[00:00:06] Speaker 01:
Good morning and welcome to the Ninth Circuit.

[00:00:09] Speaker 01:
The first case we will hear today is Pacheco versus Bondi.

[00:00:17] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:20] Speaker 04:
Diana Sanchez, on behalf of Petitioner Jose Pacheco, I would like to reserve three minutes and I will watch my time.

[00:00:25] Speaker 04:
Thank you.

[00:00:26] Speaker 04:
Mr. Pacheco is deaf, has a moderate intellectual disability, and severe mental illnesses.

[00:00:31] Speaker 04:
He's experienced an extreme language deprivation and social isolation that has impacted his development permanently and contributes to his limitations today.

[00:00:41] Speaker 04:
During his proceedings, Mr. Pacheco repeatedly requested a certified deaf interpreter and a sign language interpreter because he cannot communicate effectively with only the sign language interpreter.

[00:00:51] Speaker 04:
The agency granted this request but neglected to follow through and in doing so made several legal errors.

[00:00:57] Speaker 04:
The agency's affirmative obligations under the act provide multiple grounds to grant the petition and remand for a new hearing.

[00:01:05] Speaker 04:
And for substantially the same reasons, the court can also grant based on the denial of due process.

[00:01:11] Speaker 04:
But because of Mr. Pacheco's several disabilities, the Rehabilitation Act is the proper framework to address these failures.

[00:01:18] Speaker 04:
And if the court does reach the merits of Mr. Pacheco's cat claim, the court should also remand because the BIA legally aired when it ignored the thrust of Mr. Pacheco's claim.

[00:01:28] Speaker 04:
Beginning with the Rehabilitation Act, Your Honors, the agency failed in its affirmative duties under that act and the implementing regulations for three independent reasons.

[00:01:39] Speaker 04:
First, the IJ determined that a CDI in addition to an ASL interpreter was necessary when it granted the request, but then failed to follow through with that.

[00:01:48] Speaker 04:
Second, independently, the IJ at the merits hearing denied the CDI without undertaking an investigation as to his request and without giving primary consideration to that request.

[00:02:00] Speaker 02:
This does look like this is a failure at the IJ level.

[00:02:05] Speaker 02:
I don't know whose fault it is, but they clearly knew of his disability and agreed to grant him a CDI interpreter.

[00:02:13] Speaker 02:
But once they get to the hearing and the IJ says, yeah, we don't have one here, do you wish to proceed?

[00:02:20] Speaker 02:
Your client is counseled.

[00:02:22] Speaker 02:
He's got a lawyer there.

[00:02:23] Speaker 02:
That's his advocate.

[00:02:25] Speaker 02:
And the lawyer consulting with the client that both of them indicate they would like to proceed.

[00:02:30] Speaker 02:
And your client affirmatively manifested to the IJ that he was prepared to deal with the ASL.

[00:02:36] Speaker 02:
So where is the violation here?

[00:02:40] Speaker 04:
So a few responses to that, Your Honors.

[00:02:42] Speaker 04:
First, as a factual matter, Mr. Pacheco did not agree to anything.

[00:02:46] Speaker 04:
His counsel, in response to the IJ, stating that they were not going to provide a CDI, said that he understood the agency would not provide a CDI, but that he could continue to raise communication issues.

[00:02:59] Speaker 04:
And we also know the issue wasn't resolved because the IJ

[00:03:03] Speaker 02:
Well, this is on page 110 of the record.

[00:03:07] Speaker 02:
It's page 52 of the transcript.

[00:03:09] Speaker 02:
This is your client's attorney saying, I spoke with Mr. Pacheco.

[00:03:14] Speaker 02:
He understood that there wouldn't be another one, interpreter, but he, between him and this would be the ASL interpreter, they would let us know if there was any difficulty in communication.

[00:03:24] Speaker 02:
So even though Mr. Pacheco may not have affirmatively indicated to the IJ, he is represented by counsel who says, I have spoken with Mr. Pacheco and he would like to proceed today.

[00:03:36] Speaker 02:
So where is the problem?

[00:03:38] Speaker 04:
So the problems are as a factual matter, as explained, and as a legal matter because it's undisputed that he requested a CDI and that put into effect the

[00:03:51] Speaker 04:
the agency's burden to give primary consideration to the request.

[00:03:55] Speaker 04:
and to conduct an investigation as to what accommodations he would need, even if it was not a CDI.

[00:04:01] Speaker 04:
So him agreeing to let the IJ know if there was going to be communication difficulties doesn't disturb that request.

[00:04:08] Speaker 04:
And the government also claims in response to the due process argument that this was a concession.

[00:04:14] Speaker 04:
But a concession has to be distinct and formal.

[00:04:18] Speaker 04:
And Mr. Pacheco stating he understood that there would not be a CDI is under cases like Santiago Rodriguez,

[00:04:25] Speaker 02:
But the problem here then may be a miscommunication between Mr. Pacheco and his attorney.

[00:04:30] Speaker 02:
You haven't alleged ineffective assistance of counsel here, so the IJ is entitled to rely on what the attorney tells him.

[00:04:40] Speaker 02:
And the attorney told him that they understood that there would be no CDI interpreter.

[00:04:44] Speaker 02:
They were prepared to proceed.

[00:04:47] Speaker 02:
Mr. Pacheco is sworn in.

[00:04:48] Speaker 02:
The IJ says, if you have any difficulty in understanding things, please let me know.

[00:04:53] Speaker 02:
Pacheco responds to the IJ.

[00:04:55] Speaker 02:
I understand.

[00:04:56] Speaker 02:
I will do that.

[00:04:58] Speaker 04:
So to that point, Your Honor, again, this was not an IAC problem.

[00:05:03] Speaker 04:
This was at best a waiver, and the government has to, on obligation to prove that he intentionally relinquished his right to request a CDI.

[00:05:13] Speaker 04:
And under cases like Proat, Tovar, and Ubaldo Figueroa,

[00:05:16] Speaker 04:
Council statements cannot prove that waiver.

[00:05:18] Speaker 04:
It needs to be something that the IJ personally spoke with Mr. Pacheco and that he affirmatively responded to.

[00:05:25] Speaker 04:
And we also, in Duval, we also confirms the fact that Mr. Pacheco did not abandon his request for a CDI simply because the proceedings went forward.

[00:05:34] Speaker 04:
Similarly there, the plaintiff requested a transcription and his attorney renewed that request on the day of trial, but the judge denied it and the proceedings went forward.

[00:05:43] Speaker 04:
And this court didn't hold that, that forwent his challenge and instead it reiterated that the IJ or the entity there had an independent duty to evaluate whether the individual needs are being met and then make a determination about that.

[00:05:56] Speaker 04:
And that's in line with cases like AG versus Paradise Valley as well.

[00:06:00] Speaker 04:
And so the acknowledgement of being aware about Mr. Pacheco, understanding that there was not going to be a CDI or understanding that he was going to need to raise communication issues doesn't fall under a concession or admission that would bind him.

[00:06:16] Speaker 02:
And the BIA, although incorrectly... So his attorney's representation to the court doesn't bind Mr. Pacheco?

[00:06:23] Speaker 04:
Well, it was not a concession or admission that would foreclose his challenge to the CDI.

[00:06:30] Speaker 04:
And the BIA also construed that statement, albeit incorrectly, as his counsel failing to object to the interpreter.

[00:06:38] Speaker 04:
But Santiago Rodriguez also tells us that a failure to object is by definition not a concession or admission.

[00:06:44] Speaker 04:
The BIA was wrong because the IJ stated at the beginning of the hearing that Mr. Pacheco had requested a CDI.

[00:06:51] Speaker 04:
And as I was mentioning earlier, the IJ did not consider the issue resolved.

[00:06:56] Speaker 04:
He said that the parties would discuss if a CDI was necessary if Mr. Pacheco raised a communication issue, but that flips the agency's burden onto Mr. Pacheco because it was the agency who had to

[00:07:10] Speaker 04:
to give primary consideration to his request and explain why an ASL interpreter would instead be effective.

[00:07:17] Speaker 04:
And it's telling that the government construes this same colloquy in various, many different ways because it's really, it's trying to force a concession where there simply wasn't one.

[00:07:29] Speaker 00:
And the... Well, there wasn't an objection.

[00:07:35] Speaker 00:
At some point,

[00:07:36] Speaker 00:
I mean, the opportunity to object was clearly there.

[00:07:41] Speaker 00:
It was not exercised.

[00:07:43] Speaker 00:
Does that mean they were going forward with a hearing that sort of like kids, I win, tails you lose?

[00:07:49] Speaker 00:
That is, Mr. Vacheco couldn't lose at this hearing because he always had this ace in his pocket to say, oh, I get a do-over because they didn't have the right kind of interpreter here.

[00:08:02] Speaker 00:
An acknowledged mistake.

[00:08:05] Speaker 00:
Why isn't it the obligation at that point to say, well, I want what I'm entitled to, so we'll have to wait until the CDI is present?

[00:08:14] Speaker 00:
And that card certainly was not played.

[00:08:17] Speaker 04:
The obligation was not on Mr. Pacheco because Mr. Pacheco in fact didn't have an obligation to make a request, a specific request at all.

[00:08:24] Speaker 04:
The court's cases in Updike and Duval make clear that the entity has an independent duty regardless of Mr. Pacheco making a specific request to make a determination as to what accommodations he needs.

[00:08:37] Speaker 04:
And it's only because Mr. Pacheco did make a request that the burden then does shift onto the agency.

[00:08:44] Speaker 00:
So it really was heads I win, tails you lose.

[00:08:47] Speaker 00:
this hearing would be meaningful only if Mr. Pacheco won.

[00:08:52] Speaker 04:
What it was is a failure at the... Is that the case?

[00:08:54] Speaker 00:
Is that the position you're taking?

[00:08:57] Speaker 04:
No, Your Honor.

[00:08:57] Speaker 04:
What it was was a failure of the IJ at the start of the merits hearing to undertake its independent duties to give primary consideration to his request.

[00:09:10] Speaker 00:
If in cases like that... I take it your answer to my question is yes.

[00:09:14] Speaker 00:
that he could not lose at this hearing, he could only win.

[00:09:17] Speaker 04:
No, because it's also... Well, how could he have lost?

[00:09:21] Speaker 00:
I mean, he did lose, but you're arguing that that doesn't count.

[00:09:25] Speaker 00:
So you're basically telling me that the hearing proceeded with the understanding on Mr. Cecho's part that if he lost, he'd actually get a do-over.

[00:09:34] Speaker 00:
He had an automatic do-over.

[00:09:37] Speaker 00:
And that seems unlikely.

[00:09:39] Speaker 04:
So the, what I'm asking is to just give the merit to the, or to give meaning to the agency's independent duties.

[00:09:49] Speaker 04:
And Mr., this is not a case where Mr. Pacheco then didn't raise his, these communication issues at the BIA.

[00:09:56] Speaker 04:
He did raise his communication issues.

[00:09:57] Speaker 02:
And which cases, which cases established the duty of the IJ?

[00:10:01] Speaker 04:
Updike and Duvall.

[00:10:03] Speaker 02:
Okay, what does, where does it say that in Updike?

[00:10:05] Speaker 02:
I've got that in front of me.

[00:10:06] Speaker 04:
In UPDEC, the court said that the agency or the entity there had to undertake an investigation and make a determination both in terms of what the request that the plaintiff there made.

[00:10:21] Speaker 04:
They had to put forth evidence that looked into the availability of the aid.

[00:10:29] Speaker 02:
But this clearly was an error by the IJ.

[00:10:31] Speaker 02:
I mean, somebody messed up at the IJ level.

[00:10:34] Speaker 02:
The immigration court,

[00:10:36] Speaker 02:
level, there's no disputing that.

[00:10:38] Speaker 02:
They should have provided him with a CDI.

[00:10:40] Speaker 02:
The IJ had done the right thing before, said, of course, we'll get you a CDI.

[00:10:45] Speaker 02:
But then the IJ says, we were unable to get one.

[00:10:49] Speaker 02:
Do you want to go forward, or don't you want to go forward?

[00:10:51] Speaker 02:
If you don't want to go forward, we'll continue it.

[00:10:54] Speaker 02:
That was an easy, easy answer.

[00:10:57] Speaker 02:
And it's just really difficult for me to see that UpDyke creates some huge obligation on the part of the

[00:11:04] Speaker 02:
of the agency to investigate all of this, it's a simple question.

[00:11:09] Speaker 02:
I told you that we would have a CDI here.

[00:11:11] Speaker 02:
I'm sorry, we don't have one.

[00:11:13] Speaker 02:
Are you able to continue?

[00:11:14] Speaker 02:
Are you not able to continue?

[00:11:15] Speaker 02:
Yes or no, up or down?

[00:11:17] Speaker 04:
Well, what's missing from that colloquy is there was no offer to continue the hearing, and it was simply, we're not going to provide a CDI.

[00:11:27] Speaker 04:
I'm going to punt the issue, the determination of whether you actually need a CDI, and instead ask Mr. Vacheco to go forward without it, and then if he can show that it's not sufficient, then he would be able to, then the IJ would.

[00:11:41] Speaker 02:
The IJ also notes that prior to going on the record, we discussed this issue.

[00:11:45] Speaker 04:
Right.

[00:11:45] Speaker 04:
And the IJ had a duty not only under the Rehabilitation Act to demonstrate what that issue discussion was, but also the IJ has a duty under the INA regulations to control the record.

[00:11:56] Speaker 02:
So the question of continuance counsel, I don't think you've correctly characterized the record.

[00:12:00] Speaker 02:
Again, I'm looking at pages 51 and 52.

[00:12:02] Speaker 02:
Mr. Stratton, this is the judge to his counsel.

[00:12:05] Speaker 02:
You're prepared to proceed today just with the ASL interpreter.

[00:12:08] Speaker 02:
And if it becomes an issue, we can discuss whether or not we need to adjourn to have the additional interpreter.

[00:12:15] Speaker 02:
Yes, Your Honor.

[00:12:17] Speaker 04:
And yes, that Mr. Pacheco understood.

[00:12:20] Speaker 04:
A few moments later, his counsel said that Mr. Pacheco, in response to a different question, he said Mr. Pacheco agreed to let the other people in the courtroom.

[00:12:29] Speaker 04:
So that also is evidence that Mr. Pacheco was not acquiescing to the IJ's request that he move forward, notwithstanding his request.

[00:12:41] Speaker 04:
That was him understanding that that's the card he was dealt.

[00:12:44] Speaker 04:
That's the option that he was given.

[00:12:46] Speaker 01:
Can you, switching gears a little bit, can you briefly address the prejudice element?

[00:12:52] Speaker 01:
The agency found that, you know, Portugal has anti-discrimination laws that protect people with disabilities and that those laws are enforced.

[00:12:59] Speaker 01:
So, you know, what's the prejudice here?

[00:13:02] Speaker 01:
You know, obviously the agency erred by not having a CDI, but what would Mr. Pacheco have said that would have made a difference here given the findings that the IJ made?

[00:13:12] Speaker 04:
Right, so a few points there.

[00:13:13] Speaker 04:
With respect to the Rehabilitation Act, there is no need to show an additional harm.

[00:13:18] Speaker 04:
The cases are clear that the harm is the lack of a denial of the CDI or the lack of effective communication.

[00:13:26] Speaker 01:
Have we ever applied that?

[00:13:28] Speaker 01:
That's one of the questions I had was for the Rehabilitation Act.

[00:13:30] Speaker 01:
Have we ever applied in the context of this?

[00:13:33] Speaker 01:
I mean, I understand a general due process one, but and some that the

[00:13:38] Speaker 01:
in the context of an IJ hearing that we have to redo it?

[00:13:43] Speaker 01:
Have there been cases on that?

[00:13:44] Speaker 04:
When Updeck, the court said it was legal error for the district court to ask, to fault him for not showing that he caused, there was actual harm or that there would have been a difference in the outcome of his process, which is essentially like a prejudice component.

[00:13:59] Speaker 04:
And so that's an

[00:14:00] Speaker 04:
acknowledging that there does not need to be a change to the, showed that there would have been a difference to the outcome of the proceedings.

[00:14:07] Speaker 04:
And this is also consistent with, in backs the court adopted this Eighth Circuit standard in Silva where the, or in Silva the Eighth Circuit rejected the notion that there would be downstream consequences.

[00:14:19] Speaker 04:
There needs to be downstream consequences to the lack of effective communication.

[00:14:23] Speaker 04:
And this is also consistent with other courts of appeals like in Luke and American Council of the Blind.

[00:14:29] Speaker 04:
And also there were, Mr. Pacheco was hindered in his ability to testify as to things that the IJ did rely on.

[00:14:38] Speaker 04:
So for example, his fear of future harm, his inability to communicate in Portugal or to live independently, and his access to medication or treatment in Portugal.

[00:14:49] Speaker 04:
Those are things that the IJ relied on to show that there was a lack of evidence as to his individualized risk of torture.

[00:14:55] Speaker 04:
And I see that I'm very short on time, so I'd like to

[00:14:58] Speaker 01:
We'll give you a minute.

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

[00:15:18] Speaker 03:
Good morning.

[00:15:18] Speaker 03:
May it please the court?

[00:15:19] Speaker 03:
My name is Greg Kelch, representing the U.S.

[00:15:22] Speaker 03:
Attorney General.

[00:15:23] Speaker 03:
Mr. Pacheco is a citizen of Portugal.

[00:15:28] Speaker 03:
In his removal proceedings, he's seeking deferral of removal from Portugal under the cap, for cap protection.

[00:15:36] Speaker 03:
And Mr. Pacheco's claim has always been throughout these proceedings that he's afraid that one, the government of Portugal may punish him for his rape convictions in the United States,

[00:15:47] Speaker 03:
And two, he will have difficulty assimilating into Portuguese society and getting medical care there.

[00:15:54] Speaker 03:
That has always been his claim.

[00:15:57] Speaker 03:
He was able to effectively communicate that claim during his final hearing before the immigration judge.

[00:16:04] Speaker 03:
That was brought out through, first of all, having appointed counsel for him.

[00:16:09] Speaker 03:
who was able to also lead his testimony had the additional safeguard of leading questions.

[00:16:18] Speaker 03:
We do recognize that there are points in the record where his responses are not quite matching up with the questions that were given, but remember also that in addition to being deaf, he also has psychotic disorder.

[00:16:32] Speaker 03:
And that's what the forensic mental health expert was explaining to the immigration judge, that he has difficulty tracking a conversation and giving specific answers to specific questions.

[00:16:43] Speaker 03:
And you can see that also from some of the submissions that he has submitted himself to the immigration court.

[00:16:49] Speaker 03:
So he had a fair hearing.

[00:16:52] Speaker 03:
He had a fair hearing under the

[00:16:54] Speaker 03:
Under the due process clause of the fifth amendment and he had a proper hearing under the Rehabilitation Act was brought to immigration court and so we we sent this case back.

[00:17:04] Speaker 02:
Is that correct?

[00:17:05] Speaker 02:
That is correct Or for competency or competence and the question and the and the answer was that he was competent or he was not competent the immigration judge found him not competent not competent without counsel without counsel, okay, but he was competent nevertheless to testify and to understand the questions and

[00:17:22] Speaker 02:
Seems sort of strange, doesn't it, that we would find him not competent, but he's not competent to be there without counsel, but he is competent to be there with counsel?

[00:17:33] Speaker 03:
Well, this is a unique case because Mr. Pacheco hasn't been to Portugal in over 50 years.

[00:17:38] Speaker 03:
He really has no firsthand knowledge about how people like to be treated.

[00:17:42] Speaker 02:
But confidence usually goes to your ability to be able to understand the questions and be able to answer the questions in your own defense.

[00:17:48] Speaker 03:
Well, I think that for purposes of this hearing, what was required of him was an opportunity for him to express why he is afraid of returning to Portugal.

[00:17:57] Speaker 02:
Right, but if he's schizophrenic in addition to the deaf problem, that raises a lot of issues about whether this was really a fair hearing.

[00:18:08] Speaker 03:
We think it is fair.

[00:18:09] Speaker 03:
He certainly, he was assigned an attorney also has helped him to present documentary evidence to the court about country conditions in Portugal, how deaf people are treated in Portugal.

[00:18:19] Speaker 03:
He provided letters from family members, letters of support from people in the community who knew him.

[00:18:25] Speaker 03:
We had a forensic mental health expert who came and explained his history

[00:18:29] Speaker 03:
of his childhood and his problems with hearing and how it affected his education.

[00:18:36] Speaker 03:
And, I mean, like everything that we needed to know about Mr. Pacheco was explained, you know, in immigration court.

[00:18:44] Speaker 02:
It looks like there was a conversation of some kind of a sidebar before they went on the record.

[00:18:48] Speaker 02:
So we just don't know what went on.

[00:18:50] Speaker 02:
Do we know why there wasn't a CDI?

[00:18:52] Speaker 02:
I do not know why.

[00:18:54] Speaker 02:
Is that common in immigration proceedings?

[00:18:57] Speaker 02:
It's the first time I've seen a case involving a request for a certified deaf interpreter.

[00:19:03] Speaker 03:
And I also, Judge Bobby, I've never seen a case before with a CDI.

[00:19:08] Speaker 03:
I will say that something that was said in one of the amicus briefs that we do agree with completely.

[00:19:14] Speaker 03:
In immigration court, interpreters are par for the course.

[00:19:18] Speaker 03:
We give people interpreters whenever they ask for interpreters.

[00:19:22] Speaker 03:
In fact, if you look through our trial transcripts, you'll often see cases where people come in

[00:19:26] Speaker 03:
and request a Spanish interpreter in the middle of their testimony, they start testifying in English.

[00:19:32] Speaker 03:
That happens all the time for us.

[00:19:34] Speaker 03:
It was not a problem to give Mr. Pacheco a CDI.

[00:19:38] Speaker 03:
It wasn't a financial problem, and it was not something that we feel would undermine our hearings.

[00:19:45] Speaker 03:
For whatever reason, they couldn't get the CDI that day.

[00:19:48] Speaker 03:
I don't know if that means that there was a personal problem for the CDI.

[00:19:53] Speaker 03:
Because life to happen.

[00:19:54] Speaker 03:
Sometimes something happens and people can't come to court.

[00:19:58] Speaker 03:
I see no reason for the court to conclude bad faith that the immigration judge didn't want to have the CDI there.

[00:20:03] Speaker 03:
We were trying to sandbag him.

[00:20:05] Speaker 03:
But as your honors have noted, it happened.

[00:20:09] Speaker 03:
And when they showed up at the hearing, they had to make a choice.

[00:20:12] Speaker 03:
You had to go one way or the other.

[00:20:14] Speaker 03:
We could either reschedule this hearing, or we can go today with just the ASL interpreter.

[00:20:20] Speaker 03:
And Mr. Pacheco can let us know if there's a problem with the interpreter.

[00:20:23] Speaker 03:
And according to counsel's representation in his administrative appeal, Mr. Pacheco wanted to come to a decision on his case.

[00:20:30] Speaker 03:
Mr. Pacheco testified that he understood the interpreter.

[00:20:34] Speaker 03:
He said that multiple times.

[00:20:36] Speaker 03:
He never said that he couldn't understand the court's interpreter.

[00:20:42] Speaker 03:
And also, his trial counsel, at the end of his testimony, he'd ask the open-ended question, Mr. Pacheco, is there anything else you would like the court to know about your case?

[00:20:52] Speaker 03:
So if he didn't have understanding of the interpreter, if there was something else that hadn't been brought out, some additional reason to fear, return to Portugal, some problem he was having with his counsel, that was his opportunity to say so.

[00:21:09] Speaker 03:
There's just nothing in the record here from our perspective.

[00:21:12] Speaker 03:
There's just nothing in the record here to really demonstrate that he did not get effective communication.

[00:21:18] Speaker 03:
It seems to us this was a pretty straightforward case.

[00:21:20] Speaker 03:
He's seeking cap protection from Portugal.

[00:21:24] Speaker 03:
So it's about the country conditions and evidence.

[00:21:27] Speaker 03:
And as we said in our brief, unfortunately for him, difficulty in accessing medical care and assimilating into society in Portugal is not a basis for cap protection.

[00:21:39] Speaker 03:
The denial of medical care only becomes torturous if it is specifically intended to cause torture to an individual.

[00:21:46] Speaker 03:
And of course, this court has seen

[00:21:49] Speaker 03:
conditions far more dire than Portugal and found that cap protection wasn't appropriate.

[00:21:56] Speaker 03:
And then the other point, I'm not sure how important it is, but what does the Rehabilitation Act apply to?

[00:22:07] Speaker 03:
Our understanding of it is that

[00:22:10] Speaker 03:
The rehabilitation act applies to the cap protection program.

[00:22:15] Speaker 03:
He should have an equal opportunity to participate in cap protection, and that's what the agency gave him.

[00:22:23] Speaker 03:
The hearing itself is the application process.

[00:22:27] Speaker 03:
If he hadn't been in removal proceedings and he wanted cap protection, he would have applied for that through USCIS.

[00:22:35] Speaker 03:
But once a person is in removal proceedings, then you're before the immigration court.

[00:22:40] Speaker 03:
So we only raise that because Mr. Patek was arguing throughout his briefs that his participation in the hearing wasn't equal.

[00:22:50] Speaker 03:
But his participation can never be the same because he has psychotic disorder.

[00:22:54] Speaker 03:
It's always going to be a little bit different for him.

[00:22:57] Speaker 03:
I think the question should be, did he get effective communication at the hearing in his application for cat protection?

[00:23:06] Speaker 00:
Well, it can't turn on the result of a cat protection, because that would suggest that unless you, in a criminal trial, you don't get protections unless you can prove you're innocent.

[00:23:20] Speaker 00:
Agreed.

[00:23:20] Speaker 00:
And so at some level,

[00:23:22] Speaker 00:
question turns on the fairness of the process, not simply what the ultimate relief available to him would be.

[00:23:29] Speaker 03:
Agreed.

[00:23:30] Speaker 03:
We do recognize that.

[00:23:31] Speaker 03:
So the issue here is does he have effective communication in making his application for cap protection, not whether he actually is qualified to get cap protection.

[00:23:47] Speaker 03:
Perhaps there's some smoking gun that I will find out here on rebuttal.

[00:23:53] Speaker 03:
But so far, nobody has raised any additional evidence, any additional basis on which he might be tortured in Portugal.

[00:24:03] Speaker 03:
Now, if there is some person out there who's threatening him, that would be different.

[00:24:08] Speaker 03:
But he testified

[00:24:09] Speaker 03:
that he hadn't been harmed in the past.

[00:24:12] Speaker 03:
Nobody has threatened him.

[00:24:13] Speaker 03:
Nobody is seeking him out.

[00:24:16] Speaker 03:
His only concern was that he called the Portuguese embassy, I think about 10 years prior to the hearing, to talk about it.

[00:24:22] Speaker 03:
And he felt like that person might hold it against him that he has three rape convictions in the United States.

[00:24:30] Speaker 03:
no country conditions evidence supports that conclusion that he would be punished again for what happened here here in the united states so that so that judge judge clifton would be the distinction that that we're recognizing here it's not for rehabilitation purposes we're not saying that he had to demonstrate that he is eligible for cap protection just that he did he has to demonstrate that he didn't get an effective communication in raising all of his bases to seek cap protection that's the distinction that

[00:25:00] Speaker 03:
that we think is appropriate to draw.

[00:25:07] Speaker 03:
And then on that point, I do recognize cases like Duval where this court has held that the Rehabilitation Act applies to court hearings.

[00:25:18] Speaker 03:
And as I was trying to distinguish in our brief, Duval is a divorce proceeding.

[00:25:27] Speaker 03:
There you have a husband and a wife who are essentially competing with each other for assets and potentially child custody issues.

[00:25:35] Speaker 03:
So there, if the deaf husband has to have an equal opportunity to make his case against his wife, because that's how the adversarial system works.

[00:25:46] Speaker 03:
But immigration court is different.

[00:25:48] Speaker 03:
This is applying for a benefit before essentially an administrative law judge.

[00:25:54] Speaker 03:
He only had to meet the minimum qualifications for cap protection.

[00:25:59] Speaker 03:
There is no extra credit for showing that

[00:26:01] Speaker 03:
Torture is certain to occur, just that it is likely to occur.

[00:26:05] Speaker 03:
And so for that, it's a little bit different in this context.

[00:26:08] Speaker 03:
He just has to have an opportunity to provide effective communication of his cat protection claim.

[00:26:14] Speaker 03:
I'm not sure how much that distinction matters, but we think it is worth pointing out to the court.

[00:26:21] Speaker 03:
And if there are no further questions, we would ask that the court deny the petition for review.

[00:26:25] Speaker 03:
Thank you.

[00:26:41] Speaker 04:
A few points.

[00:26:43] Speaker 04:
First, as to the questions about whether or not he abandoned his request for a CDI, even if the court construes it that way, there are still errors because first, as I mentioned, there was still an independent duty to investigate what accommodations he did need.

[00:27:00] Speaker 04:
And that's not withstanding the fact that he didn't have to make any requests at all.

[00:27:04] Speaker 04:
That duty stands regardless.

[00:27:06] Speaker 04:
A request is only a signaling function.

[00:27:08] Speaker 04:
And here, it's stronger because they had to give primary consideration to that request.

[00:27:12] Speaker 04:
And also, it doesn't cure the error of the fact that the A&L interpreter he did receive did not provide effective communication.

[00:27:19] Speaker 04:
The government concedes that there were issues at the hearing, but blames it on his other disabilities.

[00:27:27] Speaker 04:
And that's precisely the crux here.

[00:27:29] Speaker 04:
The CDI would have facilitated communication, where a hearing sign language interpreter could not have because of those other limitations.

[00:27:38] Speaker 04:
And so this response just illustrates the agency's failures to assess his disabilities as a whole.

[00:27:45] Speaker 04:
And I see I'm out of time.

[00:27:47] Speaker 04:
Thank you.

[00:27:48] Speaker 01:
Great.

[00:27:48] Speaker 01:
Thank you both for the helpful argument.

[00:27:50] Speaker 01:
The case is submitted.