[00:00:05] Speaker 01:
Good morning.

[00:00:08] Speaker 01:
Sorry.

[00:00:08] Speaker 01:
David Juiz on behalf of the petitioner and may I please the court.

[00:00:14] Speaker 01:
This petition is brought to this court on the basis that the petitioner believes or argues that a motion of reopen should not be based on an effective assist of a council when the council was acting within the ordinary customary and standard practice of the law in the courts at the time.

[00:00:34] Speaker 03:
All right, so you have an in absentia removal order, and you need to show extraordinary circumstances for the motion to reopen.

[00:00:46] Speaker 03:
And there's a statutory standard for that, which doesn't apply.

[00:00:50] Speaker 03:
It hasn't been argued to apply.

[00:00:51] Speaker 03:
Illness, death, and the families, things of that nature.

[00:00:55] Speaker 03:
But there's been a recognition of ineffective assistance of counsel as a means to establish Extraordinary circumstances, but you're disavowing that before us you you're saying that there was no ineffective assistance of counsel here correct honor there the facts of this case was that there was an exceptional circumstance and the illness of council staff that

[00:01:18] Speaker 01:
miscalendered the events.

[00:01:20] Speaker 03:
You think that we should expand exceptional circumstances beyond what's been recognized and say it includes illness within council staff?

[00:01:29] Speaker 03:
That would be new.

[00:01:30] Speaker 03:
I mean, that's unchartered water, right?

[00:01:32] Speaker 01:
Well, correct.

[00:01:34] Speaker 01:
So the judge ruled that he found that there was an exceptional circumstance in what happened with the illness

[00:01:42] Speaker 01:
But that counsel was ineffective in the sense that he advised the respond at the time that presence would be waived in court.

[00:01:53] Speaker 01:
And that's where the ineffective part is.

[00:01:55] Speaker 03:
Well, it seems like there were two parts.

[00:01:56] Speaker 03:
So the order for the hearing had in all caps that the respondents, now petitioners, were to appear in person.

[00:02:05] Speaker 03:
There was a provision for the presence of the minor to be waived and also provision for counsel to appear remotely.

[00:02:13] Speaker 03:
That's right.

[00:02:15] Speaker 03:
There was that document that I believe council acknowledged they didn't read.

[00:02:20] Speaker 03:
They just assumed that there was a practice by which they could appear remotely and the petitioners themselves didn't have to appear.

[00:02:27] Speaker 03:
But then there's what you characterize as miscalendering, failing to

[00:02:31] Speaker 03:
calendar the hearing and appear which seems to be yet another at a minimum mistake and I think that what we're struggling with is there seems to be a pretty serious conflict of interest between council and the petitioners and that

[00:02:46] Speaker 03:
petitioners could make a viable claim to reopen by asserting ineffective assistance of counsel, but counsel is refusing to acknowledge fault or ineffective assistance.

[00:02:58] Speaker 03:
And so you're interesting to be diverged at that point.

[00:03:04] Speaker 01:
be valid.

[00:03:07] Speaker 01:
But at the time, even though the notice of hearing did stay, the presence was... But I'm going to push you more on this.

[00:03:15] Speaker 03:
So when you got the order from the immigration judge,

[00:03:19] Speaker 03:
Cited to in Ray Lozada and said look if you It was kind of in my view the ij saying here you go hint hint if you're trying to make an argument of ineffective assistance council you need to comply with in Ray Lozada and You had time to do so it was like 20 days out you were within the 180 days period under the statute so at that point you could have advised your clients and

[00:03:46] Speaker 03:
seek other counsel, and then argue ineffective assistance, which may have been against your interest.

[00:03:51] Speaker 03:
You didn't want to be reported to the bar.

[00:03:53] Speaker 03:
You didn't think what you had done amounted to ineffective assistance.

[00:03:56] Speaker 03:
But that seems directly in conflict with their interest in having their hearing reopened.

[00:04:00] Speaker 03:
Correct and we did advise the respondent at the time that they had that opportunity You told them specifically they could they could argue ineffective assistance and file a bar complaint against you and seek other counsel Correct or have you continued, but have you acknowledged ineffective assistance?

[00:04:17] Speaker 01:
You told them that that's that's that is a possibility and they could proceed in that manner However, we argued that We don't believe it is because at that time in 2023

[00:04:28] Speaker 01:
all the courts were waiving the presence of the respondents at court if they were represented.

[00:04:33] Speaker 01:
It was just this one case, this one court, who this judge actually started, he moved from detained docket to Santa Ana court at that time.

[00:04:43] Speaker 01:
And it was not, no one was aware of his preferences.

[00:04:49] Speaker 03:
I'm sorry, counsel.

[00:04:51] Speaker 03:
That just doesn't excuse not appearing for a hearing.

[00:04:53] Speaker 03:
And miscalendering, as you characterize it, doesn't as well.

[00:04:56] Speaker 03:
I mean, that's a pretty garden-variety mistake in a law firm.

[00:05:00] Speaker 03:
And you have backups, and you make sure things are calendared, and you're there.

[00:05:03] Speaker 03:
You're responsible for being there.

[00:05:05] Speaker 03:
You don't blame staff.

[00:05:06] Speaker 03:
You don't blame your clients.

[00:05:07] Speaker 03:
If you did not appear, that is squarely on the attorney.

[00:05:11] Speaker 03:
That's on you.

[00:05:12] Speaker 03:
And you need to own up and take responsibility for that.

[00:05:15] Speaker 03:
And you're not.

[00:05:17] Speaker 03:
Even standing before us today, you're still arguing that it was not ineffective assistance.

[00:05:21] Speaker 03:
What are we supposed to do with that?

[00:05:24] Speaker 03:
You have not made an argument before us of ineffective assistance to counsel, or even an argument for how we could relax the requirements of Henry Lozada and grant this petition and remand for reopening.

[00:05:36] Speaker 03:
You haven't made those arguments to us.

[00:05:39] Speaker 03:
Why?

[00:05:39] Speaker 03:
Why have you not made those arguments?

[00:05:43] Speaker 01:
At that time, if we're acting as how we've acted with the courts, all the courts, all the judges.

[00:05:51] Speaker 01:
We're talking about more than 50 judges in Los Angeles.

[00:05:53] Speaker 03:
So I think what you're telling me is you just don't think that this was an effective assistance.

[00:05:58] Speaker 03:
You think maybe it was a mistake, but it was OK?

[00:06:01] Speaker 01:
Well, so if we're acting with what has been accepted by all the courts at that time, then how is that

[00:06:11] Speaker 01:
an action that's objectionably deficient.

[00:06:14] Speaker 03:
Well, because you didn't read the court's order.

[00:06:17] Speaker 01:
Correct.

[00:06:18] Speaker 03:
And you made assumptions that were not true.

[00:06:21] Speaker 01:
I mean, that is... But all the hearing notices come with

[00:06:26] Speaker 03:
with either in respondent's presence is in person or So counsel it seems to me that these are the kind of arguments that maybe you should have been making to the state bar having your clients either file a bar complaint or Writing a letter and informing the disciplinary authorities.

[00:06:42] Speaker 03:
This is what occurred It wasn't intentional.

[00:06:45] Speaker 03:
It was a mistake under these circumstances and perhaps the bar would have decided for you and excused you but on the

[00:06:52] Speaker 03:
At the same time, you needed to be looking out for the interest of your clients, and their interest was in having that in absentia order overturned and having the hearing reopened so that they could present their asylum claim.

[00:07:07] Speaker 03:
That was their interest, and by not doing that,

[00:07:12] Speaker 03:
even after being told by the IJ what to do and what the authority was, you have deprived them of the ability to have the case reopened.

[00:07:22] Speaker 03:
How is that not just a glaring and unwavering conflict of interest between you and the clients?

[00:07:29] Speaker 01:
Well, if we've explained it to the client, we argue that it's our understanding that this was a customary practice.

[00:07:39] Speaker 03:
So we have no declaration from your clients, but you are telling us as an officer of the court and open court that they were fully aware of this and agreed to proceed in this fashion.

[00:07:50] Speaker 04:
Based on your advice, your representation that your conduct did not actually amount to an effective assistant counsel.

[00:07:57] Speaker 01:
I don't, so, so... Is that right?

[00:08:00] Speaker 04:
You told them you don't think you committed ineffective assistance in council.

[00:08:03] Speaker 01:
Correct.

[00:08:03] Speaker 01:
We've made an error.

[00:08:04] Speaker 01:
It was our fault, but we don't believe it was a standard that it was ineffective assistance in council.

[00:08:12] Speaker 01:
And honestly, there was, at that time, other cases that were affected the same way, all reopened based on the same grounds.

[00:08:19] Speaker 01:
Now it just depends on judge by judge.

[00:08:21] Speaker 03:
So what if we were to tell you that

[00:08:24] Speaker 03:
we believe or we conclude that you're providing an effective assistance now before this court.

[00:08:34] Speaker 03:
It's still not effective assistance for these clients.

[00:08:37] Speaker 03:
What do you think we should do with that?

[00:08:41] Speaker 01:
You know, so if that's the case, I mean, I can't... Yeah, there's two parts, right?

[00:08:47] Speaker 01:
So it would be the error before and then now proceeding in this manner is what you're arguing that would be ineffective.

[00:08:52] Speaker 01:
You probably have

[00:08:55] Speaker 01:
you probably have a better grounds now stating that.

[00:08:59] Speaker 01:
But I do believe that if all the hearing notices we were seeing at that time were stating, yes, presence is required, because at the time before that, she didn't have counsel.

[00:09:13] Speaker 01:
And then all the courts were accepting for respondents to appear, and their presence waived once they appeared with counsel.

[00:09:21] Speaker 04:
They appear diligently for three hearings before they had retained you.

[00:09:26] Speaker 01:
Correct.

[00:09:27] Speaker 01:
And it was because they believed what we stated.

[00:09:29] Speaker 01:
And honestly, we are still doing that today, if we are aware of the judges.

[00:09:35] Speaker 01:
Now, there are judges that are changing and requiring, and there's one judge now that requires everybody for all masters.

[00:09:42] Speaker 03:
Okay, so what you're circling back to is you don't believe it there was an effective assistance of council You did not argue that before the agency, and you're not arguing it to us now instead you're arguing that we should find Some other basis to decide that there are extraordinary circumstances, and we could order reopening That's what I'm arguing.

[00:10:04] Speaker 01:
Yes, we're and then and then you know if After this hearing they still have their claim for an effective assistance of council, but at least

[00:10:13] Speaker 01:
At least I did all I could to move this case forward and preserve the rights.

[00:10:19] Speaker 04:
All you could accept to admit that your conduct could be considered ineffective assistance of counsel and comply with Lozano and Melkner.

[00:10:29] Speaker 01:
There's many things a law firm can do that would, I mean, boundless things it can do that would be ineffective assistance of counsel.

[00:10:39] Speaker 03:
but i don't believe that but once that happens you have to

[00:10:44] Speaker 03:
You have to be a zealous advocate for your clients and protect their rights and their interests over your own.

[00:10:51] Speaker 03:
So once there's a mistake and you know that there's been a mistake, you have to seriously consider, can I still represent these people?

[00:10:57] Speaker 03:
Do we have a conflict of interest?

[00:11:00] Speaker 03:
Are their interests differing from mine in that they might have an argument if they file a bar complaint against me or if they allow me to continue, but I take the blame.

[00:11:09] Speaker 03:
I mean, if I comply with the Ninth Circuit and case law and the agency's

[00:11:15] Speaker 03:
case law about how you proceed when there's an effective assistance.

[00:11:19] Speaker 01:
That's correct.

[00:11:20] Speaker 01:
That's correct.

[00:11:21] Speaker 01:
However, that's if I believe that there was an effective.

[00:11:24] Speaker 03:
So you didn't do that?

[00:11:24] Speaker 01:
No.

[00:11:26] Speaker 01:
Well, I advised them that there were two roads to go forward.

[00:11:30] Speaker 01:
One would be to seek other counsel.

[00:11:33] Speaker 01:
And also, and they didn't have to seek other counsel.

[00:11:35] Speaker 01:
I could have filed on my behalf saying that.

[00:11:38] Speaker 03:
So to be clear, you told them about Enri Lozada and that they could make an argument based on your mistake?

[00:11:47] Speaker 02:
We've taken you over time Your argument regarding totality of circumstances because in your briefing as you do here You do not acknowledge ineffective assistance and and we accept that but you argue that the IJ erred because He did not consider the totality of circumstances and had he done so relief would have been granted What are those circumstances that were overlooked?

[00:12:14] Speaker 01:
Sure

[00:12:14] Speaker 01:
There was standard ordinary practice amongst the courts at the time.

[00:12:21] Speaker 01:
There was an illness that caused the miscalendering, well documented with the doctor's note, stating the circumstances.

[00:12:28] Speaker 01:
So in the totality of the circumstances was several incidents that brought this to this point.

[00:12:37] Speaker 03:
All of which are things that you argue excuse the mistake from your office, correct?

[00:12:42] Speaker 03:
Correct.

[00:12:43] Speaker 03:
So, but sometimes the totality of circumstances may be that the petitioner did not receive the notice.

[00:12:51] Speaker 03:
It was addressed, misaddressed, and they never received it.

[00:12:54] Speaker 03:
But you don't have those sorts of circumstances, right?

[00:12:57] Speaker 03:
They were served in person in court.

[00:13:00] Speaker 03:
They had the notice.

[00:13:01] Speaker 01:
They were served in person, they were aware, they asked about it, and we stated that all the courts have been accepting it.

[00:13:09] Speaker 03:
So Judge King's question is about totality of the circumstances.

[00:13:13] Speaker 03:
Do you have anything else other than what you argue to excuse the mistake in your office?

[00:13:20] Speaker 01:
No, just the one issue was our failure to appear was based on the exceptional circumstance, but also the fact that the customary practice of the courts

[00:13:32] Speaker 01:
All those factors put together.

[00:13:34] Speaker 04:
I just want to confirm counsel you were talking about in Ray malgar and you You are aware You just want to confirm you are aware at the time that you could have complied You were expected to comply even continuing to represent the petitioner with Lozada You could have filed notice yourself to the bar of your error Yes, I could have if I if I believed that

[00:14:00] Speaker 04:
Understand you argue you had good intent and that it was an innocent mistake But it was a mistake correct to tell them they didn't need to appear without reading the order to not calendar the hearing properly two mistakes it's mistake, but it wasn't The problem was that all I understand, but you acknowledge that those were serious errors that caused the inestentia removal order

[00:14:25] Speaker 01:
So I acknowledge that there was an error.

[00:14:28] Speaker 01:
However, do I acknowledge that it was to the level of ineffective assistance to the council?

[00:14:32] Speaker 01:
No.

[00:14:33] Speaker 03:
So how do you argue, what do you think that the agency did that was an abuse of discretion?

[00:14:38] Speaker 03:
Because that's the standard we're applying.

[00:14:40] Speaker 03:
So what was an abuse of discretion here?

[00:14:42] Speaker 01:
Abuse of discretion is not looking at the totality of circumstances, all the factors that went into it, and acknowledging that the agency, the board, the courts have been allowing

[00:14:53] Speaker 03:
uh... very loose interpretation of what's expected with the courts and it still goes on to this date uh... thank you uh... went over we took you over time and did you request to reserve time for rebuttal i did but i don't need to go over after uh... the government's argument if you want a couple minutes i will

[00:15:22] Speaker 01:
Thank you.

[00:15:38] Speaker 00:
Good morning, Your Honors, and may it please the court, Stephanie Groff on behalf of the Attorney General.

[00:15:42] Speaker 00:
Your Honors, the board did not abuse its discretion here in denying petitioners motion to reopen.

[00:15:47] Speaker 00:
They're in absentia removal proceedings.

[00:15:49] Speaker 00:
Now let me just clarify a few things.

[00:15:51] Speaker 00:
While my friend on the other side notes that it was customary practice at the time that the waiver of

[00:15:57] Speaker 00:
petitioner's appearance was common.

[00:15:59] Speaker 00:
None of that is in the record.

[00:16:01] Speaker 00:
And unsupported counsel statements, both before this court, in argument and in brief, and before the board and the immigration judge, are not enough to prove that.

[00:16:08] Speaker 00:
There's no evidence.

[00:16:10] Speaker 00:
Specifically, the last notice of hearing, as Judge Sung mentioned, they appeared at multiple hearings.

[00:16:15] Speaker 00:
They received notice.

[00:16:16] Speaker 00:
They were diligent.

[00:16:17] Speaker 00:
The last notice of hearing specifically states on AR-133 that respondents, which is what they're referred to at this manner, shall appear in person.

[00:16:26] Speaker 00:
that the presence of the minor is waived, their counsel may appear by WebEx.

[00:16:31] Speaker 00:
At no point does it say that if they obtain counsel, they don't have to appear.

[00:16:35] Speaker 00:
None of that is missing.

[00:16:36] Speaker 03:
It sounds that you are arguing that there was an effective assistance from the petitioner's counsel, but they didn't make that argument.

[00:16:47] Speaker 03:
So what is the government's position?

[00:16:49] Speaker 03:
What should we do with that?

[00:16:51] Speaker 00:
Yes, Your Honor.

[00:16:52] Speaker 00:
While our brief was not necessarily clear, I'm happy to clarify right now.

[00:16:56] Speaker 00:
The government takes the position that it's unclear, based on what we have, because there is no affidavit from Petitioner, that the reason they chose not to come to court despite notice

[00:17:07] Speaker 00:
We don't know if that was based on the attorney if there was an affidavit Then we could if we take what counsel is stating that he told them not to then yes We acknowledge that but this court can find in the first instance that there is ineffective as it relates to the in absentia I will note that there are other options for petitioners here that have been available at all times while motions to reopen our number and time barred and

[00:17:30] Speaker 00:
If they were to obtain a different council or even the current council, they can file a motion to reopen again.

[00:17:35] Speaker 00:
This time it would be with the board to stay and make this argument that they.

[00:17:40] Speaker 00:
Received ineffective assistance account of counsel they would have to overcome various burdens as it's delayed But it's not for this court to find ineffective assistance as a release What do you do with our precedent saying that it is an abuse of discretion?

[00:17:53] Speaker 04:
for the board to strictly enforce lazada where there is other

[00:18:02] Speaker 04:
affidavits, declarations from counsel that serve the same purpose as the affidavit.

[00:18:07] Speaker 04:
And as you acknowledged, petitioners appeared at every hearing until they were misadvised by counsel, until they received ineffective assistance.

[00:18:16] Speaker 04:
So why under our case law was it not an abuse of discretion for the board to say that was substantial compliance?

[00:18:23] Speaker 00:
Sure, Your Honor.

[00:18:24] Speaker 00:
It was not an abuse of discretion because the board was taking what they had before and which was just the attorney's statement, no affidavit, and they were stating that we don't know what the cause is.

[00:18:35] Speaker 00:
This court's case law and the board's case law says that for exceptional circumstances, even outside of the ineffective assistance of counsel claim, you need to show that causation, the because of.

[00:18:46] Speaker 00:
We don't have that here.

[00:18:47] Speaker 00:
It's not that they didn't file a bargain.

[00:18:49] Speaker 04:
So in Rojas Garcia, we said a declaration from counsel was good enough.

[00:18:54] Speaker 04:
And it was abusive discretion for the board not to find substantial compliance with Lozada.

[00:19:00] Speaker 04:
So how do you distinguish that case?

[00:19:02] Speaker 00:
In that case, specifically stating that it was enough, but here the affidavit, it does not show enough.

[00:19:07] Speaker 00:
All it says is... Wait a minute.

[00:19:08] Speaker 03:
What's the difference?

[00:19:09] Speaker 03:
The declaration in the other case, counsel took responsibility.

[00:19:15] Speaker 03:
So that's a huge difference between this case and that case.

[00:19:18] Speaker 03:
And I don't know of a case.

[00:19:20] Speaker 03:
We didn't cite it in the focus order.

[00:19:22] Speaker 03:
We've searched for it.

[00:19:24] Speaker 03:
A single case where we've said the board abuses its discretion by waiving the requirements of Losada.

[00:19:30] Speaker 03:
When there's been no argument or acknowledgement by council of the ineffective assistance Yes, your honor.

[00:19:36] Speaker 00:
Thank you for pointing that out and that's exactly it the Immigration judge and the board only addressed ineffective assistance of council on their own because at every stage even right now They have argued that there's no ineffective assistance of council, so that's the way isn't that it doesn't evidence that the board and the IJ itself knew that

[00:19:56] Speaker 04:
From the facts that this was, it was so obvious that this was ineffective assistance to the council, they brought it up themselves.

[00:20:03] Speaker 00:
Your honor, we still argue that's not an abuse of discretion because all we have in this affidavit is we told them not to go.

[00:20:10] Speaker 00:
We have no affidavit from them explaining their attorney told them not to go.

[00:20:14] Speaker 00:
They have no affidavit explaining that before every other hearing they were told to be in person and that there are consequences for their failure to appear.

[00:20:22] Speaker 00:
We have nothing to tie it.

[00:20:23] Speaker 00:
Other than his one statement that we told them not to go and that causation That's what's really missing whether it's under the ineffective assistance of council umbrella or the under taking that I mean they appeared three times They get counsel and they don't appear and council says in a sworn declaration.

[00:20:41] Speaker 04:
I told them not to come Why isn't that enough?

[00:20:47] Speaker 04:
Under our case law, which says, when counsel themselves files a declaration, yes, he hasn't labeled it ineffective assistance, but he is accepting, he is stating in a sworn declaration, submitted to the agency, I told them not to come, and then I didn't show up.

[00:21:05] Speaker 04:
Two errors.

[00:21:06] Speaker 04:
that obviously show ineffective assistance of counsel regardless of the fact that he's not willing to label it as such.

[00:21:15] Speaker 04:
So obvious that the IAJ itself says, what about ineffective assistance of counsel?

[00:21:22] Speaker 04:
The BIA itself says, what about ineffective assistance of counsel?

[00:21:27] Speaker 04:
How is that meaningfully distinguishable from Rojas Garcia?

[00:21:32] Speaker 00:
It's meaningfully distinguishable and we argue here that there's no abuse of discretion because again, they have not shown that at bottom the reason why they did not appear.

[00:21:41] Speaker 00:
We have what the attorney said that I told them not to appear.

[00:21:45] Speaker 00:
There are medical staff issues at other.

[00:21:47] Speaker 00:
We have not heard from them.

[00:21:48] Speaker 00:
It is not and while this court has various... Rojas Garcia said we don't need

[00:21:53] Speaker 04:
their own affidavit when council says, I did it.

[00:21:58] Speaker 00:
Respectfully, in either the exceptional circumstances or ineffective assistance at council, it's still their burden.

[00:22:04] Speaker 00:
What we have here is the agency looked at everything as a whole and determined that it is not enough.

[00:22:09] Speaker 00:
And I understand both sides, your honor, and you've noted and I've noted that they appeared at various hearings.

[00:22:15] Speaker 00:
So it does seem that based on being told, they didn't come.

[00:22:18] Speaker 00:
But the way the agency looked at it, and that's not an abuse of discretion, is they had this notice.

[00:22:23] Speaker 00:
They were aware of the consequences.

[00:22:25] Speaker 00:
And they did not show.

[00:22:26] Speaker 00:
So at bottom, because they had their case losses, they're entitled to rely on vice president.

[00:22:31] Speaker 03:
It doesn't say that.

[00:22:32] Speaker 03:
They didn't submit a declaration.

[00:22:35] Speaker 03:
And there's no explanation for that, right?

[00:22:37] Speaker 00:
There's none.

[00:22:38] Speaker 03:
I mean, he has contact.

[00:22:39] Speaker 03:
It's not like there are clients he can't find.

[00:22:42] Speaker 03:
They could submit a declaration.

[00:22:43] Speaker 03:
It was easy to do.

[00:22:44] Speaker 03:
They didn't.

[00:22:45] Speaker 03:
So they provided no sworn statements as to why they didn't appear.

[00:22:49] Speaker 03:
And they did not try to comply within Ray Lozada.

[00:22:54] Speaker 03:
Our case law that excuses in Ray Lozada is when the attorney has taken the blame.

[00:22:59] Speaker 03:
and self-reported themselves to the bar or there's a report to a bar.

[00:23:04] Speaker 03:
That didn't happen here.

[00:23:05] Speaker 03:
So then you have all of the policy concerns about collusion between the petitioners and the attorney, which can be obviated if the attorney is willing to expose themselves to the liability of malpractice and also to discipline from the bar.

[00:23:18] Speaker 03:
But that didn't happen.

[00:23:20] Speaker 03:
And those are key components of our case law.

[00:23:22] Speaker 03:
So you need, you were advised to read those cases.

[00:23:24] Speaker 03:
You need to be prepared to come and make those arguments for your client.

[00:23:28] Speaker 00:
Yes, Your Honor, I'm sorry.

[00:23:30] Speaker 00:
Let me just clarify Rojas Garcia.

[00:23:33] Speaker 00:
I was not properly looking at my notes.

[00:23:36] Speaker 00:
But under that, when it talks about substantial compliance, what it specifically states is that Lozada is intended to ensure that the factual basis exists for the record of ineffective assistance of counsel, and that it's legitimate and substantial.

[00:23:49] Speaker 00:
And so in Rojas, it does state that there doesn't need to be substantial compliance.

[00:23:53] Speaker 00:
What I'm arguing here, and sorry if that was not clear, is there's no compliance at all.

[00:23:57] Speaker 00:
This isn't substantial.

[00:23:58] Speaker 00:
Yes, there's this affidavit, but they aren't asking for IAC.

[00:24:02] Speaker 00:
This court can, in the first instance, state that it is ineffective assistance of counsel.

[00:24:07] Speaker 00:
And the whole point of ROHAS, specifically while it talks about prejudice, and that's not an issue, is all about what this is for, what Lozada is supposed to protect.

[00:24:15] Speaker 00:
It is supposed to protect them, supposed to protect the petitioners.

[00:24:19] Speaker 00:
And what we have here is they've adequately, they've not adequately addressed Lozada.

[00:24:24] Speaker 00:
They've made excuses, but what the agency didn't err

[00:24:27] Speaker 00:
in finding that even looking at the IOC that they did not meet their burden of proof.

[00:24:33] Speaker 03:
Well, can you go back to, you said at the beginning of your remarks that they still have some avenue of relief.

[00:24:39] Speaker 03:
So they could retain different counsel and file a motion to reopen again, is what you're saying?

[00:24:45] Speaker 03:
Even though it's beyond the time?

[00:24:46] Speaker 04:
You said it's time and number barred.

[00:24:50] Speaker 00:
It is time and number Bart, but that does not stop petitioners from still having that I will know in terms of relief this what case?

[00:25:00] Speaker 04:
From the agency where they would consider another motion to reopen I don't have it off the top of my head But I I do know from him to say it was time and number part because this council already filed a motion to reopen I

[00:25:12] Speaker 00:
Well, again, it's a case-by-case scenario, so the agency would need to look at it in the first instance.

[00:25:17] Speaker 00:
And there are many cases where they acknowledge it may be time-barred, but they could establish equitable tolling, number-barred.

[00:25:24] Speaker 00:
There are excuses for that.

[00:25:26] Speaker 00:
But all of this is outside of what we have here.

[00:25:28] Speaker 00:
What we have here is a council that has repeated... You're making the argument that they're not...

[00:25:33] Speaker 04:
they could still pursue it.

[00:25:35] Speaker 03:
As an option, but I was not making the argument that this court should remand for that.

[00:25:40] Speaker 03:
Would their option be to seek suesponte reopening?

[00:25:43] Speaker 03:
Is that what you're suggesting?

[00:25:45] Speaker 03:
Because you said it would have to be before the BIA, not before the IJ.

[00:25:49] Speaker 00:
Well, because the board was the last agency to deal with it.

[00:25:52] Speaker 00:
They did ask for suesponte here, but this court can't look at that finding because... Does the time and number bar apply to a request for suesponte reopening?

[00:26:00] Speaker 03:
No, Your Honor.

[00:26:03] Speaker 00:
And I also just, let me clarify and point out to some of the other cases.

[00:26:08] Speaker 00:
In Carrera Rivera that this court pointed us to, it specifically held in there that, and in one of that case, they found that it was clear that it was ineffective assistance to counsel.

[00:26:18] Speaker 00:
But this court stated that it's important to look to see whose fault was it.

[00:26:22] Speaker 00:
And in that case, nobody questioned the fact that it was petitioner's counsel that was at fault.

[00:26:27] Speaker 00:
I would say the difference here is we are arguing that it's unclear who is at fault.

[00:26:31] Speaker 00:
taking just what he states in the declaration, we still do not know, have not heard from petitioners, we do not know why they chose not to come.

[00:26:39] Speaker 00:
We have the evidence that they were told of their notice to appear, told in their notice to hearing to appear.

[00:26:45] Speaker 04:
Also in terms of- Plus the fact that they appeared three times previously.

[00:26:49] Speaker 00:
Yes, your honor.

[00:26:50] Speaker 00:
And so that this court can consider it.

[00:26:52] Speaker 00:
And then in matter of Melgar, I'll note that that is a more recent board decision that specifically addresses

[00:26:58] Speaker 00:
a self-reporting concept.

[00:27:01] Speaker 00:
I understand why petitioners council may be afraid or hesitant to file a complaint, but this court and the board has various case law where petitioners councils themselves acknowledge it, take the steps, and while substantial compliance is all this court needs, it doesn't need to be strict with Losada.

[00:27:17] Speaker 00:
Here we have no nothing with Losada.

[00:27:20] Speaker 00:
We have no idea what their extent of their agreement was.

[00:27:23] Speaker 00:
Specifically, they only obtained counsel a few weeks before the hearing.

[00:27:28] Speaker 00:
We have no idea what they were told other than what counsel says, and that's what the board looked at, and we would argue that there's no abuse of discretion.

[00:27:35] Speaker 02:
Council, your opponent argues that the board should have looked at the totality of circumstances.

[00:27:41] Speaker 02:
The IJ should have considered that and set forth the findings.

[00:27:47] Speaker 02:
Can the IJ be faulted by this court for failing to specify the totality of circumstances that caused the decision it rendered?

[00:27:57] Speaker 00:
Your Honor, we would argue that the agency here did look at the totality while not specifically stating it.

[00:28:03] Speaker 00:
And the way I interpreted petitioner's argument is looking to the totality to see that it should not have been denied.

[00:28:09] Speaker 00:
And to the extent that's challenging the Sue Espante finding of the agency, that's not a legal error.

[00:28:15] Speaker 00:
That's not a constitutional claim.

[00:28:16] Speaker 00:
So we'd argue that this court can't look at it.

[00:28:18] Speaker 00:
I'll also note that prejudice isn't an issue.

[00:28:21] Speaker 00:
All the cases that, many of the cases you cited,

[00:28:24] Speaker 00:
in the order do address prejudice, but this court has held and the board has held that prejudice is an issue when we're dealing with it timely in absentia orders of removal.

[00:28:34] Speaker 00:
I will note though if you permit me that if we were to even close our eyes to prejudice or all of this, the only form of relief other than potentially another motion reopen was asylum and there was hardly any evidence submitted and it seems that it was based on fear of gangs which is this court has held many times is not enough.

[00:28:52] Speaker 01:
I thank you so much for your time unless you have any other questions.

[00:29:06] Speaker 03:
I don't think so.

[00:29:06] Speaker 03:
I think you're wise not to come back to the podium because this has been a fairly hot bench, I would say.

[00:29:13] Speaker 03:
Council, thank you both for your arguments this morning.

[00:29:15] Speaker 03:
I understand this is a difficult case for you and we appreciate your presentation and that you were here for us this morning.

[00:29:23] Speaker 03:
And this case is submitted and we are in recess until tomorrow morning.

[00:29:36] Speaker 02:
This court for this session stands adjourned.