[00:00:00] Speaker 01:
All right, good morning.

[00:00:01] Speaker 01:
The court will now call Alvarez-Quesada versus Bondi, case number 24-1929.

[00:00:08] Speaker 01:
Each side will have 15 minutes.

[00:00:10] Speaker 01:
If appellants would like to reserve time for rebuttal, please be aware you are responsible for keeping track of your time, but I would like to know if you plan to reserve time.

[00:00:18] Speaker 01:
So whenever you're ready, counsel.

[00:00:19] Speaker 04:
Good morning, Your Honours, and may it please the court, David Graham-Blitzer on behalf of Petitioner Yolanda Alvarez-Quesada.

[00:00:26] Speaker 04:
I'd like to reserve three minutes of my time for a bottle.

[00:00:28] Speaker 04:
I'll make sure to watch my time.

[00:00:31] Speaker 04:
Your honors, most of the statutory citations are going to be from Title 8 of the United States Code Section 1101, so I'm just going to refer to the subsection numbers for shorthand.

[00:00:40] Speaker 04:
In 1996, your honors, when Congress passed IRA, IRA, in 48B, they gave us a definition to tell the operative sentence for grounds of removability that require a particular sentence length.

[00:00:52] Speaker 04:
And for almost 20 years after the passage of IRA, IRA,

[00:00:54] Speaker 04:
this court and the Respondent Agency held that re-sentencing would count for immigration purposes.

[00:01:01] Speaker 04:
In this case, Respondent is trying to expand its power to deport beyond that which Congress gave to it.

[00:01:07] Speaker 04:
At heart, Your Honors, this is a re-sentencing reclassification case.

[00:01:11] Speaker 02:
Pardon.

[00:01:11] Speaker 02:
It gave to her.

[00:01:12] Speaker 02:
She's the Attorney General.

[00:01:14] Speaker 04:
Yes, yes.

[00:01:15] Speaker 04:
At heart, this is a re-sentencing reclassification case.

[00:01:20] Speaker 04:
Petitioners' substantive criminal events didn't change throughout the proceeding.

[00:01:24] Speaker 04:
And even the re-sentencing was connected to the original indictment and the original guilty plea.

[00:01:30] Speaker 04:
And so the starting point for our analysis, Your Honor, is Garcia Lopez v. Ashcroft, where this court said categorically, in light of our precedent, it is clear that a state court's designation of a criminal offense is binding on the BIA for purposes of determining whether there has been a conviction under the INA.

[00:01:48] Speaker 04:
Moreover, it said, more importantly, a state court expungement of a conviction is qualitatively different from a state court order to classify an offense or modify a sentence.

[00:01:57] Speaker 04:
In the latter situation, the state court is clearly considering the nature of the conviction pursuant to state law.

[00:02:03] Speaker 04:
Now, Respondent cites a line of cases of this court under the Pickering Rule, where petitioners had their substantive criminal offense vacated and then either changed or dismissed.

[00:02:15] Speaker 04:
Those cases don't apply to petitioners' facts where the substantive criminal offense stayed the same throughout the proceeding.

[00:02:22] Speaker 04:
The respondent cites Prado, but Prado is far afield from the facts of the petitioner's case.

[00:02:28] Speaker 02:
Pardon me.

[00:02:28] Speaker 02:
Let's get some procedural facts straight, if we agree on this.

[00:02:34] Speaker 02:
The petitioner was first convicted of a felony

[00:02:38] Speaker 02:
and was sentenced to 12 to 48 months, which is a felony, which sentence was suspended, but it was imposed.

[00:02:50] Speaker 04:
That's correct, Your Honor.

[00:02:51] Speaker 02:
Correct.

[00:02:52] Speaker 02:
So then on the resentencing, the sentencing became a misdemeanor, but it was not because of any procedural error or

[00:03:04] Speaker 02:
factual error in the original sentencing or trial, but because of her successful completion of the probation terms, correct?

[00:03:16] Speaker 04:
Your Honor, we'd say that the burden is on the government by clear, convincing, and unequivocal evidence that any change in sentence under the Pickering Standard is solely for rehabilitative purposes, and we don't believe that the government has met their burden in this case.

[00:03:30] Speaker 02:
Oh, okay, then why haven't they met the burden?

[00:03:34] Speaker 04:
Your honor, because again, it has to be solely for rehabilitative reasons, right?

[00:03:38] Speaker 04:
The fact that petitioner went to mental health court is just, that alone is not sufficient to say that that was the basis, especially since the order didn't cite, right, rehabilitative or immigration reasons for why the sentence was changed.

[00:03:53] Speaker 03:
What's your authority for the solely part?

[00:03:57] Speaker 04:
That's in this Ninth Circuit case, I believe it's,

[00:03:59] Speaker 04:
Cardoso, I don't remember the exact name, but that has been the standard in the Ninth Circuit, that it's solely for rehabilitative reasons.

[00:04:08] Speaker 04:
But, Your Honors, I'd like to go back to the fact that both this Court's precedence and 48B itself don't actually say the exact manner in which the sentence changed is important.

[00:04:20] Speaker 04:
So let's start with, again, Garcia Lopez.

[00:04:22] Speaker 04:
Garcia Lopez cited to a variety of ways in which the sentence could be changed.

[00:04:26] Speaker 04:
It's cited to the agency's then

[00:04:28] Speaker 04:
case on point, matter of song.

[00:04:30] Speaker 04:
It also cited to, which is a sentence alteration case, it also cited to Sandoval the INS.

[00:04:36] Speaker 04:
And even the Garcia Lopez Court characterized it as a modified conviction.

[00:04:41] Speaker 04:
And so the Garcia Lopez Court saw re-sentencing expansively.

[00:04:46] Speaker 04:
But more importantly, in 48B, Congress has told us that the operative sentence for movability grounds is not tied

[00:04:54] Speaker 04:
to a conviction, but to an offense.

[00:04:57] Speaker 04:
So if we look at 48B, it says any reference to a term of imprisonment or sentence with respect to an offense.

[00:05:05] Speaker 04:
And so if Congress wanted to tie the operative sentence to the conviction, given that the word conviction is right above it, it seems strange that they said offense.

[00:05:14] Speaker 04:
And so that means that under 48, the operative sentence is that tied to the substantive criminal offense triggering removability.

[00:05:21] Speaker 02:
That's not what triggering says.

[00:05:23] Speaker 02:
Conviction vacated for reason unrelated to the merits of the underlying criminal proceeding may be used as a conviction in removal proceedings, whereas a conviction vacated because of procedural or substantive defect in the criminal proceedings may not.

[00:05:41] Speaker 02:
They don't talk about the crime, they don't talk about the sentence, they talk about the conviction.

[00:05:46] Speaker 04:
I'm talking about 48B, Your Honor, though.

[00:05:48] Speaker 04:
In 48B, Congress gave us that definition.

[00:05:50] Speaker 04:
The pickering line of cases are about vacated convictions that change the substantive criminal offense.

[00:05:56] Speaker 04:
And so again, if you look at actually 48, what Congress enacted, it doesn't focus on the substantive criminal offense here changed from a felony to a misdemeanor?

[00:06:04] Speaker 04:
No, the sentence changed.

[00:06:05] Speaker 04:
But from beginning to end, from the indictment, the substantive criminal offense was attempted battery with substantial bodily harm.

[00:06:13] Speaker 04:
And so that word offense in 48B, right, we have to give effect to the word that Congress used.

[00:06:17] Speaker 04:
And that ties back to the criminal offense, not the sentence.

[00:06:21] Speaker 04:
The sentence is distinct.

[00:06:24] Speaker 04:
And I'd like to just talk with the court for a second about how 48A and 48B work differently, right?

[00:06:30] Speaker 03:
If we look at the language that Congress... Were you saying that Pickering conflicts with 48B?

[00:06:35] Speaker 04:
No.

[00:06:35] Speaker 04:
Pickering applied, again, to a vacated conviction where the substantive criminal offense changed.

[00:06:41] Speaker 04:
So Pickering never interpreted 48B.

[00:06:43] Speaker 04:
It's only when the then Attorney General Barr passed Thomas and Thompson that the Pickering Rule was applied to 48B.

[00:06:53] Speaker 04:
Prior to that, the agency saw 48B and resentencing as distinct from cases where the substantive conviction was changed.

[00:07:02] Speaker 04:
And so I'd like to just walk the court through 48A versus 48B for a second.

[00:07:05] Speaker 04:
So if you look at 48A, it says, a formal judgment of guilt entered

[00:07:12] Speaker 04:
So first we see the indefinite article A, and we see the word entered.

[00:07:16] Speaker 04:
When something's entered into the record, the only way it can be gotten rid of is if it's struck, if it was void to enter in the first place.

[00:07:24] Speaker 04:
And that suggests that for the conviction of the offense, Congress was pegging it to the entry of the conviction.

[00:07:32] Speaker 04:
Now let's look at 48B.

[00:07:33] Speaker 04:
It says, with respect to an offense,

[00:07:37] Speaker 04:
It's the period of incarceration or confinement ordered by a court of law.

[00:07:42] Speaker 04:
So first we have the definite article, the.

[00:07:44] Speaker 04:
And that matches petitioner's ground of removability, 43F, which has the term of imprisonment.

[00:07:50] Speaker 04:
And then we see the word ordered, right?

[00:07:52] Speaker 04:
Orders can be changed, vacated, modified.

[00:07:55] Speaker 04:
They are tied to the power of the court.

[00:07:58] Speaker 04:
And so our position, Your Honor, is that under 48, Congress has, as a definitional matter, set the operative sentence for removability

[00:08:07] Speaker 04:
to what is the sentence in force at the sentencing court.

[00:08:12] Speaker 04:
And that matches this court's precedence in Alberto Gonzalez and Bayou Dan.

[00:08:16] Speaker 04:
This court said in Alberto Gonzalez that the sentence for removability purposes is the sentence actually imposed.

[00:08:23] Speaker 04:
And in Bayou Dan, which applied Alberto Gonzalez, a petitioner had a 365-day sentence.

[00:08:29] Speaker 04:
And then it was reduced to 364.

[00:08:30] Speaker 04:
And in a presidential order, this court said that Bayou Dan was no longer removable.

[00:08:37] Speaker 04:
It didn't qualify the reason it was changed.

[00:08:40] Speaker 04:
And it didn't focus on, sorry, the manner or the reason.

[00:08:44] Speaker 04:
And Beyu Dan was decided after Murillo Espinosa when this court gave Chevron deference to Matter of Rule Dan, which is kind of a precursor case to the Pickering Test.

[00:08:56] Speaker 04:
And then I'd also like the court to think about the reenactment canon.

[00:08:59] Speaker 04:
So this is best exemplified by Matter of Martin.

[00:09:03] Speaker 04:
Prior to Ira Ira, in the,

[00:09:07] Speaker 04:
agency case law, resentencing was respected for immigration purposes.

[00:09:12] Speaker 04:
In the matter of Martin, the non-citizen had their sentence changed, and the court respected it.

[00:09:18] Speaker 04:
And then in IRA, the Congress changed the definition of sentencing.

[00:09:25] Speaker 04:
And they focused on the particular BIK cases they didn't like, particularly around suspended sentences, and changed it.

[00:09:32] Speaker 04:
And yet they didn't say anything about resentencing, even though for many years prior to that,

[00:09:37] Speaker 04:
re-sentencing had been respected for immigration purposes.

[00:09:41] Speaker 04:
And so Congress re-enacted that long-standing administrative rule.

[00:09:45] Speaker 04:
The re-sentencing counts for immigration purposes, regardless of the reason, regardless of the manner.

[00:09:51] Speaker 04:
Last, I'd like to address respondents' argument that petitioners' proposed interpretation creates disharmony between 48A and 48B.

[00:09:58] Speaker 04:
And it cites Ratuta for that.

[00:10:02] Speaker 04:
And I don't actually think our interpretation does create disharmony.

[00:10:05] Speaker 04:
It reflects the difference between a conviction and a sentence.

[00:10:10] Speaker 04:
When a conviction happens and there's a finding of guilt, it's like a bell that can't be unrung.

[00:10:15] Speaker 04:
Unless it's changed for a procedural or substantive defect, that finding of guilt exists.

[00:10:20] Speaker 04:
Sentences aren't a binary.

[00:10:22] Speaker 04:
Sentences aren't a yes or no.

[00:10:24] Speaker 04:
They're a decision by the sentencing judge along a spectrum of options to figure out

[00:10:30] Speaker 04:
What is the gravity of the offense?

[00:10:32] Speaker 04:
And Congress chose, and it could have chosen otherwise, Congress chose to pay the sentencing definition to the sentencing judge's determination.

[00:10:40] Speaker 02:
But here, didn't the immigrant withdraw her felony guilty plea?

[00:10:47] Speaker 04:
That's correct, Your Honor.

[00:10:48] Speaker 02:
Then she couldn't have been convicted under the prior felony plea.

[00:10:55] Speaker 02:
Until she pleaded guilty again to the misdemeanor.

[00:10:58] Speaker 04:
Right.

[00:10:59] Speaker 04:
And Your Honor, I guess what I'm saying is that 48B, the sentencing definition, isn't tied to a particular conviction.

[00:11:05] Speaker 04:
It's tied to a particular offence.

[00:11:08] Speaker 04:
And since there was the same indictment from the beginning, the same guilty plea, and that guilty plea contemplated... Telling us that the Pickering language is no longer applicable.

[00:11:17] Speaker 04:
Nope.

[00:11:18] Speaker 04:
Nope.

[00:11:18] Speaker 04:
I'm saying that the Pickering line applies to cases where the substantive criminal offence has changed.

[00:11:23] Speaker 04:
Right?

[00:11:24] Speaker 04:
The actual crime, right, the offense, as it says in 48B, has changed, been vacated, dismissed.

[00:11:31] Speaker 04:
I'm saying, in petitioner's case, where you have the same criminal offense throughout the proceeding, the same indictment, the same guilty plea, that under 48B, re-sentencing counts.

[00:11:42] Speaker 04:
Now, I am saying that Thomas and Thompson was wrongly decided, right?

[00:11:45] Speaker 04:
Thomas and Thompson applies the Pickering Rule onto 48B.

[00:11:49] Speaker 04:
It graphs

[00:11:50] Speaker 04:
The Pickering Rule, which really was a species of the language of 48A, on to 48B.

[00:11:56] Speaker 04:
And again, I'd emphasize that this court in 48 does not pay attention to the particular manner under state law in which the sentence was changed, whether it's an amended judgment conviction, sentence alteration.

[00:12:07] Speaker 04:
There's no language in 48 or this court's opinion in Garcia Lopez, which again, saw this expansively, that says that it has to be just a sentence alteration for that to apply.

[00:12:19] Speaker 04:
I'd like to reserve the remainder of my time for a vote.

[00:12:21] Speaker 01:
Okay.

[00:12:22] Speaker 00:
Thank you counsel Good morning, and may it please the court.

[00:12:41] Speaker 00:
I'm Virginia Gordon for the respondent I

[00:12:43] Speaker 00:
Your honors, this case has a straightforward resolution.

[00:12:46] Speaker 00:
It involves the vacator of a conviction for a categorical aggravated felony crime of violence.

[00:12:52] Speaker 02:
After a withdrawal of the guilty plea and then a new guilty plea to the same.

[00:12:58] Speaker 02:
The same offense.

[00:13:01] Speaker 02:
but categorized as a misdemeanor.

[00:13:04] Speaker 00:
Correct.

[00:13:05] Speaker 02:
So will you address the point that was made by opposing counsel?

[00:13:08] Speaker 02:
Does that make a difference?

[00:13:09] Speaker 00:
Yes, Your Honor.

[00:13:10] Speaker 00:
I don't believe it makes a difference for the resolution of this case because there was a conviction under the definition at 1101A48A, and I will also use the 48A, 48B subcategories.

[00:13:23] Speaker 00:
So we had a conviction under 48A, as the INA defines conviction.

[00:13:27] Speaker 00:
The judgment of conviction shows there was a finding of guilt based on a guilty plea to the felony level offense.

[00:13:33] Speaker 00:
There was a sentence imposed, a prohibition on her liberty, Ms.

[00:13:38] Speaker 00:
Alvarez Guevara's liberty, and that was a conviction.

[00:13:42] Speaker 00:
She then participated in Nevada's rehabilitative mental health court program.

[00:13:47] Speaker 00:
And when she successfully completed that, she requested to withdraw to have an early release from probation, which was granted.

[00:13:57] Speaker 00:
She withdrew her felony plea of guilt.

[00:14:01] Speaker 00:
And then she entered a new plea to a gross misdemeanor of attempted battery with substantial bodily harm and was sentenced to credit for time served.

[00:14:10] Speaker 00:
and had an amended judgment of conviction entered.

[00:14:12] Speaker 00:
So we had a conviction, we had a rehabilitative process, we had a vacator, and we had a new conviction.

[00:14:17] Speaker 00:
And because of that, it's squarely underpickering, which says that if a conviction is vacated for purposes of rehabilitation or to alleviate immigration hardships, it remains effective for immigration purposes.

[00:14:32] Speaker 00:
And thus, the board properly found that she was removable on that basis.

[00:14:37] Speaker 02:
But you addressed the argument that counsel made, that pickering is not applicable to this case.

[00:14:44] Speaker 00:
I do hear my colleague's argument there, but we disagree fundamentally on that because pickering is very clear that if there's a conviction that is vacated for rehabilitative purposes, it remains effective for immigration consequences.

[00:14:57] Speaker 00:
And we don't see that the word offense in 48B makes a difference here.

[00:15:02] Speaker 00:
Because that's, as this court has said in Retuta v. Holder,

[00:15:07] Speaker 00:
A and B must be read together to make sense of them.

[00:15:11] Speaker 00:
And B modifies A, as Ratuta said.

[00:15:14] Speaker 00:
And it's clear from the way the statute is written where 1101A provides us with definitions.

[00:15:22] Speaker 00:
All of the definitions, when you look through 1148A, the term is in quotation marks.

[00:15:27] Speaker 00:
The only term in quotation marks here is conviction.

[00:15:29] Speaker 00:
So we're defining a conviction.

[00:15:30] Speaker 00:
And B is modifying that definition of a conviction.

[00:15:34] Speaker 00:
So that Congress used the word offense

[00:15:38] Speaker 00:
We don't see it making as much of an impact as... You can't be sentenced for an offense.

[00:15:43] Speaker 02:
You can only be sentenced for a conviction.

[00:15:44] Speaker 00:
For a conviction, correct.

[00:15:45] Speaker 00:
And Ms.

[00:15:46] Speaker 00:
Alvarez-Casado was sentenced for her conviction of felony attempted battery of substantial bodily harm when she was first convicted.

[00:15:55] Speaker 00:
She engaged in a rehabilitative process under Nevada law, and then she withdrew that plea.

[00:16:00] Speaker 00:
And under Nevada law, they consider that a vacator.

[00:16:03] Speaker 00:
Her conviction was vacated.

[00:16:05] Speaker 00:
She repled to the gross misdemeanor level,

[00:16:08] Speaker 00:
was convicted and had a new sentence.

[00:16:10] Speaker 00:
And that's the only change.

[00:16:12] Speaker 00:
We didn't have a sentence modification here.

[00:16:14] Speaker 00:
We had a conviction vacated.

[00:16:15] Speaker 03:
How do you respond to the petitioner's argument that only convictions that are altered solely for rehabilitative purposes qualify?

[00:16:25] Speaker 00:
To the argument that I'm sorry, your honor.

[00:16:28] Speaker 00:
Can I see clarification on that?

[00:16:29] Speaker 03:
Yeah, that the convict, it's only convictions that are altered solely for rehabilitative.

[00:16:35] Speaker 00:
Oh, yes.

[00:16:36] Speaker 00:
Thank you.

[00:16:36] Speaker 00:
I apologize.

[00:16:38] Speaker 00:
Well, yeah, it is accurate that the case says solely for rehabilitative purposes, but the Ninth Circuit hasn't said what the government has to show to make it solely rehabilitative.

[00:16:46] Speaker 00:
And what the government showed here is sufficient to meet what the court has said is when you're looking at this, we looked under Belinas Lucero, we look at the state law, the reasons the petitioner or the individual provided for seeking the vacator, as well as the court's order.

[00:17:05] Speaker 00:
And we look for what the record compels.

[00:17:08] Speaker 00:
And here the record compels that this was rehabilitative.

[00:17:11] Speaker 00:
We have a Nevada process that allows certain defendants who meet mental health criteria and have not been convicted of certain offenses to participate in mental health court if the criminal court judge agrees.

[00:17:24] Speaker 02:
Was there any evidence presented by the immigrant that there were other reasons besides rehabilitation for her motion?

[00:17:35] Speaker 00:
What I hear from there is suggesting that DHS had to prove a negative.

[00:17:39] Speaker 00:
What DHS provided was enough evidence to compel a conclusion that this was solely rehabilitative.

[00:17:45] Speaker 02:
My question, let me rephrase it.

[00:17:47] Speaker 02:
When she went to the Nevada court to have her sentence changed, did she provide any evidence other than the fact that she had completed rehabilitation in the mental facility as a reason for the vacator to be granted?

[00:18:04] Speaker 00:
No your honor the evidence that she presented then DHS provided this to the corporate the evidence that was provided to the criminal court was that she successfully completed mental health court complied with all medication and meeting requirements that she did all of the substance I'm sorry all of the counseling and therapy that was required of the program and that she

[00:18:24] Speaker 00:
met those requirements and that was it.

[00:18:27] Speaker 02:
The court ordered... Did the court make any findings on any other basis for vacating the earlier conviction?

[00:18:35] Speaker 00:
No, Your Honor.

[00:18:36] Speaker 00:
The court just said that it was pursuant to the negotiations that were done during the plea proceedings.

[00:18:44] Speaker 00:
that it would vacate the order.

[00:18:46] Speaker 00:
And Nevada law further shows that mental health, when we look at Nevada law under Bolinas that allows for this, Nevada law shows that this is rehabilitative because it allows under state law to lessen the

[00:18:59] Speaker 00:
effects of the sentence that was originally entered.

[00:19:03] Speaker 00:
And this court in an unpublished decision, Delator Solis, upheld this as similar situation where a person was convicted of felony mayhem, participated in probation and successfully completed it, and then was able to withdraw that felony mayhem plea, plead to gross misdemeanor mayhem, and

[00:19:22] Speaker 00:
and have, for Nevada purposes, that case vacated.

[00:19:26] Speaker 00:
But it was still a conviction for felony mayhem for immigration purposes.

[00:19:29] Speaker 00:
And the individual was removable because it was a vacator.

[00:19:34] Speaker 00:
It was rehabilitative.

[00:19:35] Speaker 00:
And Pickering says a conviction vacated for rehabilitative purposes remains valid for immigration effects.

[00:19:45] Speaker 00:
Are there any further questions?

[00:19:47] Speaker 00:
All right, well, if there are no further questions, we just ask that the court deny the petition for review.

[00:19:52] Speaker 00:
And thank you for your time.

[00:19:53] Speaker 00:
Thank you.

[00:19:55] Speaker 02:
I'm going to ask you to please walk me through your argument that pickering doesn't apply to this case once more.

[00:20:04] Speaker 04:
OK.

[00:20:04] Speaker 04:
So Your Honor, first of all, I'd like to say that the respondent hasn't cited a single case under the pickering standard.

[00:20:12] Speaker 02:
Let's leave that to one side.

[00:20:14] Speaker 04:
I'm going to answer your question, if it's all right.

[00:20:16] Speaker 04:
Where the Pickering Rule applied to a removable ground where the sentence changed, right?

[00:20:22] Speaker 04:
There's no precedential opinion.

[00:20:23] Speaker 04:
They said to Delator, which is unpublished, there's no precedential opinion where, when a sentence changed, that the Pickering Rule was applied to that.

[00:20:31] Speaker 04:
And so my argument, Your Honor, is that Pickering is about whether there's a conviction for an offense, okay?

[00:20:38] Speaker 04:
The Pickering Rule is a product

[00:20:41] Speaker 04:
of the particular language of 48A, whether you have been convicted of an offense.

[00:20:47] Speaker 04:
That is different than what is the sentence for that offense.

[00:20:51] Speaker 04:
And again, Your Honor, we have to give meaning to the words that Congress used.

[00:20:56] Speaker 04:
It used the word offense, not conviction.

[00:20:59] Speaker 04:
Now, again, respondents say it's retuta for the harmonious reading canon.

[00:21:03] Speaker 04:
First of all, that's only a presumption.

[00:21:04] Speaker 04:
If the text can't bear that presumption, right, as Cleon Gardner say this,

[00:21:09] Speaker 04:
then it doesn't work.

[00:21:12] Speaker 04:
But at the same time, I'd also like to point out again that in this court's right jurisprudence, under Garcia Lopez, it said that a state court's designation of a criminal offense is binding for whether there has been a conviction.

[00:21:25] Speaker 04:
So even under this court's precedence, if the court is inclined to say, well, if there's a conviction, then that's the operative sentence, whatever's with the conviction, Garcia Lopez said it's binding on that conviction.

[00:21:37] Speaker 04:
Judge, the case for the solely real that we talked about earlier, that's Cardoza plus Seca.

[00:21:44] Speaker 04:
And as the respondent pointed out, the guilty plea agreement contemplated this change.

[00:21:50] Speaker 04:
And so the order doesn't say there were no findings in the order that said that this was changed because of the mental health court.

[00:21:59] Speaker 04:
And so we, again, it's clear, unequivocal evidence.

[00:22:03] Speaker 04:
And it's our position that the government didn't meet this burden.

[00:22:07] Speaker 02:
The only evidence that she presented for changing the sentence was her rehabilitation, right?

[00:22:14] Speaker 04:
Yes, Your Honor.

[00:22:15] Speaker 02:
Did she present any other evidence, like that she had kids that she had to take care of or that she'd been working in NGOs or doing anything like that?

[00:22:24] Speaker 04:
It's our position, Your Honor, that that's not enough, that that may be a factor.

[00:22:27] Speaker 04:
We acknowledge that the mental health court is a factor.

[00:22:29] Speaker 02:
What other factor could there be?

[00:22:32] Speaker 04:
Again, the sentencing order is silent on why the judge decided to change the sentence.

[00:22:37] Speaker 02:
Because all he had before him was the rehabilitation evidence that you didn't present, or not you, but whoever was representing you, didn't present any evidence other than that for the change of plea.

[00:22:47] Speaker 04:
It's our position, Your Honor, that that's not clear, unequivocal, and convincing, because the sentencing order doesn't particularly tie it to that mental health court treatment.

[00:22:56] Speaker 01:
Council, I wanted to ask you on Garcia Lopez.

[00:22:58] Speaker 01:
What did the court actually sentence Garcia Lopez to?

[00:23:03] Speaker 04:
So Your Honor, the particular facts of Garcia Lopez are I believe that he was originally sentenced to, that they withheld sentence and then eventually he was sentenced to a misdemeanor.

[00:23:14] Speaker 04:
And so the question, the particular factual question of Garcia Lopez was whether it had been designated as a felony or a misdemeanor earlier in the case.

[00:23:21] Speaker 01:
So the fact that he, that Garcia Lopez was not sentenced

[00:23:26] Speaker 01:
to a felony Does that make a difference because here she was sentenced correct your honor?

[00:23:34] Speaker 04:
It's our position that the Garcia Lopez court didn't limit it to this particular factual circumstance again It's cited matter of song which is a sentence alteration case It's cited sands of all the INS which was a modified conviction case They called it that and in sand of all this it has a similar fact pattern for petitioners now again They said it was because of a procedural substantive defect

[00:23:52] Speaker 04:
But the point is that the Garcia Lopez Court didn't care about the exact manner in which the sentence was changed.

[00:23:58] Speaker 04:
And honestly, Your Honor, I don't think 48B does either.

[00:24:01] Speaker 04:
I think Congress wrote it to give effect to the sentencing of the operative court for the offense.

[00:24:07] Speaker 04:
I know I run over my time.

[00:24:08] Speaker 01:
OK.

[00:24:09] Speaker 01:
Thank you, Counselor.

[00:24:09] Speaker 04:
All right.

[00:24:10] Speaker 04:
Thank you, Your Honors.

[00:24:11] Speaker 01:
All right.

[00:24:11] Speaker 01:
This concludes our arguments for this morning.

[00:24:14] Speaker 01:
This matter is now submitted.

[00:24:15] Speaker 01:
I'd like to thank the court for its assistance and also

[00:24:20] Speaker 01:
And I'd also like to thank Judge Brown for assisting us this week.

[00:24:28] Speaker 01:
Thank you everyone.

[00:24:28] Speaker 01:
We now stand in recess.