[00:00:00] Speaker 00:
Thank you, Chief Judge Murgia, and may it please the court.

[00:00:05] Speaker 00:
Patrick Fuster on behalf of petitioner Rafael Zaragoza-Rios.

[00:00:09] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:12] Speaker 00:
Legal errors prevented Zaragoza's application for cancellation of removal from even being considered on the merits, and also cut short his request for humanitarian relief.

[00:00:23] Speaker 00:
To roadmap where I'm headed, I have three buckets of arguments.

[00:00:26] Speaker 00:
First, the threat convictions don't involve moral turpitude,

[00:00:30] Speaker 00:
under the categorical approach.

[00:00:32] Speaker 00:
Second, moral turpitude is not an intelligible principle under the non-delegation doctrine to begin with.

[00:00:38] Speaker 00:
And third, legal errors riddle the agency's consideration of asylum, withholding, and cat relief.

[00:00:44] Speaker 00:
Unless the court wants to take me somewhere else first, I'll start with the categorical approach.

[00:00:49] Speaker 00:
An offense is a categorical match only if every possible way of getting convicted would involve moral turpitude.

[00:00:56] Speaker 00:
We can determine the possible ways of getting convicted

[00:00:59] Speaker 00:
Either by looking at the breath of the statutory language, looking at actual applications of the statute in practice.

[00:01:06] Speaker 00:
Here we know to a verifiable certainty that California courts were convicting people under penal code section 422 for acts that didn't meet this court's definition of moral turpitude, which requires unequivocal threats of immediate harm.

[00:01:19] Speaker 04:
If that is true, and I have some questions about the California cases, which we can get to, but if that is true, doesn't that mean that our decision in Ladder Singh was wrong?

[00:01:31] Speaker 00:
No, Your Honor, because Ladder Singh addressed only one issue in the case, and it was looking at the statutory elements.

[00:01:38] Speaker 00:
Do they overlap with this court's definition of moral turpitude?

[00:01:40] Speaker 04:
Right, and we said that they did, categorically.

[00:01:44] Speaker 04:
So if the elements of the, like, you can't be convicted under the statute unless you have satisfied the elements of the statute, right?

[00:01:53] Speaker 04:
So if the elements of the statute are a categorical match for moral turpitude, then it cannot be the case that the statute is being applied to conduct that doesn't match moral turpitude.

[00:02:06] Speaker 04:
And conversely,

[00:02:07] Speaker 04:
if the statute is being applied in such a way, then we must have been wrong in Ladder Singh when we said that the statute categorically constitutes moral turpitude.

[00:02:19] Speaker 04:
Right?

[00:02:19] Speaker 00:
Well, this court was not wrong because no one had presented the argument that there were actual applications of the statute that fell outside the statutory elements.

[00:02:27] Speaker 04:
But there can't be applications of the statute that fall outside the statutory elements.

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I mean, the elements define what the statute is.

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And if it's being applied to

[00:02:38] Speaker 04:
conduct that isn't within the elements of the statute, then it's being applied to conduct that it's not a crime.

[00:02:44] Speaker 00:
Yes, I agree with that in part.

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But this is how the Supreme Court saw it in Taylor.

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And I think before Taylor, there was some uncertainty about the relationship between when we look at the statutory elements, when we look at the applications.

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And I think before Taylor, it was largely thought that we look at the applications to better understand.

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Even though it seems as though the statute is overbroad, it's actually being applied more narrowly.

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But what Justice Gorsuch said in Taylor is we look at first whether there is overlap.

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And we also ask whether state courts are applying to conduct in a special, non-generic way that would not fall within the relevant definition.

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So I think post-Taylor, there is no question that there are two different ways to show a categorical mismatch.

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And this court has said that in Alfred, Keyes, DeFrance.

[00:03:28] Speaker 04:
So it is your view that

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It is an element of the California statute that you engage in conduct that puts a person in imminent fear of violence.

[00:03:45] Speaker 04:
That's an element of the California statute.

[00:03:48] Speaker 04:
But California courts apply the statute to conduct that doesn't do that.

[00:03:53] Speaker 04:
Yes, and I think this is like a really... So I mean, aren't you saying that California is like routinely either violating state law or violating the due process clause or both?

[00:04:02] Speaker 04:
I mean, like, if California is convicting people of conduct that doesn't satisfy the elements of the criminal statute under which they're being convicted, that seems like a serious problem going on in California, doesn't it?

[00:04:15] Speaker 00:
I agree, and this is a rare case.

[00:04:16] Speaker 00:
So I want to be clear.

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In most examples, when you look at the statutory elements, you look at the way it's being applied.

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it should be complete overlap.

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So both paths will lead to the same destination.

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But this is a rare case where the statute was amended to require express threats, written or verbal.

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The California AG took the position that we can extend it more broadly to gestures.

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And in doing that, it swept up these ambiguous gestures that would not meet what this court said was necessary.

[00:04:41] Speaker 03:
Right.

[00:04:41] Speaker 03:
But the California cases you cite seem to all include some verbal threat.

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Unless I'm misreading them.

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What's the best case you have that's just a gesture?

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Ty S. And in Ty S, there were two girls.

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They had been kicked out of school for bullying or something of that nature.

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The director of the school drove up and just happened to see them on the side of the block.

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One girl said I had a verbal threat.

[00:05:09] Speaker 00:
She said, I'm going to kill you, B, something of that nature.

[00:05:12] Speaker 03:
Isn't that a verbal threat?

[00:05:13] Speaker 00:
And then the other girl, all the other girl did was just throw up gang signs and like whoop something behind them.

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And they said, not just the one girl who had made the threat could be convicted, but the other girl too.

[00:05:24] Speaker 04:
But the court said there was joint and concerted action by appellant and her companions.

[00:05:29] Speaker 04:
So shouldn't we read that as they're sort of imputing the verbal conduct to

[00:05:39] Speaker 04:
The accomplice, even though the accomplice did not personally say it, she was part of a concerted plan where somebody said it.

[00:05:48] Speaker 00:
I don't think that necessarily helps the government here if we do try to impute because I'm not aware of any generic way of imputing the conduct in that nature.

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The court did not say, here we had a conspiracy.

[00:05:58] Speaker 00:
Hard to believe because the director just drove up and stopped next to them on the street.

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There was no aiding and abetting.

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So it is, I agree, it's loose language, concerted action.

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There was nothing here that would be generic conspiracy, generic idiom vetting.

[00:06:10] Speaker 04:
It's taking a step back.

[00:06:13] Speaker 04:
Where do you get the requirement that the sort of federal generic threatening conduct that would constitute a crime of moral turpitude has to be verbal?

[00:06:25] Speaker 00:
I'm not saying that only verbal threats can have it.

[00:06:27] Speaker 00:
I'm saying that in Ladder Singh, this court identified three aspects of the statute that should have cabined it to morally turpitudinous threats.

[00:06:35] Speaker 00:
So the first one was that it had to be a threat to do something that would itself be morally trippertune, as they said, death, serious harm.

[00:06:42] Speaker 00:
It's a narrow category of speech that is likely to instill immediate fear in the person.

[00:06:47] Speaker 00:
And then you also had to have the specific intent.

[00:06:50] Speaker 00:
So my argument, and you can see this in the facts of the cases, is that when the courts extended it more broadly into the area of nonverbal threats, they were sweeping in conduct that didn't have those limiting features, like here.

[00:07:02] Speaker 00:
throwing up gang signs behind someone else who had made a threat, which I don't think, I mean, I don't know what moral turpitude is.

[00:07:07] Speaker 03:
But it's kind of, I mean, all those cases include some verbal threat.

[00:07:12] Speaker 03:
They also included a gesture.

[00:07:15] Speaker 03:
So it's difficult for me to read that, is that the California courts were expanding the definition.

[00:07:23] Speaker 00:
There was uncertainty over exactly what it meant for something to be a verbal or a threatened threat.

[00:07:28] Speaker 00:
And we see that came to a head in Gonzalez, and Gonzalez was,

[00:07:31] Speaker 00:
charged as a pure gestures case as the person outside the restaurant, cars driving away, does like a gun sign to the hood of the car, ends up court of appeals saying that would be enough, send it back down for a trial.

[00:07:44] Speaker 00:
And it's only in 2017 that the California Supreme Court says, we've had this persistent practice of charging these gestures as threats.

[00:07:52] Speaker 00:
The statute requires an express one.

[00:07:54] Speaker 04:
But I mean, gestures, both gestures and words,

[00:07:59] Speaker 04:
like derive their meaning not from, you know, like.

[00:08:04] Speaker 04:
logical parsing of, you know, grammar and applications of definitions.

[00:08:07] Speaker 04:
Their meaning comes from social convention and context.

[00:08:11] Speaker 04:
And there are contexts in which a gesture can be an unambiguous threat of immediate violence.

[00:08:18] Speaker 04:
You don't dispute that general proposition.

[00:08:20] Speaker 00:
I agree.

[00:08:21] Speaker 04:
I agree with that, Your Honor.

[00:08:22] Speaker 04:
So, like, why can't we read, I mean, both Thayas and Gonzales as saying essentially that, like, in those contexts, like, you know,

[00:08:33] Speaker 04:
Sure, in some places a gang sign is just a gang sign, but in some situations a gang sign means, like, you know, I am going to kill you now because, like, this is the territory of my gang and you shouldn't be here.

[00:08:46] Speaker 04:
And that's essentially what was going on in those cases, or in Gonzales at least.

[00:08:52] Speaker 00:
I mean, I agree it depends on how you read the actual facts, but I do want to be clear about something and Chief Judge McGee, you had asked best case.

[00:09:01] Speaker 00:
I think Nico Romero is a really good example of how this should work in practice.

[00:09:06] Speaker 00:
Judge Fletcher from 2008, where the court did three moves, which I think are all very helpful.

[00:09:10] Speaker 00:
One was at first said, we're looking at the statute and the elements sound really bad just looking at the face of them.

[00:09:15] Speaker 00:
It was a child molestation statute.

[00:09:17] Speaker 00:
But then the court said, but in practice, California courts have applied it more broadly than the language would suggest.

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The second move was that the court said, we can look to unpublished decisions under Duane Alvarez to determine whether there was a realistic probability that the statute was being applied to condone the generic test.

[00:09:33] Speaker 00:
And then the last move was to say, and this was a fight between Judge Fletcher and Judge Bybee, Judge Bybee was saying, well, we know there was a conviction, so the trier effect must have found that the person had done whatever was necessary to meet the elements.

[00:09:46] Speaker 00:
And what Judge Fletcher said was, no, that's a circular way of looking at it.

[00:09:49] Speaker 00:
It would basically take away the second path and lead it to never being able to provide any separate relief.

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And I do want to be clear.

[00:09:55] Speaker 00:
That portion of the opinion, just that last one, was joined by only Judge Fletcher.

[00:09:59] Speaker 00:
Judge Parkerson didn't disagree on the framework.

[00:10:02] Speaker 00:
He just disagreed on the application to that particular case.

[00:10:05] Speaker 00:
So I want to be clear about that.

[00:10:06] Speaker 00:
But I do think, if you're looking for a roadmap of what maps onto this case, it would be Nico Del Romero.

[00:10:12] Speaker 03:
Do you want to get to the non-delegation?

[00:10:14] Speaker 00:
Yes, I'm happy to.

[00:10:15] Speaker 00:
And I know it's not every day that someone brings a non-delegation challenge, even less frequently than somewhat, you know, that a court... Probably heard two this week.

[00:10:21] Speaker 03:
Here's the second.

[00:10:22] Speaker 03:
So go ahead.

[00:10:24] Speaker 00:
But I did want to say that, you know, people always say one good year, two decisions in 1935.

[00:10:28] Speaker 00:
If there is a third violation out there, I think it would be this statute.

[00:10:33] Speaker 00:
There was no other statute which has been under such sustained criticism for so long that has a track record like this one.

[00:10:39] Speaker 00:
And that is a standard that really has no objective determinant limits.

[00:10:43] Speaker 00:
We're starting with

[00:10:44] Speaker 00:
Moral turpitude, and I don't think there's any way for the public or Congress to be able to tell whether the statute is being properly applied We've had this game of really starting in when it was first introduced the immigration law in the late 1890s this game of hopscotch where the agency decease Can I take it to this offense and then the courts are enlisted in making these moral determinations?

[00:11:04] Speaker 00:
About whether the agency has drifted too far from moral turpitude and as we point out in the brief

[00:11:09] Speaker 00:
If there is any core, it really is fraud offenses, certain offenses involving sexual impropriety.

[00:11:15] Speaker 00:
I think if there is a way to save the statute, it would be going down that path.

[00:11:19] Speaker 00:
But there's no argument that under some term of art or historical meaning that the government invokes that this sort of threat offense would be swept in.

[00:11:27] Speaker 00:
And I do want to point out what I think is the biggest problem about moral turpitude remaining on the books.

[00:11:32] Speaker 00:
Congress has addressed lots of different offenses and said that they make you subject to removal, that they

[00:11:39] Speaker 00:
Disqualify you from seeking cancellation of removal Congress has even done that for threat offenses aggravated felony picks up crime of violence if there's an element of threat of use of force But Congress said when they address the specific question only if you have a sentence of at least a year We don't have that here was at 180 day sentence so

[00:11:56] Speaker 00:
We have cases which are falling outside the categories they were designed to be in, and then moral turpitude is just sweeping everything in, without any real intelligible principle to determine what the outer limits are.

[00:12:09] Speaker 04:
You refer to Justice Jackson's observations about the problems with moral turpitude, which I think are well taken, like most of his observations were.

[00:12:20] Speaker 04:
But that was 80 years ago, and the Supreme Court has not

[00:12:25] Speaker 04:
Seen fit to do anything based on that in the 80 years since then So shouldn't we view there's a lot of water under this bridge, right?

[00:12:38] Speaker 04:
Shouldn't we view that as a sort of you know, the Supreme Court has explicitly ever said like this is not a non-delegation problem, but they

[00:12:47] Speaker 04:
I've strongly suggested that it isn't one, because they keep on doing it.

[00:12:53] Speaker 04:
Why is it up to us to tell them to stop?

[00:12:56] Speaker 00:
I think the government would agree that there is no Supreme Court precedent, no precedent from this court on the non-delegation question.

[00:13:03] Speaker 00:
And I think there are ways that the vagueness challenges, and of course, we have our problems with that.

[00:13:07] Speaker 00:
We're preserving that for later.

[00:13:08] Speaker 00:
But there are ways that the vagueness challenges could have been rejected that would have effectively put the nail in the coffin for the non-delegation claim.

[00:13:15] Speaker 00:
It would say the statute provides fair notice.

[00:13:17] Speaker 00:
The statute inhibits arbitrary enforcement.

[00:13:19] Speaker 00:
But that's not what this court said.

[00:13:21] Speaker 00:
This court said that the administrative and judicial applications of the statute provide fair notice about how it's going to be applied in future cases.

[00:13:29] Speaker 00:
And that's not the solution to a non-delegation problem.

[00:13:32] Speaker 00:
That's the source of it.

[00:13:33] Speaker 00:
It's that courts and the executive agency have been exercising this legislative power to sort of extend the statute over and over and over again.

[00:13:42] Speaker 00:
So I think I'd agree with you.

[00:13:43] Speaker 00:
in theory in certain cases, but I think this one is actually one that points up that there could be a non-delegation problem even without a... So you think the Fourth Circuit got it wrong?

[00:13:52] Speaker 00:
Yes.

[00:13:53] Speaker 00:
And it's not often I say that about Judge Wilkinson, but if I want to point out the main thing, I mean, one, consumers research wasn't yet on the book.

[00:14:00] Speaker 00:
And I do think that when you read the transition from Gundy to consumers research that the Supreme Court is starting to tighten up the standard even more, brought in one of the Gundy dissenters into the consumers research majority.

[00:14:12] Speaker 00:
And the other thing is that

[00:14:14] Speaker 00:
Judge Wilkinson looked at just the statutory term in the abstract.

[00:14:18] Speaker 00:
The court has upheld things like, you know, public interest, fair and reasonable.

[00:14:23] Speaker 00:
But what the Supreme Court said is that we don't take those terms in the abstract.

[00:14:26] Speaker 00:
Public interest does not mean do whatever you think is best for the public.

[00:14:29] Speaker 00:
That in a particular statutory context, it can have a narrower meaning.

[00:14:33] Speaker 00:
Like NBC, when you're issuing radio licenses, consider whether issuing this license will increase the options available to the listening.

[00:14:41] Speaker 00:
public.

[00:14:41] Speaker 00:
But here you go to context, and it's not like moral turpitude has any more definite meaning when you look at the other offenses as listed next to the way that it's being used in the statutory scheme.

[00:14:51] Speaker 00:
And if there are no more questions on non-delegation, I just wanted to hit on one of the arguments for humanitarian relief.

[00:14:57] Speaker 00:
We stand by what we said in the brief.

[00:14:58] Speaker 00:
I think the asylum is probably the cleanest legal error, because we have a decision from this court saying, legal rule, you consider harm to parents that are witnessed by the child.

[00:15:07] Speaker 00:
That is personal persecution to the child.

[00:15:09] Speaker 00:
And what the IJ said is, no, I'm going to weed that information out instead of weighing it because it wasn't closely tied to Zaragoza when he was a child.

[00:15:17] Speaker 00:
I think that's just a clear legal error under Hernandez Ortiz.

[00:15:20] Speaker 00:
Unless there are any further questions.

[00:15:22] Speaker 02:
Thank you.

[00:15:23] Speaker 00:
Thank you.

[00:15:29] Speaker 01:
Good morning.

[00:15:29] Speaker 01:
May it please the court?

[00:15:30] Speaker 01:
Robert Tennyson for the government.

[00:15:32] Speaker 01:
We start back with the whether or not this offense for 22 California Penal Code is a crime involving moral turpitude.

[00:15:39] Speaker 01:
This court has said it has letter saying and despite what petitioner has argued here.

[00:15:45] Speaker 01:
Neither miller began me which talks about overruling statutes or care Luke.

[00:15:50] Speaker 01:
Which discusses I guess under ruling statutes where this court hasn't addressed an issue Allow this court to be to revisit latter saying There's no case by the California Supreme Court that has changed the course of the law and in this case in latter saying this court wasn't just Deciding some you know, this wasn't

[00:16:15] Speaker 01:
Deciding whether or not this was a crime involving moral turpitude, it wasn't just assumed or put off to the side or set the analysis aside.

[00:16:22] Speaker 01:
The court specifically addressed whether or not Section 422 of the California Penal Code is a crime involving moral turpitude.

[00:16:29] Speaker 02:
Can I ask you a question?

[00:16:32] Speaker 02:
Sure.

[00:16:33] Speaker 02:
Is it your position that if the litigants in Laddersing had raised the argument that the petitioners raising here in this case regarding the realistic probability, the Duenas-Alvarez argument, the Laddersing panel could have addressed it?

[00:16:53] Speaker 01:
Oh, yes, they could have if he had raised it.

[00:16:55] Speaker 01:
But all sorts of arguments can be raised by petitioners in cases with regard to specific issues.

[00:17:03] Speaker 02:
I know.

[00:17:04] Speaker 02:
Would they have reached it?

[00:17:05] Speaker 02:
Would they have been able to reach it, that panel?

[00:17:07] Speaker 01:
Would they have been able to reach the issue had they come in and said, oh, there are these state law cases?

[00:17:12] Speaker 02:
The realistic, yeah, the state law cases.

[00:17:14] Speaker 01:
And the realistic probability requires it to be read this way, right?

[00:17:18] Speaker 01:
This court could have addressed it.

[00:17:19] Speaker 01:
Head on, absolutely.

[00:17:22] Speaker 02:
So I guess that's why I'm trying to understand why, if the argument was never raised before Latterson, why can't we raise it?

[00:17:31] Speaker 02:
Why can't it be raised today and considered today, especially in light of Taylor?

[00:17:36] Speaker 01:
Right.

[00:17:37] Speaker 01:
One, I don't think Taylor changes the compass.

[00:17:40] Speaker 01:
Taylor is no more than just an extension of Duane Alvarez.

[00:17:43] Speaker 01:
It's the same thing.

[00:17:44] Speaker 01:
That's one.

[00:17:46] Speaker 01:
Two.

[00:17:49] Speaker 01:
And I don't want to belabor the point on whether or not this court can reconsider it.

[00:17:54] Speaker 01:
But that way, if you were to do that, any time someone comes up with a new argument or a new reason to reconsider an issue that is decided where you don't have a clearly irreconcilable decision in the midst of it, the prior panel plural essentially means very little.

[00:18:19] Speaker 01:
Because issues once decided are binding, and they should be, unless either A, I guess what, a future court has made a decision that is clear to a higher court like an on-bond panel.

[00:18:33] Speaker 02:
I'm just trying to figure out our case law here because you argue that facial over-breadth and realistic probability are the same thing.

[00:18:48] Speaker 01:
They are large, because what the realistic probability tell it, I don't want to say that.

[00:18:54] Speaker 01:
You can have instances in which someone says that the statute, take Duanis Alvarez itself, right?

[00:19:01] Speaker 01:
The petitioner in that case said, look, the statute with aiding and abetting, yes, on its face, the facial statute doesn't look like it goes that, it doesn't look like it captures activities outside the generic defense.

[00:19:17] Speaker 01:
the state goes and applies this statute in ways that does.

[00:19:21] Speaker 01:
It's interpreting the statute in a way that operates in that fashion.

[00:19:25] Speaker 02:
I'm just trying to square that with the language from the United States.

[00:19:30] Speaker 02:
I think it's Keast, de France, and then Alfred versus Garland, where we explain that there are two paths or two ways to compare a state statute

[00:19:45] Speaker 02:
With the generic standard under the categorical approach and I just don't know.

[00:19:52] Speaker 02:
Maybe the only one confused by that because it's there.

[00:19:56] Speaker 02:
We set out that there's two paths and yet seems like we're cutting it off here and I just need help in understanding that argument.

[00:20:07] Speaker 01:
Let me go back to Ladder Singh.

[00:20:08] Speaker 01:
I mean, one of the things about that second realistic probability path is that, and this is Taylor, this is subsequent to Taylor, is that you look at cases to determine how the courts in the state have construed the statute.

[00:20:20] Speaker 01:
It's not how it's been prosecuted.

[00:20:22] Speaker 01:
It's not how it's been reported in the reviews.

[00:20:25] Speaker 01:
This court is very much should be and is avoiding just looking at facts in the air.

[00:20:32] Speaker 01:
Rather, what you're looking at is how the provisions have been construed.

[00:20:36] Speaker 01:
to reach particular results.

[00:20:38] Speaker 01:
And in that regard, that realistic probability test is essentially saying, look, we can look at the statute and see what the terms say and see whether they're overbroad.

[00:20:50] Speaker 01:
Or two, we look at the court cases and we look at the decisions and how it's been construed.

[00:20:55] Speaker 01:
And in latter seeing, this court looked at the cases that had been decided by the California Supreme Court with regard to, one,

[00:21:03] Speaker 01:
whether or not the kind of threat was a threat to do something that would itself be a crime involving moral turpitude, two, whether or not the threat had the kind of the immediacy to cause the fear, you know, the threat from the, the harm from the fear, and whether or not it did, and again, it discussed the particular cases, and three, whether or not it had the relevant specific evil intent.

[00:21:29] Speaker 01:
This court looked to all of those things.

[00:21:32] Speaker 01:
It's not like it took the the statute in a vacuum So with regard to all of this court's cases post Taylor on how this analysis goes This court has done it has done exactly what is required But even if it hadn't again What the petitioner is pointing out is actually kind of beside the point whether or not those threats are verbal or nonverbal Doesn't matter this court can go back and look at ladder Singh and say ladder Singh was right

[00:21:59] Speaker 01:
Even if nonverbal threats were permissible under, I guess what, pre-Gonzalez California law, you still have a crime involving moral turpitude because you still have the immediacy of the threats.

[00:22:14] Speaker 01:
You still have someone being put in fear.

[00:22:17] Speaker 01:
And that fear is reasonable.

[00:22:19] Speaker 01:
And that's all you need.

[00:22:20] Speaker 01:
Also, I would further indicate that none of the cases the petitioner

[00:22:24] Speaker 01:
cites to involve purely nonverbal threats, even Ty S. In that case, not only do you have Ty S's friend making an express verbal threat, it's the case that not only does Ty S throw a gang sign, but is yelling.

[00:22:43] Speaker 01:
And we don't know what she is saying in the yelling, but we know there is verbal activity going on.

[00:22:49] Speaker 01:
So however you put it, the threats are immediate.

[00:22:53] Speaker 01:
And there is some verbal component to it.

[00:22:57] Speaker 01:
Now, let's move on to the, unless this court has any further questions about that issue, let's move on to, I guess, what?

[00:23:05] Speaker 01:
The non-delegation issue.

[00:23:08] Speaker 01:
Under FCC v. Consumer Research, the Supreme Court's set out the intelligible principle analysis, the non-delegation analysis.

[00:23:18] Speaker 01:
First, it said, look, we analyze these things differently

[00:23:21] Speaker 01:
with regard to whether or not they're comprehensive, broad in scope.

[00:23:25] Speaker 01:
The kind of delegation has to do with the national economy, on one hand.

[00:23:30] Speaker 01:
Or it has to do with something small, like here, whether or not one manages to get to a discretionary determination by an immigration judge that you're allowed to have your application for cancellation granted or denied.

[00:23:46] Speaker 01:
Two.

[00:23:47] Speaker 01:
it's relevant whether or not you can figure out what the government's policy was behind the crime involving moral turpitude in the cancellation context, that is, whether or not we grant relief to people who've committed really bad crimes, right?

[00:23:59] Speaker 01:
And moral turpitude is a way of getting at that point.

[00:24:04] Speaker 03:
I've always been troubled by that.

[00:24:06] Speaker 03:
I mean, and I've written a number of moral turpitude decisions, but I must confess, over time, it seems like moral turpitude is in the eye of the beholder.

[00:24:15] Speaker 03:
And that is the problem.

[00:24:19] Speaker 03:
I mean.

[00:24:21] Speaker 03:
Because basically, you could argue that any crime in a certain extent is a crime of moral turpitude.

[00:24:26] Speaker 01:
Right.

[00:24:26] Speaker 01:
But I mean, let's take this case.

[00:24:27] Speaker 01:
Let's take Ladder Singh and let's compare it with Flores Vasquez.

[00:24:32] Speaker 01:
This court was able to draw a line between criminal threats on the one hand under California Penal Code 422.

[00:24:39] Speaker 01:
that were sufficiently immediate and involved the kinds of, I guess, what?

[00:24:48] Speaker 01:
Directedness towards crimes that themselves would be crimes involving moral turpitude, on the one hand.

[00:24:53] Speaker 01:
And what was the, I guess, the Oregon menacing statute where it said, no, none of this was the case, and therefore it's not a crime involving moral turpitude?

[00:25:01] Speaker 01:
The court can do it.

[00:25:03] Speaker 03:
And we have.

[00:25:05] Speaker 03:
That's a troublesome part of a pretty ambiguous phrase in terms of just saying, all right, we're going to draw a bunch of lines, which sort of indicates that maybe there is a delegation.

[00:25:21] Speaker 01:
So let me respond with two things.

[00:25:25] Speaker 01:
One, I think that we do have some general rules that are valuable for the delegation.

[00:25:30] Speaker 01:
I think two, I would say it's an error delegation.

[00:25:33] Speaker 01:
And three, this is a weird case where maybe it doesn't matter.

[00:25:36] Speaker 01:
This is cancellation.

[00:25:37] Speaker 01:
This is a case where even if we were to interlineate the moral turpitude grounds, immigration judge can just up and say, yeah, you've done bad stuff, not giving you cancellation.

[00:25:51] Speaker 01:
Which means that the non-delegation problem is of no moment here, really.

[00:25:58] Speaker 04:
There is a difference between being ineligible for a discretionary benefit and being eligible for it, even if you might ultimately not get the discretionary benefit, right?

[00:26:07] Speaker 04:
So, I mean, if we thought that Congress had passed a statute that really had no, I mean, if Congress passed a statute that had no principle to it at all,

[00:26:20] Speaker 04:
What's your authority for the proposition that that would be saved from a delegation challenge just because the only thing that turned on it was the availability of discretionary relief?

[00:26:32] Speaker 01:
Right.

[00:26:33] Speaker 01:
I think at the bottom, there's been no contest that this sort of discretionary grant of cancellation or denial is an issue.

[00:26:43] Speaker 01:
And in fact, this court has no jurisdiction to address whether or not that's an issue.

[00:26:49] Speaker 01:
I guess you can raise a constitutional problem in that context.

[00:26:52] Speaker 01:
We can address eligibility.

[00:26:54] Speaker 01:
But if we can just address eligibility, I mean, it's like if you already have an amorphous blob, if you're cutting jello, it doesn't matter.

[00:27:05] Speaker 01:
I think that's probably sort of the visual metaphor I have.

[00:27:08] Speaker 04:
But I guess I'm not sure I understand either the jello part, but setting that aside.

[00:27:18] Speaker 04:
I had thought that the point of the delegation, the non-delegation doctrine such as it is, is that the Article 1 vesting clause says Congress has to exercise legislative powers and determining whether somebody is or is not eligible for discretionary relief seems like an exercise of legislative power.

[00:27:48] Speaker 04:
And if we think that Congress has not done that because it hasn't provided any intelligible principle, then I don't see how we could avoid the conclusion that it had delegated its legislative power to whoever was going to be making that determination impermissibly.

[00:28:10] Speaker 01:
So let's take your point as given.

[00:28:12] Speaker 01:
I mean, let's say that the fact that it's within the context of something that's just a wholesale delegation shouldn't

[00:28:19] Speaker 01:
shouldn't limit or shouldn't affect the consideration of non-delegation with regard to the eligibility factors.

[00:28:29] Speaker 01:
Even still, this is, again, a very narrow issue.

[00:28:32] Speaker 01:
And Congress has said, in narrower cases, non-delegation is less of an issue than in some broad delegation.

[00:28:43] Speaker 01:
So what Congress has done is it's delegated

[00:28:45] Speaker 01:
a very narrow sliver of power, and that is to determine eligibility for people who are criminal aliens as to whether or not they get cancellation relief.

[00:28:54] Speaker 04:
That's it.

[00:28:55] Speaker 04:
Do you think we need to agree with that principle to say that moral turpitude is an intelligible principle?

[00:29:02] Speaker 01:
I think that to say it's an intelligible principle

[00:29:05] Speaker 01:
You have to look at how narrow it is, and also how in the 80 years since de George, the courts have construed this and given it concrete meaning.

[00:29:17] Speaker 01:
Even if that meaning is this court has to draw lines as it goes along, this court can draw lines.

[00:29:26] Speaker 01:
It has a way in which it does draw lines.

[00:29:28] Speaker 01:
It draws lines based upon the intent of the IP

[00:29:34] Speaker 01:
the intent of the petitioner, or the heinousness of the conduct, or some combination of the two.

[00:29:41] Speaker 01:
So in that regard, I think that it is definitely intelligible enough for the low standard that's set for the nondelegation doctrine.

[00:29:51] Speaker 01:
Briefly, let me go to the asylum issue, unless this court has any other questions about nondelegation.

[00:29:59] Speaker 01:
On asylum, one of the things that

[00:30:04] Speaker 01:
petitioner's counsel attempts to sort of argue is that any harm to a parent that occurs within the presence of the child is natively part of the persecution that the child faces.

[00:30:20] Speaker 01:
But the thing is, if you look at Hernandez Ortiz, and even the case is falling on with that,

[00:30:25] Speaker 01:
The reason why the parent is being persecuted or the child is being persecuted with the parent is that there is a protected ground that is shared among them.

[00:30:36] Speaker 01:
Here, that's not the case because we have no idea why the father was being fought and whether there was any shared intention or mental state or

[00:30:51] Speaker 01:
directedness of the persecutors when it came to those fights, whether the son was pushed aside to keep him out of the fight and whether the father was being attacked for we don't know what.

[00:31:04] Speaker 01:
And so as a result, under Walkerie or Sharma or any of these cases, you do have to have that binding element, that glue to find persecution.

[00:31:13] Speaker 01:
That's not here.

[00:31:14] Speaker 01:
If the court has no further questions for me, the government will rest.

[00:31:17] Speaker 02:
Thank you.

[00:31:22] Speaker 00:
I think you are out of time, so I'm just going to give you a minute, OK?

[00:31:25] Speaker 00:
Thank you, Your Honor, and I'll be quick.

[00:31:27] Speaker 00:
Three quick points.

[00:31:28] Speaker 00:
So the first thing I heard was that the government said that the issue could have been but wasn't raised under the categorical approach in Ladder Singh.

[00:31:34] Speaker 00:
We know from this court's cases it has to be squarely addressed to take it off the table for a future litigant.

[00:31:40] Speaker 00:
Taylor made that clear.

[00:31:40] Speaker 00:
As Chief Judge Bergia pointed out, there's two distinct theories, and this second one has never been decided by this court.

[00:31:46] Speaker 00:
And I also want to point out for Ty S, the angry utterance or outburst,

[00:31:50] Speaker 00:
I think Flores Vasquez, page 929, is a good example of digging into facts.

[00:31:54] Speaker 00:
And then this court's saying they didn't rise to the level necessary under Ladder Singh.

[00:31:59] Speaker 00:
Second, on non-delegation, I heard the government say the policy was really bad crimes.

[00:32:03] Speaker 00:
I think we all agree that if Congress passed a statute tomorrow that said you're ineligible for this benefit or you're removable if you've done a really bad crime, I think we'd all agree that's not an intelligible principle.

[00:32:13] Speaker 00:
And that is as far as the government is able to get with moral turpitude.

[00:32:16] Speaker 04:
I guess I'm not sure I would agree that

[00:32:20] Speaker 04:
really bad crime is less intelligible than requisite to protect the public health or promote the public interest, convenience, and necessity.

[00:32:31] Speaker 04:
Why do you say that?

[00:32:33] Speaker 00:
Well, I think it's the eye of the beholder problem that Judge Thomas pointed out.

[00:32:36] Speaker 00:
We all disagree about what really bad crimes are, especially here.

[00:32:39] Speaker 00:
We're not talking really bad crimes like the worst ten or something.

[00:32:43] Speaker 00:
We're really talking about the expansion into shoplifting, DUI, but only for driving without a license.

[00:32:49] Speaker 00:
When the government says really bad crime, it just really means a crime that is bad in the way that all crimes are bad to some extent.

[00:32:55] Speaker 00:
So they don't really mean really bad murder, rape, something like that.

[00:32:59] Speaker 00:
And quickly on the jello argument, I don't think that it's an answer to say that there is discretion at a later stage in the process.

[00:33:06] Speaker 00:
If Congress said it's a crime if you do something bad, you wouldn't be able to say, oh, but the government will exercise prosecutorial discretion in choosing who did the bad thing.

[00:33:14] Speaker 00:
That discretion could not cure an earlier violation.

[00:33:17] Speaker 00:
Really quickly just on the last point all I heard from the government on asylum was nexus ar6 note 3 the bia did not decide nexus Under chennery this court is not able to reach out and there's no exception to the chennery principle that would allow this court not to read in on that issue So they did decide nexus in terms of fear of future persecution tonight Yes, only what does that mean in this context?

[00:33:42] Speaker 00:
And not on not on past persecution AR six note three the BIA notes that issue had not been decided.

[00:33:48] Speaker 00:
There's no exception I've read the footnotes Well, if there are no further questions, thank you for your time.

[00:33:55] Speaker 02:
Thank you Thank you very much.

[00:33:58] Speaker 02:
Mr. Pfister.

[00:33:59] Speaker 02:
Mr Tennyson appreciate your argument presentations here today the case of Rafael Zaragoza rios versus Pamela body is now submitted and