[00:00:00] Speaker 04:
We'll now move to the next case on the calendar, Ovedar Chavez versus Bondi.

[00:00:28] Speaker 02:
Good morning.

[00:00:30] Speaker 04:
Morning.

[00:00:30] Speaker 02:
May it please the court.

[00:00:31] Speaker 02:
My name is Corey Hong.

[00:00:32] Speaker 02:
I'm from the Florence project.

[00:00:34] Speaker 02:
I represent petitioner Carlos Alvedo Chavez, whom I will refer to as Mr. Alvedo.

[00:00:39] Speaker 02:
I will reserve two minutes of my time and I will watch the clock.

[00:00:44] Speaker 02:
I will talk about cancellation and then cat on cancellation of removal.

[00:00:50] Speaker 02:
The I.J.

[00:00:51] Speaker 02:
informed Mr. Alvedo that he was not eligible for cancellation because the DHS served his notice to appear, also known as the NTA, three days before the 10-year period to make him eligible.

[00:01:05] Speaker 02:
While his case was before this court, the Supreme Court decided ni chavez, which clarified that a defective NTA will not stop time.

[00:01:17] Speaker 02:
For 21 years,

[00:01:19] Speaker 02:
Alcaraz v. INS in this court said that when a case is pending before it and if there's any new law that is decided after the BIA briefing, this court will remand for the agency to apply that new law and reconsider its decision.

[00:01:38] Speaker 02:
The government argues that this court should newly draw that line, not where Alcaraz placed it, but now limit that rule to situations in which the intervening law happens before the IJ decision is issued.

[00:01:52] Speaker 04:
And petitioner's argument is that we as a panel have no basis for doing that, right?

[00:01:57] Speaker 02:
Correct.

[00:02:00] Speaker 02:
And the Alcaraz rule is clear.

[00:02:03] Speaker 02:
It's easy to apply.

[00:02:04] Speaker 02:
It's been the rule for 21 years.

[00:02:06] Speaker 02:
And the government offers two defenses to change.

[00:02:09] Speaker 02:
First, the government argues that the new rule would give the board a chance to reconsider an issue, but it's a practical matter.

[00:02:16] Speaker 02:
Under the board's own rules, it does not automatically accept briefing outside of the briefing schedule.

[00:02:24] Speaker 02:
And the second, the government argues that this is how Santa's Batista was decided, but that is not true.

[00:02:30] Speaker 02:
Santa's Batista applied Alcares's rule.

[00:02:34] Speaker 02:
In the wake of Nishavez, this court has routinely and repeatedly given the remedy that Mr. Ovada seeks here.

[00:02:43] Speaker 02:
When his case was pending, the court will remand his case to let him apply for cancellation and removal.

[00:02:50] Speaker 02:
This is the same small ask that Mr. Ovada is making before the court.

[00:02:56] Speaker 02:
The government has provided no reason to depart from this precedent.

[00:03:01] Speaker 02:
If the court agrees with this argument, it need not reach any other issue in the petition.

[00:03:08] Speaker 03:
Is that right?

[00:03:10] Speaker 04:
Why is that?

[00:03:12] Speaker 02:
Why is that?

[00:03:13] Speaker 04:
Yes.

[00:03:13] Speaker 02:
Well, because if the court agrees with me on this alone, it can grant the case.

[00:03:19] Speaker 02:
It can grant and remand the petition.

[00:03:21] Speaker 03:
At that point, don't we have to rule on the other claims for relief first?

[00:03:30] Speaker 02:
I argue that you have the authority, but if you disagree with me on that one, you can grant the cancellation alone.

[00:03:36] Speaker 02:
Turning to the cat claim, I agree.

[00:03:39] Speaker 03:
I'm just trying to conceptually understand what you're saying.

[00:03:41] Speaker 03:
If we left the other three in abeyance, would they still be open?

[00:03:45] Speaker 02:
The other three in abeyance?

[00:03:46] Speaker 03:
If we left the relief claims, the cat claim in abeyance, if we didn't rule on it, then what?

[00:03:54] Speaker 02:
Well, Your Honor, I agree with you that it's important for the court to reach the cat claim.

[00:03:59] Speaker 03:
And why did you say that we could just remat?

[00:04:02] Speaker 02:
Oh, just to hedge my bets, Your Honor, that even if you disagree on everything else that to... But we first would have to rule on them.

[00:04:10] Speaker 02:
Correct.

[00:04:11] Speaker 02:
Correct.

[00:04:11] Speaker 03:
I'm sorry.

[00:04:12] Speaker 03:
I thought you meant we could just do that and do nothing else.

[00:04:14] Speaker 02:
I'm sorry.

[00:04:15] Speaker 02:
What's that?

[00:04:15] Speaker 02:
I thought you meant we could just do that and not rule on the other issues.

[00:04:19] Speaker 02:
No, Your Honor.

[00:04:19] Speaker 02:
I got it.

[00:04:20] Speaker 02:
Just want to make clear that at a minimum he should be eligible for cancellation.

[00:04:24] Speaker 00:
Turning to the CAT claim then... Can I ask you a question about cancellation?

[00:04:29] Speaker 00:
It was clear that this was discussed at the time the first notice came, and the initial meeting with the immigration judge, they discussed, oh, you made it almost to the 10-year mark.

[00:04:43] Speaker 00:
And then, obviously, Nez Chavez came later on.

[00:04:46] Speaker 00:
What about the Pereira case, which seemed to have said much the same thing in 2018?

[00:04:54] Speaker 00:
before the actual hearing, the merits hearing took place before the immigration judge and the cancellation request was not raised again at that time even though Pereira might have provided a basis for it.

[00:05:09] Speaker 00:
Can you explain that?

[00:05:10] Speaker 02:
Absolutely, and this is discussed in the exhaustion discussion of the opening brief, where what happened is after Pereira, the BIA en banc decided matter of Bermuda's quota, and there they said that the defective NTA

[00:05:27] Speaker 02:
won't stop time, so they actually then went around it.

[00:05:32] Speaker 02:
I'm sorry, Mendoza-Hernandez was the on-bank case in 2019, so that was after Pereira.

[00:05:39] Speaker 02:
And there they said the time will run until the second hearing notice is issued.

[00:05:44] Speaker 02:
And then there was a circuit split on whether Mendoza-Hernandez applied.

[00:05:49] Speaker 02:
In the Ninth Circuit in May... So the stop time rule wouldn't apply?

[00:05:54] Speaker 00:
It would run until the...

[00:05:56] Speaker 02:
until the second hearing notice, is what Mendoza Hernandez, the BIA, said.

[00:06:01] Speaker 02:
And there were circuit splits, agreeing or disagreeing with that.

[00:06:05] Speaker 02:
But in the Ninth Circuit, we had Lopez 1, which on May 2019 rejected this two-step cure of the BIA.

[00:06:12] Speaker 02:
But then there was an en banc vote on January 23, 2020, where the full court decided to hear that issue.

[00:06:19] Speaker 02:
That was when his briefing schedule was due on November, where there was literally a clean slate in the Ninth Circuit, where the Ninth Circuit said, we do not know what the rule is, and we're going to hold off to decide it until Niche Chavez comes down.

[00:06:32] Speaker 02:
The BIA decision was decided on April 28, 2021, and then the day after, Niche Chavez came down and made it clear that he is eligible for cancellation.

[00:06:43] Speaker 02:
So he could not have raised this under any Ninth Circuit authority.

[00:06:48] Speaker 02:
And it would have been futile.

[00:06:52] Speaker 00:
Even though Pereira didn't say that, it was the BIA's interpretation of Pereira that caused the issue not to be raised at the merits hearing?

[00:07:01] Speaker 02:
Yes, Your Honor, because then at 2019, well, there were two BIA decisions.

[00:07:07] Speaker 02:
The Bermuda's quota came out, and that was in 2018.

[00:07:10] Speaker 02:
And then in 2019, there was the en banc decision saying that you had two decisions.

[00:07:15] Speaker 02:
And that came out after the IJ decision.

[00:07:19] Speaker 03:
So I want to ask you just before you get into the cat claim, there was a negative credibility finding.

[00:07:27] Speaker 03:
Um, you don't challenge it.

[00:07:32] Speaker 03:
So I gather that you're, you're not challenging the asylum withholding issues, only the cat claim.

[00:07:43] Speaker 02:
Well, in the briefing, it challenges the withholding as well in that particular social group.

[00:07:50] Speaker 03:
But there certainly was a negative credibility finding as to that.

[00:07:54] Speaker 03:
Correct.

[00:07:54] Speaker 03:
Which you're not challenging.

[00:07:56] Speaker 02:
Neither of the briefs challenges it.

[00:07:58] Speaker 02:
The opening brief challenges and the reply brief challenges the failure to apply LEA and asking for intervening authority for it to be... But with regard to... Oh, the credibility?

[00:08:08] Speaker 02:
No.

[00:08:08] Speaker 02:
No.

[00:08:08] Speaker 03:
Okay.

[00:08:09] Speaker 03:
So, but on the CAT issue,

[00:08:13] Speaker 03:
The BIA didn't seem to rely on the credibility finding, although the IJ did.

[00:08:18] Speaker 03:
Correct, correct.

[00:08:19] Speaker 03:
So is that why you're not, you're going forward with the CAD claim, assuming that the credibility issue is therefore not relevant?

[00:08:26] Speaker 03:
Well, exactly.

[00:08:28] Speaker 02:
Plus, in general, CAT can be granted outside of credibility.

[00:08:32] Speaker 02:
And I think of the credibility, I would ask at a minimum for this court to remand an open record simply because this credibility finding is significant.

[00:08:41] Speaker 02:
Oftentimes, the IJ will believe that someone is a liar and dismiss all their evidence.

[00:08:45] Speaker 02:
Where here, the IJ simply said that his testimony, quote, lacked specificity and detailed corroboration.

[00:08:50] Speaker 04:
Did Petitioner even challenge credibility before the BIA?

[00:08:54] Speaker 02:
Your Honor, what's that?

[00:08:54] Speaker 04:
Did the petitioner even challenge credibility before the BIA?

[00:08:58] Speaker 02:
No, his former attorney did not do that.

[00:09:00] Speaker 02:
But the issues of lack of specificity and detail and corroboration are those that can be rehabilitated at a new hearing.

[00:09:08] Speaker 02:
So if this court is going to remand on the issue, would request an open record for that to occur.

[00:09:15] Speaker 04:
But getting to the merits of the CAT claim, why don't you give me your best argument as to why the BIA was wrong when it said

[00:09:23] Speaker 04:
that your client does not meaningfully address the IJ's findings concerning the lack of evidence that the government would acquiesce to any torture of the respondent by cartel members.

[00:09:34] Speaker 02:
In continuing with that BIA, the BIA said we do not look at anything that was presented to us.

[00:09:39] Speaker 02:
We can only look at the open record on pages 34 and 37 of the opening brief.

[00:09:45] Speaker 02:
I cited the extensive record showing that this cartel is the most powerful one.

[00:09:50] Speaker 02:
It is the only one that's growing, that is brutal, it's ruthless, it's killing police officers in a selective way to demand compliance.

[00:09:59] Speaker 02:
And the BIA did not reference any of those decisions.

[00:10:02] Speaker 04:
Well, but they cited the matter of Burbano.

[00:10:04] Speaker 02:
Well, for the withholding and asylum, he does not cite Burbano under the CAT claim.

[00:10:10] Speaker 04:
Instead, I don't know.

[00:10:12] Speaker 04:
He did not meet his burden of proof for withholding of removal under the act or for cat.

[00:10:17] Speaker 04:
We in the same paragraph, we adopt and affirm the decision of the immigration judge matter of Burbano.

[00:10:24] Speaker 02:
Well, Your Honor, even under that, the IJ's decision, though, only relied on the lack of Mexican acquiescence.

[00:10:32] Speaker 02:
And that is at 82 and 83 of the IJ decision.

[00:10:35] Speaker 02:
Isn't that what your argument goes to, the lack of Mexican acquiescence?

[00:10:40] Speaker 02:
Yes, Your Honor.

[00:10:41] Speaker 02:
Yes, Your Honor.

[00:10:41] Speaker 02:
And the BIA did not discuss any of the evidence that was presented before it.

[00:10:46] Speaker 04:
But it doesn't have to.

[00:10:47] Speaker 02:
Well, under Diaz-Renanoso, when there is a material disconnect between the IJ's finding and on what's in the record, it's presumed that the BIA did not consider it.

[00:11:00] Speaker 02:
In the government's brief, she noted that it seemed very—I think the words were very unsettling or very disturbing about what was happening in Mexico with this cartel, and that shows that the disconnect was there, that the BIA needed to address why that was insufficient.

[00:11:15] Speaker 02:
to show efficacy, not just efforts.

[00:11:18] Speaker 04:
All right, counsel, you're out of time, but we'll give you a little time for rebuttal.

[00:11:21] Speaker 02:
Thank you, Your Honor.

[00:11:33] Speaker 01:
Good morning, Your Honors.

[00:11:34] Speaker 01:
May it please the Court, Courtney Moran on behalf of the Attorney General.

[00:11:37] Speaker 01:
There's really only one issue that is properly before this court, which is given that there is this unchallenged adverse credibility finding, does the documentary evidence in the record compel the conclusion?

[00:11:52] Speaker 03:
Why does the adverse credibility finding relevant to the BIA, to the CAT claim when the BIA in its analysis of the CAT claim did not rely on it?

[00:12:06] Speaker 01:
I think the BIA did agree with the immigration judge on that point and then added on additional analysis saying that the evidence in the record didn't show that the Mexican government wouldn't.

[00:12:21] Speaker 03:
Well, but with regard to... Well, all right, maybe.

[00:12:28] Speaker 03:
Go ahead.

[00:12:29] Speaker 04:
But let me push back on that being the only issue.

[00:12:33] Speaker 04:
Okay.

[00:12:37] Speaker 04:
the another issue irrespective of credibility that we should remand for reconsideration of cancellation?

[00:12:49] Speaker 01:
Well, it wouldn't be reconsideration of cancellation because it was never presented to the agency in any shape or form.

[00:12:54] Speaker 01:
And that's exactly why it hasn't been.

[00:12:56] Speaker 04:
But there was nothing to present.

[00:12:58] Speaker 04:
I mean, there's no question that under the law at the time, he didn't qualify, right?

[00:13:04] Speaker 01:
I respectfully disagree that there's no question that he didn't qualify.

[00:13:09] Speaker 04:
The IJ told him he didn't qualify, right?

[00:13:11] Speaker 01:
In his first hearing when he was pro se, the IJ said, it looks like you don't qualify for cancellation of removal.

[00:13:17] Speaker 01:
Two months later, he got an attorney who represented him for the next six or seven years until he filed his petition for review.

[00:13:23] Speaker 01:
And that attorney at that hearing said, we're considering filing an application for cancellation of removal.

[00:13:30] Speaker 04:
But the law didn't support it.

[00:13:33] Speaker 01:
I think that there certainly was a good argument that the law did support it, at least in 2018 when the Supreme Court issued Pereira, and then also when this court issued Lopez in May of 2019.

[00:13:45] Speaker 01:
That's when his appeal was pending before the BIA.

[00:13:50] Speaker 04:
What about what Judge Prageron said for the court in Alcaraz, we do not require an alien to exhaust administrative remedies on legal issues

[00:14:03] Speaker 04:
based on events that occur after, with after italicized briefing to the BIA has been completed.

[00:14:10] Speaker 04:
Why doesn't that bind us?

[00:14:13] Speaker 01:
In that case, the noncitizen had applied for the underlying relief.

[00:14:18] Speaker 01:
They had applied for suspension of deportation.

[00:14:21] Speaker 04:
But I'm talking about the holding.

[00:14:23] Speaker 04:
Isn't that a holding of the case, that exhaustion

[00:14:29] Speaker 04:
is not required on legal issues based on events that occur after briefing to the BIA has concluded.

[00:14:36] Speaker 01:
I think that that point is that there had been a change in the legal landscape that affected an application that had already been filed.

[00:14:45] Speaker 01:
So the holding is saying that if this person has filed an application, they at first were eligible when they filed, they weren't eligible later, it kind of went back and forth, and then this court eventually said that if that

[00:15:00] Speaker 01:
legal issue wasn't addressed after they filed their brief to the board, then that's okay.

[00:15:06] Speaker 01:
But at least we know, based on the application that they've already filed, that this court would be able to see that that issue had been resolved.

[00:15:15] Speaker 01:
In this case, the cancellation of removal application was never presented to the agency

[00:15:20] Speaker 01:
in any shape or form.

[00:15:22] Speaker 01:
And we're not saying that it has to happen at a specific point within, you know, after Pereira was issued or after Lopez was issued or at, you know, before briefing or after briefing.

[00:15:35] Speaker 01:
I think that those kind of splitting of hairs avoid the

[00:15:40] Speaker 01:
main point that there's no presentation of this application at all.

[00:15:46] Speaker 01:
And so this court, in reviewing the record that's before this court, there's no evidence that the petitioner is eligible for cancellation or removal or that there's any error that the agency has committed.

[00:16:03] Speaker 01:
And as my friend on the other side has acknowledged, Niche Chavez was issued one day after the board's decision in this case.

[00:16:13] Speaker 01:
So the board denied.

[00:16:15] Speaker 04:
All after the briefing was completed.

[00:16:17] Speaker 01:
No, the board issued its decision here on April 28th, 2021.

[00:16:21] Speaker 01:
On April 29th, the Supreme Court issued Nizh Chavez.

[00:16:25] Speaker 01:
Again, this petitioner at that point was still represented by the same attorney that he had for the past six years who had been saying earlier before the immigration judge that he was thinking about applying for cancellation of removal.

[00:16:40] Speaker 01:
He mentioned that in the hearing in May 2019.

[00:16:44] Speaker 01:
He mentioned again in the January

[00:16:47] Speaker 01:
or excuse me, May 2015.

[00:16:48] Speaker 01:
In the January 2016, he mentioned again that he might consider applying for other relief and then never did that.

[00:16:55] Speaker 04:
And I think that... So, counsel, is there anything about what I'm going to read from what the IJ told the then respondent at 140 to 141 of the administrative record?

[00:17:08] Speaker 04:
You came back in 2005.

[00:17:10] Speaker 04:
So, sir, it does not look like you're going to qualify for cancellation of removal because you don't have 10 years in the United States by the service of the notice to appear.

[00:17:20] Speaker 04:
Is there anything about what the IJ told the then respondent that is false of what I just read?

[00:17:28] Speaker 01:
Is there anything that was false at that time?

[00:17:31] Speaker 04:
False or incorrect?

[00:17:33] Speaker 01:
I think that the law at that time, that was accurate based on the law at that time.

[00:17:39] Speaker 01:
However, the immigration judge said in that hearing, you know, it looks like you're not eligible.

[00:17:48] Speaker 01:
So, but didn't say you can't apply for this type of relief, especially then two months later that, you know, in his next hearing, he had an attorney who said,

[00:17:59] Speaker 01:
We're considering applying for cancellation of removal now.

[00:18:03] Speaker 01:
And the immigration judge at that point didn't say, no, you can't.

[00:18:06] Speaker 01:
I've already decided this issue.

[00:18:07] Speaker 00:
But there's two critical points here.

[00:18:09] Speaker 00:
One is the merits hearing, which was in March of 2019.

[00:18:13] Speaker 00:
And the second time is the filing of the brief in November of 2020.

[00:18:18] Speaker 00:
At neither of those times was it clear that he had the right to withholding of the cancellation of withholding.

[00:18:28] Speaker 01:
I think actually under this circuit precedent at that time Lopez was the law of this circuit and from May 2019 through

[00:18:39] Speaker 01:
oh sorry, through January 2020, so at least it was a percolating, excuse me, it wasn't the law of the circuit at the time that he filed the brief, but that issue was certainly percolating, there was a circuit split, the Supreme Court had already issued Pereira, I think that it fairly could have been presented to the board at that time, but even if it didn't need to be because he had already, at the time that he filed his brief, that was not the law of the circuit,

[00:19:07] Speaker 01:
Again, when the board issued its decision on April 28, 2021, the next day,

[00:19:14] Speaker 01:
the Supreme Court issued Niche Chavez.

[00:19:15] Speaker 01:
This was top of mind for many people, and especially, again, with this petitioner who had this attorney who had already been talking about filing application for cancellation of removal.

[00:19:27] Speaker 01:
That was the time to file an application or a motion to reopen based on this new form of relief that had never been presented.

[00:19:35] Speaker 03:
Is there any requirement anywhere that you file a motion to reopen in order to exhaust?

[00:19:39] Speaker 03:
I'm sorry?

[00:19:40] Speaker 03:
Is there any law that requires that you file a motion to reopen in order to exhaust?

[00:19:46] Speaker 01:
So all of the cases that the petitioner relies on for this argument that maybe you don't have to present specifically a motion to reopen, you have to present the issue in some way to the agency.

[00:20:01] Speaker 03:
Has any court ever held that you didn't exhaust because you could have filed a motion to reopen?

[00:20:10] Speaker 01:
I think that the, I guess not that I'm aware of, but there's an abundance of case law that is only addressing issues that were presented to the agency in some way.

[00:20:26] Speaker 01:
Even if he didn't file a motion to reopen,

[00:20:28] Speaker 01:
The issue has to be presented to the agency either in an underlying application, in a motion to remand.

[00:20:34] Speaker 01:
We address a lot of these cases in our brief, pages 31 to 32.

[00:20:39] Speaker 01:
I'll just briefly.

[00:20:41] Speaker 00:
The agency would have summarily denied, wouldn't they, based on the law at the time?

[00:20:46] Speaker 00:
Because Lopez hadn't been issued yet when the merits hearing took place.

[00:20:53] Speaker 00:
They were still operating under the BIA determination of this two-step process or whatever they came up with.

[00:21:02] Speaker 00:
And then when the briefing was done on the appeal, Lopez was vacated.

[00:21:08] Speaker 01:
Well, Pereira had already been issued in June 2018 before the March 2019 hearing.

[00:21:16] Speaker 01:
So Pereira already said a defective NTA doesn't stop time for purposes of cancellation of removal.

[00:21:22] Speaker 00:
Didn't the BIA address that issue in their, I forget the name of the decision, but did they address the issue when they came up with the two-step process?

[00:21:31] Speaker 01:
Yes, and there was this discussion of whether this two-step process fixes this issue, but the question of whether it could have been presented at that time, I think it would have fairly been presented and was being presented in cases and leading to the Supreme Court's eventual decision in these Chavez.

[00:21:54] Speaker 01:
And again, I just think that on the record- Why don't you conclude, counsel?

[00:21:58] Speaker ?:
Okay.

[00:21:59] Speaker 01:
On the record before this court, there's no basis to remand for consideration of an application that has never been presented, particularly where to have such an application be reopened and reconsidered by the agency, the petitioner would also need to show the other factors for cancellation of removal, including qualifying relative, hardship, lack of- But plainly, if we remand it now, we would not be

[00:22:26] Speaker 03:
All of that would be open on remand.

[00:22:28] Speaker 03:
So there's no detriment to the agency on that point.

[00:22:32] Speaker 03:
It's all going to be litigated.

[00:22:33] Speaker 03:
So essentially what you're asking, insisting, is that he had to file a motion to reopen to get the same case to the same point that it would get if we remanded now.

[00:22:45] Speaker 01:
He had to present the issue in some way to the agency.

[00:22:49] Speaker 03:
But what would the agency have done?

[00:22:50] Speaker 03:
The agency would have had to say, yes, of course, because this is what Nes Perez says.

[00:22:56] Speaker 03:
So now we're going to have a hearing on the merits.

[00:22:59] Speaker 03:
So that's exactly what would happen if we did it now.

[00:23:02] Speaker 03:
There's just no difference.

[00:23:03] Speaker 01:
Well, there's just no basis for him not filing, not requesting that before the agency in the four years.

[00:23:10] Speaker 03:
But there was no point to it.

[00:23:13] Speaker 01:
There was a point after Nishabes was issued.

[00:23:15] Speaker 03:
What was the point?

[00:23:16] Speaker 03:
It's the same point as raising it here.

[00:23:18] Speaker 03:
You get back to the same place.

[00:23:21] Speaker 01:
But this court is reviewing agency error, and there's no agency error where the agency hasn't even had the opportunity to assess this claim.

[00:23:28] Speaker 03:
But what would the agency have decided, had to decide?

[00:23:31] Speaker 01:
If a motion to reopen had been filed based on Nishavaz after Nishavaz came out, then the agency would have assessed that motion to reopen.

[00:23:39] Speaker 01:
It would have said, yes, the NTA is defective here based on Nishavaz.

[00:23:43] Speaker 01:
Exactly.

[00:23:44] Speaker 01:
And then it would have addressed, right.

[00:23:46] Speaker 03:
So it's just a pointless step because they had no

[00:23:50] Speaker 03:
It's going to be back in the same exact place, i.e.

[00:23:54] Speaker 03:
on the merits before the agency.

[00:23:59] Speaker 01:
Right.

[00:23:59] Speaker 01:
I mean, I would argue that filing this petition for review instead of filing that motion to reopen based on Nia Chavez is sort of the step that is improper because the agency hasn't even had the opportunity to address it.

[00:24:14] Speaker 03:
We're talking in hypothetical about... But we know what it would have had to decide if it addressed it.

[00:24:19] Speaker 01:
Well, depending on the time that the petitioner filed it, if it had been within the 90-day motion to reopen time period, then based on this new law, that could have been maybe easily granted based on this defective NTA.

[00:24:33] Speaker 01:
If it had been outside of that time period, there would need to be an application with cancellation of removal and prima facie eligibility established, which again, on this record, there's no evidence of the other pieces of cancellation of removal.

[00:24:47] Speaker 01:
There's not even any evidence in the record of his having a qualifying relative.

[00:24:52] Speaker 01:
The only evidence in the record about that is his testimony, which is deemed incredible.

[00:24:56] Speaker 01:
There's no marriage certificate.

[00:24:57] Speaker 01:
There's no birth certificates.

[00:24:59] Speaker 01:
There's nothing in this record that would compel the conclusion that the agency should have done something differently.

[00:25:06] Speaker 04:
Thank you, counsel.

[00:25:08] Speaker 04:
We'll give you two minutes for rebuttal.

[00:25:15] Speaker 02:
Thank you.

[00:25:15] Speaker 02:
Just have two points.

[00:25:17] Speaker 02:
First, on the motion to reopen, in the governance brief, they cited to matter of Chen from 20, 2023.

[00:25:24] Speaker 02:
There, the BIA said, yes, Niche Chavez would apply, but they denied the motion to reopen by saying it's not timely.

[00:25:33] Speaker 02:
And that's why Santos Zacharias says there is no exhaustion required when the remedy is discretionary.

[00:25:41] Speaker 02:
The second point.

[00:25:42] Speaker 02:
is that there are numerous cases where this court has applied Alcares without requiring the person to file for a remedy at the IJ and without exhausting it to the board.

[00:25:53] Speaker 02:
Gonzalez-Laura, which is a published decision, there the noncitizen never filed for a voluntary departure, this court

[00:26:02] Speaker 02:
applied Nicheves and remanded for cure.

[00:26:05] Speaker 02:
Under Casarez Aguilar, the non-citizen did not raise the issue on appeal because it was foreclosed under the existing law, but this court applied Nicheves and remanded it to allow for him to, or allow for the petition to pursue that relief.

[00:26:24] Speaker 02:
Santos Bautista is on point where their administrative closure was never sought before the IJ,

[00:26:30] Speaker 02:
and was never sought before the BIA because of Castro tomb.

[00:26:34] Speaker 02:
Can we go back to the cat issue for a minute?

[00:26:36] Speaker 03:
I'm sorry.

[00:26:37] Speaker 02:
I'm sorry, what's that?

[00:26:38] Speaker 03:
I just want to go back to the cat issue for a minute.

[00:26:42] Speaker 03:
The cat issue.

[00:26:43] Speaker 03:
Yes.

[00:26:44] Speaker 03:
I just want to clarify something.

[00:26:46] Speaker 03:
The adverse credibility finding did apply to the cat claim, and the BIA does state that in its opinion.

[00:26:58] Speaker 03:
Yes.

[00:27:01] Speaker 03:
is the only thing that you're relying on is the country conditions report with regard to this cartel.

[00:27:08] Speaker 02:
Your Honor, I would direct you to page 82 of the IJ's decision where the first paragraph talks about how the court has deemed the testimony incredible, but in the second paragraph sounds that in the alternative he has not met his burden.

[00:27:21] Speaker 03:
But it's in the alternative, so I don't see, that's what I'm trying to clarify.

[00:27:28] Speaker 03:
You never do specifically challenge the credibility finding.

[00:27:33] Speaker 03:
Yes, Your Honor, because it wasn't exhausted.

[00:27:36] Speaker 03:
Okay.

[00:27:36] Speaker 03:
So we have to accept it at this point.

[00:27:39] Speaker 03:
Yes.

[00:27:40] Speaker 03:
So therefore, all I'm trying to clarify is that with regard to the cat claim, nothing about his evidence is relevant.

[00:27:48] Speaker 03:
His testimony is pertinent.

[00:27:50] Speaker 03:
Correct.

[00:27:50] Speaker 03:
So the only thing that's pertinent and nothing about the evidence that was submitted on appeal is pertinent.

[00:27:57] Speaker 03:
Correct.

[00:27:57] Speaker 03:
So all we're dealing with is the material in the record with, I think it was a single report about this gang.

[00:28:06] Speaker 02:
Your Honor, it was more than a report.

[00:28:08] Speaker 02:
Page 34 to 37 has the numerous citations from the record that were before the IJ, and that's in the opening.

[00:28:15] Speaker 02:
Okay, but that's all we're talking about?

[00:28:17] Speaker 02:
Correct.

[00:28:18] Speaker 03:
Okay.

[00:28:18] Speaker 03:
Yes.

[00:28:19] Speaker 04:
All right.

[00:28:19] Speaker 04:
Thank you, counsel.

[00:28:20] Speaker 04:
We thank both counsel for their arguments.

[00:28:21] Speaker 04:
The case just argued will be submitted.