[00:00:04] Speaker 04:
Ms.

[00:00:04] Speaker 04:
Gracia?

[00:00:06] Speaker 04:
Yes, Your Honors.

[00:00:07] Speaker 04:
Good morning.

[00:00:08] Speaker 04:
May it please the Court.

[00:00:09] Speaker 04:
My name is Catalina Gracia and I represent the petitioner Jaime Ugaldi-Baron.

[00:00:15] Speaker 04:
At this time, I would like to reserve two minutes for rebuttal.

[00:00:19] Speaker 04:
Your honors, one issue here is whether the petitioner was prejudiced by the government's noncompliance in the issuance of its final administrative removal order.

[00:00:30] Speaker 04:
Mr. Ugaldi-Baron was in fact prejudiced by this noncompliance, and he was harmed.

[00:00:36] Speaker 04:
He suffered a removal from the United States without the opportunity to address or confer with Council prior to the issuance of the final administrative removal order.

[00:00:46] Speaker 04:
This also deprived petitioner of an opportunity for judicial review.

[00:00:51] Speaker 04:
The entry of the final administrative removal order was fundamentally unfair and caused permanent harm that only this court can remedy.

[00:01:01] Speaker 00:
Tell us how he was prejudiced.

[00:01:05] Speaker 00:
The government's argument is even though there was a regulatory violation, he wasn't prejudiced because he was removable for having committed an aggravated offense.

[00:01:17] Speaker 00:
So tell us how you think he was prejudiced.

[00:01:20] Speaker 04:
Well, Your Honor, he was deprived of his right to counsel, and he was deprived of the right to present evidence to rebut those charges of removability.

[00:01:28] Speaker 00:
OK, I understand.

[00:01:30] Speaker 00:
But the government, this is a legal issue.

[00:01:33] Speaker 00:
The question is whether the previous conviction just made him removable.

[00:01:40] Speaker 00:
Yes, so the question is, had he had the opportunity to argue and present evidence, what would he have argued?

[00:01:49] Speaker 04:
Your Honor, in this situation, he would have argued that the conviction, the California conviction that he suffered, was not an aggravated felony under the federal statute.

[00:01:59] Speaker 04:
In Verdugo, I believe it's a Southern District case of California, that court held that the California statute for methamphetamine did not fall under the federal statute for methamphetamine because of the two-prong requirement in the federal statute, whereas California only has

[00:02:17] Speaker 04:
one-prong requirement to make the requisite finding that the controlled substance falls within the aggravated felony category.

[00:02:26] Speaker 00:
Does your argument depend on us finding that the California statutory scheme is not divisible?

[00:02:36] Speaker 04:
In part, yes, Your Honor.

[00:02:37] Speaker 00:
Well, in total, right?

[00:02:39] Speaker 00:
Because if it is divisible, and your client was convicted of a methamphetamine

[00:02:46] Speaker 00:
offense as opposed to an analog defense, then all the documents would suggest this is a methamphetamine offense, which would be a match for the federal statute, right?

[00:02:59] Speaker 04:
Correct, Your Honor, yes.

[00:03:01] Speaker 00:
So your argument turns on whether the statute is divisible or not divisible?

[00:03:07] Speaker 04:
Yes, Your Honor.

[00:03:08] Speaker 00:
So here's what I need.

[00:03:09] Speaker 00:
Thank you.

[00:03:10] Speaker 00:
This is a long way of getting to the question I really wanted to ask you.

[00:03:13] Speaker 03:
So hypothetically, if I believe it's an aggravated felony, which I'm saying this hypothetically, then he wouldn't be able to show any prejudice because he would lose no matter what, because that's a matter of law, right?

[00:03:25] Speaker 04:
When we're looking at just that part of the prejudice, he was prejudiced in more than one way.

[00:03:31] Speaker 04:
His due process rights were violated.

[00:03:33] Speaker 03:
Well, OK, so he's in Mexico right now.

[00:03:37] Speaker 03:
So he's been removed.

[00:03:39] Speaker 03:
And I like to think of sort of kind of take myself down the line.

[00:03:44] Speaker 03:
Let's say hypothetically we grant your petition.

[00:03:49] Speaker 03:
All right, how is he going to come back?

[00:03:52] Speaker 03:
He has no legal status.

[00:03:54] Speaker 04:
Your honor, that's correct.

[00:03:55] Speaker 04:
He has no legal status, but he does have a pending stay of removal that was filed prior to him physically being removed from the United States.

[00:04:03] Speaker 04:
And that stay of removal has not been ruled on.

[00:04:07] Speaker 04:
There's no decision made on that.

[00:04:09] Speaker 04:
And while he doesn't have legal status, he did have a legal entry into the United States as an agricultural worker.

[00:04:16] Speaker 04:
So he has the requisite legal entry to adjust to his US citizen child.

[00:04:21] Speaker 04:
So he does have available relief if he were to be in the United States.

[00:04:25] Speaker 03:
The only thing that is prevented- So he would have to, if it was granted, then he still would have to be able to show that he could get back in, right?

[00:04:33] Speaker 04:
Yes, if he would plan to adjust in the United States, but if this... Well, why would they let him back in if he has an aggravated felony?

[00:04:43] Speaker 04:
Because he no longer has an aggravated felony, Your Honor.

[00:04:45] Speaker 03:
Well, that's an issue that would have to be litigated, right?

[00:04:51] Speaker 03:
Because he vacated it how many years later?

[00:04:54] Speaker 04:
He vacated this 2024, and the conviction was in 1998.

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

[00:05:01] Speaker 00:
I want to get back to Judge Callahan's question before I ask you the one I wanted to.

[00:05:05] Speaker 00:
You're not contending that your client has any legal status in the United States, are you?

[00:05:12] Speaker 04:
No, he presently does not.

[00:05:14] Speaker 00:
No, so if he were charged with removability tomorrow, it seems to me you'd have to concede removability.

[00:05:22] Speaker 00:
You might make arguments about,

[00:05:24] Speaker 00:
asylum, or CAD, or withholding, or ask for a stay while you applied for status.

[00:05:29] Speaker 00:
But he would be removable, would he not?

[00:05:33] Speaker 04:
Yes, but he would have the opportunity to adjudicate that before an immigration test.

[00:05:36] Speaker 00:
Well, but he'd have the opportunity to adjudicate it.

[00:05:38] Speaker 00:
But I'm asking you, he is removable, is he not?

[00:05:41] Speaker 00:
He has no legal status in the United States.

[00:05:44] Speaker 04:
Your Honor, he's removable, but not as charged.

[00:05:47] Speaker 00:
I understand.

[00:05:47] Speaker 00:
I understand.

[00:05:48] Speaker 00:
Now, let me get back to as charged.

[00:05:53] Speaker 00:
And this is the question I wanted to ask you before.

[00:05:56] Speaker 00:
The statute prohibits possession of methamphetamine in one section, and there's another section that speaks about analogs.

[00:06:08] Speaker 00:
And the California Supreme Court has now

[00:06:11] Speaker 00:
made it pretty clear that the kind of proof one has to put in to prove analogs is different than the proof one has to put in to prove possession of methamphetamine.

[00:06:22] Speaker 00:
So given that, why isn't the statute divisible as between analogs and methamphetamine?

[00:06:29] Speaker 04:
Your Honor, I believe the use of what the drug can be used for, whether it's going to be a mind-altering substance that a human can use, that was my understanding of the finding in Verdugo.

[00:06:40] Speaker 00:
Well, I understand what Verdugo said.

[00:06:42] Speaker 00:
I'm trying to figure out whether Verdugo is right.

[00:06:44] Speaker 00:
And so I'm asking you why, because the analog prohibition is in a different section than the methamphetamine prohibition, why we shouldn't view the statute as divisible.

[00:06:57] Speaker 04:
Your Honor, I believe because it's overbroad.

[00:07:00] Speaker 03:
Well, except Verdugo is your best case, which isn't binding on us, correct?

[00:07:06] Speaker 03:
Correct.

[00:07:06] Speaker 03:
Yes, Your Honor.

[00:07:07] Speaker 03:
And in Verdugo, it was not clear from the charging document whether the defendant was charged with a violation involving methamphetamine or an analog.

[00:07:16] Speaker 03:
Here, it's clear that your client was charged.

[00:07:19] Speaker 03:
The charging document says methamphetamine.

[00:07:22] Speaker 04:
Yes, but because the case is so dated, we don't have information about what in fact was tested and what type of methamphetamine this was and whether it was... Well, anyone that's looked at a charging document, it's to put people on notice.

[00:07:37] Speaker 03:
And I would suspect that

[00:07:40] Speaker 03:
If you charge someone with methamphetamine, then you prove that it was methamphetamine.

[00:07:45] Speaker 03:
If you charge that it was an analog, then you prove that it was an analog.

[00:07:50] Speaker 03:
Here, I mean, he was on notice that it was methamphetamine, which is, in fact, an aggravated felony.

[00:07:59] Speaker 03:
So I guess I'm just not seeing how you can win.

[00:08:04] Speaker 03:
I'm just trying to be honest about this.

[00:08:08] Speaker 04:
Well, the case was vacated because the case file was destroyed.

[00:08:12] Speaker 04:
So we never will know what exactly was contained in the substance that was found on the petitioner.

[00:08:19] Speaker 04:
We only know that he accepted a plea, whether or not the substance was actually proven up or he just took advantage of the plea because he didn't understand what the consequences were going to be.

[00:08:29] Speaker 04:
We'll never know in this case.

[00:08:31] Speaker 00:
Can I ask you a question about the vacator?

[00:08:35] Speaker 00:
You could move to reopen, could you not, with the BIA and argue that this vacation of the conviction is a new fact that ought to be taken into account?

[00:08:49] Speaker 04:
Your Honor, we were never before the BIA because of the issuance of the final administrative order.

[00:08:53] Speaker 00:
Now, you have a final administrative order.

[00:08:56] Speaker 04:
Yes.

[00:08:56] Speaker 00:
You could move to reopen it, can you not, and argue that the conviction has now been vacated?

[00:09:03] Speaker 04:
We could, arguably, we could do that.

[00:09:06] Speaker 00:
Yeah.

[00:09:06] Speaker 00:
Here's my difficulty with the vacation of the conviction.

[00:09:10] Speaker 00:
We can't, even if we take judicial notice of it, which I think we can, I don't think we can order that the agent, we can find that the agency erred on the basis of facts that were not before it.

[00:09:25] Speaker 00:
But I think you should try to get that fact before the agency.

[00:09:30] Speaker 00:
So I'm suggesting that one way to do so is in a motion to reopen.

[00:09:33] Speaker 00:
I know you haven't filed one, and you don't have to take my advice.

[00:09:36] Speaker 00:
I'm just raising that for you.

[00:09:38] Speaker 01:
Well, I just have a question about the vacateur.

[00:09:41] Speaker 01:
And you just said it was vacated because the files were lost.

[00:09:46] Speaker 01:
But I understood from the briefs that it was vacated because he wasn't advised of the immigration consequences of his plea.

[00:09:53] Speaker 04:
Your Honor, he was vacated because the government couldn't prove that he was advised of the immigration consequences of his plea because they couldn't proceed.

[00:10:04] Speaker 04:
They did not have their file.

[00:10:06] Speaker 04:
So yes, that was the reason for filing to vacate this conviction, and that was the basis for the grant.

[00:10:16] Speaker 04:
But the reason the government couldn't proceed was because they didn't have their file.

[00:10:23] Speaker 01:
All right, you asked for two minutes to reserve over your time, but I will give you a minute at the end of the government's argument.

[00:10:32] Speaker 04:
Thank you, Your Honor.

[00:10:33] Speaker 01:
Thank you.

[00:10:37] Speaker 01:
Ms.

[00:10:37] Speaker 01:
Vick.

[00:10:46] Speaker 02:
Good morning.

[00:10:46] Speaker 02:
Good morning.

[00:10:47] Speaker 02:
Lindsay Vick on behalf of the government.

[00:10:50] Speaker 02:
This case presents the court with two questions, as you've already acknowledged, whether Petitioner has a statute of conviction that is an aggravated felony and whether he was removed lawfully.

[00:11:01] Speaker 02:
And first, regarding the aggravated felony conviction,

[00:11:05] Speaker 02:
Your honors are correct that the statute, the controlled substance element, is divisible.

[00:11:12] Speaker 02:
And that is because of this court's well-established precedent, as well as the fact that Fischer's arguments concerning US v. Verdugo are inapposite.

[00:11:23] Speaker 00:
Well, stop for a second.

[00:11:24] Speaker 00:
I want to understand the government's position on categorical.

[00:11:30] Speaker 00:
You seem to concede or not contest that the analog definition in the California statute is broader than the federal analog definition, correct?

[00:11:43] Speaker 02:
Correct.

[00:11:44] Speaker 02:
We're not conceding.

[00:11:44] Speaker 00:
You're not contesting that?

[00:11:46] Speaker 02:
Correct.

[00:11:46] Speaker 02:
Well, we're not conceding one way or the other, whether California is overbroad or not.

[00:11:51] Speaker 00:
Well, do we have to decide that?

[00:11:55] Speaker 02:
I don't think you do, because it's clear from California's state law, basically people v Davis, and the California jury instructions, that the state has to prove either a controlled substance listed, which would add or add or fall.

[00:12:11] Speaker 00:
So then you're asking us to assume that it's broader, but find that it's divisible.

[00:12:16] Speaker 00:
Because if it's not broader, we don't have to worry about divisibility, do we?

[00:12:20] Speaker 02:
Correct, correct.

[00:12:23] Speaker 00:
So you're not contesting in this case that the California definition is broader.

[00:12:28] Speaker 02:
That's correct.

[00:12:29] Speaker 00:
Because I know some circuits have decided that it's in the

[00:12:35] Speaker 00:
Disjunctive?

[00:12:36] Speaker 00:
The or?

[00:12:37] Speaker 02:
Partially conjunctive, I think.

[00:12:39] Speaker 00:
Yeah.

[00:12:39] Speaker 02:
Partially conjunctive.

[00:12:40] Speaker 00:
That it's in the conjunctive, the federal one.

[00:12:42] Speaker 00:
But you're not contesting that today.

[00:12:46] Speaker 02:
No, we're not.

[00:12:46] Speaker 02:
And I don't believe the Ninth Circuit.

[00:12:48] Speaker 02:
I don't believe this court has addressed it.

[00:12:52] Speaker 02:
But it is certainly divisible.

[00:12:54] Speaker 02:
And again, that is because People v. Davis said clearly that the state must prove an unlisted substance

[00:13:01] Speaker 02:
is an analog, or it proves that the substance is a listed substance.

[00:13:06] Speaker 03:
Well, if you were trying the case, but he pled guilty or no contest or something, right?

[00:13:13] Speaker 03:
He didn't have a jury trial.

[00:13:14] Speaker 02:
Correct.

[00:13:14] Speaker 03:
But the charging document said methamphetamine.

[00:13:17] Speaker 02:
That's correct.

[00:13:18] Speaker 03:
And we know that.

[00:13:20] Speaker 03:
We know that.

[00:13:21] Speaker 03:
So what would a prosecutor have to say if it was an analog?

[00:13:28] Speaker 03:
They wouldn't say methamphetamine, would they?

[00:13:31] Speaker 03:
They would say he was charged with an analog, right?

[00:13:36] Speaker 02:
Correct.

[00:13:36] Speaker 02:
They would say whatever the name of the substance.

[00:13:38] Speaker 02:
I think a lot of the cases deal with ecstasy, and so they'll name the substance, and then they have to call an expert or chemist.

[00:13:47] Speaker 03:
Well, and if you were charging someone with ecstasy, say, and you put methamphetamine on there,

[00:13:57] Speaker 03:
The defense would have a complaint against you for not putting on notice as to what the evidence was going to be, right?

[00:14:03] Speaker 02:
And that would be a due process challenge.

[00:14:05] Speaker 02:
And that is something that's addressed in People v. Becker.

[00:14:07] Speaker 02:
However, that doesn't relate to then what needs to be proven as an element at trial.

[00:14:13] Speaker 02:
And what we're talking about here is what needs to be proven as an element at trial.

[00:14:18] Speaker 03:
Well, let's just hypothetically assume that I believe it's an aggravated felony.

[00:14:27] Speaker 03:
What relief can he get here?

[00:14:29] Speaker 03:
He's in Mexico right now, right?

[00:14:33] Speaker 03:
So we were questioning your friend on the other side.

[00:14:37] Speaker 03:
It would seem to me, how does he get back here?

[00:14:41] Speaker 02:
Well, Your Honor, I don't believe he has any eligibility to come back because I know my friend on the other side... He said a lot of ifs.

[00:14:49] Speaker 03:
She said, well, then he could do this and then he could do that.

[00:14:52] Speaker 03:
But presently, does he have any way to get back?

[00:14:56] Speaker 02:
Not at this very moment.

[00:14:58] Speaker 01:
And one thing I'd like to... In some circumstances, the government would facilitate his return for purposes of having a proceeding which met the due process requirements.

[00:15:11] Speaker 01:
Is this such an instance?

[00:15:13] Speaker 02:
This is not such an instance because there actually is no evidence that he was ever in lawful status.

[00:15:19] Speaker 00:
But he hasn't been charged.

[00:15:20] Speaker 00:
He wasn't charged as being removable because he was here unlawfully.

[00:15:26] Speaker 00:
He was charged as being removable because he committed an aggravated felony.

[00:15:30] Speaker 00:
We can sort of piece together from the record that he may not have been here legally, but that's not the basis on which he was removed.

[00:15:40] Speaker 02:
Correct.

[00:15:40] Speaker 00:
So let me ask the question this way.

[00:15:43] Speaker 00:
Our case law on due process says when a regulatory violation potentially deprives someone of an ability to oppose a defense, we find a due process violation.

[00:15:59] Speaker 00:
What strikes me about this case is both sides have skipped past the potentially and are arguing the merits of the alleged defense

[00:16:11] Speaker 00:
The government caused this problem.

[00:16:13] Speaker 00:
by its regulatory violation.

[00:16:15] Speaker 00:
Why shouldn't we, and whichever way we lean on the divisibility question, given that there's two district court opinions the other way, it's not a frivolous defense.

[00:16:26] Speaker 00:
Why shouldn't we just let you fix the problem you caused?

[00:16:31] Speaker 00:
Send it back, let him raise this defense.

[00:16:33] Speaker 00:
We have no ruling from the agency about whether or not this is a divisible statute or not.

[00:16:39] Speaker 00:
Comes to us in the first instance.

[00:16:41] Speaker 00:
He can argue his vacatur.

[00:16:43] Speaker 00:
you can proceed from there.

[00:16:44] Speaker 00:
Why isn't that the appropriate solution in this case?

[00:16:47] Speaker 02:
I don't think that's the appropriate solution, because there was a lawful removal here.

[00:16:53] Speaker 02:
And that is because there is the 10-day notice that he was not provided.

[00:16:59] Speaker 02:
But he still has to prove prejudice.

[00:17:01] Speaker 00:
And that means he would have to prove that the outcome- We have to prove potential prejudice according to our cases.

[00:17:06] Speaker 00:
And if we think it's mildly a close question, isn't that potential prejudice?

[00:17:14] Speaker 03:
I don't think it is, because those 10 days... Yes, tell us what you think the prejudice, or why there's not prejudice.

[00:17:21] Speaker 02:
I don't think there's prejudice because those 10 days did not impact his ability to obtain counsel for the subsequent reasonable fear proceedings.

[00:17:29] Speaker 02:
And then he had counsel for many months and he didn't file a motion to vacate until I think about seven months later.

[00:17:38] Speaker 02:
And then he didn't obtain the vacator until maybe 10 months later.

[00:17:42] Speaker 02:
And this is all, we have to remember this is someone who was in the country for maybe almost 40 years

[00:17:47] Speaker 02:
had an over 20-year conviction.

[00:17:49] Speaker 02:
He never sought to regularize his status or do anything about the conviction.

[00:17:56] Speaker 00:
Could he have raised the, let me just call it the divisibility argument, that this is not an aggravated felony argument in the agency after the final order of removal?

[00:18:09] Speaker 00:
There's no administrative review after the... When he was removed two days into the 10-day period, he then lost his ability to argue that this is not in front of the agency, that this is not an aggravated felony, right?

[00:18:24] Speaker 02:
Well, he wasn't removed during the 10-day period.

[00:18:27] Speaker 00:
When the order came out two days in.

[00:18:29] Speaker 02:
Well, yes, the administrative removal order and the notice of intent were issued the same day.

[00:18:34] Speaker 00:
That was a final order?

[00:18:36] Speaker 00:
Yes.

[00:18:36] Speaker 00:
And could you?

[00:18:37] Speaker 02:
Well, it was actually final once the immigration judge affirmed the reasonable fear.

[00:18:41] Speaker 00:
That's what I was trying to figure out here, so thank you.

[00:18:44] Speaker 00:
There's a longer period between the removal order

[00:18:49] Speaker 00:
and the reasonable fear determination.

[00:18:51] Speaker 00:
And after the reasonable fear determination gets affirmed, that's when he's actually removed.

[00:18:57] Speaker 00:
Correct.

[00:18:57] Speaker 00:
So I'm trying to figure out whether or not, during that extended period, much longer than 10 days, he could have raised the argument that this is not an aggravated felony, or whether or not he was barred from doing so by the removal order.

[00:19:13] Speaker 02:
I don't know that he's barred from doing so and I don't know that he would have been barred from going to ICE for prosecutorial discretion or anything like that.

[00:19:24] Speaker 00:
The argument that they're making in this case is that he was deprived of the ability to argue this is not an aggravated felony because the order issued prematurely, if you will.

[00:19:35] Speaker 00:
And, but he was, he wasn't removed until three weeks, four weeks, I don't know what the number is, a much longer period of time than 10 days.

[00:19:44] Speaker 00:
So what I'd like, I'm trying to figure out is whether, had he wanted to raise this issue within that 10 day period, because he did have counsel for the reasonable fear determination, whether he could have raised that somehow in the agency.

[00:20:00] Speaker 00:
If so, then it's hard to see how

[00:20:04] Speaker 00:
the order prejudiced him because he had time to raise it and didn't.

[00:20:08] Speaker 02:
Right.

[00:20:08] Speaker 00:
But that's why I'm asking the question.

[00:20:10] Speaker 02:
I don't know that there is that method, and that is because this is expedited removal.

[00:20:16] Speaker 02:
And it's the intent of Congress that these proceedings be summary and expeditious, and that there is finality.

[00:20:24] Speaker 02:
And that's just the nature of his removal statute.

[00:20:26] Speaker 01:
But in this case, he had filed a PFR and stay motion at 255

[00:20:31] Speaker 01:
and he was deported at 317 that same day.

[00:20:37] Speaker 01:
So there wasn't even a chance to.

[00:20:41] Speaker 02:
So we attached a declaration to our stay op that shows the process.

[00:20:47] Speaker 02:
So he was actually, the ICE officer was checking the databases for alerts and if a PFR had been filed.

[00:20:55] Speaker 02:
the day the immigration judge affirmed the reasonable fear finding.

[00:20:59] Speaker 02:
That was November, I'm sorry, September 22nd.

[00:21:02] Speaker 02:
And then on September 25th, when they were going to execute the order, he was boarded a bus at 10 a.m.

[00:21:08] Speaker 02:
And the ICE agent checked the databases, saw no alerts.

[00:21:13] Speaker 02:
And then I believe he was on route by noon.

[00:21:15] Speaker 02:
And then the ICE agent checked again, saw nothing.

[00:21:18] Speaker 02:
And then it was at 2.55 that day that the PFR and stay were filed.

[00:21:24] Speaker 02:
And then at 3.17 is when he actually exited the bus and was removed.

[00:21:28] Speaker 00:
Judge Wardle, can I ask you a question?

[00:21:29] Speaker 00:
Go ahead.

[00:21:30] Speaker 00:
I'm still interested in this timing issue.

[00:21:33] Speaker 00:
And I want to make sure I understand it.

[00:21:36] Speaker 00:
The order of removal issues the second day, basically, the second day of 10.

[00:21:42] Speaker 00:
And then there's a process under which he undergoes a reasonable fear interview.

[00:21:47] Speaker 00:
And eventually, the IJ reviews that.

[00:21:50] Speaker 00:
Could he have argued to the IJ that, gee, now my lawyer is here and I don't think this is an aggravated felony?

[00:21:57] Speaker 00:
Or is the IJ prevented from addressing that issue because his or her jurisdiction is limited to the reasonable, credible fear?

[00:22:07] Speaker 02:
I think they're limited to the reasonable fear proceedings, but I would have to go back in and look into that.

[00:22:11] Speaker 00:
Could somebody have filed a motion to reopen during that period before removal that said, oh my gosh, now that my lawyer is here, this isn't an aggravated felony?

[00:22:23] Speaker 02:
I'm not aware of a process.

[00:22:25] Speaker 00:
Neither am I. That's why I'm asking you.

[00:22:27] Speaker 02:
Yeah, I'm not aware that anything would necessarily prevent them from doing that, but I'm not aware of a process for that.

[00:22:35] Speaker 02:
And again, it's because of the intended expeditious nature of these proceedings.

[00:22:40] Speaker 01:
All right, counsel, you're two minutes over.

[00:22:43] Speaker 01:
Ms.

[00:22:46] Speaker 01:
Gracia, I'll give you a minute to respond

[00:22:51] Speaker 01:
Perhaps you can answer Judge Hurtwitz's questions.

[00:22:56] Speaker 04:
Thank you.

[00:22:56] Speaker 04:
And yes, Your Honor, the immigration judge is not permitted or does not have the authority to address any issue other than the credible fear determination.

[00:23:09] Speaker 04:
The scope is limited to just that purpose.

[00:23:12] Speaker 04:
A petitioner would not have had the opportunity to bring up any issue related to his prior conviction.

[00:23:17] Speaker 04:
The other consequence of issuing a final administrative removal order is that it does not permit the BIA to review.

[00:23:29] Speaker 04:
The BIA does not have jurisdiction.

[00:23:31] Speaker 04:
If something were to be filed with the BIA, they would reject the motion to reopen based on lack of jurisdiction.

[00:23:39] Speaker 04:
And that's part of the prejudice here is that the FARO significantly limits the options for petitioner to

[00:23:47] Speaker 04:
addressed or attempt to remedy the due process violation and specifically eight USC

[00:23:57] Speaker 04:
1228 subsection B subsection three says that only DHS can reopen a final administrative removal order.

[00:24:04] Speaker 04:
So that means that the only way to obtain any kind of relief is going to- You could have gone to DHS during that period.

[00:24:11] Speaker 00:
And now it's a little strange because nobody thought about the divisibility issue until Verdugo.

[00:24:16] Speaker 00:
So it was later, but had somebody thought about it at the time, they could have gone to DHS and said, wait a minute, you made a mistake.

[00:24:24] Speaker 00:
This is not an aggravated felony.

[00:24:26] Speaker 04:
I think that's the purpose of the stay.

[00:24:28] Speaker 04:
That was the opportunity to file that.

[00:24:30] Speaker 04:
I think trying to file something with DHS, the problem there would have been that by the time somebody looked at it, he would have been long gone.

[00:24:37] Speaker 00:
Well, I've read the stay application.

[00:24:39] Speaker 00:
That's not really what it says, is it?

[00:24:43] Speaker 04:
The stay is just to stop the actual physical removal of the petitioner so that then we could have pursued or attempted to pursue perhaps a motion with DHS or

[00:24:55] Speaker 04:
something alternative, but in this situation, Petitioner was barred from doing that because he was... Isn't it kind of moot at this point?

[00:25:02] Speaker 03:
He's gone.

[00:25:04] Speaker 04:
It's not because this court does have the authority to demand that petitioner be brought back to the United States.

[00:25:11] Speaker 04:
He does have the opportunity to adjust.

[00:25:15] Speaker 04:
He does have a legal entry.

[00:25:17] Speaker 04:
He does have that conviction that's now been vacated.

[00:25:20] Speaker 04:
And he does have a US citizen child.

[00:25:22] Speaker 04:
He's ripe for adjustment.

[00:25:24] Speaker 04:
There would be nothing that would stop him from obtaining his green card status at this point.

[00:25:28] Speaker 04:
It's just a matter of going through the motions and filing the proper paperwork.

[00:25:34] Speaker 01:
I want you to clarify something.

[00:25:37] Speaker 01:
Did you say he did have lawful status when he originally entered under the agricultural workers?

[00:25:45] Speaker 04:
Yes.

[00:25:46] Speaker 04:
I don't know if I would call it lawful status, but he entered as a special agricultural worker.

[00:25:51] Speaker 04:
So he was here present with that lawful status.

[00:25:55] Speaker 00:
The record seems to indicate that he entered, then applied for status as an agricultural worker.

[00:26:01] Speaker 00:
which was denied.

[00:26:02] Speaker 00:
Am I incorrect in reading the record that way?

[00:26:06] Speaker 04:
Your Honor, I think what occurred was he did enter as a special agricultural worker, and then he attempted to adjust, I believe on two or three occasions, as a special agricultural worker, and the adjustment is what was denied.

[00:26:18] Speaker 04:
And I think the basis for that was that he couldn't establish, or he didn't have the proper identity document showing that he had entered as a special agricultural worker.

[00:26:27] Speaker 04:
So the denial was not based on

[00:26:30] Speaker 04:
him not being a special agriculture worker, but rather that at the time of the attempted adjustment, he didn't have the necessary documents.

[00:26:39] Speaker 03:
Well, but then that's kind of a distinction without a difference here, that he didn't have lawful status.

[00:26:49] Speaker 04:
He did have lawful status.

[00:26:53] Speaker 04:
Yes, but because of he doesn't need lawful status to apply for an adjustment.

[00:26:58] Speaker 04:
He just needs to have had a legal entry, which he does have.

[00:27:02] Speaker 04:
So correct.

[00:27:03] Speaker 04:
He has no lawful status.

[00:27:04] Speaker 04:
Obviously, he's in Mexico.

[00:27:05] Speaker 04:
But in order to adjust, he needs to have had a legal entry into the United States, which he does have that.

[00:27:13] Speaker 01:
All right.

[00:27:14] Speaker 01:
Thank you, Council.

[00:27:15] Speaker 01:
Thank you, Your Honor.

[00:27:16] Speaker 01:
Barron versus McHenry will be submitted.