[00:00:00] Speaker 05: seated Good morning everyone and welcome to the night circuit. [00:00:03] Speaker 05: I apologize for the delay my fault not their fault not her fault my fault So today on calendar. [00:00:10] Speaker 05: We've got two cases. [00:00:12] Speaker 05: We have the first one mcclellan I understand counsel you're gonna split your time Okay, so what we're gonna. [00:00:17] Speaker 05: Do then is mr.. Russell eight hard minutes meaning you don't have to worry about your two [00:00:24] Speaker 05: If you go less than eight minutes, you get more than two. [00:00:27] Speaker 05: But if he starts going overtime, we're going to cut him off, because I want to make sure you get a chance. [00:00:31] Speaker 05: Are you going to go back to back, or are you going to do rebuttal? [00:00:33] Speaker 05: What's your thinking on that? [00:00:36] Speaker 05: OK, fair enough. [00:00:37] Speaker 05: All right, then we'll call the first case. [00:00:38] Speaker 05: One thing I always say when I'm about to do oral argument is in the ninth circuit, there's no extra credit for using all of your time. [00:00:45] Speaker 05: And what I mean by that is if you go up there and you make your points, and you're not getting any questions, and there's still time on the clock, [00:00:54] Speaker 05: It's okay to sit down. [00:00:55] Speaker 05: You're not compelled to use all your time. [00:00:57] Speaker 05: And with that, we'll go ahead and call the first matter. [00:00:59] Speaker 05: So I guess it's gonna be Mr. Russell first. [00:01:01] Speaker 05: Come on up. [00:01:12] Speaker 03: May it please the court, I am Gregory Russell, attorney for petitioner, Malconian. [00:01:18] Speaker 03: Your honors, in this case, [00:01:20] Speaker 03: There has been a manifest injustice committed that must be corrected. [00:01:25] Speaker 03: I'll start with some basic facts. [00:01:28] Speaker 03: The petitioner here in Malcolmian arrived in the U.S. [00:01:30] Speaker 03: in 2003 and because his wife had been granted asylum, he was able to adjust status in 2008. [00:01:36] Speaker 03: However, prior to that, he committed two crimes. [00:01:40] Speaker 03: In 2004, PC-422, criminal threats. [00:01:43] Speaker 03: His wife and him were having an argument. [00:01:45] Speaker 03: He made a threat. [00:01:47] Speaker 03: Notably, though, that crime was not a CIMT until 2008, after he adjusted. [00:01:53] Speaker 03: So arguably, he did not have notice. [00:01:55] Speaker 03: Now, he also had a crime in 2008, working at a hotel. [00:02:00] Speaker 03: Allegedly, he stole a TV set. [00:02:02] Speaker 03: He says that he paid for it. [00:02:06] Speaker 03: Now, Your Honors, to illustrate the manifest injustice present here, let's consider two permanent residents. [00:02:15] Speaker 03: Both have committed CIMTs, just like the petitioner here. [00:02:19] Speaker 03: However, one goes on a cruise, a love boat cruise to Ensenada. [00:02:26] Speaker 03: He returns after having a nice vacation, and he is detained. [00:02:32] Speaker 03: Under Section 101A13C5, he's treated as an inadmissible arriving alien. [00:02:41] Speaker 03: Now, the other permanent resident does not leave. [00:02:46] Speaker 03: He stays in the U.S., does not travel. [00:02:49] Speaker 03: And although both are residents and both committed CANTs, the one who does travel is penalized for that travel. [00:02:58] Speaker 03: I might add that the right to travel is a fundamental right under privileges and immunities clause of the U.S. [00:03:05] Speaker 03: Constitution. [00:03:06] Speaker 03: So we have a situation where someone is penalized for traveling. [00:03:10] Speaker 03: Your Honor, that is a due process issue. [00:03:12] Speaker 03: People should not be penalized for traveling. [00:03:14] Speaker 05: Was this argument you're making now, was that exhausted before the immigration courts? [00:03:19] Speaker 03: Your Honor, I did raise the issue of manifest injustice with the BIA, that this is a miscarriage of justice, because this section of the law is not fair. [00:03:29] Speaker 04: Did you mention the due process clause? [00:03:31] Speaker 04: Did you mention the due process clause? [00:03:34] Speaker 04: No, we did not. [00:03:35] Speaker 05: I mean, it seems to me [00:03:37] Speaker 05: I don't want to limit your argument here, but there is an argument that I think you you presented to the Bia that the Bia did not address Yes, but the rehabilitation provision I think that was an argument that I think arguably you made and we're going to be asking the government about it I'm sure and if the Bia did not address that argument, so that's one you raised and wasn't addressed I think we have to send it back for [00:03:59] Speaker 05: The Bia addresses so I with the time you have left yes I want to make sure you cover that because the Issues you didn't argue below those are those are tough ones for us to do anything about but if you did argue something This is your shot. [00:04:11] Speaker 03: Yes, sir. [00:04:12] Speaker 03: So now we have a matter of collado which the Bia held That similar situation to this permanent resident commits a crime two years after residency Okay, and he leaves [00:04:28] Speaker 03: comes back, and again, he's treated as an inadmissible arriving alien under that same section 101. [00:04:35] Speaker 03: Now, in that case, the defense counsel raised a fluting doctrine, which basically says, according to the US Supreme Court, if a departure is brief, casual, and innocent, they should not be treated as arriving aliens. [00:04:48] Speaker 03: However, the BI held, no, that's not true because the flutid doctrine does not apply. [00:04:54] Speaker 03: The flutid doctrine was pre-1996, pre-IIRA, when entry and admission were two separate issues. [00:05:02] Speaker 03: 1996 IIRA changed this whole entry and admission scenario. [00:05:08] Speaker 03: So now we're under the admission and removability spectrum. [00:05:16] Speaker 03: Now, I want to distinguish Collado from the present case. [00:05:19] Speaker 03: It's very important. [00:05:20] Speaker 03: Collado represents a case where a resident commits a crime after their resident. [00:05:28] Speaker 03: Here, that's not the case. [00:05:30] Speaker 03: Both crimes were committed before. [00:05:32] Speaker 03: So arguably, is this not an indication of arbitrariness? [00:05:36] Speaker 03: Why are we penalizing a permanent resident for crimes committed before he was a resident? [00:05:42] Speaker 03: I would assert that the reason we have this law is to deter conduct, prevent residents from committing crimes. [00:05:51] Speaker 03: And if they commit a crime and they try to come back in, yes, it applies. [00:05:54] Speaker 03: But that's not the case here. [00:05:55] Speaker 03: Both crimes were committed before he was adjustment. [00:05:59] Speaker 03: Your honor, there's another issue here about the applications that were not submitted with the motion reopened. [00:06:05] Speaker 03: We would argue under Fonseca, the recent 2023 Ninth Circuit case, number 20-71977, that there is plenty of meat on the bones here for the BIA and for the immigration judge to reconsider this case. [00:06:22] Speaker 03: There's plenty of meat on the bones because we have all the relevant facts. [00:06:26] Speaker 03: In the record, we know that the petitioner is married to a U.S. [00:06:30] Speaker 03: citizen and has been since 1990. [00:06:33] Speaker 03: We know that there's a hardship to the wife, cancer stage 3 colon cancer, that's in the record. [00:06:39] Speaker 03: We know that there's an approved I-130. [00:06:42] Speaker 03: We know that there's a previously filed I-601. [00:06:46] Speaker 04: 1003.2c1 says that a motion to reopen for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. [00:06:58] Speaker 04: Did you comply with that provision? [00:07:01] Speaker 04: No, we did not, Your Honor. [00:07:02] Speaker 04: So then why isn't that mandatory? [00:07:04] Speaker 03: Because the law does not state that. [00:07:05] Speaker 03: Under 8 USC, it says if necessary. [00:07:08] Speaker 04: Must doesn't mean must? [00:07:11] Speaker 03: Well, 8 USC, the law says that applications, if necessary, should be submitted. [00:07:16] Speaker 03: The regulation says they must be submitted, but the law says if necessary. [00:07:20] Speaker 03: It's not required under the law. [00:07:22] Speaker 03: So it's a regulation that imposed that rule, Your Honor. [00:07:27] Speaker 03: And there has been cases where it's been found that the applications are not necessary if they've already been submitted in the record. [00:07:36] Speaker 03: Your Honor, I want to cover one final issue, which is under Entomati v. Garland, 12-4-1013 from 2021, the court there, this court found that there was a manifest injustice because the petitioner there, Entomati, had not been afforded the right to have his case adjudicated fairly. [00:08:01] Speaker 03: And in that case, similar to this one, there was many motions reopened. [00:08:05] Speaker 03: There was numerous cases where the courts did not look at all the facts and the arguments. [00:08:11] Speaker 03: And I believe this is a similar case. [00:08:13] Speaker 03: There's been many times when the BIA and the immigration judge have been able to look at this case. [00:08:20] Speaker 03: And one very important point is this individual is actually eligible for permanent resident cancellation or removal. [00:08:27] Speaker 03: Due to Perea in 2018, where the stop time rule was not in effect because of invalid NTAs, which is the case here. [00:08:36] Speaker 03: Both NTAs in this petitioner's case are invalid because the time and the date are TBD. [00:08:46] Speaker 03: It invalidates the NTAs in this case. [00:08:49] Speaker 03: So under Perea, the stop time rule does not apply. [00:08:52] Speaker 03: So his time is still running. [00:08:54] Speaker 03: Because of Freya, the petitioner here is eligible for permanent resident cancellation removal. [00:09:00] Speaker 03: He has not committed aggravated felonies. [00:09:03] Speaker 05: All right, anything else? [00:09:04] Speaker 05: All right, thank you very much, counsel. [00:09:07] Speaker 05: We'll hear from the government now. [00:09:29] Speaker 02: Good morning, Your Honors. [00:09:30] Speaker 02: May it please the Court? [00:09:31] Speaker 02: Jessica Strokas on behalf of the United States Attorney General. [00:09:35] Speaker 02: Your Honors, this Court should dismiss the petition for review under Section 242A2B1 because the Board's denial of the motion to reopen for failure to establish prima facie eligibility for a waiver of inadmissibility under Section 212H1B is necessarily a judgment relating to the granting of discretionary relief [00:09:55] Speaker 04: under 212 H. So, Council, I don't want to get in the way of your argument, but I want to get right to the point that Judge Owens raised. [00:10:05] Speaker 04: The government did not argue in its brief, am I correct, that the BIA addressed the rehabilitation clause argument, right? [00:10:18] Speaker 04: Correct, Your Honor, but that was... Okay, so then tell me why we shouldn't apply the ordinary remand rule in this case to let the BIA in the first instance [00:10:31] Speaker 04: deal with the rehabilitation provision relief. [00:10:36] Speaker 02: Because petitioner did not raise that to the board in his motion. [00:10:39] Speaker 04: So I'm looking at ER 11 and at ER 11 petitioner cites and quotes from the relevant provision which ends with [00:10:54] Speaker 04: Three little eyes the alien has been rehabilitated and then on AR 12 There's a statement 15 years has elapsed so I mean [00:11:10] Speaker 04: I agree this is raising it pretty lightly but why doesn't citing the provision which includes the word rehabilitated in it and then talking about the 15 years which is applicable to that provision, why isn't that sufficient to have under our case law to have raised that before the board? [00:11:30] Speaker 02: Your honor, it was entirely reasonable for the board in this case to look at the motion to reopen, which has functionally argued only the hardship to the alleged wife in this case, and look at the single piece of evidence submitted with the motion to reopen, which was a medical document regarding, again, the alleged wife, and find that or view this motion as raising [00:11:54] Speaker 02: the hardship section of section 212 H1B. [00:12:02] Speaker 04: With respect counsel, I don't think you're answering my question, which is, [00:12:07] Speaker 04: They cite the rehabilitation provision on page 4, AR 11, and then they talk about the 15 years for the convictions on page 5, AR 12. [00:12:20] Speaker 04: Why isn't that sufficient for us to consider that this was raised and that the BIA needed to address it in the first instance? [00:12:29] Speaker 02: Your honor, I think that petitioner needed to have done more in his motion to reopen to actually raise under B1A. [00:12:36] Speaker 02: I think he needed to have actually made the argument about rehabilitation, not just reference. [00:12:42] Speaker 02: the letters of the statute. [00:12:44] Speaker 00: And I would point out that the- But he did more than just reference the statute. [00:12:48] Speaker 00: As Judge Bennett just stated, he made the argument that 15 years had elapsed since he committed the acts that made him inadmissible. [00:12:57] Speaker 00: So that, I mean, that's not just a recitation of the elements. [00:13:01] Speaker 00: That's saying, look, I qualify for this. [00:13:05] Speaker 02: Your Honor, it's a recitation of the first of subsection I, little i. [00:13:10] Speaker 00: Sure, but why isn't that enough to put the BIA then on notice that he is raising this argument? [00:13:16] Speaker 00: I mean, it's a recitation, as you just stated, of one of the elements of the provision. [00:13:21] Speaker 02: Because he didn't make any argument with respect to rehabilitation. [00:13:25] Speaker 02: Rehabilitation is a different subsection of that provision. [00:13:30] Speaker 02: So little i is activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa admission or adjustment of status. [00:13:40] Speaker 02: Three little eyes is the alien has been rehabilitated. [00:13:43] Speaker 02: He made no argument with respect to rehabilitation. [00:13:46] Speaker 04: He- So, Council, would you agree that if we disagree with you and find that he sufficiently raised this to put the BIA on notice, and I understand your argument, but let's say we disagreed, would you agree that we have to send it back to the BIA? [00:14:06] Speaker 02: I agree that that is one [00:14:08] Speaker 02: One of the things that this court could do under the ordinary remand rule However, I also believe that because there was absolutely nothing presented with the motion to reopen regarding rehabilitation that It would be harmless error if the board did not it didn't make that argument in your brief though, correct, correct However, I still maintain that Section 212 H is in and of itself discretionary and then the subsection eight What is it H? [00:14:37] Speaker 02: H 1 B [00:14:39] Speaker 02: itself as well is discretionary. [00:14:41] Speaker 02: That was the provision that the petitioner substantially relied on in his motion to reopen to show the potential extreme hardship to his alleged United States citizen wife. [00:14:53] Speaker 02: And I say alleged because the board here pointed out that he had previously informed the board that he had divorced from his wife and he presented no evidence with his motion to reopen that they had remarried other than [00:15:04] Speaker 02: statements of counsel. [00:15:06] Speaker 02: However, going back to this court's jurisdiction, the board's determination here, 212H is discretionary. [00:15:15] Speaker 02: 212H1B is discretionary. [00:15:17] Speaker 02: Under Patel, this court's jurisdiction is the consideration, only the consideration of legal and constitutional claims, which just have not been raised with respect to the waiver of inadmissibility. [00:15:32] Speaker 02: And all of the other arguments the petitioner has raised in her opening brief and as well as on the opening argument, all of those issues are unexhausted. [00:15:42] Speaker 02: And while exhaustion is not jurisdictional, it is mandatory and respondent has properly invoked it in this case. [00:15:49] Speaker 02: So under Fort Bend County v. Davis, this court should take respondent's invocation of the administrative exhaustion requirement at face value and not consider any of those arguments that have been raised by petitioner that were not exhausted. [00:16:05] Speaker 02: So if there are no further questions, this court should dismiss the petition for review because petitioners asking the court to review the factual and discretionary determination under section 212H, which constitutes a decision relating to the granting or denying of discretionary relief. [00:16:25] Speaker 01: No, thank you. [00:16:25] Speaker 05: Thank you very much, counsel. [00:16:26] Speaker 05: Appreciate it. [00:16:37] Speaker 01: This case cries out for justice, Your Honors, because this person, Mr. Malkonian, Nurses Malkonian, has lived in the United States for many, many years as a lawful permanent resident. [00:16:53] Speaker 01: The issue regarding whether or not he's an arriving alien has been spoken about by my colleague and the government. [00:16:59] Speaker 01: I want to inform you about the facts of this case. [00:17:02] Speaker 01: the wife whom he remarried developed third stage cancer, colon cancer. [00:17:08] Speaker 01: And then they remarried after she was diagnosed. [00:17:11] Speaker 01: Shortly within this brief time frame, they remarried in 2019. [00:17:16] Speaker 01: She became extremely dependent upon her husband when she was diagnosed with cancer and receiving oncology treatment. [00:17:25] Speaker 01: That is really the heart of this case. [00:17:27] Speaker 01: And so that's why I asked for a continuance [00:17:30] Speaker 01: to be able to assess the medical documents and file all the medical documents and file the requisite 212h waiver for her. [00:17:39] Speaker 01: The judge refused to continue the case. [00:17:41] Speaker 01: Once we got all the documents regarding the wife's health and the hardship [00:17:45] Speaker 01: which she would definitely suffer, there's no issue. [00:17:48] Speaker 01: She was like really needing this husband and they continued their relationship even after they got divorced but when they got remarried she definitely depended on him and then defended him in court and told the judge they've gotten remarried and she needs him now. [00:18:03] Speaker 01: So the judge I think that was a horrible miscarriage of justice in so far as [00:18:08] Speaker 01: The judge denied a continuance and denied the motion to reopen. [00:18:12] Speaker 01: Well, you've already heard the arguments about arriving aliens. [00:18:15] Speaker 01: That's the really large issue in this case, the tension between Collado and Ira. [00:18:20] Speaker 01: And I'm sure that you've read the dissent by the former BIA Judge Rosenberg, brilliant dissent, in which she says that actually Collado did not completely overrule Flutie, the US Supreme Court case. [00:18:33] Speaker 01: The US Supreme Court case of Flutie [00:18:35] Speaker 01: clearly asserts that a brief innocent and casual departure from the United States should not deprive the respondent of lawful permanent residence status and that's what we believe is the crux of this case. [00:18:46] Speaker 01: The case should be remanded and the case should be granted for 212H. [00:18:50] Speaker 01: Thank you. [00:18:51] Speaker 05: All right. [00:18:51] Speaker 05: Thank you very much, counsel. [00:18:52] Speaker 05: Thanks to both of you for re-briefing your argument in this case. [00:18:55] Speaker 05: This matter is submitted.