[00:00:00] Speaker 04:
May it please the court.

[00:00:03] Speaker 02:
I'd like to reserve three minutes for rebuttal.

[00:00:06] Speaker 02:
Sure.

[00:00:06] Speaker 02:
And if you could maybe move the microphone a little closer.

[00:00:08] Speaker 02:
Okay.

[00:00:17] Speaker 04:
Thank you.

[00:00:19] Speaker 04:
As an initial matter, we're here to resolve a legal issue which has already been resolved by this court.

[00:00:24] Speaker 04:
In Fonseca, Fonseca v. Garland, the court decided which standard review was appropriate for a motion to reopen based on a denial, which was using a prima facie analysis.

[00:00:36] Speaker 04:
That's the case here.

[00:00:37] Speaker 04:
We have the petitioner, Ms.

[00:00:40] Speaker 04:
Ariopina, who has asked the BIA to reopen her proceedings based on new evidence of her qualifying relative, youngest child, having autism and significant disability related to that autism diagnosis.

[00:00:53] Speaker 04:
The court or the BIA in this case used the standard of review, which is appropriate if the agency had intended to deny on discretion.

[00:01:04] Speaker 04:
It could have denied on discretion, but here it denied on a prime Natasha case.

[00:01:08] Speaker 04:
It specifically stated as much.

[00:01:10] Speaker 04:
The court does not need to conjecture or look at the details of the analysis that the BIA stated, specifically the prime Natasha denial.

[00:01:20] Speaker 04:
Supporting that is the analysis which the BIA conducted regarding the hardship.

[00:01:26] Speaker 04:
Now, a significant distinguishing factor from the Fonseca Fonseca case is that here, the respondent's case for cancellation of removal has already been denied on discretion.

[00:01:36] Speaker 04:
However, where the agency didn't address that, that's not an issue before this court.

[00:01:41] Speaker 04:
But we do want to address it here because it is not a matter of ping-ponging back and forth between the agency and this court.

[00:01:48] Speaker 04:
There is a real case here for discretion purposes as well as for hardship purposes.

[00:01:54] Speaker 04:
there are 3 factors that you would like this court to consider in reviewing the discretion analysis.

[00:01:59] Speaker 04:
The way that we asked this court to consider that is in 2 different ways.

[00:02:02] Speaker 04:
One is a due process violation for the underlying

[00:02:07] Speaker 04:
to reopen.

[00:02:08] Speaker 04:
And the second is there's new evidence.

[00:02:11] Speaker 04:
So jumping straight to those 3 new factors are those 3 factors.

[00:02:16] Speaker 04:
First, we have the new evidence that the petitioner here, miss our opinion is the mother of a disabled child.

[00:02:23] Speaker 04:
She is a person who is caring for that child who has level 2 severity autism.

[00:02:27] Speaker 00:
I'm sorry.

[00:02:28] Speaker 00:
I'm sorry.

[00:02:29] Speaker 00:
I'm sorry.

[00:02:32] Speaker 00:
I'm sorry.

[00:02:33] Speaker 00:
I'm sorry.

[00:02:36] Speaker 00:
I'm sorry.

[00:02:38] Speaker 00:
I'm sorry.

[00:02:40] Speaker 04:
I'm sorry.

[00:02:42] Speaker 04:
I'm sorry.

[00:02:45] Speaker 04:
this case can be remanded simply on the fact that the agency chose to review the primate fashion case only.

[00:02:52] Speaker 00:
No, I understand.

[00:02:53] Speaker 00:
I understand the argument for Fonseca Fonseca.

[00:02:55] Speaker 00:
But what you are discussing right now about the discretionary factors, what are you discussing them in relation to in this case?

[00:03:03] Speaker 04:
Thank you.

[00:03:03] Speaker 04:
I understand your question.

[00:03:05] Speaker 04:
We're asking the court to consider that in three different ways.

[00:03:09] Speaker 04:
First, and most importantly, is for the cancellation removal application as stated in the motion to reopen.

[00:03:16] Speaker 04:
Second, if the court finds that there's no good basis for the motion to reopen, the underlying application for cancellation removal.

[00:03:24] Speaker 04:
And third, the voluntary departure.

[00:03:25] Speaker 00:
Well, let me ask this.

[00:03:26] Speaker 00:
Our ability to review discretionary denials is, as you know, very limited, only for legal or constitutional error.

[00:03:35] Speaker 00:
And I understand that you're trying to make a due process argument for our ability to review the discretionary denial.

[00:03:42] Speaker 00:
What is that due process argument?

[00:03:47] Speaker 04:
I would like to ask the court.

[00:03:47] Speaker 04:
As an initial matter to address the court's first statement.

[00:03:52] Speaker 04:
The petition does ask the court to find that there is case law specifically work the I n s that acknowledges that this court cannot tell the agency which factors to consider, but where the agency left out significant factors.

[00:04:06] Speaker 04:
that this court can find in the use of discretion.

[00:04:09] Speaker 04:
Regarding the court's question as to the due process violation, we ask the court to consider and to be more clear, the due process violation considering that there is no motion to reopen.

[00:04:22] Speaker 04:
There is a motion to reopen, but if we look just to the motion to reopen, to the underlying petition, excuse me, the petitioner's testimony in this case

[00:04:33] Speaker 04:
specifically regarding her subjective intent when she committed the offenses, which led to her felony convictions in Maricopa County Superior Court in Arizona.

[00:04:43] Speaker 04:
She stated, and the immigration judge found her credible, she stated that she was not aware of the illegality of her actions that led to those three convictions, from one conviction with three separate felonies.

[00:04:59] Speaker 04:
So her subjective intent

[00:05:03] Speaker 04:
is relevant.

[00:05:04] Speaker 04:
It's a mitigating factor as to her criminal convictions.

[00:05:08] Speaker 03:
I was just going to ask, how is that a due process issue?

[00:05:13] Speaker 03:
It just sounds like it goes to abuse of discretion.

[00:05:15] Speaker 03:
No, I was going to ask exactly the same question.

[00:05:18] Speaker 04:
Thank you, Your Honor.

[00:05:19] Speaker 04:
We would ask the court to consider it a due process violation because, yes, we can in other cases

[00:05:26] Speaker 04:
I asked the court to balance factors, and that's improper.

[00:05:30] Speaker 04:
But here there was a factor which was weighed essentially at zero.

[00:05:35] Speaker 04:
In other words, it was excluded.

[00:05:37] Speaker 04:
So here her subjective testimony, which was found credible, was excluded as a mitigating factor.

[00:05:43] Speaker 04:
And we do recognize that the agency has discretion to decide how much weight to give to that subjective testimony.

[00:05:50] Speaker 04:
But here, the BIA specifically stated that they chose to exclude that evidence that they would not.

[00:05:55] Speaker 02:
I mean, the BIA specifically said, you made this argument.

[00:06:00] Speaker 02:
that the IJ should have given more weight, but the IJ was not required to accept her testimony in this regard, even if he viewed her as generally credible.

[00:06:17] Speaker 02:
So, I mean, even if a different IJ might have gone a different way, I don't see how that could possibly rise to the level of a due process constitutional violation.

[00:06:31] Speaker 04:
we would direct the court in response to that concern to Colby holder in in that case this court found that's where there is credible testimony

[00:06:43] Speaker 04:
That is a finding of fact.

[00:06:46] Speaker 00:
Here.

[00:06:46] Speaker 00:
Well, but coal is not a discretionary ground.

[00:06:50] Speaker 00:
I mean, if I remember coal, it's related to substantial evidence review.

[00:06:55] Speaker 00:
And it's a different review of the agency's determination.

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

[00:07:00] Speaker 00:
And here you have something where there's different evidence.

[00:07:03] Speaker 00:
And the agency, as a matter of discretion, can weigh it in different ways.

[00:07:07] Speaker 00:
And even if you're right that they weighed it at zero,

[00:07:10] Speaker 00:
it's just waiting.

[00:07:12] Speaker 00:
I'm still trying to understand why that would be a due process violation that we could review as opposed to a discretionary decision to weigh evidence differently, which we couldn't review.

[00:07:23] Speaker 04:
We would ask the court to find that it is a due process violation because this case was denied on discretion because of her criminal convictions.

[00:07:33] Speaker 04:
And rather than just leave it as that,

[00:07:36] Speaker 04:
The agency found that the immigration judge and the BAA both found that the petitioner's testimony in court was an aggravating factor to their convictions.

[00:07:49] Speaker 04:
We asked the agency to find it a mitigating factor.

[00:07:53] Speaker 04:
that testimony evidence, which was credible, that has a significant impact on the outcome of the case.

[00:08:02] Speaker 04:
It's exclusion of relevant facts which the BIA argued should not be considered or held should not be considered.

[00:08:10] Speaker 04:
If they intended to do that, they should have found her not credible.

[00:08:13] Speaker 00:
Well, assuming we agree with you under, that there was a violation under Fonseca Fonseca, we would remand it back and then the BIA can look at the motion remand again.

[00:08:23] Speaker 00:
And wouldn't there be an opportunity for the BIA to decide whether to apply discretionary review or not at that point?

[00:08:31] Speaker 04:
they could apply the new hardship standard, the correct standard for the hardship determination, or they could choose to deny based on discretion.

[00:08:39] Speaker 04:
And that's why we would ask the court to look at the factors which were excluded from discretion.

[00:08:44] Speaker 04:
This is not a case that we want to be ping-ponging back and forth.

[00:08:47] Speaker 04:
This is a case that legitimately can be remanded by the agency.

[00:08:53] Speaker 04:
First is the excluded testimonial evidence.

[00:08:56] Speaker 04:
Second is the

[00:08:57] Speaker 04:
the fact that the petitioner is a mother of a disabled child.

[00:09:01] Speaker 04:
And third, this was not included in the briefs, but noticing this in preparing for arguments today, the BIA did address specifically family ties, family connections for US citizen children.

[00:09:13] Speaker 04:
However, they left out more than half of the respondent, the petitioner's family members, her two legal permanent resident parents, and six siblings, and various nieces and nephews, which the immigration judge found were all

[00:09:27] Speaker 04:
Amongst that group, legal permanent residents and U.S.

[00:09:29] Speaker 04:
citizens, those are significant family ties.

[00:09:31] Speaker 04:
That's a third factor which weighs in favor of discretion.

[00:09:35] Speaker 04:
The most important factor being that her testimonial evidence, which is credible, is her subjective testimonial evidence, which is credible, is a mitigating factor.

[00:09:45] Speaker 04:
That is what that discretion decision really is about.

[00:09:48] Speaker 00:
So even if we could review this, what would you want this panel to do on the discretionary review?

[00:09:55] Speaker 04:
At this time, we don't believe that there is something for this panel to do.

[00:09:58] Speaker 04:
These are alternative arguments.

[00:10:00] Speaker 04:
We would ask this panel to remand because the agency made a decision using the wrong set of laws.

[00:10:08] Speaker 04:
And that is where the analysis ends.

[00:10:11] Speaker 04:
These are alternative arguments in case there's a different finding.

[00:10:17] Speaker 04:
Thank you.

[00:10:28] Speaker 01:
Good morning, Greg Pennington for the Attorney General.

[00:10:31] Speaker 01:
I want to start with discretion because it's the government's position that that's where the court's review should end.

[00:10:37] Speaker 01:
The agency held that Ms.

[00:10:38] Speaker 01:
Ariel LaPena does not merit a favorable exercise of discretion on her application for cancellation of removal.

[00:10:45] Speaker 01:
Nothing is going to change that and nothing that she submitted to the board in her motion to remand would have changed any of that.

[00:10:52] Speaker 02:
Do you agree that the BIA applied the wrong legal standard?

[00:10:59] Speaker 01:
I wouldn't agree that it applied the wrong legal standard.

[00:11:02] Speaker 01:
I would say that it inartfully wrote what it was applying.

[00:11:07] Speaker 01:
Oh, but it did it twice.

[00:11:09] Speaker 02:
It did.

[00:11:10] Speaker 02:
So, I mean, the BIA judge, in my view, clearly stated the legal standard incorrectly twice and then proceeded based on that.

[00:11:23] Speaker 02:
to deny the motion for remand.

[00:11:27] Speaker 02:
In our cases, we said that that's a problem, and our cases were known to the BIA.

[00:11:35] Speaker 02:
Why shouldn't we remand to give the BIA the opportunity to analyze this case using the standard that we have said is the correct standard

[00:11:49] Speaker 01:
I'm not sure.

[00:11:51] Speaker 01:
I'm not sure.

[00:11:51] Speaker 01:
I'm not sure.

[00:11:54] Speaker 01:
I'm not sure.

[00:11:55] Speaker 01:
I'm not sure.

[00:11:59] Speaker 01:
I'm not sure.

[00:12:00] Speaker 01:
I'm not sure.

[00:12:03] Speaker 01:
I'm not sure.

[00:12:04] Speaker 01:
I'm not sure.

[00:12:06] Speaker 01:
I'm not sure.

[00:12:07] Speaker 01:
I'm not sure.

[00:12:08] Speaker 01:
I'm not sure.

[00:12:10] Speaker 01:
And there the board held and applied the wrong standard according to this court that prima facie eligibility is different than reasonable likelihood to change the outcome.

[00:12:22] Speaker 01:
So here the board, while saying prima facie and change the outcome in the same sentence, it didn't say prima facie eligibility.

[00:12:29] Speaker 01:
It wasn't addressing eligibility factors.

[00:12:31] Speaker 01:
And in the previous paragraph, it was discussing why she didn't merit a favorable exercise of discretion.

[00:12:38] Speaker 00:
So can I push back Mr. Pennington?

[00:12:42] Speaker 00:
When the board was discussing why it agreed with the IJ about discretionary denial, it was speaking about her previous convictions.

[00:12:52] Speaker 00:
But when in the paragraph that it was talking about the motion of remand,

[00:12:57] Speaker 00:
it was talking about prima facie eligibility factors, ones related to would the children go to Mexico, what effect autism would have.

[00:13:06] Speaker 00:
So it seems as if the paragraph was indeed talking about prima facie eligibility factors, but then applying the wrong standard with the, you know, likely to change the outcome.

[00:13:17] Speaker 00:
I mean, it just seems to me that this case is on all fours with Fonseca Fonseca and we have to remand.

[00:13:21] Speaker 01:
Well, I would set the stage for you as the motion to remand itself.

[00:13:25] Speaker 01:
It was a two-page motion to remand that didn't even mention discretion until the last paragraph of the motion to remand.

[00:13:33] Speaker 01:
And so the board's an appellate body, just like this court.

[00:13:36] Speaker 01:
It responds to arguments that the appellants make.

[00:13:39] Speaker 01:
And so here, she was arguing that this new evidence changed the discretionary, not the discretionary, the hardship outcome.

[00:13:47] Speaker 01:
And so the board says,

[00:13:49] Speaker 01:
we disagree, it just shut down that argument saying we don't agree that this is going to change the outcome of the proceeding because one, it didn't, I know the board didn't talk about the discretion in its denial of the motion to remand, but I think that's implicit from its decision because it's in the same decision.

[00:14:08] Speaker 01:
The board's talking about why she doesn't merit a favorable exercise of discretion.

[00:14:12] Speaker 03:
I was just going to ask how we can know for sure that

[00:14:15] Speaker 03:
that the discretionary decision wasn't infected by this error in the application of the standard.

[00:14:20] Speaker 03:
I mean, I just don't, yeah, I don't see how we can definitely know that, although I understand your argument that maybe it's unlikely.

[00:14:28] Speaker 01:
Yeah, I don't think there's any way I can convince you that it was absolutely 100%.

[00:14:32] Speaker 01:
But the court applies traditional administrative principles, and harmless error is one of them.

[00:14:37] Speaker 01:
And here, I would say that its lack of inclusion of that is tied directly to the motion to remand itself, not making any such argument.

[00:14:46] Speaker 01:
And if I could bring the court back to that discretionary judgment, most of it was tied to

[00:14:52] Speaker 01:
her felony convictions, right?

[00:14:54] Speaker 01:
She was involved in this, you know, 42 count indictment regarding drug trafficking and money laundering and in her testimony as to why she thinks that she didn't do anything wrong.

[00:15:06] Speaker 01:
And the IJ and the board, that was the whole negative aspect of the discretionary analysis.

[00:15:13] Speaker 02:
Although you know counsel I I Least from what I've seen think it unlikely or maybe even very unlikely that if we remand that the petitioner is going to prevail But when I'm looking at what the Bia did

[00:15:30] Speaker 02:
The BIA first generally talks about what her argument is, states the standard, goes through what it believes is the relevant evidence, and then ends its discussion by in a decisional way evaluating the evidence under the wrong standard.

[00:15:51] Speaker 02:
I mean, its last sentence is without any additional evidence, the respondent has not made a prima facie showing that the new evidence

[00:15:58] Speaker 02:
would likely affect the outcome of the case such that remand is warranted.

[00:16:02] Speaker 02:
So I mean, I just can't read this without saying to myself, this is what they applied, and our job is not to reweigh it ourselves.

[00:16:17] Speaker 01:
But at the same time, the court can uphold a decision that it doesn't have to reflexively remand any time the board states the wrong legal standards.

[00:16:25] Speaker 00:
Well, actually, I mean, I was going to ask you, what authority would support that?

[00:16:29] Speaker 00:
Because it seems to me that this panel is bound by Fonseca Fonseca.

[00:16:35] Speaker 00:
And part of that decision is that when the board has applied the wrong legal standard, we vacate and remand for the board to apply the correct legal standard.

[00:16:45] Speaker 00:
I'm not aware of any case that would allow us to overlook legal error and apply a harmless error review.

[00:16:51] Speaker 00:
So what's your best case for the proposition that we would be free to be able to do that?

[00:16:57] Speaker 01:
I would say Hernandez and Park, both of which we cited, and both dealt with the futility of remand in particular.

[00:17:05] Speaker 01:
And again, nothing in the opening brief, there was no reply brief submitted to reply to my harmless error futility arguments.

[00:17:15] Speaker 01:
And even in the opening brief, this is at page 19, they say, even if we get past

[00:17:22] Speaker 01:
if the board committed the wrong legal standard, even if the court disagrees with that.

[00:17:26] Speaker 01:
The only argument she makes goes to hardship.

[00:17:29] Speaker 01:
There's nothing she can do to touch the discretionary judgment that she does not merit a favorable exercise of discretion.

[00:17:36] Speaker 00:
Let me ask this because the IJ did touch upon the fact that

[00:17:39] Speaker 00:
if her child was diagnosed with autism, that would be a different, you know, at the IJ hearing, the diagnosis had not occurred yet.

[00:17:48] Speaker 00:
But I remember reading that the IJ thought, well, if there was a diagnosis, that would be a more serious medical condition.

[00:17:56] Speaker 00:
But because there's no evidence of that now, you know, the IJ went with what it did.

[00:18:02] Speaker 00:
Who's to say that the agency doesn't consider the autism condition in conjunction with other evidence and decide not to exercise its discretionary denial?

[00:18:13] Speaker 00:
My point, and I'm not sure that's likely, but I just don't know that we can second guess what the BIA would do once we remand, you know, without it explaining it for itself.

[00:18:24] Speaker 01:
Well, the IJ's discussion of the lack of a diagnosis went towards whether she met her burden for hardship.

[00:18:30] Speaker 01:
And so the alternative was that even if she met these standards, and as the Supreme Court and Patel and Wilkinson said, even if all the statutory eligibility requirements are met, the agency can just skip right over all those and just say that the applicant does not merit a favorable exercise of discretion.

[00:18:49] Speaker 01:
It did that in this case.

[00:18:52] Speaker 01:
You know, even with the motion to remand, there's still that discretionary judgment lurking, which she can't meaningfully challenge.

[00:19:01] Speaker 01:
The only thing she argues is that her credible testimony should be deemed as true.

[00:19:07] Speaker 01:
That's something the Supreme Court explicitly disregarded or held was not a correct standard in Ming Dai.

[00:19:14] Speaker 01:
You know, the agency can weigh testimony the way it wants and determine whether an applicant meets their burden.

[00:19:20] Speaker 01:
And all along, it's been her burden of proof.

[00:19:22] Speaker 01:
through the i.j.

[00:19:24] Speaker 01:
in the motion to remand it's always been her burden of proof to demonstrate that she merits a favorable exercise of the attorney general's discretion congress allows only four thousand of these grants per year and most of those are backlogged here they found that she does not she did not meet her burden to show that she merits a favorable exercise of discretion with that discretionary judgment firmly in this case the court lacks jurisdiction over

[00:19:51] Speaker 01:
any judgment, including a judgment to remand, because that was implicit in the board's holding.

[00:19:57] Speaker 01:
That's our argument that the board might have inartfully stated the standard, but it applied what likely to change the outcome in this case, and we would ask the court to dismiss the petition for review.

[00:20:08] Speaker 02:
All right.

[00:20:08] Speaker 02:
We thank the parties for their arguments, and the case just argued is submitted.

[00:20:13] Speaker 02:
With that, we'll move to the second case on the argument calendar.