[00:00:03] Speaker 01:
Good morning, honorable justices.

[00:00:06] Speaker 01:
I plan to use about seven minutes for my argument and reserve the remainder for rebuttal.

[00:00:12] Speaker 04:
Before you begin your argument, and we can not start the clock yet, I'd like you to explain to the court why you did not comply with our September 16, 2025 order requiring you to file a new status report.

[00:00:34] Speaker 01:
I have been in a medical issue, so I apologize to the court.

[00:00:42] Speaker 04:
If your answer is a medical issue, why don't you proceed with your argument.

[00:00:47] Speaker 01:
Thank you, Your Honor.

[00:00:52] Speaker 01:
Thank you for granting me this opportunity to represent Mr. Jakes, a Jamaican national with limited education.

[00:00:58] Speaker 04:
We can start the clock now.

[00:01:01] Speaker 01:
Thank you.

[00:01:02] Speaker 01:
As of last Saturday, Mr. Jakes was transferred once again to Golden State Prison in Fresno, California.

[00:01:09] Speaker 01:
Although ICE is obligated to provide me with a transfer notice, they failed to do so again.

[00:01:15] Speaker 01:
I highlight this issue because the increasing frequency of ICE detainees

[00:01:20] Speaker 01:
being relocated nationwide without prior notice to their attorneys, the appropriate courts, or the detainees themselves poses a significant risk of due process violations due to the government's oversight.

[00:01:35] Speaker 01:
The issue here is, did the board violate the petitioner's right to due process where it sent the briefing schedule to the wrong detention facility?

[00:01:46] Speaker 04:
Council, before you get to that, the question that we had asked you to address in the September 15th order

[00:01:53] Speaker 04:
was did you ever file a motion, the motion to reopen that you basically told us you filed, did you ever file that with the BIA?

[00:02:04] Speaker 04:
So what is your answer to that question?

[00:02:06] Speaker 01:
We did.

[00:02:07] Speaker 01:
And when I followed up with the court, I was informed that they had no record of it.

[00:02:15] Speaker 04:
So as an officer of the court, you are telling us that you filed it by what means?

[00:02:22] Speaker 01:
Mail, Your Honor.

[00:02:23] Speaker 04:
It's a paper file, I apologize.

[00:02:25] Speaker 04:
So you mailed it to the BIA, but they have no record of it?

[00:02:31] Speaker 04:
That's correct, Your Honor.

[00:02:33] Speaker 00:
All right, go ahead.

[00:02:34] Speaker 00:
Can you tell us approximately when you mailed it?

[00:02:37] Speaker 00:
And Council, if I could just ask you to keep your voice up a little bit, I'm having trouble hearing you.

[00:02:42] Speaker 01:
I apologize, that's not what my husband says.

[00:02:44] Speaker 00:
It's okay, I can hear you now.

[00:02:47] Speaker 01:
May 15th.

[00:02:49] Speaker 01:
Okay, thank you.

[00:02:50] Speaker 01:
Of this year?

[00:02:51] Speaker 01:
Of this year?

[00:02:53] Speaker 01:
Yes, Your Honor.

[00:02:55] Speaker 04:
May 15th of 2025?

[00:02:59] Speaker 04:
I'm sorry, I apologize.

[00:03:04] Speaker 04:
In the proof of service of the exhibit you gave us, you say on April 8, 2024, you served a copy of the motion to reopen upon counsel for the respondent.

[00:03:17] Speaker 01:
Sorry, I apologize.

[00:03:18] Speaker 01:
We followed up on that day.

[00:03:21] Speaker 01:
That's correct, Your Honor.

[00:03:23] Speaker 01:
So April of 2024?

[00:03:24] Speaker 04:
Yes.

[00:03:26] Speaker 04:
Okay, go ahead.

[00:03:27] Speaker 01:
We made an inquiry in May as well of this year, and then we followed up in September.

[00:03:33] Speaker 01:
And then just so this court is aware, my client is indigent.

[00:03:40] Speaker 01:
This is a pro bono matter.

[00:03:42] Speaker 01:
And the government has introduced substantial filing fees in these matters now for motions to reopen.

[00:03:52] Speaker 01:
Okay, go ahead.

[00:03:53] Speaker 01:
Thank you, Your Honor.

[00:03:56] Speaker 00:
I'm sorry, Judge Thomas, do you have a question?

[00:03:59] Speaker 00:
No, I was just going to go ahead and ask a question, which is even if we assume that Mr., is it Jakes?

[00:04:06] Speaker 00:
Am I pronouncing that correctly?

[00:04:07] Speaker 01:
Yes, Your Honor.

[00:04:08] Speaker 00:
Okay, that Mr. Jakes didn't properly receive notice.

[00:04:14] Speaker 00:
Have you done an adequate job here of communicating to us what the prejudice

[00:04:20] Speaker 00:
In other words, what exactly are the meritorious arguments that you would plan to make if you prevail here?

[00:04:30] Speaker 01:
I think that Mr. Jake's due process rights were violated by not receiving the initial briefing schedule.

[00:04:43] Speaker 01:
And so that was what I was trying to get to.

[00:04:46] Speaker 01:
I think that the sole issue is, did the board violate the petitioner's right to due process where it sent the briefings?

[00:04:54] Speaker 04:
But counsel, to follow up on Judge Thomas's question, let's assume we were to agree with you.

[00:05:02] Speaker 04:
that there was a due process problem here isn't the second part of the inquiry Whether he was prejudiced by that ie whether he had some type of meritorious Defense that could have led to a different result and Honestly in your opening brief here, and you didn't file I don't believe a reply brief I see

[00:05:31] Speaker 04:
I don' t see no laid out argument as to what the board did that was erroneous the second time and why.

[00:05:40] Speaker 04:
I see a line in your brief that says one sentence this wasn' t a particularly serious crime but I don' t see any analysis of the board' s discussion of its own precedent or anything else which

[00:05:59] Speaker 04:
and your inability to file a brief prejudiced you.

[00:06:02] Speaker 04:
Why, and the government pointed that out in their opposing brief and you filed no reply.

[00:06:08] Speaker 04:
Why wouldn't your failure in your opening brief to tell us the semblance of an argument of prejudice on the merits, why isn't that the end of the matter?

[00:06:22] Speaker 01:
Well, I don't think it's the end of the matter because

[00:06:26] Speaker 01:
I mean, individuals rely on the fact that they're going to be responding to a briefing schedule.

[00:06:33] Speaker 01:
In this particular case, there was not.

[00:06:35] Speaker 01:
The fact that there was no briefing schedule rendered to Mr. Jakes didn't give him a meaningful opportunity.

[00:06:43] Speaker 01:
And so he couldn't address.

[00:06:47] Speaker 00:
But Council, then if you can't articulate prejudice, I mean, what's the exercise then that you're asking us to go through?

[00:06:56] Speaker 00:
So, you know, if we agree with you that there was an adequate notice, that there was a due process violation, we reverse, we remand, then what happens?

[00:07:08] Speaker 00:
I mean, if you can't articulate prejudice, I'm not sure why we're going through that exercise.

[00:07:13] Speaker 01:
Well, in my mind, and perhaps this is where I come from, I mean, the immigration court judge found for Mr. Jakes twice, and he addressed, you know, the particular serious crime, and we believe that he'll prevail.

[00:07:30] Speaker 01:
I mean, we just didn't have the opportunity to lay out that argument for the BIA.

[00:07:36] Speaker 02:
Do you mind if I ask a question?

[00:07:38] Speaker 02:
There were two appeals, and your client never participated in either.

[00:07:44] Speaker 02:
And in the first appeal, the BIA remanded to say, look at drug trafficking.

[00:07:52] Speaker 02:
But it drew a dissent.

[00:07:54] Speaker 02:
And to me, that dissent was notable because it mentioned matter of NAM.

[00:07:58] Speaker 02:
which is one of the standards that the board applies for whether a conviction qualifies as a particularly serious crime.

[00:08:07] Speaker 02:
And then later on, the discussion turned to matter of YL.

[00:08:10] Speaker 02:
What in your view is the correct standard to apply between matter of NAM and matter of YL?

[00:08:17] Speaker 02:
Or is that an undecided issue?

[00:08:19] Speaker 02:
Is that something that you were planning to bring up?

[00:08:21] Speaker 02:
Because in your brief, you said you were gonna try to rely on board precedent.

[00:08:24] Speaker 02:
I'm trying to understand what board precedent are you looking to?

[00:08:27] Speaker 01:
I was, and I was going to also distinguish, in this particular case, Mr. Jakes was a passenger in a vehicle.

[00:08:36] Speaker 01:
He did not own the vehicle itself when the stop happened.

[00:08:39] Speaker 01:
It was like 20 pounds of marijuana, right?

[00:08:41] Speaker 01:
Yeah, it was not his vehicle.

[00:08:44] Speaker 01:
It was actually a U.S.

[00:08:46] Speaker 01:
citizen who was driving the car.

[00:08:49] Speaker 01:
He did not know the drugs were in the back of his vehicle.

[00:08:55] Speaker 01:
He had no idea.

[00:08:56] Speaker 01:
I think an average person such as myself, if I was going to be sitting with my friend and they were going to drive me somewhere, I wouldn't be saying, oh, let's go ahead and let me check the back of the truck.

[00:09:13] Speaker 04:
And I think this is following a little bit on Judge Sanchez's question and Judge Thomas's question What does that have to do with the first and sixth?

[00:09:25] Speaker 04:
factors of matter of YL, which is what the board

[00:09:31] Speaker 04:
to the board.

[00:09:32] Speaker 04:
The board said that the 20 pounds of marijuana is not a small amount.

[00:09:38] Speaker 04:
And even the immigration judge said because of this large quantity, it could affect adversely juveniles.

[00:09:45] Speaker 04:
And the board said our precedent shows you have to meet every one of the six.

[00:09:49] Speaker 04:
They found two that you didn't meet, that your client didn't meet.

[00:09:53] Speaker 04:
You didn't address it in your

[00:10:00] Speaker 04:
What is it that you would say about that?

[00:10:04] Speaker 01:
I would reflect back to the DAR, basically the record of proceedings, where we went through the instance of Mr. Jake's, how he was stopped by Utah police in this particular case, as well as what was surfaced.

[00:10:26] Speaker 04:
I'm going to ask a more focused question then.

[00:10:31] Speaker 04:
The Board said there must be unusual circumstances that at a minimum one involved a very small quantity of controlled substance.

[00:10:43] Speaker 04:
The Board said if you don't meet each of one through six, including one that I talked to you about, you lose automatically under our precedent.

[00:10:56] Speaker 04:
Why, if you went back to the board, how would you argue to the board that that determination was wrong when the board said 20 or 27 pounds, whichever it is, is obviously not a small quantity.

[00:11:10] Speaker 04:
There's no evidence here that it's a small quantity.

[00:11:14] Speaker 04:
Thus, under YL, he automatically loses.

[00:11:17] Speaker 04:
What is your response to that?

[00:11:25] Speaker 01:
I would bring the totality of, you know, the circumstances of Mr. Jake's particular stop into this.

[00:11:34] Speaker 01:
I know that, you know, we talk about 20 pounds of marijuana, but in reality we would want to, you know,

[00:11:44] Speaker 01:
point out to the board, it wasn't, he had no ownership of this.

[00:11:49] Speaker 01:
That was something even the immigration judge found in the DAR.

[00:11:54] Speaker 01:
And so we think that, you know, that is an appealable issue that the board can address.

[00:11:59] Speaker 02:
Well, Ms.

[00:11:59] Speaker 02:
Sol, can I ask this?

[00:12:00] Speaker 02:
I tend to agree with my colleague, Mr. Bennett, Judge Bennett, that if matter of YL were the applicable standard, it seems like your client would have an uphill climb.

[00:12:11] Speaker 02:
But that seems to me to be an open question because matter of YL only applies to aggravated to convictions for aggravated felonies.

[00:12:21] Speaker 02:
And I didn't see the board or anyone conduct some sort of categorical analysis to determine if this conviction under the Utah statute qualifies as an aggravated felony under our Supreme Court's decision in Moncrief.

[00:12:36] Speaker 02:
And I think that's what the board dissenter was alluding to by mentioning a matter of NAM instead as the applicable standard.

[00:12:45] Speaker 02:
So if, and I don't know to what extent you're familiar with either of those precedents, but would you have more leeway in your view if you're arguing in a matter of NAM or do you concede that matter of YL is the right standard that the board should have applied?

[00:13:04] Speaker 01:
I would, I wouldn't concede that

[00:13:11] Speaker 01:
to anything at this point, your honor, without getting into the arguments.

[00:13:15] Speaker 01:
But I would sit there and say that because very often, I mean, this is

[00:13:26] Speaker 01:
something Mr. Jakes was under the impression, I call it the get out of jail card.

[00:13:33] Speaker 01:
He took a plea that rendered him, which he thought was a misdemeanor, and that's something that needs to be addressed.

[00:13:42] Speaker 01:
He was under the impression that he was not an aggravated felon.

[00:13:49] Speaker 01:
So I would argue to the former,

[00:13:53] Speaker 02:
Well, and I'll ask opposing counsel some of these same questions, but is it enough?

[00:13:59] Speaker 02:
You were arguing also for presumption of prejudice.

[00:14:01] Speaker 02:
Can you speak to that?

[00:14:03] Speaker 02:
What is it about these factors in this case where he was not allowed to participate in these appeals that tell us that we should presume prejudice?

[00:14:12] Speaker 02:
Because I haven't been able to see any case law one way or the other when it's the government appealing

[00:14:18] Speaker 02:
of prejudice usually applies when there's ineffective assistiveness and it's often not applied at all.

[00:14:26] Speaker 02:
So why do you think a presumption of prejudice should apply here?

[00:14:31] Speaker 01:
Well, I think that there is some case law where when we were looking at it,

[00:14:42] Speaker 01:
And I think when I look at, you know, a case like Vasquez, Bostak, 349 FRD 333, the court acknowledged that the delays, you know, in the bond appeal could violate due process rights by exposing detainees to unnecessary harm.

[00:14:58] Speaker 01:
With that reasoning, I think that similarly,

[00:15:01] Speaker 01:
You know, the absence of a briefing schedule could result in unreasonable delays, further infringing on a detainee's due process rights.

[00:15:12] Speaker 01:
I mean, that's the rationale that we are going with.

[00:15:15] Speaker 01:
And I think that this court in the past

[00:15:19] Speaker 01:
You know, in Hernandez v. Sessions, the court waived even prudential exhaustion because the legal question it issued did not require an administrative record for resolution.

[00:15:31] Speaker 01:
And so we're going along those, you know, factors.

[00:15:36] Speaker 01:
And I think that, you know, because the Fifth Amendment was violated, I think that, you know, there is an expectation that an indigent client, or any client for that matter,

[00:15:47] Speaker 01:
should have a briefing schedule, and not getting a briefing schedule is undue prejudice.

[00:15:54] Speaker 01:
I mean, for me, that's part of what an individual relies on.

[00:16:03] Speaker 04:
Council, you've exhausted your time.

[00:16:04] Speaker 04:
If my colleagues don't have any more questions.

[00:16:08] Speaker 04:
Not right now.

[00:16:09] Speaker 04:
We'll give you some time for rebuttal.

[00:16:11] Speaker 04:
We took up a lot of your time with questions.

[00:16:13] Speaker 04:
Thank you, Your Honor.

[00:16:22] Speaker 03:
May it please this Court, my name is Andrew Oliveira on behalf of the Respondent, the Attorney General of the United States.

[00:16:28] Speaker 03:
The board determined that Jake's drug trafficking conviction constituted a particularly serious crime rendering him statutorily ineligible for withholding of removal.

[00:16:37] Speaker 03:
To address Judge Sanchez's question, the immigration judge in the first hearing determined that the conviction was an aggravated felony which rendered him statutorily ineligible for asylum and cancellation of removal.

[00:16:51] Speaker 03:
And that determination was never contested at any point until now.

[00:16:58] Speaker 02:
Do you have that record set for that?

[00:17:04] Speaker 02:
Pardon was that your honor?

[00:17:05] Speaker 02:
Do you have a record set for where the IJ made that finding?

[00:17:08] Speaker 03:
Not off the top of my head.

[00:17:09] Speaker 02:
Okay, I can track it down as well.

[00:17:13] Speaker 03:
I believe the board addressed it in its first decision is what they noted that the asylum and cancellation had been waived.

[00:17:23] Speaker 00:
I think Judge Sommers.

[00:17:24] Speaker 00:
I'm sorry, I mean I do want to

[00:17:29] Speaker 00:
eventually get to the mayor's.

[00:17:30] Speaker 00:
But I wanted to start out with just this due process issue.

[00:17:33] Speaker 00:
Are you able to tell us definitively where Mr. Jocks was being detained when the briefing materials for the second appeal were sent to him?

[00:17:44] Speaker 03:
The record suggests that he was still detained at the Nye County Detention Center on Siri Avenue.

[00:17:53] Speaker 03:
DHS filed the change of address on June 14th.

[00:17:58] Speaker 03:
And admittedly, they failed to check the box exactly when he was moved from Nye County to Nevada Southern.

[00:18:07] Speaker 03:
However, there's nothing in the record to suggest that he was moved

[00:18:12] Speaker 03:
prior to the issuance of the briefing schedule?

[00:18:17] Speaker 00:
Because DHS- Well, but it seems unclear.

[00:18:20] Speaker 00:
I mean, I agree with you.

[00:18:24] Speaker 00:
There's nothing to suggest that he was moved, but there's also nothing to suggest that he wasn't moved.

[00:18:29] Speaker 00:
It just seems confusing given what was filed.

[00:18:33] Speaker 03:
Correct.

[00:18:33] Speaker 03:
I would note that DHS mailed the brief to Nye County.

[00:18:39] Speaker 03:
and they didn't change the address until after the briefing deadline had been completed.

[00:18:47] Speaker 03:
So there's nothing to establish that the board mailed the briefing schedule to the wrong address.

[00:18:56] Speaker 02:
This was Judge Thomas's question, but after the briefing schedule, the notice of appeal, those all went to Nye County, is that what you were saying?

[00:19:06] Speaker 02:
Correct.

[00:19:08] Speaker 02:
But then DHS files the most recent notice to EOIR that he has been at this Mesquite Avenue address in Parup, Nevada since October 6, 2021.

[00:19:22] Speaker 02:
And that was the last filing to EOIR.

[00:19:26] Speaker 02:
So why doesn't that indicate that he was actually in a different location this entire time?

[00:19:33] Speaker 03:
It's simply just from the record, it seems that they just filled the form out incorrectly.

[00:19:41] Speaker 03:
They didn't put the correct transfer date.

[00:19:44] Speaker 02:
But they didn't put anything for the transfer box at all.

[00:19:47] Speaker 03:
Correct.

[00:19:48] Speaker 03:
Admittedly, it does make it confusing, and that's why we can't

[00:19:54] Speaker 03:
why, as we argue, the question should be dealt with by the board in the first instance through the motion to reopen.

[00:20:01] Speaker 02:
But why doesn't it just establish, I mean, doesn't that, at a minimum, establish a due process violation?

[00:20:06] Speaker 02:
Because if there's a confusion as to where he might be and the government's in the best position to understand where he might be, is notice reasonably calculated if there's no follow-up as to where he should go, as to whether things should be served?

[00:20:20] Speaker 03:
Well, the Department of Homeland Security, which had him in custody,

[00:20:24] Speaker 03:
served him at, they filed their notice of appeal and they filed an address form for him indicating that he was at Nye County.

[00:20:38] Speaker 03:
The board subsequently served the briefing schedule to Nye County.

[00:20:43] Speaker 03:
DHS filed their brief on June 5th and mailed it to Nye County.

[00:20:49] Speaker 03:
Only after that, after the briefing deadline had elapsed, did they file the change of address saying that he was at Nevada Southern.

[00:20:59] Speaker 04:
I think the evidence that or some evidence that this motion was never filed with the board.

[00:21:10] Speaker 04:
Couldn't the panel proceed here to get to the merits, perhaps assume arguing that there was a due process violation and then proceed from there.

[00:21:26] Speaker 04:
Isn't that a permissible way we could handle this?

[00:21:30] Speaker 03:
But we did argue for the due process in the match.

[00:21:33] Speaker 03:
We are on the alternative.

[00:21:34] Speaker 03:
We do think that a motion to reopen, whether it was or was not filed, is the appropriate course because

[00:21:45] Speaker 03:
Jake's raises a factual issue where he was detained.

[00:21:49] Speaker 03:
And that should be best addressed by the board.

[00:21:52] Speaker 04:
But what would that mean in a circumstance where this has been fully briefed?

[00:21:57] Speaker 04:
It's before us now.

[00:21:59] Speaker 04:
There's no evidence that the board ever received this motion.

[00:22:03] Speaker 04:
And given that, there's nothing that is going to indicate that the board is going to rule on it.

[00:22:08] Speaker 04:
So and although this issue has been live now in this court for 3 months.

[00:22:14] Speaker 04:
There's been no new filing of any type of motion.

[00:22:19] Speaker 04:
So what is it that you're suggesting.

[00:22:24] Speaker 04:
We would do just hold this case open.

[00:22:26] Speaker 03:
I'm sorry.

[00:22:26] Speaker 03:
I'm sorry.

[00:22:27] Speaker 03:
No, Your Honor.

[00:22:27] Speaker 03:
We requested this court dismissed or excuse me, deny the petition for review.

[00:22:32] Speaker 03:
What on what basis on a lack of exhaustion?

[00:22:36] Speaker 04:
Exhaustion of what the due process?

[00:22:39] Speaker 03:
Yes.

[00:22:42] Speaker 03:
We believe that the board is in the best position to address this question, whether.

[00:22:46] Speaker 03:
The motion is pending before the

[00:22:56] Speaker 03:
and the board can adjudicate it and then file a petition for review to determine whether the board abused its discretion.

[00:23:05] Speaker 02:
Mr. Leverick, let me just interrupt.

[00:23:07] Speaker 02:
Can I just say, so the DHS has a legal obligation to update EOIR with the latest

[00:23:14] Speaker 02:
That's where the detainee is placed in what detention facility.

[00:23:17] Speaker 02:
Is that not right?

[00:23:18] Speaker 02:
Correct.

[00:23:20] Speaker 02:
And the most recent filing was the June 14th one that said he had been at Mesquite since October 6, 2021.

[00:23:28] Speaker 02:
And so the board receiving that,

[00:23:31] Speaker 02:
Why, I guess to me, this doesn't seem like a factual dispute, but more the due process analysis is, did the government take reasonably adequate steps to do something further if they thought that notice had not been perfected?

[00:23:46] Speaker 02:
Or that of the appeal of the briefing schedule of the government's brief, why the government didn't take further steps to verify where he actually was and that he had received these things?

[00:23:58] Speaker 03:
Well, the DHS did, because they repeatedly filed with the board that he was at Nye County.

[00:24:06] Speaker 02:
No, but the most recent one was June 4th.

[00:24:09] Speaker 02:
Do you agree that that's the last filing from DHS to the board?

[00:24:13] Speaker 02:
Yes.

[00:24:14] Speaker 02:
Okay.

[00:24:14] Speaker 02:
And that's the most recent one.

[00:24:15] Speaker 02:
And it's the it's not Knight County.

[00:24:17] Speaker 02:
It's the Mesquite address.

[00:24:19] Speaker 02:
Yes.

[00:24:20] Speaker 02:
And so the board is now in the possession of this information that DHS believes this person has been at Mesquite for the last two years.

[00:24:30] Speaker 02:
And so all of these filings have gone to the wrong place.

[00:24:34] Speaker 02:
But no one did anything after that.

[00:24:37] Speaker 03:
Well, your honor.

[00:24:38] Speaker 02:
So why is it a factual issue and not a due process violation?

[00:24:43] Speaker 03:
Well, it's a factual issue to determine whether there was an error of service.

[00:24:48] Speaker 02:
But there's no dispute that even when the board is armed with information that he might actually be somewhere else for two years, the board doesn't take any further steps, nor does DHS.

[00:25:02] Speaker 03:
Well, DHS had him in custody.

[00:25:04] Speaker 03:
That's why they served him at Nye County.

[00:25:08] Speaker 02:
Then why was June 14th filed?

[00:25:11] Speaker 03:
because he moved from Nye County to Nevada Southern because in his motion to reopen, and it's not in the administrative record, but it's in the docket 16, it's the exhibit, he says that he was transferred from, he doesn't give a date and he doesn't give specifics, but he was transferred from one facility to another because he was having problems

[00:25:37] Speaker 03:
at that original facet.

[00:25:41] Speaker 00:
He said he got assaulted.

[00:25:43] Speaker 00:
I'm sorry.

[00:25:46] Speaker 00:
It seems to me the problem is that we don't know when that transfer might have occurred because we don't have anything filed by the government.

[00:25:56] Speaker 00:
But I wanted to ask a different question.

[00:25:58] Speaker 00:
Assuming just that we disagree with you and that we think there's a due process violation here, should we presume

[00:26:06] Speaker 00:
Prejudice and if not, why not?

[00:26:10] Speaker 00:
If we find that he just did not have the ability to participate in the appeal because he didn't get notice, why can't we presume prejudice?

[00:26:19] Speaker 03:
No, you can't presume prejudice, Your Honor, because as we say, the Board fully considered the issue before it on appeal.

[00:26:28] Speaker 03:
They didn't simply just summarily affirm or in this case reverse and

[00:26:35] Speaker 03:
deny or issue a removal order.

[00:26:39] Speaker 03:
It was a DHS appeal.

[00:26:40] Speaker 03:
They fully addressed the issue on the merits and issued a full decision.

[00:26:46] Speaker 02:
But why isn't that prejudicial if they're fully addressing the merits based on one party's view of things and not the other?

[00:26:53] Speaker 02:
I'm just wondering if someone is shut out of the appellate process altogether because they weren't given proper notice and we're discussing this on the prejudice side of it.

[00:27:04] Speaker 02:
Why isn't that presumptively prejudicial?

[00:27:07] Speaker 03:
Because that's not this court's case law.

[00:27:16] Speaker 03:
And that the issue has been fully addressed and the board fully addressed matter of YL.

[00:27:22] Speaker 03:
And then before this court, Jakes does not in any way shape or form address the issue of prejudice.

[00:27:31] Speaker 04:
So counsel, wouldn't that mean what you just said, if that's correct and we agreed with you, wouldn't that mean that even if there were a presumption, the government has rebutted it?

[00:27:43] Speaker 04:
that's correct.

[00:27:44] Speaker 04:
So why don't you address that?

[00:27:45] Speaker 04:
Why don't you go past, why don't you tell us why there's no prejudice here that the government has shown and if that's your view?

[00:27:55] Speaker 03:
Yes, we did argue that even if there was a presumption of prejudice that the presumption was rebutted because Shakespeare's

[00:28:03] Speaker 03:
is his conviction, which is uncontested, is a drug trafficking conviction, which, pursuant to matter of YL, there is a presumption that it is a particularly serious crime.

[00:28:14] Speaker 02:
Can I stop you?

[00:28:16] Speaker 02:
Why is, because the not contested goes to this due process issue.

[00:28:21] Speaker 02:
How could it have been contested if he didn't participate in the appeal?

[00:28:26] Speaker 02:
In the first appeal, for example?

[00:28:29] Speaker 03:
Well, he didn't contest the conviction before the immigration judge.

[00:28:32] Speaker 03:
There's no question that he was convicted.

[00:28:35] Speaker 02:
Right.

[00:28:36] Speaker 02:
But did the immigration judge of the BIA ever conduct a categorical analysis to determine whether the Utah statute matches to the INA?

[00:28:45] Speaker 03:
The immigration judge did determine that it was an aggravated felony.

[00:28:49] Speaker 03:
But did it conduct a categorical approach analysis?

[00:28:53] Speaker 03:
I don't believe it was the most detailed analysis, but Jake's never appealed that determination.

[00:28:59] Speaker 03:
Council, I'm just, I'm asking a very specific question.

[00:29:01] Speaker 02:
Did it conduct a categorical analysis?

[00:29:04] Speaker 03:
I believe no, he determined that it was an aggravated felony.

[00:29:08] Speaker 02:
Okay, without conducting the analysis.

[00:29:10] Speaker 03:
Without analysis.

[00:29:12] Speaker 02:
Right, and under the Supreme Court's decision in Moncrief, you don't get to an aggravated felony until there's been that categorical analysis approach, is that right?

[00:29:22] Speaker 03:
But he wasn't being found for being an aggravated, it was the, well, he was, it goes to his question of relief, and he has to demonstrate that it's not an aggravated felony.

[00:29:34] Speaker 04:
did he ever ask in any proceeding for a determination on whether this was a categorical match or not?

[00:29:43] Speaker 03:
No, he did not.

[00:29:44] Speaker 04:
And here again, we're dealing with a conviction for 20 pounds, right?

[00:29:49] Speaker 04:
Correct, Your Honor.

[00:29:49] Speaker 04:
And would that be a match to the CSA?

[00:29:55] Speaker 03:
Yes, Your Honor.

[00:29:56] Speaker 04:
And what other factors are there that would go into it, beside whether it would be a match to the CSA?

[00:30:04] Speaker 03:
So they would have to, you would look at whether it was the transportation elements were in there, whether they were elements of the conviction.

[00:30:17] Speaker 03:
But again, the question isn't whether it was an aggravated felony here.

[00:30:26] Speaker 02:
But I think it is because do you agree that matter of YL only applies when it's an aggravated felony conviction?

[00:30:36] Speaker 02:
Well, it applies to drug trafficking convictions.

[00:30:40] Speaker 02:
So as I understand it, a matter of NAM and Fintescu factors apply normally, but there's a different path when it is a drug trafficking aggravated felony conviction.

[00:30:56] Speaker 02:
And that's the matter of

[00:31:00] Speaker 02:
Y.L.

[00:31:01] Speaker 02:
Is that right?

[00:31:02] Speaker 03:
Well, for particularly serious crime, it's not, they don't always have to be aggravated felonies.

[00:31:07] Speaker 03:
It's considering, that's the whole point of the particularly serious crime, that it considers, it's not just the bar on aggravated felonies.

[00:31:20] Speaker 02:
That's not what the attorney general's opinion on a matter of YL says or our decision in park.

[00:31:26] Speaker 02:
It says a matter of YL applies when there's been an aggravated felony conviction for drug trafficking.

[00:31:31] Speaker 02:
Otherwise, you apply the matter of NAM factors, which is what the dissenting judge in the first BIA appeal talked about.

[00:31:43] Speaker 02:
I mean, I guess, so just as I see this case, the reason why I see prejudice, and you can push back on these points, the reason why I see prejudice, even if you take away presumption of prejudice, is that there's a possibility of a different outcome if you were allowed to argue before an appeal that he was not allowed to participate in, that his is not, that matter of NAM should apply to the particularly serious crime determination, not matter of YL,

[00:32:13] Speaker 02:
because his was not an aggravated felony drug trafficking conviction.

[00:32:17] Speaker 02:
And under the categorical approach, you look at the least of the crimes, not necessarily his crime, to determine if there's a categorical match to the state law.

[00:32:27] Speaker 03:
But he's never challenged the immigration judges to determine that it was an aggravated felony.

[00:32:32] Speaker 02:
But he couldn't if he was not given that opportunity before an appeal.

[00:32:36] Speaker 03:
But he never appealed.

[00:32:38] Speaker 02:
But he also didn't participate in the government's appeal.

[00:32:41] Speaker 03:
But he, as this Court has held, he has to file a cross-appeal to challenge anything on the immigration judge that ruled against him.

[00:32:52] Speaker 02:
But he did challenge, well he is saying here that

[00:32:55] Speaker 02:
He wants to rely on board precedent in order to defend the IJ's decision to find that his conviction was not for not particularly serious crime.

[00:33:04] Speaker 02:
So he is raising that issue here, but it just seems a little odd to argue that he didn't challenge something when the government shut him out of the appeal.

[00:33:13] Speaker 03:
But the government didn't shut him out of the appeal.

[00:33:15] Speaker 03:
He was fully aware of the immigration judge's decision, and he did not file an appeal of the immigration judge's decision denying him asylum, cancellation of removal, or convention against torture.

[00:33:28] Speaker 04:
But he certainly was aware of what the immigration judge did.

[00:33:31] Speaker 04:
Yes.

[00:33:32] Speaker 04:
And including the characterization of the crime.

[00:33:36] Speaker 04:
Yes, Your Honor.

[00:33:37] Speaker 04:
And he could have certainly appealed that.

[00:33:39] Speaker 03:
Yes, Your Honor.

[00:33:40] Speaker 03:
And this court does have published precedents saying that when DHS appeals, the alien is required to file a cross-appeal if they want to challenge an adverse aspect of the immigration judge's decision.

[00:33:55] Speaker 02:
Right.

[00:33:56] Speaker 02:
But here, he wasn't even served with a notice of appeal.

[00:33:59] Speaker 02:
So, you know, some of this discussion has been about a briefing schedule, but was he even aware that an appeal was taking place by the government?

[00:34:08] Speaker 02:
In either the first or the second appeal?

[00:34:10] Speaker 03:
Yes.

[00:34:11] Speaker 03:
He was served at Nye County with the notice of appeal.

[00:34:17] Speaker 02:
But, of course, what's under debate is whether he was even at Nye County at that time.

[00:34:22] Speaker 02:
I mean, that is petitioner's allegation.

[00:34:27] Speaker 02:
I mean, it's also the June 14th notice to EOIR that he wasn't at Nye County.

[00:34:34] Speaker 00:
Correct.

[00:34:34] Speaker 00:
But if he wasn't there, on what basis is he filing a cross appeal?

[00:34:37] Speaker 00:
I mean, he doesn't know the appeals happening.

[00:34:42] Speaker 03:
Well, he doesn't allege that he did not receive the notice of appeal.

[00:34:46] Speaker 03:
He just simply says that he didn't receive the briefing schedule.

[00:34:50] Speaker 03:
At no point does he suggest that he didn't know that there was an appeal.

[00:34:56] Speaker 03:
So the idea that he couldn't, that he was unaware of what the immigration judge held is not supported by the record.

[00:35:03] Speaker 00:
All right.

[00:35:04] Speaker 00:
So if he doesn't know there's a briefing schedule, he doesn't know then that the opening brief has been filed to which he's supposed to then file his own appeal.

[00:35:11] Speaker 00:
I mean, I think your argument requires us to assume that he actually had notice, but maybe we'll just leave it there.

[00:35:21] Speaker 04:
All right, thank you, Council.

[00:35:22] Speaker 04:
We'll give you three minutes for rebuttal.

[00:35:33] Speaker 01:
Thank you.

[00:35:36] Speaker 01:
Mr. Jakes.

[00:35:39] Speaker 01:
is an indigent client.

[00:35:41] Speaker 01:
He has very limited education.

[00:35:43] Speaker 01:
He was under the care of DHS.

[00:35:49] Speaker 01:
And if they had the ability to produce a notice or the briefing schedule, which he hasn't received, it wasn't up until we were involved that we questioned them about these issues.

[00:36:07] Speaker 01:
We also think we disagree with, you know, counsel that he had notice because he fundamentally wants to have his rights and his, this conviction addressed before the Board of Immigration Appeals.

[00:36:31] Speaker 01:
This court, you know, I mentioned earlier has the ability where

[00:36:41] Speaker 01:
It's emphasized that prudential exhaustion is not jurisdictional and it can be waived if administrative remedies are inadequate, futile, or would result in irreparable harm.

[00:36:54] Speaker 01:
I think Mr. Jakes is that example.

[00:36:56] Speaker 01:
He would have had the ability to at least address these arguments with the Board of Immigration Appeals.

[00:37:06] Speaker 01:
In a more recent case that I was able to pull up, Dos Santos be known, while it is a district court of Massachusetts, it's a 2025 case, it said that

[00:37:24] Speaker 01:
that a useful record for a subsequent judicial consideration, especially in a complex technical or factual context.

[00:37:32] Speaker 01:
These circumstances were dos Santos.

[00:37:34] Speaker 01:
Liberty interests weigh heavily against requiring administrative exhaustion.

[00:37:38] Speaker 01:
Waiver of exhaustion is warranted.

[00:37:41] Speaker 01:
And that's what we're going to ask for here by this court as well.

[00:37:45] Speaker 01:
The potential for irreparable harm to the petitioner who is Mr. Jakes

[00:37:51] Speaker 01:
is in the form of continued detention and his inability to address his due process rights before the Board of Immigration appeals.

[00:38:03] Speaker 01:
Here the legal question at issue does not require an administrative record for resolution.

[00:38:09] Speaker 01:
I think that we rest on the fact that this case should be remanded to the board.

[00:38:16] Speaker 01:
We think that these due process rights

[00:38:18] Speaker 01:
for the very reason that I mentioned in my opening was that we're in a very interesting time in our country where clients are being moved around, notices are not being timely produced to even the attorneys or even the clients themselves.

[00:38:38] Speaker 01:
They don't have any idea when they're going to be moved.

[00:38:41] Speaker 01:
So we request that, you know, you remand this case back to them.

[00:38:46] Speaker 04:
We thank counsel for their arguments.

[00:38:48] Speaker 04:
The case just argued is submitted.

[00:38:51] Speaker 04:
Thank you.

[00:38:51] Speaker 04:
With that, we'll move to the final case on today's argument calendar, United States versus Burns.