[00:00:00] Speaker 02:
And that's it.

[00:00:02] Speaker 02:
So we now have our first case for argument, which is Urias-Gaxiola versus Blanche. So counsel, if you'd like to take the bench, I mean, take the podium.

[00:00:16] Speaker 00:
Thank you. Thank you, Your Honor. May it please the court, Siobhan Ayala on behalf of Mr. Demetrio Martin Urias-Gaxiola, the petitioner in this case.

[00:00:30] Speaker 00:
This case, the petitioner is asking to correct two errors of the courts below. Specifically, substantial evidence does compel a reasonable adjudicator to find that there is exceptional and extremely unusual hardship in this situation.

[00:00:46] Speaker 02:
Council, may I just say, I mean, we have a lot of these substantial hardship cases.

[00:00:55] Speaker 02:
I don't find much of that here, but you do have something else that I'd like you to talk about, which is the so-called unavailable evidence with respect to the visa, or you may have some traction.

[00:01:06] Speaker 00:
Yes.

[00:01:06] Speaker 02:
Would you take a minute to address that issue, please?

[00:01:09] Speaker 00:
Yes, Your Honor. That was the second issue. Should have been the first. Okay.

[00:01:16] Speaker 00:
Understood.

[00:01:18] Speaker 00:
So Mr. Urias was found credible by the judge at the hearing.

[00:01:24] Speaker 00:
However, the judge did not let him testify about his entry. He cut off that testimony.

[00:01:30] Speaker 04:
Because he had admitted in his response to the notice to appear that he had entered without permission.

[00:01:39] Speaker 00:
Exactly, Your Honor.

[00:01:40] Speaker 04:
So what's this, what I'm trying to figure out in this case.

[00:01:43] Speaker 01:
Just a minute. Was it without permission or without inspection?

[00:01:48] Speaker 00:
It was, he conceded the charge of removability that he had violated. He didn't have a valid visa when he entered.

[00:01:55] Speaker 04:
Well, that wasn't the charge. The charge was that he entered without permission. As I think, I'm looking, I can pull up the notice to appear, but it was that he had entered without inspection or permission or something. Wasn't that what it was?

[00:02:09] Speaker 00:
I believe so. It was either 212A61A or 212A7. I'm not sure which one.

[00:02:16] Speaker 04:
Whatever it was, the judge did this based on his response to the notice, right?

[00:02:21] Speaker 00:
Yes.

[00:02:22] Speaker 04:
Okay, so here's my question. I'm not sure either side has addressed this.

[00:02:28] Speaker 04:
Both sides seem to assume that we use the Velazquez case as the measure of what must be shown in order to amend your answer or to amend your response. And that involved really some evidence, an actual admission by someone, an interview or something else that it came from. This is just the amendment of a pleading. And there's BIA case law that says when one amends a pleading, at least the notice to appear, it's done sort of on the same basis that Rule 15 allows amendments in a district court when justice should be served.

[00:03:07] Speaker 04:
What standard should apply to this attempt to amend the notice?

[00:03:13] Speaker 00:
Your Honor, I think... The answer, sorry. Yes.

[00:03:17] Speaker 00:
Well, there's... In Santiago Rodriguez v. Holder, there's three circumstances... One is when it would be unjust as a result, which I think applies here.

[00:03:27] Speaker 04:
Is that a case in which the answer was sought to be amended?

[00:03:35] Speaker 00:
I'm not sure, Your Honor.

[00:03:37] Speaker 04:
Well, see, that's what I'm having some difficulty with here. I understand if somebody has, there's an evidentiary issue. Somebody's made an admission, they're interrogated or something, and they say to an officer, yes, these are the facts, and then they later want to get that evidence withdrawn, why there has to be some extraordinary circumstance to do that. But here we're talking about a pleading.

[00:04:02] Speaker 04:
And so I'm trying to figure out whether or not any of these cases really deal with amendment of a pleading.

[00:04:10] Speaker 04:
Let me tell you, this is not a trick question. It's to your benefit if we don't have to do the exceptional circumstances. But you don't cite any case that really deals with an amendment of a pleading.

[00:04:22] Speaker 00:
No.

[00:04:22] Speaker 04:
That's why I'm asking.

[00:04:23] Speaker 00:
Yes.

[00:04:25] Speaker 02:
Can I move slightly to basically a slightly different subject, which is why the petitioner's visa was unavailable evidence? That's the contention here. Why was the visa, in quotes, unavailable?

[00:04:43] Speaker 00:
Well, Your Honor, as he talked about in the hearing, he was in Arizona briefly and then he got arrested and then he decided to stay here. So his belongings were still in North Carolina.

[00:04:57] Speaker 05:
Right.

[00:04:58] Speaker 00:
So after the proceedings were finished. He went back to North Carolina and was looking for the visa through boxes and was able to eventually find it in those boxes.

[00:05:10] Speaker 04:
But he knew he had a visa.

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

[00:05:13] Speaker 04:
So why shouldn't, I mean, but nonetheless the answer said, admitted the charge of removability. Right. That's not newly discovered information. He may not have been able to find the document, but the information was available to him, wasn't it?

[00:05:27] Speaker 00:
Right. Well, and that's why he, through counsel, attempted to amend the pleading once it was discovered with counsel.

[00:05:36] Speaker 01:
He also tried to testify to it.

[00:05:38] Speaker 00:
Right.

[00:05:40] Speaker 01:
And so there's a procedural problem here as well. I mean, that is that he got up on the stand and tried to explain this, and he was not allowed. The judge simply said, well, you admitted it. By the way, Santiago Rodriguez was in admission through the officer in the pleading, as far as I can tell.

[00:05:59] Speaker 01:
um do you know but you don't know that for sure okay in other words that we was trying to withdraw the admission made by dominguez on the santiago's behalf uh in in a motion to change venue it wasn't actually in the response of pleading but it was an emotion um so the um the problem is at least partly a procedural problem. The question that Judge Smith asked is about the remand motion, which is a separate problem.

[00:06:32] Speaker 01:
Right?

[00:06:32] Speaker 00:
Right. I mean, basically he tries three separate times to present his evidence and to correct the record. Once when he tries to amend the pleading, second in court when he tries to testify.

[00:06:44] Speaker 04:
And you've preserved objections to those rulings. The question Judge Smith was asking, I think, you'll correct me, if I'm wrong, is that in order to successfully bring a motion to remand, you must demonstrate that the information wasn't available to you before. And while the physical visa may not have been available to him, he knew darn well that he'd been admitted on a visa, didn't he?

[00:07:07] Speaker 00:
Right. But before then, he had tried to correct that twice through a motion to amend the pleading. Right.

[00:07:13] Speaker 04:
And we can deal with whether denial of the motion to amend was error.

[00:07:18] Speaker 04:
I think as Judge Berzod asked you, focusing on the motion to remand, you need information that you couldn't have had before in order to be successful in a motion to remand, right?

[00:07:27] Speaker 00:
Right. And his argument would be that he physically was not able to get that copy of the visa because part of the... One thing I couldn't understand.

[00:07:37] Speaker 01:
Well, there were a couple of things. One of them was that his... One of the things that the BIA concentrated on was that he kept his information about when he actually came with the visa kept changing.

[00:07:51] Speaker 01:
It was 2003, it was 2004.

[00:07:55] Speaker 01:
I don't know, that might be relevant if somebody was actually ruling directly on evidence that he had given, but he actually didn't have a chance to give the evidence.

[00:08:06] Speaker 01:
But he did give different information. And secondly, he said in his motion, one of the motions anyway that he had attached the visa to his motion to amend, but he didn't. Is that right?

[00:08:17] Speaker 00:
Yeah, that's correct. That was a mistake. He didn't attach the copy of the visa because he didn't have it.

[00:08:22] Speaker 04:
So it's in the record. When did it first appear in the record?

[00:08:25] Speaker 00:
It first appeared on the motion to remand with the BIA.

[00:08:28] Speaker 00:
And he did say approximately in his affidavit to the BIA on the motion to remand. I think it could have been resolved best in testimony. I would like to save a couple Couple minutes for rebuttal.

[00:08:42] Speaker 02:
Yeah, please do.

[00:08:43] Speaker 00:
Thank you.

[00:08:43] Speaker 02:
Let's hear from the government.

[00:09:03] Speaker 03:
Good morning, Your Honor. Good morning. May it please the court, Dietz LaFleur on behalf of the respondent, The issue we're discussing here is the border card regarding the motion to amend.

[00:09:13] Speaker 03:
And the notice up here charged the petitioner with illegal admission in 2002.

[00:09:24] Speaker 03:
The pleadings admitted and conceded that- Wait. Yes, Judge?

[00:09:28] Speaker 01:
Wait, what admission in 2002? The ISO 13, is that what you're talking about? So on page 625, I'm referring to the I-213, At the top of page... Well, that wasn't in 2002, was it? It was about 2002. Correct.

[00:09:45] Speaker 03:
Correct. But dovetailing on that, and this is important here, on the top of 625 on that I-213, you'll see the admission where a petitioner admitted to entering the United States illegally in 2002. Okay, wait. When was that I-213?

[00:10:05] Speaker 03:
The I-213 was in 2017.

[00:10:08] Speaker 01:
Right, so he was remembering something from 15 years ago.

[00:10:13] Speaker 03:
But that's not the key issue. The key issue is Petitioner did not object to the contents or the admission to that on page 136 of the A.R.

[00:10:24] Speaker 03:
Why that's important? Because if the court looks to its decision from about three weeks ago, which the government submitted a 28J on, Lopez- Which was a non-precedential opinion, right? It's non-precedential, but it's the perfect guidepost to addressing this particular issue. Because in that case, the I-213 was admitted and it wasn't rebutted.

[00:10:52] Speaker 01:
But he tried to report it. He filed a motion to amend, and then he got up on the stand and he tried to explain it, and he wasn't allowed to.

[00:11:01] Speaker 03:
We don't have any jurisprudence to support that, Your Honor.

[00:11:05] Speaker 04:
Well, we don't have any jurisprudence one way or the other. Isn't that more accurate?

[00:11:12] Speaker 03:
No, Your Honor.

[00:11:12] Speaker 04:
So you have a case in which somebody tried to get on the stand and explain a prior... A prior admission, and the court said, I won't let you? The respondent's contention... Do you have a case?

[00:11:26] Speaker 04:
I'm sorry, repeat the question. Do you have a case in which the respondent tried to get understand to explain a prior admission, whether in a pleading or otherwise, and the court said, sorry, I won't hear you?

[00:11:39] Speaker 02:
Judge Hurwitz, we don't, but because... What about Velazquez?

[00:11:43] Speaker 03:
Well, in the...

[00:11:48] Speaker 02:
How do you square Velazquez with the fact that the petitioner attempted to explain, testify his allegedly incorrect admission or concession? Doesn't Velazquez kind of square that?

[00:12:04] Speaker 03:
In a way, yes, but the respondent's contention is that's irrelevant because the matter was foreclosed on page 1383 at the time when counsel was asked by the IJ, do you object to the contents and admissions of the 213? And it was unequivocally answered, no, Your Honor, there is no objection.

[00:12:26] Speaker 04:
Isn't Velazquez slightly different? Velazquez, he wants to withdraw the previous admission, and the court says, I'm not going to let you. because you haven't shown extraordinary circumstances, and then it relies on that admission to rule against him. Here, his contention is, even if you're not going to let me withdraw, why can't I explain why the previous admission was mistaken?

[00:12:51] Speaker 03:
Well, I guess to put it into context, there's three elements that need to be satisfied using a border court for legal entry. One, possessing the border court.

[00:13:03] Speaker 04:
We're missing each other here. You established your prima facie case.

[00:13:08] Speaker 04:
No doubt. All the elements were established.

[00:13:12] Speaker 04:
The question he poses is a slightly different one. In trying to rebut one of the elements, I wanted to point out that the admission that I made in my either in signing the I-213 or in my answer, was mistaken, and I would like to explain why. And the judge says, sorry, can't do that. We're trying to figure out whether that comports with due process.

[00:13:33] Speaker 03:
Well, it does, because on page 27 of the record, he submitted an affidavit. What is a motion to remand? He has the burden of proving all the elements of... That's the remand.

[00:13:44] Speaker 01:
We're not talking about the remand now. We're talking about what happened at the original proceeding.

[00:13:52] Speaker 03:
But that issue didn't come up in the original proceeding because he didn't have the border card. Yes, it did. He didn't have the border card, Your Honor.

[00:13:58] Speaker 01:
What's the difference if he didn't have the border card?

[00:14:00] Speaker 03:
Because that goes back to what I was explaining to the court. There's three elements for lawful admission with the border card. One, you have to possess the border card. Two, you need to present it to a border agent. And three, you need to do so at a lawful port of entry. The second and third element was not satisfied. It's petitioner's burden to submit evidence that all three elements were satisfied.

[00:14:25] Speaker 01:
He was trying to submit evidence by testifying. No, you're wrong. The testifying won't do it if he stood up and said, I mean, you could disbelieve it, but he could stand up and say, excuse me. I'm sorry, Your Honor.

[00:14:40] Speaker 01:
As I understand it, of course, he never got a chance to do it. But it appears that what he was going to do was say, I did have a border card. I went through the right place. They didn't look at it. And because they didn't look at it, I assumed I wasn't inspected. And that's why I answered it that way. Now, it certainly happens that people go through and nobody ever looks at it. So that seems to be his story, which he never had a chance to give. Now, the IJJ could say, I don't believe it. He could say the I-213 supersedes that.

[00:15:13] Speaker 01:
I believe the I-213. Or he could say, you're not credible. Or he could have ruled on it, but he didn't rule on it because he never let him say it.

[00:15:21] Speaker 03:
That issue was not right, though, Your Honor. That's the thing that we're missing here. At his merits hearing, he didn't have the border card. We only know that.

[00:15:31] Speaker 04:
because he later filed a motion to remand. All we know is that the merits hearing, when he tried to testify about what he said was his method of entry, the IJA said, not going to hear it. Not going to hear it. It didn't say, show me the card. Didn't say anything else. The IJA said, sorry, I'm not going to let you testify about that because you've admitted to your method of hearing.

[00:15:53] Speaker 03:
Judge Hurwitz, I'm not tracking that in the record at all.

[00:15:57] Speaker 04:
Well, let's go to the part of the record where the IJA says, I'm not going to let you testify on that.

[00:16:04] Speaker 03:
Because it wasn't an issue at the merits hearing that the government's aware of.

[00:16:09] Speaker 01:
But he filed a motion to amend the pleadings.

[00:16:15] Speaker 03:
With the board.

[00:16:17] Speaker 01:
No, with the IJ.

[00:16:19] Speaker 03:
I'm sorry.

[00:16:20] Speaker 01:
The IJ, he filed a motion.

[00:16:22] Speaker 03:
I understand. We missed each other. My apologies. My apologies. So in that particular case, what we're dealing with is we're The petitioner, as counsel pointed out, finds the border court in the box years later, waves it, and says, I want to amend. I want to unring the bell.

[00:16:46] Speaker 01:
He said originally, I want to amend. He said before the hearing, he filed a motion to amend the pleadings.

[00:16:55] Speaker 03:
What we're looking at, Your Honor, is I think I understand better what you're seeing here. The IJ focused in on the 213, and the 213 was— No, he didn't.

[00:17:10] Speaker 01:
No, he didn't, actually. He said to the lawyer that you have admitted this, the lawyer, and he's bound by it, and I'm not going to hear it.

[00:17:19] Speaker 03:
That's what he said. Bound by the admission in the pleadings.

[00:17:25] Speaker 04:
That's right. And I think we're missing each other here. So I want to be clear. I want to get your best answer to the question I thought I was asking. And I think the one that I think Judge Berzon is asking too. Let's assume the motion to remand was properly denied because he could have much earlier at least brought to the attention of the court that he had a visa.

[00:17:47] Speaker 04:
And apparently he does because we look at the one in the record. My question is when he asked to amend the complaint, his answer, and the judge said, I'm not going to let you do that. Why was that correct?

[00:18:01] Speaker 03:
Because he didn't have a border card at the time.

[00:18:02] Speaker 04:
Well, the judge didn't know he didn't have a border card. The judge just said, you've admitted I'm not going to let you. If the judge had said, I'll let you amend your answer if you show me the border card, and then it said you don't have one, I'm therefore going to deny it. But the judge never went past the first level. The judge just said, you've admitted it. I'm not going to let you change it.

[00:18:25] Speaker 03:
Because, Judge Hurwitz, it's a distinction without a difference. Whether you look at the concession in the pleadings, the I-213, or the fact that there is no border card, what's happening here is if a petitioner says, I want to amend because I entered with my border card, you're still, as I said, what's very important here is evidence that shows that you showed it to a border agent.

[00:18:54] Speaker 04:
I think what you're arguing is that, in retrospect, there's no prejudice. But that's not the basis on which the IJ denied the motion. And unfortunately, we can only uphold the agency on the grounds that it's stated. So that's why I'm asking the question.

[00:19:11] Speaker 03:
I see, Your Honor. I'm out of time.

[00:19:12] Speaker 02:
May I? Yeah. Do either of my colleagues have additional questions? We could go on for a long time, of course. Yes, Your Honor. Any additional questions?

[00:19:22] Speaker 03:
I apologize. There's words on about my misunderstood. Did I, did I at least some way clarify it?

[00:19:29] Speaker 01:
Well, I understand that he, in fact, as it turns out, apparently didn't have the border card at that point, but he could have explained that too. I mean, I don't know where it is, but I certainly had one. And I don't, this idea that you have to actually present it to a border agent, I assume that means if they ask for it. But I mean, certainly I, in the old days, went through borders without anybody asking for it. And I assume if you go through in the right place and they don't ask for it, that's not a problem.

[00:20:02] Speaker 03:
May I briefly-

[00:20:03] Speaker 02:
Very briefly, yeah.

[00:20:04] Speaker 03:
Yeah, it's similar to driver's license. We have one, it permits us to drive a car, but if we leave it at home, we get pulled over by a cop for not having it, we still get ticketed.

[00:20:15] Speaker 01:
Possessing the car doesn't... Exactly, if they ask for it. If they ask for it, but if he's driving through the border... His story, as I understand it, is I drove through the correct border entry and nobody actually asked to see my border card, so I didn't show it to them. And I presume that doesn't make him an illegal entry.

[00:20:33] Speaker 03:
It does.

[00:20:35] Speaker 03:
Possessing the card does not permit you to walk across the border, but when you do present it at the lawful port of entry, it passes through a machine that records it.

[00:20:44] Speaker 01:
Yeah, in 2003 or 2004 when he did it, I don't know whether it's true or not.

[00:20:49] Speaker 03:
My understanding, it was in place at that point, and it would be the petitioner's burden to submit that evidence. Very well.

[00:20:55] Speaker 01:
Okay, right, and he never had the chance. That's the problem.

[00:21:00] Speaker 02:
Very well. Thank you very much. We have a little bit of rebuttal time.

[00:21:04] Speaker 03:
Thank you, Your Honor.

[00:21:09] Speaker 00:
I just want to briefly say that that is what the court is describing is actually how people do often or have often entered in the past without being, swiping their border cross, border card through any specific computer.

[00:21:27] Speaker 00:
The BIA matter, Key Lanton, and I'll file a 28J letter, but the respondent or the petitioner can establish through testimony their entry and that it can be considered to be a lawful entry. So I think what is at stake here is a due process challenge, and we just ask the court to remand based on that. Thank you.

[00:21:49] Speaker 02:
Very well. Any additional questions about my colleague? All right. Thank you very much. The case of Urias Caciola. Versus Blanche is submitted.