[00:00:00] Speaker 04:
Good morning, your honors.

[00:00:05] Speaker 04:
David Walters for the petitioner.

[00:00:10] Speaker 02:
Council, before we begin, we gave you an order to show cause for some of the citations that you presented to us.

[00:00:21] Speaker 02:
And we sent you a detailed order regarding what some of the issues were.

[00:00:29] Speaker 02:
And the cases that were cited were in one instance wasn't even from the circuit, even though it was represented to be from the circuit.

[00:00:38] Speaker 02:
And in other instances, the cases that were cited did not remotely stand for the propositions for which they were cited.

[00:00:47] Speaker 02:
Your response was a little cavalier.

[00:00:49] Speaker 02:
So could you let us know now

[00:00:54] Speaker 02:
in a little greater detail, how you went about getting those cases and what you did to verify that those cases actually were representative of the issues that were raised.

[00:01:15] Speaker 04:
other than the mistake that we made with one citation that had the same name.

[00:01:20] Speaker 00:
Counsel, I just disagree with your characterization that there was simply one mistake with respect to a citation.

[00:01:28] Speaker 00:
I'm happy to walk through the several places in the brief where there are not just misstatements of the law, but citations that don't represent the propositions for which they are cited.

[00:01:42] Speaker 00:
On page 12 of your brief, you state that one critical piece of Ninth Circuit precedent governing PSGs is Nehru v. Gonzalez.

[00:01:52] Speaker 00:
But as we stated in our order to show cause, Nehru says nothing about PSGs.

[00:01:57] Speaker 00:
It discusses persecution on account of political opinion.

[00:02:01] Speaker 00:
On pages 13 and 14 of your brief, you cite Martinez, Carmago versus Lynch, claiming that this case involved a former member of the Mexican army who sought asylum in the United States, alleging persecution by criminal organizations due to his military background.

[00:02:17] Speaker 00:
That case does not even appear to exist at all.

[00:02:21] Speaker 00:
The reporter citation is to an 8th Circuit case, Martinez v. Lynch, not a 9th Circuit case.

[00:02:28] Speaker 00:
On page 14 of your brief, you cite In re fuentes campos, stating that the BIA considered whether former Mexican military members constituted a particular PSG eligible for asylum.

[00:02:40] Speaker 00:
Your response to the order to show cause states that this was a clerical error and that you meant to cite matter of fuentes, but matter of fuentes also

[00:02:49] Speaker 00:
did not, as you represented in your brief, involve a member of the Mexican military.

[00:02:53] Speaker 00:
And on page 10 of your opening brief, you appear to be describing a different petitioner, a 35-year-old man from Mexico who entered the United States in 1994.

[00:03:03] Speaker 00:
Your client, however, is a 46-year-old and last entered the United States in 2005.

[00:03:11] Speaker 00:
So would you like to address each of these instances?

[00:03:14] Speaker 00:
And again, we'd like to give you an opportunity to respond, but identifying these as mere clerical or a single clerical error is just not accurate.

[00:03:27] Speaker 02:
Yeah.

[00:03:28] Speaker 02:
Counsel, let me just ask you this.

[00:03:29] Speaker 02:
I'm going to ask you point blank.

[00:03:31] Speaker 02:
Was this brief prepared using AI?

[00:03:36] Speaker 04:
No, it was not.

[00:03:39] Speaker 02:
So under rule 11, then, you have certified that you prepared this brief and that it's correct.

[00:03:48] Speaker 02:
So how did all of this get into the brief?

[00:03:52] Speaker 04:
Well, Your Honor, I did rely on a law student for the research and then I failed to check the citations.

[00:04:02] Speaker 04:
So that would be

[00:04:04] Speaker 04:
a fault of mine.

[00:04:05] Speaker 04:
I really don't have anything else to add other than it will happen again.

[00:04:08] Speaker 00:
Are you representing your client on a pro bono basis, counsel?

[00:04:12] Speaker 04:
No, your honor.

[00:04:13] Speaker 00:
So this is a paid client that you have an engagement letter and that you're collecting fees for?

[00:04:18] Speaker 04:
Yes.

[00:04:20] Speaker 00:
Do you think that this is an appropriate representation of a client who is paying for services?

[00:04:26] Speaker 04:
No, your honor.

[00:04:31] Speaker 02:
Do you, does the panel want to proceed with the merits?

[00:04:36] Speaker 02:
All right, could you start the clock, please?

[00:04:38] Speaker 02:
We will issue an order addressing, further addressing the order to show calls.

[00:04:47] Speaker 02:
Do you have anything else to decide?

[00:04:48] Speaker 02:
No, thank you, Judge Robinson.

[00:04:50] Speaker 04:
All right, thank you, Your Honors.

[00:04:54] Speaker 04:
With respect to the case before us, let me address one of the glaring,

[00:05:01] Speaker 04:
issues at least in my mind that needs to be addressed regarding the cancellation of removal.

[00:05:07] Speaker 04:
And the question is why is the cancellation of removal being raised for the first time at the Ninth Circuit rather than at removal proceedings or during the BIA appeal process?

[00:05:27] Speaker 04:
And the reason for that is at the time that we did the

[00:05:33] Speaker 04:
removal proceedings we did not know the petitioner had not informed us that he had a u.s.

[00:05:39] Speaker 04:
citizen child and so that's the reason it was never addressed uh... with at the time of the removal proceedings now with respect to

[00:05:51] Speaker 04:
the BIA, that's the first place where it was sometime between after the judge denied the asylum case that he

[00:06:06] Speaker 04:
informed us that he had a U.S.

[00:06:08] Speaker 04:
citizen child.

[00:06:09] Speaker 04:
So that's why it's mentioned in the BIA brief.

[00:06:13] Speaker 04:
And of course, the next obvious question is, why didn't you address it in the BIA brief, his eligibility for cancellation of removal?

[00:06:24] Speaker 04:
And the answer is, is because when we inquired about the U.S.

[00:06:31] Speaker 04:
citizen child,

[00:06:36] Speaker 04:
He didn't know any information.

[00:06:37] Speaker 04:
He didn't know the child's name.

[00:06:39] Speaker 04:
He didn't know the mother's name.

[00:06:41] Speaker 04:
He didn't know where they were.

[00:06:43] Speaker 04:
And so we had no way of proving at that point that the child

[00:06:54] Speaker 04:
existed and didn't really have an avenue for showing that the child existed.

[00:07:02] Speaker 04:
And so the reason why it was first raised at the Ninth Circuit

[00:07:09] Speaker 04:
was because in September of 2022, the petitioner married.

[00:07:17] Speaker 04:
And in marrying his wife, she had three US citizen stepchildren.

[00:07:27] Speaker 04:
And the youngest stepchild actually suffers from epilepsy.

[00:07:33] Speaker 04:
And so that's why we raised it at that point.

[00:07:37] Speaker 01:
And that would be... The statute requires exhaustion, right?

[00:07:44] Speaker 01:
I mean, it's not a jurisdictional requirement anymore, but it is still a requirement that we must enforce when it's been invoked, as it has been here.

[00:07:51] Speaker 01:
So what it sounds like you're describing was a sort of inadequate communication between you and your client and incomplete investigation.

[00:08:04] Speaker 01:
But is there an exception to the exhaustion requirement that covers that kind of situation?

[00:08:11] Speaker 04:
No, Your Honor.

[00:08:12] Speaker 04:
There's no exception.

[00:08:14] Speaker 04:
I was just saying that we had nothing other than the client's statement that this child even existed.

[00:08:21] Speaker 04:
And we had no way of proving the existence, or at least in the short time that we had, finding the existence of the child.

[00:08:31] Speaker 04:
And that's it.

[00:08:39] Speaker 02:
Anything else no your honor all right.

[00:08:42] Speaker 02:
Thank you.

[00:08:42] Speaker 02:
We'll say the remaining time for a bottle all right very good.

[00:08:46] Speaker 02:
Thank you We'll hear from the government Council do you have any response to the order to show cause that you would like to present to the court I

[00:09:05] Speaker 03:
May it please the court, you know, for the government?

[00:09:08] Speaker 03:
No, I do not, Your Honor.

[00:09:13] Speaker 03:
Your Honors, we appreciate the opportunity to be here.

[00:09:15] Speaker 03:
We believe we have stated our case in our briefs.

[00:09:18] Speaker 03:
Unless the court has any questions in regards to this matter, we can submit on those briefs.

[00:09:25] Speaker 02:
It appears not.

[00:09:26] Speaker 02:
Thank you, counsel.

[00:09:27] Speaker 03:
Thank you very much, Your Honor.

[00:09:28] Speaker 02:
There having been no presentation from the government, there is no need for rebuttal.

[00:09:32] Speaker 02:
The case just argued is submitted for decision by the court.