[00:00:00] Speaker 05:
23-9606, Ruiz Nava de Garland.

[00:00:06] Speaker 05:
Counsel, you may proceed.

[00:00:10] Speaker 01:
Thank you, Your Honors, and may it please the Court.

[00:00:13] Speaker 01:
My name is William O'Donnell, and I'm here representing the petitioner, Jose David Ruiz Nava, who is present here with his family in the courtroom today.

[00:00:22] Speaker 01:
I stand before you today with two issues, and the first being

[00:00:26] Speaker 01:
whether the immigration judge abused their discretion when they denied Mr. Ruiz-Nava's request for aid continuance, and two, whether the judge improperly denied petitioner's request for relief from removal.

[00:00:41] Speaker 01:
We are in agreement with the government on a couple of issues, the first being these two issues presented before the court today lead into one another.

[00:00:51] Speaker 01:
It's our position, though.

[00:00:52] Speaker 05:
Counsel, let me just make sure

[00:00:55] Speaker 05:
I'm understanding, because your brief really focuses, for the most part, on the continuance issue, and doesn't necessarily separate out the hardship issue.

[00:01:08] Speaker 05:
But if I'm understanding what you just said, they're two separate issues?

[00:01:13] Speaker 01:
They are two separate issues, and they lead into what?

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And when this appeal brief was submitted, the legal landscape regarding extreme and exceptionally unusual hardship

[00:01:24] Speaker 01:
and whether that was even an appeal reviewable order before this court, it would change in Wilkinson v. Garland in March of 2024 when the Supreme Court did say the extremely exceptionally unusual hardship standard is a question of law reviewable.

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In the underlying case, the problem that we have presented before here is

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Mr. Luis Nava did appear at his final hearing.

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He did present evidence to demonstrate that the hardship he would face would meet the level of extreme and exceptionally unusual hardship.

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But rather than accepting that evidence, the immigration judge just marked it for identification.

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It's not part of the record.

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And that's the problem that I would have had bringing or more fully developing that issue before this court.

[00:02:13] Speaker 05:
The immigration judge and the board of immigration people say- Well, you didn't ask to supplement your brief, did you?

[00:02:20] Speaker 01:
No, Your Honor.

[00:02:20] Speaker 05:
Or file a 28-J letter?

[00:02:23] Speaker 01:
No, Your Honor.

[00:02:24] Speaker 01:
And I do believe the due process is a more primary concern because 20 days, Your Honor, from September 10, 2019 to September 30, 2019, that's how long Mr. Reese Nava had to prepare for his final hearing.

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That's the date.

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September 10th is when the notice was sent out.

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September 30th is when he's hearing us.

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That's the problem that this court is faced with.

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Whether or not that is sufficient time to allow someone who is facing removal from the United States, who's been here for over 30 years, to prepare his case and going into the court, have and submit documents to the immigration judge for them just to say, I'm not accepting them.

[00:03:11] Speaker 01:
I'm sorry, I'm not even going to consider them.

[00:03:14] Speaker 01:
I'll take them, I'll identify them, but I'm not going to accept them.

[00:03:18] Speaker 01:
And I'm going to deny your case because you refuse to corroborate the evidentiary standard.

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So Mr. Ruiz-Nava, in essence, was in a catch-22.

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You didn't corroborate your evidence, but even though I have your evidence, I'm not going to accept it and consider it.

[00:03:35] Speaker 04:
Where is that?

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I just read the order this morning, and I didn't see where the IG said that.

[00:03:40] Speaker 04:
I'm not going to consider your evidence.

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And I can find it.

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I believe it was marked as identification purposes only.

[00:03:54] Speaker 04:
Certainly, the IG referred to it, and the IG recounted what the hardship evidently, or what it was proposed to be.

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As I understand it, the IGJ did not say, but I'm not going to consider any of this evidence.

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Instead, the IGJ found generally credible the applicant.

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And then from there said, it's not sufficiently corroborated.

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For instance, the wife's medical condition.

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And said, what's the medication?

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And nobody could tell him what the medication was.

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That sounds like a failure of corroboration.

[00:04:34] Speaker 01:
The Board of Immigration Appeals decision talks really about the transcripts.

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It doesn't talk about the documentary evidence.

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The wife, Mr. David Ruiz Navas' wife at that time, actually suffered from severe mental health requiring hospitalizations.

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So the issue there was she couldn't corroborate the hospitalizations.

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She was long employed as a paralegal, including the date of the hearing, right?

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Yes.

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And that's something that the IJ could consider.

[00:05:02] Speaker 01:
Yes, that was something that the IJ did consider, but most of the...

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I guess you can say evidentiary issues presented to the immigration judge at that time was testimony alone.

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And I will, during my time for rebuttal, find where in the record they said, I'll mark it for identification purposes only.

[00:05:20] Speaker 04:
But what I'm looking for is where he said, I'm not going to consider it.

[00:05:23] Speaker 04:
That's what I thought you said.

[00:05:25] Speaker 01:
That is what the immigration judge says.

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I'm not going to accept it into the record.

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I'm going to mark it for identification purposes only.

[00:05:33] Speaker 04:
And yet does review every bit of it.

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It does appear that she reviewed some of the evidence, but mostly the immigration judge based the testimony as the only evidence presented.

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Because again, there was documents that were requested.

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The basis of the continuance was the medical records had been previously requested.

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They just had not been provided to Mr. Ruiz, not at that time from the hospital.

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And we're going back again to 20 days is how long he had to prepare his case.

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And this brings me to a good point.

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The other issue, or the other thing that we do agree with on behalf of the government, is their table that talks about the continuances requested.

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And that's page five and six, and going into seven of their brief.

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From July.

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16th of 2019 to September 30th of 2019, three different dates and times were provided to the petitioner here in this case on what his case may be.

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In July 16, 2019, the immigration judge took seven other individuals and granted them a continuance to September 17 of 2019.

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That is in the record.

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on page AR-193.

[00:07:06] Speaker 05:
Could you just explain why he couldn't have been collecting corroborating evidence during that period of time?

[00:07:17] Speaker 01:
Your Honor, that is a great question and it's a simple answer.

[00:07:21] Speaker 01:
Based upon, and it's included in the record here, he was not provided his

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case file from his previous counsel until July 8th of 2019.

[00:07:29] Speaker 05:
Well, I understand.

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But starting in July, we're not talking about 20 days.

[00:07:33] Speaker 05:
We're talking about three months, aren't we?

[00:07:38] Speaker 01:
About 60 days or so.

[00:07:40] Speaker 05:
All right, 60 days.

[00:07:41] Speaker 01:
Yes.

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He was in the process of collecting, and it's demonstrated in the record.

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He just hadn't received the documents up until that time.

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Those things were outside of his control of how long it may have taken some of these places

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to compile, for example, the medical records for the wife to corroborate the evidentiary standard.

[00:08:01] Speaker 01:
Those things are outside his control.

[00:08:04] Speaker 04:
What supports that?

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Was that in the record?

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We went to the hospital and we asked for the records on such and such a date and they said it's going to take three months to get them to you?

[00:08:12] Speaker 01:
I don't believe a specific date was talked about in the transcripts on the record, but it was discussed

[00:08:18] Speaker 01:
Ms.

[00:08:20] Speaker 01:
Roses testified that she had already requested they just had not arrived at that time of the hearing.

[00:08:25] Speaker 04:
But it's an overstatement to say it was out of his control.

[00:08:32] Speaker 01:
I respectfully disagree with that.

[00:08:33] Speaker 04:
Well, what supports it?

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What in the record supports it other than your statement?

[00:08:40] Speaker 01:
Nothing in the record would support it other than

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a request was made for the records, they just had not come yet.

[00:08:47] Speaker 04:
We don't know if the request was made the day before.

[00:08:49] Speaker 01:
That is true, Your Honor.

[00:08:54] Speaker 05:
Could I just ask you, in terms of the ground on which the court denied the continuance, it was lack of due diligence, is that correct?

[00:09:04] Speaker 05:
And is that a permissible ground to deny a continuance?

[00:09:11] Speaker 01:
It's one of the factors that the immigration judge should consider.

[00:09:15] Speaker 01:
Under the matter of hash mean factors, they also have to talk about whether the evidence that is waiting or the graphs for continuance, is it probative to the case at chief?

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Is it noncumulative?

[00:09:27] Speaker 05:
Can we review finding that there was failure to act diligently?

[00:09:35] Speaker 01:
I believe that's a question of fact that the court can

[00:09:39] Speaker 01:
review is a mixed question of law as well.

[00:09:43] Speaker 05:
What's our standard of review?

[00:09:51] Speaker 01:
To be honest, I would have to say, I would suggest a de novo review.

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The reason why I say a de novo review is I believe the recent case of Lopez or Luper Enterprises, the one that discussed

[00:10:09] Speaker 01:
sort of take back of Chevron has changed the legal landscape on deference to agencies.

[00:10:15] Speaker 03:
Well, why are we talking about deference to an agency?

[00:10:18] Speaker 03:
I mean, if an immigration judge says, you know, Bob Baccarac, you waited 60 days, why are we talking about Chevron or R or Kaiser?

[00:10:31] Speaker 03:
That's just a fact.

[00:10:35] Speaker 01:
I think the due diligence, and to answer your question, Your Honor, the due diligence standard is a question of law that the court can weigh into.

[00:10:43] Speaker 01:
I think the matter of how she factors.

[00:10:45] Speaker 03:
Well, I thought you just said it's a mixed question of law and fact.

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And a mixed question of law and fact obviously involves both components.

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And so then I think our case law says that when you have a mixed question of law and fact, the question is, which is the predominant question in this particular scenario?

[00:11:05] Speaker 03:
There's no question that the immigration judge applied the correct legal standard.

[00:11:09] Speaker 03:
So the question is just whether or not the non-citizen waited too long.

[00:11:14] Speaker 03:
It's just a fact, right?

[00:11:16] Speaker 01:
I don't think 60 days is waiting too long, Your Honor.

[00:11:20] Speaker 01:
Mr. Ruiz-Nava had counsel with him at all stages of the proceeding up until March of 2019.

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And as I discussed in the BIA brief, the grounds for withdrawal, which is important

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They need to notify the petitioner as to what scheduled deadlines.

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They need to meet with any upcoming hearing.

[00:11:42] Speaker 05:
Why shouldn't he have started to collect the corroborating evidence in March?

[00:11:48] Speaker 01:
Based upon what is in part of the record, he did start.

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He just didn't know what his attorney had submitted to the court and what was not there.

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So again, he's not trying to recreate the record.

[00:12:02] Speaker 01:
He is trying to

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gather as much information as possible, compare his file from his immigration attorney that's been with him for over 10 years, and submit something to the court.

[00:12:15] Speaker 05:
All right.

[00:12:16] Speaker 05:
I need to come back to what I started asking you about, because it seems as though the thrust of your argument is that he needed more time to gather evidence to corroborate his hardship argument.

[00:12:34] Speaker 05:
Is that?

[00:12:34] Speaker 05:
That's the thrust of my argument, Your Honor.

[00:12:36] Speaker 05:
OK.

[00:12:37] Speaker 05:
But it seemed like you also were saying that there were two issues, not just the continuance issue, but the hardship issue itself.

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Is it your position that the agency erred on the hardship issue based on the evidence that was presented?

[00:12:56] Speaker 01:
I do believe so, Your Honor, because the petitioner and his wife testified credibly at that time.

[00:13:03] Speaker 01:
The only evidence that they had is a credible testimony to support the extreme and exceptionally unusual hardship.

[00:13:10] Speaker 01:
I believe he met it because there is case law there from the Board of Immigration Appeals that says severe and significant mental health constitutes a... All right.

[00:13:21] Speaker 05:
I understand that point.

[00:13:23] Speaker 05:
One other thing on the hardship issue.

[00:13:27] Speaker 05:
You've talked about his wife.

[00:13:30] Speaker 05:
Is the hardship argument limited to his wife at this point, or does it extend to other family members, his parents and his children?

[00:13:40] Speaker 05:
Because that was mentioned, but you haven't said anything about that.

[00:13:43] Speaker 01:
It did, Your Honor, extend it to both his parents who are lawful permanent residents.

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They have thyroid conditions.

[00:13:49] Speaker 01:
Altogether, he has seven qualifying relatives.

[00:13:53] Speaker 01:
So there was substantial hardship.

[00:13:55] Speaker 01:
But I do see I'm getting close to time.

[00:13:57] Speaker 01:
I'd like to reserve the remaining four rebounding hours.

[00:13:59] Speaker 04:
I do have a question for you, and sometimes the presiding judge will give you a minute at the end.

[00:14:04] Speaker 04:
But on this notion of facts and mixed questions of law and fact, it seems to me the fact is that the IJ said, you should have been doing more to get the materials to us.

[00:14:17] Speaker 04:
That's a fact.

[00:14:18] Speaker 04:
That's not a mixed question of law and fact.

[00:14:21] Speaker 04:
And if it's a fact, Wilkinson says, we can't review that.

[00:14:25] Speaker 04:
So do we even have jurisdiction to meet the argument that you're making?

[00:14:30] Speaker 01:
I do believe so, because that fact equates to a due diligence standard.

[00:14:36] Speaker 01:
And a due diligence standard, I believe, is reviewable.

[00:14:39] Speaker 04:
Well, what's the due diligence?

[00:14:41] Speaker 04:
I know what the hardship standard is, because I look at the statute.

[00:14:44] Speaker 04:
What do you maintain that the due diligence legal standard is, other than you have to be prompt about going about your business?

[00:14:51] Speaker 01:
I think it's a totality of the circumstances of what other factors were there such as how long did he actually have to prepare from, he was provided notice to his final hearing, what other steps, what other evidence.

[00:15:06] Speaker 04:
DIJ went through all of that.

[00:15:09] Speaker 01:
I think she missed, our position is she misstated the record because

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It wasn't sufficient.

[00:15:16] Speaker 01:
September 10th of 2019.

[00:15:19] Speaker 04:
You're arguing the fact that you're saying I would or I would decide this differently.

[00:15:23] Speaker 04:
And so please give me relief.

[00:15:26] Speaker 04:
But Wilkinson doesn't allow that or does it?

[00:15:28] Speaker 04:
And if so, tell me why.

[00:15:30] Speaker 01:
I believe Wilkinson allows that on the grounds that

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When you get into facts that apply to clearly demonstrated legal standards, it needs to meet a threshold.

[00:15:54] Speaker 01:
And that might not be the best way to answer that question, Your Honor.

[00:15:58] Speaker 01:
In my mind, it is, but I know it's a hard one to answer.

[00:16:01] Speaker 05:
Thank you very much.

[00:16:02] Speaker 05:
Thank you, counsel.

[00:16:03] Speaker 05:
I'm going to give you a minute rebuttal so you're not done.

[00:16:07] Speaker 01:
Thank you, Your Honor.

[00:16:11] Speaker 02:
Good morning.

[00:16:12] Speaker 02:
May it please the government, Robert Tennyson.

[00:16:14] Speaker 02:
May it please the Board of Governors and the government.

[00:16:17] Speaker 02:
Wow.

[00:16:18] Speaker 04:
We'll try our hardest.

[00:16:20] Speaker 02:
I think since there are questions about Wilkinson and jurisdiction and all of that that you've got, let me spring to those first.

[00:16:25] Speaker 02:
First off,

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under, you know, notes the exception provides some clarity as to what that exception is under 1252 A2D.

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And that covers, you know, as Guerrero and Westerberg have said, both questions of law and mixed questions of law and fact.

[00:16:52] Speaker 02:
Generally, with mixed questions of law and fact, this court's standard of review, depending upon under U.S.

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banks, say, for example, is going to be, you know, either death wrench, more

[00:17:06] Speaker 02:
factually involved it is.

[00:17:08] Speaker 02:
Here, the due diligence standard, if it is not factual, if we're not just re-looking at the agency's factual findings, which are beyond this court's jurisdiction, then we're looking at the application of the due diligence standard.

[00:17:24] Speaker 02:
That application of the due diligence standard, because it is so fact dependent, under U.S.

[00:17:28] Speaker 02:
Bank and under Wilkinson would be a deferential one.

[00:17:31] Speaker 02:
And because the determination, it has to do with

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a good cause determination, which is entirely within the discretion of the agency, except in so far as the Attorney General has cabin that in.

[00:17:43] Speaker 05:
Could I just ask about, assuming that we review the issue, and Wilkinson refers to a deferential.

[00:17:54] Speaker 05:
Right, Your Honor.

[00:17:55] Speaker 05:
But what does that mean?

[00:17:56] Speaker 02:
Right.

[00:17:57] Speaker 02:
I think that's going to depend upon the questions being decided.

[00:18:01] Speaker 02:
So for example here, I would say that

[00:18:04] Speaker 02:
Given that the standard is entirely crafted by the attorney general out of the good cause regulation, that we would apply an abuse of discretion standard.

[00:18:15] Speaker 02:
This court could apply substantial evidence.

[00:18:20] Speaker 02:
both of them boil down to whether, with substantial evidence, it's whether a reasonable trial of fact would be compelled to find in petitioner's favor.

[00:18:30] Speaker 02:
Abuse and discretion is an unreasonable determination if you believe in discretion.

[00:18:35] Speaker 03:
Why does the Attorney General's enactment of a regulation trigger an abuse and discretion standard?

[00:18:41] Speaker 03:
Is that just intuitive to you?

[00:18:44] Speaker 02:
It is kind of intuitive.

[00:18:45] Speaker 02:
I mean, the thing is that it's the way in which the Attorney General

[00:18:50] Speaker 02:
manages his own courtroom, right?

[00:18:53] Speaker 02:
And the way in which the agency manages its own business.

[00:18:57] Speaker 02:
And it's not something that's dictated by a statutory standard, which is where we get into the question of whether or not you have a mixed question of what, the application of a legal standard.

[00:19:08] Speaker 02:
And what good cause is, is so open-ended, that really is up to the discretion of the agency itself to

[00:19:17] Speaker 03:
Is that because of R or Kaiser?

[00:19:25] Speaker 02:
It's not an hour deference question insofar as that hour deference relates to, I guess it is an hour difference insofar as it relates to the attorney general's construction of his own regulations.

[00:19:36] Speaker 02:
But it's broader than that simply because this is the attorney general offering his own.

[00:19:41] Speaker 02:
It's not a substantive standard.

[00:19:43] Speaker 02:
It's a standard for sort of the moderation of the court

[00:19:48] Speaker 02:
attorney general would have more deference and ability to just provide, you know.

[00:19:56] Speaker 02:
briefly moving on from the standard of review.

[00:19:59] Speaker 02:
The petitioner indicated that the immigration judge marked for identification evidence the petitioner had submitted.

[00:20:07] Speaker 02:
What the petitioner had submitted wasn't medical evidence with regard to his son Oscar.

[00:20:12] Speaker 02:
It wasn't with regard to the thyroid issues or high blood pressure of his mother or medical documents with regard to his spouse.

[00:20:22] Speaker 02:
It was an I-130 that his spouse had filed on his

[00:20:26] Speaker 02:
before the hearing.

[00:20:28] Speaker 02:
And that was it.

[00:20:29] Speaker 02:
So it didn't pertain to any of those issues that the immigration judge found to be not corroborated before him.

[00:20:40] Speaker 02:
Yes, Your Honor.

[00:20:41] Speaker 02:
What's an I-130?

[00:20:42] Speaker 02:
Oh, an I-130 is an application, is a petition for alien beneficiary.

[00:20:47] Speaker 02:
It's the thing that, say, for example, the spouse will file for the husband to say, this is my beneficiary that I would like to seek further relief

[00:20:58] Speaker 02:
seeking adjustment of status.

[00:21:00] Speaker 02:
And so the petitioner, because he entered originally as a non-immigrant and overstate his visa, he has the ability to adjust his status later on if he has someone who can petition for him and he can adjust.

[00:21:12] Speaker 02:
But that's outside the scope of the cancellation hearing.

[00:21:14] Speaker 02:
And that's something that USCIS would be taking care of.

[00:21:18] Speaker 05:
Let me just ask you a question about the denial of continuance issue.

[00:21:26] Speaker 05:
This case has been kicking around for a long time.

[00:21:30] Speaker 05:
And it was scheduled and rescheduled, scheduled, rescheduled by my count up to 35 times.

[00:21:38] Speaker 05:
So how can we expect Mr. Ruiz-Nava to be continually prepared when he can't even be sure when his hearing is going to happen?

[00:21:48] Speaker 05:
This is a fair question.

[00:21:49] Speaker 02:
So the thing is that his

[00:21:52] Speaker 02:
The hearing that he actually had was only three days behind, his scheduled hearing.

[00:21:56] Speaker 02:
And that hearing had been scheduled for over two years, or almost two years.

[00:22:01] Speaker 02:
That hearing was originally scheduled, I believe, in October of 2017.

[00:22:05] Speaker 02:
And that hearing would have been for September 27, 2019.

[00:22:09] Speaker 02:
The only change that occurred is about two weeks out that September 27 hearing was not back three days to September 30.

[00:22:20] Speaker 03:
That's a big deal if the lawyer is available on the 27th and he's not available on the 30th, especially after, as my colleague noted, roughly 35 different scheduled hearings.

[00:22:35] Speaker 02:
Right, Your Honor.

[00:22:37] Speaker 02:
So there are a couple of things that attorney could have done.

[00:22:42] Speaker 02:
He could have filed a new clearance.

[00:22:44] Speaker 02:
And had Mr. Ruiz Nava sought an attorney and obtained an attorney with

[00:22:49] Speaker 02:
adequate time before, say, the original hearing was filed, two, three weeks out.

[00:22:53] Speaker 02:
When there was a change in the hearing, that attorney could have filed a continuance, say, in advance, stating, I have another hearing.

[00:23:02] Speaker 02:
I have something else on that date.

[00:23:04] Speaker 02:
And you changed the hearing two weeks out.

[00:23:07] Speaker 02:
Could you please ask for another?

[00:23:08] Speaker 02:
Could you please change the date?

[00:23:10] Speaker 02:
But there was no appearance by that attorney.

[00:23:12] Speaker 04:
What is the record on the identity of the other or the attorney?

[00:23:16] Speaker 04:
We don't have any.

[00:23:18] Speaker 04:
Was that ever offered?

[00:23:19] Speaker 02:
It was never offered.

[00:23:20] Speaker 02:
He just said, I have an attorney, but nothing was ever filed.

[00:23:23] Speaker 02:
So we don't know who the attorney was.

[00:23:25] Speaker 02:
All we had is his word that he sought one and that that attorney backed out when the hearing date was changed.

[00:23:34] Speaker 02:
The other thing is, he had until the date of the hearing, he could have filed that continuance date, a motion for a continuance in advance.

[00:23:41] Speaker 02:
Immigration courts, as I think is well-known, are extremely

[00:23:46] Speaker 02:
busy.

[00:23:47] Speaker 02:
They have a large number of cases that they have to manage.

[00:23:52] Speaker 02:
And so having a date for a merits hearing is kind of a big deal.

[00:23:57] Speaker 02:
And coming in on the date of that merits hearing and saying, I'm sorry, I haven't found an attorney, and I haven't found my documents, it is, after 13 years of waiting, that is somewhat important.

[00:24:12] Speaker 03:
Can I press you a little bit on that?

[00:24:16] Speaker ?:
Sure.

[00:24:16] Speaker 03:
is indisputably correct in a vacuum.

[00:24:19] Speaker 03:
But as Judge Matheson said, this has been scheduled roughly 35 times.

[00:24:26] Speaker 03:
And yes, maybe the lawyer should have filed an entry of appearance.

[00:24:29] Speaker 03:
And maybe he or she should have filed a motion for a continuance and said, I was available on the 27th.

[00:24:36] Speaker 03:
I'm not available that Monday.

[00:24:38] Speaker 03:
But he or she didn't do that.

[00:24:41] Speaker 03:
And sure, the immigration court is very busy.

[00:24:46] Speaker 03:
as is evidence for the fact that they changed the date roughly over 30 times.

[00:24:52] Speaker 03:
But how is it not an abuse of discretion to say that because of the lawyer's procedural failure to call an entry or to seek a continuance, I, the court, am going to deny this person the opportunity even to

[00:25:16] Speaker 03:
to just get another day, to get a 36th date in which the lawyer is available.

[00:25:24] Speaker 03:
Certainly, if the lawyer had filed a motion for a continuance, I think you would agree that any immigration judge, I would think, would say, of course I'm going to grant this.

[00:25:35] Speaker 03:
I mean, it would be an abuse of discretion to deny it.

[00:25:38] Speaker 03:
So why is the lawyer's failure sufficient to penalize this particular individual?

[00:25:46] Speaker 02:
So first, I'm not sure it would be an abuse of discretion.

[00:25:50] Speaker 02:
You have to think that the petitioner had six months from the withdrawal of his prior counsel to go and find new counsel.

[00:25:58] Speaker 02:
It's not as though this was a last minute thing.

[00:26:02] Speaker 03:
It's not as though... If you have a trial on the 27th, and let's say it's been pending for eight years and you have, let's say you're the lawyer and you're available on Friday,

[00:26:15] Speaker 03:
in which it's scheduled to start.

[00:26:16] Speaker 03:
And then the judge says, we're going to continue it until Monday.

[00:26:21] Speaker 03:
But you know what?

[00:26:23] Speaker 03:
You have a European vacation scheduled that week.

[00:26:28] Speaker 03:
And so is the client just on their own?

[00:26:32] Speaker 03:
A court would have the discretion to say, well, sorry, you're going to have to represent yourself, pro se.

[00:26:38] Speaker 03:
I'm not going to continue it just because the lawyer is unavailable that week.

[00:26:46] Speaker 02:
If that were the case, and that was clearly the case, we had an attorney.

[00:26:51] Speaker 02:
We knew that there was an attorney in the case.

[00:26:54] Speaker 02:
And that attorney had appeared before, and then the attorney couldn't make it, and he had shown up on his own.

[00:27:00] Speaker 02:
And we knew the name of the attorney.

[00:27:01] Speaker 02:
We knew all of that information.

[00:27:03] Speaker 02:
That would be a different story.

[00:27:04] Speaker 02:
Here, we don't know who the attorney is.

[00:27:06] Speaker 02:
This seems like a last minute excuse.

[00:27:09] Speaker 02:
We don't have the information from which the immigration judge

[00:27:15] Speaker 02:
was acting irrationally, was not acting within his discretion to conclude, this is just too vague.

[00:27:27] Speaker 02:
This is not certain enough for me to say that you had that attorney and that attorney would have been ready to go.

[00:27:34] Speaker 02:
I believe that's the response.

[00:27:36] Speaker 02:
And on that reading, there's no abuse of discretion.

[00:27:45] Speaker 02:
the continuance.

[00:27:49] Speaker 02:
Turning to the documents, again, one thing that I want to note is that the petitioner had a long time, particularly with regard to the documents for Oscar and with respect to his mother.

[00:28:06] Speaker 02:
I know one thing that he said is that he couldn't have known that those documents were not in his

[00:28:14] Speaker 02:
until that file was turned over to him in July.

[00:28:18] Speaker 02:
The thing is, the way in which his private firm would have had those documents is if he had turned them over to them.

[00:28:23] Speaker 02:
So he would have been the person who knew whether or not those documents were there in the first place, generally.

[00:28:28] Speaker 02:
And second, with regard to his spouse, they knew they were getting married in July.

[00:28:33] Speaker 02:
She could have requested it any time prior to the hearing.

[00:28:35] Speaker 02:
We don't know what date she requested her medical information.

[00:28:38] Speaker 02:
We don't know what date he requested the medical information for his son and for his mother.

[00:28:45] Speaker 02:
So there was no abuse of discretion by the immigration judge in finding that additional time to obtain those documents was not needed.

[00:28:55] Speaker 02:
Unless this court has any further questions for me.

[00:29:00] Speaker 05:
Not the most central point, but I thought I'd read in one of the decisions that they'd only been married for two weeks.

[00:29:08] Speaker 05:
That is correct, Your Honor.

[00:29:09] Speaker 05:
So they got married in September?

[00:29:12] Speaker 02:
They got married in September.

[00:29:13] Speaker 05:
I believe it was September 17.

[00:29:16] Speaker 05:
OK, thank you.

[00:29:25] Speaker 01:
Thank you, Your Honors.

[00:29:27] Speaker 01:
I'm going to be quick.

[00:29:28] Speaker 01:
To answer the question of where it is, the judge said that they're not going to accept them into the record.

[00:29:34] Speaker 01:
That's in AR 206, line 16 through 20.

[00:29:40] Speaker 04:
But that isn't on the disputed evidence.

[00:29:42] Speaker 04:
That is simply the form that

[00:29:46] Speaker 04:
government council mentioned on marital status.

[00:29:49] Speaker 01:
And cooperating evidence.

[00:29:51] Speaker 01:
It was a big packet of evidence, Your Honor.

[00:29:54] Speaker 01:
I believe it is part of the record, but she said it is not ex-in-it.

[00:29:59] Speaker 04:
Okay.

[00:29:59] Speaker 04:
Well, I thought I understood council on the other side said that it was only the form.

[00:30:05] Speaker 01:
It was the forms and I'll try to make this as quick as possible.

[00:30:12] Speaker 01:
It's not just the forms, but in order to submit the forms on immigration, you have to actually corroborate them with documentarian evidence.

[00:30:20] Speaker 04:
OK, but it's not medical records or anything along those lines that the hardship is being based on?

[00:30:26] Speaker 01:
I do believe that there was establishing not only a valid marriage, but also some of, I think her health insurance was in there and stuff like that.

[00:30:34] Speaker 01:
I can't be for certain on that.

[00:30:37] Speaker 01:
OK, thank you.

[00:30:41] Speaker 01:
So in Wilkinson v. Garland for the standard of review, they actually discussed undisputed or established facts is a question of law.

[00:30:50] Speaker 01:
So that would be subject to no vote review.

[00:30:54] Speaker 05:
And the last point I want to make is... Well, but Wilkinson also talked about deference.

[00:31:01] Speaker 05:
So how do you reconcile those two things?

[00:31:04] Speaker 01:
I don't think that deference would be owed, especially on a strictly question of law.

[00:31:11] Speaker 01:
Even though the regulations, I guess I would have to brief you on the Lopez and the deference.

[00:31:18] Speaker 01:
But I think the due diligence for that question of law is strictly a de novo review.

[00:31:26] Speaker 01:
But I thank you for allowing me additional time.

[00:31:29] Speaker 01:
Have a great day.

[00:31:30] Speaker 05:
Thank you, counsel.

[00:31:32] Speaker 05:
Thank you for your arguments this morning.

[00:31:34] Speaker 05:
The case will be submitted and counsel are excused.