[00:00:01] Speaker 03: Good morning, Your Honors. [00:00:02] Speaker 03: Good morning. [00:00:04] Speaker 03: Joe Becebus on behalf of Petitioner, Softer Iqbal. [00:00:07] Speaker 03: I'd like to reserve three minutes for rebuttal. [00:00:10] Speaker 02: Counsel, please be reminded that the time shown on the clock is your total time remaining. [00:00:15] Speaker 03: Thank you, Your Honor. [00:00:18] Speaker 03: There are two rights that underpin the justice system. [00:00:22] Speaker 03: Opportunity to respond and legal counsel. [00:00:26] Speaker 03: The Department of Homeland Security in this case denied Petitioner both of these rights [00:00:31] Speaker 03: And the final administrative removal order, the FARO in this case, should be vacated on those two independent grounds and remanded for further proceedings. [00:00:42] Speaker 03: Before going into the merits, I'd like to briefly address the question of whether this petition is moot. [00:00:48] Speaker 03: Simply put, the removal of petitioner does not render this petition moot. [00:00:53] Speaker 03: Executing a removal order before this petition can proceed [00:01:00] Speaker 03: does not render this panel unable to provide effective relief. [00:01:07] Speaker 03: As the respondent admitted in page three of their letter brief, the Department of Homeland Security has issued a policy directive, that is policy directive 11061.5.1, that permits the Immigration and Customs Enforcement [00:01:27] Speaker 03: to facilitate a non-citizen's return of removal from the deported country for further proceedings. [00:01:33] Speaker 03: And once this panel vacates underlying final administrative removal order, it may order the government to facilitate the return and permit further proceedings, such as filing, being able to request a fear-based deferral of removing under the final administrative removal order, and which then [00:01:57] Speaker 03: permits the petitioner to have an interview with an asylum judge. [00:02:05] Speaker 01: I think that brings up the question of why vacater would be an appropriate remedy. [00:02:12] Speaker 01: Suppose that we agree with you that [00:02:17] Speaker 01: The failure to give 10-day notice and the failure to provide the list of counsel, both violated the regulations and were both deprivations of due process. [00:02:29] Speaker 01: What sort of showing of prejudice would be necessary before a vacater would be appropriate? [00:02:35] Speaker 03: Thank you, Your Honor. [00:02:36] Speaker 03: First, I would like to point out that [00:02:38] Speaker 03: Prejudice is not required to be shown in this ends because the final administrative removal order is unlawful and it's invalid Per se what case says that there is no showing a prejudice required for due process violation Your honor what I'm discussing is not a due process violation per se at this point at this point that is the second part of the argument the first part is saying that the final administer move order [00:03:01] Speaker 03: is just invalid based on the congressional authority that the Department of Homeland Security can issue it. [00:03:06] Speaker 03: There is a process that is required to be put into place before the final administrative order can be issued. [00:03:11] Speaker 03: The process was not followed. [00:03:13] Speaker 03: It is legally invalid. [00:03:14] Speaker 03: It is an unlawful order. [00:03:15] Speaker 02: Okay, so what case says that if the process is not followed for issuing the removal order, it's void, ab initio. [00:03:22] Speaker 02: What case says that? [00:03:23] Speaker 03: Your honor, there is no case that says that, but the final administrative removal order is a process that is enumerated in Congressional statute and DHS regulations. [00:03:32] Speaker 03: Those processes were not followed. [00:03:33] Speaker 03: It is just invalid. [00:03:34] Speaker 02: All right. [00:03:34] Speaker 02: If we don't, if we're not persuaded by that argument, could we go back to the issue of due process and what prejudice has been shown? [00:03:45] Speaker 03: Of course, your honor. [00:03:47] Speaker 03: Due process violation does require a showing of prejudice, and prejudice is shown in this case in two separate instances. [00:03:53] Speaker 03: When the final administrative removal order was already issued and signed prior to him even being provided notice of the charges, being provided notice of the notice of intent, there was no opportunity for him to respond and to express a fear-based claim. [00:04:10] Speaker 03: That opportunity was robbed from him. [00:04:12] Speaker 03: And that opportunity, which was expressly enumerated in the Congressional statute and in DHS regulations, that opportunity to respond to the charges, [00:04:22] Speaker 03: That is a due process violation. [00:04:24] Speaker 03: And the president says he was not able to express that claim at that instance to be able to then trigger a reasonable fear interview and that entire process for him to be able to seek relief as a deferral of the removal. [00:04:37] Speaker 01: Right, but if the only thing that he'd be seeking is deferral under CAD, that's not a challenge to the order of removal. [00:04:46] Speaker 01: That just means that the order of removal can't be carried out to India under the cat. [00:04:56] Speaker 01: So why, if that's the only thing that he says he would have done, why would it make sense to vacate the order of removal, which it would have been entirely appropriate to enter an order of removal even if he was seeking and even if he obtained cat deferral. [00:05:16] Speaker 01: Right, Your Honour. [00:05:18] Speaker 03: The vacating the final order of removal is necessary to allow him to respond to the notice of intent in the first place. [00:05:25] Speaker 03: The response of the notice of intent then allows him to make that fear-based interview. [00:05:30] Speaker 03: So when the government simultaneously served the final order of removal and the notice of intent simultaneously on petitioner, completely robbed all of the opportunities for him to make that fear-based interview. [00:05:40] Speaker 03: That final administrative order became the operative document, became the overriding factor. [00:05:45] Speaker 03: And once that is in play, then there was no opportunity. [00:05:47] Speaker 03: So the vacating of the order is necessary to be able to allow a response to the notice of intent as is required by the congressional statute and of the DHS's regulations. [00:06:01] Speaker 04: If the department were following things in the way that you believe they should have, when would he have asked for a reasonable fear interview? [00:06:11] Speaker 04: Would it have been within the 10-day window or afterwards? [00:06:14] Speaker 03: Yes, Your Honor. [00:06:15] Speaker 03: The opportunity to express the fear-based claim occurs during that 10-day window before the final administrative removal order is issued and signed. [00:06:24] Speaker 03: If Mr. Iqbal was able to have the opportunity to express that fear-based claim, [00:06:29] Speaker 03: then at that point in time you have been referred to the asylum judge for further proceedings and further interview to determine the credibility of that fear-based interview. [00:06:36] Speaker 04: Let's just hypothetically say he asks for a fear-based interview, the asylum officer agrees that there's a reasonable fear. [00:06:44] Speaker 04: Would the order of removal still be entered in that case if there is a possibility of deferral under CAD or no? [00:06:52] Speaker 03: The final administrative in that case after the 10-day period may or may not still be issued in this case it may have been It likely would have still been issued, but that's still he's still entitled to relief of deferring that removal and deferring then this goes back to Judge Miller's point which is if you're not challenging the order of removal itself [00:07:15] Speaker 04: you know, the factual grounds underlying it, then how are you establishing actual prejudice from the 10-day... I can understand your point of establishing some level of prejudice over not being given an opportunity to ask for a reasonable [00:07:31] Speaker 04: fear interview, and to have the ability of counsel to help prepare a request for deferral under CAT. [00:07:38] Speaker 04: But does it require vacater of the removal order? [00:07:41] Speaker 04: Let me ask it this way. [00:07:43] Speaker 04: Do we need to vacate the removal order in order to direct the government to try to bring back your client in order to make a request for deferral under CAT? [00:07:55] Speaker 03: The answer to that question would be no, it would not be required to vacate the removal order to remand for further proceedings, which is what Mr. Iqbal was denied in the first place. [00:08:06] Speaker 03: So this panel may be able to remand, reverse a decision and remand for further proceedings to be able to express his fear-based claim and to ask for that fear-based interview. [00:08:20] Speaker 03: And that is what we are seeking here. [00:08:23] Speaker 01: So you're not seeking vacator? [00:08:28] Speaker 03: No, Your Honor. [00:08:30] Speaker 03: We are not seeking vacancy of the specific order, but we are seeking remanding for further proceedings. [00:08:37] Speaker 04: And just to clarify one other thing, in your briefing you mentioned Montes Lopez, which is one of our prior cases that says under certain circumstances for removal proceedings, no showing of prejudice is required. [00:08:51] Speaker 04: You know, but we have a different case, Gomez-Velasco, which I think narrowed it to say in these administrative removal proceedings, you do have to show prejudice. [00:09:00] Speaker 04: Which case do you think applies? [00:09:02] Speaker 04: I assume you mean Gomez-Velasco because you were saying that you do need to show prejudice. [00:09:07] Speaker 03: Your Honour, in this case, on his initiative, there's prejudice per se, but not being able to be represented by legal counsel, and that is Montes. [00:09:19] Speaker 03: Montes Lopez Montes Lopez yes the honor thank you the absence of legal counsel in this case is prejudice per se and taking a step back you have to understand that in those cases the the factual background is the the proceedings were before an immigration judge were on a different kind than the expedited removal proceedings as they are here and [00:09:43] Speaker 03: In this expedited removal proceedings, the DHS is given a very powerful tool, in which case they are both the prosecutor, the judge, and the enforcer. [00:09:52] Speaker 03: And in this situation, there is no immigration judge. [00:09:54] Speaker 03: There is no immigration board. [00:09:55] Speaker 03: The only process for review of this petition is with this court on appeal. [00:10:01] Speaker 03: And in the circumstances of this case, when Mr. Igball was approached by DHS agents on July 25th, read his Miranda rights, exercise his right to remain silent, and at the same time was [00:10:12] Speaker 03: was told, if you cannot afford a council, one will be provided for you. [00:10:18] Speaker 03: Two days later, he was served simultaneously with the notice of intent and the final administrative removal order. [00:10:23] Speaker 03: In this situation, that deprivation of council is paramount. [00:10:26] Speaker 03: At this point in time, he only had 14 days before he could have been removed. [00:10:31] Speaker 03: He only had 30 days to petition this court for review. [00:10:34] Speaker 03: And the prejudice, at that point in time, when council would have been able to direct his fear [00:10:42] Speaker 03: based claim to get that interview. [00:10:44] Speaker 03: But additionally, counsel would have been, if a prejudice is required to be shown, counsel was imperative at that moment in time, because when Mr. Iqbal filed for a petition or a review, the counsel would have been able to file for a stay of removal. [00:11:00] Speaker 01: Can you say a little bit more about the proceedings that you contemplate happening on remand? [00:11:05] Speaker 01: So as I now understand, you're not asking us to vacate the order of removal. [00:11:11] Speaker 01: So the order of removal would remain in place. [00:11:14] Speaker 01: He's obviously been removed. [00:11:18] Speaker 01: So we remand to the agency and tell them to do what, precisely? [00:11:26] Speaker 03: For further proceedings, one thing, Your Honor, is to provide him a fear-based interview with an asylum judge. [00:11:33] Speaker 03: That is required under the Congressional statute, and one of the options he had to respond to the notice of intent, if it was properly issued, express a fear-based claim of persecution under the conventions against torture, in which case he would be given an interview, and that fear-based claim would be then further investigated, and the withholding would be deferred. [00:11:53] Speaker 01: But under the regulations, that's something that normally happens before the order of removal is entered. [00:11:57] Speaker 01: So we would just be telling the agency, you still have the order in place, but pretend that you don't and have the kind of proceeding that you would have if you hadn't already entered an order. [00:12:09] Speaker 03: Correct. [00:12:10] Speaker 03: The order would be entered, and then there would be a stay of removal, which in this case was not able to be entered because the petitioner was not counseled. [00:12:16] Speaker 01: What is the point of a stay of removal at this point? [00:12:20] Speaker 03: Once the petitioner is [00:12:22] Speaker 03: facilitated back into the United States, the state of removal would prevent him from being further deported to be able to finalize the proceedings. [00:12:32] Speaker 01: But his return, as I understand it, under the policy statement in Del Cid Marrakeen, is not automatic. [00:12:42] Speaker 01: He gets brought back if his presence is necessary for the proceedings. [00:12:48] Speaker 01: And so is it your view that [00:12:51] Speaker 01: His presence would be necessary for the further proceedings that you contemplate, so the agency would have to return him. [00:12:56] Speaker 01: Is that the idea? [00:12:57] Speaker 03: Yes, because the interview involves credibility determinations. [00:13:01] Speaker 01: I see. [00:13:02] Speaker 03: Your Honor, there's two minutes left. [00:13:03] Speaker 03: I'd like to reserve the remaining forward bottle. [00:13:08] Speaker 03: Thank you. [00:13:08] Speaker 02: Thank you, Counsel. [00:13:10] Speaker 02: We'll hear from the government. [00:13:21] Speaker 00: May it please the court, Rebecca Hoffberg-Phillips on behalf of the United States Attorney General. [00:13:26] Speaker 00: I'd like to start with the mootness issue because I think that's first and foremost. [00:13:30] Speaker 00: And I think the court asked the question and the government responded that technically this case is not moot because of the fact that technically under the return directive, there is a theoretical possibility of returning the petitioner. [00:13:44] Speaker 00: And that is in accordance with Del Cid Moroccan. [00:13:47] Speaker 00: If that case did not exist, [00:13:49] Speaker 00: the government might have a different position, but the problem is that that case is published precedent in 2016. [00:13:56] Speaker 00: It relies on a return directive that has not, to my knowledge or my office's knowledge, has been altered in any way, and that case says even if it's a theoretical possibility, it does not require the government to return the person. [00:14:08] Speaker 00: And in fact, in that case, the court expressly acknowledged it was fairly unlikely. [00:14:13] Speaker 00: And in this case seems to be the similar situation. [00:14:17] Speaker 00: Just because of the circumstances of this case in particular and the facts, it is only a theoretical possibility to my knowledge. [00:14:25] Speaker 00: And that is why we said it was not moot. [00:14:27] Speaker 00: It's perhaps a little bit of a legal fiction that way, because his presence may not even be necessary, even if this court [00:14:34] Speaker 00: Grant's petition, what he is seeking as this court has pointed out, is not a vacator of the order. [00:14:40] Speaker 00: He wants a reasonable fear interview, something he could have asked for at any time, which I'll get to in a moment. [00:14:46] Speaker 00: But the fact is, having an interview like that could be done from afar. [00:14:50] Speaker 00: It doesn't necessarily require his presence here. [00:14:52] Speaker 00: And it doesn't require a hearing before an IJ initially. [00:14:56] Speaker 00: It is simply an interview with an asylum officer. [00:14:59] Speaker 00: And that is what he is seeking. [00:15:01] Speaker 00: Because that is a theoretical possibility, the government has said that this is not moot under the return directive. [00:15:08] Speaker 00: I want to go now to the due process. [00:15:10] Speaker 04: Has the government conducted a reasonable fear interview from afar? [00:15:16] Speaker 00: I'm not aware of any reasonable fear interview having been requested. [00:15:19] Speaker 00: Definitely. [00:15:21] Speaker 04: My question is, has it been conducted? [00:15:22] Speaker 00: Oh, has it ever taken place that way? [00:15:24] Speaker 00: I'm not personally aware of the situation. [00:15:27] Speaker 00: I could just imagine in this day and age of technology and the ability to conduct hearings remotely since the pandemic in particular, [00:15:35] Speaker 00: it seems that a lot of immigration-related proceedings are done via teleconference. [00:15:41] Speaker 04: I mean, it would seem to me that if he finally was appointed pro bono counsel to assist in these matters and normally these reasonable interviews are done in person, that his physical presence would be helpful to his case if it were [00:15:59] Speaker 04: in the United States. [00:16:00] Speaker 04: But I mean, I take your point. [00:16:01] Speaker 04: The panel in, I'm sorry, what was the case again with Delsid? [00:16:07] Speaker 04: Delsid. [00:16:08] Speaker 04: Did say it was a theoretical possibility, but that was enough to defeat mootness. [00:16:11] Speaker 00: Exactly. [00:16:12] Speaker 00: And that is the only reason why we have said that this case isn't moot, because this court has allowed a theoretical possibility. [00:16:19] Speaker 00: And we are not making any representations at this time that he will be returned at all. [00:16:24] Speaker 00: So it's a theoretical possibility, because theoretically, under that return directive, [00:16:29] Speaker 00: he would be asking for additional agency proceedings. [00:16:31] Speaker 00: And that is one of the bases that's mentioned in the return directive. [00:16:35] Speaker 04: So is it the government's position that he did not ask for a reasonable fear interview? [00:16:39] Speaker 04: Correct. [00:16:41] Speaker 00: At no point. [00:16:41] Speaker 00: And in fact, he had 10 months. [00:16:43] Speaker 00: So I understand that this notice of intent issued the same day as the Pharaoh. [00:16:48] Speaker 00: Yes, however, he was not removed until about 10 months after the Pharaoh issued. [00:16:54] Speaker 00: So that issued in July of 2023, and he was removed in May of 2024. [00:17:00] Speaker 00: And at no time during that entire period of time, even though he understood that he could raise the claim as evidenced by his petition for review. [00:17:09] Speaker 04: What about his affidavit suggesting that he had been attacked for his sexual orientation in India? [00:17:18] Speaker 04: That affidavit was filed before he was removed, wasn't it? [00:17:23] Speaker 00: In his petition for review, he included an affidavit. [00:17:25] Speaker 00: He said that because I'm gay, I was physically and severely beaten by the Indian police and, you know, and so I will be killed or tortured if I remain there. [00:17:34] Speaker 00: So I came here and since then I've never gone back to India. [00:17:37] Speaker 00: Compare that to the fact that he came here on a J-1 visa. [00:17:40] Speaker 00: which is almost like a diplomat visa through the State Department. [00:17:43] Speaker 00: Somebody would have to be very well familiar with immigration policies to do that and clearly did not come here to escape harm in any way, came here on a visa, came with his co-conspirator who promptly opened up a bank account with him when they arrived in the US to continue a criminal scheme they'd been operating since 2011 from India in which they defrauded people out of their life savings, most of them elderly people. [00:18:07] Speaker 04: So when was the petition for review filed? [00:18:10] Speaker 00: The petition was filed in August. [00:18:13] Speaker 00: So this was another question about the timeliness. [00:18:15] Speaker 00: We applied the prisoner mailbox rule. [00:18:18] Speaker 00: So technically the Pharaoh issued on July 27th, 2023, and he had a date of filing the petition for review of August 14th of 2023, which would have been within 30 days of the Pharaoh, although it was not actually filed with this court until well after August 14th. [00:18:36] Speaker 04: So why didn't the government provide a reasonable fear interview at that point, given that, as you understand it, the affidavit suggests that there is a reasonable fear of his return based on that he would be persecuted or tortured? [00:18:50] Speaker 04: Because you said he never asked for one, but that seems pretty clear that there's a reasonable fear being alleged. [00:18:58] Speaker 00: I'll say that first, it's not the government's obligation to raise a reasonable fear or to request. [00:19:05] Speaker 00: My office is not in the position of having an obligation to do that. [00:19:10] Speaker 00: I'll say that first and foremost. [00:19:11] Speaker 00: It is always his obligation. [00:19:13] Speaker 00: The second thing is, I will say, I was not actually the counsel of record at that time, so I cannot speak to what was happening in the view of this case at that time. [00:19:24] Speaker 00: But I will say that because our point of view is that his claim is so bogus and that he is a known liar who defrauds people, there was probably a very good chance that the position was that this claim wasn't really viable. [00:19:37] Speaker 04: Why not just send him in front of an asylum officer and have that determination be made if you think it's bogus. [00:19:46] Speaker 00: It's certainly true, but that's how easy it was for him to ask for it, and he understood that. [00:19:52] Speaker 00: He understood in the rest of his petition for review filing, he said all I wanted to do was ask for the reasonable fear interview [00:19:58] Speaker 00: And I understand I have all these rights, and they were violated. [00:20:02] Speaker 04: So I mean, this person... So what is the formal process to ask for a reasonable fear interview? [00:20:07] Speaker 00: You check the box. [00:20:08] Speaker 04: If this filing doesn't do it. [00:20:09] Speaker 00: Yeah. [00:20:09] Speaker 00: You check a box on the form, or you simply state, I'm afraid to return to my home country. [00:20:14] Speaker 00: It's that simple. [00:20:15] Speaker 00: It does not require counsel. [00:20:16] Speaker 00: In fact, counsel can't be of assistance in that, because counsel doesn't know if you subjectively fear returning [00:20:21] Speaker 00: to your country that something only he would know and so he had the opportunity at any point to literally literally it's checking a box or making a simple statement that I'm afraid to return home anything of that nature would have triggered the interview that's the bare minimum that is all that it takes and it would have triggered even after the final order had already been entered [00:20:43] Speaker 00: Yes, I've seen plenty of reasonable fear interviews take place after the fair, because as this court has pointed out numerous times to my opposing counsel, he's not actually challenging the final order of removal, even though he [00:20:54] Speaker 00: claimed to be in his brief throughout, he's not actually challenging the basis of the removability. [00:20:59] Speaker 00: The final order remains in place. [00:21:00] Speaker 00: That will not be affected. [00:21:02] Speaker 00: It hasn't been affected, and it won't be affected. [00:21:04] Speaker 00: He is removable as an aggravated felon who is subject to expedited removal proceedings. [00:21:09] Speaker 00: And that removal order was executed pursuant to that pharaoh. [00:21:12] Speaker 00: What he seeks is sort of this collateral proceeding of a reasonable fear process, which is available to people in his position that have very limited recourse [00:21:22] Speaker 00: due to the basis of his remove ability. [00:21:25] Speaker 00: And so it is really that simple to request it. [00:21:28] Speaker 00: He could have done it at any time. [00:21:30] Speaker 01: This person is not- He could have done it at any time until he was actually removed. [00:21:35] Speaker 01: Is that what terminated his ability to do it? [00:21:37] Speaker 00: Yes, or I had been wondering if he had potentially reached out to his counsel from afar. [00:21:43] Speaker 00: I wouldn't know anything about those communications. [00:21:45] Speaker 00: I wouldn't know if they have any idea where he is. [00:21:47] Speaker 00: I know nothing about that. [00:21:48] Speaker 00: But at any time, I don't know if he has ever made any claim. [00:21:53] Speaker 01: Are you saying that he could do it now, even without us? [00:21:58] Speaker 00: I mean, he could theoretically. [00:22:00] Speaker 00: Well, no, this isn't theoretically. [00:22:01] Speaker 01: What is the government's position? [00:22:04] Speaker 01: If tomorrow he were to say, OK, now I want a reasonable fear interview, would he get one? [00:22:11] Speaker 00: If the government wanted to arrange something from afar? [00:22:14] Speaker 01: Well, no, but you're representing the government. [00:22:16] Speaker 01: Would you want to arrange something? [00:22:18] Speaker 00: It would be up to the DHS. [00:22:20] Speaker 01: The reason you are here is to tell us what their position is. [00:22:28] Speaker 00: I would say that it would only be at this point if this court were to grant the petition and they would be considering what the next step would be based on that at this point. [00:22:39] Speaker 02: Well, here's my confusion about that, is I thought you said that the reasonable fear interview could be requested at any time. [00:22:48] Speaker 02: And so the question is, with or without a ruling from the court, could he request a reasonable fear interview [00:22:56] Speaker 00: today as we sit here. [00:23:07] Speaker 00: ends up returning at that point and then seeking a reasonable fear, usually there's a reason to request it before you're removed. [00:23:15] Speaker 00: So most people don't raise it for the first time after removal. [00:23:18] Speaker 00: I have not seen that. [00:23:20] Speaker 00: But I'm not aware of something that actually prevents it. [00:23:23] Speaker 00: It just doesn't make a lot of intuitive sense because he's already back in India. [00:23:27] Speaker 00: Because you said you fear returning because you'll be tortured and then you're there. [00:23:31] Speaker 00: Right. [00:23:32] Speaker 00: And the fact that he's there and nothing has happened to him almost undermines the entire claim, if you were to say that at that point. [00:23:39] Speaker 01: We actually don't know what's happened. [00:23:41] Speaker 00: Exactly. [00:23:42] Speaker 00: Right. [00:23:42] Speaker 00: So there's a lot of factors there that we wouldn't... I've never seen that happen because it's usually just not the way that people would want to go about raising their claim. [00:23:51] Speaker 04: But... Is it in the government's discretion whether to grant or deny a request for a reasonable fear interview or must it take place? [00:24:01] Speaker 00: That's a process that's under the regulations. [00:24:04] Speaker 00: That's like a mandatory process. [00:24:05] Speaker 00: It doesn't involve discretionary relief. [00:24:07] Speaker 00: It involves mandatory relief. [00:24:08] Speaker 00: In this case, it's only deferral of removal. [00:24:11] Speaker 00: Right. [00:24:11] Speaker 00: And so that's a mandatory obligation under the convention. [00:24:14] Speaker 04: You're saying if he had requested it at any point before his removal, he would have been entitled to that reasonable fear interview. [00:24:25] Speaker 00: Yes, I've seen it happen many times where before removal happens but after the Pharaoh issues because again it has nothing to do with the final order of removal. [00:24:33] Speaker 00: I've seen it happen where people get the reasonable fear proceedings. [00:24:37] Speaker 04: As this court knows, Ryan... I guess what I'm a little bit stuck on is the notion that if he expressed in his affidavit a reasonable fear of returning to India, it almost seems as if you're just presenting a formalism about this. [00:24:54] Speaker 04: Because why isn't that construed as a request for a reasonable fear interview? [00:24:59] Speaker 04: And it happened in August and he doesn't get removed until March of the following year. [00:25:05] Speaker 00: Well, he understood in his filing who he needed to raise the claim to. [00:25:09] Speaker 00: I mean, he did understand that he should have been able to try to raise that to DHS. [00:25:15] Speaker 00: I understand that he indicated that at the time. [00:25:19] Speaker 00: I think he had an obligation to raise it himself to DHS. [00:25:24] Speaker 00: I want to point out, we're not talking about the typical petitioner here. [00:25:28] Speaker 00: In many of these cases, someone doesn't know English, or they're very limited in their knowledge of how the system works. [00:25:34] Speaker 00: that is not [00:25:53] Speaker 00: is not somebody who doesn't understand what's going on the way that a typical petitioner does. [00:25:58] Speaker 01: And in all these cases where... The fact that he committed fraud is to his discredit, but really doesn't tell us much about his understanding of immigration law. [00:26:12] Speaker 01: And so I'm sort of puzzled by the argument that the level of process that he's due is different because of his other seemingly unrelated bad conduct. [00:26:25] Speaker 00: I mean, if we if we accept that he was pro se when he filed this petition for review, let's he was right. [00:26:31] Speaker 01: I mean, it was for pro se petition. [00:26:35] Speaker 00: When you read his petition for review, it does not come across. [00:26:39] Speaker 00: I mean, you say, like, how do we know what he knows about the law and about how things work? [00:26:45] Speaker 00: I read this petition for review and immediately thought of ghostwriting, which is what I mentioned in my brief when someone has, maybe they don't have representation. [00:26:54] Speaker 00: He's either very- I read that part of your brief. [00:26:56] Speaker 01: If it was ghostwritten, it was not ghostwritten by a very good lawyer. [00:27:01] Speaker 00: It was written by somebody who understands how to cite statutes. [00:27:05] Speaker 00: It doesn't have to be a good lawyer. [00:27:06] Speaker 00: I'm saying that when you look at whether somebody was really clueless about what was going on and how much they understood, to get here on a J-1 visa, you have to have some knowledge of the immigration system. [00:27:18] Speaker 00: He didn't flee India. [00:27:19] Speaker 00: He came here in a very purposeful way after undertaking a very purposeful process through the State Department. [00:27:25] Speaker 00: And then he submits something that includes a lot of citations to cases, to statutes, a lot of legal jargon. [00:27:32] Speaker 00: Somebody that clearly understood enough to be able to understand what he claims that he wasn't told he should have understood. [00:27:43] Speaker 00: It's very clear at that point that he is not the typical person. [00:27:47] Speaker 00: And I just want to point out Judge Rawlinson was on our best case, I think, for this whole idea that he was not denied due process is an unpublished decision. [00:27:56] Speaker 00: Rojas Galvez, that Judge Rawlinson was on in 2015, it is an unpublished decision. [00:28:02] Speaker 00: But specifically, the case says [00:28:03] Speaker 00: The due process claim fails where the record indicates he was advised of his rights but refused to sign the form I-851, which is the NOI. [00:28:12] Speaker 00: There's a second unpublished decision that similarly deals with the refusal to sign the form, and that's taken as a waiver of the rights on there. [00:28:19] Speaker 00: So that takes care of that and then has... But doesn't take care of that because it's unpublished. [00:28:25] Speaker 00: Yes, Your Honor. [00:28:26] Speaker 00: But in terms of whether he was denied due process, we would say that he was not with respect to when the issuance of the fair. [00:28:34] Speaker 00: I see that my time is running out, so I'm trying to sum up. [00:28:37] Speaker 00: But we would say that I also want to point out that Gomez Velasco postdates Lopez Montez. [00:28:44] Speaker 00: Lopez Montez issued in 2012. [00:28:46] Speaker 00: Gomez Velasco issued in 2018 and specifically applies to administrative removal proceedings. [00:28:52] Speaker 00: It is the case that is much more applicable [00:28:54] Speaker 00: to the set of circumstances we have here with a showing of prejudice. [00:28:58] Speaker 00: And from the government's perspective, there's no presumption of prejudice and no actual prejudice shown, whereas I pointed out, in addition to the fact that he came here on a J-1 visa and intended to defraud people, [00:29:09] Speaker 00: He gave counseled, interviewed statements during his pre-sentence investigation report that undermine any claim of past harm that he was alleging in his affidavit, which is another reason why whoever looked at this potentially initially could have seen that his claim was completely contradictory to the evidence that the government already had regarding his background. [00:29:30] Speaker 00: And it seemed like a last-ditch effort and an attempt to stay here. [00:29:32] Speaker 00: All right. [00:29:33] Speaker 00: Thank you, counsel. [00:29:34] Speaker 00: Thank you, your honor. [00:29:34] Speaker 00: The bottle. [00:29:43] Speaker 03: Your Honor, I'd like to briefly address the... Our law firm was appointed counsel on Friday afternoon at 4 p.m. [00:29:50] Speaker 03: on May 17th. [00:29:51] Speaker 03: Petitioner was deported following Monday, the following business day. [00:29:54] Speaker 03: We have not been able to contact counsel after repeated attempts since... You've not been able to contact counsel? [00:30:00] Speaker 03: We have not been able to contact petitioner since deportation. [00:30:05] Speaker 03: Petitioner was denied counsel throughout this entire proceeding. [00:30:08] Speaker 03: He was denied counsel when he was not provided the list of free legal services. [00:30:12] Speaker 03: He was denied counsel when he was read his Miranda rights, which said, one will be appointed for you, but one never was. [00:30:17] Speaker 03: He was denied counsel when he was deported the business day after we have been appointed. [00:30:23] Speaker 03: For 10 months, he was not able to have proper counsel to be able to understand this labyrinth of immigration law to express how or when or how to even [00:30:31] Speaker 03: respond to any of this process that's been happening so fast and so quickly. [00:30:36] Speaker 04: Do you agree that he never asked for a reasonable fear interview during the time that he was being detained? [00:30:41] Speaker 03: Two points, Your Honor. [00:30:42] Speaker 03: One, he was never given an opportunity to express that because the FARA was issued immediately. [00:30:46] Speaker 03: And two, Your Honor was correct. [00:30:48] Speaker 03: In the affidavit filed on August 14th, he expresses fear of interview. [00:30:51] Speaker 03: And under Section 208.31, simply expressing a fear would then trigger that asylum interview. [00:31:01] Speaker 02: Counsel, was there a form that he was given where he had the opportunity to request a reasonable fear interview? [00:31:08] Speaker 02: A proposing counsel represents that he was given a form where he had an opportunity to check the box, and he didn't. [00:31:16] Speaker 03: Your Honor, he was provided two forms at the same exact time. [00:31:19] Speaker 02: But I'm just asking, was a form provided to him that gave the option of requesting a reasonable fear interview? [00:31:26] Speaker 03: Yes, a form was provided to them, but no opportunity to then respond to that form was provided. [00:31:31] Speaker 03: The opportunity was taken from him because the final administrative removal order was issued. [00:31:37] Speaker 02: So are you saying that once the removal order was issued, it was too late for him to indicate he wanted a reasonable fear interview? [00:31:46] Speaker 03: uncounseled, sitting in prison, when having those two pieces of paper, he did not understand that that was available. [00:31:52] Speaker 03: That could have been something that could easily have been remedied had he been given a list of free legal services to then consult with counsel or to understand any of these rights. [00:32:00] Speaker 03: That opportunity was not there and he was robbed of that. [00:32:03] Speaker 03: Your Honor, I see that my time is up. [00:32:05] Speaker 02: Thank you, counsel. [00:32:06] Speaker 03: Thank you. [00:32:07] Speaker 02: Thank you to both counsel for your helpful arguments. [00:32:11] Speaker 02: The case just argued is submitted for decision by the court.