[00:00:01] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:03] Speaker 00:
My name is Tina Malik and I am arguing on behalf of the petitioner in this case, Mr. Juan Cisneros.

[00:00:10] Speaker 00:
This is a case of procedure versus substance.

[00:00:15] Speaker 00:
A motion to reopen and a motion to reissue may be sought via a motion to reopen, and the regulations provide that the Board is authorized to take any action consistent with their authorities under the Act and regulations.

[00:00:28] Speaker 00:
So, we must look at what the requirements are for a motion to reopen and what the purpose of the relief being sought is.

[00:00:38] Speaker 00:
In this case, the petitioner was seeking re issuance based on ineffective assistance of Council.

[00:00:46] Speaker 00:
If you look at the board's decision, there are two major points.

[00:00:51] Speaker 00:
The board states petitioner did not introduce new evidence or new material or alleged error in the boards or IJ decisions.

[00:01:01] Speaker 00:
I'm going to come back to that a little later in my argument.

[00:01:03] Speaker 00:
I want to lead with

[00:01:05] Speaker 00:
the board acknowledged that being deprived of appellate proceedings entirely will mandate a rebuttable presumption of prejudice, but that the petitioner here did not demonstrate plausible grounds for relief.

[00:01:19] Speaker 00:
So the question here is, and what I think this case hinges on is,

[00:01:26] Speaker 00:
Does the failure to show plausible grounds for relief rebut the presumption of prejudice when evaluating in the context of emotion to reissue?

[00:01:37] Speaker 04:
So what's the significance of the presumption?

[00:01:43] Speaker 00:
The significance of the presumption of prejudice?

[00:01:46] Speaker 04:
Yes.

[00:01:48] Speaker 04:
How does it work?

[00:01:52] Speaker 00:
In this particular context, the petitioner was prejudiced, is presumed to be prejudiced by the fact that he missed his chance to appeal to this court.

[00:02:04] Speaker 04:
OK, so he's presumed to be prejudiced, so then he still has to show that he suffered prejudice?

[00:02:14] Speaker 04:
Or that he has a plausible claim?

[00:02:15] Speaker 00:
Well, according to what the board states, and it is accurate that

[00:02:21] Speaker 00:
there is a rebuttable presumption of prejudice.

[00:02:23] Speaker 00:
But the point I'm trying to make.

[00:02:25] Speaker 04:
Why does he have to rebut?

[00:02:26] Speaker 04:
Does he have to rebut the presumption?

[00:02:30] Speaker 00:
Well, I think it depends on in what context you're looking.

[00:02:33] Speaker 00:
Because there is a distinction between a motion to reopen, for example, in the context if you file it based on ineffective assistance at counsel,

[00:02:42] Speaker 00:
of the underlying proceedings or if you're trying to introduce new evidence or if you're citing new case law, for example, you need to reopen on that basis.

[00:02:52] Speaker 01:
But counsel, isn't it the same two-prong analysis that we would apply in any other ineffective assistance of counsel claim?

[00:03:01] Speaker 01:
You have to show basically material omission or act by counsel that violates standard of representation in the community.

[00:03:11] Speaker 01:
But secondly, you have to show prejudice in order to make out a cognizable claim.

[00:03:16] Speaker 01:
Doesn't he bear the burden on both prongs here?

[00:03:19] Speaker 01:
It's not enough just to trigger the presumption.

[00:03:22] Speaker 01:
We'll give you that.

[00:03:23] Speaker 01:
But he has to show he has a plausible claim for benefits.

[00:03:27] Speaker 01:
And it seems to me that's where the agency ruled that he fell flat.

[00:03:33] Speaker 00:
So that's actually precisely my argument and where I was getting to next.

[00:03:37] Speaker 00:
It's the petitioner's position that the legal requirements for reopening in the context of a motion to reissue alone does not mandate a showing of plausible grounds for relief.

[00:03:48] Speaker 02:
So can I read you from Rojas Garcia our decision?

[00:03:52] Speaker 02:
We said that the alien must show plausible grounds for relief.

[00:03:58] Speaker 02:
Siong, we said that the next question is whether the petitioner has demonstrated plausible grounds for relief.

[00:04:05] Speaker 02:
Deringer, we said certainly the claimants must show plausible grounds for relief.

[00:04:12] Speaker 02:
Maybe we got it wrong.

[00:04:13] Speaker 02:
I understand there's some logical inconsistency with giving a presumption but then requiring a showing of plausible relief.

[00:04:23] Speaker 02:
But we've said this over and over and over again.

[00:04:29] Speaker 00:
I understand what the court's saying.

[00:04:31] Speaker 00:
I don't think there's an inconsistency in Rojas Garcia, which is what the board relies on and what the respondent in this case relies on and is asking this court to apply that standard in this case.

[00:04:43] Speaker 00:
And this court did hold that the movement must show plausible grounds for relief.

[00:04:47] Speaker 00:
And that's entirely logical in the context of a traditional motion to reopen because

[00:04:51] Speaker 00:
It prevents frivolous motions, ensures that reopening is only granted in cases where there is a valid basis for relief.

[00:04:59] Speaker 02:
But why wouldn't that apply here?

[00:05:00] Speaker 02:
Ineffective assistance of counsel, if there's ultimately going to be no relief, if the claim ultimately is not good, then why doesn't the same analysis apply?

[00:05:12] Speaker 02:
You're asking for an exception for ineffective assistance of counsel, at least in the context of missing the deadline.

[00:05:18] Speaker 02:
Is that what you're doing?

[00:05:20] Speaker 00:
Sort of.

[00:05:22] Speaker 00:
I think, why is it different?

[00:05:24] Speaker 00:
Because in this case, respondents sought a motion to reissue, which is entirely procedural in nature.

[00:05:31] Speaker 00:
In all those other cases, in Rojas Garcia and Derringer, those were not motions to reopen based on reissuance.

[00:05:37] Speaker 00:
They had other substantive issues as well.

[00:05:40] Speaker 00:
This is a purely procedural issue.

[00:05:43] Speaker 01:
Well, it's a procedural issue in order to overcome a procedural default, the failure to timely file.

[00:05:50] Speaker 01:
So really the only purpose of moving to reopen was to restart the time clock through the reissuance of the opinion in order to address the defolcation by former counsel.

[00:06:02] Speaker 01:
Isn't that the situation that we're looking at?

[00:06:05] Speaker 00:
Yes, and I think this case is entirely distinguishable from all the other cases that this court has decided.

[00:06:12] Speaker 01:
But if the board looked at his record and said he's going to be statutorily ineligible because of his criminal activities, how is that an abuse of discretion to refuse to reopen if the only reason to do so is to restart the time clock?

[00:06:30] Speaker 00:
Well, that wasn't the situation here, that it wasn't denied for statutory eligibility based on a criminal conviction.

[00:06:38] Speaker 00:
In Rojas Garcia, it was.

[00:06:41] Speaker 00:
There was a criminal matter, and Mr. Rojas Garcia was seeking reconsideration of the judge's admissibility finding, which resulted in the denial of his adjustment of status.

[00:06:53] Speaker 00:
in this case if our petitioner was seeking to reopen for example based on a change circumstance or based on the fact that the court made the wrong finding with respect to a criminal conviction then it would be logical to require showing that those circumstances would have affected the outcome of proceedings and that he would he would have a strong likelihood of success on the merits but there was not none of those challenges that were present in any of the other cases before this court here

[00:07:23] Speaker 01:
Well, you're correct in Rojas Garcia involved.

[00:07:29] Speaker 01:
I guess it was negotiations to purchase cocaine.

[00:07:31] Speaker 01:
But here, the IJ found he was not credible because his proposed social group witness to criminal activity was not sufficient to establish nexus to a protected ground.

[00:07:45] Speaker 01:
And so the agency found that he'd not carried his burden

[00:07:49] Speaker 01:
of showing that he would have been successful on appeal.

[00:07:53] Speaker 01:
Why isn't that a sufficient justification to find no abuse of discretion in denying reopening?

[00:08:03] Speaker 00:
The petitioner in this case had litigated a matter before the court, and then filed a notice of appeal, filed a brief, and fully litigated the merits of that case, and then was seeking to have this court review the board's decision substantively, but he missed that deadline.

[00:08:19] Speaker 00:
So that's what I think is the major distinguisher here, the nature of the relief and the way his motion was styled, was styled as a motion to reopen.

[00:08:29] Speaker 04:
So the way I read the cases is that when it comes to a situation like this where the petitioner's counsel failed to file a notice of appeal or a petition for review with our court, the petitioner is deprived of judicial review.

[00:08:45] Speaker 04:
Is that right?

[00:08:45] Speaker 00:
That's right.

[00:08:47] Speaker 04:
Right.

[00:08:47] Speaker 04:
And so our case law says in that instance, we presume prejudice, because you didn't get an opportunity to have judicial review.

[00:08:56] Speaker 04:
Right?

[00:08:57] Speaker 04:
Okay, so here it seems like if there's a presumption, at least to me logically, the way I've always seen a presumption work, and maybe it's different in the immigration context, but our case law doesn't seem to suggest that, but that the somebody needs to, the government or government's counsel, somebody needs to rebut the presumption because it is a rebuttable presumption.

[00:09:25] Speaker 04:
And here, it doesn't look like the government offered anything, didn't oppose the motion, didn't offer anything, and there's nothing in the record of the BIA's decision that it examined the underlying decision.

[00:09:41] Speaker 04:
All it said was that the petitioner did not offer anything to show that there was a plausible claim.

[00:09:50] Speaker 04:
None of that makes sense to me.

[00:09:55] Speaker 04:
But Rojas seems to say that that's okay.

[00:09:59] Speaker 04:
So what do we do?

[00:10:04] Speaker 00:
I think the key difference, as I stated before in this case, between Rojas and all the other cases, is the way the motions were styled.

[00:10:13] Speaker 00:
Because if you file a motion to reopen based on change circumstance, you have to meet a certain set of requirements.

[00:10:20] Speaker 00:
If you file based on ineffective assistance of counsel based on the merits of the proceedings, you have to meet a certain set of requirements.

[00:10:28] Speaker 00:
This motion was styled as a motion to reopen and reissue.

[00:10:31] Speaker 00:
And we don't have any case law on point.

[00:10:34] Speaker 00:
And the regulations are very unclear with respect to motions to reissue.

[00:10:38] Speaker 02:
Can I ask a question?

[00:10:39] Speaker 02:
Maybe this will put a finer point on it.

[00:10:41] Speaker 02:
Have we, I mean, we have the Rojas cases, you know, that line of cases.

[00:10:47] Speaker 02:
Can you cite us any case?

[00:10:50] Speaker 02:
in any context where we have applied the presumption but not required some showing of plausibility.

[00:11:02] Speaker 02:
There's some logical inconsistency here.

[00:11:04] Speaker 02:
But as I read our cases, I don't see us ever not requiring some showing of plausibility.

[00:11:11] Speaker 02:
It may dilute the presumption.

[00:11:13] Speaker 02:
It may negate the presumption.

[00:11:15] Speaker 02:
But have we ever actually just relied on the presumption without a showing of plausibility?

[00:11:20] Speaker 02:
And can you show a case?

[00:11:24] Speaker 00:
Truthfully, no, I can't.

[00:11:26] Speaker 00:
But I can distinguish all the other cases.

[00:11:28] Speaker 02:
I understand.

[00:11:31] Speaker 00:
I think there's a procedural difference in all the other cases, and we don't have any case law on point.

[00:11:37] Speaker 02:
I understand.

[00:11:37] Speaker 02:
And obviously, your case would be better if you could point us to anything where we hadn't required plausibility.

[00:11:44] Speaker 02:
I mean, look, we may need to fix this.

[00:11:46] Speaker 02:
I mean, as I understand it, most other circuits have flatly rejected a presumption.

[00:11:52] Speaker 02:
So maybe our case law is wrong in giving this false hope

[00:11:58] Speaker 02:
and stating a presumption standard and then never actually applying it.

[00:12:03] Speaker 00:
I think the presumption standard is entirely logical depending on the context.

[00:12:08] Speaker 00:
In almost every other motion to reopen, it's entirely logical.

[00:12:12] Speaker 00:
Otherwise, people would file frivolous motions as a dilatory.

[00:12:16] Speaker 01:
But doesn't Rojas answer the question about whether the presumption standing alone is sufficient to trigger a right to pursue the appeal?

[00:12:27] Speaker 01:
I'm looking at page 826 of 339F3rd and in Rojas where we cite to Derringer

[00:12:35] Speaker 01:
And then we said, quote, after holding that failure to file, a timely position created a presumption of prejudice.

[00:12:45] Speaker 01:
We then acknowledged that the alien must show plausible grounds for relief.

[00:12:50] Speaker 01:
End quote and then we cite to Jimenez Marlojo 104 F3rd 1083 in 1996 opinion.

[00:12:59] Speaker 01:
I mean that that seems to me to stand squarely in the way of the argument that you're pursuing.

[00:13:09] Speaker 00:
I hate to repeat myself, Your Honor, but I agree that it says that, but I think there is a major distinguisher between Derringer and Rojas.

[00:13:18] Speaker 00:
They weren't just asking for a resetting of the clock.

[00:13:21] Speaker 00:
There were major substantive issues in those cases as well.

[00:13:26] Speaker 01:
But it does seem to say that he's got to show both.

[00:13:29] Speaker 01:
It's not enough to show that his counsel missed the deadline.

[00:13:32] Speaker 01:
He's got to show a plausible ground for relief in order to show entitlement.

[00:13:40] Speaker 00:
It does say that.

[00:13:42] Speaker 00:
And again, I think it's because Rojas Garcia can be distinguished.

[00:13:47] Speaker 00:
The relief sought in Rojas Garcia can be distinguished from the relief sought here.

[00:13:55] Speaker 03:
OK.

[00:13:56] Speaker 02:
We'll give you time for rebuttal.

[00:13:57] Speaker 02:
Thank you.

[00:13:59] Speaker 02:
Thank you.

[00:14:00] Speaker 02:
I know you feel like you're repeating yourself, but we're trying to grapple with a thread and needle as well.

[00:14:05] Speaker 02:
So thank you.

[00:14:08] Speaker 01:
We wrestle with these cases just as much as you do.

[00:14:11] Speaker 01:
Believe me.

[00:14:18] Speaker 05:
Good morning, Your Honors.

[00:14:19] Speaker 05:
May it please the court?

[00:14:20] Speaker 05:
Sona Lee, representing the Attorney General.

[00:14:23] Speaker 01:
Could you speak up a little bit, counsel?

[00:14:24] Speaker 05:
Yes.

[00:14:28] Speaker 02:
So can I just start out?

[00:14:29] Speaker 02:
I think Judge Pai has sort of asked this.

[00:14:32] Speaker 02:
What the heck does the presumption mean?

[00:14:35] Speaker 02:
I mean, it is odd that we've adopted this presumption.

[00:14:38] Speaker 02:
And then we said, yeah, but you still bear the burden.

[00:14:40] Speaker 02:
I mean, have we really just read the presumption out of our case law?

[00:14:46] Speaker 05:
Well, the presumption, like your honors have stated in Rojas, clearly says that the burden is on the petitioner to show plausible grounds for it.

[00:15:01] Speaker 02:
So what work is the presumption doing, if any?

[00:15:08] Speaker 01:
well okay so there's the presumption that they were prejudiced because the the attorney missed a deadline for an appeal and so what about my analogy to to the two-pronged ineffective assistance of counsel analysis doesn't it answer prong one that that there was a breach of ethical obligation to

[00:15:36] Speaker 01:
effectively represent your client by timely filing a petition for review, but then you still have to show that as a result of that ineffective assistance, you were prejudiced.

[00:15:47] Speaker 01:
But in this case, the second, in immigration cases, it means you've got to show a plausible ground for relief.

[00:15:56] Speaker 05:
That's correct.

[00:15:58] Speaker 05:
The petitioner does need to make that showing.

[00:16:03] Speaker 05:
And in this case, the petitioner did not even attempt to make that showing or incorrectly claimed that the plausible grounds for relief was that he missed his opportunity to file a petition for review.

[00:16:22] Speaker 04:
Isn't this situation a little bit different, though?

[00:16:24] Speaker 04:
Because the ineffective assistance of counsel has to deal with failure to file a petition for review in the United States Court of Appeal.

[00:16:33] Speaker 04:
In other words, the ineffectiveness deprived the petition of the opportunity to receive judicial review.

[00:16:40] Speaker 05:
Yes, Your Honor.

[00:16:41] Speaker 05:
I'm sorry.

[00:16:42] Speaker 05:
Could you?

[00:16:43] Speaker 04:
I'm sorry.

[00:16:43] Speaker 04:
Isn't that different?

[00:16:45] Speaker 04:
Isn't that a different?

[00:16:47] Speaker 04:
I mean, isn't that, our case law just seems to focus on that.

[00:16:49] Speaker 04:
The failure to file a key document is what triggers the real presumption.

[00:16:57] Speaker 05:
Like an appeal.

[00:16:59] Speaker 04:
Yeah, like an appeal, like this case, like an appeal.

[00:17:01] Speaker 04:
They didn't file a petition for review on time, so we dismissed it when they filed it late and they were deprived of judicial review.

[00:17:10] Speaker 04:
Isn't that really what the concern is?

[00:17:12] Speaker 04:
Yes, yes, that's.

[00:17:14] Speaker 02:
But I guess our cases still require some plausible relief, even if you had filed it correctly.

[00:17:23] Speaker 05:
Right, Your Honor.

[00:17:23] Speaker 05:
So yes, the petitioner wants that review, wants the judicial review, but he has to show why it matters that his attorney missed the deadline for the petition for review.

[00:17:37] Speaker 04:
Well, in our case, we presume that it matters.

[00:17:43] Speaker 04:
Why doesn't the government come back with an argument and say, hey, there's nothing here?

[00:17:51] Speaker 05:
You presume that it matters to a certain extent.

[00:17:55] Speaker 04:
Or if the board had said in denying the motion, look, we have examined the record thoroughly.

[00:18:01] Speaker 04:
And there's no, there's nothing here.

[00:18:03] Speaker 05:
Well, the board, I don't think the board was required to examine the record again in denying the motion to reopen because it already.

[00:18:13] Speaker 04:
Obviously that's what, you know, I think there's something to what you just said there because they just said he didn't do anything and therefore.

[00:18:20] Speaker 04:
You know?

[00:18:21] Speaker 01:
Denied.

[00:18:21] Speaker 01:
Motion denied.

[00:18:23] Speaker 01:
Am I reading this?

[00:18:24] Speaker 01:
I'm looking at the BIA decision, and paragraph three says that the respondent argues that he experienced past persecution in Mexico and has a well-founded fear of persecution on account of his membership in a particular social group.

[00:18:41] Speaker 01:
composed of witness to criminal activity, we need not address whether the respondent testified credibly and sufficiently corroborate his testimony inasmuch as he did not establish membership in a cognizable particular social group."

[00:18:55] Speaker 01:
That is the plausible claim to the extent he alleges he has one, is it not?

[00:19:02] Speaker 01:
The board did look at the merits of his claimed entitlement to relief and said, we just don't see it.

[00:19:10] Speaker 05:
Right.

[00:19:10] Speaker 05:
In the underlying appeal, the board rejected his claim.

[00:19:14] Speaker 01:
So they don't reject it just because his attorney missed the appeal.

[00:19:18] Speaker 05:
Right.

[00:19:20] Speaker 05:
In the underlying appeal before the board, the board addressed all the merits on asylum and protection under the Convention Against Torture.

[00:19:31] Speaker 05:
and denied it on the merits, both forms of those applications.

[00:19:36] Speaker 04:
But he could argue in front of us that the board's decision was wrong, correct?

[00:19:41] Speaker 05:
But he hasn't.

[00:19:42] Speaker 04:
Well, that's the problem.

[00:19:43] Speaker 05:
He hasn't argued anything about the board's decision.

[00:19:46] Speaker 04:
I thought he had a presumption.

[00:19:50] Speaker 05:
Well, I think the presumption is that his attorney caused this error

[00:20:00] Speaker 05:
And so, but he still has to show that getting the judicial review would have mattered.

[00:20:08] Speaker 05:
And he hasn't.

[00:20:10] Speaker 04:
None of it makes sense to me.

[00:20:11] Speaker 05:
I understand that.

[00:20:14] Speaker 04:
Because the prevention doesn't seem to be doing any work.

[00:20:16] Speaker 04:
That's what I find frustrating.

[00:20:19] Speaker 05:
Right.

[00:20:19] Speaker 05:
Yeah, I think some of the cases are, you know, the rebuttal is a bit unclear, but Rojas does say that the petitioner has to show plausible answers.

[00:20:32] Speaker 04:
There's a MemDISPO.

[00:20:33] Speaker 04:
I forget what it was.

[00:20:34] Speaker 04:
I think it was Mendoza versus Ashcroft, where they did basically apply the presumption.

[00:20:42] Speaker 04:
It was no rebuttal by the government, and they just let the case go forward.

[00:20:49] Speaker 05:
Right.

[00:20:50] Speaker 04:
I mean, it's not a presidential case, but it's... Mendoza.

[00:20:56] Speaker 05:
I don't think I'm familiar with that one.

[00:20:57] Speaker 02:
I'm shocked you don't read all of our Mendispos.

[00:21:00] Speaker 05:
I have read a few.

[00:21:04] Speaker 02:
Just to be clear, that was facetious.

[00:21:06] Speaker 02:
Right.

[00:21:08] Speaker 05:
I have read some though, including Carrillo, I think was a recent case from 2024 where the court

[00:21:16] Speaker 05:
denied a motion to reissue in this particular circumstance.

[00:21:21] Speaker 02:
So I asked opposing counsel, getting off of this issue of presumption, are there any cases, any examples, I guess Judge Paez was throwing out this MemDISPO, are there others where we have not looked, we've just relied on the presumption and we have not looked to the plausibility of the claim?

[00:21:40] Speaker 02:
We couldn't hear any from opposing counsel, so I'm wondering if you

[00:21:43] Speaker 02:
With your full candidate of the court might point us in that direction.

[00:21:47] Speaker 05:
I don't believe I've come across any case like that Okay What about other circuits?

[00:21:54] Speaker 02:
I now we're going way afield But but do how do other circuits apply this do they apply a presumption?

[00:22:01] Speaker 02:
Are you aware of any circuits or any cases outside of our court that apply a presumption but then don't require a

[00:22:08] Speaker 02:
Either don't apply a presumption or apply a presumption and don't require plausibility.

[00:22:16] Speaker 05:
Well, I haven't looked at all of the other circuits, but I did cite a second circuit.

[00:22:27] Speaker 05:
unpublished case where the court upheld the board's decision in denying a motion to reissue where the petitioner made no argument that a petition for review had any likelihood of success.

[00:22:41] Speaker 02:
Is that the Tarwati case?

[00:22:44] Speaker 02:
No, this is when... We've got a lot of memdispos out there then.

[00:22:48] Speaker 05:
Wen Fang Shi, it's an unpublished second circuit case.

[00:22:53] Speaker 01:
But isn't the answer to Judge Paez's question about what work is the presumption doing?

[00:23:02] Speaker 01:
The mere missing of the deadline is ineffective assistance of counsel as malpractice from an insurance standpoint for an attorney to miss a filing deadline that deprives his or her client of the right to appeal.

[00:23:18] Speaker 01:
So the presumption of ineffective assistance is then triggered by missing the deadline.

[00:23:24] Speaker 01:
But our cases seem to say, and you also look at whether or not there were plausible grounds for relief.

[00:23:33] Speaker 01:
Right, Your Honor.

[00:23:34] Speaker 01:
In order to show that there was prejudice.

[00:23:37] Speaker 01:
So I think the presumption does have some work to do.

[00:23:41] Speaker 01:
It avoids the need to call witnesses, expert witnesses, to say, hey, it's malpractice to miss a filing deadline.

[00:23:51] Speaker 05:
Right.

[00:23:51] Speaker 05:
It makes that part easy to determine.

[00:23:55] Speaker 01:
It establishes that there was ineffective assistance of counsel.

[00:24:00] Speaker 05:
Correct, Your Honor.

[00:24:01] Speaker 05:
OK.

[00:24:01] Speaker 05:
And so the noncitizens, their burden is to show that, OK,

[00:24:09] Speaker 05:
We presume this, that there was ineffective assistance of counsel, but they have to explain why it matters that they missed the opportunity to obtain judicial review or an appeal before the board.

[00:24:26] Speaker 05:
And in this case, the petitioner made no effort whatsoever.

[00:24:30] Speaker 05:
So it's not clear, or based on this record, he wouldn't have been able to show that he's eligible for asylum because

[00:24:40] Speaker 05:
The board and the immigration judge applied Ninth Circuit case law stating that his Particular social group was not cognizant cognizable There's what about that?

[00:24:54] Speaker 02:
I mean so Judge pious suggested that it's the government's responsibility to come in and rebut the presumption and

[00:25:02] Speaker 02:
But could the board also rip up the presumption?

[00:25:04] Speaker 02:
I mean, and maybe that's what Judge Tallman was suggesting by reading that, that the board said, OK, maybe the board says, well, we'll give you the presumption.

[00:25:13] Speaker 02:
But we've looked at this and you don't have any.

[00:25:17] Speaker 02:
There's no plausible claim here.

[00:25:20] Speaker 02:
So is that a rebuttal of the presumption?

[00:25:25] Speaker 05:
It seems as though that's what the board decided here.

[00:25:30] Speaker 01:
They could just say it.

[00:25:31] Speaker 01:
Rebutted the presumption or that there was just no prejudice?

[00:25:34] Speaker 01:
I mean, that's the second prong of the ineffective assistance of counsel analysis in criminal cases.

[00:25:42] Speaker 05:
Well, I think the prejudice and the plausible grounds for relief are just wrapped up together.

[00:25:48] Speaker 01:
That is the basis for the conclusion that there was no prejudice, even though his counsel was ineffective by not timely filing an appellate brief or a notice of appeal.

[00:25:59] Speaker 05:
Right, Your Honor.

[00:26:01] Speaker 05:
So he was not able to show prejudice in this case because he didn't explain why the underlying case, if there were any errors in the case or pointing to any particular evidence like

[00:26:17] Speaker 05:
evidence that his particular social group was socially distinct.

[00:26:22] Speaker 05:
That's something that maybe he could have done or pointed to some kind of legal error maybe in the board's decision.

[00:26:31] Speaker 05:
But he didn't do any of that and so it's not clear why he would want to go forward and what he would

[00:26:41] Speaker 05:
what he would offer as far as any arguments or evidence about his claims for asylum and withholding and protection under the convention against torture.

[00:26:56] Speaker 05:
The petitioner clearly did not meet his burden of showing plausible grounds for relief.

[00:27:02] Speaker 05:
And so he failed to show prejudice.

[00:27:04] Speaker 05:
And in the end, the board did not abuse its discretion because the decision did not show any arbitrariness or irrationality.

[00:27:16] Speaker 05:
The board acted well within its discretion in denying this motion to reopen.

[00:27:23] Speaker 03:
Thank you, Council.

[00:27:24] Speaker 05:
Thank you.

[00:27:25] Speaker 03:
We'll give you time for rebuttal.

[00:27:37] Speaker 03:
Are you ready for rebuttal?

[00:27:39] Speaker 00:
I am.

[00:27:40] Speaker 03:
Okay, go ahead.

[00:27:41] Speaker 00:
The court's recitation of the board's January 2022 decision is correct.

[00:27:47] Speaker 00:
They considered the merits of the case in the underlying case, and they denied they dismissed the appeal.

[00:27:54] Speaker 00:
Based on the standard that the respondent in this case is asking the court to apply, every case that the board denies

[00:28:02] Speaker 00:
presumptively cannot show plausible grounds for relief because it was denied.

[00:28:05] Speaker 00:
That's what the purpose of petitioning for review is.

[00:28:09] Speaker 00:
I think the major issue here is that we don't have any regulations on point on the standards for motions to reissue.

[00:28:16] Speaker 00:
And it's been left to

[00:28:18] Speaker 00:
to the courts to create that standard.

[00:28:20] Speaker 00:
And I'm asking the court today to recognize that the focus when dealing with a motion to reopen in the context of a motion to reissue is on procedural fairness, not on the merits of the underlying case.

[00:28:34] Speaker 00:
And in that unpublished Second Circuit case that the government cites,

[00:28:38] Speaker 00:
It is on a motion to reissue, but there's no analysis, no discussion of Losada.

[00:28:43] Speaker 00:
The court only held that there was no actual prejudice established.

[00:28:47] Speaker 01:
So... Counsel, how do you square that argument with our traditional ineffective assistance of counsel case law?

[00:28:55] Speaker 01:
I mean, in a habeas petition, we don't grant a writ of habeas corpus to an inmate who may have suffered ineffective assistance of counsel for his lawyer missing a deadline, but he still has to show that he was prejudiced.

[00:29:09] Speaker 01:
And the prejudice usually is in the form of, I had evidence here that if it had been properly presented to the jury, would have raised reasonable doubt or perhaps resulted in an opposite conclusion to my guilty conviction.

[00:29:25] Speaker 01:
So why should that be any different in the immigration context?

[00:29:30] Speaker 00:
I don't think it's different in the immigration context.

[00:29:33] Speaker 00:
I think it's different in the context of a motion to reissue.

[00:29:36] Speaker 00:
For example,

[00:29:37] Speaker 00:
In Flores versus Barr, 212C relief was denied, and the petitioner in that case filed a motion to reopen alleging ineffective assistance of counsel based on several deficiencies in the counsel's performance.

[00:29:51] Speaker 00:
For example, failure to apply for protection-based relief, challenge removability, failure to further develop the hardship.

[00:29:59] Speaker 00:
On that basis, the logical conclusion is to require a showing of likelihood of success on the merits and plausible grounds for relief based on what you're seeking.

[00:30:09] Speaker 00:
But here, none of that is being sought.

[00:30:11] Speaker 00:
It's simply to restart the clock for missing a deadline.

[00:30:15] Speaker 00:
And we don't have any case law or regulation on point, and that's what I'm asking the court to do here, is to create that standard in the context of motions to reissue, because it is substantially different

[00:30:26] Speaker 00:
an ineffective assistance of counsel in all the other cases before this court.

[00:30:31] Speaker 03:
Okay.

[00:30:31] Speaker 03:
I think we have your argument.

[00:30:33] Speaker 02:
We appreciate both counsel's argument in this case and the case is now submitted.