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

[00:00:01] Speaker 00:
This is Devon Terry-O'Rourke.

[00:00:02] Speaker 00:
I represent the petitioner Samuel Avila-Morales in this petition for review.

[00:00:07] Speaker 00:
I'd like to reserve five minutes for rebuttal time.

[00:00:09] Speaker 04:
Okay, please keep track of your own time.

[00:00:11] Speaker 00:
I will do.

[00:00:11] Speaker 04:
Thank you.

[00:00:12] Speaker 00:
The government here contends that Mr. Avila was not diligent in pursuing his remedies despite the fact that there was no remedy available for Mr. Avila.

[00:00:20] Speaker 05:
Is that right, that there was no remedy?

[00:00:22] Speaker 00:
I believe that is right.

[00:00:23] Speaker 05:
How about ineffective assistance of counsel?

[00:00:25] Speaker 00:
I do not believe that he could have pursued those remedies because the California Supreme Court held that state habeas is not available to challenge an ineffective plea negotiation once someone is released from state custody, which for Mr. Avila happened before he even knew that there were immigration consequences in his underlying... Could you keep your voice up?

[00:00:46] Speaker 00:
Yes.

[00:00:48] Speaker 00:
So the California Supreme Court has held that state habeas is not available to challenge a failed plea negotiation, essentially, unless the person is in custody in state custody.

[00:01:04] Speaker 00:
And so once he was released from state custody, there would have been no way for him to seek to challenge his state plea until the California legislature enacted 1473.7.

[00:01:17] Speaker 04:
And that was in 2017, correct?

[00:01:19] Speaker 00:
Correct, although I did discover that it was actually September 2016, to be precise, that the California legislature enacted that provision, so it became effective in late 2016, early 2017.

[00:01:31] Speaker 04:
Okay, so what arguments were made to the BIA that there was diligence in waiting for the period of time from the enactment of the statute to

[00:01:42] Speaker 04:
the filing.

[00:01:44] Speaker 00:
Sure.

[00:01:44] Speaker 00:
And this is addressed in the petitioner's declaration.

[00:01:47] Speaker 00:
He first learned, I think one of the key errors in the BIA's decision is that it conflates the deportation itself

[00:01:58] Speaker 00:
Being the error in his conviction and that wasn't the error He didn't know that there was any other alternatives that he could have pled to that could have protected him So, you know basically between until he discovered in August 2018 when he Was represented by mr. Steve Roberts out in the Eastern District of Washington.

[00:02:18] Speaker 04:
Why couldn't he have discovered the the

[00:02:21] Speaker 04:
the statutory enactment.

[00:02:23] Speaker 04:
I mean, don't our cases say that, you know, ignorance of the law or sort of misunderstanding or sophistication is not a basis for tolling?

[00:02:32] Speaker 00:
Sure, except that, again, the equitable tolling line of cases established that he had to learn of the error before he had a duty to act, and he did not learn of the error until his counsel in Eastern Washington advised him, hey, you know,

[00:02:49] Speaker 00:
I think there might be something that went wrong here and that there was another route that you could have pursued.

[00:02:55] Speaker 00:
And at that point, he was still detained.

[00:02:56] Speaker 00:
And it took him, it's addressed in his declaration, but it took him several months to get out of detention and then reach out to California Council.

[00:03:04] Speaker 00:
And then from there, things moved very quickly.

[00:03:06] Speaker 00:
So he was advised to reach out to California Council.

[00:03:10] Speaker 00:
He did so in April 2019.

[00:03:13] Speaker 00:
California Council then had to get the records from the Superior Court.

[00:03:17] Speaker 00:
got those records and filed the motion in June, and then it was granted in August, and he promptly filed for his motion to reopen within 90 days of that date.

[00:03:27] Speaker 00:
And, you know, the BIA rules that we cited in our supplemental 28J a few months ago, you know, established that there was nothing he could have filed with the BIA until his post-conviction was granted.

[00:03:38] Speaker 00:
So that much is clear.

[00:03:40] Speaker 00:
If he had filed it earlier, it would have been denied as premature, or there's a very good risk it could have been.

[00:03:46] Speaker 00:
based on the rule that says pendency of or expectancy of even a strong post-conviction motion.

[00:03:52] Speaker 00:
You could have a declaration from 10 lawyers saying you're going to get granted relief.

[00:03:56] Speaker 00:
Doesn't matter until the state court actually grants relief.

[00:03:59] Speaker 05:
Yeah, but that appears to be exactly what the BIA relied on on its sort of secondary holding.

[00:04:06] Speaker 05:
It said it wanted the time to run from the time he applied rather than the time he heard back.

[00:04:10] Speaker 05:
Am I reading the BIA correctly?

[00:04:13] Speaker 05:
There's to say the BIA disagreed with you.

[00:04:16] Speaker 00:
Sorry, can you rephrase the question?

[00:04:18] Speaker 05:
Yeah, the BIA turns it down saying it's untimely.

[00:04:22] Speaker 05:
First off, BIA says, well, you should have done it long, long ago, like 20 years ago.

[00:04:26] Speaker 05:
But then it says, alternatively, if we look at the current sort of things, the time began to run as soon as your lawyer filed for setting it to one side, which is exactly the opposite of what you're saying.

[00:04:40] Speaker 00:
Right.

[00:04:40] Speaker 00:
Thank you, Judge.

[00:04:41] Speaker 00:
I understand the question now.

[00:04:42] Speaker 00:
I think the issue there is that if that is the rule, then the availability of a motion to reopen is going to hinge solely on state court processing times for post-conviction relief.

[00:04:53] Speaker 00:
So in this particular case, yes, he could have potentially filed his motion to reopen after his state court motion was filed and probably

[00:05:01] Speaker 00:
It would have been decided before his motion to reopen was actually adjudicated.

[00:05:07] Speaker 00:
So yes, in this particular case, that could have worked.

[00:05:09] Speaker 05:
The problem with that kind of problem- My question is not saying or suggesting that you're wrong.

[00:05:15] Speaker 05:
Rather, it's suggesting that the BIA is wrong.

[00:05:17] Speaker 00:
Thank you, Judge.

[00:05:19] Speaker 00:
I appreciate that.

[00:05:20] Speaker 00:
So, you know, I think that essentially my argument here today is that diligence under this court's precedence should not require litigants to pursue futility.

[00:05:32] Speaker 00:
And, you know, up until California enacted 1473.7,

[00:05:36] Speaker 00:
any efforts to pursue his post-conviction relief would have been futile.

[00:05:41] Speaker 00:
There was no option to seek state habeas.

[00:05:46] Speaker 00:
As we explained in our motion for judicial notice, which I'll get to in a minute, there was no failure to provide the required 1016.5 advisals.

[00:05:56] Speaker 00:
That would have been another possible route, and I wanted to make it very clear that that route was not available to Mr. Avila in this case.

[00:06:06] Speaker 00:
And I also wanted to point to a case out of California, and I'm happy to file a 28J on it as it is not referenced in the briefs, People versus Vivar, which is 11 California, 5th, 510.

[00:06:19] Speaker 00:
And at 522 to 523, the court talks about the efforts that that individual went to to try to overturn his offense.

[00:06:28] Speaker 00:
It was before 1473 was enacted, and he tried quorum nobis.

[00:06:33] Speaker 00:
He tried 1203.4 vacatur.

[00:06:35] Speaker 00:
And these things just didn't work.

[00:06:37] Speaker 00:
And it should not be required that people have perfect diligence.

[00:06:41] Speaker 00:
People are not required to hire a cadre of lawyers to bang their heads against the wall in futility.

[00:06:48] Speaker 00:
And keep in mind that this whole thing arose in 1998, 12 years before the Supreme Court founded Padilla.

[00:06:57] Speaker 00:
That that the Sixth Amendment protects an individual's right to know about

[00:07:05] Speaker 00:
I mean that's the formula, that's why they have 1016.5, but it was the California Supreme Court reached that decision much earlier.

[00:07:15] Speaker 03:
I was still on the state court when the California Supreme Court came down with that decision.

[00:07:21] Speaker 03:
We always had to remind the defendants whether or not they had considered the immigration consequences of their

[00:07:28] Speaker 00:
And I think that the 1016 advisals are great, but as you may have experienced, many times when people are reviewing court forms in a crowded court with supposedly an interpreter, it's unclear whether that was actually explained in any meaningful way.

[00:07:45] Speaker 00:
And there's a difference between saying, as the Supreme Court discussed in Padilla, that there's a difference between saying there may be deportation consequences, and this offense is going to get you deported, like it's definite and certain.

[00:07:58] Speaker 00:
And that was the situation for Mr. Avila.

[00:08:00] Speaker 00:
And he would not have chosen that plea had he known of those consequences.

[00:08:05] Speaker 00:
That's the whole point.

[00:08:07] Speaker 03:
So the extraordinary circumstance for equitable tolling is just there was no

[00:08:14] Speaker 03:
no reasonable avenue, there was no avenue available for relief until 1473.7 was adopted by the California legislature?

[00:08:25] Speaker 00:
Yes, and also that as established by the cases, he didn't even learn that there was any other option available to him until August 2018.

[00:08:37] Speaker 00:
People are entitled to rely on the advice of their counsel, and if he had a lawyer, he assumed that that lawyer had done the best he could for him.

[00:08:45] Speaker 00:
And so he was like, I guess I'm just stuck with this offense.

[00:08:48] Speaker 00:
And wasn't until August 2018, he was like, oh, wow, I could still be a permanent resident?

[00:08:54] Speaker 03:
So what's the relief you're asking from us?

[00:08:56] Speaker 00:
Well, we're asking that you grant the petition for review.

[00:08:59] Speaker 00:
What does that get you?

[00:09:00] Speaker 00:
Well, it gets him restored to LPR status.

[00:09:02] Speaker 00:
I mean, I think he is still would still be a lawful permanent resident, but for that to go back to the BIA, though, for them to.

[00:09:09] Speaker 00:
I mean, I don't think there's anything left for the BIA to do.

[00:09:12] Speaker 00:
And, you know, I could provide some supplemental authority on that.

[00:09:15] Speaker 00:
One that comes to mind is a case of mine from a while ago, Medina Lara versus Holder, which holds that, you know, there's no need to do a remand if it's just, you know, there's nothing left to do.

[00:09:25] Speaker 04:
You're asking us to decide in the first instance that there is equitable tolling, that there was diligence sufficient to satisfy the tolling.

[00:09:33] Speaker 00:
Yes.

[00:09:33] Speaker 00:
The BIA had a chance to do that, and they didn't.

[00:09:35] Speaker 00:
And we don't think there's anything left for the BIA to do at this point.

[00:09:39] Speaker 05:
Well, no.

[00:09:43] Speaker 05:
Once the BIA is told equitable tolling is available, then the question is what relief?

[00:09:49] Speaker 05:
And the BIA never got to the question of granting or not granting the requested relief.

[00:09:54] Speaker 05:
So our question really is, or at least my question is, can we tell the BIA it must grant the relief, or do we have to go back to have you guys go to the BIA and request the relief of setting it aside?

[00:10:04] Speaker 05:
I understand it would be much more efficient from your standpoint if we could do it right here.

[00:10:08] Speaker 00:
Sure.

[00:10:09] Speaker 00:
No, I mean, I think you can.

[00:10:10] Speaker 00:
This is a case where you can remand with instructions to grant because the law is crystal clear.

[00:10:15] Speaker 00:
And there's no debate, and the respondent here has conceded, that the conviction underlying this offense is no longer a removable offense, and that this was a substantive grant of vacatur under matter of pickering.

[00:10:28] Speaker 04:
So there's... So tell us why we wouldn't do the opposite under Lona v. Barr, which basically says, you know,

[00:10:38] Speaker 04:
I think Lona V. Barr is the inverse of your argument here, which is that we can find that the BIA implicitly determined that there wasn't diligence sufficient to satisfy tolling the facts, and you're saying to us that there are facts sufficient, even if the BIA didn't consider it, given, and your friend on the other side is gonna argue Lona, to us, so why wouldn't we send this back to the BIA to consider in the first instance, since this analysis wasn't done using the correct timeframe?

[00:11:06] Speaker 00:
I mean, again, I think because the law of the circuit is clear that people don't have to have maximum diligence, and the BIA got the law wrong, and there's no reason for them to have another bite at the apple.

[00:11:18] Speaker 05:
Well, it got the law wrong as to equitable tolling.

[00:11:23] Speaker 05:
Next question is, assuming this is timely, this is if you win on the equitable tolling,

[00:11:29] Speaker 05:
The next question is, is the BIA going to set the earlier deportation order aside?

[00:11:35] Speaker 05:
And they've not said yes or no.

[00:11:37] Speaker 05:
Your argument is, I guess it's just a ministerial thing.

[00:11:40] Speaker 05:
Everybody knows that's the answer.

[00:11:41] Speaker 05:
Why make us go through it?

[00:11:43] Speaker 00:
That's exactly right.

[00:11:44] Speaker 00:
I mean, I don't think there's anything – there's nothing for the BIA to do.

[00:11:47] Speaker 05:
Everyone's conceded that – Oh, there is something for them to do.

[00:11:49] Speaker 05:
You think it's obvious that they have to do it?

[00:11:50] Speaker 00:
Yes.

[00:11:51] Speaker 00:
That is a better way to say it, Your Honor.

[00:11:53] Speaker 00:
Yes.

[00:11:53] Speaker 00:
I'll reserve the balance of my time.

[00:12:12] Speaker 02:
Thank you, Your Honors.

[00:12:13] Speaker 02:
May it please the Court, Alexander Lutz for the government.

[00:12:15] Speaker 02:
So many points to make in response.

[00:12:17] Speaker 02:
Keep your voice up, please.

[00:12:19] Speaker 02:
Absolutely, and thank you for asking.

[00:12:21] Speaker 02:
So many points to make in response, Your Honors.

[00:12:24] Speaker 02:
First is the point, Your Honor, Judge Fletcher just made.

[00:12:27] Speaker 02:
There absolutely is something for the Board to do here, even if the Court disagrees with the government's position on equitable tolling.

[00:12:34] Speaker 02:
First of all, the equitable tolling issue is a threshold timeliness issue.

[00:12:39] Speaker 02:
So even if the board had agreed that the motion was timely, which is the only ground they reached, they would still have to deal with the question of what to do with the merits of Mr. Avila's argument.

[00:12:48] Speaker 02:
They haven't reached that issue yet.

[00:12:49] Speaker 05:
But isn't the answer to that question obvious?

[00:12:52] Speaker 02:
Respectfully no, Your Honor.

[00:12:53] Speaker 05:
First of all... Except the conviction to one side, what's the basis for the removal order?

[00:12:58] Speaker 02:
Well, Your Honor, a couple of points in response.

[00:13:01] Speaker 02:
First of all, I want to start by pointing out that I believe I heard opposing counsel suggest that the government has conceded that Mr. Avila is no longer removable.

[00:13:10] Speaker 02:
What we said, in fact, is that this order is not enforceable because it has already been enforced.

[00:13:14] Speaker 02:
That's a different question.

[00:13:15] Speaker 02:
So I want to just clarify the scope of our statement in the brief.

[00:13:18] Speaker 02:
Oh, he's been removed?

[00:13:19] Speaker 02:
He has been removed, and then he reentered in the same year he was removed.

[00:13:22] Speaker 02:
And as we noted in our brief, that means the order can't be enforced again without being reinstated.

[00:13:28] Speaker 02:
And if it is reinstated, Mr. Avila would have a whole other ground to petition for this court's review.

[00:13:33] Speaker 02:
He could challenge in that case whether his underlying removal order was a gross miscarriage of justice, which is an argument he mentions in his opening brief, concedes he wants to make but can't make.

[00:13:43] Speaker 02:
So at the end of the day, he's challenging an order that can't be enforced again because it has been enforced.

[00:13:48] Speaker 02:
That's not the same thing as-

[00:13:51] Speaker 03:
So when they started this particular proceeding, they did not invoke, they did not attempt to reinstate.

[00:13:58] Speaker 01:
Is that right?

[00:13:59] Speaker 01:
That's correct, Your Honor.

[00:14:00] Speaker 02:
But it was actually Mr. Avila who started this proceeding.

[00:14:03] Speaker 02:
The timeline of this case is that Mr. Avila sustained a conviction in 1998.

[00:14:06] Speaker 02:
Then in 1999, he was charged with removability based on that conviction, ordered removed, and physically removed to Mexico, only to unlawfully reenter the United States.

[00:14:16] Speaker 02:
And the critical point in this case now that, you know, to the issue of diligence is that Mr. Avila in the motion to reopen, he filed that started this proceeding.

[00:14:25] Speaker 02:
didn't say anything to the agency about what he had been doing between 1998 when he sustained this conviction, 1999 when he was removed, and 2018.

[00:14:35] Speaker 04:
Why is that the proper time frame?

[00:14:37] Speaker 04:
I know the government is arguing this sort of longer period of time for tolling purposes and the one that I think the BIA and the IJ improperly used, but why is that the time frame?

[00:14:46] Speaker 04:
He obviously can't know about the change in law until it occurs in 2017.

[00:14:53] Speaker 04:
So isn't the appropriate time frame that he needs to be arguing for tolling 2017 to the time that he filed?

[00:15:01] Speaker 02:
Respectfully no, Your Honor.

[00:15:03] Speaker 02:
But again, I'd make a couple of points in response.

[00:15:05] Speaker 02:
And the first one I'd like to just lay out and then come back to it is that regardless of what time frame we use, regardless of when we start the clock,

[00:15:14] Speaker 02:
There is no diligence here because the petitioner did not put forward any evidence of what he had done up until 2018.

[00:15:22] Speaker 02:
So even if we accept his position that the clock for diligence didn't start until 2017, the agency didn't have any evidence in a motion to reopen on which he bore the burden of proof about what he was doing after 2017.

[00:15:34] Speaker 02:
Or even if we started the clock with Padilla versus Kentucky, for example, which was in 2010, we still don't have any information.

[00:15:40] Speaker 02:
There was no information before the agency.

[00:15:42] Speaker 02:
about what he did between 2010 and 2018.

[00:15:45] Speaker 02:
Regardless of the theory, there was just no information before the agency, and that settles the only issue in this case.

[00:15:51] Speaker 03:
What if we say that that's incorrect?

[00:15:54] Speaker 02:
Well, I think that would require reading evidence into the record that isn't there, Your Honor.

[00:15:58] Speaker 03:
I mean, the declaration, it pages...

[00:16:02] Speaker 01:
uh... seventy three point seven was adopted that's right your honor but my the matter of law was there anything that he could have done from the time of his conviction until then he could have tried your honor and i think that's a really critical point here why doesn't his declaration at one twenty seven provide the kind of evidence that you're saying is entirely void from the record

[00:16:24] Speaker 02:
because that declaration does not address actions he was taking to investigate his rights between 1998 or 1999 and 2018.

[00:16:34] Speaker 02:
In paragraph three of his declaration at page 127,

[00:16:38] Speaker 02:
He says, when I was in court in 1998 for my criminal conviction, I didn't understand the immigration consequences of a conviction for the charge conduct.

[00:16:45] Speaker 02:
No one explained this to me.

[00:16:46] Speaker 02:
Had I known I could stand to lose my green card, I would have explored any other options in my case.

[00:16:51] Speaker 02:
That's his claim as he has defined it.

[00:16:52] Speaker 02:
And by the way, at page 28 of the record, he concedes he certainly knew that that conviction would have immigration consequences when he was physically removed to Mexico based on it in 1999.

[00:17:03] Speaker 05:
I want to make sure I understand your position.

[00:17:07] Speaker 05:
Assume for the purpose of this question that he really had no relief available to him until California passes the statute in 2017.

[00:17:16] Speaker 05:
You're saying that he nonetheless can be faulted for not investigating in the years before 2017 even though, I promise the question, he would have found nothing.

[00:17:31] Speaker 05:
Accepting the premise of your question for purposes of argument your honor you have correctly stated our position and how can that possibly be there was nothing to find and You're saying what we're gonna hold it against you and we're gonna start the timeline running earlier Because you didn't look even though there was nothing to be found if you had looked I don't understand how that's a reasonable position

[00:17:51] Speaker 02:
I'm not saying that, Your Honor, the court's precedent says that.

[00:17:53] Speaker 02:
Avagian, Goulart, Lona, these cases identify that the standard for diligence is simple and not very high.

[00:18:01] Speaker 02:
I'm quoting from Avagian now.

[00:18:03] Speaker 02:
All it requires is that a reasonable person, it requires that the petitioner took reasonable steps to investigate the suspected fraud or error.

[00:18:13] Speaker 02:
All that matters is that he was doing something to pursue his rights.

[00:18:16] Speaker 02:
If he'd gotten a lawyer and the lawyer had said, there's nothing you can do, you have to wait around until a new statute gets passed, maybe that would have been diligence.

[00:18:23] Speaker 02:
If he'd gotten a lawyer and the lawyer had given him wrong advice, but he'd relied on it and waited,

[00:18:28] Speaker 02:
That would have been diligence.

[00:18:29] Speaker 02:
Diligence just requires what a reasonable person would do to investigate a problem.

[00:18:35] Speaker 05:
And why, in his circumstance, isn't it a reasonable position?

[00:18:38] Speaker 05:
He had had a lawyer before.

[00:18:42] Speaker 05:
He thought there was nothing to be done.

[00:18:44] Speaker 05:
He doesn't have much money.

[00:18:45] Speaker 05:
And you're saying you're supposed to go hire a lawyer to find out that there's nothing that he can do.

[00:18:50] Speaker 05:
And because you didn't hire a lawyer to find out that there was nothing you can do, you are now foreclosed from relief.

[00:18:55] Speaker 05:
Somehow that doesn't seem right.

[00:18:56] Speaker 05:
That's what the court's precedent says, Your Honor.

[00:18:58] Speaker 05:
I'm not sure I read the precedent the same way you do.

[00:19:00] Speaker 02:
Well, we'll have to disagree about that, Your Honor, and I respect your view about it.

[00:19:04] Speaker 02:
But I'm drawing from language in Evagion, Goulart, Lara Garcia, Perez, Camacho, Lona, and other cases.

[00:19:10] Speaker 02:
Diligence is a simple standard because we're looking often at what lay people do or people who have had an effective counsel.

[00:19:17] Speaker 02:
The question isn't, you know, I want to take a step back here.

[00:19:20] Speaker 04:
I think that the- Can you move to the question that I presented before you sort of went back to the earlier time frame?

[00:19:26] Speaker 02:
Of course.

[00:19:26] Speaker 04:
Let's just assume for purposes of this discussion now that

[00:19:29] Speaker 04:
We disagree with the notion that there was something to have been done before 2017.

[00:19:34] Speaker 04:
So what we're left with is agency using the wrong time frame.

[00:19:40] Speaker 04:
Let's assume that we decide that that's not the right time frame that they should have been looking at for determining diligence.

[00:19:47] Speaker 04:
What do we do with that now?

[00:19:49] Speaker 04:
Is remand appropriate?

[00:19:51] Speaker 04:
Can we just decide based on the record before us that there was diligence, that there wasn't diligence?

[00:19:56] Speaker 04:
What do we do?

[00:19:58] Speaker 02:
Well, your honor, I think there's plenty in the board's decision to support a denial of the petition for review, even if this court disagrees with the exact timeline, because what the board said, having looked at all the facts that the petitioner put in with his motion to reopen, was you didn't show diligence during this time period.

[00:20:14] Speaker 02:
Now, if the court thinks the starting point was somewhere within that time period that the board mentioned,

[00:20:19] Speaker 02:
This same holding still applies.

[00:20:21] Speaker 02:
Start the clock in 2010 with Padilla, still no information about what he did after that.

[00:20:25] Speaker 02:
Start the clock in 2017 with this California statute, no evidence about what he did after that.

[00:20:31] Speaker 02:
He had the burden before the agency to put this evidence in because diligence isn't part of factual question.

[00:20:37] Speaker 02:
What did he do during this period of time?

[00:20:40] Speaker 02:
And then we get into the question of how to apply precedent to it.

[00:20:42] Speaker 02:
his declaration and the declaration of his post-conviction attorney, which are just about the only relevant facts that he put in.

[00:20:50] Speaker 02:
I mean, I quoted the table of contents a couple of times.

[00:20:53] Speaker 02:
These are the documents discussing what he did and they all start the chronology in 2018.

[00:20:57] Speaker 02:
So the board's decision

[00:20:59] Speaker 02:
contains the necessary reasoning as your honor pointed out citing Lona even if the court thinks a different more truncated timeline would have been appropriate but even if the court disagrees with me about that and thinks that there is diligence here the proper answer is an open remand saying that the court needs to go back I'm sorry saying that the board needs to go back and apply look at diligence within whatever the proper time frame is because if your honor thinks that the board erred by

[00:21:27] Speaker 02:
assessing over an incorrect time period, then that's the error and that's what the board needs to look at, first of all.

[00:21:33] Speaker 02:
And then even if they do look at that more narrow... That's a period of about 18 months.

[00:21:39] Speaker 02:
Depending on when, Your Honor, starts the clock, I guess you're talking about in 2017, right?

[00:21:43] Speaker 03:
After the adoption of 1473.7.

[00:21:47] Speaker 02:
We still dispute that that's the proper time period, Your Honor, but even if that is the proper time period, where is the evidence in the record about what Mr. Avila-Morales was doing

[00:21:55] Speaker 02:
not to bring a valid claim necessarily, but just to investigate what had happened.

[00:22:00] Speaker 05:
Let's assume from the silence of the record that he did nothing.

[00:22:03] Speaker 05:
Okay.

[00:22:08] Speaker 02:
Well, I think that is the appropriate assumption and even if we don't know for sure that he did nothing,

[00:22:15] Speaker 02:
It was his evidentiary burden to show the agency what he had done.

[00:22:18] Speaker 02:
So even if he did, you know, in the unknowable absolute truth of his life, do something.

[00:22:23] Speaker 05:
Let's assume he did nothing because he was entirely unaware of it.

[00:22:26] Speaker 05:
He becomes aware of it, we know, when he's briefly incarcerated.

[00:22:31] Speaker 05:
Let's assume that that's the factual record.

[00:22:34] Speaker 02:
That he becomes aware of it when he's incarcerated.

[00:22:37] Speaker 02:
Well, again, I think... Isn't that a fair assumption of what's going on?

[00:22:43] Speaker 02:
The only thing I'm quibbling with here, Your Honor, is what we mean by he becomes aware of it.

[00:22:47] Speaker 02:
You know, under the court's precedent about equitable tolling, there's two points in time that matter.

[00:22:53] Speaker 02:
One when the diligence clock starts and one when it ends.

[00:22:55] Speaker 02:
And the clock starts when a reasonable person would... I'm not talking about a reasonable person for the moment.

[00:23:01] Speaker 02:
Okay.

[00:23:02] Speaker 05:
I'm talking about when this person becomes aware.

[00:23:05] Speaker 05:
Okay.

[00:23:06] Speaker 05:
And I think the record tells us he becomes aware of the California statute when he's incarcerated in 2018.

[00:23:13] Speaker 02:
Well, I don't think that his declaration says that, Your Honor.

[00:23:16] Speaker 02:
I don't think his declaration says, I became aware of this statute.

[00:23:20] Speaker 02:
Oh, you mean in 2018?

[00:23:21] Speaker 02:
Correct.

[00:23:22] Speaker 02:
That's what I said.

[00:23:22] Speaker 02:
Well, that would be the time point at which diligence

[00:23:25] Speaker 02:
is ends when equitable tolling ends your honor the second time point in the diligence inquiry is when the person obtains vital information bearing on the existence of the claim and there are cases from this court we cited them in the brief where that deadline was met when when that time point occurred when a petitioner met with a new lawyer and understood that he had a claim so if that's when the time period if

[00:23:51] Speaker 02:
If that's the time period we're looking at here, when he meets with his new lawyer and learns he has a legal claim for relief, that's when equitable tolling stops, not when it starts.

[00:24:01] Speaker 05:
Well, how can it stop then?

[00:24:02] Speaker 05:
Because at that point he knows he has the possibility, but of course he has no basis for setting it aside, the deportation order setting aside until the conviction is set aside.

[00:24:13] Speaker 02:
Your Honor,

[00:24:15] Speaker 02:
That question and that point by opposing counsel are focused on the home stretch of a race that Mr. Avila wasn't even running.

[00:24:21] Speaker 02:
He wasn't doing any, he didn't put any evidence in front of the agency.

[00:24:24] Speaker 05:
I don't think that's an answer to my question.

[00:24:27] Speaker 02:
I think it is, Your Honor.

[00:24:29] Speaker 02:
What I'm saying is that his problem isn't this last period of time when he needed to get the order from the trial court.

[00:24:36] Speaker 02:
And by the way, even if we just focus on that, the immigration judge noted at page 87 that even if you assumed in Mr. Abilas' favor that he was diligent all the way up until his motion to reopen was filed, looking at the clock that way, looking at the chronology that way, would give him a whole month

[00:24:53] Speaker 02:
after he got the trial court's order for him to have filed his motion to reopen, and he didn't file within that window.

[00:24:59] Speaker 02:
Now the petitioner in his briefing says that that is requiring maximum feasible diligence because it's a period of only about a month.

[00:25:06] Speaker 02:
Again, that's the wrong way to look at the case.

[00:25:08] Speaker 02:
because that's the wrong way to look at the diligence inquiry.

[00:25:11] Speaker 02:
Mr. Avila's position essentially is that the way diligence works is if a lawyer years later, looking backwards with the benefit of hindsight and intervening precedent, can make a good argument that one form of relief wasn't available or another form of relief might not have worked, that's just not what the court's diligence cases hold.

[00:25:29] Speaker 02:
They hold that a petitioner has to investigate

[00:25:33] Speaker 02:
What happened?

[00:25:34] Speaker 02:
And this petitioner's declaration to the agency was, I didn't think when I pled guilty in 1998 that this conviction would disturb my immigration consequences.

[00:25:42] Speaker 02:
And then he concedes he did know it had immigration consequences when he was deported on that conviction in 1999.

[00:25:48] Speaker 02:
A reasonable person would have at least asked what happened.

[00:25:51] Speaker 02:
A reasonable person would have tried something.

[00:25:54] Speaker 02:
And we just don't have any evidence in this skeletal motion to reopen from which the agency could conclude that he had met that burden.

[00:26:01] Speaker 02:
All of the petitioner's arguments, to the contrary, are retroactive legal arguments about why different things he might have tried wouldn't work.

[00:26:08] Speaker 02:
The diligence precedent of this court is just that he had to investigate it and try something.

[00:26:13] Speaker 02:
If we had facts in the record showing that, this would be a completely different case.

[00:26:21] Speaker 03:
So if we were to disagree with you and grant the petition, what you would say is what we need to do is send it back so that the agency can

[00:26:29] Speaker 02:
reconsider diligence.

[00:26:41] Speaker 02:
see that answer from here, it's still got a chennery problem, which is that because the board's decision didn't address that subject, the court can't address it in the first instance.

[00:26:51] Speaker 02:
As we noted in the brief, there's no jurisdiction to consider jurisdiction loophole here.

[00:26:55] Speaker 02:
That's just an issue that Mr. Abbott wants to have before the agency, but he filed an untimely motion.

[00:27:01] Speaker 02:
So that's down the line for the agency to consider.

[00:27:05] Speaker 02:
Thank you, Your Honors.

[00:27:06] Speaker 04:
Thank you.

[00:27:18] Speaker 00:
So just a couple points.

[00:27:19] Speaker 00:
I think that, for one thing, I think that the counsel wanted to correct something that the counsel said earlier, which is that Mr. Avila did not say that he thought his immigration, that someone told him that his conviction would have no immigration consequences.

[00:27:33] Speaker 00:
That's not at all what he said.

[00:27:34] Speaker 00:
No one told him about anything one way or the other.

[00:27:37] Speaker 00:
So it wasn't that.

[00:27:38] Speaker 00:
I think that would be a very different situation.

[00:27:40] Speaker 00:
If his defense counsel said,

[00:27:42] Speaker 00:
this offense is immigration safe and then he gets deported well then he has vital information about his claim in 1999 and that's not the situation here because no one told him one way or the other

[00:27:52] Speaker 00:
And so he assumed, well, I guess this conviction was just that was the only thing I could do.

[00:27:56] Speaker 00:
And this is what I'm left with is being deported.

[00:27:59] Speaker 00:
That turned out to be incorrect.

[00:28:01] Speaker 00:
And when he learned the vital information about his claim was not in August 2018.

[00:28:06] Speaker 00:
That was when he said when someone first told him, hey, there might be something here.

[00:28:10] Speaker 00:
And then as his declaration describes in paragraph four on AR 127, he was detained.

[00:28:17] Speaker 00:
He was working to support his.

[00:28:18] Speaker 04:
What steps did he take to learn

[00:28:21] Speaker 04:
that there had been this change in law in January 2017 or maybe slightly earlier based on your argument in your opening that at the end of 2016, it seems to me that there is a gap, even if we were to agree with you that the time is not the sort of longer time period, but something shorter, there is still

[00:28:44] Speaker 04:
a gap in which

[00:28:58] Speaker 00:
not a situation where he was told his conviction would have no immigration consequences, but, you know, in that situation, he first learned in August 2018.

[00:29:08] Speaker 00:
I mean, that's the first time he learned anything of it.

[00:29:11] Speaker 00:
So he didn't know before then that there was anything he could have done.

[00:29:14] Speaker 04:
But we're not looking at sort of the subjective experience of this individual, whether he learned it.

[00:29:20] Speaker 04:
It's whether he could have or through some

[00:29:23] Speaker 04:
efforts and diligence could have learned that he had relief available to him.

[00:29:28] Speaker 04:
And that was true as early as when the statute was passed in 2017.

[00:29:33] Speaker 00:
I mean, I suppose that's true.

[00:29:34] Speaker 00:
But I think, again, in a case where you have someone who is working to support three U.S.

[00:29:41] Speaker 00:
citizen kids and a spouse and is not a learned person, I don't know how you could expect him to be cognizant of this change in the law.

[00:29:52] Speaker 00:
in 2016, late 2016, early 2017.

[00:29:56] Speaker 05:
Now the argument is you just made it doesn't

[00:30:01] Speaker 05:
key into timing.

[00:30:03] Speaker 05:
That is to say, the statute's passed in 2017.

[00:30:09] Speaker 05:
He learns of its existence and its possible consequence about a year later.

[00:30:15] Speaker 05:
But you're saying, but you can't expect him to know what's going on.

[00:30:18] Speaker 05:
And your argument, as currently articulated, would apply if the statute had been passed 10 years earlier.

[00:30:24] Speaker 05:
Is that right?

[00:30:27] Speaker 05:
Or are you saying, well, wait a minute, this wasn't actually very long, and therefore we can look past it?

[00:30:34] Speaker 00:
I think that's it.

[00:30:34] Speaker 00:
It's the latter.

[00:30:35] Speaker 00:
I mean, I think that it's, you know, this Court, I think if the statute had been passed in, say, 99 or something, it would be a different case just because you'd have a lot longer where

[00:30:44] Speaker 00:
you know, he might have learned about the existence of the statute.

[00:30:46] Speaker 00:
But, you know, I don't think it's unreasonable under the facts of this case, looking at it from the perspective of a reasonable person, to say that, you know, learning of it in 2018 is not that long, given the scope of what's at stake here.

[00:31:00] Speaker 05:
And, of course, there's the California statute.

[00:31:02] Speaker 05:
He's in Washington State.

[00:31:03] Speaker 00:
He's in Washington State, exactly.

[00:31:05] Speaker 00:
Yeah.

[00:31:06] Speaker 00:
And I see him, oh, I'm over time.

[00:31:09] Speaker 00:
I'm so sorry.

[00:31:10] Speaker 00:
Thank you so much.

[00:31:11] Speaker 00:
Right, thank you very much.

[00:31:11] Speaker 00:
Thank you.

[00:31:16] Speaker 04:
Okay, the case just argued has been submitted and we'll hear the final case on the calendar.