[00:00:02] Speaker 02:
Good morning, your honors.

[00:00:04] Speaker 02:
May it please the court.

[00:00:04] Speaker 02:
My name is Sean Perdomo, and I represent the petitioner in this case.

[00:00:08] Speaker 02:
I would like to reserve three minutes for rebuttal.

[00:00:11] Speaker 02:
This case presents two issues, your honor.

[00:00:14] Speaker 02:
Those are exhaustion and whether the BIA abused its discretion by failing to consider intervening, binding precedent, and governing regulations when adjudicating her appeal.

[00:00:25] Speaker 02:
The main issue with the exhaustion argument is that the BIA was on notice.

[00:00:30] Speaker 02:
Within the notice of appeal,

[00:00:32] Speaker 02:
that there was a statutory defect within the notice to appear sufficient that it could correct its own errors.

[00:00:41] Speaker 02:
At the time that the BIA issued its decision in 2025, there were subsequent board precedents from the issuance of the notice of appeal in 2021 that addressed what the proper remedy would be to be applied by the immigration judge had this been brought to the immigration judge's attention.

[00:01:00] Speaker 02:
in the government's briefing on appeal here or before the Board of Immigration Appeals, did it raise the issue of exhaustion?

[00:01:10] Speaker 02:
This is important because as the Second Circuit has held, which is persuasive precedent here in Ojo versus Garland, when the BIA addresses an issue that was not addressed within the petitioner's brief nor raised by the government, the issue is considered exhausted.

[00:01:29] Speaker 02:
because the BIA has addressed the issue and had an opportunity to correct itself.

[00:01:33] Speaker 04:
I mean, you're referring to this issue of whether the notice to appear was statutorily compliant?

[00:01:42] Speaker 02:
Yes, Your Honor.

[00:01:43] Speaker 02:
The issue of whether it was statutorily compliant was addressed by the Board of Immigration Appeals.

[00:01:48] Speaker 02:
So it was exhausted.

[00:01:50] Speaker 02:
So this court can review the Board of Immigration Appeals decision.

[00:01:54] Speaker 02:
Whether it abuses discretion is a secondary issue.

[00:01:57] Speaker 02:
And it abuses discretion by failing to apply its own precedent in matter of Fernandez.

[00:02:02] Speaker 04:
So how did the BIA err then?

[00:02:03] Speaker 04:
I mean, they did address the jurisdictional aspect of your argument.

[00:02:09] Speaker 04:
And that is exhausted, but that argument fails under precedent.

[00:02:13] Speaker 04:
So what else do you have on this?

[00:02:15] Speaker 02:
Well, we have the claims processing rule violation, your honor, as this court has elucidated in United States versus Bastid Hernandez, that this is purely a claims processing issue.

[00:02:24] Speaker 02:
These precedent came out after the notice of appeal having been filed in 2021 when the law was still in flux.

[00:02:31] Speaker 02:
At the time that the notice of appeal was filed, it was unclear whether or not the violation was a jurisdictional violation or a claims processing issue violation.

[00:02:40] Speaker 02:
In Sawate Oriana, which is a very closely related case to this,

[00:02:44] Speaker 02:
There was enough information there to put the BIA on notice that there was a statutory defect in the notice to appear such that it had to remedy it.

[00:02:52] Speaker 02:
Just like in this case, there was no, the BIA did not address it, nor did the immigration judge, was a remanded to human.

[00:02:59] Speaker 04:
And I think the issue the government would say is, you know, well, they didn't address it because it wasn't really put forward.

[00:03:05] Speaker 04:
What was put forward was a jurisdictional theory, and they did address that.

[00:03:09] Speaker 02:
Correct, Your Honor.

[00:03:10] Speaker 02:
That is correct.

[00:03:11] Speaker 02:
However, within

[00:03:13] Speaker 02:
the brief submitted to the BIA, there was not only an allegation that it violated the statutory definition of a notice to appear having to affect its jurisdiction, but it was also brought up in the context of the one-year bar for the asylum application.

[00:03:27] Speaker 02:
In the brief that was submitted to the BIA, it was asserted that because of the statutory defect in the notice to appear, it affected

[00:03:37] Speaker 02:
the petitioner's ability to file her asylum application within one year of her arrival to the United States.

[00:03:43] Speaker 02:
So it wasn't just raised as a jurisdictional argument.

[00:03:47] Speaker 04:
Where is that discussed?

[00:03:48] Speaker 04:
In the BIA brief?

[00:03:49] Speaker 02:
Yes, that is discussed in the BIA brief.

[00:03:52] Speaker 02:
And that, Your Honor, is located at page 18 of the record.

[00:03:56] Speaker 02:
And it's at the top of the page.

[00:03:58] Speaker 02:
Although it doesn't have its own separate heading, it is mentioned otherwise to show how it affected the proceedings below.

[00:04:08] Speaker 02:
And this is important because just as in Cruz, I'm sorry, just as in Sawate Ariana, which is closely related to this case, what was raised in the briefing below was that there was a deficiency in the notice to appear in that it violated the statute.

[00:04:23] Speaker 02:
And they said in that case, this court said that that was sufficient to put the BIA on notice of the error and to correct it.

[00:04:30] Speaker 02:
And here, moving on to the abuse of discretion argument,

[00:04:35] Speaker 02:
The BIA abused this discretion because it acted arbitrarily, capriciously, and contrary to law by ignoring its own precedent in this case, such as the matter of Fernandez, that addresses whether a potential remedy could be addressed by violation of the claims processing rule violation.

[00:04:51] Speaker 04:
What do you hope to get out of this?

[00:04:54] Speaker 04:
If it gets remanded on this basis, what do you think you can achieve?

[00:04:59] Speaker 02:
That's for the BIA to decide, Your Honor.

[00:05:01] Speaker 02:
They don't have any precedent, particularly on this, on what the remedy would be in this particular instance, because it's a case-by-case evaluation that's left to the discretion of the immigration judge.

[00:05:11] Speaker 02:
And when the immigration judge determines what remedy is appropriate, it determines the nature of the violation in relation to

[00:05:18] Speaker 04:
But what do you think is even the range of possibility?

[00:05:20] Speaker 04:
Because if the big argument people were making was, well, this deprived the IJ of jurisdiction, well, if true, that would be significant.

[00:05:28] Speaker 04:
But if it's just claims processing, what do you think you can reasonably obtain as a result of that claim violation?

[00:05:35] Speaker 02:
Well, the immigration judge could apply HCFR Section 1003.18, paragraph D, and it could consider termination on a discretionary grounds or is mandatory.

[00:05:46] Speaker 02:
So there's elements here that the immigration judge would go through to determine whether or not to terminate the case.

[00:05:53] Speaker 02:
But aside from termination, if this case is remanded back to the immigration judge, there were also assertions raised in the notice of appeal that there were alternate forms of relief that were available to the petitioner that she could take advantage of, such as pre-conclusion voluntary departure or post-hearing voluntary departure.

[00:06:09] Speaker 02:
In six days, it's of note that she will be prima facially eligible for cancellation of removal

[00:06:15] Speaker 02:
for non-permanent residents because in six days from today's date, since the top time rule was not triggered, she will have the requisite 10 years of continuous physical presence.

[00:06:24] Speaker 02:
So on remand, Your Honor, to answer your question, there's possible relief that's available to her right now, as well as within six days from now, if it were to be remanded back.

[00:06:35] Speaker 02:
And also the immigration judge can consider whether or not termination is appropriate under 8 CFR section 1003.18 paragraph D. It's worth noting, Your Honor, that when the BIA made its decision in 2025, this regulation existed.

[00:06:50] Speaker 02:
It was enacted as a final rule in 2024.

[00:06:52] Speaker 02:
It did not at all address whether or not the claims processing rule violation fit within the immigration judge's authority to terminate the case.

[00:07:00] Speaker 02:
That's one of the assertions that we're making that

[00:07:03] Speaker 02:
The BIA abuses discretion in not considering the regulation as well as matter Fernandez and matter of RTP, which came out this year in 2025, describing what remedies the immigration judge himself or herself could apply by writing in the actual time and date of the hearing.

[00:07:21] Speaker 02:
So there are a range of things that the immigration judge as well as the BIA can do if this case is remanded back, Your Honor.

[00:07:28] Speaker 02:
It's worth noting also that under matter Fernandez, there doesn't need to be a showing of prejudice in order to have a remedy under the claims processing rule violations.

[00:07:38] Speaker 02:
And that is because it is mandatory.

[00:07:40] Speaker 02:
The word shall within the regulation that describes when the immigration judge's jurisdiction shall commence upon the filing of a notice to appear in the court under the regulations.

[00:07:52] Speaker 02:
So those are the two arguments that we're making here, Your Honor.

[00:07:57] Speaker 02:
There are no further questions.

[00:07:58] Speaker 02:
I'd like to reserve the balance of my time for rebuttal.

[00:08:01] Speaker 02:
Sure.

[00:08:02] Speaker 02:
Thank you.

[00:08:15] Speaker 04:
Mr. Gannon, good morning.

[00:08:18] Speaker 01:
May it please the court.

[00:08:19] Speaker 01:
Good morning.

[00:08:19] Speaker 01:
Peter Gannon for the Attorney General.

[00:08:22] Speaker 01:
Despite being able to allege a claim processing error regarding her notice to appear in five years of proceedings before an immigration judge and another four years before the board, all with the same counsel who still represent her, and during which the Supreme Court, this court, and the board issued numerous decisions about NTAs, Pitcher did not make any claims processing argument regarding her NTA to either the immigration judge or the board.

[00:08:46] Speaker 01:
Therefore, the board did not abuse its discretion in addressing only the narrow jurisdictional argument the petitioner did present to it, and Umana Escobar, not Swate Oriana, instructs the court on how to dispose of any claims processing challenge the NTA presented here, to deny it as unexhausted.

[00:09:02] Speaker 01:
Specifically to address the issue in the petitioner's brief to the board that the Petitioner's Council raised here regarding the Mendez-Rojas settlement, it is true that she

[00:09:13] Speaker 01:
indicated in that portion of her argument that the NTA lacked a date and time.

[00:09:19] Speaker 01:
But that allegation is not enough to have exhausted what he just presented as possible remedies for her.

[00:09:27] Speaker 01:
It certainly would have, you know, presented something regarding the one-year filing bar, but the board did not openly rely on that issue in deciding her case.

[00:09:36] Speaker 01:
And so there is no reason that that allegation in her brief should change the exhaustion determination.

[00:09:43] Speaker 04:
How about SWATA?

[00:09:45] Speaker 04:
I mean, the argument is made that this is close or analogous to SWATA in terms of what was said in the notice of appeal to the BIA.

[00:09:54] Speaker 04:
And so for that reason, the BIA just should have addressed it.

[00:10:00] Speaker 01:
Certainly, Your Honor, and this case is just fundamentally different from Suate.

[00:10:03] Speaker 01:
In Suate, Oriana, the petitioner there filed a motion to reconsider with the immigration judge alleging a statutory defect in the NTA that allegedly resulted in a lack of jurisdiction.

[00:10:15] Speaker 01:
After the immigration judge denied that motion, the petitioner took it to the board and again, alleged a statutorily deficient NTA causing a lack of jurisdiction.

[00:10:24] Speaker 03:
Counsel, can you tell me why specifically the language is

[00:10:29] Speaker 03:
it shouldn't be treated by us as basically the same, because in Swate, they said, as a result of the statutory deficiency, they lack jurisdiction.

[00:10:40] Speaker 03:
And in Krusagaran, it said, based on that, that they are lacking jurisdiction.

[00:10:50] Speaker 03:
Why isn't it the same language, and we should treat it the same as they did in Swate?

[00:10:59] Speaker 01:
Certainly, Your Honor, the language does basically appear similar, but there's a lot of context to that language that speaks to the issue.

[00:11:07] Speaker 01:
In Swatio Oriana, again, it was presented to the immigration judge.

[00:11:10] Speaker 01:
It was a motion that was followed promptly after Pereira, so jurisdiction was the reasonable argument to be made, and it was presented then to the board the same way after having been ruled on by the immigration judge.

[00:11:25] Speaker 01:
The petitioner here made no such challenge at any point in front of the immigration judge.

[00:11:30] Speaker 01:
And so like in Umana-Escobar, the only challenge she could make to the board sounded in jurisdiction.

[00:11:37] Speaker 03:
Why shouldn't we just send it to the BIA and at least have them be required to consider whether the petitioner raised the claim in the first instance and not this court?

[00:11:52] Speaker 01:
I think, Your Honor,

[00:11:54] Speaker 01:
If you think Suate Oriana and the language there is enough to do that, that means that the panel in Suate Oriana overruled Omana Escobar, which are the facts of this case, more or less.

[00:12:05] Speaker 01:
They're actually less favorable to this petitioner because she had a lot of case law while she was before the board and immigration judge.

[00:12:17] Speaker 01:
For simply the similarity of the language to make this Suate Oriana would

[00:12:22] Speaker 01:
would overrule the holding in Mount Escobar, which the panel there couldn't have done.

[00:12:28] Speaker 01:
Because if you look to Mount Escobar, that petitioner, like this one, didn't challenge it from the immigration judge, and so raised as a jurisdictional issue to the board that the EOAR lacked jurisdiction over the proceedings.

[00:12:42] Speaker 01:
And the board solely disposed of that jurisdictional issue, just like it did here.

[00:12:46] Speaker 01:
In Swat to Oriana, the board, besides jurisdiction, also tried to say, well, the NTA plus the Notice of Hearing got us to a statuary-compliant NTA, so on the merits, it's not an issue.

[00:13:00] Speaker 01:
That's not what the board did here.

[00:13:02] Speaker 01:
The board didn't look to anything about the statuary deficiencies of the NTA.

[00:13:06] Speaker 01:
The board solely ruled on the jurisdictional issue that she presented, which was explicitly in the NOA,

[00:13:12] Speaker 01:
condition on Niz Chavez impacting this court and the board's precedent, one of which was the board decision on Rosales Vargas, which said that it was a claim processing rule.

[00:13:22] Speaker 01:
That decision issued in January of 2020, more than a year before her March 2021 merits hearing.

[00:13:27] Speaker 01:
She and her counsel were on notice that if they wanted to make any challenge, they should do it as a claims processing rule at any point prior to her individual hearing.

[00:13:37] Speaker 01:
They declined to do so.

[00:13:39] Speaker 01:
which again means that the only issue she creates to the board was jurisdiction.

[00:13:44] Speaker 01:
It was the same, you know, last-ditch effort as in Mana Escobar, and the board disposed of it the same way, and therefore, any clinch brought.

[00:13:53] Speaker 04:
We need to decide if it was exhausted or not, because if it was not exhausted and the government has objected, then it's mandatory that we have to

[00:14:02] Speaker 04:
We have to reject it.

[00:14:04] Speaker 04:
But if it was exhausted, then it was exhausted.

[00:14:06] Speaker 04:
But I don't see, I'm wondering from your perspective, is it possible to essentially send it back to the BIA to decide whether it was exhausted?

[00:14:15] Speaker 01:
No, Your Honor, exhaustion is an issue for this court to decide.

[00:14:18] Speaker 01:
And while I believe the respondent's brief indicated that Swate Oriana was distinguishable and that, therefore, the issue is not exhausted, to the extent that this council says that we're raising it, I will now clearly object that this issue is not exhausted before the board.

[00:14:34] Speaker 04:
What is your perspective on what a petitioner like this in this situation could achieve before the agency on the claims processing violation, even assuming it was preserved?

[00:14:49] Speaker 01:
It would be helpful to think of it starting from when she was in front of the immigration judge.

[00:14:54] Speaker 01:
She appeared with an attorney in April, 2018 and concerned service at the NTA and admitted conceded charges, the IJ sustained removability.

[00:15:04] Speaker 01:
That summer, Pereira was decided.

[00:15:06] Speaker 01:
She could have gone back to the judge and said, at that point, there's a Pereira issue.

[00:15:11] Speaker 01:
In January, 2020, like I said, Rosales Vargas came out from the board.

[00:15:15] Speaker 04:
What could she obtain?

[00:15:17] Speaker 04:
What kind of relief could she obtain?

[00:15:20] Speaker 01:
Theoretically, at that point, the immigration judge could have figured out whether something was appropriate.

[00:15:24] Speaker 01:
Certainly, under the board's intervening case law, the most appropriate thing would probably just be to fix the notice of hearing and proceed with her removal proceedings.

[00:15:33] Speaker 01:
I don't think anything else would be appropriate, but like she says, that would have had to have been decided on a case-by-case basis, and she never presented it to the immigration judge.

[00:15:42] Speaker 01:
While her appeal was appending before the board and further decisions were issued, including this court's investigating Hernandez, she could have filed a motion of remand saying, look, there's been development on this issue.

[00:15:54] Speaker 01:
I should be allowed to explain to a judge why there was a claims processing violation.

[00:15:57] Speaker 01:
She never did so.

[00:15:59] Speaker 01:
She only raised the jurisdictional bar in her notice of appeal, which she later abandoned in her brief to the board, because by that point, this court had said that Niz Chavez didn't change the issue.

[00:16:11] Speaker 01:
So for now, her to try to do something else to say, oh, well, even though I didn't exhaust this before the board, there's something I could have done is foreclose about the statute and exhaustion.

[00:16:21] Speaker 00:
But in Suarte, Oriano, the notice of appeal only raised the jurisdictional issues.

[00:16:29] Speaker 01:
That's correct, Your Honor.

[00:16:31] Speaker 00:
However, it did so... Let me quote.

[00:16:33] Speaker 00:
The issue presented is whether the holding by the Supreme Court... Under the holding by the Supreme Court, the IJA was required to terminate proceedings for lack of subject matter jurisdiction.

[00:16:42] Speaker 00:
It doesn't raise the claims process.

[00:16:45] Speaker 01:
You're absolutely right, Your Honor.

[00:16:46] Speaker 01:
Just like Judge Mendoza pointed out, the language is facially similar.

[00:16:50] Speaker 01:
I believe the context of how the issue had been presented to the immigration judge and was then renewed before the board, as well as intervening case law about how it is, in fact, a claims processing rule, led to the court's decision in spot two, Oriana.

[00:17:07] Speaker 01:
Again, if

[00:17:09] Speaker 01:
just the language was enough to get to exhausting the issue, then Imana Escobar was wrong.

[00:17:17] Speaker 01:
Because Imana Escobar was the same as this case where the petitioner, in years of litigation for an immigration judge, said nothing about her NTA and then raised solely a jurisdictional argument for the board because that was the only issue that could be raised to the board.

[00:17:32] Speaker 01:
I absolutely agree.

[00:17:33] Speaker 01:
The language is spatially similar, but I think the language itself

[00:17:37] Speaker 00:
But for saying, it's rather difficult to write a decision saying, this case is different or distinguishable from Suarte-Ariano because of context.

[00:17:52] Speaker 00:
That doesn't give any future panel any guidance on how to handle this issue.

[00:17:59] Speaker 01:
And I think, Your Honor, you can look to Imana Escobar and the facts of this case to resolve any difference between Imana Escobar and Swate Oriana.

[00:18:07] Speaker 01:
Again, if Swate Oriana simply held that language gets you there, then Imana Escobar was overruled and it couldn't have meant that.

[00:18:16] Speaker 01:
I think Swate Oriana really did hinge on that context.

[00:18:24] Speaker 01:
There are no further questions your honors again the issue was not exhausted before the board despite her having plenty of opportunity to do so Umana Escobar controls not swat area.

[00:18:34] Speaker 04:
Okay.

[00:18:34] Speaker 02:
Thank you Thank your honor just a few brief points I'd like to point the court to page 630 of Swat a Oriana in there it says on this record

[00:18:50] Speaker 02:
we find that Suate Ariana provided the agency an adequate opportunity to pass on the issue because she exhausted it in that it was statutorily deficient.

[00:19:00] Speaker 02:
She had raised the issue with regard to the NTA being statutorily deficient because she said it was not a notice to appear under Section 1229, paragraph A, paragraph 1.

[00:19:13] Speaker 02:
So the way that I read Suate Ariana is that there's sufficient information for the BIA to determine

[00:19:19] Speaker 02:
I'm trying to point out that there is an issue with this notice to appear, either because it violates the regulations or because it violates the statute, that there has to be a remedy for that.

[00:19:30] Speaker 02:
The BIA simply chose to focus on the jurisdictional characterization in the notice of appeal to dispose of the issue.

[00:19:38] Speaker 04:
Well, what about the fact that, I mean, in Swate there was a whole brief that

[00:19:41] Speaker 04:
got into all these issues and the court in Swate discussed that, that it wasn't just a notice of appeal, it was all these other things and it was extensively argued according to the panel decision in the briefing.

[00:19:56] Speaker 02:
I understand that, Your Honor, and the Ninth Circuit, because I've briefed significantly on this issue, has not come down definitively like the Second Circuit has in a case called Ojo v. Garland, 25 F.4, 152 at 160, and that is where the Board of Immigration Appeals

[00:20:11] Speaker 02:
addresses an issue, whether or not it's raised by the petitioner below or the government, the issue is considered exhausted because the purpose of the rule is for the BIA to correct its own errors, which here it did.

[00:20:23] Speaker 02:
So the issue under the Second Circuit would at least be that it was exhausted because the BIA raised it on its own, regardless of whether or not there was a brief that was raised.

[00:20:30] Speaker 04:
But it raised what on its own, right?

[00:20:31] Speaker 04:
I mean, that's the problem is that the BIA clearly conceived of this as a jurisdictional argument.

[00:20:38] Speaker 04:
That's probably why it addressed it.

[00:20:40] Speaker 04:
at all when it wasn't even raised in the briefing because it viewed it as a matter of its own jurisdiction.

[00:20:44] Speaker 04:
The court doesn't usually go out and talk about something that's not raised in the briefs unless it's jurisdictional.

[00:20:50] Speaker 04:
That seems to be likely what happened here and so it's tough to fault them for having raised it and responded to what seems apparent on the notice of appeal and then to say just from that they didn't reach something else that was not apparent.

[00:21:04] Speaker 04:
Your Honor, it looks like I've run out of time to answer the question.

[00:21:07] Speaker 02:
Well, to answer your question very quickly, Your Honor, well, the other part of this is whether or not the BIA have used this discretion, where it has a body of case law that addresses now what to do in this instance to provide a remedy.

[00:21:20] Speaker 02:
That is where there is an issue.

[00:21:22] Speaker 02:
So the issue was brought to the BIA's attention at the time the notice of appeal was filed in 2021.

[00:21:26] Speaker 02:
The law was not clear.

[00:21:28] Speaker 02:
There were several cases from this court

[00:21:30] Speaker 02:
as well as from their BIA that addressed what would happen if there was a regulatory violation, whether that impacted jurisdiction, given this court's decision in Karangithi.

[00:21:41] Speaker 02:
And then United States versus Bastid Hernandez, this court clarified that a violation of the statute did not affect jurisdiction.

[00:21:48] Speaker 02:
While all of this litigation was occurring, whether or not the regulation was violated or the statute was violated, how that would affect the outcome of the proceedings, that was all in flux.

[00:21:57] Speaker 02:
And the BIA was on notice of this.

[00:21:59] Speaker 02:
They knew of all of this case law, but they refused to apply it in 2025 by merely addressing the jurisdictional argument as it was raised in 2021 before all of these cases came out.

[00:22:10] Speaker 02:
And with that, Your Honor, unless you have any further questions, I submit.

[00:22:14] Speaker 02:
Thank you very much.

[00:22:14] Speaker 02:
We thank both counsel for the briefing and argument.

[00:22:17] Speaker 04:
This case is submitted.