[00:00:00] Speaker 01:
All right, if Council are ready, let's call 22-95, 26 Farman v. Garland.

[00:00:06] Speaker 01:
Mr. Hall.

[00:00:22] Speaker 00:
Good morning, and may it please the Court.

[00:00:24] Speaker 00:
My name is Aaron Hall, and I appear on behalf of Petitioner Sarah Farnham, requesting that this Court

[00:00:31] Speaker 00:
grant her petition for review, vacate the agency order, and remand to the agency for further proceedings.

[00:00:38] Speaker 00:
Petitioner submitted and pursued a frivolous asylum application under a false name.

[00:00:44] Speaker 00:
That fact is not in dispute today.

[00:00:47] Speaker 00:
What is in dispute, however, is whether the BIA was free to ignore the plain text of its own regulations

[00:00:54] Speaker 00:
to invoke the frivolous asylum bar at section 1158D6 to bar Ms.

[00:01:00] Speaker 00:
Barnum from seeking any relief from removal.

[00:01:04] Speaker 00:
Section 1158D6 provides that where a noncitizen has made a frivolous asylum claim after receiving proper notice, the noncitizen becomes permanently ineligible for immigration benefits, effective as of the date of a final determination on such application.

[00:01:20] Speaker 00:
Final determination is not defined in the statute,

[00:01:23] Speaker 00:
And so in 1997, the agency interpreted section 1158D6 through implementing regulations founded 8 CFR 120820.

[00:01:32] Speaker 00:
In its regulations, the agency announced that an applicant is subject to the frivolous asylum bar only if a final order by an immigration judge or the BIA specifically finds that the non-citizen filed a frivolous asylum application.

[00:01:47] Speaker 00:
In other words, the regulation promulgated following notice and comment

[00:01:52] Speaker 00:
interpreted the statute's requirement for a final determination to mean that the bar can only be triggered if there's a final order, specifically finding the filing of a frivolous asylum application.

[00:02:04] Speaker 01:
We now have that here.

[00:02:06] Speaker 01:
Based on the BIA appeal, what do we do about that?

[00:02:10] Speaker 00:
So the government raised this as well, Judge.

[00:02:14] Speaker 00:
If the court agrees with our plain language interpretation of the regulation that this was handled improperly by the agency,

[00:02:22] Speaker 00:
then what we're requesting is that this court vacate the agency order and remand for further proceedings, in which case the remanded proceedings are not going to be precluded by the frivolous application bar.

[00:02:33] Speaker 01:
What power do we have to vacate that final order?

[00:02:38] Speaker 01:
What gives us the authority to do that?

[00:02:42] Speaker 01:
Even if the agency violated one of its rules,

[00:02:49] Speaker 01:
It's still reached out and made this decision.

[00:02:54] Speaker 01:
What gives us the power to vacate that order and require a do-over?

[00:03:02] Speaker 00:
Well, where the agency violates its own regulations, this court has the power to vacate the order and remand to the agency for proceedings that are in accord with its regulations.

[00:03:17] Speaker 00:
I think this goes a little bit to your point.

[00:03:19] Speaker 00:
I wanted to address how this should look if this case was remanded or if the case had been handled correctly in the first instance.

[00:03:29] Speaker 00:
So an immigration judge in this circumstance can and should go through all the factors to determine whether a frivolous asylum application had been filed.

[00:03:41] Speaker 00:
If they find that it had, then that should be included in their final order.

[00:03:45] Speaker 00:
However, if the bar had not been triggered during the proceedings, the proper path for the judge to take would have been to have adjudicated the applications for relief on the merits, with the frivolous asylum application being a heavy factor on the negative side of the merits, on the negative side of the ledger.

[00:04:05] Speaker 00:
We would imagine that that would often lead to a denial.

[00:04:07] Speaker 00:
And then in the future, after the denial, after that order becomes final, all immigration benefits would be barred using the asylum.

[00:04:15] Speaker 01:
Could an IJ in these circumstances decide the frivolousness issue and then abate the other two and allow, I guess it would be the equivalent of an interlocutory appeal to the BIA?

[00:04:30] Speaker 01:
I mean, is there some mandate that the IJ has to do it a particular way?

[00:04:38] Speaker 00:
I don't believe that there's a mandate that the IJA would have to do it that way.

[00:04:41] Speaker 00:
That was raised below by the BIA, actually, that that procedure wouldn't make sense.

[00:04:48] Speaker 00:
And while the interlocutory appeal at the BIA does exist, it's not common, and I wouldn't imagine that it would take place in these circumstances.

[00:04:56] Speaker 00:
Rather, the more common procedure would be for the IJA to make the decision on the merits of the case and include a frivolousness finding, if appropriate.

[00:05:06] Speaker 00:
If the application was denied as a matter of discretion, then as this court knows, the applications for relief are going to be subject to very little, if any, judicial review after that, and that will be the end of the matter, and the bar will be in place going forward.

[00:05:20] Speaker 01:
Yeah.

[00:05:20] Speaker 01:
The BIA also tried to clean this up by ruling, basically reaching the merits and now arguing harmless error.

[00:05:31] Speaker 01:
How should we respond to that?

[00:05:36] Speaker 00:
Yeah, the BIA basically said that, well, in the event that the petitioner was right, then now we're making this finding.

[00:05:48] Speaker 00:
And now the application is barred going forward.

[00:05:51] Speaker 00:
But again, that's what we're asking this court to do, is to vacate that order and remand for further proceedings.

[00:05:57] Speaker 00:
What my client is asking for

[00:06:00] Speaker 00:
is the chance to have her application for relief heard on the merits as a matter of discretion, using the factors that the board has announced in matter of TJOM.

[00:06:09] Speaker 00:
And my client understands that given the immigration history in her case, it's probably an uphill battle.

[00:06:15] Speaker 00:
And the majority of cases in this posture are probably going to get denied, given the gravity of the underlying fraud.

[00:06:23] Speaker 00:
But they should not be denied under the frivolous asylum application bar.

[00:06:29] Speaker 00:
which had not properly been triggered at the time these proceedings were ongoing.

[00:06:33] Speaker 02:
They should be denied as a matter of discretion.

[00:06:35] Speaker 02:
What do we do with the comment in the BIA opinion?

[00:06:39] Speaker 02:
I think it's in a footnote that Ms.

[00:06:45] Speaker 02:
Farman waived the issue.

[00:06:47] Speaker 02:
That is, she didn't challenge the frivolous asylum application determination before the BIA.

[00:06:54] Speaker 00:
Your Honor, if I understand your question correctly, I believe that the BIA was referring to that she waived any challenge to the finding of frivolousness.

[00:07:05] Speaker 00:
And that's true.

[00:07:06] Speaker 00:
We did not challenge that it was a frivolous application.

[00:07:08] Speaker 00:
And she did not challenge that it was a frivolous application.

[00:07:11] Speaker 00:
The only challenge is to whether the statutory bar was triggered to block her applications for relief.

[00:07:19] Speaker 02:
Well, OK.

[00:07:20] Speaker 02:
But how would you link the fact that

[00:07:24] Speaker 02:
She doesn't challenge the frivolous asylum application determination on the one hand and harmless error on the other.

[00:07:35] Speaker 02:
She's not challenging it.

[00:07:38] Speaker 02:
Why is there any error here?

[00:07:40] Speaker 02:
Thank you.

[00:07:40] Speaker 02:
Error that's harmless, I should say.

[00:07:42] Speaker 00:
Sorry.

[00:07:43] Speaker 00:
Understood, Your Honor.

[00:07:44] Speaker 00:
The error is because the- Well, I know there's an argument there.

[00:07:49] Speaker 00:
I'm more on the harmless part.

[00:07:51] Speaker 00:
Understood.

[00:07:52] Speaker 00:
The harm comes in because under a proper interpretation of the plain language of the regulations, she is going to have the chance to present her case to the immigration judge.

[00:08:02] Speaker 00:
She's going to have the chance to say, I understand.

[00:08:05] Speaker 00:
I did all of these things wrong.

[00:08:07] Speaker 00:
I own them.

[00:08:08] Speaker 00:
Here are all the positive equities in my case.

[00:08:11] Speaker 00:
Here are all the positive equities about my life.

[00:08:13] Speaker 00:
And dear immigration judge, please exercise your discretion in my favor in granting those applications for relief.

[00:08:22] Speaker 00:
Without that interpretation, under the government's interpretation here, she doesn't get that chance.

[00:08:27] Speaker 00:
She just is found barred from applying for relief.

[00:08:30] Speaker 00:
And so therein lies the harm.

[00:08:34] Speaker 02:
Are you arguing, as to the statute and the regulation, are you saying that both of them are plain and unambiguous, or is one or the other of them ambiguous?

[00:08:51] Speaker 00:
Thank you for that question.

[00:08:53] Speaker 00:
This was actually brought up in the government answer brief in a footnote, I think, at page 36.

[00:08:59] Speaker 00:
And what the government's position was, at least in that footnote, was, at the very least, this statute has ambiguity.

[00:09:05] Speaker 00:
And therefore, the government pleads for some deference in its interpretation here.

[00:09:10] Speaker 00:
I would actually agree that the statute has ambiguity, because that final determination, that language, is not otherwise defined in the statute.

[00:09:19] Speaker 00:
What they're asking for deference to would actually be the deference to the regulation.

[00:09:24] Speaker 00:
Because the agency took that ambiguity, and to the extent that there is a blank space left of the statute, the agency chose to fill it by regulation.

[00:09:33] Speaker 00:
And the regulation determined that the final determination had to be a final order by an immigration judge or by the BIA.

[00:09:44] Speaker 00:
And final order is elsewhere defined in the statute at Section 1101 47A.

[00:09:49] Speaker 00:
And so to the extent that there's any deference, it would be to the agency's regulation.

[00:09:57] Speaker 00:
They filled in the statute, they filled in the ambiguity right there.

[00:10:01] Speaker 00:
They should not get any deference to a decision to not abide by the plain language of their interpretation in the regulation.

[00:10:09] Speaker 00:
And in fact, in a published case matter in HYZ, the agency referred to the time when an order goes final for these purposes as the time the BIA dismisses the appeal.

[00:10:22] Speaker 00:
So their understanding has been consistent with ours as far as when an order goes final.

[00:10:29] Speaker 00:
I wanted to address, if the court would allow, the distinction between Ms.

[00:10:34] Speaker 00:
Farnum's case and the case in Rebus.

[00:10:38] Speaker 00:
So Reeves had in some ways a factually similar, in many ways a factually similar case where the respondent filed a frivolous asylum application.

[00:10:48] Speaker 00:
That respondent actually appealed the IJ denial and the frivolousness finding to the BIA and lost their appeal.

[00:10:58] Speaker 00:
Afterwards, that became a final order and the frivolous asylum bar was triggered unquestionably.

[00:11:06] Speaker 00:
The twist in rebus is that thereafter, the non-citizen married a US citizen and sought to reopen the proceedings.

[00:11:13] Speaker 00:
And the Board of Immigration Appeals did reopen the proceedings.

[00:11:17] Speaker 00:
They later called that an error.

[00:11:18] Speaker 00:
They made a mistake in reopening the proceedings.

[00:11:22] Speaker 00:
But the case was then remanded to the IJA.

[00:11:24] Speaker 00:
And the IJA again found there was a frivolous application bar.

[00:11:29] Speaker 00:
And then the case came all the way up to the 10th Circuit.

[00:11:34] Speaker 00:
In sum, the Rebus case had a frivolous asylum bar that was unquestionably triggered because there was a final order.

[00:11:40] Speaker 00:
That is different than Ms.

[00:11:41] Speaker 00:
Farnham's case, because at the time the IJ and the BIA were considering her applications for relief, under the language and the regulations, there absolutely was no frivolous application bar.

[00:11:55] Speaker 00:
With the court's permission, I would reserve the remainder of my time for rebuttal.

[00:11:58] Speaker 00:
You may.

[00:11:58] Speaker 00:
Thank you.

[00:12:18] Speaker 03:
May it please Court Jessica Doggart for the Attorney General.

[00:12:21] Speaker 03:
The INA, the regulations, and case law all made clear that the frivolous asylum bar is invoked at the time that the agency made the frivolousness determination.

[00:12:31] Speaker 03:
Any relief is then barred in future proceedings.

[00:12:34] Speaker 03:
Here Mrs. Farnham is subject to a final order of removal in which the Board upheld the frivolousness determination and that rendered her ineligible for adjustment of status.

[00:12:44] Speaker 03:
Part of the confusion, or at least discussion in this case, is the difference between finality and the language in the statute, which is final determination on such application.

[00:12:54] Speaker 03:
They're distinct.

[00:12:55] Speaker 03:
They're not the same thing.

[00:12:57] Speaker 03:
Finality is, in this case, the final order of removal.

[00:13:00] Speaker 03:
That is appealable from the board in a petition for review to this court.

[00:13:05] Speaker 03:
I don't think anyone can test that we have finality.

[00:13:07] Speaker 03:
We have a final order of removal.

[00:13:09] Speaker 03:
It was petitioned for review.

[00:13:11] Speaker 03:
Separate, apart from that, are the determinations that are made below.

[00:13:14] Speaker 03:
All of those determinations together make up the order of removal that is then appealed.

[00:13:20] Speaker 03:
One of those determinations is a frivolousness determination.

[00:13:24] Speaker 03:
In this case, it's the only determination, because that frivolousness determination barred NISFAR from any other relief.

[00:13:31] Speaker 03:
That is the purpose of the frivolous asylum bar.

[00:13:33] Speaker 03:
When IRR was enacted in 1996, it was to reduce the frivolous bar was put in place to reduce the likelihood that fraudulent or frivolous applications will enable deportable or excludable aliens to remain in the United States for substantial periods.

[00:13:49] Speaker 01:
So in this case, when the IJ made that determination, it attached immediately

[00:13:58] Speaker 01:
And how do you square that language, the final determination language, with the regulation 1208.20 that talks about the need for a final order?

[00:14:11] Speaker 01:
And to me, that looks like we're going back into the final order of deportation, which is only going to happen until when the BIA says so, which it finally did here.

[00:14:26] Speaker 01:
It seems inconsistent to me trying to put together the statute and the regulation to spin it out the way that you just did.

[00:14:38] Speaker 03:
There are a couple of reasons why the government's reading is the proper reading in this case.

[00:14:42] Speaker 03:
First, the regulation is in present tense, specifically fines, not specifically found in prior proceedings, not in a prior final order of removal.

[00:14:51] Speaker 03:
Present tense is relevant here.

[00:14:53] Speaker 03:
But maybe more importantly, in fact, is that the decision is limited to the Board of Immigration Appeals and decisions by an immigration judge.

[00:15:02] Speaker 03:
There's no cross-reference there to 1101A47B and the term final order of removal.

[00:15:10] Speaker 03:
That entire sentence is referring to a determination made in removal proceedings.

[00:15:14] Speaker 03:
There are many determinations, as you just discussed in the last case, that are made outside of removal proceedings, such as before asylum officers.

[00:15:22] Speaker 03:
Asylum officers are not currently allowed to make frivolousness findings.

[00:15:26] Speaker 03:
They don't apply the frivolous asylum bar.

[00:15:28] Speaker 03:
They have to adjudicate the case on the merits.

[00:15:30] Speaker 03:
If it goes to immigration court, the immigration judge may then make the frivolousness determination if presented, but an asylum officer from the Department of Homeland Security cannot.

[00:15:39] Speaker 03:
So that sentence is limiting the application of the bar or the

[00:15:44] Speaker 03:
the potential application for the bar only to those applications in removal proceedings.

[00:15:50] Speaker 01:
You're saying that the frivolousness can occur both in a removal proceeding and in non-removable proceedings, other proceedings?

[00:16:00] Speaker 03:
No, I'm saying it cannot.

[00:16:02] Speaker 03:
I'm saying the frivolous bar can only be found in removal proceedings by immigration judges and then by the Board of Immigration Appeals.

[00:16:09] Speaker 03:
It cannot be found in administrative proceedings before Department of Homeland Security.

[00:16:13] Speaker 03:
currently.

[00:16:14] Speaker 03:
Now, in the briefs, we talk about the regulation, the global asylum rule that is currently enjoined.

[00:16:20] Speaker 03:
And that regulation actually changed this language to allow asylum officers to make frivolous misdeterminations and apply the frivolous bar in the first place.

[00:16:29] Speaker 03:
That rule has never been put into effect because enjoined before its effective date.

[00:16:34] Speaker 03:
But that is further support demonstrating that the intent behind

[00:16:39] Speaker 03:
the regulation, or at least the intent to change the regulation to include asylum officers, that the government reads that language as limiting who can make the determination, not that it only can be made after a final order is issued.

[00:16:56] Speaker 03:
But getting to the point that Your Honor started with at the beginning of my friend's argument is that there is a final order in this case.

[00:17:04] Speaker 03:
We now have one.

[00:17:04] Speaker 03:
We have that finality.

[00:17:05] Speaker 03:
We have a final order.

[00:17:07] Speaker 03:
that included the frivolous determination, and that is the purpose of the frivolous asylum bar.

[00:17:12] Speaker 03:
It applies.

[00:17:14] Speaker 03:
As the 11th Circuit talked about in Barrett O'Claro, the statute's purpose is a strict no-tolerance policy.

[00:17:20] Speaker 03:
It's not a discretionary weighing of whether someone submitted fraudulent documents.

[00:17:25] Speaker 03:
That can be part of an adverse credibility determination, of course, but once a fact finder goes and makes a determination of frivolousness, that is a different analysis and it is a

[00:17:36] Speaker 03:
strong as I think the board called a death sentence to many applications.

[00:17:45] Speaker 03:
And the statutory purpose behind that is to discourage frivolous applications in the first place.

[00:17:51] Speaker 01:
Can we vacate the order here if we conclude that there was legal error by the IJ's failure to reach the merits of the withholding claim?

[00:18:08] Speaker 03:
I think not.

[00:18:09] Speaker 03:
I think not.

[00:18:15] Speaker 03:
In order to make a frivolous determination, even if it weren't going to be effective until a future proceeding, the IJ would still have to go through and make all of those findings.

[00:18:25] Speaker 03:
Here that happened and there was no error because it was never contested.

[00:18:29] Speaker 03:
So to the extent that this court, this isn't the case to do that in, is my point, because

[00:18:34] Speaker 03:
If the court were to find error in a frivolousness determination, yes, it could vacate that and remand for further consideration on other issues as to eligibility.

[00:18:46] Speaker 03:
But here, there was no question.

[00:18:48] Speaker 03:
A frivolous application had been filed.

[00:18:51] Speaker 03:
And so there was never any challenge to that.

[00:18:54] Speaker 03:
So there's nothing to vacate.

[00:18:56] Speaker 01:
Well, I mean, her argument is that it's a package deal in front of the IJ.

[00:19:03] Speaker 01:
All my issues get resolved.

[00:19:06] Speaker 01:
Then there's one appeal.

[00:19:08] Speaker 01:
And basically, I'm hoping for a Hail Mary decision on my other claims.

[00:19:17] Speaker 01:
And all I want is my day in court on those two issues.

[00:19:22] Speaker 01:
And then it goes up to the BIA, and you'll do what you do.

[00:19:27] Speaker 01:
I mean, that's an efficient way to get this done.

[00:19:33] Speaker 03:
I guess yes.

[00:19:34] Speaker 03:
In that instance, if the court were to agree that the frivolous bar can only be applied in future proceedings after it became final, which I would like to further discuss exactly why that's not true.

[00:19:47] Speaker 03:
But if the court were to buy that argument, then yes, it would have to remand for consideration because it would still be the same proceedings.

[00:19:57] Speaker 03:
If the IJ erred in applying the bar in this case, then it would have to be sent back.

[00:20:01] Speaker 03:
But the IJ didn't err.

[00:20:03] Speaker 03:
The agency in general did not err.

[00:20:05] Speaker 03:
The frivolousness determination can be made at any point.

[00:20:09] Speaker 03:
And so when we talk about deference, we're not talking about deference just to the promulgation of the regulation, but also the agency's construction of that regulation and construction of the frivolous asylum bar.

[00:20:19] Speaker 03:
Here, the agency and courts have upheld the agency's construction of

[00:20:25] Speaker 03:
The frivolous asylum bar is invoked as of the filing of an application.

[00:20:36] Speaker 03:
It's not as of the adjudication of the application on the merits.

[00:20:39] Speaker 03:
It's not as of the appeal of anything.

[00:20:41] Speaker 03:
It's as of the filing of that application.

[00:20:44] Speaker 03:
And so once that frivolous application is filed, the consequences can attach.

[00:20:52] Speaker 03:
And so as soon as the agency starts to go through that inquiry, if it ends up making a frivolous determination, the consequence is attached as of that determination.

[00:21:02] Speaker 03:
If you look at the statute, it makes clear.

[00:21:04] Speaker 03:
We're talking about the last sentence of the statute where it says effective as of the date of the final determination on such application.

[00:21:10] Speaker 03:
But that refers back to the very first sentence where it says, if the attorney general determines that an alien has knowingly

[00:21:17] Speaker 03:
knowingly made a frivolous application.

[00:21:19] Speaker 03:
It's all the same determination.

[00:21:20] Speaker 03:
Has an application that is frivolous been made?

[00:21:23] Speaker 03:
If yes, the bar is effective.

[00:21:27] Speaker 03:
The board has applied that in situations contemporary.

[00:21:32] Speaker 01:
Why did you need 1208 then?

[00:21:35] Speaker 01:
Why do we need the regulation that is titled determining if an asylum application is frivolous?

[00:21:43] Speaker 01:
The regulation?

[00:21:44] Speaker 01:
It's adding laws to the statute, isn't it?

[00:21:46] Speaker 03:
I think it is not.

[00:21:48] Speaker 03:
I think it is clarifying that only immigration judges and board of immigration appeals, it can only be made in the context of removal proceedings.

[00:21:55] Speaker 03:
It talks about the materiality element, which is not part of the statute.

[00:21:59] Speaker 03:
There are portions of the regulation that clarify how to make a frivolous determination that are relevant and important.

[00:22:07] Speaker 03:
But none of it talks about when, but the regulation doesn't talk about the effectiveness.

[00:22:12] Speaker 03:
The case law does.

[00:22:14] Speaker 03:
In matter of HYZ, the board talked about the frivolousness bar attaching at the same time as an adverse credibility determination.

[00:22:22] Speaker 03:
It was made in the same proceedings.

[00:22:25] Speaker 03:
In matter of XMC, that was a case in which the application, the frivolous application was filed and later withdrawn and the consequence is still attached in that case.

[00:22:36] Speaker 03:
In matter of YL, the board talked about the frivolousness inquiry as a preliminary finding and there was no need to reach the merits.

[00:22:44] Speaker 03:
In Lew, this court talked about a frivolous asylum application that precluded someone just as here from being able to adjust status based on an I-130 petition that had been filed.

[00:22:59] Speaker 03:
In Rebus, I understand the facts are slightly different in that case, but what is important is that the frivolousness determination was deposited even after the board reopened the proceedings.

[00:23:11] Speaker 03:
Once that frivolousness inquiry

[00:23:13] Speaker 03:
begins and a determination is made, the bar attaches and it forever attaches.

[00:23:19] Speaker 03:
And then just as in this case, in the footnote three in matter of XMC, the board talked about there is no statute of limitations for frivolousness determinations.

[00:23:28] Speaker 03:
And I'm quoting that an applicant may have been able to avoid the discovery that a prior application was frivolous does not prevent a later determination that it was indeed frivolous.

[00:23:38] Speaker 03:
It can happen at any time.

[00:23:39] Speaker 03:
And that just traces back to the clear statutory intent that this bar is meant to be extreme.

[00:23:50] Speaker 03:
If the court has no further questions, we ask that the court deny the petition to review.

[00:23:54] Speaker 01:
Thank you.

[00:24:12] Speaker 00:
There's a couple of things that I wanted to address.

[00:24:18] Speaker 00:
First, the government talks about the purpose of this bar and talks about it in terms of it being a strict policy to enforce against people who have filed frivolous asylum applications and to deter frivolous asylum applications.

[00:24:37] Speaker 00:
We agree, but under our interpretation of the regulation, it continues to do that work.

[00:24:43] Speaker 00:
The INA lays out all kinds of ways that people can get immigration benefits in this country, including after orders of removal, including after they have been deported from this country.

[00:24:56] Speaker 00:
People can petition to come back

[00:24:58] Speaker 00:
through family, through employment.

[00:24:59] Speaker 00:
They can seek non-immigrant visas, diversity visas, all kinds of immigration benefits.

[00:25:06] Speaker 00:
Those are barred if there's a frivolous filing, even under our interpretation.

[00:25:13] Speaker 00:
And the statute continues to do its work harmoniously with the plain language of the regulation.

[00:25:21] Speaker 00:
Second, government counsel lists a number of cases where the fact pattern shows that the frivolousness determination and the triggering of the bar happened in the same proceeding before the agency, including a matter of XMC, where it said there was no statute of limitations.

[00:25:41] Speaker 00:
We agree there's no statute of limitations, and we agree that it was proper for the IJ in this case to make the frivolous determination in these proceedings, which were many, many years after the asylum application.

[00:25:53] Speaker 00:
There was no problem with that.

[00:25:54] Speaker 00:
The problem is the invocation of the statutory bar where there's no final order.

[00:25:59] Speaker 00:
And the government attempts to talk around the requirements of a final order in the regulation

[00:26:06] Speaker 00:
saying that the regulation only requires that the determination of frivolousness has been made.

[00:26:16] Speaker 00:
But the language is right there.

[00:26:18] Speaker 00:
It's final order.

[00:26:19] Speaker 00:
And final order is a well-known, defined term in the INA.

[00:26:25] Speaker 00:
So it's no accident that it's there.

[00:26:26] Speaker 00:
And they should be required to adhere to that.

[00:26:31] Speaker 01:
Assume here that the IJ made a

[00:26:34] Speaker 01:
finding of frivolousness and also reach the merits of your other claims and ruled in your client's favor.

[00:26:44] Speaker 01:
And then that's appealed up.

[00:26:47] Speaker 01:
Is it really conceivable that the BIA could affirm a frivolous determination and still acquiesce to relief on other grounds?

[00:27:04] Speaker 00:
Absolutely.

[00:27:05] Speaker 00:
If the statutory bar has not been triggered, then relief can be granted.

[00:27:10] Speaker 00:
I see that my time is up.

[00:27:11] Speaker 00:
I'd like to close by just stating that the Supreme Court has reminded us in these javas that if people must turn square corners with the government, it can't be too much to expect the government to turn square corners when it deals with them.

[00:27:26] Speaker 00:
We would ask that this court require the agency to read to adhere to the plain language of its of its regulations to grant this petition for review To vacate the order and remand for further proceedings.

[00:27:38] Speaker 00:
Thank you.

[00:27:39] Speaker 01:
Thank you counsel your excuse in the case is submitted