[00:00:00] Speaker 03:
Good morning, Your Honors, and may it please the court. My name is Fernando Quinones. I represent the petitioner in this case who is challenging both the actual reinstatement order as well as the reinstatement regulations that authorize that order.

[00:00:17] Speaker 03:
The court did instruct us to address those two issues, and so I'll begin with our challenges to the reinstatement order.

[00:00:26] Speaker 03:
The order fails to comply with the regulatory burden that it sets on the officer to establish the three predicate findings, the alienage of the person and identity, the existence of a prior removal order, and the unlawful reentry.

[00:00:48] Speaker 03:
On the face of the order, and together with the rest of the documents that the government submitted as part of its foundation for issuing this order, it is clear that the government failed to establish the unlawful re-entry. On the order, it states in line three that my client re-entered September 21st, 2001 at Ordinia, Calexico, California.

[00:01:17] Speaker 03:
However, there's nothing in the record submitted by the government that supports that assertion. In fact, the document submitted Belied that statement included in the administrative record is the sworn statement that the officer took when beginning the reinstatement interview.

[00:01:39] Speaker 03:
And in that statement, the officer had to read certain warnings of the petitioner's rights in that proceeding. The first right is that he had the right to remain silent.

[00:01:52] Speaker 03:
And he exercised that right in accordance with the officer's instructions. and advisal.

[00:01:59] Speaker 03:
That section on warnings also includes a statement that he has the right to be represented by counsel.

[00:02:06] Speaker 03:
Again, my client chose to assert his right to remain silent and did not answer any of the questions that the officer posed. And so there's no information in that statement about his manner, place, time of reentry.

[00:02:24] Speaker 03:
Additionally, the administrative record includes a form I-213, which is essentially the notes that the officer takes when making these determinations.

[00:02:37] Speaker 03:
In the section concerning his return, the officer wrote that the place and time of return were unknown.

[00:02:48] Speaker 03:
So there's no evidence in the record to support the assertion that he returned on that date near Calexico, California. So, facially, the order is incorrect and invalid because, again, the regulations require the officer to make those determinations. The burden is on the officer and not on the respondent to establish those three predicates. And the officer failed to do that.

[00:03:16] Speaker 03:
The officer apparently searched only sudden some of the records but did not obtain any information about the place, date, or manner of reentry.

[00:03:28] Speaker 03:
So, again, on that basis, we consider the document, the punitive reinstatement order, incorrect.

[00:03:36] Speaker 03:
To piggyback on the discussion that the court had earlier on whether a reinstatement order is final, I would read the language in the version of the reinstatement order that the government issued my client, which is similar but not identical to the one that Judge Wardlaw read just a minute ago.

[00:04:00] Speaker 03:
Prior to the signature by the agent, it states in accordance with Section 241 of the Act, you are removable as an alien who has illegally reentered in the U.S. after having been previously removed or departed voluntarily.

[00:04:16] Speaker 03:
while under an order of exclusion, deportation, or removal, and are therefore subject to removal by reinstatement of the prior order. So this order is a finding of removability. And as the court has pointed out, without this order, an alien cannot be removed and would not be removed. The government would have no authority to force the person to leave or physically send them out themselves. So This is an order of removal.

[00:04:49] Speaker 03:
But in addition to that error, I would like to point out several other mistakes and bizarre things in the documents that, again, undermine the validity of the order. So one of the peculiar things is that the government submitted the original removal order from 2001. That order is...

[00:05:13] Speaker 03:
directed to Efrain Velazquez-Reyes. My client's name is Efrain Velazquez-Reyes. The order that the officer issued at the border, which is at page three of the administrative record, which is the basis for the reinstatement and what the government purports to try to reinstate indicates the reason for their inadmissibility and deportability of this person, and then contains a signature of the subject.

[00:05:57] Speaker 03:
The signature is written, not signed. As you can tell from the reinstatement order and the notice of that, that my client signed, he has a cursive signature. This person signed not in handwriting, but a printed name, again, Efren Velazquez Reyes, which, again, is not my client's name, but also has a different spelling for the last name than the name on the top of the reinstatement order form.

[00:06:35] Speaker 03:
So while we are not challenging that form in this petition, we are challenging the validity of the reinstatement order that purports to reinstate an order that is addressed to somebody else and that contains a signature that looks essentially like a forgery.

[00:06:58] Speaker 02:
If you look at the... Counsel, can I, just to clarify, you're saying that you're not challenging that prior order, but you...

[00:07:11] Speaker 02:
Are you saying that that prior order does not pertain to your client?

[00:07:17] Speaker 03:
What I'm saying is that the officer who issued the reinstatement order did not do the job he was required to by confirming that this order was a valid order that he could apply to this person, to Efrain.

[00:07:32] Speaker 03:
There's no note in the I-213 or any of the other documents that the government submitted to show that this officer noted that difference and that should have drawn questions and required further research to confirm that this order was valid. Again, given that it shows a signature that is not my client's and that likely was filled in by whoever prepared or the person who prepared the order, as you can tell by the way that they write their Es.

[00:08:08] Speaker 03:
It's a similar E, that the person who prepared this order writes when it says C, F-I-N-S, et cetera.

[00:08:19] Speaker 03:
So the officer at the restatement.

[00:08:22] Speaker 01:
Excuse me.

[00:08:23] Speaker 03:
Yes.

[00:08:25] Speaker 01:
So your client was later granted withholding a removal in his reasonable fear proceeding.

[00:08:37] Speaker 03:
Correct.

[00:08:38] Speaker 01:
And are you challenging that?

[00:08:41] Speaker 03:
No, we are challenging the reinstatement order, not the withholding grant.

[00:08:47] Speaker 01:
Is the withholding grant in the correct name?

[00:08:51] Speaker 03:
Yes.

[00:08:53] Speaker 03:
My client's actual name, yes.

[00:08:56] Speaker 01:
Okay. This is kind of a strange posture.

[00:09:01] Speaker 03:
It is. And to summarize for the court, my client came in 2001 with, Sorry, he was here before that. He returned to Mexico in 2001. He was apprehended and issued disorder, at least from what I can tell, based on the government's assertion that this is an order relating to him. He was issued disorder and returned to Mexico. He then returned later.

[00:09:33] Speaker 03:
The manner of his entry will also be important if we get to that point, but he returned later. And then in 2012, he filed for asylum in May of 2012. In July 2012, he came to the attention of ICE through an arrest by the state for a non-disqualifying crime. He was transferred to ICE in July, and that's when ICE issued this reinstatement order.

[00:10:02] Speaker 03:
His asylum application, however, again, had already been filed in May. He had already complied with biometrics requirements And so he had done everything he had to do in order for his right to apply for asylum to vest at that moment in May. And at the time that the reinstatement order was issued, he had this protected vested rights to have his asylum application adjudicated. The officer, however, initially in the Act 213, normally the officer has to check, and as required by the regulations, they have to check several databases to confirm all of the different factual requirements here.

[00:10:40] Speaker 03:
And the officer initial database check showed that there were no pending applications, which is not accurate. Later, the officer did note that he had an asylum application that was pending under a different number because immigration assigned him a different number, probably by mistake. But one of the many mistakes that the government has made in this case that let us to this long of a delay. After the reinstatement order, he was put in withholding proceedings.

[00:11:12] Speaker 03:
Initially, those were terminated by the judge, who agreed with us that his asylum application had to be adjudicated. The asylum office refused to adjudicate it and sent it back to immigration court for withholding only proceedings again, at which point, after multiple reschedulings from the government, he was finally granted withholding in 2025.

[00:11:32] Speaker 03:
And then we filed the position for review, given that the law at the time did state that we had to wait until the withholding decision in order for the reinstatement order to be considered final. So in addition to all these issues in the record that undermine the validity of the order, as the officer informed my client, he had a right to review.

[00:11:57] Speaker 00:
I'm sorry. Excuse me, counsel. Yes. I'm trying to figure out what. Are you arguing that the order wasn't final or it wasn't valid?

[00:12:06] Speaker 03:
That it's not valid because it does not contain, the government did not prove the manner of reentry or the date of reentry. The government also denied my client the right to have his attorney present. As mentioned, his application was filed in May together with a notice of appearance of present counsel. So had the officer done the correct database checks, he would have found my information and contacted me so my client could have had the right to be represented as the officer informed my client, but denied him that.

[00:12:41] Speaker 00:
So what is your position on the point of whether the petitioner re-entered after the issuance of his removal order?

[00:13:00] Speaker 03:
I'm not sure I understand the question.

[00:13:02] Speaker 00:
In your view, did your client re-enter after the issuance of the removal order?

[00:13:12] Speaker 03:
He did re-enter, but again, the manner of his re-entry has not been addressed and was not addressed during the reinstatement procedure because there are arguments that would indicate that the entry should not be taken.

[00:13:25] Speaker 00:
So are you saying you're going to You're trying to argue because you say the manner of his reentry. Are you trying to say that he reentered legally?

[00:13:39] Speaker 03:
Yes, he.

[00:13:42] Speaker 00:
Or because look, it seems like we have to if there's substantial evidence that supports that your client illegally, illegally reentered after the issuance of the removal order.

[00:13:58] Speaker 00:
I'm not quite sure how you can be aborted relief here.

[00:14:05] Speaker 03:
So, Your Honor, there is no substantial evidence. As I mentioned, the only evidence that the government relied on, which is in the record, shows that there was no information as to the manner of date of reentry. And it is the regulations, if they are still in place after this, do require the government to establish those facts.

[00:14:26] Speaker 00:
But he concedes, or you concede, that he reentered after the reinstatement order, correct?

[00:14:36] Speaker 03:
I concede that he reentered, yes, but I'm not conceding the date, place, time, or manner. That has never happened. Your Honor, I'm almost out of time, but we also would like the court to review the regulations, the recent regulations, that it is authorized to do and revisit its holding in Morales-Izquierdo under the current direction of the Supreme Court that requires the court to issue an independent judgment about whether these regulations are the best reading of the statute.

[00:15:16] Speaker 03:
They are not because they put multiple other sections in conflict. Some of it, which is in our brief already, But we would also ask the court to invalidate the regulations, not just the order.

[00:15:31] Speaker 01:
But then what happens to your withholding? You have a grant of relief. Correct. Is it holding from, is it Honduras?

[00:15:41] Speaker 03:
No, Mexico.

[00:15:41] Speaker 01:
Mexico. It's just withholding from, it can't be deported to Mexico.

[00:15:46] Speaker 03:
Correct. But as we have seen, the government can try to remove people to third countries who have withholding. So.

[00:15:53] Speaker 03:
That is why we're asking for the reinstatement order to be vacated so that there is no question about whether he is eligible also for asylum and to have his vested asylum application adjudicated finally.

[00:16:06] Speaker 01:
So you're worried that unless the reinstatement order is done, he will be deported to some third world country? Yes.

[00:16:19] Speaker 02:
Yes.

[00:16:24] Speaker 01:
Okay.

[00:16:26] Speaker 01:
I don't know how we make that determination. It seems like a factor of fact would have to make the factual determination.

[00:16:35] Speaker 03:
This is a review that this court is authorized to do of the reinstatement order and whether it complies with the regulation and the burden of proof that the government has under that regulation. If the court does agree that those regulations are valid, then that would also undo the reinstatement order. But the court does have a right to review whether the government complied with its own regulations. And in this case, it did not.

[00:17:07] Speaker 00:
All right. Thank you.

[00:17:09] Speaker 03:
Thank you.

[00:17:19] Speaker 04:
May it please the court, Robert Tennyson for the government.

[00:17:25] Speaker 04:
Let's just go to the merits of this. I think there are jurisdictional issues. There are jurisdictional issues with the challenge to the reinstatement. We've discussed that in other cases. I think there's one specific to this case, but let's just start with the merits.

[00:17:38] Speaker 04:
So the petitioner is complaining that his reinstatement order is invalid because the agency's statement of a particular time and place on the reinstatement order is not justified by the record.

[00:17:52] Speaker 04:
but the petitioner failed to exhaust that challenge.

[00:17:57] Speaker 04:
There's a box that says, I do not challenge, do not wish to make a statement contesting this determination.

[00:18:04] Speaker 04:
He checked that.

[00:18:06] Speaker 04:
So all those three predicates, he could have made a statement. He could have come in and said, I did not enter unlawfully on that date, or I did not enter unlawfully at all, but he did not. And because he did not exhaust it, this court can't consider that issue.

[00:18:24] Speaker 02:
Is there a concern that – and I'm not sure I'm totally tracking counsel's argument – that it may not have been his client? That it may not have been – His client.

[00:18:33] Speaker 04:
His client. So, right, he's made that argument. Now, I'd start by looking at pages eight of the record where it lists – this is the run of the fingerprints, right? And it runs the fingerprints under the name Efren Vasquez-Reyes.

[00:18:51] Speaker 04:
pops up another name, and the other name is Efren Velasquez-Riaz. So he's been using another name.

[00:18:58] Speaker 04:
The thing is, is that it's not that the agency got it wrong. It's that the petitioner in this case has been using multiple identities. And he was only found out when he was arrested, and then his order was reinstated by the DHS, by the department.

[00:19:16] Speaker 04:
And he could have raised that challenge as well to the agency. I mean, he could have said, You know, he could have issued a statement saying, I'm not, you've got the wrong guy. But again, he did not make a statement. He did not exhaust that issue.

[00:19:31] Speaker 01:
Council for Mr. Vasquez says that he wasn't represented in these proceedings and he did have counsel of record.

[00:19:46] Speaker 01:
So does that bear on this at all?

[00:19:49] Speaker 04:
Right. So There are two different things in play. There is the record of sworn statement, which can serve multiple functions, right? It can support a reinstatement order. It can also support criminal proceedings. And so as a result, you have a right to counsel in there, and you can refuse to make a statement to the ICE officer under that. Reinstatement is a completely different thing because that's a civil proceeding. And under Ruiz, this court recently held that you do not have a right to counsel in your reinstatement proceedings.

[00:20:23] Speaker 04:
So his claim in that regard is foreclosed by very recent precedent of this court.

[00:20:34] Speaker 04:
Going to his challenge to the reinstatement regulations of this court, let me give you a break.

[00:20:42] Speaker 04:
Going to the challenge of the reinstatement regulations, I believe that his argument that Loper Bright opens the world up is incorrect under Loperbright. Again, the court said that stare decisis continues to apply to court decisions under Chevron, and this court has followed that. I believe it's Lopez, and unlike my colleague who can remember names of cases very easily, Maria Chavez. I had to look it up. All of that forecloses this court reopening the sort of alignment of the asylum statute and the reinstatement statute.

[00:21:20] Speaker 04:
But if this court were to get into it, it should follow its prior decision, finding that the reinstatement statute, I mean, and finding that the reinstatement statute, just denial of relief, prevents an individual from seeking asylum in removal proceeding. I mean, in, I guess, withholding only proceedings or administrative proceedings after a reinstatement.

[00:21:48] Speaker 04:
Specifically, I'll just go back to, one, the asylum statute itself allows the Attorney General to make new exceptions from eligibility. That's 1182, let's see, B2B. So the Attorney General could and did, through the reinstatement regulations, make an exception for people who have been reinstated and said they cannot get asylum. Two, and this has been covered by this court.

[00:22:14] Speaker 04:
The question is to which statement, whether the asylum provision or the reinstatement provision is more authoritative. The asylum provision is more authoritative. This court previously said it's not because in addition to forms of relief like asylum, it references things like withholding of removal, provisions under the CAT, U visas. But we now know the provision, the protection claims under the CAT are not seeking relief from removal at all. They are seeking protection from removal to a particular country. They're outside of it. And U visas are...

[00:22:45] Speaker 04:
I think probably there's a problem with regard to, one, you can seek a waiver under 1182 D3A in the U visa context, and that gets rid of ineligibility for a visa as opposed to some form of relief. So as a result, we can see that relief means relief, and asylum is a form of relief that is overcome.

[00:23:15] Speaker 04:
Further, the reinstatement provision is more specific, right? The asylum provision speaks generally of any alien, you know, who is a refugee, et cetera, et cetera, et cetera, regardless of status, there is that language, but any alien.

[00:23:31] Speaker 04:
Reinstatement orders refer to a very specific subclass of alien or individuals, and those are ones who have a final order of removal and have illegally reentered, and That's a more specific provision. So all of these things, all of these aspects of the reinstatement statute vis-a-vis the asylum statute require that this court find that individuals whose orders are reinstated are not eligible for asylum.

[00:24:10] Speaker 04:
This court has no further questions for me.

[00:24:14] Speaker 00:
Thank you.

[00:24:19] Speaker 00:
Mr. Quinones, you're out of time, but I'll give you one minute to rebut.

[00:24:27] Speaker 03:
Yes, Your Honor. First, with respect to whether the court can review the regulations, the government cited Murillo Chavez multiple times today, but in that case, the court actually did exercise independent determination about constant moral turpitude after acknowledging that it was his duty to do so under Loper Bright. The government today also asserted that my client has been using different names. Those names were not, he didn't use them.

[00:24:57] Speaker 03:
Those were assigned to him by the agency. Same with the multiple A numbers. He did not use that or invent that number himself. That was assigned to him by the agency. So that's an inaccurate statement on the government's part. to accuse my client of something he has not done.

[00:25:15] Speaker 03:
The other highlight, again, is that his application for asylum and his right to have his application for asylum was vested, and this court should not allow the application of these regulations to divest him of that right. Again, he filed for asylum before, complied with the biometrics requirements, and that was all he had to do except to wait for the interview that the Islam office never gave him.

[00:25:42] Speaker 03:
Thank you, Your Honor.

[00:25:43] Speaker 00:
Thank you. The case of Vasquez Reyes versus Blanche is now submitted. I appreciate your oral argument presentations, Mr. Quinones and Mr. Tennyson. The last case of Donate Cortez versus Blanche has been submitted on the briefs. So that concludes our calendar for today. Thank you all very much. We are adjourned.

[00:26:09] Speaker 00:
All right.