[00:00:01] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
May it please the court?

[00:00:03] Speaker 03:
My name is Cori Hong.

[00:00:04] Speaker 03:
I'm from the Florence Project.

[00:00:06] Speaker 03:
I represent petitioner Zabihullah Momand.

[00:00:10] Speaker 03:
And I will reserve two minutes for rebuttal.

[00:00:12] Speaker 03:
I will watch my time.

[00:00:14] Speaker 03:
I will talk about the Alford plea, the IJ decision, and then the BIA decision.

[00:00:21] Speaker 03:
On the Alford plea, Mr. Momand was convicted of the misdemeanor offense of sexual contact without consent.

[00:00:30] Speaker 03:
he entered an Alford plea, which is a highly unique criminal procedure that maintains his innocence while admitting that the jury may find him guilty.

[00:00:41] Speaker 03:
Under Gomez Sanchez, an IJ cannot relitigate guilt, but can look at the underlying facts and circumstances of an offense to determine if the conviction is a crime, if the conviction is a particularly serious crime.

[00:00:56] Speaker 03:
Now, the court looks to a spectrum of seriousness of the crimes, and an Alford plea to misdemeanor simply cannot be on the high end of that continuum.

[00:01:08] Speaker 00:
Well, I mean, it depends on the facts, doesn't it?

[00:01:10] Speaker 00:
I mean, there can be many reasons why a prosecutor might break down a felony to a misdemeanor, especially in sexual assault cases.

[00:01:19] Speaker 00:
So it could depend and would depend on the actual facts.

[00:01:23] Speaker 00:
that breaking it down with an Alford plea means that it can't be serious.

[00:01:27] Speaker 03:
Yes, Your Honor.

[00:01:28] Speaker 03:
But on this record, his plea was, quote, to the bare minimum of facts, unquote.

[00:01:35] Speaker 03:
And in immigration court, what's significant is he took the stand, he took an oath, and he testified that he had a conversation with a woman, they agreed not to use a condom, they agreed to have sex.

[00:01:49] Speaker 03:
Nothing in that testimony described that the woman was in a state of impairment.

[00:01:55] Speaker 03:
So Mr. Moham's testimony and his plea explain that his conduct did not violate the actual misdemeanor or the charged felony.

[00:02:03] Speaker 00:
Although, I mean, and I understand your argument that on the record before us, we can't consider or the immigration judge shouldn't have considered without more the affidavit

[00:02:19] Speaker 00:
But if we were to look at that, the victim or the putative victim tells a completely different story, right?

[00:02:27] Speaker 03:
Well, Your Honor, those are allegations.

[00:02:30] Speaker 03:
That's not just a police report, but a summary of multiple police reports.

[00:02:35] Speaker 03:
Over nine officers were identified, police officers, as gathering evidence and investigation.

[00:02:42] Speaker 03:
And unlike other police reports, the county prosecutor very much did not verify that any of the facts were true.

[00:02:49] Speaker 03:
She said, if true, this would be the basis for probable cause.

[00:02:53] Speaker 03:
Now, the IJ decision, Your Honor, never looked at that affidavit.

[00:02:58] Speaker 03:
Rather at 2 45, the IJ found that the crime occurred because Mr. Maumont testified that the victim was under the influence of alcohol, but the IJ mischaracterized his testimony to say that she'd been impaired or incapacitated by alcohol and allegation and a crime that the state of Montana never brought forward.

[00:03:21] Speaker 04:
The problem is that he, he, he did say that the

[00:03:27] Speaker 04:
evidence, he did plead to the least, you know, bare minimum that would support the crime.

[00:03:37] Speaker 04:
So he had to have, um, pled to some degree of non-consent because the crime of which he convicted did have a non-consent element.

[00:03:49] Speaker 03:
Yes, Your Honor.

[00:03:50] Speaker 03:
And the statute is very much, it's defined sexual contact to include the touching of sexual or intimate parts of the person through clothing.

[00:04:03] Speaker 03:
Right.

[00:04:04] Speaker 04:
But he had to have pledged a non-consent.

[00:04:06] Speaker 03:
Well, knowing, yes, yes.

[00:04:09] Speaker 03:
But what that contact is, is significant.

[00:04:12] Speaker 03:
And the IJ said it was the level of her alcohol impairment.

[00:04:16] Speaker 03:
which made it a crime, not the lack of consent.

[00:04:21] Speaker 04:
But the IGF- No, it was the lack of alcohol impairment.

[00:04:24] Speaker 04:
This all seems to me to be somewhat beside the point, but the lack of alcohol impairment was the reason for the non-consent.

[00:04:33] Speaker 03:
Well, she said he was under the influence of alcohol to a degree, and then she speculated and mischaracterized his testimony.

[00:04:40] Speaker 04:
I understand that, but that was the reason for the non-consent.

[00:04:42] Speaker 04:
So all I'm saying is that

[00:04:47] Speaker 04:
implicit in what the IJ said, although she didn't actually say it, had to be that there was non-consent because of the alcohol and that the touching that you described was sufficient to be a particularly serious crime.

[00:05:03] Speaker 04:
She didn't actually say it, but she must have meant that because she didn't actually, as you noted, rely on the document.

[00:05:12] Speaker 04:
But the BIA did rely on the document.

[00:05:15] Speaker 03:
Yes.

[00:05:15] Speaker 04:
So isn't the real issue here the introduction of that document?

[00:05:19] Speaker 03:
Yes, yes it is.

[00:05:20] Speaker 03:
And Alcara's, Enrique's cures both issues.

[00:05:25] Speaker 03:
On the IJ issue, if she found him credible, which she did on his cat claim and then was silent on his description of the crime,

[00:05:34] Speaker 03:
She cannot both then find him guilty of a crime when his version of the events was not criminal.

[00:05:44] Speaker 03:
But on the BIA decision, that's where we have a clear Alcara's error.

[00:05:49] Speaker 03:
And that's all that matters, because that's what we had before us.

[00:05:52] Speaker 03:
And there the BIA made its own factual finding.

[00:05:54] Speaker 03:
by looking at the hearsay and said that the crime involved violence against the woman.

[00:06:00] Speaker 03:
That BIA action is improper fact-finding, and it's based on the affidavit, which under Alcáez Enriquez was not permitted to be in the record, and the IJ did not rely on it itself.

[00:06:16] Speaker 04:
Well, one thing that I wondered about, though, is, I mean, the whole effort seemed to be to get the woman who wrote the affidavit to testify,

[00:06:23] Speaker 04:
There was supposedly some effort to get her, but what could with that have done?

[00:06:27] Speaker 04:
I mean, she was just reporting a bunch of hearsay.

[00:06:31] Speaker 03:
Well, I mentioned in the reply brief, and obviously turning it below, I would have liked to have interviewed her because I would have asked why the affidavit was at the beginning of the investigation and what part of her investigation led her to reduce from a very serious felony assault into the non-serial, into a misdemeanor sexual contact.

[00:06:54] Speaker 03:
The other question I would have asked is,

[00:06:56] Speaker 03:
What happened to the roommate?

[00:06:58] Speaker 03:
Was he offered an offer plea?

[00:07:00] Speaker 03:
Was he convicted?

[00:07:01] Speaker 03:
What crime was he convicted of?

[00:07:04] Speaker 03:
Because those two facts very much would have corroborated Mr. Momon's claim that his roommate committed the assault and he did not.

[00:07:14] Speaker 01:
You made the argument that parts of the affidavit related only to the charging of a felony offense and not to the misdemeanor, but the whole thing was reviewed by the BIA.

[00:07:26] Speaker 01:
What parts shouldn't have been considered?

[00:07:29] Speaker 03:
Well, at the IJ level and the BIA, I moved to exclude all of it because it's all improper hearsay.

[00:07:37] Speaker 03:
And under, it involved a charge that was never ripened and it involves hearsay unless, again,

[00:07:44] Speaker 03:
either under Alcaraz-Enriquez, either the author of the report or any of the 18 witnesses had been called by the DHS to allow for cross-examination.

[00:07:53] Speaker 04:
Well, the government's version is that the requirement is only that they make a good faith effort, and I assume that's what we're going to be hearing in a minute, and that they made a good faith effort.

[00:08:03] Speaker 04:
to get this woman to come.

[00:08:05] Speaker 04:
So what's your response to that?

[00:08:06] Speaker 03:
Well, the government focuses on good faith.

[00:08:09] Speaker 03:
Good faith doesn't matter.

[00:08:10] Speaker 03:
It's the question what effort did the DHS take, and the efforts were just simply inadequate.

[00:08:17] Speaker 03:
The DHS attorney never complied with the IJ rules to provide a witness list.

[00:08:22] Speaker 03:
He never submitted that to the court.

[00:08:25] Speaker 03:
When she was supposed to appear on November 2nd,

[00:08:27] Speaker 03:
Um, the, uh, he never told the IJ she's available only during specific windows.

[00:08:32] Speaker 03:
So can we call her first?

[00:08:34] Speaker 03:
He never made for that instead at the end of testimony without skipping a beat, simply said she was unavailable.

[00:08:39] Speaker 03:
Never even tried to reach her.

[00:08:41] Speaker 03:
He never said at the end of the hearing that he'd like to call her.

[00:08:43] Speaker 03:
She said, I assume you'll call her.

[00:08:45] Speaker 03:
And he said, if necessary.

[00:08:46] Speaker 03:
And then on November 15th, again, he never filed a witness statement.

[00:08:50] Speaker 03:
He never called her.

[00:08:51] Speaker 03:
And it began the hearing by simply saying, she's not available today.

[00:08:55] Speaker 03:
and never asked for a continuance, never provided a good faith effort to actually bring her into court, which was over video, and she could have appeared by video.

[00:09:06] Speaker 03:
On remedy.

[00:09:08] Speaker 03:
The parties disagree on remedy, where the government simply wants the court to remand the proceedings on an open record for the BIA to redo everything.

[00:09:18] Speaker 03:
The request that I'm making is a directed remedy.

[00:09:23] Speaker 03:
We want one after the BIA says that the BIA got it wrong by engaging in the fact finding and relying on the affidavit.

[00:09:31] Speaker 03:
and the I.J.

[00:09:32] Speaker 03:
got it wrong by relying on speculation.

[00:09:34] Speaker 03:
So the directions would be to redo the PSC after the I.J.

[00:09:38] Speaker 03:
makes an expressed credibility finding on the crime issue and then only on the evidence that's in the record, which is either based on the conviction records and Mr. Momon's testimony or, if necessary, give an opportunity for the DHS to call the witness again.

[00:09:54] Speaker 03:
But that is a matter of discretion of the court.

[00:09:56] Speaker 04:
It also presumably have, well, I don't know, would they have to get to the merits or would they essentially

[00:10:01] Speaker 04:
determine the merits in determining that he was going to get deferral of removal under the CAT claim.

[00:10:09] Speaker 03:
I'm sorry.

[00:10:11] Speaker 04:
In other words, they have to get to the merits of the withholding claim.

[00:10:15] Speaker 03:
Of asylum, because the IJ granted CAT, which is something that the DHS never appealed.

[00:10:21] Speaker 03:
And so if the particular suicide crime is made, then the IJ can revisit the asylum case, but will then take into account the fact that she's already granted

[00:10:30] Speaker 03:
The cat claim and found and found that he's more likely than not to experience death or torture rather.

[00:10:40] Speaker 03:
And if there are no further questions, may I reserve my remaining time?

[00:10:44] Speaker 00:
Yes.

[00:11:01] Speaker 02:
Good morning or afternoon.

[00:11:04] Speaker 02:
May it please the court, my name is Craig Newell and I'm here on behalf of the Attorney General.

[00:11:10] Speaker 02:
Our position is that remand is the appropriate outcome here because the board did not adequately consider this evidentiary objection based on Alcárez and Riquez.

[00:11:24] Speaker 02:
And the resolution to that objection may alter the parameters of the evidence

[00:11:30] Speaker 02:
that the agency may consider in the inherently discretionary decision of whether Mr. Momog committed.

[00:11:37] Speaker 04:
Why wouldn't we simply rule that the admission of this document was improper?

[00:11:43] Speaker 04:
Why do they have to consider that?

[00:11:44] Speaker 04:
And what is there to consider?

[00:11:45] Speaker 04:
Isn't the law clear that it was improper?

[00:11:48] Speaker 02:
This court, at the moment, Alcaraz-Enriquez does not give much guidance on how to decide what is or is not a good faith effort.

[00:12:00] Speaker 04:
Well, what exactly is the pertinence of that anyway?

[00:12:02] Speaker 04:
I mean, if this is unreliable evidence, it's unreliable evidence, whether it has good faith or not good faith.

[00:12:12] Speaker 02:
If there is a good faith effort, then

[00:12:17] Speaker 02:
according to Akras Enriquez, it can be taken into consideration given the way it's due.

[00:12:23] Speaker 04:
It didn't exactly say that.

[00:12:25] Speaker 04:
It said that there was not a good faith there, but it didn't say what happened if there was, right?

[00:12:30] Speaker 02:
What it did is it simply did what we are asking here for, is a remand for a proceeding that comports with the INA's procedural rules.

[00:12:41] Speaker 02:
Alcaraz-Enriquez recognizes that on that remanded proceeding, the DHS could bring, that was a probation officer into immigration court and have that cross-examination.

[00:12:58] Speaker 02:
This is not an improper request for second bite of the apple.

[00:13:02] Speaker 02:
This is the normal course of business when there is a lacking in the board's decision.

[00:13:09] Speaker 00:
Council would hypothetically what I'm about to say be the same as what you're suggesting or would it be different that if we said that on the record before us there was insufficient ground to admit

[00:13:25] Speaker 00:
the affidavit, so we're going to grant the petition or grant the petition in part and remand.

[00:13:32] Speaker 00:
Would that be materially different than what you're saying?

[00:13:38] Speaker 02:
No, Your Honor.

[00:13:39] Speaker 04:
It seems it would be because you seem to be saying that the BIA could come to the conclusion that the exclusion was proper.

[00:13:51] Speaker 02:
According to how Judge Bennett worded it, based on the record, before it was insufficient because I think it's implying that there was this good faith.

[00:14:06] Speaker 04:
Right.

[00:14:06] Speaker 04:
So why did they get to make it twice?

[00:14:09] Speaker 02:
If you do not make the good faith effort inquiry, then the board should.

[00:14:13] Speaker 02:
It's a pretty fact-intensive thing.

[00:14:16] Speaker 04:
What I'm asking is this.

[00:14:17] Speaker 04:
As I'm interested what Judge Bennett said, if we say on the record,

[00:14:22] Speaker 04:
before as the admission of this document was improper under Alcaraz-Irincas.

[00:14:33] Speaker 04:
Why would they get to do it again and just consider again whether it would meet the document?

[00:14:38] Speaker 02:
You're right, Your Honor.

[00:14:39] Speaker 02:
I started going down the wrong path.

[00:14:42] Speaker 02:
You are right.

[00:14:42] Speaker 02:
Under that, yes, you have decided that the DHS's efforts

[00:14:50] Speaker 02:
weren't sufficient.

[00:14:52] Speaker 02:
They didn't amount to the good faith effort required by outcries.

[00:14:55] Speaker 02:
In that case, it is sent back and just... So why should the agency have a second eye on the apple?

[00:15:05] Speaker 04:
The case already existed.

[00:15:06] Speaker 04:
The issue already existed.

[00:15:10] Speaker 04:
There are good reasons to believe which were just outlined, that there wasn't a good faith effort, whatever that means.

[00:15:16] Speaker 04:
There was absolutely no showing as to why this person wasn't coming.

[00:15:21] Speaker 04:
and why she couldn't have been, why the government couldn't have asked for a continuance to ever come.

[00:15:29] Speaker 04:
So why would we do it again?

[00:15:31] Speaker 02:
If the court makes that ruling on the no-good-faith effort, then the remand is to reassess the evidence, excluding this probable cause.

[00:15:45] Speaker 04:
That's different than what you're asking for.

[00:15:47] Speaker 02:
You're right, that's taking it one step further.

[00:15:50] Speaker 02:
And if this court is going to address the good faith effort, there is sufficient evidence to find that DHS made the affirmative effort.

[00:16:01] Speaker 00:
So counsel, would we have the discretion to say there wasn't a sufficient basis in the record for this affidavit, but we're going to send it back for the BIA

[00:16:15] Speaker 00:
or for the agency to do it again without barring further evidence.

[00:16:22] Speaker 00:
Do we have the discretion to do that?

[00:16:24] Speaker 02:
Yes, Your Honor.

[00:16:26] Speaker 02:
There is a little bit of a choose your own adventure to this decision.

[00:16:33] Speaker 02:
The thing that the court should not do, it should not

[00:16:38] Speaker 02:
categorically rule out his conviction as being a particularly serious crime.

[00:16:45] Speaker 02:
When Mr. Momon talks about this spectrum of seriousness, it's still this very, it's a weighing of all these factors, and you can't just have this categorical rule out of a crime or not, because it all depends on

[00:17:06] Speaker 02:
the facts and underlying circumstances.

[00:17:09] Speaker 02:
And so that's why even though he pled, he had this Alfred plea, which while he maintained his innocence, the board recognized that, but it is a recognition that there's strong evidence of your guilt to that crime.

[00:17:23] Speaker 02:
That's strong evidence that there was non-consensual sexual contact.

[00:17:27] Speaker 02:
Yes, the

[00:17:29] Speaker 02:
the elements of this misdemeanor sexual assault is a more minor touching, but you do have his own testimony that the victim, that he had sexual intercourse with the victim, and that she was inebriated.

[00:17:46] Speaker 02:
So the

[00:17:47] Speaker 02:
the board, the immigration judge, as the fact finder could reassess all this and possibly find it still to be a particular serious crime, even excluding that probable cause.

[00:17:58] Speaker 02:
But that should be a decision that the agency gets to make in the first instance.

[00:18:04] Speaker 02:
The particular serious crime determination is one

[00:18:08] Speaker 02:
that Congress delegated to the Attorney General and her delegates at the board and in the immigration ranks.

[00:18:15] Speaker 02:
And that's why the ordinary remand rule applies to this case.

[00:18:18] Speaker 02:
And that's all we are asking for here.

[00:18:21] Speaker 02:
It is up to the court.

[00:18:22] Speaker 04:
Just to be clear, that wasn't all you were asking for.

[00:18:24] Speaker 04:
But that's all you're asking for now.

[00:18:27] Speaker 04:
That wasn't all you were asking for, because you were asking for the opportunity and for the BIA to reconsider whether the document should be admitted.

[00:18:35] Speaker 04:
We've already been over that.

[00:18:37] Speaker 02:
Right, I am asking for that and if the court doesn't want to go that way, this is what I, this is at bottom what we were asking for.

[00:18:45] Speaker 00:
That it go back with the even regardless of whether you get to use the affidavit that you get to present evidence.

[00:18:57] Speaker 00:
That it's a particularly serious crime.

[00:19:01] Speaker 02:
That this crime, that yes, excluding the

[00:19:07] Speaker 02:
probable cause affidavit?

[00:19:08] Speaker 02:
Is that what you're asking?

[00:19:09] Speaker 00:
Well, I'm saying you're asking for an ordinary remand where you would have the opportunity to present evidence.

[00:19:19] Speaker 02:
But the evidence is already in the record.

[00:19:21] Speaker 02:
There is his testimony.

[00:19:23] Speaker 00:
So you're not asking for the ability to present any new evidence?

[00:19:27] Speaker 02:
No, Your Honor.

[00:19:28] Speaker 02:
The evidence is there.

[00:19:30] Speaker 02:
It's up to first

[00:19:34] Speaker 02:
If this court is going to address the good faith effort inquiry on its own, we argue that it should find that DHS made that good faith effort.

[00:19:45] Speaker 02:
It shouldn't require her clean effort.

[00:19:47] Speaker 02:
But if the court is going to say no, DHS's efforts were insufficient, it should remand for the board and or the immigration judge to consider it based on the more restricted parameters of the evidence.

[00:20:02] Speaker 00:
Would the BIA have the, in what you've just described, in your view, would the BIA have the ability to send it back to the IJ with the possibility of new evidence or is that foreclosed if we were to do what you just said?

[00:20:16] Speaker 02:
I don't think it's foreclosed because even Alcarez and Riquez recognize that there's potential on remand for the availability of the cross-examination.

[00:20:28] Speaker 02:
So Ms.

[00:20:29] Speaker 02:
Paddock could

[00:20:30] Speaker 02:
be cross-examined if she is brought in.

[00:20:33] Speaker 02:
And that would rejigger the evidence in and of itself, whether she's persuasive or not.

[00:20:40] Speaker 02:
And then it would affect your opinion on Mr. Momon's testimony.

[00:20:44] Speaker 01:
They would be using the affidavit then?

[00:20:49] Speaker 02:
Yes, if Ms.

[00:20:50] Speaker 02:
Paddock is brought in for cross-examination, yes.

[00:20:55] Speaker 02:
Yes.

[00:20:57] Speaker 02:
But then, depending on Ms.

[00:21:00] Speaker 02:
Paddock's answers to Ms.

[00:21:02] Speaker 02:
Hong's questions, you would know how much weight or no weight you would get to that probable cause affidavit.

[00:21:09] Speaker 00:
Am I correct the police reports were never introduced?

[00:21:12] Speaker 00:
No, Your Honor, they were not.

[00:21:14] Speaker 00:
Okay.

[00:21:16] Speaker 00:
correctly interpreting what you're saying, that if we were to do this, you couldn't go back and say, well, we're going to now put in the police reports with some names redacted.

[00:21:29] Speaker 02:
I don't think so, Your Honor.

[00:21:31] Speaker 02:
That's not normally how this would work.

[00:21:34] Speaker 02:
And I think the particular serious crime burden still falls on the applicant.

[00:21:42] Speaker 02:
And so whatever evidence there is, that is the evidence we use to make that determination.

[00:21:48] Speaker 02:
And so there are no further questions.

[00:21:53] Speaker 02:
For the reasons I provided and those in our brief, this court should remand this case.

[00:22:00] Speaker 02:
Thank you, Your Honors.

[00:22:07] Speaker 03:
I have three points.

[00:22:09] Speaker 03:
May I ask your question?

[00:22:11] Speaker 04:
Of course.

[00:22:12] Speaker 04:
How do you envision the remand?

[00:22:15] Speaker 04:
Would there be additional evidence or not?

[00:22:18] Speaker 04:
I would argue not.

[00:22:21] Speaker 03:
Alcaraz-Enriquez provided the opportunity because that was a whole new rule that was not known at the time that the IJ had his hearing.

[00:22:32] Speaker 03:
Here, this was the first objection, and when I made that first objection for the IJ, the DH said, oh, well, I'll find her then, and never did.

[00:22:41] Speaker 03:
So the DHS was aware of the burden, aware of the risk.

[00:22:46] Speaker 03:
and he has to bear the choices of his litigation strategy.

[00:22:52] Speaker 03:
So my request for the remand is, I mean, the BIA finding at six says that his argument that the

[00:23:03] Speaker 03:
Documents author was not available for cross-examination as without merit.

[00:23:07] Speaker 03:
So it should be a clear showing that the BIA decision was wrong on this, that very much Alcarez Enriquez controls, and that Alcarez Enriquez requires a Sixth Amendment right to confrontation.

[00:23:22] Speaker 03:
The DHS attorney did not comply with that rule.

[00:23:25] Speaker 03:
It knew about that rule and made the choice not to call a witness to comply with it.

[00:23:30] Speaker 03:
It had its bite at the apple.

[00:23:32] Speaker 03:
So I would request for remand to say that the BIA made a mistake, and it is very much instructed to redo the PSC determination based on the evidence that is properly in the evidence, which, properly in the record, which are the conviction documents, Mr. Momon's testimony, and not the affidavit.

[00:23:54] Speaker 04:
But that evidence, as we were saying before, would include the statement at the Alfred plea that he was stipulating to the barest minimum.

[00:24:07] Speaker 04:
So it would be whatever the barest minimum is.

[00:24:10] Speaker 03:
The barest minimum of facts.

[00:24:12] Speaker 03:
That stipulation, though, also said that anything that would implicate immigration consequences is being contested and not being conceded.

[00:24:21] Speaker 03:
So that very surgical plea

[00:24:23] Speaker 03:
must be taken into account.

[00:24:30] Speaker 03:
No, Your Honor.

[00:24:32] Speaker 03:
Are there no further questions?

[00:24:34] Speaker 00:
We thank counsel for their arguments and the case just argued is submitted.

[00:24:38] Speaker 00:
Thank you.