[00:00:10] Speaker 04:
Okay, you may proceed.

[00:00:12] Speaker 04:
Thank you, Your Honours.

[00:00:13] Speaker 04:
Good morning and may it please the court.

[00:00:14] Speaker 04:
My name is Caroline Platt from the Office of the Federal Public Defender on behalf of Elano Serrano Zuniga.

[00:00:20] Speaker 04:
to pick up where you and my colleague left off.

[00:00:24] Speaker 04:
If Lopez Chavez was overruled at all, it was as to D1, exhaustion of administrative remedies, and my client appealed to the BIA with his ineffective counsel, that is satisfaction of D1.

[00:00:35] Speaker 04:
So I agree with my colleague that Lopez Chavez and whether or not it's overruled as to D2 or D3

[00:00:40] Speaker 04:
There's no question about that, as Judge Warbaugh said.

[00:00:43] Speaker 04:
Excuse me, Palmar Santiago only said you have to satisfy all three, and D1 was the one that this court was sometimes excusing.

[00:00:51] Speaker 04:
But here, my client appealed to the BIA, so D1 is not at issue.

[00:00:55] Speaker 04:
D2, as you all were just discussing, is the improper deprivation of the opportunity for judicial review.

[00:01:02] Speaker 04:
Our position is not that that is always satisfied in an IAC case or that it is never satisfied in an IAC case.

[00:01:08] Speaker 04:
Our position is that in each case, the client, defendant, non-citizen has to show that he was improperly deprived of the opportunity for judicial review, the language of the statute.

[00:01:18] Speaker 04:
And in my case, in our case,

[00:01:20] Speaker 04:
The ineffective assistance of counsel is the way that the deportation proceeding is improperly depriving him of judicial review.

[00:01:27] Speaker 04:
In our case, it's because the ineffective counsel is the person who did the BIA appeal and did not raise their own ineffectiveness, which as the court is surely aware is very common as well in the criminal as well as immigration context.

[00:01:43] Speaker 04:
Lawyers almost never raise their own ineffectiveness and if they do they're conflicted and they need to conflict out.

[00:01:48] Speaker 03:
Counsel, let me ask you this.

[00:01:49] Speaker 03:
Is the IAC here a substantive defect or procedural one and does it matter?

[00:01:56] Speaker 04:
I'm not sure it matters in this case your honor and here's why.

[00:01:59] Speaker 04:
I think that IAC is a procedural defect that can lead to a substantive defect.

[00:02:05] Speaker 04:
And so in this case is a good example of that.

[00:02:07] Speaker 04:
It's different in terms of the remedies because

[00:02:10] Speaker 04:
My client was seeking cancellation of removal with his ineffective counsel which he is not eligible for and was never eligible for and the same is true of post-conclusion voluntary departure which is a separate relief from pre-conclusion voluntary departure.

[00:02:23] Speaker 04:
They're statutorily separate and they have different histories as... Cancel, you slow down a little bit.

[00:02:30] Speaker 04:
I'm sorry, Your Honor.

[00:02:31] Speaker 04:
It would be helpful to process what you're saying.

[00:02:34] Speaker 04:
So in this case, the fact that he was statutorily ineligible for the two reliefs that his immigration counsel requested, the IJ was correct to deny those reliefs.

[00:02:45] Speaker 04:
So it's a substantive error because the IAC is shielded because it has not been raised.

[00:02:51] Speaker 02:
But his you're saying the council was deficient because he did not pursue pre-conclusion voluntary departure.

[00:02:59] Speaker 02:
And that's the prejudice.

[00:03:01] Speaker 02:
Correct.

[00:03:01] Speaker 02:
By failing to pursue the only relief to which your client is eligible.

[00:03:07] Speaker 02:
He was prejudiced.

[00:03:08] Speaker 02:
Yes, your honor.

[00:03:09] Speaker 04:
And here, my client was eligible for pre-conclusion voluntary departure.

[00:03:14] Speaker 04:
It was not sought, and so it was not.

[00:03:17] Speaker 04:
When the IJ balances the equities, he said, the IJ said, you're not eligible for this.

[00:03:22] Speaker 04:
So any talk of the equities was basically dicta.

[00:03:26] Speaker 02:
So therefore, when we get to...

[00:03:30] Speaker 02:
the deprived of judicial proceedings, he was because he didn't exhaust that.

[00:03:36] Speaker 04:
Exactly.

[00:03:37] Speaker 04:
And so even on a PFR, as the court surely knows, from the BIA appeal, even if a lawyer had pursued a PFR for judicial review, because it was not exhausted, there's not jurisdiction in the immigration context over unexhausted claims.

[00:03:52] Speaker 04:
The lack of a PFR here isn't actually relevant because PFR or no PFR, he was deprived of the opportunity for judicial review of the ineffective assistance.

[00:04:01] Speaker 04:
Of the preconclusion, the failure to raise.

[00:04:03] Speaker 04:
Exactly.

[00:04:04] Speaker 04:
The only relief for which he was eligible, which is preconclusion, voluntary departure.

[00:04:08] Speaker 04:
In fact, today is, because the district court didn't reach D3, today is the first time any Article 3 judge has ever talked about

[00:04:15] Speaker 04:
the ineffective assistance of clients.

[00:04:17] Speaker 04:
Like this is the first judicial review because he was, excuse me, he was improperly deprived of it prior.

[00:04:24] Speaker 04:
As to prejudice, your honors, as the court is also aware, there's a string of cases that our office and the US Trade Office goes back and forth with voluntary departure or pre-conclusion and whose record is worse and what are the equities.

[00:04:37] Speaker 04:
In this case, we have something unusual, which we focused on, which is that the immigration judge granted Mr. Zuniga

[00:04:42] Speaker 04:
immigration bond like six months before the removal order, which is discretionary relief that the IJ can choose to grant or not grant, and they did.

[00:04:51] Speaker 04:
So the IJ was disposed to favorable views of the equities of Mr. Zuniga's case, and we know that because there was an immigration bond issued in 2003.

[00:05:00] Speaker 04:
In fact, that was the last thing that happened with the council, who was not the ineffective council.

[00:05:04] Speaker 04:
My client had two immigration lawyers.

[00:05:06] Speaker 04:
And after the bond, the new lawyer came in and started pursuing claims that were not viable, which was the IAC.

[00:05:14] Speaker 04:
So here, we have shown prejudice because we have shown discretionary relief given to my client in the immigration process.

[00:05:22] Speaker 04:
There's no reason to think that pre-conclusion and voluntary departure would not have had the same

[00:05:26] Speaker 04:
outcome had it been presented by an effective immigration lawyer.

[00:05:30] Speaker 04:
So here we have shown the deprivation of judicial review, we have shown an effective assistance of counsel, and we have shown prejudice.

[00:05:37] Speaker 04:
What's the third prong, D?

[00:05:40] Speaker 04:
D3 is that the removal proceedings at the wishy-washy were fundamentally unfair, which goes to one, it would be our IAC claim as the unfairness and the prejudice, as we said, is shown by the immigration judge's grant of bond, which is a different form of discretionary relief.

[00:05:56] Speaker 04:
to my client, Mr. Suniga.

[00:05:58] Speaker 01:
On D1, isn't there a difference between exhaustion of administrative

[00:06:06] Speaker 01:
Administrative exhaustion is different from issue exhaustion.

[00:06:08] Speaker 04:
Yes.

[00:06:09] Speaker 01:
And so?

[00:06:10] Speaker 04:
So our position is, and we believe it's right of briefed in my reply brief, exhaustion of administrative remedies, which is the language of D1, is remedy exhaustion.

[00:06:19] Speaker 04:
So in the 1326 D1 sense, you can exhaust by filing an appeal to the BIA, regardless of what issues are raised.

[00:06:27] Speaker 04:
This is distinct from the immigration context, where your BIA appeal and your PFR, there is issue exhaustion in 1252 written into the statute.

[00:06:35] Speaker 04:
which is, I think, but here, and I'd like to note, I found over the weekend, I was looking for what other circuits do.

[00:06:42] Speaker 04:
They contend that we have to file a motion to reopen before we can raise IAC, even when we have appealed to BIA.

[00:06:48] Speaker 04:
That is what sets this case apart from Palomar Santiago, from Portillo Gonzalez.

[00:06:53] Speaker 04:
We appealed to the BIA.

[00:06:55] Speaker 04:
That satisfies D1, period.

[00:06:58] Speaker 04:
The Second Circuit in the United States versus Copeland, 2004 case, I'd be happy to give citations, Your Honor.

[00:07:03] Speaker 04:
And also even the Fifth Circuit, Your Honor, say that you can satisfy D1 for exhaustion either by appealing to the VIA or by filing a motion to reopen.

[00:07:14] Speaker 04:
There is no circuit that I'm aware of that holds that you have to do both in order to exhaust.

[00:07:18] Speaker 04:
So in my view, the government's argument as to D1 in this case is simply wrong.

[00:07:23] Speaker 04:
So as I said, we have satisfied D1, we have satisfied D2, and we believe we've shown both prongs of D3.

[00:07:29] Speaker 04:
If the court doesn't have further questions, I'm happy to save my time for rebuttal.

[00:07:32] Speaker 04:
Okay, please do.

[00:07:34] Speaker 04:
Thank you, Your Honors.

[00:07:45] Speaker 00:
Good morning, Your Honors, and may it please the court

[00:07:48] Speaker 00:
AUSA Nicholas Purcell on behalf of the United States.

[00:07:51] Speaker 00:
There's no dispute here that defendant has to satisfy all three of D1, D2, and D3 in order to prevail here.

[00:07:58] Speaker 00:
Any one of which a failure to satisfy would doom the relief that defendant seeks.

[00:08:05] Speaker 00:
Unless the court directs me otherwise, I'd like to start with D2, because I know that was the focus of my colleagues.

[00:08:11] Speaker 02:
That's the issue in this case, is whether you satisfy D2, right?

[00:08:14] Speaker 00:
I don't agree.

[00:08:15] Speaker 00:
I think D1 is very clearly at issue here.

[00:08:18] Speaker 00:
I think the case law that's cited in the government's answering brief, including Teheda Mahata, Rashabadi, and Hosa Perez, all hold that a motion to reopen when an issue is not raised with the BIA, a motion to reopen is necessary to put that issue before the BIA.

[00:08:37] Speaker 00:
Otherwise, there's a failure to exhaust administrative remedies here.

[00:08:40] Speaker 00:
And that's important because defendant is now using that failure to exhaust as a reason to argue that there was no judicial review available.

[00:08:50] Speaker 00:
The defendant can't have it both ways.

[00:08:51] Speaker 00:
It's using issue exhaustion as both a sword and a shield.

[00:08:55] Speaker 00:
If they couldn't have raised the issue on a direct petition for review before this court in the underlying proceedings, it makes little sense to now argue that they can raise that issue before this court.

[00:09:09] Speaker 00:
is very much at issue here.

[00:09:11] Speaker 00:
A motion to reopen was available.

[00:09:15] Speaker 00:
Defendant failed to seek that motion to reopen and therefore failed to exhaust administrative remedies.

[00:09:20] Speaker 00:
So I do think D1 is very much at issue.

[00:09:22] Speaker 00:
D2, I agree, is also at issue here.

[00:09:25] Speaker 00:
As defendant argued, the appeal to the BIA and therefore generally an appeal to this court or a petition for review to this court was available.

[00:09:35] Speaker 00:
So the only argument is that whether

[00:09:37] Speaker 00:
the IAC claim was not available to be raised.

[00:09:41] Speaker 00:
Again, it could have been raised if a motion to reopen was sought.

[00:09:45] Speaker 00:
And I think the Rashtabhati case is directly on point here.

[00:09:49] Speaker 00:
The petitioner in that case failed to raise an issue before the BIA and then petitioned this court on that issue.

[00:09:58] Speaker 00:
And Rashtabhati found that the petitioner had failed to exhaust administrative remedies because they had not sought to reopen the case with the BIA.

[00:10:08] Speaker 00:
I think that the exact same thing is true here.

[00:10:11] Speaker 00:
The defendant failed to reopen the case.

[00:10:13] Speaker 00:
The BIA, therefore, never had an opportunity to rule on the IAC.

[00:10:18] Speaker 00:
And therefore, the defendant did not exhaust administrative remedies.

[00:10:23] Speaker 00:
And if they had sought to reopen the case, then it could have then appealed a denial.

[00:10:27] Speaker 00:
If the BIA had denied it as untimely or for any other reason, the defendant could have then appealed that BIA order to this court.

[00:10:36] Speaker 00:
Defendant both failed to exhaust administrative remedies and judicial review of that underlying proceedings was available to this court.

[00:10:45] Speaker 00:
Defendant failed to take that opportunity.

[00:10:48] Speaker 00:
I think that's what distinguishes this case from others in which the defendant did appeal, and so certainly there was an opportunity for judicial review.

[00:10:56] Speaker 00:
But failing to take the opportunity to seek judicial review is not the same thing as not having the opportunity.

[00:11:02] Speaker 00:
And D2 is very clear that it's about the opportunity to seek judicial review

[00:11:05] Speaker 00:
not whether that review was actually sought.

[00:11:08] Speaker 00:
And so I think under those published cases, which are presidential here, neither D1 nor D2 was sought.

[00:11:19] Speaker 00:
Tejeda Mata, all of which are cited in the government's brief, but Tejeda Mata, a separate appeal was filed with the BIA.

[00:11:28] Speaker 00:
And then the petitioner sought review in this court on a different issue.

[00:11:33] Speaker 00:
And this court held that

[00:11:34] Speaker 00:
Because the issue had not been raised with the BIA, that review here was foreclosed.

[00:11:39] Speaker 00:
Rashtabadi is, again, another one in which a separate issue was appealed to the BIA.

[00:11:44] Speaker 00:
So it's just simply not true that any appeal to the BIA can exhaust administrative remedies.

[00:11:49] Speaker 00:
It has to be the issue itself that's now before this court that has to be appealed.

[00:11:55] Speaker 00:
And then Hinojosa Perez is a 1326 case.

[00:12:00] Speaker 00:
It was a due process case.

[00:12:01] Speaker 00:
It wasn't IAC, but it was a due process notice issue.

[00:12:04] Speaker 00:
The defendant failed to raise the due process argument with the BIA and then sought to raise that issue before this court in a 1326 collateral attack.

[00:12:14] Speaker 00:
This court in Josa Perez found that the defendant had both failed to exhaust administrative remedies and had failed to demonstrate a lack of judicial review.

[00:12:26] Speaker 00:
Because a motion to reopen had been available, the defendant did not seek to reopen.

[00:12:31] Speaker 00:
and did not, therefore, seek an appeal of that theoretical denial of the motion to reopen.

[00:12:38] Speaker 00:
And so those three cases, I think, are conclusive here that defendant cannot satisfy D1 and D2.

[00:12:49] Speaker 01:
Did he truly have an opportunity to seek judicial review if he didn't know that

[00:12:59] Speaker 01:
that a remedy was available to him that was not argued for, and his lawyer was the one who failed to bring that up?

[00:13:08] Speaker 00:
Yes, excuse me, for two reasons.

[00:13:10] Speaker 00:
I'd say, one, there's nothing in the record that shows that he did not know that.

[00:13:14] Speaker 00:
There's no declaration from either defendant or from previous counsel that he was unaware of that.

[00:13:20] Speaker 00:
So I don't think the record supports that he was unaware.

[00:13:23] Speaker 00:
But even if he was, again,

[00:13:25] Speaker 00:
Whenever he did become aware of it, which clearly at some point he did become aware, a motion to reopen was available then.

[00:13:34] Speaker 00:
If he had sought the motion to reopen whenever he became available, that would have

[00:13:37] Speaker 00:
Exhausted administrative remedies and then he could have appealed that whether the BIA Approved it or denied it presume it would have been a denial But if if the BIA denied it then judicial review of that denial would unquestionably been available in this court so exhaustion requires appealing to the BIA and then reopening moving to reopen to the BIA is that every time and

[00:14:02] Speaker 00:
Not every time, only if you haven't raised the issue with the BIA.

[00:14:05] Speaker 00:
If you've raised the issue that you now seek to bring before this court, then I would agree that a motion to reopen or a motion to reconsider is not required.

[00:14:14] Speaker 00:
That's a remedy that's not required here.

[00:14:17] Speaker 00:
But if you fail to raise the issue with the BIA and then want to raise it before this court, then yes, I think the cases that I've cited are clear that a motion to reopen is required to exhaust administrative remedies.

[00:14:29] Speaker 00:
I think those cases are directly on point.

[00:14:31] Speaker 00:
Without reopening, there's a failure to exhaust administrative remedies.

[00:14:35] Speaker 00:
I'd also like to briefly address, I think, one issue in the reply brief that the government did not have a chance to address, which is this time bar or departure bar preventing a motion to reopen.

[00:14:46] Speaker 00:
That's simply not consistent with this court's law.

[00:14:50] Speaker 00:
I think Iter Burea versus INS, which is 321 F3rd 889, deals with a motion to reopen specifically in the IAC context and finds that there's equitable tolling of a time bar in the case of an IAC.

[00:15:08] Speaker 00:
And so to go to your Honor's point,

[00:15:12] Speaker 00:
If he couldn't have known, and even with diligence, his lawyer was ineffective, but there's no way he could have known that, there would be equitable tolling of that time bar.

[00:15:22] Speaker 00:
And whenever he did become aware of it or should have become aware of it, he then could have raised that AIC in a motion to reopen.

[00:15:28] Speaker 00:
So I don't believe it's correct.

[00:15:30] Speaker 00:
On the law that to say that a motion to reopen was not available because of a of the time bar departure bar.

[00:15:36] Speaker 01:
So are you saying that in 2021 when he was charged with illegal reentry the first thing you should have done is moved to reopen his proceedings at the BIA because he had.

[00:15:45] Speaker 00:
I think it's a tolling.

[00:15:47] Speaker 00:
If that is when he first became aware of it, there's nothing in the record of when he became aware of counsel's ineffective assistance, and that preconclusion voluntary departure would have been the way to go.

[00:15:58] Speaker 00:
But if that is when he became aware of it, then that's what he should have sought to do.

[00:16:03] Speaker 00:
And even if the BIA denied it, then a petition for review to this court would have been available.

[00:16:11] Speaker 00:
And just to briefly touch on the D3 element, I don't think

[00:16:16] Speaker 00:
Either prong of D3 has been satisfied here.

[00:16:20] Speaker 00:
One, I don't believe the record supports that counsel was deficient here.

[00:16:24] Speaker 00:
He made a strategic decision to attack those underlying convictions.

[00:16:30] Speaker 00:
There's a letter from a criminal lawyer in the motion to dismiss that says he believes there was valid grounds to attack the first conviction.

[00:16:39] Speaker 00:
He simply, the defendant didn't have the money to retain that lawyer.

[00:16:43] Speaker 00:
But there's nothing in the record to say that it was impossible for the defendant to attack those underlying convictions.

[00:16:50] Speaker 00:
And if he had been successful in attacking them, then he would have had remedies available.

[00:16:57] Speaker 00:
So making a strategic decision that ultimately didn't work out cannot possibly rise to the level of a fundamentally unfair proceeding, especially when the equities that would have been at issue

[00:17:12] Speaker 00:
were fully raised before the IJ.

[00:17:14] Speaker 00:
The equities were discussed.

[00:17:15] Speaker 00:
The record reflects that.

[00:17:18] Speaker 00:
They discussed his family history, his history in this country.

[00:17:21] Speaker 00:
They obviously discussed his convictions.

[00:17:23] Speaker 00:
So the equities were before the IJ.

[00:17:26] Speaker 00:
There's no prejudice there because the IJ had all of that information in front of him.

[00:17:32] Speaker 00:
There's also nothing in the record to say that the IJ couldn't have granted pre-conclusion voluntary removal.

[00:17:40] Speaker 00:
Opening brief simply states that it should have been foreseeable that the immigration judge would have decided on post-conclusion grounds.

[00:17:49] Speaker 00:
But there's nothing in the record to suggest that it was impossible for the IJ to grant pre-conclusion voluntary departure.

[00:17:56] Speaker 02:
So if the equities raised... So can I ask you a question?

[00:17:59] Speaker 02:
Sure.

[00:17:59] Speaker 02:
Could you raise this motion to reopen issue before the district court?

[00:18:05] Speaker 00:
I believe before the district court, there was an argument that D1 wasn't satisfied.

[00:18:10] Speaker 02:
He says, as presented to the court, resolution of Mr. I mean, that's why I had the impression that this whole case turned on D2.

[00:18:19] Speaker 02:
Resolution of Mr. Zuniga's motion to dismiss turns on the second prong of this standard that he was deprived of judicial review.

[00:18:30] Speaker 02:
I agree, I think that... In the court's opinion, it doesn't sound like D1 was raised.

[00:18:35] Speaker 00:
D1 was certainly raised.

[00:18:36] Speaker 00:
I think that the government's brief clearly said that none of the three prongs were satisfied.

[00:18:43] Speaker 00:
It never conceded that D1 was satisfied here.

[00:18:46] Speaker 00:
I agree that the district court found that D1 was satisfied.

[00:18:49] Speaker 00:
But of course, this court can affirm on any ground supported by the record.

[00:18:53] Speaker 00:
And so because the government challenged the satisfaction of D1 below, it can be more fully fleshed out here with the discussion of a motion to reopen.

[00:19:04] Speaker 00:
And unless there's any more questions, the government seeks affirmance of the district court's grant of the denial of the motion to dismiss.

[00:19:15] Speaker 00:
Thank you.

[00:19:16] Speaker 02:
Okay, just one other point.

[00:19:17] Speaker 02:
He says, regarding the first prong, the government does not meaningfully argue that Mr. Zuniga failed to exhaust his administrative remedies.

[00:19:26] Speaker 02:
That's what the district court says about the argument.

[00:19:29] Speaker 00:
Correct.

[00:19:29] Speaker 00:
I would disagree.

[00:19:31] Speaker 02:
I'm just questioning you further on this, because I haven't heard this particular argument before about the motion to reopen.

[00:19:37] Speaker 02:
Because generally, you have to bring it within 90 days and timely.

[00:19:44] Speaker 00:
Correct.

[00:19:45] Speaker 00:
I think the cases cited don't address this circumstance where the specific issue is not raised.

[00:19:52] Speaker 00:
And so it doesn't often come up, because the issue that was raised below is what is appealed to this court.

[00:19:58] Speaker 00:
So I think it is unique circumstances.

[00:20:00] Speaker 00:
But I think the three cases I cite all deal with this issue where the specific issue is not raised.

[00:20:06] Speaker 00:
And they all find that when that occurs, a motion to reopen is what's necessary in order to fully exhaust administration.

[00:20:15] Speaker 02:
Unless raising it at that time is excused for failure to exhaust or some other thing.

[00:20:23] Speaker 04:
Be interested to hear what your friend on the other side has to say about that thank you Thank you your honors As they did in the answering brief and as we discussed in our apply brief the government is trying to import issue of

[00:20:44] Speaker 04:
exhaustion into a statute that requires remedy exhaustion and car versus all was decided five days before Palomar Santiago and was unanimous the remedy exhaustion you know I can't hear you and you're talking too fast so I can't process what you're saying anyway my so slow down and a little louder in car versus Saul five days before Palomar Santiago and

[00:21:06] Speaker 04:
The United States Supreme Court clarified that remedy exhaustion is not the same as issue exhaustion.

[00:21:12] Speaker 04:
In that case was about social security, not immigration, but exhaustion of remedies is what's required by D1 that is not the same thing as issue exhaustion, which the cases other than Hinojosa Perez, the cases that my colleague cited,

[00:21:26] Speaker 04:
are not 1326 cases, so they're not about the right kind of exhaustion.

[00:21:31] Speaker 04:
As we addressed in our reply, Hinojosa Perez is a 2000 decision of this court that is distinguishable on its facts and has been distinguished on its facts previously.

[00:21:40] Speaker 04:
No circuit that I'm aware of requires both a motion to reopen and a BIA appeal for D1 exhaustion under section 1326, including this court.

[00:21:51] Speaker 04:
I would also note that there are immigration cases that say that

[00:21:55] Speaker 04:
You don't even need to file a motion to reopen for immigration exhaustion because they're discretionary with the BIA.

[00:22:02] Speaker 04:
A BIA can deny a motion to reopen even if a claim has been made in their discretion.

[00:22:08] Speaker 04:
That makes it not a remedy for a due process violation of the Fifth Amendment, as required by Mendoza-Lopez, which is how we got here to begin with.

[00:22:15] Speaker 04:
There has to be a remedy.

[00:22:17] Speaker 04:
namely judicial review of any alleged due processed error in the underlying removal order before it can be used as an element of a criminal conviction such as in this case.

[00:22:28] Speaker 04:
This case will not grant my client voluntary departure or any kind of immigration status.

[00:22:33] Speaker 04:
It only says that an improper due process violative removal order cannot be used to satisfy an element of a criminal prosecution such as this case.

[00:22:43] Speaker 04:
As to D2, to go back to Judge Brown's question, both Gonzalez Villalobos in footnote nine and also Lopez Chavez at page, I think it's 1044, say that clear and effective assistance of counsel shows deprivation of judicial review.

[00:22:59] Speaker 04:
It's not that it excuses it, it shows it, and that's for the reasons we discussed when I was up here before.

[00:23:04] Speaker 04:
the ineffective assistance shields itself from judicial review at every level until you get to 1326 and you have a defense lawyer who raises it.

[00:23:13] Speaker 04:
At least that's how it worked in this case.

[00:23:16] Speaker 04:
And so for the reasons that we've argued, we believe we have satisfied D1, D2, D3, and have shown prejudice.

[00:23:23] Speaker 04:
We would ask the court to reverse and remand with instructions to dismiss the indictment.

[00:23:27] Speaker 02:
Thank you very much, counsel.

[00:23:30] Speaker 02:
Thank you, Your Honor.

[00:23:32] Speaker 02:
OK.

[00:23:32] Speaker 02:
The United States versus Zuniga is submitted.

[00:23:36] Speaker 02:
And the remaining two cases, Lewis v. Jefferson, the Brea, D&J Properties, and Arizmendi versus Bondi are submitted on the briefs.

[00:23:51] Speaker 02:
And the session of the court is adjourned for today.

[00:23:53] Speaker 02:
Thank you very much.

[00:24:05] Speaker 02:
This court for this session stands adjourned.