligence in the first motion and within weeks I filed the second motion, this time addressing due diligence in great detail.

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The immigration judge denied the second motion as numerically barred and the board affirmed.

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Under Bentby v. Garland, due diligence is measured from when a petitioner is put on notice that something is essentially wrong, not from the date of the conviction or the date that the statute was enacted.

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Ms.

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Askelyan acted promptly and reasonably at every stage.

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The equities in this case are extraordinary.

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Ms.

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Eskillian has lived in the United States for five decades.

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She's a valued member of our community, and the only basis for her removal has been vacated.

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Moreover, recent changes in the law and policy may make the risk of removal imminent, even the risk of removal to a third country, increasing the prejudices she faces.

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The record is clear.

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There is no collusion, and all requirements for reopening have been met.

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The interest of justice strongly favors Ms.

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Eskillian.

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We respectfully ask this honorable court to grant her petition for review and remand to the immigration court to reopen and terminate proceedings.

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Thank you.

[00:02:39] Speaker 04:
All right.

[00:02:39] Speaker 04:
You want to reserve the rest of your time for rebuttal?

[00:02:41] Speaker 04:
All right.

[00:02:41] Speaker 00:
Thank you.

[00:02:53] Speaker 01:
Good morning, Your Honors.

[00:02:54] Speaker 01:
May it please the court?

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This case is very simple.

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At its core is whether

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petitioner established due diligence from January 1st, 2017 when 1473.7 became enacted and whether she did anything from that time until June 20th of 2018 when she learned about the possibility of removal.

[00:03:20] Speaker 04:
I think Judge Gould has a question.

[00:03:23] Speaker 04:
Go ahead.

[00:03:24] Speaker 03:
Council, if I can interject on the point you just made on due diligence.

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Why would it be diligent to make an inquiry in the period of time when the country was not accepting removals

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for people born in Soviet Armenia.

[00:03:57] Speaker 01:
The due diligence requirement requires a person to exercise reasonable diligence.

[00:04:04] Speaker 01:
Here, Petitioner had a removal order from 2011.

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So even if she was stateless, she still had a removal order.

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And when California Penal Code section 1473.7 was enacted, there was a lot of publicity before when Governor Brown signed it

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to inform aliens that if they had a conviction that would be the only basis for the removal, this statute would basically eliminate that removal risk.

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And so because of that, any reasonable alien and petitioner's situation who has a removal order and understands that the basis of that removal order could disappear would act at that point, and she didn't.

[00:04:50] Speaker 02:
Council, you keep using the term reasonable.

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Why would it be reasonable to have any concerns when your country's not accepting remove citizens or remove persons?

[00:05:02] Speaker 01:
It's reasonable because if you have a removal order, ICE can actually remove you to another country or they can also work to work with Armenia to see if they will accept the person.

[00:05:16] Speaker 01:
So the fact that you have a removal order

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is what puts you on notice that you can be removed.

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Not that you're stateless, but the fact that you have a removal order.

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So a reasonable person in that situation would exercise some care to figure out how they can avoid that consequence.

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And when 1473.7 was enacted, aliens were put on notice, like, hey, if you have a criminal conviction that is the sole basis of your removal order, you should act now.

[00:05:46] Speaker 02:
Are there other examples of former Soviet republics or other places that were not accepting returned citizens and so a person doesn't take action in similar circumstance?

[00:05:59] Speaker 01:
I do not have, I do not know of certain circumstances of a person being stateless and not acting.

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However, if we were to look at this court's orders with regard to when a person acts with due diligence after the criminal conviction,

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after they have a criminal conviction and removal order, you will see that they needed to act with diligence.

[00:06:24] Speaker 02:
I understand under normal circumstances you would, but are there examples of citizens of other former Soviet republics or other countries that were not accepting removals being subject to a similar kind of due diligence analysis?

[00:06:40] Speaker 01:
Unfortunately, I do not know of any case law on that point, Your Honor.

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And so she was coming in every year, and they kept saying to her, well, Armenia's not accepting you, so you're fine.

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See you next year.

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Is that pretty much what happened?

[00:06:55] Speaker 01:
That's what Petitioner claimed in her affidavit.

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And do you have any contrary evidence in the record?

[00:07:01] Speaker 01:
We do not have any contrary evidence in the record.

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So when you say she should have known, the people who were in the position to tell her didn't tell her.

[00:07:11] Speaker 01:
What she should have done was every year reached out to an attorney to see if there's any reason why her criminal conviction could be vacated.

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That would eliminate the immigration consequences of that conviction.

[00:07:25] Speaker 04:
Okay, let's talk about Luzardo.

[00:07:30] Speaker 04:
Go ahead.

[00:07:33] Speaker 04:
Do you want to talk about Luzardo?

[00:07:36] Speaker 01:
Your honor.

[00:07:38] Speaker 01:
Lizada is not relevant in this case because petitioners, well, one, the agency did not make a determination with regard to Lizada.

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It said a lot of things about Lizada, about there not being an affidavit, an affidavit from the petitioner and from the council with regard to what action was taken.

[00:08:02] Speaker 04:
The BIA says there was not any attempt to comply with Lizada.

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So they did deal with Lazada.

[00:08:10] Speaker 01:
Yes, Your Honor, but the... Yes, so the board did... They also say there was no affidavit filed, and there was.

[00:08:20] Speaker 01:
The affidavit does not comply with the Lazada requirements.

[00:08:24] Speaker 04:
Right, but there's a difference between saying no affidavit was ever filed, and it was a deficient affidavit.

[00:08:31] Speaker 04:
The board said there was no affidavit filed.

[00:08:33] Speaker 04:
That wasn't true.

[00:08:34] Speaker 01:
That was probably a misstatement.

[00:08:37] Speaker 04:
Yes.

[00:08:38] Speaker 03:
I'm having a little trouble hearing it.

[00:08:40] Speaker 04:
Okay.

[00:08:41] Speaker 04:
I'll speak.

[00:08:41] Speaker 04:
Is this better?

[00:08:43] Speaker 04:
Very good.

[00:08:46] Speaker 01:
So the board said there was no affidavit, but it was clearly talking about Losada when it said that.

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But regardless, the board did not make a definitive determination on whether petitioners council rendered an effective assistance.

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So this case, like I said, hinges on due diligence on whether, so even if petitioners counsel.

[00:09:15] Speaker 04:
Well, it goes on to say, we're not persuaded that the record demonstrates a clear and obvious case of ineffective assistance, right?

[00:09:23] Speaker 01:
Yes.

[00:09:24] Speaker 04:
I mean, they did reach it.

[00:09:27] Speaker 01:
Yes, they did.

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But they found that there was no ineffective assistance of counsel in this case.

[00:09:34] Speaker 03:
Council, I have a question for you.

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Did the petitioner submit, if not an affidavit, some kind of declaration with the language in it saying that the facts alleged are true under penalty of perjury?

[00:10:04] Speaker 01:
The petitioner submitted a declaration, but it was not sworn under penalty of perjury.

[00:10:11] Speaker 01:
Oh, I'm sorry.

[00:10:12] Speaker 01:
I apologize.

[00:10:13] Speaker 01:
She did say in the beginning of her declaration that she swears under penalty of perjury.

[00:10:18] Speaker 01:
However, nothing in her declaration discusses what she did from the enactment of 1473 until when she met with ICE in June of 2018.

[00:10:32] Speaker 04:
Well, she did explain what happened.

[00:10:34] Speaker 04:
She said she met with the attorney, filed a motion to vacate, and was vacated.

[00:10:37] Speaker 01:
Right.

[00:10:38] Speaker 01:
But there's nothing in there that discusses the time between when 1473.7 was enacted and the time when she met with ICE.

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That's the first event that she discusses.

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That's the first time she acted.

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And in order for her to establish a diligence, she needed to show that she did something from the time that

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1473 was enacted.

[00:11:03] Speaker 03:
Do you have a case that says that?

[00:11:07] Speaker 01:
Do you have a case that says that?

[00:11:09] Speaker 01:
No, but I mean, the famous maxim is Germany versus Carlisle, a Supreme Court case that says, we have long recognized the common maxim familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally.

[00:11:24] Speaker 01:
So the fact that she might- No, but you're talking about

[00:11:28] Speaker 04:
from the time from which you measure diligence.

[00:11:31] Speaker 04:
So there's no case that supports your position or theirs on point, right?

[00:11:37] Speaker 01:
Right.

[00:11:37] Speaker 01:
Well, you're supposed to.

[00:11:42] Speaker 01:
So the difficulty in this is that most cases that have been cited were dealing with ineffective assistance to counsel when there was actually fraud.

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But here, we're talking about counting the time from when there's been a change of the law.

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And so the change of law here happened

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on January 1, 2017, usually a person gets 90 days to file a motion to reopen.

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That wasn't done in this case.

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And with regard to the case cited by Petitioner's Council, Bent, that is in opposite to this case, because in that case, both parties agreed to remand.

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And the tolling period in that case was from December 22, 2021, when the board entered its final removal order, administrative order,

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and May 17th, 2022, when they filed their motion to vacate.

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And in that case, this court held that the petitioner had been fervently defending his removal as soon as he got his notice to appear, sorry, notice to appear, which puts him into removal proceedings in 2016.

[00:12:49] Speaker 03:
Councilman, I'd like to tell you something that troubles me about your argument

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And then you can tell me why it shouldn't trouble me.

[00:13:01] Speaker 03:
After she learned about the change of law in Armenia, her conviction wasn't at that moment vacated.

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But I thought she then hired counsel and counsel started to take efforts to get her conviction vacated.

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Am I right in that?

[00:13:36] Speaker 01:
So nothing in her declaration talks about when she learned about the change of law, which is the relevant time period that the agency focused on.

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Instead, she focused on when she learned that her removal

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might occur to Armenia.

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So I think that's the disconnect is the agency considered the diligence time period from January 1st, 2017, when she has the ability to vacate her criminal conviction that would eliminate all removal consequences for her.

[00:14:07] Speaker 01:
And in her mind, due diligence starts from the time she met with ICE and they told her that removal is possible.

[00:14:14] Speaker 04:
So why isn't that reasonable?

[00:14:19] Speaker 01:
That's not reasonable because her removal, the consequences of her conviction was her ability to, I guess, eliminate the consequence of that happened on January 1, 2017.

[00:14:35] Speaker 01:
No, I understand that.

[00:14:35] Speaker 04:
But I mean, she's been told every year, everything's fine, don't worry.

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And then when she was told things have changed, then she got an attorney and found out she could challenge her conviction and did.

[00:14:50] Speaker 01:
The reason why it's important is because a reasonable person with the removal order, even assuming that ICE told her that we're not going to remove you, if they had the chance to nullify the removal order, they should take it.

[00:15:09] Speaker 04:
And when did she learn that she had a chance to remove the conviction or challenge the conviction?

[00:15:16] Speaker 04:
Well, as soon as... You're just ordering constructive notice, not actual notice, right?

[00:15:20] Speaker 01:
Right, and that's all that's needed.

[00:15:22] Speaker 04:
But on the actual notice part, didn't she take action as soon as she knew about the potential for removal to our media?

[00:15:32] Speaker 01:
When she actually had notice, but that's not required.

[00:15:35] Speaker 04:
Well, I know that's the difference.

[00:15:36] Speaker 04:
There aren't going to be actual notice.

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You're going to construct a notice.

[00:15:39] Speaker 04:
There's no case law on that.

[00:15:42] Speaker 01:
I'm not aware of any, Your Honor, but... Okay.

[00:15:45] Speaker 01:
Thank you.

[00:15:45] Speaker 04:
Wait a minute.

[00:15:46] Speaker 04:
Any further questions?

[00:15:48] Speaker 04:
Thank you, Your Honors.

[00:16:02] Speaker 00:
Thank you.

[00:16:04] Speaker 00:
The petitioner was issued an NTA in 2016.

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He didn't seek vacancy until 2022.

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The statute was enacted in 2017.

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This honorable court has determined that it's when you are put on reasonable notice that something is essentially wrong.

[00:16:21] Speaker 00:
In petitioner's case, the record is clear, and I did submit proof that she was reporting every year to ICE.

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She was issued employment authorization.

[00:16:29] Speaker 00:
The record is also clear on page 247 of the ROP.

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The U.S.

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Department of Justice deemed her stateless from the beginning.

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We knew she was stateless.

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And they tried to deport her.

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Armenia would not accept her.

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And she was not only that, but pursuing an education, a career.

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but she became a homeowner.

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She turned her whole life around.

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And when she was put on notice that you may be removed, she took action immediately.

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And like I said, now the risk is even greater.

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They're deporting people to third countries.

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So the prejudice to her has drastically improved.

[00:17:00] Speaker 00:
And of course, I did submit a declaration with my second motion.

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I outlined, and I took full responsibility for failure to address due diligence.

[00:17:08] Speaker 00:
And she also submitted a declaration explaining the due diligence and the fact that she relied on me.

[00:17:13] Speaker 00:
I did my absolute very best and I do hope that the court will see that and grant the petition for review.

[00:17:21] Speaker 04:
Any questions?

[00:17:22] Speaker 04:
Okay.

[00:17:23] Speaker 04:
Thank you for your argument.

[00:17:23] Speaker 04:
Thank you both for your presentation.

[00:17:26] Speaker 04:
The case just argued will be submitted for decision.