[00:00:00] Speaker 03: The Ninth Circuit is now in session. [00:00:02] Speaker 03: Please be seated. [00:00:03] Speaker 03: Thank you. [00:00:10] Speaker 03: Good morning and welcome to the Richard Chambers Court House here, U.S. [00:00:15] Speaker 03: Court of Appeals here in Pasadena. [00:00:19] Speaker 03: It's a pleasure to be here this morning. [00:00:20] Speaker 03: We have a number of cases set on our docket. [00:00:24] Speaker 03: The first one, Angel Omar Olivares Acevedo versus Pamela Bondi has been submitted on the briefs. [00:00:33] Speaker 03: The next case, Gregorio Daniel Lara Rodriguez versus Pamela Bondi is set for oral argument. [00:00:42] Speaker 03: And so if Council are ready to proceed, I know we have someone appearing by video. [00:00:48] Speaker 03: You may begin. [00:00:53] Speaker 00: Yes, good morning, Your Honors. [00:00:54] Speaker 00: May it please the court. [00:00:55] Speaker 00: Menorate is for Petitioner Gregorio Lara-Rodriguez. [00:01:00] Speaker 00: This court has jurisdiction to review a final order of removal under 8 U.S.C. [00:01:05] Speaker 00: 1252. [00:01:06] Speaker 00: This court has held it has jurisdiction to review administrative closure decisions by the BIA per Gonzales-Carvalho recessions. [00:01:15] Speaker 00: This court should find on de novo review that petitioner warrants remand to the agency for administrative closure of removal proceedings [00:01:23] Speaker 00: to file an I-601A provisional waiver with the United States Citizenship and Immigration Services. [00:01:30] Speaker 00: Petitioner is the holder of an approved immigrant visa petition filed by his U.S. [00:01:34] Speaker 00: citizen wife. [00:01:36] Speaker 00: During his proceedings petitioner could only seek relief in the form of cancellation of removal. [00:01:42] Speaker 00: During his appeal, the Attorney General vacated EOIR precedent, which had prevented Petitioner from seeking administrative closure. [00:01:50] Speaker 01: So, counsel, putting aside the standard of review, in your motion to administratively close proceedings, did you ever tell the BIA that one of the reasons they should administratively close the case because you wanted to seek the 601A waiver? [00:02:11] Speaker 00: Your Honor, at the time, the waiver question was not yet right. [00:02:15] Speaker 00: At the time, the administrative closure was sought to allow adjudication of the I-130 with USCIS. [00:02:22] Speaker 01: And in fact, you told the BIA that your client didn't have an unlawful entry bar, which would have meant, as the government has pointed out, that he didn't need the 601A waiver, right? [00:02:35] Speaker 00: He didn't have a bar as far as having the more than one illegal entry, Your Honor. [00:02:40] Speaker 01: So how did the BIA abuse its discretion by not considering an argument your client never made? [00:02:48] Speaker 00: Your Honor, the BIA did not address all the multiple factors set out in its own precedent for administrative closure. [00:02:56] Speaker 00: Had the board reviewed those factors, it could have considered, among other factors, that 8 CFR section 212.7E43 requires administrative closure of pending removal proceedings for petitioner to pursue [00:03:10] Speaker 00: a provisional I-601A waiver with USCIS. [00:03:13] Speaker 01: No, but your client didn't tell the board that he was going to pursue a 601A waiver, did he? [00:03:22] Speaker 00: Not in the motion, Your Honor. [00:03:24] Speaker 00: It has been part of the record. [00:03:26] Speaker 00: It's illogical to assume an I-130 petition is filed and then nothing will happen with it once it's approved. [00:03:33] Speaker 04: Ms. [00:03:34] Speaker 04: Tatis, what did you mean or I guess what does what should we read the motion to mean by saying that respondent does not have an unlawful entry bar? [00:03:42] Speaker 04: What was the point of raising that in the motion? [00:03:48] Speaker 00: The attorney was stating that he is eligible for counselor process adjustment of status. [00:03:56] Speaker 00: He didn't have a bar as far as more than one illegal entry. [00:04:00] Speaker 00: The waiver only forgives the one illegal entry. [00:04:05] Speaker 03: So in your view, what's the best case or in support of your argument that the BIA abused its discretion? [00:04:16] Speaker 00: Your Honour, the BIA providing as the basis for denial of a motion the very thing it controls eligibility to file a 601A waiver with USCIS, it's fundamentally unfair. [00:04:29] Speaker 00: It has the power to [00:04:31] Speaker 00: deny the motion, but it also has the power to provide the relief sought. [00:04:37] Speaker 00: He put our client in a catch-22. [00:04:39] Speaker 00: The BIA put our client in a catch-22. [00:04:41] Speaker 04: I guess back to the unlawful entry bar. [00:04:47] Speaker 04: What you're really talking about is that there's no unlawful reentry bar, right? [00:04:53] Speaker 04: Because your client's status [00:04:55] Speaker 04: Well, not able to apply for adjustment of status because your client didn't have status. [00:05:03] Speaker 04: Usually, we refer to that as an unlawful presence question. [00:05:07] Speaker 04: And it's the unlawful presence that does not bar, notwithstanding the unlawful presence, that does not bar the 601A waiver. [00:05:16] Speaker 04: Would that be a better way of putting it? [00:05:18] Speaker 00: That's correct, Your Honor. [00:05:19] Speaker 00: I would agree that the wording wasn't succinct enough. [00:05:23] Speaker 01: But you also specifically told the agency at AR-15, administrative closure is sought in this case because respondent qualifies for alternate relief adjustment of status through the consular process. [00:05:37] Speaker 01: That is the only basis that you put in the motion, right? [00:05:43] Speaker 04: That's correct, Your Honor. [00:05:47] Speaker 04: It's really just consular processes. [00:05:48] Speaker 04: And at the IJ also made that same confusion by calling it adjustment of status. [00:05:53] Speaker 04: But you'd say now, looking at the record, the petitioner had no status to adjust. [00:05:58] Speaker 04: It was purely a matter of consular process to be done in the home country either with the 601A waiver process or through normal consular process and the delays that that would incur. [00:06:13] Speaker 04: Is that right? [00:06:14] Speaker 00: That's correct, but the goal of that consular process is to adjust status to a lawful permanent resident. [00:06:23] Speaker 04: Okay, but the petitioner has no, usually adjustment of status is where, the reason it happens in the country is because petitioner has some lawful status and we typically use, the consular process is for the instance that your petitioner is in, right? [00:06:40] Speaker 00: That is correct, Your Honor. [00:06:48] Speaker 03: Do you want to reserve the balance of your time, counsel? [00:06:50] Speaker 00: I'm going to reserve two minutes, Your Honors. [00:06:53] Speaker 00: The BIA failed to provide a reasoned explanation for its actions. [00:06:57] Speaker 00: The statutes, regulations, administrative and judicial laws of the United States support individuals like him with United States citizen families who depend on them and have facts like this. [00:07:09] Speaker 00: The consequences of denying Mr. Lara Rodriguez's motion for administrative closure [00:07:14] Speaker 00: are fundamentally unfair, and this matter should be remanded for a proper analysis of the advocacy and factors. [00:07:21] Speaker 00: And I'll reserve the rest of my time, Your Honors. [00:07:24] Speaker 00: Thank you. [00:07:35] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:07:37] Speaker 02: I'm Lauren Tacklett, representing the Attorney General. [00:07:40] Speaker 02: The Court's review here is narrow. [00:07:41] Speaker 02: The court need only assess whether the agency abused its discretion by failing to consider the relevant avatizian factors. [00:07:48] Speaker 02: The agency did not abuse its discretion. [00:07:51] Speaker 02: Petitioner moved for administrative closure while his I-130 was pending. [00:07:55] Speaker 02: When the board ruled on petitioner's motion, his I-130 had been approved for two years. [00:08:01] Speaker 02: The board correctly noted that he could consular process independent of these removal proceedings. [00:08:05] Speaker 04: But is there any other reason for a petitioner to move for administrative closure in this procedural posture other than to get a 601 waiver? [00:08:13] Speaker 02: So just to be clear, a 601A waiver could still be obtained without administrative closure, even with a final order of removal. [00:08:22] Speaker 02: If you look at 8 CFR 212.7 E4 [00:08:28] Speaker 02: So one subsection down from what petitioner is relying on in their motion. [00:08:34] Speaker 02: Even with a final order of removal, a 601A waiver can be obtained. [00:08:40] Speaker 04: Well, but wasn't the government's position, in fact, in opposing the hardship determination that petitioner could and should seek a 601A waiver? [00:08:51] Speaker 02: The government did acknowledge that that was one way to do it. [00:08:55] Speaker 04: Well, it wasn't just an acknowledgement. [00:08:56] Speaker 04: It was an argument that there was no hardship because it would only have to be a temporary separation from a husband, right? [00:09:03] Speaker 02: Exactly. [00:09:04] Speaker 02: And the government is still maintaining that he can get a 601A waiver via a final order of removal through the subsection four process. [00:09:13] Speaker 04: But the government didn't oppose the administrative closure at the BIA. [00:09:18] Speaker 04: The government did not make its position clear one way or another did not respond well it are after having made its position clear arguably in front of the IJ it said nothing to the BIA to change that impression. [00:09:30] Speaker 02: I think there's an important distinction between its position on cancellation of removal versus. [00:09:36] Speaker 02: a separate motion at the board on administrative closure, but noting that DHS did not make its position clear one way or another, and that can be interpreted either as not opposing or as the opposition being self-evident, DHS chooses to remove people that are here illegally. [00:09:56] Speaker 01: But the BIA did note that the government didn't [00:10:01] Speaker 01: Opposition and it listed and went through the factors correct. [00:10:06] Speaker 02: Where did it note that? [00:10:08] Speaker 02: on ar3 It specifically says that DHS did not respond to either the appeal or to The motion for it was in the procedural history correct. [00:10:19] Speaker 03: Yes, and so but it never stated the [00:10:22] Speaker 03: that it opposed it or the basis for its opposition to it? [00:10:27] Speaker 02: No, it did not include that in its recitation of the... Isn't that required? [00:10:32] Speaker 03: Isn't that an important, in fact, the primary factor that courts have looked at? [00:10:38] Speaker 02: So, one thing to note is that this factor that Your Honor alludes to with WYU, it is [00:10:47] Speaker 02: Potentially isn't even relevant here that may that case may only apply given a stated opposition where there is no position stated one way or another It may not be relevant for consideration. [00:11:00] Speaker 02: However That's an interesting reading because I was point your honor to footnote five of wiu That does make a point on when that case is relevant [00:11:13] Speaker 01: But even if you were not correct on that, the BIA listed this as one of the factors and it cited the WIU case right afterward. [00:11:23] Speaker 03: Correct, yes. [00:11:26] Speaker 03: But didn't state in the listing the argument that it's opposed. [00:11:32] Speaker 02: No, it did not in that section. [00:11:34] Speaker 02: I think the most important thing to the board was the weight given more to factors one and six about that he can consular process independent of these removal proceedings. [00:11:46] Speaker 02: And while that may be a primary factor, it is still a totality of the circumstances argument or consideration. [00:11:56] Speaker 02: the board is free to make those types of weighing judgments. [00:12:00] Speaker 04: Ms. [00:12:01] Speaker 04: Tacklett, but I guess you see my problem at least is that, of course, if it meant that the petitioner was going to have to go through just a normal consular process without the 601A waiver, does that not change the hardship analysis below as the government seemed to have put it? [00:12:22] Speaker 04: So it seems like the petitioner is being whipsawed a bit here. [00:12:26] Speaker 02: I think the important thing to note is that it doesn't change, administrative closure does not change the 601A analysis because petitioner can seek a 601A waiver irrespective of whether or not they have a final order of removal. [00:12:41] Speaker 02: There's just one more step under that subsection four. [00:12:45] Speaker 04: But petitioner, I mean in terms of the differences here between the two processes, that extra step is what? [00:12:54] Speaker 04: Walk me through that. [00:12:55] Speaker 02: It's an additional waiver that they have to seek before they can apply for the 601A waiver. [00:13:01] Speaker 02: So it's a waiver of the inadmissibility ground on, I'll give you the site, but it's 8 USC 1182A9A1. [00:13:15] Speaker 02: And that's inadmissibility ground for prior removal. [00:13:18] Speaker 02: And that was never sought? [00:13:20] Speaker 02: No. [00:13:21] Speaker 02: And that's another important thing to consider here, Your Honors, is that [00:13:24] Speaker 02: You know, petitioners never provided any sort of update to the board. [00:13:28] Speaker 02: They didn't notify the board that their petition had been approved. [00:13:31] Speaker 02: They didn't notify them that they were trying to seek any sort of continued process for all the board knew. [00:13:39] Speaker 02: given up and decided to go home to Mexico. [00:13:41] Speaker 01: The board said that, right? [00:13:43] Speaker 01: The respondent does not identify any petition application or other action he is currently and actively seeking outside of his removal proceeding. [00:13:51] Speaker 02: Exactly. [00:13:51] Speaker 02: The actively proceeding is important there. [00:13:54] Speaker 01: And he certainly could have. [00:13:56] Speaker 02: Correct. [00:13:56] Speaker 03: Let me make sure. [00:13:58] Speaker 03: Are you saying that administrative closure is not a prerequisite to applying for an I-601A [00:14:09] Speaker 02: I am to the extent there is then a final order of removal. [00:14:15] Speaker 02: So while a petitioner is in or an applicant is in removal proceedings, they cannot apply for a 601A waiver without administrative closure. [00:14:24] Speaker 02: However, once those proceedings have finished, once there is a final order of removal, there is still an alternative way to get a 601A waiver. [00:14:33] Speaker 02: And that's through the subsection four process with getting an additional waiver before seeking the six oh one a and that's Roman at four correct Where did you make this argument in your brief? [00:14:47] Speaker 02: I? [00:14:47] Speaker 02: Did not make it in my brief but it we were simply responding to petitioners points on their unexhausted arguments on a six oh one a waiver that you know had not been brought up before the board and [00:15:00] Speaker 02: This other waiver would that also just require the petitioner to leave very temporarily to pick up his documents in Mexico and return with that You would seek the first waiver before even leaving the country So you'd get the first waiver and then the first waiver I want to make sure I understand what the first waiver of the inadmissibility for removal. [00:15:22] Speaker 02: It's to apply for [00:15:27] Speaker 02: Apologies I would need to pull up my actual reg to give you the exact application, but it is a provisional unlawful presence waiver No, so that's the 601 a the one before is for Apply for readmission. [00:15:43] Speaker 02: That's the first and [00:15:52] Speaker 03: The record before the BIA, does that include what happened before the IJ? [00:16:00] Speaker 02: The record before the board does include everything that happened below, yes. [00:16:05] Speaker 03: And so despite, I guess I just want to understand the government's position here. [00:16:10] Speaker 03: So despite the petitioner being quite clear, it seems like to the IJ that it was, [00:16:18] Speaker 03: Definitely trying to seek administrative closure and for the reason of applying for I 601 a waiver What do we do with that? [00:16:30] Speaker 02: I would dispute that they were clear about seeking administrative closure they acknowledged the Possibility of a 601 a waiver, but did not discuss administrative closure per se that's it a r96. [00:16:41] Speaker 01: I [00:16:45] Speaker 02: Apologies, even if they had discussed administrative closure It is important to note that you know the board is not required to comb through the record It's not I believe this court has a saying about truffle hunting and pigs You know they're not required to do that type of detailed review of the record to ascertain What petitioner is seeking in the new motion for all they know they decided to do something different? [00:17:12] Speaker 01: All I saw at AR96 was the statement. [00:17:15] Speaker 01: Yes, I don't know if you wanted to give a continuance for the filing of an I-130 with its approval. [00:17:20] Speaker 01: He would be eligible for the 601-601A unlawful presence waiver and consular process, but I didn't see in there saying anything that we're going to do it. [00:17:29] Speaker 02: Thank you. [00:17:30] Speaker 02: I didn't think he had mentioned administrative closure per se. [00:17:33] Speaker 02: No, I didn't say that. [00:17:33] Speaker 02: Okay. [00:17:34] Speaker 02: Thank you. [00:17:35] Speaker 03: Is there any other reason why he would be seeking the I-601A waiver? [00:17:42] Speaker 03: That's what's kind of a little bit fuddled, because why else would you seek that for someone in his position? [00:17:50] Speaker 02: Just to clarify the question, you mean why is he seeking administrative closure? [00:17:53] Speaker 03: No, no, why would he? [00:17:55] Speaker 03: Yeah, his request for the I-601A waiver, what other purpose considering his circumstances would he be seeking? [00:18:05] Speaker 02: I think it's important to note that at the time he filed the motion, [00:18:09] Speaker 02: It was only, as petitioners council noted, a I-601A waiver wasn't even ripe. [00:18:15] Speaker 03: He was seeking... How about at the time though the BIA was deciding this case? [00:18:19] Speaker 02: The BIA was deciding the motion before it, and the motion before it was about seeking I-130 approval, and the board properly exercised its discretion in considering the motion that was before it. [00:18:35] Speaker 03: In your best case, [00:18:37] Speaker 03: I would probably, especially in light of WYU, what's the best counter to that, I guess? [00:18:46] Speaker 02: So I would point to three cases, Your Honor, if I feel allow. [00:18:51] Speaker 02: Gonzales-Caraveo, where this court made its decision in terms of jurisdiction, but it specifically noted that the issue there was that the board thought it didn't have any sort of independent review. [00:19:04] Speaker 02: And that was not accurate. [00:19:05] Speaker 02: But it did not fault the board for not considering all factors, similar to Marquez-Reyes, which is 36 F4 1209, at 1209, noting that failure to consider one of the Avetisian factors is not fatal to the abuse of discretion analysis. [00:19:28] Speaker 02: And perhaps also I'll throw in there a case that was decided on the day that we [00:19:34] Speaker 02: Submitted our brief which is bangu v. Garland. [00:19:39] Speaker 02: It's number 23 4224 and cited at 2024 Westlaw 4502 10 for Since this other waiver wasn't presented in your brief and you may have reason why you didn't present that I'm just curious about [00:20:01] Speaker 03: Could the petitioner here have applied for the relief that you said? [00:20:17] Speaker 03: From here, would he have to be in Mexico and for two years, for 10 years? [00:20:21] Speaker 02: No. [00:20:22] Speaker 02: He applies for the first waiver, which is the seeking readmission. [00:20:29] Speaker 02: And that happens here. [00:20:30] Speaker 02: You apply for the 601A waiver with that already approved. [00:20:35] Speaker 02: And then you go to Mexico. [00:20:36] Speaker 02: You consulate process through the normal 601A proceedings. [00:20:41] Speaker 03: So you wouldn't have the 10-year bar? [00:20:44] Speaker 02: Assuming he gets the approval for the waiver of the 10-year bar, correct. [00:20:48] Speaker 02: That's what the 601A would waive. [00:20:51] Speaker 03: No, I know that's what the 601A. [00:20:52] Speaker 03: OK, thank you. [00:20:55] Speaker 04: I guess, yeah, my concern, so we don't set up [00:20:59] Speaker 04: Perhaps a similar situation that Petitioner finds himself in here is, does the government see any reason to oppose now, here, following through the Romanet IV process, if Petitioner pursued that? [00:21:14] Speaker 04: I mean, you're laying it out here, but of course the government laid it out in front of the IJ to pursue the Romanet III process, arguably. [00:21:20] Speaker 04: So, I guess we need to know whether we can depend, and the Petitioner can rely on, the government's position today, this time, [00:21:29] Speaker 04: that path is available to petitioner given that the visa has been granted. [00:21:35] Speaker 04: Can you do that? [00:21:38] Speaker 02: I can say that that path is available. [00:21:42] Speaker 02: I obviously can't commit to any, you know, actual outcomes in that path. [00:21:46] Speaker 01: But I think you've answered my colleague's question. [00:21:49] Speaker 01: You're an officer of the court and a representative of the government. [00:21:52] Speaker 01: You've brought this up for the first time and you're saying that path is available to this petitioner. [00:21:58] Speaker 03: and then it if it's Followed through on then it'll be looked at in the normal course, but it's available correct My time is well over unless there's another question I get I do have another question what mechanism would have been available for the petitioner to update or to the board as was suggested and [00:22:24] Speaker 02: The board allows supplemental motions, letters, et cetera, similar to this court and other courts. [00:22:32] Speaker 02: So they could have filed a letter. [00:22:33] Speaker 02: They could have filed a supplemental motion. [00:22:36] Speaker 02: There were other mechanisms. [00:22:38] Speaker 03: All right. [00:22:38] Speaker 02: Thank you. [00:22:39] Speaker 02: Yes, thank you. [00:22:44] Speaker 03: Ms. [00:22:44] Speaker 03: Tejas, can you respond to some of these points that the government has made through Ms. [00:22:52] Speaker 03: Taslet's arguments here? [00:22:54] Speaker 00: Yes, Your Honor. [00:22:56] Speaker 00: All of these waivers take years and years and years and years. [00:22:59] Speaker 00: To add one more step that will take so many years for this young man, it's illogical being that he meets all of the average CN factors. [00:23:14] Speaker 00: His matter shouldn't need, we shouldn't be here. [00:23:17] Speaker 00: And I can also speak to [00:23:19] Speaker 00: the delay that council is talking about at the BIA. [00:23:23] Speaker 00: It is our experience that the BIA takes several years to rule on motions. [00:23:29] Speaker 04: We did not- Teyes, why then did you not take the opportunity to update the BIA on the status of the visa and clarify that the 601A was in fact what the petitioner was seeking? [00:23:43] Speaker 00: Well, Your Honor, [00:23:45] Speaker 00: To be honest because this case does meet all the advocacy and factors we did not expect the BIA to not do a thorough evaluation of this case. [00:23:59] Speaker 00: It's obvious administrative closure sought so that Mr. Lado Rodriguez can file his I-601A waiver. [00:24:06] Speaker 00: What else would he need the I-134. [00:24:08] Speaker 00: There was no opposition to administrative closure. [00:24:12] Speaker 00: It's very likely the waiver would be granted. [00:24:14] Speaker 00: He's eligible for the relief sought. [00:24:17] Speaker 00: He himself has caused no delays and the closure will only be for the time the waiver is adjudicated. [00:24:23] Speaker 00: The department is they have access to all that information. [00:24:28] Speaker 00: They know when things are granted. [00:24:31] Speaker 00: You know termination would then be sought. [00:24:33] Speaker 00: The BIA did not conduct a full analysis of the average CN factors. [00:24:37] Speaker 00: And additionally, the BIA ignored that Congress authorized for individuals like Mr. Lada Rodriguez with United States family members to have said relief available. [00:24:47] Speaker 00: The fact that he is now, like I said earlier, in a catch-22 is egregious. [00:24:53] Speaker 00: This young man should not be in this position. [00:24:55] Speaker 00: The BIA, you know, it faulted him for not having the waiver, but he can't get the waiver with removal proceedings not administratively closed. [00:25:07] Speaker 01: in your view, no reason why your client in his counseled motion or supplement should have updated the BIA on what he had done and what he hadn't done because they could have gone looking and found it out themselves if they'd really wanted to and you didn't have a responsibility to give them that info. [00:25:32] Speaker 00: Again there would be no reason for an I-130 without that second step of the I-601A waiver. [00:25:39] Speaker 00: The record has that information in it. [00:25:45] Speaker 00: It's it's illogical to think that this young man would spend money and time on an I-130 just to have an I-130. [00:25:55] Speaker 04: And the filing was right after the government had changed its policy with respect to the waivers and administrative closure. [00:26:02] Speaker 04: And so far, the government hasn't given any other reason why your client would have applied for administrative closure in this posture, right? [00:26:17] Speaker 03: All right, thank you very much. [00:26:20] Speaker 03: Ms. [00:26:21] Speaker 03: Teyes, Ms. [00:26:22] Speaker 03: Tasla, I appreciate your argument presentations here in this case. [00:26:26] Speaker 03: The case of Gregorio Daniel Lara Rodriguez versus Pamela Bondi is now submitted.