[00:00:00] Speaker 03:
Let's go ahead and get started with our first case, which is Miguel Peña versus Garland.

[00:00:07] Speaker 03:
And Ms.

[00:00:08] Speaker 03:
Jones?

[00:00:13] Speaker 00:
Good morning.

[00:00:14] Speaker 00:
May it please the court?

[00:00:19] Speaker 04:
Keep on lowering that microphone just to hear.

[00:00:22] Speaker 04:
Thank you.

[00:00:23] Speaker 00:
Sorry.

[00:00:24] Speaker 00:
Yeah.

[00:00:28] Speaker 00:
We are here this morning as part of what an organizational systems analyst would call a quality control feedback loop.

[00:00:36] Speaker 00:
We call it judicial review of agency actions.

[00:00:39] Speaker 00:
The general goal of quality control feedback is to timely correct small errors before they proliferate.

[00:00:46] Speaker 00:
In preparing for this, there are two related experiences that I've had recently.

[00:00:53] Speaker 00:
One case that is a quality control, wonderful example of the effectiveness of quality of feedback is the court's entire line of cases in the Pereira and Mischavez.

[00:01:07] Speaker 00:
And I indicate that that's a good example of quality control because although it took two rounds to get to the Supreme, to get to convince the government that the Supreme Court meant what it said, that the language of the statute could not be ignored,

[00:01:24] Speaker 00:
Once it convinced the government, government changed.

[00:01:31] Speaker 00:
I don't think I have seen in the last two years a notice to appear that was issued without a date or a time.

[00:01:41] Speaker 00:
Written pleadings are now normative whenever the council is involved.

[00:01:47] Speaker 00:
And the courts are empowered themselves, which they weren't before.

[00:01:52] Speaker 00:
to dismiss notices to appear that are not properly completed.

[00:01:57] Speaker 03:
Should there be a prejudice requirement?

[00:01:59] Speaker 03:
I mean, your client's lawyer showed up at the right time and place.

[00:02:06] Speaker 00:
That has been the argument for why those things don't matter since 1996, 1997, actually, when IRIRA took effect.

[00:02:21] Speaker 00:
The board itself has held that because this is a mandatory claims processing argument issue, which they held in matter Fernandez, it does not require harm, does not require a showing of harm.

[00:02:39] Speaker 00:
So that's the agency's perspective on it.

[00:02:44] Speaker 00:
I would argue that that's the appropriate ruling to be made because that's the agency's

[00:02:51] Speaker 00:
how the agency has chosen to handle the decision.

[00:02:54] Speaker 00:
By contrast to the effectiveness of the court, of the trips to the Supreme Court in those issues.

[00:03:06] Speaker 02:
Could I just come back to your last point?

[00:03:10] Speaker 02:
Why would the same apply when you're before the circuit court?

[00:03:16] Speaker 02:
In other words, why shouldn't you have to show prejudice at this point?

[00:03:26] Speaker 00:
Because the agency's ruling should be controlling on how this is perceived and handled within the legal system.

[00:03:41] Speaker 02:
Well, let's say there is a prejudice.

[00:03:45] Speaker 02:
Was there any prejudice here?

[00:03:47] Speaker 00:
Arguably not.

[00:03:49] Speaker 00:
The reality is nobody knows, because I don't know, we don't know,

[00:03:56] Speaker 00:
It was never developed in the record.

[00:03:59] Speaker 00:
To what extent Ms.

[00:04:01] Speaker 00:
Miguel-Pena had to search, look, find counsel to try and figure out where her case had been filed, when her hearing was?

[00:04:11] Speaker 04:
Now, I think you've moved away from the per area issues, right?

[00:04:16] Speaker 04:
I'm sorry.

[00:04:17] Speaker 04:
As I read your briefs, there are three service-related issues.

[00:04:21] Speaker 04:
One is the per area issue, the failure to include the notice in time

[00:04:26] Speaker 04:
of the hearing in the notice to appear.

[00:04:29] Speaker 04:
Second is the absence of page two of the charging documents in the documents that were filed and you didn't know that or your predecessor didn't know that until the BIA record had been formalized.

[00:04:43] Speaker 04:
And lastly, that there was invalid service of process.

[00:04:47] Speaker 00:
No, there's actually another issue.

[00:04:51] Speaker 00:
The notice to appear had the wrong court on it.

[00:04:53] Speaker 04:
And the wrong court address on it.

[00:04:59] Speaker 04:
So with that issue, the absence of page two of the certificate of service, the BIA held, as I understand it, that that had not been presented to the immigration judge.

[00:05:13] Speaker 04:
So the BIA held that it had not been exhausted.

[00:05:16] Speaker 04:
Don't you have to have

[00:05:21] Speaker 04:
exhausted with the immigration judge.

[00:05:23] Speaker 00:
How?

[00:05:25] Speaker 00:
How do you raise an issue with the immigration judge when the case is before the board, the immigration judge no longer has any jurisdiction?

[00:05:32] Speaker 04:
Well, I think, I would assume that if I'm the lawyer before the immigration judge, which was the same lawyer, and I know that my client had not been served, or that I asked my client where I look at the record before the immigration judge,

[00:05:51] Speaker 04:
and it had Miami instead of Salt Lake City, and it had no page two for the certificate of service, I stand up and say, immigration judge, I'm specially appearing.

[00:06:02] Speaker 04:
I move to quash the dotus to appear because there has been no valid charges.

[00:06:07] Speaker 00:
Except that there is no such thing as a special appearance in immigration court.

[00:06:11] Speaker 00:
All right.

[00:06:11] Speaker 04:
The minute you appear.

[00:06:12] Speaker 04:
You can't say, okay, let's say there's no special appearance.

[00:06:15] Speaker 04:
He had the inability to say to the immigration judge,

[00:06:20] Speaker 04:
that these were service-related defects with the notice to appear?

[00:06:24] Speaker 04:
He could have said that.

[00:06:25] Speaker 00:
And the minute you said that at that particular period in time, the immigration judge would have said, but you're here.

[00:06:32] Speaker 00:
So what was the harm?

[00:06:35] Speaker 00:
What's the error?

[00:06:37] Speaker 00:
Yeah.

[00:06:37] Speaker 00:
OK.

[00:06:38] Speaker 00:
But I think the point that the court is making in this Chavez is that the statutory language should not be ignored.

[00:06:51] Speaker 00:
And that is effectively what the government has been doing for 20 years.

[00:06:56] Speaker 00:
Now they're not, because the Supreme Court told them in Nis Chavez that the statutory language cannot be ignored.

[00:07:03] Speaker 00:
Now, we're talking about how you fix that, and what the consequences are for the dozens of thousands of cases where that error was still made.

[00:07:16] Speaker 00:
And a lot of them are closed.

[00:07:18] Speaker 00:
There are cases before the Supreme Court this

[00:07:21] Speaker 00:
this term, talking about what happens when you don't appear on one of those.

[00:07:30] Speaker 00:
But in my client situation at the time, you have a choice.

[00:07:35] Speaker 00:
You either investigate and find out on your own, somehow, where your case is, what your hearing is, when your hearing is, or you risk

[00:07:48] Speaker 00:
In absentia, denial.

[00:07:51] Speaker 03:
But that's the case in the Supreme Court.

[00:07:54] Speaker 03:
This case, circling back to prejudice, the immigration judge says you're here.

[00:08:01] Speaker 03:
Shall we proceed?

[00:08:02] Speaker 03:
And it seems like you could say, you can argue that it's jurisdictional, I suppose, but you could also show that there's some harm, injury that's arisen from the defective notice.

[00:08:17] Speaker 03:
And it can then be fixed in the immigration court.

[00:08:21] Speaker 00:
Well, and that is essentially what my predecessor in this case attempted to do.

[00:08:27] Speaker 00:
After it was clear, after it became clear post the decision in fair data that the statutory language should have some teeth, she made that motion to terminate.

[00:08:41] Speaker 00:
Now, at the time, the issue was

[00:08:45] Speaker 00:
perceived as and framed as one of jurisdiction.

[00:08:50] Speaker 00:
The distinction between jurisdiction and claims processing is one that has bedevilled the circuit courts and the Supreme Court.

[00:08:58] Speaker 00:
So I don't know how it is reasonable to expect a pro bono attorney in an agency action

[00:09:09] Speaker 00:
where most of us had not heard of anything related to claims processing prior to the last two years.

[00:09:17] Speaker 04:
Is that true of the respondent as well, that it would be unreasonable to expect the respondent, or default the respondent, the government for challenging exhaustion based on the failure to assert a jurisdictional defect as opposed to a claim processing defect?

[00:09:40] Speaker 00:
I think similar rules should apply.

[00:09:42] Speaker 00:
Now you're getting into the exhaustion issue, and 1252D1 does not require exhaustion of specific issues, and so what do you do?

[00:09:55] Speaker 00:
The first issue you need to decide is what are the outer parameters post-santos the caria

[00:10:09] Speaker 00:
your doctrine of exhaustion.

[00:10:22] Speaker 00:
Because Garcia Carvajal rests on shaky foundations.

[00:10:30] Speaker 00:
It's not entirely overruled, but if you trace back the authority that it argues it is based on,

[00:10:39] Speaker 00:
At some point or another, all of it intersects with issues that the Supreme Court discussed and decided differently in Santo Sicario.

[00:10:49] Speaker 04:
If it hasn't been explicitly overruled, then doesn't that mean that we're bound by Garcia Carvajal with regard to its applicability to a claims processing defect?

[00:11:00] Speaker 04:
After all, we recently held in Vincent v. Garland that if we have a precedent,

[00:11:05] Speaker 04:
that hasn't been indisputably and implicitly overruled by the Supreme Court, rebound by it.

[00:11:12] Speaker 00:
Or you can do what your colleague Judge Edel suggested in Robles Garcia, which is reconsider and reestablish that precedent on more solid legal footing.

[00:11:26] Speaker 04:
Is there something about Garcia Garbajal's reliance on

[00:11:34] Speaker 04:
jurisdiction with regard to the requirement for the same legal theory that would logically make it inapplicable when exhaustion is raised with regard to a claims processing defect?

[00:11:47] Speaker 04:
And if so, what is it?

[00:12:03] Speaker 00:
The biggest issue there, okay, is that post-San Josecaria, Garcia Carvajal, and jurisdiction can't rely on the language of 1252D1.

[00:12:17] Speaker 00:
You can't rely on that language.

[00:12:18] Speaker 00:
So you've gotta look elsewhere for the authority for your claims processing argument.

[00:12:25] Speaker 00:
And are there other locations?

[00:12:28] Speaker 00:
Yes, but most of them are judicial provisions, and the Supreme Court's

[00:12:34] Speaker 00:
line of cases looking at exhaustion where it is not explicitly statutorily required.

[00:12:44] Speaker 00:
Cautions, you know, has significant cautions about the use of exhaustion, judicial exhaustion, in the space of agency actions, okay?

[00:13:00] Speaker 00:
Doesn't say that it shouldn't be used.

[00:13:03] Speaker 00:
But let me get back to my example, okay, which you will remember.

[00:13:07] Speaker 00:
So last fall, I argued a case before you, which was dismissed because we didn't argue, prior counsel hadn't argued the issues at the Board of Immigration Appeals.

[00:13:19] Speaker 04:
Okay?

[00:13:20] Speaker 00:
Yep.

[00:13:21] Speaker 00:
And the exact same issue that we argued here is in this case.

[00:13:26] Speaker 00:
And I argued it to the board.

[00:13:27] Speaker 00:
And what happened?

[00:13:30] Speaker 00:
The board said nothing.

[00:13:32] Speaker 00:
The board ignored the issue.

[00:13:34] Speaker 00:
The board provided no feedback.

[00:13:37] Speaker 00:
So this court isn't able to provide feedback, and the board isn't providing feedback, and nothing is changing as we try to reopen.

[00:13:47] Speaker 00:
And I believe that one way of looking at Santos Acaria is that it offers this court the opportunity to do exactly that, to look at how we're using exhaustion to turn

[00:14:02] Speaker 00:
the nozzle and broaden or widen the nozzle on what cases and what feedback is provided.

[00:14:09] Speaker 00:
At the time that I raised it, I didn't know what.

[00:14:14] Speaker 00:
I knew that it was wrong.

[00:14:15] Speaker 00:
The statute, the violation of the statute was wrong.

[00:14:19] Speaker 00:
The violation of the regulations was wrong.

[00:14:23] Speaker 00:
Did we know at that time what the agency precedent was going to turn out to be?

[00:14:27] Speaker 00:
No, we did not.

[00:14:30] Speaker 00:
And I will reserve

[00:14:33] Speaker 00:
Thank you, counsel.

[00:14:48] Speaker 01:
Good morning, Your Honors, and may it please the Court, Michael Hex, on behalf of the Respondent, the Attorney General of the United States.

[00:14:54] Speaker 01:
Claims and processing rules are about the orderly progress of litigation.

[00:14:59] Speaker 01:
Petitioner has just conceded that Petitioner failed to raise the claims processing argument before the agency.

[00:15:04] Speaker 01:
And that's why exhaustion matters.

[00:15:06] Speaker 01:
Exhaustion is a statutorily required claims processing rule.

[00:15:11] Speaker 01:
It's mandatorily enforced if there's a timely objection raised regarding exhaustion.

[00:15:16] Speaker 02:
Well, let me just ask on that point.

[00:15:21] Speaker 02:
Does it really matter whether the NTA shortcomings are labeled jurisdictional or claims processing to preserve the issue, especially when the question was somewhat in flux at the time?

[00:15:36] Speaker 01:
There was certainly discussion as to what the nature of the rule is.

[00:15:39] Speaker 01:
Jurisdiction obviously has a much larger impact in terms of the agency's ability to carry out its functions.

[00:15:47] Speaker 01:
If the immigration court lacks jurisdiction

[00:15:50] Speaker 01:
over a petitioner because the charging document, this would be similar to like a criminal case where the complaint was defective, improperly served.

[00:15:59] Speaker 01:
Anything of that sort that somehow deprives the court of jurisdiction over that case is over.

[00:16:04] Speaker 01:
Whereas a claims processing rule, and that's consistent and consistent with why the agency and other courts subsequently have treated it as such, allows the case to go forward because it simply makes sense in terms of how these cases work.

[00:16:16] Speaker 01:
And this is kind of mixing together a lot of arguments here in terms of what NTAs are.

[00:16:21] Speaker 01:
There's the statutory definition of NTA.

[00:16:23] Speaker 02:
Well, I appreciate the distinction you're drawing between jurisdiction and claims processing.

[00:16:28] Speaker 02:
I guess my question is, in context, when this came up, should it matter that it was at first called jurisdiction and then later called claims processing?

[00:16:42] Speaker 01:
Should it matter?

[00:16:45] Speaker 01:
Again, it's a question of what's the effect, what's the impact of it being jurisdictional.

[00:16:49] Speaker 01:
It's a question of whether or not the NTAs are in fact effective for failure to include the time and place.

[00:16:58] Speaker 01:
So it's kind of a two-step inquiry there.

[00:17:02] Speaker 01:
Does that make that defective?

[00:17:03] Speaker 01:
If the NTA does not state the time and place, does that make it defective?

[00:17:06] Speaker 01:
If it's defective, does the immigration court then lack jurisdiction over it?

[00:17:10] Speaker 01:
If yes to both of those, that case is over.

[00:17:13] Speaker 01:
Department of Homeland Security can perhaps reissue a notice to appear.

[00:17:18] Speaker 01:
The individual is presumably still removable.

[00:17:21] Speaker 01:
Whereas a claims processing role is more consistent with how the agency handles these kinds of cases and has.

[00:17:28] Speaker 01:
Petitioners complaining about how this has happened over years and calls it, I believe, a quality control feedback loop.

[00:17:36] Speaker 01:
That's the first time we've heard that here.

[00:17:39] Speaker 01:
The point is the difference between the statutory definition of an NTA and how the regulations came about to help the immigration court manage its own docket are two different things.

[00:17:53] Speaker 02:
So you're contending, though, I'm understanding correctly that petitioners failed to exhaust the claims process.

[00:18:02] Speaker 02:
Absolutely.

[00:18:03] Speaker 02:
Where in your brief did you make that argument?

[00:18:06] Speaker 01:
In the opening brief?

[00:18:08] Speaker 01:
In your response?

[00:18:09] Speaker 02:
Yes.

[00:18:10] Speaker 01:
Well, twice.

[00:18:11] Speaker 01:
Actually, I believe this is from memory.

[00:18:15] Speaker 01:
I reviewed the brief.

[00:18:16] Speaker 01:
I didn't write it.

[00:18:17] Speaker 01:
Page 16 footnote 4 mentions new issues related to the NTAs that petitioners failed to exhaust.

[00:18:25] Speaker 01:
The opening brief primarily discussed

[00:18:29] Speaker 01:
issues that were attempted to be raised before the board or related to issues before the board or issues that were in fact related to the board things regarding the MTAs themselves but not as a claims processing.

[00:18:43] Speaker 01:
Well, as your honor pointed out, Fischer's raised a due process based argument that vaguely mentions claims processing but it never actually developed the, I believe it's 11 page claims processing argument that was in their opening brief.

[00:18:56] Speaker 01:
But then in our supplemental brief in response to the court's first request for supplemental briefing about Santos Acari, we mentioned again the failure to exhaust.

[00:19:04] Speaker 01:
We have consistently raised exhaustion here as to a number of issues.

[00:19:09] Speaker 01:
And that captures the claims processing question.

[00:19:13] Speaker 01:
Then again, this court in the second supplemental briefing request asked, can the court consider exhaustions to Espante?

[00:19:20] Speaker 01:
It certainly can.

[00:19:21] Speaker 01:
Parties actually agree on that.

[00:19:23] Speaker 01:
There wasn't a lot of discussion about that in Petitioner's primary argument.

[00:19:27] Speaker 01:
Again, Courtney not do so, Sue will respond to here, because the government raised exhaustion and timely did so.

[00:19:35] Speaker 01:
That said, if the court feels that the claims processing objection wasn't sufficiently directly addressed, the court can reach the exhaustion point for several reasons.

[00:19:46] Speaker 01:
Primarily being that the statutory structure supports the court enforcing the exhaustion requirement.

[00:19:51] Speaker 01:
Again, it's a mandatory claims processing rule that if the objection is timely raised, must be enforced.

[00:19:57] Speaker 01:
But it also should be enforced in terms of the comity of concerns, as we have

[00:20:03] Speaker 01:
Two branches of government here.

[00:20:04] Speaker 01:
The executive is charged with managing foreign policy, which directly relates to immigration.

[00:20:10] Speaker 01:
And it's this court's review of agency action, which is subject to highly deferential standards of review, like substantial evidence, clear error, things like that.

[00:20:22] Speaker 01:
But also the efficiency of it.

[00:20:24] Speaker 01:
Because listening to petitioners' primary argument, one is left asking, what is the point?

[00:20:29] Speaker 01:
What are they after?

[00:20:31] Speaker 01:
What are they hoping to accomplish?

[00:20:33] Speaker 01:
Because the result is simply you showed up, or you should show up, or you'll come back.

[00:20:40] Speaker 01:
You're still removable.

[00:20:42] Speaker 01:
And it's about the timeliness of raising the objections.

[00:20:44] Speaker 02:
It's about... It's not necessarily a special... Well, the board didn't rely on timeliness, did it?

[00:20:52] Speaker 01:
The board here?

[00:20:53] Speaker 01:
Did the board rely on timeliness?

[00:20:55] Speaker 01:
Yes.

[00:20:58] Speaker 01:
trying to recall exactly whether or not that was raised because that relates more to the claims processing rule.

[00:21:03] Speaker 01:
That's a matter of Fernandez.

[00:21:05] Speaker 02:
At one point in your brief, I think you argued that it was untimely, that the NTA issue was untimely raised.

[00:21:14] Speaker 02:
Yes, absolutely.

[00:21:15] Speaker 02:
But did the board say that it was untimely?

[00:21:19] Speaker 01:
The board's statement about timeliness was probably best encapsulated by the fact that petitioners conceded

[00:21:25] Speaker 01:
proper service, conceded the facts as alleged in the notice to appear, in fact appeared, admitted the, excuse me, admitted the facts in the notice to appear and conceded their immovability, didn't raise the objection until filing a motion to terminate three years after the issue appeared.

[00:21:43] Speaker 02:
Well, I understand that, but it's, I'm looking for something a little more direct here.

[00:21:47] Speaker 02:
Sure.

[00:21:48] Speaker 02:
Did the board rely on timeliness to deny

[00:21:52] Speaker 02:
relief at that stage.

[00:21:54] Speaker 02:
Because if it didn't, wouldn't we be precluded by Channery in relying on that?

[00:22:05] Speaker 01:
If it's a question of whether or not the word timeliness appears in the board's, or timely appears in the board's decision, I don't have the agency's decision in front of me, unfortunately.

[00:22:14] Speaker 01:
I don't believe it does.

[00:22:15] Speaker 01:
I don't recall seeing that.

[00:22:16] Speaker 01:
But again, the point is

[00:22:18] Speaker 01:
when the objection is raised and the conceding proper service actually showing up is the same thing.

[00:22:26] Speaker 01:
Maybe the word isn't there, the timely word isn't there, but the effect is the same.

[00:22:32] Speaker 01:
The result is the same.

[00:22:33] Speaker 01:
And that's again getting back to Madam Fernandez and what Your Honors were asking about.

[00:22:36] Speaker 01:
Should there be a prejudice requirement?

[00:22:39] Speaker 01:
And there certainly should be here because there's no question that the objection is not timely.

[00:22:43] Speaker 01:
As petitioners' excuses that that law is changing.

[00:22:46] Speaker 02:
What authority do you have on that?

[00:22:51] Speaker 02:
That a prejudice requirement would apply at this point?

[00:22:57] Speaker 01:
Well, it's kind of the inverse of Fernandez.

[00:23:00] Speaker 01:
Fernandez says there's no prejudice requirement if the objection is timely raised.

[00:23:06] Speaker 01:
So that begs the point of if the objection is not timely raised, it's kind of getting back to a mix of like a due process claim.

[00:23:16] Speaker 01:
If you want to raise this kind of argument, a claims processing argument long after the fact, in fact almost three years after the fact here, certainly some prejudice has to be shown.

[00:23:25] Speaker 02:
Well, I guess I'm looking for your bottom line.

[00:23:28] Speaker 02:
I'm looking for petitioner's bottom line.

[00:23:30] Speaker 02:
Well, I'm looking for yours.

[00:23:32] Speaker 02:
If we were to go in your direction here, is it because of failure to exhaust?

[00:23:39] Speaker 02:
Is it because of timeliness?

[00:23:40] Speaker 02:
Is it because of lack of prejudice?

[00:23:42] Speaker 01:
What is it?

[00:23:44] Speaker 01:
Exhaustion would be the easiest route.

[00:23:47] Speaker 01:
And that, again, is consistent with how this court should operate in terms of reviewing agency decisions.

[00:23:54] Speaker 01:
Congress required

[00:23:56] Speaker 01:
are limited, this court's review, to issues only exhausted before the agency.

[00:24:00] Speaker 01:
It's pretty remarkable.

[00:24:00] Speaker 01:
The petitioner claims that, quote, 1252D1 does not require exhaustion of specific issues.

[00:24:06] Speaker 01:
It absolutely requires exhaustion of specific issues.

[00:24:09] Speaker 04:
The petitioner did, before the BIA, argue that the notice to appear was defective under the statutory and constitutional requirements for due process.

[00:24:21] Speaker 04:
The statutory requirements would include the statute

[00:24:26] Speaker 04:
in which the Supreme Court had relied upon in Pereira.

[00:24:29] Speaker 04:
Why then do you say that the petitioner failed to exhaust the service-related challenge regarding the validity of the NTA before the BIA?

[00:24:40] Speaker 01:
Because they appeared before the immigration judge, admitted the facts in the notes to appear, and conceded their immovability.

[00:24:46] Speaker 01:
They could have raised an objection at that time.

[00:24:49] Speaker 01:
whether or not it was jurisdictional.

[00:24:51] Speaker 04:
Well, as I understand it, they relied on page two of the motion to terminate in which, or the BIA did, in saying that counsel had waived his, had waived service.

[00:25:05] Speaker 04:
He didn't waive, I didn't see anything in the BIA's opinion to suggest that they had waived this Pereira issue.

[00:25:13] Speaker 04:
Those, those seem to be rather distinct.

[00:25:17] Speaker 01:
Yes.

[00:25:17] Speaker 01:
But am I wrong about that?

[00:25:19] Speaker 01:
The Pereira issue was subsumed by the fact that, I believe it was a matter of remittance quota, was an intervening decision that held that the NTA service requirements or any defective NTA issue did not deprive the immigration court of jurisdiction.

[00:25:37] Speaker 01:
Because that was kind of the point.

[00:25:39] Speaker 01:
So that was raised.

[00:25:40] Speaker 01:
Yes, the jurisdictional point.

[00:25:42] Speaker 01:
And it was subsumed by, I believe, also a decision from this court.

[00:25:47] Speaker 04:
So they relied on jurisdiction.

[00:25:49] Speaker 04:
And you relied on jurisdiction in challenging exhaustion.

[00:25:54] Speaker 04:
You didn't in your red brief, in your first supplemental brief, you didn't challenge exhaustion based on the failure to assert a claims processing defect, did you?

[00:26:09] Speaker 01:
Because at that time, exhaustion was nationwide, considered jurisdictional prior to Santos-Zacaria.

[00:26:21] Speaker 04:
Zacaria had preceded your first supplemental brief, though, and your red brief, right?

[00:26:27] Speaker 01:
Santos-Zacaria did not precede our red brief, I don't believe.

[00:26:32] Speaker 01:
It may have.

[00:26:32] Speaker 01:
But it certainly preceded your first supplemental brief.

[00:26:35] Speaker 02:
Yes.

[00:26:35] Speaker 02:
But if that justifies

[00:26:38] Speaker 02:
your point about what the government said about exhaustion, why wouldn't it also justify the petitioners having referred to this as jurisdictional before the agency?

[00:26:49] Speaker 01:
Certainly an interesting question.

[00:26:52] Speaker 01:
It's again a question of what is the result.

[00:26:55] Speaker 01:
The result doesn't change whether or not exhaustion is jurisdictional or claims processing here, if timely raised.

[00:27:05] Speaker 01:
So that gets back to your honor's question about was it timely raised?

[00:27:08] Speaker 01:
That's what Fernandez says, because it requires that the claims processing rule to be timely raised is raised before the close of pleadings.

[00:27:16] Speaker 01:
And pleadings were taken here in, I believe November 2017, and the motion to terminate, which was based entirely on jurisdictional points, even though the claims processing rule had been raised in other cases, long predating that, that wasn't filed until February 2019, long after pleadings had been taken.

[00:27:35] Speaker 01:
So then that gets into the question of whether or not there's prejudice.

[00:27:39] Speaker 01:
But exhaustion, again, involves an almost more important question because it's about the agency bringing its expertise to bear on a question.

[00:27:51] Speaker 01:
The beginning of the case, the charging document itself doesn't really say anything about the merits of a case necessarily other than what the charge is and what the facts are to support it.

[00:28:02] Speaker 01:
doesn't say what the government is going to argue as to why those things are correct, doesn't have the actual facts in front of it.

[00:28:08] Speaker 01:
But exhaustion is a much bigger question.

[00:28:11] Speaker 01:
It's about the agency bringing its knowledge, its expertise to bear on an issue.

[00:28:14] Speaker 01:
A specific issue, yes, that has to be raised for this court to be able to do what it does in terms of reviewing them.

[00:28:21] Speaker 01:
If the court is reviewing unexhausted claims,

[00:28:26] Speaker 01:
it's going beyond generic.

[00:28:28] Speaker 01:
It's deciding things that the agency hasn't addressed yet.

[00:28:31] Speaker 01:
And there's certain points that the court can address, pure questions of law, things like that, unless there's some kind of statutory ambiguity.

[00:28:38] Speaker 01:
We're kind of getting far afield here.

[00:28:40] Speaker 01:
But exhaustion and a notice to appear are very distinct concepts.

[00:28:45] Speaker 01:
So in terms of whether or not it's good for the goose, good for the gander in terms of

[00:28:50] Speaker 01:
claims processing versus a jurisdiction argument doesn't have the same impact when it comes to the agency bringing its expertise to bear on a particular issue.

[00:29:01] Speaker 01:
There's no further questions.

[00:29:02] Speaker 01:
Thank you.

[00:29:03] Speaker 03:
Thank you, Council.

[00:29:07] Speaker 03:
Could you give Ms.

[00:29:07] Speaker 03:
Jones one minute, Lisa?

[00:29:17] Speaker 00:
To answer your Honor's question, Judge Matheson, the agency's applicable precedent on the question of timeliness of our objections is a matter of Rosales Vargas, and they were considered timely in that case, in pretty much the similar kinds of situations that our clients faced.

[00:29:40] Speaker 02:
My issue here... My question is whether the BIA relied on

[00:29:44] Speaker 00:
No, the BIA, and that gets to my final conclusion here.

[00:29:47] Speaker 00:
The BIA did not apply its own precedent.

[00:29:51] Speaker 00:
And that is the clear error that is the issue and should be the basis for remanding this case to the board to decide, as they've asked for supplemental briefing, what the remedies are.

[00:30:08] Speaker 00:
Because under matter of Rosalia Vargas, the claim was timely.

[00:30:13] Speaker 00:
Under matter Fernandez, no harm is required and it is a claims processing issue.

[00:30:18] Speaker 00:
And the fact that the board failed to apply either of those cases, arguably in reliance on this court's strict, you have to raise the same legal claims to be exhaustion requirement that the identical legal claim has to be raised.

[00:30:39] Speaker 03:
What remedy do you want from the BIA if we remanded it

[00:30:44] Speaker 00:
Your Honor, 95% probability of this case gets remounded.

[00:30:52] Speaker 00:
Somebody from OPLA reaches out to me and says, we're terminating within three weeks.

[00:31:00] Speaker 00:
It's happened before.

[00:31:02] Speaker 00:
It'll happen again.

[00:31:02] Speaker 00:
That's what will happen.

[00:31:05] Speaker 00:
The BIA is just closing these cases because that's their way of handling them.

[00:31:11] Speaker 00:
Okay?

[00:31:12] Speaker 03:
But what relief, what relief do you want from them?

[00:31:18] Speaker 00:
What relief I want from them?

[00:31:20] Speaker 00:
They need to figure out what the appropriate relief is.

[00:31:23] Speaker 00:
In this case, I don't disagree that at this point, termination would be the appropriate remedy.

[00:31:31] Speaker 00:
Okay?

[00:31:34] Speaker 00:
I mean, because

[00:31:41] Speaker 00:
had the government looked at these errors the way they're looking at them now, and first of all, avoided them, and second of all, dealt with them.

[00:31:53] Speaker 00:
I included in our packet and supplement examples of what the judges are doing in the courts today, and some of them are dismissing and some of them are not, and that is why

[00:32:06] Speaker 00:
I can't tell you what I expect the agency to do because the agency itself hasn't decided.

[00:32:12] Speaker 00:
And if the agency upon remand chooses to apply its new precedent, whatever that may be, then so be it.

[00:32:21] Speaker 00:
I will trust that outcome.

[00:32:24] Speaker 03:
Thank you.