[00:00:09] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:00:11] Speaker 01:
Deborah Gonzalez from the Federal Public Defender's Office on behalf of Appellant Israel Cabrera Ramirez.

[00:00:17] Speaker 01:
I plan to reserve two minutes for rebuttal and I'll keep an eye on my clock.

[00:00:21] Speaker 01:
The district court was wrong to deny Mr. Cabrera's motion to dismiss after he unfairly lost his one chance to keep his green card and was deported from his home of 30 years.

[00:00:31] Speaker 01:
Unless the court prefers I start elsewhere, this morning I plan to first talk about Ms.

[00:00:34] Speaker 01:
Roman's ineffective assistance of counsel before the immigration judge and then turn to the matter of prejudice.

[00:00:41] Speaker 01:
When a lawful permanent resident with criminal history is applying for a discretionary grant of cancellation of removal, his testimony about his criminal history is often pivotal to the IJ's decision.

[00:00:54] Speaker 01:
It is therefore incumbent upon his attorney

[00:00:57] Speaker 01:
meaning it is baseline practice, not best practice, but baseline practice for that attorney to adequately prepare him to testify about that criminal history.

[00:01:07] Speaker 01:
An attorney does that by collecting the criminal history records, by understanding them, by using them to prepare her client to testify, and by bringing them to court.

[00:01:17] Speaker 01:
At the very rock bottom, an attorney in this situation has to be able to understand the rap sheet provided to her by the DHS attorney.

[00:01:26] Speaker 01:
But Ms.

[00:01:27] Speaker 01:
Roman couldn't even do that, and she didn't take these other actions either.

[00:01:32] Speaker 01:
And this all prejudice, Mr. Cabrera, whose testimony the record shows would have been more truthful and accountable had he seen these documents before his hearing.

[00:01:41] Speaker 03:
Counsel, let me interrupt you there.

[00:01:42] Speaker 03:
Didn't the IJ find him credible, though?

[00:01:45] Speaker 01:
The IJ did find him credible, Your Honor.

[00:01:47] Speaker 01:
So where's the harm?

[00:01:49] Speaker 01:
Well, the prejudice is that the IJ then used his testimony, which he did find eventually reached near the truth, to deny him a cancellation of removal and as a matter of discretion because of the way that he minimized and spoke about his criminal history.

[00:02:07] Speaker 01:
So it wasn't the credibility finding that's prejudicial.

[00:02:10] Speaker 01:
It's the way that the IJ was so troubled, those were his words, by the clients, by Mr. Cabrera's testimony.

[00:02:16] Speaker 01:
And in preparing for today's hearing, I went back to reread the IJ's decision.

[00:02:20] Speaker 01:
One thing I think is notable, first is the IJ's words.

[00:02:24] Speaker 01:
He said, you know, the criminal history weighed heavily against a grant, but especially when considered in conjunction with Mr. Cabrera's testimony about that criminal history.

[00:02:35] Speaker 01:
And then he spent.

[00:02:36] Speaker 03:
So I guess my question is, though, I mean, I understand, I saw and I can understand why, for example, saying you were only convicted of a misdemeanor, you were only convicted

[00:02:45] Speaker 03:
He wasn't.

[00:02:46] Speaker 03:
He had felony convictions.

[00:02:48] Speaker 03:
But the way he testified about, for example, that car theft, that was on him.

[00:02:55] Speaker 03:
I mean, he knew what he did.

[00:02:57] Speaker 03:
He knew his involvement.

[00:02:58] Speaker 03:
He minimized it.

[00:02:59] Speaker 03:
Same thing with his sobriety.

[00:03:02] Speaker 03:
He knew when he was last convicted of anything to do with drugs.

[00:03:09] Speaker 03:
So how does that part fall into his prejudice?

[00:03:13] Speaker 01:
I respectfully your honor, Mr. Cabrera was testifying about 10 convictions, multiple arrests, things that happened over the course of 14 years, during which time he was using meth almost daily.

[00:03:28] Speaker 01:
And so, you know, this was not a situation where he was testifying to

[00:03:32] Speaker 01:
You know, one event that had happened a month ago, this was a situation where he needed to be reminded of some of these things.

[00:03:38] Speaker 01:
And, you know, also preparing for today, I went back and reread some of his testimony.

[00:03:42] Speaker 01:
It's very clear in the testimony, to me at least, that he was confused about a lot of things.

[00:03:47] Speaker 01:
And in particular, there were times where he testified in ways that weren't minimizing but were actually more harmful to him.

[00:03:53] Speaker 01:
So I would point the court to ER 306, where he's testifying about his 2012 DV domestic violence arrest.

[00:04:01] Speaker 01:
He says, quote, I served three months for it.

[00:04:03] Speaker 01:
I can't really recall the date, but I didn't get charged with it or convicted, as you say.

[00:04:08] Speaker 01:
This is somebody who, despite the number of convictions he had, was actually, I believe, pretty unsophisticated about these legal terms and what they meant.

[00:04:16] Speaker 01:
So he was confused about whether he served time for that.

[00:04:20] Speaker 01:
When he's discussing this issue with the BB gun, the brandishing of the false firearm, he said, quote, at ER 236, it got dismissed or down to a misdemeanor.

[00:04:30] Speaker 01:
He doesn't really understand what the difference is.

[00:04:33] Speaker 04:
The IJA and the BIA had the record.

[00:04:37] Speaker 04:
They could read what it actually was, right?

[00:04:41] Speaker 04:
Yes.

[00:04:42] Speaker 04:
And it's a pretty extensive record.

[00:04:45] Speaker 04:
I mean, aside from counsel, I agree with you that counsel was deficient in not preparing her lawyer.

[00:04:54] Speaker 04:
And I'm preparing her client well on this.

[00:05:02] Speaker 04:
His he had like a history an extensive drug history and then corporal injury on a spouse and receiving stolen property convictions and I'm just wondering that given such a heavy Record that is not in dispute, right?

[00:05:25] Speaker 01:
No, it's not your honor

[00:05:27] Speaker 04:
Why the IJ, regardless of the council's deficient performance, wouldn't have still exercised their discretion the same way?

[00:05:40] Speaker 01:
Well, as the court knows, Mr. Cabrera, to win this motion only needs to show that it was plausible that the judge may have granted.

[00:05:47] Speaker 01:
And as the court probably also knows, I'm sure, this is a balancing of the equities.

[00:05:52] Speaker 01:
So it's up to the IJ's discretion.

[00:05:55] Speaker 01:
If the court looks at, you know, what the IJ said about the testimony and the point that I was trying to get to Judge Alba was,

[00:06:02] Speaker 01:
In addition to saying how troubled he was about the testimony, the IJ then spent four single-spaced paragraphs talking, dissecting all of the things that he found problematic with this testimony.

[00:06:14] Speaker 01:
So I think on this record, it is plausible that the IJ may have granted his discretion to grant the cancellation of removal application.

[00:06:22] Speaker 01:
had Mr. Cabrera testify differently.

[00:06:25] Speaker 01:
Part of what the BIA has said in these contexts is that immigration judges need to look at whether, in the majority of cases where someone has a criminal history, whether that person has shown rehabilitation.

[00:06:38] Speaker 01:
And if Mr. Cabrera had testified differently, he may have well done that.

[00:06:42] Speaker 01:
At least it's plausible that he may have.

[00:06:44] Speaker 02:
If we assume there was ineffective assistance and that it's plausible that the IJ might rule differently, can you cite me to a Ninth Circuit case that even holds that ineffective assistance qualifies as a denial of opportunity for judicial review under D2?

[00:07:01] Speaker 01:
Yes, your honor, and I may have to get the sites from my reply brief, which I will do while I'm while I'm sitting down.

[00:07:08] Speaker 01:
But there are several cases from this court.

[00:07:10] Speaker 01:
There is I believe Lopez Chavez was an ineffective assistance of counsel case.

[00:07:15] Speaker 01:
There is a footnote from I think it's Gonzalez Villalobos, but I'll have to confirm.

[00:07:21] Speaker 01:
And at least one or two other cases where this court has talked about ineffective assistance of counsel, being able to deprive someone of the due process that they're afforded in immigration removal proceedings.

[00:07:34] Speaker 01:
But I will look for that while I'm sitting down, Your Honor.

[00:07:36] Speaker 01:
I just wanted to say also, I wrote in the motion why it's difficult to find comparable cases.

[00:07:43] Speaker 01:
in this type of case because this court does not have jurisdiction to review the denial or the grant of a discretionary decision on a cancellation of removal application.

[00:07:53] Speaker 01:
But I did find some BIA decisions from 2005 and 2007 while I was preparing for this hearing where clients with extensive criminal history and drug use, the BIA affirmed the IJ's grant of cancellation of removal.

[00:08:10] Speaker 04:
That's in re Michael Webster 2005 Westlaw 1 1 0 4 5 3 2 submit or even give to the clerk a note with the Subsequent cases are not in your brief But I think it's very important that you reserve your time now and then come back prepared to answer Judge Brown's question.

[00:08:32] Speaker 04:
We'll do thank you.

[00:08:33] Speaker 04:
Thank you

[00:08:51] Speaker 00:
Good morning, Your Honors.

[00:08:52] Speaker 00:
May it please the court, Amy Pomerantz on behalf of the United States.

[00:08:56] Speaker 00:
The district court's decision in this case should be affirmed because defendant cannot and did not satisfy the requirements necessary to prevail on his collateral attack on his 1326d charge.

[00:09:09] Speaker 00:
And I'd like to begin with D3, which is kind of the heartland of this case and what my colleagues spent time talking about.

[00:09:15] Speaker 00:
So under D3, to make that showing, the defendant must prove that his due process rights were violated and that he suffered prejudice, two prongs.

[00:09:24] Speaker 00:
And neither is satisfied here.

[00:09:27] Speaker 00:
The due process claim here is based on IAC, as we know, and in a civil immigration proceeding,

[00:09:34] Speaker 00:
an IAC claim is governed by the Fifth Amendment, not the Sixth Amendment.

[00:09:38] Speaker 00:
And the question then, for our purposes, is whether the proceeding was so fundamentally unfair that he was prevented from reasonably presenting the case.

[00:09:49] Speaker 00:
And here, it was not.

[00:09:52] Speaker 00:
The record in this case shows the defendant had a full and fair opportunity to present his case.

[00:09:59] Speaker 00:
His lawyer built a case for cancellation of removal.

[00:10:02] Speaker 00:
that we all agree was based on a balancing of the equities.

[00:10:05] Speaker 00:
His lawyer conceded removability.

[00:10:08] Speaker 00:
There was no issue there.

[00:10:10] Speaker 00:
And they conceded that he was statutorily eligible for cancellation of removal.

[00:10:14] Speaker 00:
So at this hearing, the only issue was going to be the balancing of equities.

[00:10:18] Speaker 00:
And his lawyer built a strong case centered around his positive equities.

[00:10:22] Speaker 00:
She put a lot of evidence into the record.

[00:10:25] Speaker 00:
If you look at ER 159 and 160, that's the exhibit list.

[00:10:30] Speaker 00:
She brought on his mother to testify, his father, his brother.

[00:10:34] Speaker 00:
She called a substance abuse counselor who testified about his willingness to get treatment.

[00:10:40] Speaker 00:
She submitted letters into the record supporting his good moral character.

[00:10:45] Speaker 00:
She had defendant on the stand testify, explain the criminal charges in his own words.

[00:10:51] Speaker 00:
And when she thought that the FBI rap sheet might contain some inaccuracies, that there might be some mitigating evidence or some favorable facts that perhaps she had overlooked, what did she do?

[00:11:03] Speaker 00:
She requested the underlying arrest reports.

[00:11:06] Speaker 00:
She sought a continuance.

[00:11:07] Speaker 00:
She made sure that she had time to review them.

[00:11:09] Speaker 00:
And then she put her client back on the stand on redirect and asked him questions again.

[00:11:15] Speaker 00:
And as the IJ eventually pointed out, which I think some of your honors pointed out,

[00:11:20] Speaker 00:
The IJ ultimately found that defendant was credible.

[00:11:24] Speaker 00:
He found that based on all the testimony, let me get the exact words here, he arrived at, believe the testimony record arrived near the truth based on full questioning and the confronting reports.

[00:11:39] Speaker 00:
And so given how she handled his criminal history, the records, all this, I don't think we can fairly say that defendant was deprived of due process in the immigration proceedings.

[00:11:52] Speaker 00:
He had actually reasonably competent counsel.

[00:11:55] Speaker 00:
And one other point that I would like to make going to

[00:11:58] Speaker 00:
So Judge Ward lost questions about the preparation, and I think this bears a little bit of emphasis.

[00:12:03] Speaker 00:
The district court found at ER 15 made a factual finding, reviewable for clear error, that there was really no evidence that his testimony was caused by the quality of his preparation.

[00:12:16] Speaker 00:
There's no affidavit in the record, no declaration talking about how she actually prepared him.

[00:12:22] Speaker 00:
All we know is how he testified on the stand.

[00:12:26] Speaker 00:
And so to the extent that she found that he

[00:12:30] Speaker 00:
Engaged in some sort of help self-help measures to try to mitigate his own explain away his own convictions Well, we cannot actually say on this record that any Prejudice it was caused that was caused by council's lack of preparation, right?

[00:12:45] Speaker 02:
There's just not that have been the government's burden though to go and seek that an affidavit like like that from the from ms.

[00:12:51] Speaker 02:
Roman Am I on the right case?

[00:12:54] Speaker 04:
From the from the count from his counsel at the ij proceeding no your honor i mean defend well on a 1326 posture defendant has the burden of satisfying all three elements of 1326 d and so it is his burden to show the question is me is that um i Is that the issue that judge brown raised which is did any of counsel's division performance

[00:13:22] Speaker 04:
deprive him of the opportunity for judicial review.

[00:13:28] Speaker 00:
So pivoting to D2, because I think that is a thorny question, and let me just say that this court need not reach that in this case, because if you find there was no deficient performance, if you find there was no prejudice, you don't get there.

[00:13:40] Speaker 00:
Suppose we find that.

[00:13:41] Speaker 00:
Okay.

[00:13:43] Speaker 00:
Defendant also cannot satisfy D2 in this case.

[00:13:46] Speaker 00:
His collateral attack fails, and here's why.

[00:13:49] Speaker 00:
I think it's helpful to situate this in the statutory language.

[00:13:54] Speaker 00:
So what D2 says exactly is that the deportation proceedings at which the order was issued improperly deprived him of the opportunity for judicial review.

[00:14:04] Speaker 00:
And so the operative phrases here are first he has to be improperly deprived of the opportunity and importantly

[00:14:13] Speaker 00:
Satisfaction of D2 requires a structural deprivation.

[00:14:17] Speaker 00:
It requires procedural defect, right?

[00:14:20] Speaker 00:
The proceedings themselves have to be what deprived him of any opportunity for judicial review.

[00:14:26] Speaker 00:
And so to the extent that his argument is that any IAC at the IJ level automatically sort of

[00:14:37] Speaker 00:
It forecloses the opportunity for judicial review.

[00:14:40] Speaker 00:
Well, that cannot be right for a couple of reasons.

[00:14:44] Speaker 00:
Number one, that argument runs headlong into Palomar Santiago and Portillo Gonzalez.

[00:14:50] Speaker 00:
That's this disguised excusal argument.

[00:14:53] Speaker 00:
Essentially what we're saying is that

[00:14:56] Speaker 00:
If that was right, if any IAC at the IJ level could foreclose judicial review, then all you'd have to show is IAC at the IJ level.

[00:15:04] Speaker 00:
That would collapse D2 and D3 in contravention of Palomar Santiago, essentially resurrect that pre-excusal case law under a different name.

[00:15:13] Speaker 00:
It's also wrong as a matter of substantive immigration law, because IAC at the IJ level does not necessarily by itself foreclose judicial review.

[00:15:23] Speaker 00:
There's mechanisms.

[00:15:24] Speaker 00:
I mean, of course, this court knows that.

[00:15:26] Speaker 00:
This court has adjudicated.

[00:15:27] Speaker 00:
There's a whole body of case law adjudicating IAC claims in immigration proceedings.

[00:15:33] Speaker 00:
So the fact that there was some IAC is not enough to satisfy D2.

[00:15:40] Speaker 00:
And to put a finer point on this, Your Honor, it's not that IAC at the IG level can never satisfy D2, but the point is that it comes down to causation and it comes down to the mechanism.

[00:15:54] Speaker 00:
You have to ask, how did this error deprive him of the opportunity of judicial review?

[00:15:58] Speaker 00:
So if there was an error that went to the appellate process,

[00:16:04] Speaker 00:
then that might theoretically, there might be a narrow circumstances where IAC could potentially satisfy D2, but it certainly does not here based on the claims alleged.

[00:16:16] Speaker 00:
And I would push back a little bit on Lopez Chavez, which I think my colleague is about to stand up and talk about.

[00:16:24] Speaker 00:
Lopez Chavez is certainly good law with respect to its D3 holding.

[00:16:31] Speaker 00:
But it is arguably not good law anymore following Palomar Santiago as the D2 holding.

[00:16:37] Speaker 00:
Because essentially, the court found fundamental unfairness under D3 and said, well, for the same reasons, the IAC foreclosed a judicial review under administrative review under D1 and D2.

[00:16:48] Speaker 00:
And that sort of excusal language is what Palomar Santiago forbids.

[00:16:52] Speaker 00:
Now, it may be that on the specific facts of Lopez Chavez, there were certain procedural quirks of that case that

[00:17:01] Speaker 00:
maybe on a different, had the record been made a little bit differently below, maybe there would be a cognizable deprivation of the opportunity for judicial review in that case.

[00:17:10] Speaker 00:
But again, the IAC, for that to be cognizable as a D2, to satisfy D2, it has to be a procedural defect.

[00:17:19] Speaker 00:
The proceedings themselves have to be what foreclosed the opportunity for judicial review.

[00:17:23] Speaker 00:
And this case here, it's really not even close.

[00:17:27] Speaker 00:
Certainly, the criminal history-based sort of IAC claims don't satisfy D2 for the reasons I've discussed.

[00:17:35] Speaker 00:
They advanced some argument of how his lawyer didn't file an appellate brief the Ninth Circuit, but that also cannot satisfy D2 for several reasons.

[00:17:45] Speaker 00:
Number one, we know he had the opportunity.

[00:17:48] Speaker 00:
Why?

[00:17:49] Speaker 00:
Because he filed a petition himself.

[00:17:51] Speaker 00:
The opportunity was there.

[00:17:53] Speaker 00:
He started to take it, and the fact that he didn't follow through and file the brief, well, that's not a D2.

[00:17:58] Speaker 00:
That doesn't satisfy D2.

[00:18:00] Speaker 00:
And to the extent that, I mean, even if there was IAC in that if his counsel had told him she was going to file an appellate brief and she didn't, which, to be clear, is not supported by this record,

[00:18:13] Speaker 00:
And I would advise the court to go back and look at ER 72.

[00:18:16] Speaker 00:
That's not even what he says.

[00:18:17] Speaker 00:
There's no evidence she was even supposed to be representing him on appeal.

[00:18:20] Speaker 00:
But even if that was IAC, it still wouldn't satisfy, maybe it would satisfy D3.

[00:18:25] Speaker 00:
It wouldn't satisfy D2, though.

[00:18:27] Speaker 00:
Why?

[00:18:27] Speaker 00:
Because there wasn't a defect in the removal proceedings.

[00:18:30] Speaker 00:
The IAC was sort of some separate misadvisal about appellate rights that happened outside the removal proceedings.

[00:18:36] Speaker 00:
The removal proceedings are key.

[00:18:38] Speaker 00:
And this isn't just my interpretation.

[00:18:42] Speaker 00:
defense counsel actually takes a similar position in looking at the language of the statute.

[00:18:47] Speaker 00:
I'm looking at ER 446.

[00:18:50] Speaker 00:
This is a brief defense counsel filed below where they write, the text focuses on the deportation proceedings himself and asks of those proceedings whether they improperly deprived the defendant of the opportunity for meaningful judicial review.

[00:19:04] Speaker 00:
That's from their side.

[00:19:05] Speaker 00:
So we all agree that what forecloses the opportunity for judicial review has to be the proceedings themselves.

[00:19:11] Speaker 00:
In this case,

[00:19:12] Speaker 00:
They did not.

[00:19:13] Speaker 00:
In this case, defendant Mr. Cabrera-Ramirez received due process.

[00:19:18] Speaker 00:
There was no prejudice.

[00:19:20] Speaker 00:
The IJ made a thorough detailed analysis.

[00:19:23] Speaker 00:
It balanced the equities, and ultimately it concluded that the adverse factors, his immutable criminal history that, to be clear, wouldn't have changed, regardless of how long he was prepared, the criminal history is what it is.

[00:19:38] Speaker 00:
His record is what it is.

[00:19:40] Speaker 00:
It was serious.

[00:19:41] Speaker 00:
It was escalating.

[00:19:42] Speaker 00:
No amount of better testimony or

[00:19:44] Speaker 00:
characterizingly different would have changed his criminal record.

[00:19:47] Speaker 00:
And ultimately, the IJ found that the positive equities maybe weren't as positive as they first appeared on close inspection.

[00:19:56] Speaker 04:
Counsel, you're a minute over your time.

[00:19:58] Speaker 00:
I apologize, Your Honor.

[00:19:59] Speaker 00:
I respectfully would ask the court to affirm.

[00:20:01] Speaker 00:
Thank you for your time.

[00:20:02] Speaker 00:
Thank you.

[00:20:09] Speaker 01:
So to Judge Brown's question, I would point you to the opening brief at 28-29 where I did cite some of the court's case law holding that ineffective assistance of counsel can deprive someone of their due process rights.

[00:20:23] Speaker 01:
I think that's well established, starting with Lopez Chavez, or ending with Lopez Chavez, excuse me, Derringer, Exrell, Volkova versus Reno, as well as Gonzales Villalobos, Your Honor.

[00:20:36] Speaker 04:
Where are you pointing us to in the opening brief?

[00:20:38] Speaker 01:
Page 28 to 29 of the opening brief, Your Honor.

[00:20:41] Speaker 01:
Okay.

[00:20:43] Speaker 02:
What's your response to the government saying that after Palomar Santiago, Lopez Chavez may not be good case law on D2?

[00:20:52] Speaker 01:
I didn't really focus on this issue, Your Honor, because it doesn't matter.

[00:20:56] Speaker 01:
I think Mr. Cabrera wins regardless, and so I don't think this is an issue the court needs to reach.

[00:21:01] Speaker 01:
I do think Lopez Chavez survives Palomar Santiago.

[00:21:05] Speaker 01:
I think that the writing in Lopez Chavez is a little bit unclear whether the court is actually saying it was excused or this is a situation where it actually satisfies.

[00:21:16] Speaker 04:
How, in this case, did the proceedings

[00:21:20] Speaker 04:
prevent him from pursuing judicial review?

[00:21:24] Speaker 01:
In three ways, Your Honor.

[00:21:25] Speaker 01:
First, Ms.

[00:21:26] Speaker 01:
Roman's ineffective assistance at the IJ level essentially shielded the immigration judge's discretionary decision by making it appear to be justified because

[00:21:36] Speaker 01:
She was ineffective.

[00:21:37] Speaker 01:
That led to Mr. Cabrera's poor testimony, and that led to what appeared to be a justified decision by the IJ.

[00:21:46] Speaker 01:
That also itself, by the way, was not even reviewable by this court, because the court doesn't have jurisdiction to review the discretionary denial of a cancellation of removal application.

[00:21:55] Speaker 01:
The second way is that before the BIA, assuming that she should have raised the matter of her own ineffectiveness, assuming it was clear enough on the record, she didn't do that.

[00:22:05] Speaker 01:
And because she didn't raise her own ineffectiveness before the BIA, this court would have had no jurisdiction to consider that question.

[00:22:12] Speaker 01:
And the third way was before this court, when she, the record does support, Your Honor, that she was still representing him, I would point the court to

[00:22:23] Speaker 01:
E.R.

[00:22:24] Speaker 01:
65, which is trial counsel below his declaration that he reviewed the entire file of Miss Roman, her representation file, and didn't find any indication that she told him she was withdrawing from representation.

[00:22:37] Speaker 01:
Mr. Cabrera's declaration at E.R.

[00:22:39] Speaker 01:
72 and his statement when he was put into expedited removal proceedings at E.R.

[00:22:44] Speaker 01:
93, those are all evidence that she was still representing him and she failed to either

[00:22:49] Speaker 01:
let him know she wasn't to allow him to file something on his own behalf or file something for him.

[00:22:56] Speaker 03:
Council, I know you are way over your time, but I do want to ask you one quick question.

[00:23:01] Speaker 03:
Let me know where I can find in the record that Ms.

[00:23:04] Speaker 03:
Roman failed to prepare Mr. Cabrera-Ramirez.

[00:23:08] Speaker 01:
Yes.

[00:23:11] Speaker 01:
So she admitted that she didn't at ER 278 to 280 and ER 353.

[00:23:18] Speaker 01:
Those are both discussions.

[00:23:19] Speaker 01:
The first one where she said that she wasn't able to get a copy of the rap sheet, even though she had earlier been provided with it.

[00:23:26] Speaker 01:
But she needed more time because she needed a second copy so she could review things with her client.

[00:23:31] Speaker 01:
That was after her client had already testified on direct and cross and began his redirect.

[00:23:37] Speaker 01:
In ER 353, she said in closing, well, he wasn't lying.

[00:23:41] Speaker 01:
It's just that the stuff was very old and I didn't have anything to review with him before he testified.

[00:23:46] Speaker 01:
Her actions from ER 299 to 306, where at the final hearing she appears to be unknowledgeable about these police reports, doesn't know what submission the TA is talking about, doesn't know if it has a table of contents, and then she's sort of reading right from it as if she's never read it in ways that impeach her own client.

[00:24:07] Speaker 01:
Mr. Cabrera's confusion about his own criminal history at ER 306, 236, 249 and 258, and the fact of his changing testimony as the IJ found.

[00:24:20] Speaker 01:
When he was confronted with these documents, his testimony was different.

[00:24:25] Speaker 04:
Can I ask one more?

[00:24:26] Speaker 04:
Yes, go ahead.

[00:24:27] Speaker 04:
As long as you guys have questions.

[00:24:29] Speaker 02:
OK, great.

[00:24:31] Speaker 02:
I think I'm a little confused.

[00:24:32] Speaker 02:
I think you said that the deprivation of judicial review issue doesn't matter here.

[00:24:38] Speaker 02:
But doesn't your client have to satisfy D1, D2, and D3?

[00:24:41] Speaker 01:
Yes, Your Honor.

[00:24:41] Speaker 01:
I'm sorry if I was unclear.

[00:24:43] Speaker 01:
What I am intending to communicate is that whether Lopez Chavez has been overruled doesn't affect the outcome here.

[00:24:50] Speaker 01:
Because Mr. Cabrera satisfies D2 in those three ways.

[00:24:55] Speaker 01:
And so whether or not Lopez Chavez, if we can just say this satisfies D2 because Lopez Chavez or this satisfies it.

[00:25:02] Speaker 04:
But all Palomar said was you have to meet all three requirements.

[00:25:05] Speaker 04:
Correct.

[00:25:06] Speaker 04:
Right?

[00:25:06] Speaker 01:
Yes.

[00:25:06] Speaker 01:
That's all it said.

[00:25:08] Speaker 04:
Because somehow our court had been merging two and three.

[00:25:11] Speaker 04:
Exactly.

[00:25:12] Speaker 04:
So that's not a big deal.

[00:25:14] Speaker 04:
That's in the statute.

[00:25:15] Speaker 04:
It's not a sea change or anything.

[00:25:17] Speaker 04:
So you're saying because of that,

[00:25:20] Speaker 01:
Lopez remains good law because it does address all three I believe Lopez Chavez does I think there's some rumblings and you know there's an there's a Unpublished excuse me decision from this court from a few months ago where they think it doesn't That frankly doesn't matter because whether or not whether or not Lopez Chavez said we excuse it doesn't Correct and whether or not Lopez Chavez Does excuse it or not mr. Cabrera has satisfied it here

[00:25:50] Speaker 04:
Yeah, and I think that's what we have to focus on.

[00:25:53] Speaker 01:
Yes, Your Honor.

[00:25:54] Speaker 01:
All right, thank you.

[00:25:55] Speaker 01:
Thank you, Your Honors.

[00:25:55] Speaker 01:
If there's no further questions, I would ask the court to reverse and with instructions to dismiss the information.

[00:26:01] Speaker 01:
Thank you.

[00:26:02] Speaker 04:
Okay, U.S.

[00:26:04] Speaker 04:
versus Ramirez is submitted.