[00:00:00] Speaker 03:
All right, we're ready again, Mr. Serrato.

[00:00:08] Speaker 00:
Your honors, again, this is a similar case where I unfortunately missed the email that was sent to me.

[00:00:13] Speaker 00:
And because of that, I was not able to file the brief in this case with the BIA.

[00:00:19] Speaker 02:
Counsel, did you inform Ms.

[00:00:20] Speaker 02:
Fuentes Valdista of her rights to report you to the State Board?

[00:00:25] Speaker 00:
I did.

[00:00:26] Speaker 00:
I did.

[00:00:26] Speaker 02:
And she chose not to?

[00:00:28] Speaker 00:
Shows not to okay.

[00:00:29] Speaker 00:
I offer.

[00:00:30] Speaker 02:
I'm sorry and did you offer her the opportunity to Put a declaration as to why she didn't want to report you to the state bar I mean this is huge right she's either staying in the country or she's out.

[00:00:41] Speaker 02:
Yeah I don't know why she would be so benevolent.

[00:00:44] Speaker 00:
You know she I I explained her that you know I was I made a mistake here you know and I want to take care of it make sure that I can do it all the work without charge and

[00:00:53] Speaker 00:
Because if you go somewhere else, you're going to have to pay money.

[00:00:55] Speaker 00:
So let me try and fix this for you.

[00:00:57] Speaker 00:
Fix my mistake.

[00:00:58] Speaker 00:
Because it was a mistake.

[00:01:00] Speaker 00:
It was just because I missed the email that was sent to me.

[00:01:04] Speaker 04:
So you're inducing her to continue to have you as her lawyer.

[00:01:08] Speaker 04:
I want to know, did you offer to file a complaint

[00:01:14] Speaker 04:
Withdraw or to self-report in any way with respect to your and I and I feel uncomfortable asking these questions because I don't want to get into any attorney-client Communications that you might have had but you understand what a precarious position you're in right now I do your honor and do it like I said I'm here because I know what I made a mistake I'm here because you keep talking about you made a mistake with respect to not filing the brief, but what we're talking about and what?

[00:01:40] Speaker 04:
is relevant for purposes of determining whether Lozado has been satisfied is whether we can see that there was ineffective assistance of counsel, one factor of which is based on a bar complaint.

[00:01:54] Speaker 04:
And typically that can happen, you know, doesn't happen when the lawyer continues to represent the client.

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

[00:02:01] Speaker 00:
And I did offer her, you know, you can file a complaint, you can find other counsel.

[00:02:06] Speaker 02:
Why didn't you self-report?

[00:02:08] Speaker 02:
I don't think you answered that last time.

[00:02:09] Speaker 00:
No, I didn't self-report because I understand the case law.

[00:02:12] Speaker 00:
I thought that if the mistake is plain, like in this case, then Losada is not necessary, right?

[00:02:24] Speaker 00:
Reporting under Losada is not necessary.

[00:02:26] Speaker 04:
So this was my my interpretation of the law that was if there's an effective assistance But it's also obvious on the record which it is in this case Then I I just assumed you know my understanding of Luzardo was that I could I could follow this motion Were you colluding with your client in any way to sort of enhance the delay in this case was this a strategy no to to continue to represent her to not self-report and To be able to gain additional

[00:02:54] Speaker 04:
Advantage through delay.

[00:02:55] Speaker 00:
No, you're not at all again.

[00:02:57] Speaker 00:
I acknowledge my mistake Are you seeing why someone could think that absolutely I can see that I can see that for sure.

[00:03:03] Speaker 03:
Have you ever failed to file a brief before?

[00:03:04] Speaker 00:
No

[00:03:06] Speaker 00:
The first time when they change when they change the the process of getting the the documents it was email instead of sending a paper file So the emails got lost long ago.

[00:03:15] Speaker 00:
I fixed that now I fixed it But that was my mistake because the emails weren't going directly to me some of them that go to junk sometimes because we get a lot of emails every day from it took you it took you a while to file the brief after you you learned that that

[00:03:28] Speaker 04:
You had not timely filed a brief, correct?

[00:03:30] Speaker 00:
No, Your Honor.

[00:03:30] Speaker 00:
I filed immediately after I found out the case had been dismissed because we had not filed a brief.

[00:03:35] Speaker 04:
Was it not like several weeks?

[00:03:36] Speaker 00:
No, it was within a week or two.

[00:03:38] Speaker 04:
Am I confusing the facts with the prior case where it was longer?

[00:03:40] Speaker 00:
No, Your Honor.

[00:03:41] Speaker 00:
In both cases, I notified the client right away and I filed our motion to reopen right away.

[00:03:46] Speaker 00:
Yeah, no, no.

[00:03:47] Speaker 04:
I'm asking how long it took you to file the brief.

[00:03:50] Speaker 00:
The brief before your honor?

[00:03:52] Speaker 00:
Or with the BIA?

[00:03:54] Speaker 04:
Before the BIA.

[00:03:55] Speaker 00:
No, I did it immediately upon finding out about my mistake.

[00:04:00] Speaker 00:
So it was within a week, probably, or less.

[00:04:02] Speaker 03:
Well, I think, didn't you file a motion to reinstate the appeal?

[00:04:06] Speaker 03:
Wasn't that, was that, are you saying you filed a brief at the same time?

[00:04:10] Speaker 00:
I did, Your Honor.

[00:04:11] Speaker 00:
I filed a brief and a motion to reinstate the appeal.

[00:04:13] Speaker 03:
So I understood you to say in the other case, the previous case, that we were talking about Bermuda Sayala 24-1033.

[00:04:22] Speaker 03:
These are the only two cases in our court where you haven't filed a brief?

[00:04:27] Speaker 03:
There aren't other ones pending like this?

[00:04:29] Speaker 00:
No.

[00:04:30] Speaker 00:
Yes, Your Honor.

[00:04:30] Speaker 00:
That's correct.

[00:04:31] Speaker 00:
Only these two cases.

[00:04:32] Speaker 03:
So what's her strongest argument that she's entitled to immigration relief?

[00:04:39] Speaker 03:
I still go back to the prejudice prong.

[00:04:43] Speaker 03:
And in my reading of the law, I think

[00:04:50] Speaker 03:
that you have a responsibility to show that there would be prejudice if you want relief.

[00:04:57] Speaker 03:
And I'm not seeing what your client's path is for immigration relief.

[00:05:05] Speaker 00:
Yes, in this case this particular case she was she was the victim of extortion and she requested help from the police, but police did not In this case isn't it true that the government concedes that the Bia did not reach the prejudice issues with respect to the merits of your clients Claims for relief yes, that's correct So whose burden is it then

[00:05:31] Speaker 02:
Is it your client's burden on appeal to show us what the plausible grounds for relief are?

[00:05:37] Speaker 00:
It is your honor.

[00:05:38] Speaker 00:
It is my our burden.

[00:05:40] Speaker 02:
Okay, and then Do we then make that decision here at the Ninth Circuit or do we kick it back?

[00:05:45] Speaker 02:
After we find let's say we agree with you you didn't meet need to meet all three of the lazada factors so there is an inassistance of Ineffective assistance of counsel claim that you've made Do we then just send it back to the Bia for them to make the prejudice determination or do we make it?

[00:06:00] Speaker 00:
No, I would recommend that be sent down to the BIA, Your Honor, so they can evaluate that under that first instance.

[00:06:07] Speaker 03:
Well, but when you talk about futility, I still haven't heard anything.

[00:06:10] Speaker 03:
What do we, you know, you sending something back, then how much more time does that buy your client if there's no basis for a relief?

[00:06:19] Speaker 00:
Understood, Your Honor, understood.

[00:06:20] Speaker 00:
But I think in this case, it's because she lost an opportunity because of my mistake that I think she should have.

[00:06:27] Speaker 03:
But what of the merits of her case?

[00:06:30] Speaker 03:
is the opportunity she lost.

[00:06:33] Speaker 03:
Sometimes people come in here and they say, well, they actually had this path for relief and there's a nexus to the IAC.

[00:06:43] Speaker 03:
Here, then everyone would not file a brief and say, give my client another chance, even though there's no chance out there.

[00:06:55] Speaker 00:
I understand that as well.

[00:06:56] Speaker 02:
What arguments would you be able to make to the BIA that you didn't make to us?

[00:07:01] Speaker 00:
That would essentially make the same arguments, Your Honor.

[00:07:04] Speaker 02:
Okay, so if we don't find prejudice?

[00:07:06] Speaker 00:
Likely, yeah.

[00:07:07] Speaker 02:
That the BIA would not find prejudice?

[00:07:09] Speaker 00:
Yes, Your Honor, likely.

[00:07:12] Speaker 02:
Okay.

[00:07:12] Speaker 02:
And then I have another question since you started talking about Losada and the other matter about it kind of not being good law anymore.

[00:07:19] Speaker 02:
So is it your position that a failure to file an opening brief always constitutes ineffective assistance of counsel regardless of whether the other Losada factors are met?

[00:07:30] Speaker 00:
Not necessarily I mean I probably would would Say that not following brief that there's no really no claim Probably not an effective assistance right if there's nothing that you can argue.

[00:07:41] Speaker 00:
I think you would have to You should you should be candid with the court and then not you know obviously if there's no appealable issue Then advise your client.

[00:07:51] Speaker 00:
There's no appealable issue

[00:07:52] Speaker 02:
So lack of a brief plus prejudice is what would be sufficient for ineffective assistance of counsel to then kick it back to the BIA?

[00:08:00] Speaker 00:
Yes, Your Honor, that's correct.

[00:08:04] Speaker 03:
Do you want to save the balance of your time for a rebuttal?

[00:08:07] Speaker 00:
Yes, Your Honor, please.

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

[00:08:08] Speaker 03:
Thank you, Your Honor.

[00:08:10] Speaker 03:
All right, we'll hear from the government.

[00:08:13] Speaker 03:
Good afternoon.

[00:08:14] Speaker 01:
May I please the court, Your Honor, it's Joanna Watson on behalf of the government.

[00:08:19] Speaker 01:
These cases really show the importance of the requirements of Lozada and ineffective assistance claims.

[00:08:27] Speaker 01:
And there was no formal ineffective assistance claim that was presented to the board.

[00:08:35] Speaker 01:
You know, it was a motion to reinstate.

[00:08:38] Speaker 01:
And getting to that, when a board dismisses the appeal, there's basically three options.

[00:08:43] Speaker 01:
You can file a petition review with the Court of Appeals.

[00:08:46] Speaker 01:
You could file a motion to reconsider or a motion to reopen.

[00:08:50] Speaker 01:
So there's no motion to read and state in the first place.

[00:08:53] Speaker 03:
And then they construed it as a motion to reconsider and a motion to reopen, right?

[00:08:58] Speaker 01:
Correct.

[00:08:59] Speaker 01:
They gave the benefit of the doubt.

[00:09:00] Speaker 01:
They considered it reconsideration and reopening.

[00:09:04] Speaker 01:
But all of this could have been avoided here

[00:09:08] Speaker 01:
We talk about strict compliance isn't always necessary.

[00:09:11] Speaker 01:
Sometimes his court has held that.

[00:09:14] Speaker 01:
But had he provided an affidavit from his counsel, showing the agreement.

[00:09:21] Speaker 03:
From his client, you mean?

[00:09:22] Speaker 01:
I mean, yes.

[00:09:23] Speaker 01:
OK.

[00:09:23] Speaker 03:
It's supposed to start with C. Yes.

[00:09:26] Speaker 01:
So had he provided the affidavit from his client, laying out the agreement, and putting in there maybe, yes, he discussed

[00:09:37] Speaker 04:
that he... So apropos of I think what you're saying right now and I think you walk through the different ways that these things come to the BIA or the BIA can consider them.

[00:09:47] Speaker 04:
I want to look at the actual decision from the BIA in the record and I think it tracks what you're saying.

[00:09:54] Speaker 04:
What was filed was essentially a motion to reinstate and the BIA at the top of what is page four in the record

[00:10:06] Speaker 04:
page 2 of the decision, it says, we discern no error of fact, a fact or law in our prior decision that would warrant reconsideration as the respondent did not file a brief by the briefing deadline of August 30th, 2023.

[00:10:20] Speaker 04:
And it cites the cases that support this decision and then concludes upon consideration of the entirety of the record before us, we are not persuaded that reconsideration of our prior decision is warranted.

[00:10:32] Speaker 04:
So that is what you're talking about as the BIA considering the reconsideration, the request to reinstate, correct?

[00:10:41] Speaker 01:
Correct.

[00:10:43] Speaker 01:
Because he hasn't shown a factual or legal error, because they could have summarily dismissed it if they, well, in this case, the notice of appeal.

[00:10:53] Speaker 01:
There's a spot.

[00:10:54] Speaker 04:
It's on with you, OK?

[00:10:55] Speaker 04:
So what I want to turn to is the next statement by the BIA that says,

[00:11:00] Speaker 04:
To the extent the respondent's motion could be construed as a motion to reopen, we conclude the reopening, and the reopening would occur if you meet the Lozado factors, correct?

[00:11:10] Speaker 04:
To the extent that the motion could be construed as a motion to reopen, and of course the BIA has to construe one because that wasn't expressly requested, we conclude that reopening is not warranted because the respondent has not formally raised

[00:11:22] Speaker 04:
in an effective assistance of counsel claim or complied with any of the Losado requirements, right?

[00:11:27] Speaker 04:
Correct.

[00:11:27] Speaker 04:
And at that point, because it doesn't even get past Losado, it doesn't address or make any findings with respect to prejudice.

[00:11:35] Speaker 04:
Correct.

[00:11:36] Speaker 04:
And you concede that in your brief.

[00:11:39] Speaker 01:
They have not.

[00:11:39] Speaker 01:
Yes, correct.

[00:11:40] Speaker 01:
They haven't, because Bagan Mazdad and Ninth Circuit, I can't think of the case right now, that shows.

[00:11:45] Speaker 04:
So Judge Dalba asked a question to your friend on the other side just a moment ago, which is,

[00:11:50] Speaker 04:
So the government concedes that the BIA didn't make findings with respect to prejudice.

[00:11:55] Speaker 04:
I think the record is abundantly clear that that's the case here.

[00:11:59] Speaker 04:
What do we do if we were to find in the first instance that the Lozado factors, there's substantial compliance with Lozado because ineffective assistance is obvious from the record.

[00:12:09] Speaker 04:
And I'm not saying to you we are finding that, but hypothetically speaking, if we were to conclude that Lozado is satisfied and the government concedes that prejudice was not,

[00:12:19] Speaker 04:
reached by the BIA.

[00:12:21] Speaker 04:
What do we do?

[00:12:22] Speaker 01:
You would send it back for prejudice, but then it came up in the last argument, futility.

[00:12:28] Speaker 04:
And what's your best case for that?

[00:12:30] Speaker 04:
Because I can't find a case that says we can do that.

[00:12:35] Speaker 04:
We are not fact-finders.

[00:12:36] Speaker 04:
We can't determine this in the first instance.

[00:12:38] Speaker 04:
And in fact, I think

[00:12:39] Speaker 04:
Part of why you're making the argument you're making is because we might all know what's going to happen, but we can't assume that.

[00:12:45] Speaker 04:
We are not fact-finders.

[00:12:46] Speaker 04:
We need to send it back for the BIA to make those findings, right?

[00:12:51] Speaker 01:
I mean, essentially, I mean, the board should address prejudice in the first instance, but that goes back.

[00:12:56] Speaker 03:
But I guess, does the record reflect that the BIA considered whether there was any plausible ground for relief for the underlying application for immigration relief?

[00:13:07] Speaker 01:
Well, in the summary dismissal, they did say they looked at it and they didn't see any glaring issues with the immigration judge's findings.

[00:13:16] Speaker 01:
They made that, but that goes to,

[00:13:20] Speaker 03:
Well, okay, if you don't use the magic words of prejudice, but you say, I don't see any path for your relief, are you finding no prejudice?

[00:13:30] Speaker 03:
I guess the board is... I don't want to argue against your case or make your case for you, but it seems like they're looking at everything and... They did.

[00:13:41] Speaker 03:
...that inherent to that is they didn't find any plausible ground for relief.

[00:13:47] Speaker 01:
That's correct.

[00:13:48] Speaker 03:
And then how do we show prejudice if there's no plausible ground for relief?

[00:13:52] Speaker 01:
Well, there is no prejudice.

[00:13:55] Speaker 01:
But you're looking at that.

[00:13:56] Speaker 03:
If they didn't say the specific words, but now I'm hearing you to back up and saying, well, if you get to that point, you have to send it back.

[00:14:06] Speaker 03:
So you're putting all your eggs in one basket and saying Lozada wasn't complied with, end of story.

[00:14:12] Speaker 03:
But let's just say that if the court moves or says even assuming

[00:14:18] Speaker 03:
that it wasn't.

[00:14:23] Speaker 03:
What does the record show in terms of prejudice?

[00:14:27] Speaker 01:
I mean, it just shows that the board looked at it when they summarily dismissed it in that decision.

[00:14:33] Speaker 04:
But you're in a tough spot because your brief is very clear here that the merits weren't reached and that

[00:14:40] Speaker 01:
I mean because they weren't afraid they weren't but and I want to just get back to just real quickly.

[00:14:46] Speaker 01:
I'm not trying to Skirt around your question or anything, but the importance of this I mean they could if there was an affidavit from the petitioners You know they could they could have said that we understand He messed up, and we still want him to represent and that's why we're not

[00:15:05] Speaker 01:
to go to the bar and file a complaint because it says to file a complaint under or to explain why you did not.

[00:15:17] Speaker 01:
And in this case, because this does come down to just was out in this case.

[00:15:21] Speaker 01:
And if you really look at it, this it's not fully playing on its face.

[00:15:26] Speaker 01:
We don't have that

[00:15:32] Speaker 01:
And if he did, we could have avoided all of this.

[00:15:36] Speaker 04:
I agree with you there.

[00:15:39] Speaker 01:
So I mean, it does come down to Losada.

[00:15:41] Speaker 01:
And you can.

[00:15:42] Speaker 01:
It's the prejudice.

[00:15:46] Speaker 03:
In fact, their failure to meet their burden to show prejudice.

[00:15:49] Speaker 01:
Right.

[00:15:50] Speaker 01:
And if this was done as a formal and effective motion to reopen, this would have all been here.

[00:15:56] Speaker 01:
The prejudice analysis, he would have made in it.

[00:16:02] Speaker 03:
You know, I mean, we're still, I still haven't heard anything here.

[00:16:06] Speaker 01:
No, there, I mean, there is no prejudice here.

[00:16:09] Speaker 01:
And the board did in that underlying, when it's merrily dismissed the decision, you know, they said, we don't see anything glaring that the immigration judge here did here.

[00:16:19] Speaker 01:
But you run into like a bit of a slippery slope when you have.

[00:16:26] Speaker 01:
This is an appeal, the summary dismissal.

[00:16:29] Speaker 01:
This is the motion to reopen.

[00:16:31] Speaker 01:
and the discussion of prejudice in the context of the motion to reopen, the decision we're looking at at the board now.

[00:16:38] Speaker 01:
But we can look.

[00:16:39] Speaker 03:
Don't you generally, in a motion to reopen, have to say that there's some avenue that would give you success?

[00:16:47] Speaker 03:
I mean, in cases that let's put aside what he did.

[00:16:53] Speaker 03:
But when you ask to reopen something in front of the board,

[00:16:59] Speaker 01:
Some sort of component that you don't reopen things for nothing and so you tell the board I could do this or make a proper of some sort Well, then it comes down again We have the Lozada, but then Lozada also says the showing of prejudice and this little two-page reinstate my case I messed up and missed the briefing deadline

[00:17:23] Speaker 01:
He didn't do any of that, and it's a heavy burden.

[00:17:25] Speaker 03:
So how do you, and from just you, how do you put the prejudice component into the Lazada analysis?

[00:17:40] Speaker 01:
I mean, you're saying- Not the government's burden.

[00:17:42] Speaker 01:
For one, it was his burden, and that's why we're here.

[00:17:45] Speaker 01:
And he didn't meet his burden by raising this in a more formal manner.

[00:17:52] Speaker 01:
He could have shown to the board that the requirements are explained why he didn't meet all the requirements, the self-report.

[00:18:01] Speaker 01:
He could have done the affidavit, like I said.

[00:18:03] Speaker 01:
And then part of an ineffective assistance claim, before the board even, is a showing of prejudice.

[00:18:08] Speaker 01:
And he made no

[00:18:10] Speaker 03:
Discussion of that whatsoever cases out there that say if you don't file a brief that's plain on its face Does that mean that there's still no showing a prejudice to those cases stand for that or what do they stand for you didn't?

[00:18:25] Speaker 01:
Well, I guess it there's cases out there that say that if you don't file a brief that's plain I mean the plain prejudice usually comes in when you were prevented from doing something like the board wouldn't allow you to file a brief and

[00:18:39] Speaker 03:
You have a lot of facial movements there.

[00:18:41] Speaker 01:
I'm sorry.

[00:18:41] Speaker 01:
I apologize.

[00:18:45] Speaker 03:
Yeah.

[00:18:45] Speaker 01:
I apologize.

[00:18:47] Speaker 01:
So there was no showing of prejudice.

[00:18:52] Speaker 03:
All right.

[00:18:52] Speaker 03:
So I'll put to your other government, not necessarily your co-counsel, but on the previous case.

[00:18:59] Speaker 03:
So tell me how to write this.

[00:19:03] Speaker 01:
We would ask.

[00:19:03] Speaker 03:
Tell me how to write this that complies with the law.

[00:19:07] Speaker 01:
We would ask that the court would find no abuse of discretion in the board's denial of the motion to reopen because he hasn't met, he hasn't substantially complied with the requirements for an ineffective assistance to counsel.

[00:19:25] Speaker 01:
And it was his burden to show compliance and prejudice, and he made no effort on any of that.

[00:19:32] Speaker 01:
And the case fails.

[00:19:34] Speaker 01:
And the petition should be done.

[00:19:36] Speaker 03:
Okay, do either of you have any additional questions all right?

[00:19:39] Speaker 03:
Thank you.

[00:19:40] Speaker 00:
We've taken you over, so I'll give you an extra minute I'll give you three minutes on rebuttal if you need it As your honors mentioned in this circuit Castillo Perez versus INS So the strict compliance with Losada is not necessary when the ineffective assistance was either playing from the record so in that case

[00:20:02] Speaker 03:
So does that, just the fact that you didn't file the brief, does that write out your requirement to show some sort of prejudice?

[00:20:10] Speaker 00:
It does, it does.

[00:20:11] Speaker 03:
So it's just, you just don't file the brief and then automatically you get relief from Losada.

[00:20:16] Speaker 00:
No, your honor, you're correct.

[00:20:18] Speaker 00:
I think you have to show prejudice as well, that if you would have appealed, you would have had a claim.

[00:20:22] Speaker 03:
Well, those two statements are absolutely inconsistent.

[00:20:25] Speaker 03:
No, I know, your honor.

[00:20:26] Speaker 03:
That's OK.

[00:20:27] Speaker 00:
Yeah.

[00:20:27] Speaker 00:
But I understand.

[00:20:28] Speaker 00:
I understand you still have to show some sort of prejudice in that you were not able to appeal your case if you have a viable claim.

[00:20:39] Speaker 03:
So did the government correctly state the record that you didn't put any

[00:20:46] Speaker 03:
Any affidavit from your client about all of this?

[00:20:50] Speaker 00:
That's correct.

[00:20:50] Speaker 00:
I did not.

[00:20:51] Speaker 00:
I submitted my affidavit under penalty of perjury to the BIA, explaining my error and also explaining what I was going to try and do to help my client because of my mistake.

[00:21:02] Speaker 02:
Okay.

[00:21:03] Speaker 02:
Do you think the BIA considered the prejudice or no?

[00:21:06] Speaker 00:
Not in this case, Your Honor.

[00:21:07] Speaker 00:
I don't think they considered the prejudice in this case, Your Honor.

[00:21:10] Speaker 00:
The previous case I think they did, but in this case I don't think they did.

[00:21:12] Speaker 00:
They just looked at the Losada requirements.

[00:21:14] Speaker 03:
Well, but they looked at everything there, and if they had thought you had, you know, judges don't really

[00:21:23] Speaker 03:
You know, this includes immigration judges.

[00:21:24] Speaker 03:
They don't like injustice.

[00:21:26] Speaker 03:
And if they think someone really didn't put something, if they, if they didn't put something forth, but I'm hearing you say the case is the same either.

[00:21:34] Speaker 03:
It's not going to be a different case going back.

[00:21:37] Speaker 03:
It's just the case is the same and they looked at everything in the case and they basically, uh,

[00:21:45] Speaker 03:
Didn't They they considered everything and they didn't state that there was any plausible ground for relief.

[00:21:53] Speaker 04:
They didn't use the word prejudice but Again counsel, I'm fairly certain that you answered this question before and your friend on the other side also Conceded that the government itself has indicated in its written brief that the BIA did not address prejudice with respect to

[00:22:13] Speaker 04:
the claims that your client has set forth.

[00:22:16] Speaker 04:
Is that correct?

[00:22:16] Speaker 00:
That's correct, Your Honor.

[00:22:17] Speaker 00:
I would agree with that statement as well.

[00:22:18] Speaker 00:
The BI did not address prejudice in this particular case.

[00:22:25] Speaker 02:
The BIA did say, though, that it reviewed the entire record.

[00:22:27] Speaker 02:
And that's a quote, entire record.

[00:22:30] Speaker 02:
But it was not persuaded that reconsideration was warranted.

[00:22:33] Speaker 02:
So when they say they, and I know you can't speak for them, but I'm trying to interpret what they meant by entire record.

[00:22:40] Speaker 02:
It's your position that prejudice is not included there, that they didn't consider prejudice?

[00:22:45] Speaker 00:
I would say so, Your Honor, because in this case, they don't specify what the value is as far as the asylum claim and related claims.

[00:22:55] Speaker 03:
Thank you.

[00:22:58] Speaker 03:
Thank you.

[00:23:00] Speaker 03:
Thank you.

[00:23:29] Speaker 03:
Report for this session stands adjourned.