[00:00:00] Speaker 04: Good morning, and may it please the court, my name is John Shackelford. [00:00:05] Speaker 04: I'm counsel for the petitioner, Mr. Gonzalez-Gonzalez, and I would like to reserve four minutes for rebuttal, please. [00:00:13] Speaker 04: Mr. Gonzalez asked this court to find that the immigration judge erred in holding that he did not merit cancellation of removal because his deportation would cause insufficient hardship to his U.S. [00:00:25] Speaker 04: citizen children. [00:00:27] Speaker 04: However, Mr. Gonzalez proved that his deportation would impose a significant economic burden on his children and cause them incalculable emotional suffering. [00:00:39] Speaker 03: So, counsel, I understand your arguments. [00:00:41] Speaker 03: You made them to the agency as well. [00:00:45] Speaker 03: What specifically do you think, where did the district court go wrong? [00:00:50] Speaker 03: And I'll let Judge Smith ask his question, I'm sure, which is what the standard of review is, but tie that in. [00:00:58] Speaker 03: you know, where did he go wrong on looking at these facts? [00:01:01] Speaker 04: Your Honor, I think our briefing rested on the idea that the immigration judge failed to take into account the suffering as it was presented in a whole, as an amalgamated whole and gave insufficient weight just to the emotional aspect that would be incurred by these children who had a very close familial relationship with their father. [00:01:27] Speaker 01: Well, counsel, the immigration judge balanced the fact that the two boys were in school, thought they might be able to work part-time, but then noted that there were several other sources of revenue from the adult children that could contribute to the family's well-being. [00:01:45] Speaker 01: And maybe you can help me with how we apply the rule in Wilkinson here in terms of are you asking us to reweigh the evidence that's the agency adjudicated. [00:01:58] Speaker 04: No, Your Honor, just to look at the facts as they are decided, even those that are clearly erroneous, as the BIA demonstrated and admitted, the trial court did in fact make some errors in calculating the amount of... Beyond the error of part-time versus full-time employment by McDonald's on behalf of the mother, what other error are you alleging occurred? [00:02:19] Speaker 04: Your Honor, such that there was insufficient evidence for the immigration judge to arrive at the conclusion, the factual conclusion, that the children would be able to commit to the adult children, excuse me. [00:02:30] Speaker 01: What about the sources of revenue from the adult siblings that were both employed? [00:02:36] Speaker 01: Actually, there were two brothers and a sister, if I remember correctly. [00:02:41] Speaker 04: Yes, Your Honor. [00:02:41] Speaker 04: And it would be our position that that was speculative in nature. [00:02:46] Speaker 04: Given that those were adult children, they were under no obligation to contribute to the welfare of the petitioners. [00:02:51] Speaker 01: But weren't the two adult brothers still living in the family home? [00:02:55] Speaker 04: I believe that is what the record reflects. [00:02:57] Speaker 01: Yes, Your Honor. [00:02:57] Speaker 01: So how is it error for the immigration judge to conclude that they could help contribute to the financial well-being of the family in the absence of the father? [00:03:07] Speaker 04: Your honor, I suppose you could look at it as a situation with roommates that have no obligation to support the others. [00:03:14] Speaker 04: Certainly the family members are different from Roommates Council. [00:03:18] Speaker 01: Yes, your honor. [00:03:20] Speaker 01: So I'm still go ahead. [00:03:22] Speaker 01: Go ahead. [00:03:23] Speaker 02: I didn't want to interrupt you. [00:03:24] Speaker 01: I'm still struggling with with where the immigration judge aired other than the McDonald's employment situation. [00:03:33] Speaker 02: Well, and I think that's especially the question in that in your briefing you do not attack the IJ's correction to the wife's income. [00:03:44] Speaker 02: You don't challenge that the two children could work part time. [00:03:49] Speaker 02: And you never challenge the discrepancy in whether the daughter can help. [00:03:54] Speaker 02: I mean, there's nothing in the brief that does any of that, which seems to be the toughest part of your argument given Judge Tallman's question. [00:04:04] Speaker 02: That's the worry. [00:04:06] Speaker 02: I wanted you to focus on that because I thought his question was a good one. [00:04:12] Speaker 02: I'm sorry, Your Honor. [00:04:13] Speaker 02: What is the question? [00:04:14] Speaker 02: Well, his question was, how did he err? [00:04:20] Speaker 02: Really, how did he err? [00:04:21] Speaker 02: And I said, how did he err, especially when you don't even attack the IJ's correction on the wife's income. [00:04:29] Speaker 02: You don't attack the challenge that the two children could work part time. [00:04:33] Speaker 02: You don't challenge the discrepancy on whether the daughter could help. [00:04:37] Speaker 02: Those aren't in the brief anyplace. [00:04:41] Speaker 04: Your Honor, from my review of the brief, it was my understanding that those factual allegations were considered by the petitioner to be clearly erroneous, that they were not sufficiently supported. [00:04:53] Speaker 02: Well, it didn't seem to me to be challenged in the brief at all. [00:04:58] Speaker 01: So how do we avoid reweighing the evidence? [00:05:01] Speaker 01: It seems to me that's what you're asking us to do. [00:05:04] Speaker 01: when those items of evidence were not challenged below? [00:05:08] Speaker 04: Your Honor, the statutory framework governing these proceedings essentially prohibits any inquiry as to the validity of the factual findings. [00:05:18] Speaker 04: Therefore, we are left with the standard of review and considering whether the applicable legal standard was correctly applied to the effects that were induced at hearing. [00:05:28] Speaker 01: And what is the standard of review in light of the Supreme Court's decision in the Wilkinson case? [00:05:35] Speaker 04: Thank you, Your Honor. [00:05:36] Speaker 04: Well, and as we know, thanks to the government's recent filing, we do understand now that the Third Circuit resolved that case on remand from the Supreme Court, finding and employing the Substantial Evidence Test, which is a highly differential standard of review. [00:05:52] Speaker 04: to resolve the agency's hardship determination. [00:05:54] Speaker 04: Our position would be two. [00:05:58] Speaker 01: One. [00:05:59] Speaker 01: You would agree that the substantial evidence standard is the test that remains not withstanding the Supreme Court's Wilkinson decision. [00:06:07] Speaker 04: That is what the Third Circuit Court found yesterday. [00:06:10] Speaker 04: Do you think we should follow them? [00:06:12] Speaker 04: No, Your Honor, I do not. [00:06:13] Speaker 04: The position is one that that question need not be decided today because regardless of the standard of review, the conclusion is the same. [00:06:23] Speaker 04: And that is that Mr. Gonzalez did merit a favorable ruling of cancellation of removal. [00:06:30] Speaker 04: such that this court need not even determine the standard of review today. [00:06:34] Speaker 04: And second of all, if it, go ahead. [00:06:36] Speaker 04: I didn't mean to interrupt. [00:06:37] Speaker 04: And the second position would be that, in keeping with the ninth circuit's tradition, that de novo review should be applied to mixed questions of fact and law. [00:06:48] Speaker 03: And that substantial evidence should be- What's the legal question that you're challenging here? [00:06:54] Speaker 03: When you say it's a mixed question of law and fact, I mean, what's the legal hook for that? [00:06:59] Speaker 04: Your Honor, for this particular question, it is nearly the application of a very broad and complex standard, the legal standard in the statute of exceptional, extremely unusual hardship, which is frankly fairly ambiguous, doesn't have a lot of guardrails. [00:07:15] Speaker 04: It invites a lot of speculation and it invites a lot of inconsistency at the trial level. [00:07:20] Speaker 03: What's your [00:07:23] Speaker 03: What's the difference between speculation and adverse inferences, if you will, or not even adverse inferences, but inferences from the record? [00:07:33] Speaker 03: You seem to be arguing that the IJ was speculating that Edwin would be able to work to provide for his family. [00:07:43] Speaker 03: Where's that line between speculation? [00:07:45] Speaker 03: Why do you say that falls on the line of speculation versus just an inference from an IJ who heard all the evidence? [00:07:54] Speaker 04: Your Honor, I would say as far as speculation goes, because this is a forward-looking analysis, we have to rely on what was adduced at hearing. [00:08:01] Speaker 03: Isn't the legal standard require a forward-looking analysis? [00:08:05] Speaker 03: I mean, the legal standard, as you noted, is exceptional and extremely unusual hardship if he leaves. [00:08:15] Speaker 03: So, I mean, it can't be the case that just because the legal standard looks forward that therefore everything is pure speculation. [00:08:23] Speaker 04: That's true, Your Honor, and that is the same case, that is the same as in the case of, in the matter of Ruffino, it's a Ninth Circuit case, offers a bankruptcy analog in which the Ninth Circuit reviewed de novo, a three-part fact-intensive question about undue burden and whether an individual would suffer undue burden if her school loans were not discharged. [00:08:46] Speaker 04: So that is exactly the kind of case where the Ninth Circuit [00:08:49] Speaker 04: precedent holds that the court should imply a de novo review and reserve substantial evidence findings review for factual findings from the court. [00:09:01] Speaker 02: In retrospect, I'm sitting here in 2025. [00:09:04] Speaker 02: This case came up during this time period. [00:09:10] Speaker 02: In retrospect, one of the children has already reached the age of 21. [00:09:17] Speaker 02: And the other child will be 21 in June. [00:09:22] Speaker 02: In fact, June 7th. [00:09:25] Speaker 02: Why isn't this case moot? [00:09:28] Speaker 02: The guy's been here. [00:09:30] Speaker 02: He's been working. [00:09:31] Speaker 02: He's been doing what he has to do. [00:09:34] Speaker 02: The children will all be raised. [00:09:35] Speaker 02: They'll all be over 21 in June. [00:09:38] Speaker 02: Why don't we just say this case is over? [00:09:42] Speaker 02: I think at this point, the child is almost 21 now. [00:09:51] Speaker 02: He has been able to do everything he wanted to give all of the support financially and otherwise to this child, to both children. [00:10:02] Speaker 02: till one is over the age of 21, which is the statutory age. [00:10:09] Speaker 02: The other is nearly there. [00:10:11] Speaker 02: This is a moot case. [00:10:12] Speaker 02: Why don't we just go on about our way? [00:10:16] Speaker 04: You know, I think it is a useful exercise in looking back at this case and being able to review. [00:10:20] Speaker 02: What's the use of a useful exercise when the guy, I mean, he doesn't have to do anything anymore. [00:10:26] Speaker 02: He doesn't have to. [00:10:28] Speaker 02: He has no, he couldn't bring this petition now. [00:10:32] Speaker 04: That is true. [00:10:32] Speaker 04: He would no longer have a qualifying relative as his children have aged out and would no longer be considered qualifying relatives under the statute. [00:10:39] Speaker 04: However, if he had been granted cancellation and removal back in 2019, he would have become a lawful permanent resident. [00:10:45] Speaker 04: and would continue living here with his family permanently. [00:10:48] Speaker 04: And I see it. [00:10:49] Speaker 01: If we grant your petition today and issue a decision in the next month or so, although it should come sooner than that, what would prevent that decision from being mooted on June 7 when the minor turns 21? [00:11:09] Speaker 04: You know, I think you'll have that in pretty much every case that that's taking a long time to get before this court. [00:11:15] Speaker 01: All we can do is focus back on the facts that there were cases by on grounds of mootness all the time. [00:11:21] Speaker 01: An inmate is released from custody and therefore the habeas corpus case evaporates. [00:11:30] Speaker 04: I would say it would only be not moot to my client who would be otherwise eligible to receive a green card, Your Honor. [00:11:38] Speaker 01: So you think that even though the case is moved as of June 7, he would still be eligible to receive a green card? [00:11:48] Speaker 04: Your Honor, if the court were to find that the application of the legal standard in this case was misapplied, then yes, I do believe that would be the remedy. [00:12:00] Speaker 03: Okay, we'll we've taken you over. [00:12:03] Speaker 03: You did the right thing. [00:12:03] Speaker 03: You answered our questions. [00:12:04] Speaker 03: That's always a good thing. [00:12:05] Speaker 03: But and so we'll give you a couple minutes for rebuttal. [00:12:08] Speaker 03: Thank you. [00:12:09] Speaker 03: Thank you. [00:12:20] Speaker 00: Good morning again, Your Honours. [00:12:21] Speaker 00: May it please the court. [00:12:22] Speaker 00: Jesse Carlson for the government. [00:12:24] Speaker 00: Runners, this court should deny the petition for review. [00:12:28] Speaker 00: After considering all of the evidence in the aggregate, the agency correctly concluded that petitioner in this case did not meet the requisite exceptional and extremely unusual hardship standard. [00:12:38] Speaker 00: That standard is very strict. [00:12:40] Speaker 00: Congress designed it to be such. [00:12:41] Speaker 00: It's a very high bar, meaning the hardship has to be above and beyond what somebody might face normally with the removal of a family member. [00:12:53] Speaker 00: So while the facts of a case may be sympathetic, it is a very high bar to be reached. [00:12:57] Speaker 00: And in this case, the facts simply don't merit. [00:12:59] Speaker 03: So can I hit you on the standard of review? [00:13:04] Speaker 03: Is that right that on remand in Wilkinson, the court applied substantial evidence? [00:13:11] Speaker 00: I'm sorry, Your Honor. [00:13:12] Speaker 03: Well, what do you think the standard of review is? [00:13:16] Speaker 00: So Your Honor, Wilkinson talks about a deferential standard of review. [00:13:20] Speaker 00: The Supreme Court did not articulate specifically [00:13:22] Speaker 00: substantial evidence, however, as indicated in the letter that the government filed, the Third Circuit did weigh in on that recently. [00:13:29] Speaker 00: And the government would advocate for a standard of review. [00:13:32] Speaker 03: That is something like- And the Third Circuit said substantial evidence. [00:13:35] Speaker 00: That is correct. [00:13:37] Speaker 00: And in accordance with Wilkinson and the Supreme Court, substantial evidence does seem to be a reasonable standard for this case. [00:13:45] Speaker 03: Is there any meaningful difference? [00:13:47] Speaker 03: A lot of ink was spent on the standard of review. [00:13:51] Speaker 03: Is there a meaningful difference in this particular case, depending on which standard of review you apply? [00:13:56] Speaker 00: In this particular case, there really wouldn't be. [00:13:58] Speaker 00: The facts are very weak, unfortunately. [00:14:01] Speaker 00: But even assuming a different standard of review, whether it's abusive discretion, substantial evidence, the petitioner simply doesn't meet the standard. [00:14:11] Speaker 00: But since we do have additional instruction from other courts [00:14:14] Speaker 00: you know, that substantial evidence does seem to be appropriate. [00:14:17] Speaker 00: It's also the standard that's applied in a majority of these immigration cases that are assessing factual issues. [00:14:22] Speaker 00: And this determination is essentially a factual issue at its core. [00:14:27] Speaker 00: Certainly, it is a mixed question, as the Supreme Court indicated, but when you really, if you're looking at this particular inquiry that has been set forth here, which appears to be, you know, petitioner seems to be taking issue with how the IJ weighed the facts, which is something that [00:14:43] Speaker 00: That part of the determination is not reviewable. [00:14:46] Speaker 02: Well, it's really easy for the petitioner to take a little bit of inquiry into what the IJ did, because the IJ erred when the IJ said the wife did not work full time. [00:14:57] Speaker 02: The IJ said there were four sons. [00:15:02] Speaker 02: The IJ said four incomes. [00:15:04] Speaker 02: BIA says a daughter, but the IJ doesn't reference the daughter. [00:15:09] Speaker 02: And the IJ is talking about four sons. [00:15:11] Speaker 02: I mean, there are factual differences between what the IJ said and what the BIA said. [00:15:18] Speaker 00: Your Honor, there is some discrepancy there. [00:15:20] Speaker 02: So if we're going to try the standard review, doesn't that weigh in? [00:15:26] Speaker 00: Unfortunately, Your Honor, it doesn't change the assessment. [00:15:29] Speaker 00: I think Patel discusses that in particular. [00:15:33] Speaker 00: the Supreme Court talked about that. [00:15:35] Speaker 00: But I think that the main situation here that we're looking at is even if there was some discrepancy with those factual determinations, and in this case it was not material and I think it was actually corrected when you look at the record later on, that specific determination is still something that this court would not have jurisdiction to review. [00:15:53] Speaker 00: The jurisdiction arises with the application of the facts to the law. [00:15:56] Speaker 00: And in this case, talking about the incomes of the family members, as Your Honors pointed out, [00:16:02] Speaker 00: The children are much older now, but even if they were not, there are several family members in this household that could contribute income. [00:16:08] Speaker 00: And even Petitioner himself, if he's removed to Mexico, that doesn't mean that he could no longer provide income or work in a different location. [00:16:16] Speaker 03: That is something that is always... Did the BIA consider that? [00:16:19] Speaker 00: I don't believe that was discussed. [00:16:20] Speaker 03: So we can't really consider that, right? [00:16:22] Speaker 00: Yeah, it probably would not be appropriate to consider it here. [00:16:25] Speaker 00: But I think the point is there are multiple sources of income, and that is something the board and the IJ did talk about. [00:16:31] Speaker 00: You know, the IJ can make reasonable inferences about what kind of income might be provided in a family setting. [00:16:37] Speaker 02: It is of some concern to me. [00:16:40] Speaker 02: I'm a standard review man. [00:16:43] Speaker 02: My good colleagues already said it. [00:16:45] Speaker 02: You probably get a question from me about that. [00:16:48] Speaker 02: I'm a standard review man, but I read through this, and there was just something about this that just did not sit good. [00:16:55] Speaker 02: Number one, they got this husband who's a Mexican. [00:16:59] Speaker 02: They got the mother who's a Mexican. [00:17:02] Speaker 02: They got four children, all are Mexicans. [00:17:05] Speaker 02: They all could be deported. [00:17:09] Speaker 02: They all could go through the same thing we're going through here. [00:17:13] Speaker 02: And yet, the BIA and the IJ [00:17:17] Speaker 02: take the incomes of illegal Mexican immigrants in the United States and say they're the ones that are going to support the two United States citizens and we're going to get rid of the other immigrant who is also illegally in the United States. [00:17:37] Speaker 02: That seems like a total abuse. [00:17:40] Speaker 02: when you have one immigrant you're sending away, but the only reason you're not gonna be able to, or that you say he should be sent away, is because other illegal immigrants are gonna work harder to support the American kids. [00:17:59] Speaker 02: That's what this case says. [00:18:01] Speaker 02: Is that what the law is? [00:18:06] Speaker 00: Well, Your Honor, I can't opine on the immigration status of all of the members of the family. [00:18:12] Speaker 02: Well, you can opine on that that's in the record because that's how I got this information. [00:18:18] Speaker 00: Right, Your Honor. [00:18:19] Speaker 00: But in this particular case, as far as the status of where all of that stands, I don't recall that being in the record specifically. [00:18:25] Speaker 02: Well, it is in the record. [00:18:26] Speaker 02: It's right there. [00:18:28] Speaker 02: You know which ones are Mexican. [00:18:30] Speaker 02: You know which ones are illegal. [00:18:32] Speaker 02: That's in the record. [00:18:34] Speaker 02: All of these are illegal immigrants. [00:18:36] Speaker 00: But I mean, Your Honor, I don't know of any of them. [00:18:38] Speaker 00: I don't recall it saying whether they're in actual removal proceedings or if they have other forms of relief. [00:18:43] Speaker 02: Well, but just a mere fact. [00:18:44] Speaker 02: that you're relying on their income as illegal without saying well they've got another thing that will get them out of it or all of that in order to now deport their father who is the one who's really providing the support. [00:19:01] Speaker 02: That seems to me to be just a totally difficult position for the government to take. [00:19:09] Speaker 00: I understand that may seem to be the case but unfortunately given [00:19:13] Speaker 00: All of those things are factual determinations that were decided by the agency based on the whole record and looking at the extremely high standard. [00:19:22] Speaker 03: When you said those things were decided by the agency, the agency didn't consider, I think what Judge Smith is referencing, which is the fact that some of these family members were here illegally as well, correct? [00:19:36] Speaker 00: I don't recall that in the actual decision. [00:19:38] Speaker 00: I think the agency was primarily considering whether or not the whole set of circumstances and facts rise to the level of the extremely and exceptionally... Well, did it need to? [00:19:48] Speaker 03: I mean, is this relevant to the question? [00:19:50] Speaker 03: I mean, Judge Smith is raising some interesting, equitable issues. [00:19:55] Speaker 03: Is it relevant to what we have to decide for purposes of this particular petition? [00:20:00] Speaker 00: Your Honor, I don't believe it is relevant. [00:20:02] Speaker 00: I believe that is an underlying factual consideration. [00:20:04] Speaker 02: Do you have a good case for that? [00:20:06] Speaker 00: As far as deciding the underlying, well, I mean, just looking at the court's determination is the application of the law to the facts. [00:20:15] Speaker 00: And the factual determinations have been decided by the agency. [00:20:18] Speaker 00: And Wilkinson, that makes that standard very clear. [00:20:24] Speaker 00: And I think that there is language there that talks about the fact that if there are disputed [00:20:29] Speaker 00: facts, those are determinations that are made by the agency and those are unreviewable. [00:20:33] Speaker 00: The application of law to the facts would pertain to a set of undisputed facts and the facts that the agency decided are in fact undisputed facts, meaning it does address the situation as far as what it viewed pertains to the level of hardship that the individuals would suffer in this case. [00:20:53] Speaker 00: was pointed out earlier, these children are now, they have now essentially aged out our will very soon. [00:20:59] Speaker 00: They are also able to, were able to support themselves and provide income along those lines, and that is something the agency did reference. [00:21:06] Speaker 03: Can you address the, real quickly with the time you have, the mootness question that was raised, because what happens on June 7th when they've all aged out? [00:21:15] Speaker 03: Do we still have a capacity to decide this case? [00:21:18] Speaker 03: You know, we could theoretically decide it, it could still be pending on June 7th, [00:21:24] Speaker 03: If we were to rule, let me phrase it this way, if we were to rule for the petitioner right now, would he get meaningful benefit beyond June 7th? [00:21:34] Speaker 00: Well, Your Honor, I hate to speculate what would happen if the case were sent back to the agency, but it seems [00:21:40] Speaker 00: It seems evident that that may be a futile exercise if the individuals would no longer be eligible for relief. [00:21:47] Speaker 03: Because we couldn't grant relief. [00:21:48] Speaker 03: Ultimately, we can't grant him relief. [00:21:49] Speaker 03: We cannot grant him what he's requesting. [00:21:52] Speaker 03: The most we could do is remand it back to the agency, and then it would be pending on June 7th. [00:21:58] Speaker 00: Correct. [00:21:58] Speaker 00: You can remand it back if you believe that's necessary. [00:22:01] Speaker 00: But at that point, the government would assert that that would not be a useful exercise, especially in this case, given the age of the children. [00:22:08] Speaker 00: and the issues I've already talked about regarding the pieces of jurisdiction that the court would have. [00:22:16] Speaker 01: Let me return to the standard of review one last time. [00:22:20] Speaker 01: Is the government's position that we apply substantial evidence and enhanced deference to the factual findings by the immigration judge and the board as they inform the exercise of discretion by the attorney general? [00:22:40] Speaker 00: I'm sorry, I didn't hear the last part. [00:22:41] Speaker 00: I apologize. [00:22:42] Speaker 00: I've got some allergy issues, so my hearing is a little less than desirable. [00:22:45] Speaker 01: Let me try it again. [00:22:46] Speaker 01: Is it the government's position that the standard of review is substantial evidence in the record to which we must give great deference in establishing the factual record, which then informs the exercise of the attorney general's discretion as to whether or not to grant relief? [00:23:08] Speaker 00: Well, the government definitely agrees that a deferential standard of review should apply here, as Wilkinson points out. [00:23:15] Speaker 00: Substantial evidence, something like that, does seem to be the appropriate standard that should be applied as it is in other similar immigration cases, which would mean that unless there are facts that would compel a contrary conclusion, we would ask the court to deny the petition. [00:23:31] Speaker 03: OK. [00:23:31] Speaker 03: OK, thank you. [00:23:32] Speaker 00: Thank you, Your Honors. [00:23:33] Speaker 03: We'll give you two minutes for rebuttal. [00:23:39] Speaker 04: Thank you, Your Honors. [00:23:42] Speaker 04: Your Honors, regarding that standard of review question, again, our point would be, one, that it's not necessary to resolve in this matter. [00:23:48] Speaker 04: However, also the application of Wilkinson, which I don't believe I answered correctly before, is that there is a mention and a discussion about the fact-intensive inquiry [00:23:58] Speaker 04: for this legal standard. [00:24:00] Speaker 04: However, when the court at the very end of the decision says this should be a differential standard of review, that was not necessary to its holding. [00:24:08] Speaker 04: That was thrown away at the second to last sentence in the case. [00:24:12] Speaker 04: So it's not binding with this case. [00:24:13] Speaker 03: But either standard is deferential, right? [00:24:15] Speaker 03: I mean, even you're arguing for abuse of discretion? [00:24:20] Speaker 04: Your Honor, we would suggest that binding Ninth Circuit case law [00:24:27] Speaker 04: informs this court to continue with de novo review over mixed questions of fact and law, and reserve substantial evidence review. [00:24:36] Speaker 03: What about Magana-Magana? [00:24:38] Speaker 03: That seemed to apply to abuse of discretion to a mixed question of fact and law. [00:24:43] Speaker 03: I'm sorry, which case, Your Honor? [00:24:44] Speaker 03: I thought Magana-Magana? [00:24:47] Speaker 04: Your Honor, I'm not familiar with that case. [00:24:49] Speaker 03: That was just last year. [00:24:53] Speaker 03: But, okay. [00:24:55] Speaker 04: Your honor, and I would say that so as far as mixed questions go, as I mentioned before, in the bankruptcy realm, we have in the matter of Ruffino regarding the undue burden test. [00:25:04] Speaker 04: In immigration, we have court of the holder in 2013 overruling the BIA's conclusion that petitioners had failed. [00:25:11] Speaker 04: to establish particular social groups, applying a de novo review to the legal standard as it was applied to facts that were, again, reviewed for clear error. [00:25:22] Speaker 01: And what factors do we apply to to demonstrate abuse of discretion by the Attorney General? [00:25:31] Speaker 04: Your Honor, we would be looking for a de novo review standard where you would be looking... The de novo review of what? [00:25:37] Speaker 01: I mean, you're asking us to revisit the decision by the Attorney General as to whether or not to grant the relief. [00:25:44] Speaker 01: But how do I do that if I give substantial evidence review to the facts? [00:25:52] Speaker 01: What am I comparing those facts to in order to decide that the agency should have granted relief here? [00:25:59] Speaker 04: That's a great point, that the statute deprives this court of even jurisdiction to consider the facts. [00:26:04] Speaker 04: There's already great deference built into this entire analysis without even considering what standard of review should be applied. [00:26:10] Speaker 04: When we're looking at the standard of review applied to facts that this court cannot question, no matter how erroneously decided, we have to see at least that the standard was applied correctly. [00:26:20] Speaker 04: There's not a three-part test for exceptional, extremely unusual suffering. [00:26:25] Speaker 04: that just doesn't exist. [00:26:26] Speaker 01: And there are regulations that outline what constitutes extreme and unusual hardship. [00:26:34] Speaker 01: Are there not regulations that identify factors to be considered in determining whether the petitioner has shown extreme and unusual hardship? [00:26:45] Speaker 04: Your Honor, the only one that I'm familiar with is the Board of Immigration Appeals saying that the findings should demonstrate or the evidence should demonstrate something substantially beyond or extreme. [00:26:55] Speaker 04: That would be normally expected in the removal of a close family member, which again is not the same as determining persecution, which this court does de novo. [00:27:07] Speaker 04: When it looks at facts and says, no, under our precedent, this does count as persecution, the IJ erred here clearly. [00:27:14] Speaker 03: clearly so that would be our position on that standard review thank you okay thank you thank you to both council for your arguments in this case the case is now submitted