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The United States Court of Appeals for the Ninth Circuit is now in session.

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Please be seated.

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Good morning, everyone.

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We're going to take the cases up in the order in which they appear on the docket.

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The first three cases have previously been submitted on the briefs.

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They are Navarro v. Bisignano, Durbin v. Bisignano, Gorovenko,

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versus active clean energy.

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And we will hear argument in Mata Yanez versus Bondi.

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Good morning, your honor.

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Yes, you may proceed.

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My name is Gary Finn.

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I'm the attorney for the petitioner Raul Mata Yanez.

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And if it please the court, I would like to begin by addressing my client's application for cancellation of removal for a non-permanent resident.

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So in our briefing, in our opening brief particularly, we argued a lot about how we thought that the proceeding had been unfair to the petitioner, to my client, for a number of reasons.

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The government today is arguing that the only issue before the court with respect to cancellation of removal is the issue of exceptional and extremely unusual hardship.

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And I agree with that.

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We agree with that position.

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That is the only issue today before the court.

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The Board of Immigration Appeals do not address any of the other issues.

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So in order to

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for my client to be granted cancellation of removal, he would have to show that his two United States citizen children would suffer exceptional and extremely unusual hardship if he were to be removed from the United States.

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We believe that my client made that showing before the agency.

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But actually, this is a question that

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In past years, the court did not have jurisdiction to review, but thanks to the recent decision of the Supreme Court in Wilkinson v. Garland, the court now has jurisdiction to review denials of cancellation of removal based on a lack of a finding of exceptional and extremely unusual hardship.

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The question is, what is the standard of review?

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Well, that's one of the questions.

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What would be the standard of review that the court needs to use to review the exceptional and extremely unusual hardship question?

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So I think the government is arguing that it's a substantial evidence standard.

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We would like to argue that the court should review the

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denial of cancellation of removal de novo because there is a question of law involved.

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In Wilkinson, the Supreme Court said at page 784 that the review of denial of cancellation of removal involves a mixed question of law and fact,

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It requires a close engagement with the facts.

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It's a very heavy type of analysis.

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But it still involves a question of law.

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And so we think that the court should review de novo the question.

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Didn't in Gonzalez Juarez, the Ninth Circuit as a court, we've held that

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Reviewing whether the BIA erred in applying the exceptional, extremely unusual hardship standard to a given set of facts is reviewed for substantial evidence.

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I think that was the respondent sent a 28-J letter.

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Yes, Your Honor, that's true.

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But in a case like this that I have today with my client, there are really no factual disputes.

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I'm not sure if there were any factual disputes in Gonzales Juarez.

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I read the opinion, it didn't really address that issue.

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So what is the legal or constitutional challenge you are making then?

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The legal challenge is that

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The Board of Immigration Appeals did not correctly apply the law of cancellation of removal to the facts.

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OK, but then that is a substantial evidence question.

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That follows directly with a quote from Gonzalez Juarez.

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That's true, Your Honor.

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I would have to concede that point that that's what the case does say.

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Honestly, I don't know how I can argue around that.

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As of this moment, but yeah, that's what the case says so.

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If even, but I would argue your honor that even if the court were to review the case using substantial evidence.

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The court can still find that my client satisfied.

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The requirements.

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Or the one requirement that he failed to satisfy according to the board, which was the exceptional and extremely unusual hardship.

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Because this is a case, in our view, that goes beyond the norm.

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Now, my client has two children.

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They were much younger at the time of the hearing.

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They're now 16 and 13.

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They were born in the United States.

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They would remain in the United States if the petitioner were to be removed.

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Their mother

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is sick, she has a thyroid condition and sometimes is unable to take care of the children.

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And this man, my client is a very, very good father.

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He takes his children on outings, he takes them fishing, he takes them out to eat, he helps them with their homework.

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And when the mother sometimes is unable to care for the children and the father is very involved,

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It would really be a shock, I think, for these children to be left without a father.

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And so I do think that if the record is reviewed carefully, that the court, even under substantial evidence review, the court could find that the respondent, I'm sorry, the petitioner would be eligible for cancellation of removal or that the board erred in finding him ineligible.

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Council, Judge Gould, if I could interject a question, please.

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Please.

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Under the substantial evidence standard, wouldn't we have to say that the record compels a conclusion that the agency erred?

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Yes, Your Honor.

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I think you would.

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Okay, thank you.

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Yeah, but you know, even with that, you know, I still think that there is exceptional and extremely unusual hardship in this case.

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And so the agency did err, and I think the record would compel that conclusion.

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You know, I would like to say another thing before I

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allow government council per term and then I would say about five minutes I hope or something like that for rebuttal.

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I would like to address the issue of voluntary departure that my client was denied.

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Now the Board of Immigration Appeals denied voluntary departure in discretion according to them but

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If you look at the reasons, they make a legal error.

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The board has a legal error in their decision.

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And this court can review a discretionary denial based on a legal error.

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And so the legal errors are two that I see.

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First of all, the Board of Immigration Appeals characterize an arrest that my client had for battery

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more than 20 years ago, and said that that was a domestic violence offense.

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The government in their briefing argues that since the board used the word offense, they weren't thinking that my client was convicted of anything.

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He was not convicted.

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There were no charges filed.

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But the board says he was arrested for domestic violence, and that's not true.

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He was arrested for battery.

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Well, what else they say is they say respondent has a criminal record, including a conviction for driving while under the influence, as well as a domestic violence offense.

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And that's what is not correct, because he doesn't have a domestic violence offense in his criminal record.

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That's exactly right, Your Honor.

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He doesn't.

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And what's your second claim of legal error in this voluntary departure issue?

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The board also said, Your Honor, that the petitioner failed to file his income tax return correctly in the year 2014.

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That's also true.

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But this was not intentional.

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And I don't know if it was material.

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There was no showing that the government lost any revenue.

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It was just a mistake.

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It was a mistake.

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He had just gotten married and he filed his return incorrectly.

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What I found to be perplexing about that is I generally understand that you get a lower tax rate if you're married than if you're single.

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Am I correct about that?

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Like, did he put himself in a bracket where he'd be taxed at a higher rate accidentally?

[00:11:12] Speaker 00:
I think so.

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I don't hold myself out as a tax expert, but I think that's correct, Your Honor.

[00:11:19] Speaker 04:
It's like a marriage discount.

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I mean, a lot of people get married on January 1 just for that.

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Yeah, I think that's right.

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So I don't think, you know, and this man has filed his taxes every year.

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He made one mistake after he got married.

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I think people are often confused when they get married how their taxes are going to change.

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And I don't think there's anything in the record that he intentionally deceived the government on this.

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Well, assuming we agree with you, what is the appropriate remedy?

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Because we just would remand for the board to reweigh the factors and reconsider

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I'm wondering if you would like to comment on whether it should give voluntary departure to your client?

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the petitioners' equities in this country.

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Now, the last thing I'm going to say about this, this is potentially a very important relief for my client because if he is denied cancellation of removal and other forms of relief, he would have the option of leaving the country.

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But in less than five years, his oldest child, who was a U.S.

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citizen, would be able to petition for him.

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And so he has the

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chance of coming back to the United States legally in the future.

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If he's granted voluntary departure, he may have a shorter waiting time outside the country.

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So it's very important.

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So the case should at least be remanded for that purpose for the agency to deal with that issue.

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I'll reserve the rest of my time for you.

[00:13:22] Speaker 02:
Actually, I'd like to ask some questions about this voluntary departure issue.

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So there's nothing in the record as to why he lied on his tax returns.

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We're speculating, right, that he was at disadvantaging himself.

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We don't know whether there were immigration consequences, anything else that might be benefited by filing a single versus married.

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That's all speculation, but he did admit that he lied on his 2014 tax returns.

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He drank 10 beers in three hours and drove with his four-year-old in the car.

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When the police stopped him, he was so drunk he was dizzy.

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He had to do the nine-month class, which is unusual for a first offender for a DUI, but he had 0.2 and above blood alcohol content.

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which that night usually you get a three-month class for DUI for a first time DUI in superior court but he did the nine-month class which was this was a much more serious DUI than your regular run-of-the-mill first time DUI in superior court.

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He lied about his drug arrest in 2004, said he couldn't remember the arrest, then he later says, no, it was all on advice of counsel that I answered that way.

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So the BIA said as a matter of discretion, he doesn't warrant voluntary departure even if we assume he has good moral character.

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So, in terms of the agency's discretion, they made the decision, and we have an abuse of discretion review standard.

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So, we have to find that that is illogical, contrary to law, or arbitrary on this record.

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So, let me ask you, how, based on this

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this many number of, you know, he did actually admit that he did lie about the drug arrest as well during his hearing before the IJ.

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So based on this like just full record of discretion, how is that an arbitrary, illogical or contrary to law decision by the agency?

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Well, Your Honor, it's contrary to law because the agency

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weighed the factors incorrectly.

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It assumed that the petitioner was arrested for domestic violence.

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He was not.

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With regard to the incident with the drug arrest, we argue in our opening brief that the advice that people used to get in California court was confusing about whether or not these types of arrests had to be

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Disclosed and the California legislature even passed a law saying that these types of convictions where there was diversion involved for all non-citizens.

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I mean, I'm looking at this domestic violence, right?

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He got a booking number.

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He got a booking number.

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He got a court arraignment date.

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He was arrested.

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No, he was arrested.

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So you're saying, I mean, I guess it almost doesn't matter because the BIA said we're assuming he's of good moral character.

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But in the exercise of discretion, we're saying overall he doesn't qualify.

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And it is a discretionary decision of the agency.

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It is.

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But as I said before, Your Honor, if the discretionary decision is based on a legal error, then the court can review it.

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You know the balancing the test here.

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I mean the petitioner has a lot of positive equities.

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Oh, yeah, he Definitely screwed up when he got that DUI.

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There's no doubt about that but there's a lot of positive things and that that weighing of the putting in the scale the fact that the

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the board thought he was arrested for domestic violence as opposed to a battery, which is a legally very different type of an arrest, that might have tipped the scales.

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And so this court can review that, and it should remand it for a new determination on voluntary departure, at least, assuming that the cancellation of removal is not going to be granted.

[00:17:32] Speaker 04:
All right.

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Thank you, counsel.

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I'll give you some extra time for rebuttal after Ms.

[00:17:38] Speaker 04:
Antoon.

[00:17:42] Speaker 03:
Hello.

[00:17:43] Speaker 03:
May I please record?

[00:17:43] Speaker 03:
My name is Monica Antoon.

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I'm hearing on behalf of the Attorney General.

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I'll start by addressing voluntary departure, because the first thing that we need to clarify is the scope of the court's jurisdiction to review that denial.

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Because it was a discretionary denial, the court would not have jurisdiction to reweigh the equities.

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And that is the same type of discretionary denial that's covered in 8 U.S.C.

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1252 A to B.I., and that would apply.

[00:18:14] Speaker 04:
So I agree we can't reweigh the equities, but if the, and in an ordinary case I wouldn't, but if the BIA relies on something that is not true in weighing the equities, can't we point that out and say, please reweigh and see if you reach the same decision?

[00:18:36] Speaker 04:
Not ourselves reweighing, but just ask, saying, you know,

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characterize this as a domestic violence offense.

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First of all, it was merely an arrest.

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And secondly, it wasn't for domestic violence.

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And then have the agency reweigh.

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Now, there's nothing to say that the agency wouldn't reach the exact same result.

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I'm not saying that it would be prohibited from denying voluntary departure.

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But I'm just saying it needs to reweigh the true facts

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I mean, it needs to weigh, in the first instance, things that are true, not things that are false.

[00:19:19] Speaker 03:
The dispute that we're discussing is a factual dispute, and that factual dispute would also be outside the scope of the court's jurisdiction.

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And the government submits that the board did not misconstrue the evidence in a manner that would arise to illegal error.

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So what we're really talking about is a factual dispute that would also be unrevealable and therefore would not properly be the basis for remand.

[00:19:46] Speaker 04:
Oh, I don't see this as a factual dispute.

[00:19:49] Speaker 04:
I see this as the records quite clear.

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The FBI rap sheet refers to an arrest for battery, and I believe the penal section was 243E, which is a protected domestic relationship.

[00:20:05] Speaker 04:
So the record does support the board's... But the BIA said that his criminal record shows he has a domestic violence offense, and he had a mere arrest, and that makes a difference.

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The word offense is broader than a conviction, and it would cover an arrest.

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And when that conduct is shown in the record, the board did not mischaracterize the record.

[00:20:31] Speaker 04:
I think we have case law to the contrary, that you can't treat an arrest as a conviction.

[00:20:37] Speaker 03:
Oh, no, I'm not.

[00:20:41] Speaker 03:
The board did not treat the arrest as a conviction.

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The board is looking at the factual record.

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So the board's decision distinguishes between a criminal record, including a conviction for driving under the influence and a domestic violence offense.

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So the board did not construe the domestic violence incident as a conviction simply because he was arrested for it.

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They did not equate the two.

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And the IJ also states in his decision on page 61 of the record, there was an arrest for some type of domestic violence offense.

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So again, the agency is not considering this to be a conviction.

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It's only considering it as an arrest.

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And in the discretionary context, that type of conduct is permissible to consider.

[00:21:41] Speaker 02:
But there's no corroborating evidence of, now I'm unclear on why opposing counsel said this wasn't a domestic violence, arrest for a domestic violence offense.

[00:21:53] Speaker 02:
It is domestic battery 243E1 of the penal code.

[00:21:57] Speaker 02:
But what evidence is there corroborating that that even happened?

[00:22:02] Speaker 02:
Just the notation, the notation on the,

[00:22:07] Speaker 03:
sheet there so there is that that yes the prosecutor's notation but there is also an fbi rap sheet pardon me at at page 586 of the record showing a 2002 arrest in riverside and it states charge one one count of b.a.t.

[00:22:33] Speaker 03:
spouse xsp

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date, et cetera.

[00:22:38] Speaker 02:
Let's say we agree that the BIA improperly relied on the domestic violence arrest.

[00:22:46] Speaker 02:
Is that what is whatever remaining enough to deny Mr. Matayane's voluntary departure?

[00:22:55] Speaker 02:
Or is the error, if it is an error, is that alone enough for us to have to reverse and remand?

[00:23:05] Speaker 03:
There are other considerations that the board raised.

[00:23:09] Speaker 03:
Those considerations could support a discretionary denial, but at this stage, the court would not be able to come to that conclusion on its own.

[00:23:19] Speaker 03:
That's a discretionary determination for the agency to make.

[00:23:23] Speaker 03:
And we start to get then into the jurisdictional limitation on a weighing of the discretionary factors.

[00:23:30] Speaker 04:
Council, really, I don't have any quarrel with that.

[00:23:34] Speaker 04:
My concern would be just to remand for reweighing of the factors by the BIA.

[00:23:39] Speaker 04:
But what do you make?

[00:23:40] Speaker 04:
So ER 1154 is the district attorney complaint dismissal that says there's

[00:23:51] Speaker 04:
a lack of sufficient evidence to support this charge.

[00:23:58] Speaker 04:
I mean, if there's a lack of sufficient, and this is in the record at ER, I'm not really sure.

[00:24:05] Speaker 04:
It's got a bait stamp of 1154 and then it's got a page number, handwritten 47, but it says,

[00:24:18] Speaker 04:
that there was a lack of sufficient evidence to support this charge.

[00:24:24] Speaker 03:
Sure.

[00:24:24] Speaker 03:
And that would just be the difference between probable cause for an arrest and enough evidence to bring a prosecution that could result in a conviction, and whether the prosecutor was found.

[00:24:36] Speaker 02:
OK.

[00:24:37] Speaker 02:
All right.

[00:24:39] Speaker 02:
I mean, I guess the problem is that in Paredes-Urastarazu,

[00:24:46] Speaker 02:
The court explicitly said we would be troubled if this were a case in which the board found the mere fact of arrest probative of whether petitioner had engaged in underlying conduct.

[00:24:56] Speaker 02:
But in that case, there was not only an arrest, there was a charge and there was a diversionary program participation.

[00:25:03] Speaker 02:
So you don't have that in this case.

[00:25:05] Speaker 02:
So that's why I'm asking other than this ER 1154,

[00:25:10] Speaker 02:
your FBI rap sheet there's in this case there really is nothing more than the arrest I'm just checking my notes excuse me it's 1140 the FBI rap sheet sure so I

[00:25:37] Speaker 02:
So the one question is, if there's nothing more, which is why I was asking for corroborating evidence, there's nothing more than 1140 and 1154, then was it legal error to consider this arrest?

[00:25:50] Speaker 02:
Is that enough to remand or do you say this is a discretionary decision and look at all of the other factors that could have weighed in this discretionary denial of voluntary departure?

[00:26:04] Speaker 02:
And you keep just stating the standard, which we agree with you what the standard is, but I think you're not answering the question.

[00:26:18] Speaker 03:
If the board's decision is premised on what the court would view to be a legal error over the government's opposition, then the board would have to reweigh that discretionary determination.

[00:26:34] Speaker 01:
If that's true, counsel, then wouldn't it be a fair result if we were to vacate the order in that respect?

[00:26:51] Speaker 01:
Discussion and removal and remand to the agency to weigh the factors, excluding arrests.

[00:27:08] Speaker 03:
If that is true, then yes.

[00:27:12] Speaker 02:
All right.

[00:27:12] Speaker 02:
So I'm going to give you one more opportunity because you've declined to what other factors would the agency have relied on other than the domestic, I guess it's called domestic battery.

[00:27:27] Speaker 02:
Would the agency have to make its discretionary decision to deny voluntary departure?

[00:27:34] Speaker 03:
The agency can rely on numerous factors.

[00:27:37] Speaker 03:
It can rely on any other offenses in his criminal history.

[00:27:44] Speaker 03:
It could rely on inconsistencies.

[00:27:49] Speaker 03:
The tax return, he admitted that he made a misrepresentation.

[00:27:54] Speaker 03:
So the point is not whether it was intentional or whether he benefited or not, but his admission to a misrepresentation.

[00:28:03] Speaker 03:
The record is open for the board to consider whatever discretionary factors would be appropriate.

[00:28:10] Speaker 04:
Is there any evidence in the record that it was a benefit to him to lie, to say single instead of married?

[00:28:19] Speaker 04:
Any evidence in the record that it wasn't just a mistake?

[00:28:24] Speaker 03:
My understanding of his testimony was that his wife had already filed her tax return.

[00:28:31] Speaker 03:
So he filed as single rather than filing an amended return.

[00:28:36] Speaker 03:
But there is no evidence either way.

[00:28:38] Speaker 04:
Is that illegal to do that?

[00:28:41] Speaker 04:
I mean, he was trying to pay his taxes.

[00:28:46] Speaker 04:
I mean, how is that something to be held against him?

[00:28:53] Speaker 03:
Well, what the I.J.

[00:28:54] Speaker 03:
was concerned about was when he admitted that he made a misrepresentation to the U.S.

[00:29:00] Speaker 03:
government.

[00:29:00] Speaker 03:
So whether it was beneficial or not was not the I.J.'

[00:29:03] Speaker 03:
's concern.

[00:29:05] Speaker 03:
It was that he had admitted to making a misrepresentation.

[00:29:09] Speaker 04:
All right.

[00:29:10] Speaker 04:
Why don't we get your take on the issue of cancellation of removal since your friend on the other side spent a lot of time making arguments as to why

[00:29:20] Speaker 04:
This is an exceptional and unusual circumstance of hardship for his children.

[00:29:28] Speaker 03:
Sure.

[00:29:29] Speaker 03:
So, substantial evidence does support that denial and applying the standard in Gonzalez-Warres, out of the ordinary, exceedingly uncommon, deviating in the extreme from the norm, the type of hardship described here, the hardship to the children, which the IJ acknowledged there would be hardship,

[00:29:51] Speaker 03:
the difficulty their mother might have at times because of her health condition, but she did also have help from other people.

[00:29:59] Speaker 03:
This type of hardship is not the type of hardship that would rise to the level of exceptional and extremely unusual hardship.

[00:30:09] Speaker 03:
So the government submits that the court should affirm the denial of cancellation of removal.

[00:30:14] Speaker 01:
It cancels the type of hardship here.

[00:30:20] Speaker 01:
similar to what the family of anyone deported.

[00:30:28] Speaker 03:
It's similar.

[00:30:29] Speaker 03:
Pardon me.

[00:30:31] Speaker 03:
It's similar in the economic hardship, in the emotional hardship, and while different applicants might have unique medical concerns, many applicants do see a parent, a caretaker who might have a medical issue, but the care that the children would continue to receive is not so exceptional as to be

[00:30:57] Speaker 03:
to deviate in the extreme from the norm and be exceedingly uncommon.

[00:31:04] Speaker 01:
Thank you.

[00:31:12] Speaker 03:
And in conclusion, the government submits that the court should largely dismiss the petition for review for lack of jurisdiction and deny the petition for review the remainder of the petition.

[00:31:23] Speaker 03:
Thank you.

[00:31:24] Speaker 04:
All right, thank you, Council.

[00:31:26] Speaker 04:
Mr. Finn, I promised you a couple of minutes, even though you used up all your time.

[00:31:33] Speaker 00:
Okay, real quick.

[00:31:36] Speaker 00:
Regarding this voluntary departure issue again, so Council stated that the petitioner misrepresented, and that's the end of the story.

[00:31:47] Speaker 00:
That's not the law.

[00:31:48] Speaker 00:
The law is that misrepresentation has to be intentional.

[00:31:52] Speaker 00:
and that's quite well established.

[00:31:55] Speaker 00:
In this case, the petitioner took the tax return to his lawyer and that someplace in the record, I think the petitioner said that the lawyer said it was okay.

[00:32:08] Speaker 00:
Now, I don't like clients that blame things on their lawyer, but the lawyer did have to review it and submit it herself at the time.

[00:32:18] Speaker 00:
I wasn't representing the man at the time.

[00:32:20] Speaker 00:
And then last thing, Your Honors, is this distinction between the domestic violence and battery.

[00:32:29] Speaker 00:
To say that the petitioner was arrested for domestic violence as opposed to battery, that's a legal mistake, and it's not a small mistake.

[00:32:39] Speaker 00:
California treats domestic violence much more severely than it does battery.

[00:32:48] Speaker 00:
I was just looking up in here the California codes,

[00:32:51] Speaker 00:
uh... the batteries uh... something how would that even matter if the b i a assumed he established good moral character well i think you are that the question of good moral character and discretion are separate issues they did find them to be a good moral character in the end but uh... uh... the even if they respond even if they respond and remove proceedings or the petitioner here would would uh... established all statutory eligibility requirements

[00:33:21] Speaker 00:
Including good moral character the the immigration judge can still deny the case in a matter of discretion.

[00:33:27] Speaker 00:
I've had that happen a lot of times Right.

[00:33:30] Speaker 02:
This is a discretionary decision that we are reviewing for abuse of discretion and they could have said based on this whole record We find that he does doesn't meet the equities for voluntary departure but but your honor if

[00:33:48] Speaker 00:
If the discretionary determination is based on legal error, then the court can review it.

[00:33:53] Speaker 00:
There's a case that it's called Bringas Rodriguez.

[00:33:57] Speaker 00:
And I think I cited in my briefs, but a discretionary determination based on legal error is reviewable.

[00:34:07] Speaker 00:
And it's a separate issue from the good moral character determination.

[00:34:15] Speaker 00:
That's all I have, Your Honors, and I thank you so much for listening to us this morning.

[00:34:20] Speaker 04:
Well, I thank both counsel for a good argument, and thank you for appearing by video.

[00:34:31] Speaker 04:
I know it's difficult to travel right now.