[00:00:00] Speaker 04:
The third case on calendar is Renault versus Bondi 23-2361.

[00:00:07] Speaker 04:
And each side has 15 minutes.

[00:00:14] Speaker 04:
Good morning.

[00:00:15] Speaker 01:
Good morning, Your Honor.

[00:00:16] Speaker 01:
May it please the court?

[00:00:18] Speaker 01:
My name is Kori Hong.

[00:00:19] Speaker 01:
I'm from the Florence Project and I represent Petitioner Gironi Renault.

[00:00:23] Speaker 01:
I will reserve two minutes of time.

[00:00:25] Speaker 01:
I will watch the clock.

[00:00:27] Speaker 01:
Okay.

[00:00:28] Speaker 01:
Starting, and I will talk about Mathis, Miller v. Gammie, and then California state law.

[00:00:36] Speaker 01:
Starting with Mathis, Lopez Marroquin explains that before Mathis, this court got it right when analyzing whether an elements-based statute was divisible or not.

[00:00:51] Speaker 01:
But before Mathis, the Ninth Circuit routinely erred because it would presume

[00:00:58] Speaker 01:
that a disjunctive list would be divisible.

[00:01:03] Speaker 01:
After Mathis, the court instead looks at state case law statutes and then a peak of the record to figure out whether a disjunctive list is divisible or not.

[00:01:15] Speaker 01:
In the 273.5 statute, California has a disjunctive list of which relationships to the victim are included under that crime.

[00:01:26] Speaker 01:
The old precedent

[00:01:27] Speaker 01:
never applied Mathis.

[00:01:29] Speaker 01:
Instead, Cervantes and the two other cases it cited had just looked at the disjunctive list and presumed it divisible, which this court can no longer do.

[00:01:40] Speaker 03:
Can we look at 273.5?

[00:01:43] Speaker 03:
It defines cohabitants and has specific factors that you have to look at, whether there was a sexual relationship, the sharing of income and expenses,

[00:01:54] Speaker 03:
whether they were holding themselves out as domestic partners, the continuity, the length of the relationship.

[00:01:59] Speaker 03:
And then you cited people vivaca.

[00:02:02] Speaker 03:
And that was a sufficiency of the evidence challenge on the cohabitant element.

[00:02:09] Speaker 03:
So it seems this is an element that actually has to be proven at trial.

[00:02:15] Speaker 01:
The relationship, however, is spouse, former spouse, cohabitant, former cohabitant,

[00:02:23] Speaker 01:
the mother or father of his or her child.

[00:02:26] Speaker 01:
That is what the statute is.

[00:02:28] Speaker 01:
And in the three cases, People v. Biddle... But the jury has to find one of them.

[00:02:32] Speaker 03:
If you look at People v. Vaca, it says, you know, in this appeal, he argues that evidence was insufficient to support the conviction under Section 273.5 with respect to the cohabitant element.

[00:02:46] Speaker 03:
And it goes through all of the evidence that you have to consider as to whether

[00:02:52] Speaker 03:
There was sufficient evidence for a jury to reach that conclusion that there was a cohabitation relationship.

[00:02:58] Speaker 03:
How long were they together?

[00:02:59] Speaker 03:
Were there sexual relations?

[00:03:00] Speaker 03:
Where does he keep his belongings?

[00:03:03] Speaker 03:
Who picks up the son from care?

[00:03:06] Speaker 03:
Who accompanies the victim to the hospital?

[00:03:11] Speaker 03:
It's all evidence that had to be presented for a jury to make that finding.

[00:03:16] Speaker 01:
But in Pupil v. Dhaka, if you look at he was charged not with being a cohabitant, but with a spouse being a spouse or cohabitant.

[00:03:25] Speaker 03:
Look, I see that first sentence, but look at every single sentence after that.

[00:03:33] Speaker 03:
you know, said in DesCamps, this was an element that the jury had to find.

[00:03:42] Speaker 03:
Otherwise, why would they go through all this discussion about where are his belongings, how long have they been together, when was the last time they had a sexual relation?

[00:03:50] Speaker 03:
This was all evidence for an element.

[00:03:51] Speaker 01:
When there's a disjunctive list, the jury has to find one of those relationships, but it doesn't have to agree on all of those.

[00:03:59] Speaker 01:
Six of the jurors could have concluded he was a spouse, six could have concluded he was a cohabitant, and he only contested the evidence to the cohabitant.

[00:04:09] Speaker 01:
He never contested that he was a spouse.

[00:04:12] Speaker 03:
Where in Vaca does it say the question before the jury was whether it was a

[00:04:17] Speaker 01:
Spouse versus a cohabitant because I don't see that in this case the question is was it a cohabitant or a nothing just our Acquaintance well it mentions that he was charged with being a spouse or cohabitant and if you also look at leach you have the same situation where the he was convicted and the indictment listed the victim as being quote the cohabitant or mother of the child and

[00:04:40] Speaker 01:
And there, the collateral challenges were to the denial of motion and eliminate.

[00:04:44] Speaker 01:
And likewise, under Biddle, he was convicted of, quote, being a cohabitant or the children's parent.

[00:04:50] Speaker 01:
And in those cases, when the California case law is defining the element, it never lists the relationship as a separate element.

[00:05:00] Speaker 04:
Well, at the 2013 jury instruction, it says the defendant is charged with inflicting an injury on his or her former spouse

[00:05:11] Speaker 04:
cohabitant, the mother, the father of his or her child, and that resulted in traumatic condition and violation of 273.5.

[00:05:19] Speaker 04:
To prove that the defendant is guilty of the crime, the people must prove that one, the defendant willfully and unlawfully inflicted a physical injury on his or her former spouse, cohabitant, and the injury inflicted by the defendant resulted in a traumatic condition.

[00:05:39] Speaker 01:
Well, Your Honor,

[00:05:40] Speaker 01:
that has to be proof of the trial, but there is no jury unanimity that it has to be one of those particular relationship groups.

[00:05:49] Speaker 01:
There is no California state court case that has ever decided that.

[00:05:53] Speaker 04:
Let's just say, okay, if we conclude Cervantes is not binding,

[00:05:58] Speaker 04:
We could remand it to the BIA to determine divisibility in the first instance, or couldn't we determine divisibility here?

[00:06:06] Speaker 01:
Absolutely, and the court's case does that again and again under Lopez-Morroquin.

[00:06:12] Speaker 01:
That was a similar situation where there was a disjunctive list.

[00:06:16] Speaker 01:
Didn't I dissent there and lost?

[00:06:18] Speaker 01:
Well, it did, but you never contested whether the court could decide it.

[00:06:23] Speaker 01:
You just disagreed about what the California case law said about what it was.

[00:06:28] Speaker 04:
I guess what I'm trying to decide is there might still be a way that your client could lose if we decided the divisibility issue right here.

[00:06:39] Speaker 01:
Yes, and my argument to the court is that in Miller v. Gammy, this is absolutely something that should be revisited in light of Mathis, and this court is best situated because divisibility is a legal question.

[00:06:53] Speaker 01:
And so this court should decide it however it comes out.

[00:06:57] Speaker 01:
My argument then, looking at California case law,

[00:07:00] Speaker 01:
that there is no California state court case that has said that this is an element, and then of those three cited cases, if you look at the, they are convicted of or, so there was no jury anonymity.

[00:07:12] Speaker 04:
But I'm wondering if it probably doesn't make sense to publish because they've changed the statute since this one.

[00:07:19] Speaker 04:
Correct.

[00:07:20] Speaker 04:
This is, I mean, this is really an old case.

[00:07:23] Speaker 04:
It's a very old case.

[00:07:25] Speaker 04:
Like 12 years.

[00:07:26] Speaker 01:
Yes, yes.

[00:07:28] Speaker 01:
Viscara Ramirez is an unpublished case, and that's doing exactly what I'm asking the court to do there, which is to overturn the presidential decision, apply Miller v. Gammie, makes it irreconcilable, and then applying Mathis to the disjunctive list.

[00:07:43] Speaker 03:
But the cases that you cited for your Miller v. Gammie proposition, Robinson and Viscara Ramirez, they look distinguishable to me.

[00:07:51] Speaker 03:
Because in those cases, they didn't even at all mention whether the statutes were divisible or not.

[00:07:56] Speaker 03:
And Cervantes specifically said it was divisible.

[00:07:59] Speaker 03:
So how should we, I don't think I could rely on Robinson and Vizcarra Ramirez for that purpose.

[00:08:05] Speaker 01:
Lopez Marroquin is the best example, because there the precedent was decided after DeCamp, just like this case, but before Mathis.

[00:08:13] Speaker 01:
And this is where the proposition explains, I think does a very great job of explaining the role that Mathis has.

[00:08:20] Speaker 01:
which is DeKamp explained that elements-based statutes are going to be divisible, but Mathis explained what we do with disjunctive lists.

[00:08:28] Speaker 01:
And the disjunctive list is what 273.5 has, and Lopez-Marquin dealt with that intermediate period between DeKamp and Mathis, which is exactly what we have on this record.

[00:08:40] Speaker 01:
And what's key there is that yes, Judge Callahan, there was a disagreement between the majority and the sent on California state.

[00:08:51] Speaker 01:
court law, and I would submit that's the same thing here, is that there is no clear state Supreme Court case on point, and the jury instructions, although there are brackets, unlike, as you know with jury instructions, with the California jury instructions, at times they will direct the jury when it has to be mandatory, and there's no such requirement under these jury instructions that it has to.

[00:09:16] Speaker 04:
The attorneys could ask to have unanimity on that.

[00:09:20] Speaker 04:
in a verdict form but I don't know but there's no requirement.

[00:09:25] Speaker 01:
We know it's not required because in those three cited cases there was an or, it was spouse or cohabitant, former cohabitant or you know it was both of those relationships were listed so the jury unanimity was not required for the three convictions that were found under Vaca, Biddle and Leach.

[00:09:46] Speaker 04:
I don't want to be rude but it seems like

[00:09:50] Speaker 04:
that another thing I think that the government brought up was that clearly this domestic violence and it's your position that they're raising this for the first time here, whether it's a CMIT, I guess, or whether it just doesn't seem, I don't see an avenue for your client to win.

[00:10:12] Speaker 01:
If it's a former cohabitant and actually.

[00:10:15] Speaker 04:
No, but I mean it, but there's another section.

[00:10:17] Speaker 04:
Isn't, isn't there another way that your client can lose if this is just domestic violence?

[00:10:23] Speaker 01:
Well, your honor, the, the issue here is that this was in the master hearing.

[00:10:28] Speaker 01:
He was asked whether it's domestic violence offense.

[00:10:30] Speaker 01:
And as this court knows, there's two 73.5 under California law, but there's also two 243.

[00:10:36] Speaker 01:
which is a domestic violence offense, which is not a CIMT.

[00:10:41] Speaker 01:
But even if it is a CIMT, well, if it's indivisible, we win there.

[00:10:47] Speaker 04:
Well, right.

[00:10:48] Speaker 04:
But if it's divisible, then that's a Heather suit.

[00:10:51] Speaker 04:
But I think what the government's saying is they're raising an alternate argument saying, well, it doesn't really matter because no one can really dispute that this is a crime of domestic violence under Korea versus Holder.

[00:11:06] Speaker 01:
So the agency has to make that finding.

[00:11:10] Speaker 04:
And that's your argument.

[00:11:11] Speaker 01:
And so that would need to be a remand.

[00:11:13] Speaker 01:
So what we're asking for is for this court to find it indivisible and remand it, because we've never had a hearing on cancellation and also adjustment.

[00:11:22] Speaker 01:
And he would be eligible both under adjustment and cancellation.

[00:11:26] Speaker 04:
But I'm understanding you if we found it divisible, we could also decide it right here.

[00:11:30] Speaker 01:
Correct.

[00:11:31] Speaker 04:
Without a remand.

[00:11:32] Speaker 01:
Well, with the remand, we still need to look.

[00:11:36] Speaker 01:
If it's divisible, it still needs to be remanded because we have no conviction records.

[00:11:41] Speaker 01:
This was a situation where the DHS attorney said, yes, he was convicted.

[00:11:46] Speaker 03:
But your client admitted it.

[00:11:48] Speaker 03:
And it just seems like you're hiding behind the fact that your client has not provided any of the documents, even though he bears the burden of proof to show that he's eligible for cancellation.

[00:11:57] Speaker 03:
That's one thing that it seems a bit

[00:12:02] Speaker 03:
odd here and somewhat inconsistent with Pareta.

[00:12:05] Speaker 03:
Your client is saying I'm not going to provide any of the documents of my own conviction even though I bear the burden.

[00:12:11] Speaker 01:
He was in 2013 when this happened.

[00:12:13] Speaker 01:
He was pro se and detained.

[00:12:15] Speaker 03:
He's had so many opportunities to provide those documents and he repeatedly hasn't even when he's been counseled.

[00:12:21] Speaker 01:
Your Honor, it stayed at the court in the first petition for review for seven years because that is where the court was going back and forth

[00:12:29] Speaker 01:
with about who had the burden before Pareta, with the night circuit cases and the on-vac.

[00:12:33] Speaker 02:
But on remand, he filed an application for cancellation, and the instructions ask if you had any criminal convictions.

[00:12:42] Speaker 02:
He said yes, and he was asked to provide details, and he did not, nor did he provide any documents.

[00:12:47] Speaker 01:
That was 2013, and that was when he filed for the cancellation and the adjustment, when he produced the two applications.

[00:12:55] Speaker 01:
Then for seven years, and even the docket of the prior case,

[00:12:58] Speaker 01:
The docket itself says that in light of the change of the law, we're going to remand this for Pareta.

[00:13:04] Speaker 01:
And the joint statement produced by the parties said we were only going to deal with legal issues.

[00:13:10] Speaker 01:
The factual issues are things that need to go before the IJ, and he's never had a full counseled hearing to present those applications.

[00:13:18] Speaker 01:
The BIA is not a fact finder.

[00:13:20] Speaker 01:
So all of that should be remanded.

[00:13:22] Speaker 01:
Whether the court finds this divisible or indivisible, the proper remedy is to send this back to a hearing.

[00:13:27] Speaker 01:
for the fact-finding in the first instance, which he's never had.

[00:13:31] Speaker 01:
And yes, there was that delay, but that was during the uncertainty about who has the burden.

[00:13:35] Speaker 01:
So it made no sense for him to produce it before it was clearly established about which party had the burden.

[00:13:41] Speaker 04:
Do you want to save the balance of your time?

[00:13:43] Speaker 01:
Yes, Your Honor.

[00:13:44] Speaker 04:
Thank you.

[00:13:45] Speaker 04:
Thank you.

[00:13:47] Speaker 04:
All right, we'll hear from the government.

[00:14:01] Speaker 04:
Good morning.

[00:14:01] Speaker 00:
Good morning, Your Honors, and may it please the court, Imran Zaydi for the respondent.

[00:14:06] Speaker 00:
The court has asked us to focus today on two questions.

[00:14:10] Speaker 00:
Whether Cervantes continues to bind this court on the question of divisibility of California's domestic abuse statute.

[00:14:16] Speaker 00:
And second, if not, whether the court should remand for the agency to conduct a divisibility analysis.

[00:14:22] Speaker 00:
We have two bottom line answers to these questions.

[00:14:25] Speaker 00:
First, yes, Cervantes continues to bind this court on the question of divisibility, panels of this court on the question of divisibility, because it is not clearly irreconcilable with Mathis.

[00:14:35] Speaker 00:
So petitioners, welcome to challenge Cervantes, but that must be done on Bonk.

[00:14:39] Speaker 03:
And then second, even should- But if they didn't even perform the analysis, didn't even mention disc camps, which was decided before Cervantes, how can we say it's not clearly irreconcilable?

[00:14:51] Speaker 00:
I think you provided the answer yourself, Your Honor.

[00:14:55] Speaker 00:
Looking at the face of the decision, admittedly, Cervantes said nothing about Does Camp, but that also means that there's nothing on the face of the decision.

[00:15:01] Speaker 03:
It also said nothing other than we think it's divisible based on two prior precedents.

[00:15:05] Speaker 03:
That's all it said.

[00:15:06] Speaker 03:
That's right.

[00:15:06] Speaker 03:
There was no analysis, right?

[00:15:08] Speaker 03:
You would agree ahead.

[00:15:08] Speaker 00:
There's no question.

[00:15:09] Speaker 00:
There's no question, Judge Koh.

[00:15:11] Speaker 00:
And I think what's central to our position here is we readily acknowledge that Cervantes did not cite or mention Does Camp in his decision.

[00:15:19] Speaker 00:
But that doesn't change the fact that DesCamp was the controlling divisibility law at the time that Cervantes was decided.

[00:15:26] Speaker 00:
In fact, by that point, this court had already issued its own post-DesCamp precedent incorporating DesCamp's reasoning, and that's the court's decision in Rendon.

[00:15:35] Speaker 00:
So we don't deny that Cervantes didn't cite DesCamp, but the question for Miller versus Gamey purposes is whether there is higher intervening authority.

[00:15:44] Speaker 00:
And DesCamp is certainly not intervening authority.

[00:15:46] Speaker 00:
It was there at the time.

[00:15:47] Speaker 04:
Well, the petitioner appellant relies heavily on Lopez Marrakeen and in support of the argument that we are not bound by Cervantes because Cervantes is clearly irreconcilable with Mathis.

[00:16:02] Speaker 04:
Why isn't the petitioner right on that?

[00:16:05] Speaker 00:
That's right, Your Honor.

[00:16:05] Speaker 00:
And I think so there's two critical distinctions with Lopez Marrake.

[00:16:09] Speaker 00:
And we just filed this and identified these in a 28-J response last week.

[00:16:14] Speaker 00:
The first one is there, unlike here, there was actually reasoning in the prior precedent.

[00:16:21] Speaker 00:
In that case, it was Duenas-Alvarez, not the Supreme Court's decision.

[00:16:24] Speaker 00:
It was this Court's panel decision in Duenas-Alvarez in 2013.

[00:16:26] Speaker 00:
The reasoning in that decision, which was provided, relied solely on the fact of disjunctive listing in a statute to find divisibility.

[00:16:36] Speaker 00:
It said, because the statute lists these terms disjunctively, that means divisible.

[00:16:40] Speaker 00:
And that is the exact principle which is, we readily acknowledge, clearly irreconcilable with Mathis and DesCamp, because those decisions said you cannot rely solely on disjunctive reasoning to say that a statute is divisible.

[00:16:51] Speaker 04:
But let's, just for hypothetically.

[00:16:53] Speaker 00:
That's just one, Your Honor, sorry.

[00:16:54] Speaker 04:
Hypothetically, assume that if we say we're not bound by Cervantes.

[00:16:59] Speaker 00:
Yes.

[00:17:00] Speaker 04:
Why should we read Section 273.5 as divisible?

[00:17:05] Speaker 04:
And should we do it or should it go back?

[00:17:09] Speaker 00:
So two parts to that, Your Honor.

[00:17:11] Speaker 00:
We very clearly did not get into California law in our brief, and it's because we recognize that Miller v. Gammie is supposed to be a limited mechanism.

[00:17:19] Speaker 03:
We don't get into whether state law here... I know, but we're asking you to, because what if we disagree with you on your threshold point?

[00:17:25] Speaker 00:
If you disagree with us, Your Honor, I think our bottom line position overall is that if you have any pause about relying on Cervantes, notwithstanding the fact that it is binding precedent,

[00:17:35] Speaker 00:
There's no reason to reach that second question.

[00:17:37] Speaker 00:
There's no reason to remand, for sure.

[00:17:39] Speaker 00:
This court does not defer to the board on divisibility.

[00:17:41] Speaker 00:
But there's no reason for this court itself to reach the question of divisibility.

[00:17:45] Speaker 00:
And that is because Petitioner, in all events, remains separately disqualified from cancellation of rule because this same offense is a crime of domestic violence under the INA.

[00:17:56] Speaker 04:
That would be, we would be denying on a ground that wasn't previously raised by you.

[00:18:05] Speaker 04:
Now I know that counsel for petitioner is saying, I'm not sure that it's forfeited, I'm not sure that you can't bring it up there, but it clearly, it hasn't been part of this case.

[00:18:19] Speaker 04:
It's not like a summary judgment where we can affirm on any ground.

[00:18:23] Speaker 00:
Well, respectfully, Your Honor, that's not true.

[00:18:25] Speaker 00:
And for the same reason, the divisibility is not something that this court needs to send it back to the agency on.

[00:18:30] Speaker 00:
The very same reasoning applies to something like the determination whether an offense qualifies as a separate disqualifying ground.

[00:18:38] Speaker 00:
Here, a crime of domestic violence.

[00:18:40] Speaker 00:
There's no deference to the board on construing state law.

[00:18:44] Speaker 00:
And for divisibility, by the way, this panel is asking whether we're okay

[00:18:48] Speaker 00:
For this court to reach the first instance, we say absolutely you can reach this new question in that context.

[00:18:53] Speaker 04:
Okay, but the BIA didn't reach the domestic violence, correct?

[00:18:58] Speaker 00:
Correct.

[00:18:59] Speaker 04:
All right.

[00:19:00] Speaker 04:
So what is your best authority that we can reach it here as an alternative?

[00:19:06] Speaker 00:
Effectively, it is a futility argument, Your Honor.

[00:19:08] Speaker 00:
If this court were to send this decision back, the board would be foreclosed in ruling on petitioners' cancellation application.

[00:19:18] Speaker 00:
because the board could not even consider him eligible because this crime qualifies under this court's precedent.

[00:19:25] Speaker 04:
There's a lot of times I think people are going to lose, but I have to send it back for the agency to do it in the first instance.

[00:19:34] Speaker 04:
But respectfully, Your Honor, if we recognize... So why isn't this one of them?

[00:19:37] Speaker 00:
It's a well-recognized exception to Chenery, Your Honor, that if it would be futile to remand because the same exact result would be inevitable,

[00:19:45] Speaker 00:
It's not a question that the agency gets any deference on as a matter of construing state law.

[00:19:50] Speaker 00:
And again, this is not we're asking for the BIA to look at it first.

[00:19:53] Speaker 00:
This court has already answered that question.

[00:19:56] Speaker 04:
All right.

[00:19:56] Speaker 04:
Let me make sure that I understand your roots to denying.

[00:20:01] Speaker 04:
First, you're saying that we're bound by Cervantes, therefore.

[00:20:07] Speaker 04:
But if we don't agree with that, that Cervantes is binding, then you're saying you still win.

[00:20:14] Speaker 04:
because the statute is divisible, and that we can make that determination in the first instance.

[00:20:20] Speaker 04:
And if that doesn't work, then it's a crime of domestic violence under the futility argument.

[00:20:29] Speaker 00:
I would just swap those second two, Your Honor.

[00:20:31] Speaker 00:
And that's because, yes, we believe, as we said in our brief, Cervantes first.

[00:20:35] Speaker 00:
And that's the easiest and cleanest way to win.

[00:20:37] Speaker 00:
If the court has any pause about applying Cervantes here and thinks that you might want to recognize the Miller versus Gamey exception,

[00:20:43] Speaker 00:
That's where we say there's no reason to break any new ground and look at the divisibility of the statute when under all circumstances petitioner remains foreclosed from cancellation of removal because the crime of domestic violence.

[00:20:56] Speaker 00:
So that would be our second route.

[00:20:58] Speaker 02:
Did you forfeit an argument on divisibility?

[00:21:00] Speaker 02:
You didn't respond substantively.

[00:21:01] Speaker 00:
Your Honor, we believe under Miller versus Gammie that is exactly what this court cannot and should not do is re-litigate a claim that is already foreclosed.

[00:21:10] Speaker 00:
This is exactly petition.

[00:21:12] Speaker 00:
It should be very clear about this.

[00:21:14] Speaker 00:
We're not saying that the court can't look at divisibility.

[00:21:17] Speaker 00:
Again, we're just saying at the panel stage, they cannot.

[00:21:20] Speaker 00:
The proper forum for raising that claim is en banc.

[00:21:23] Speaker 00:
And Judge Kalhan, if I could come back, this actually segues to the second answer to the question about Lopez Maracón.

[00:21:29] Speaker 00:
In that case, the second distinction is that there the panel did try to take the issue en banc first, recognizing that it was not appropriate to resolve that claim at the panel stage.

[00:21:40] Speaker 00:
But there was not a majority of active judges to rule in favor of that.

[00:21:45] Speaker 00:
And so the court ended up ruling on it at the panel stage.

[00:21:48] Speaker 04:
So I recall.

[00:21:49] Speaker 00:
Yes, I'm sure you remember that.

[00:21:50] Speaker 00:
Well, so that's your question, Your Honor.

[00:21:52] Speaker 00:
Of course, this court can reconsider the divisibility question if it believes that Mathis was intervening precedent.

[00:21:59] Speaker 00:
But you do that at the en banc stage.

[00:22:00] Speaker 00:
Miller versus Gammie is meant to be a limited tool.

[00:22:02] Speaker 02:
But you're putting all your eggs in one basket, right?

[00:22:04] Speaker 02:
That we are going to agree with two.

[00:22:06] Speaker 02:
Two baskets.

[00:22:07] Speaker 02:
Your futility baskets out there as well.

[00:22:09] Speaker 02:
But OK.

[00:22:09] Speaker 02:
So on the Cervantes issue, no, it's not.

[00:22:13] Speaker 02:
Miller versus Gammie doesn't apply.

[00:22:15] Speaker 02:
But you can argue in the alternative, because they made a full-throated substantive argument on divisibility, and you didn't respond to it.

[00:22:22] Speaker 00:
So Your Honor, sorry.

[00:22:23] Speaker 00:
Sorry to interrupt, Your Honor.

[00:22:24] Speaker 02:
So it seems like forfeiture.

[00:22:27] Speaker 00:
Your Honor, we routinely do raise divisibility arguments before this Court in the first instance.

[00:22:31] Speaker 00:
When we don't, I don't, and we very commonly don't, is where that issue has already been resolved by this Court.

[00:22:36] Speaker 00:
So if we put our eggs in that basket, and sure, I think we did, it's because we are not trying to get in the way of what Miller versus Gamey is supposed to hold for this Court, which is we do not, at the panel stage, relitigate questions that have already been decided.

[00:22:49] Speaker 00:
If the prior precedent here, Cervantes, had been issued before DesCamp,

[00:22:56] Speaker 00:
We would have at a minimum gotten into California law to talk about why this decision is still defensible and that those alternatives are elements.

[00:23:03] Speaker 00:
But here you are talking about a post-DesCamp decision.

[00:23:06] Speaker 00:
This court has already said that Mathis did nothing to change the rule in DesCamp.

[00:23:11] Speaker 00:
It just restated what had already been said at DesCamp.

[00:23:14] Speaker 00:
And under those circumstances, to get into California law is exactly what we think Miller v. Gammie prohibited.

[00:23:20] Speaker 03:
Judge Coe had a question.

[00:23:22] Speaker 03:
I'm a little bit confused about your third argument on divisibility.

[00:23:25] Speaker 03:
You're saying you can't, we shouldn't look at this because the claim is already foreclosed.

[00:23:32] Speaker 03:
And by that, are you referring to your second argument that you think because Mr. Renaud conceded that it was a crime against his spouse?

[00:23:42] Speaker 03:
I guess I'm still unclear.

[00:23:44] Speaker 03:
You're refusing to address state law.

[00:23:48] Speaker 03:
You're giving us no response on VACA or LEACH, which to me means you're probably conceding, right, if you're not going to address it.

[00:23:55] Speaker 03:
And then you're saying, but I don't see how you win on whether, if we have to address divisibility.

[00:24:01] Speaker 03:
If you're not going to give us a state law argument.

[00:24:02] Speaker 00:
To be clear, Judge, our position is, if the court believes that the Miller versus Gamey exception applies here, then the second route is the alternative crime of domestic violence disqualification.

[00:24:14] Speaker 00:
Right?

[00:24:15] Speaker 00:
So that, I mean, really our arguments are just two, and it's in response to this court's, the issues that it directed us to focus on today.

[00:24:23] Speaker 00:
So the second position is, if the court thinks that Cervantes is no longer binding in light of Mathis, then we rely on the alternative ground that this offense, under all circumstances, remains a crime of domestic violence.

[00:24:34] Speaker 00:
So we don't provide any alternative divisibility analysis.

[00:24:37] Speaker 03:
So you're saying he, Mr. Renault, cannot litigate it.

[00:24:40] Speaker 03:
because he conceded that the abuse that he was convicted of was against his spouse.

[00:24:45] Speaker 03:
Is that your foreclosed claim argument?

[00:24:47] Speaker 03:
I'm sorry, I'm still unclear on your position.

[00:24:50] Speaker 00:
I'm sorry, are you saying if this court does turn to divisibility and it's self-determined as divisible on its own in a new analysis, then what would happen?

[00:25:00] Speaker 03:
I thought earlier in response to Judge Callahan's question, you said our third argument is that if you reach the divisibility, Mr. Renaud can't litigate that claim because it's foreclosed.

[00:25:13] Speaker 03:
And I'm just trying to get clarification on what you meant by that.

[00:25:15] Speaker 00:
No, I'm sorry.

[00:25:16] Speaker 00:
I was raising that.

[00:25:17] Speaker 00:
That's part of the first argument.

[00:25:18] Speaker 00:
When I said, I was just saying that the only way to reach that would be en banc, it's foreclosed at the panel stage.

[00:25:24] Speaker 00:
So sorry, there was no third argument.

[00:25:26] Speaker 00:
Oh, I see.

[00:25:27] Speaker 00:
If I'm remembering correctly, that was part of a response to why we didn't provide the visibility analysis now at the panel stage.

[00:25:32] Speaker 04:
Tell me how the fact that he admitted that he had been convicted of the crime.

[00:25:40] Speaker 04:
Tell me what, and he has the burden on cancellation of removal.

[00:25:44] Speaker 04:
Correct.

[00:25:46] Speaker 04:
How does that fit into the analysis here?

[00:25:52] Speaker 00:
So that is, that testimony in which he admitted the conviction,

[00:25:56] Speaker 00:
then gives this court the evidence that he has been convicted of this crime under 273.5 spousal abuse, that then disqualifies him from cancellation or removal, because under this cancellation statute, if you are convicted of one of these several different grounds, disqualifying offenses, including, as relevant here, crimes involving moral turpitude, you are not eligible for cancellation or removal.

[00:26:18] Speaker 04:
Now, if as part of your question you're asking the divisibility point... Well, I guess is what you're saying, but then we would have to determine

[00:26:27] Speaker 04:
that it's divisible and that it was the CIMT.

[00:26:31] Speaker 00:
Correct.

[00:26:31] Speaker 04:
And then you would say the evidence of that was his admission.

[00:26:35] Speaker 00:
The evidence of the fact of the conviction, yes.

[00:26:39] Speaker 00:
So you would be relying on a testimony, this is why we sent this case or agreed to send the case back after Pareto.

[00:26:44] Speaker 04:
Because we don't really actually have a record.

[00:26:48] Speaker 00:
Correct.

[00:26:49] Speaker 00:
That's right.

[00:26:50] Speaker 00:
And I'm happy to talk more about that, but I think it's very clear at this point, and we're happy to rest on the briefs if you don't have specific questions about it.

[00:26:56] Speaker 00:
But Pareta makes clear in this court's subsequent precedents make clear that you can rely on testimony, petitioner testified, and has conceded throughout this litigation until that remand that he was convicted of that offense.

[00:27:07] Speaker 04:
It seems to me some of the problems here are how long this has gone on and how much law has happened in the interim.

[00:27:15] Speaker 00:
I don't disagree, Your Honor.

[00:27:17] Speaker 00:
That happens occasionally.

[00:27:18] Speaker 00:
In this case, you had the additional layer of Pareta came out right maybe around the time that the panel might have been ready to calendar this for argument.

[00:27:25] Speaker 00:
And I should note, Pareta, I think, has been very clearly settled.

[00:27:29] Speaker 00:
The question of testimony and reliance on it and what you do with an inconclusive record, we still remanded at that point just to be crystal clear and to let the board have the first opportunity to speak to Pareta.

[00:27:41] Speaker 00:
It did.

[00:27:41] Speaker 00:
That's now clear.

[00:27:42] Speaker 00:
So we think that portion of this and whether there's a conviction

[00:27:45] Speaker 00:
is clearly established.

[00:27:46] Speaker 03:
Earlier you said Ninth Circuit law has held that Mathis didn't change anything after descamps.

[00:27:51] Speaker 03:
What were you referring to?

[00:27:52] Speaker 00:
The court's decision, its en banc decision, Martinez-Lopez.

[00:27:56] Speaker 00:
And in that decision, we cited in our brief, I can give you the page number.

[00:28:00] Speaker 00:
In fact, I will believe it is around 30.

[00:28:13] Speaker 00:
36, I believe, but Martinez Lopez, 35.

[00:28:19] Speaker 00:
Mathis did not change the rules stated in DesCamp.

[00:28:22] Speaker 00:
It only reiterated that the Supreme Court meant what it said when instructed courts to compare elements.

[00:28:28] Speaker 00:
And Judge Coe, I should be clear, Mathis did make changes in other courts, but the way this court had already ruled after DesCamp, and then in Rendon in particular, was that Mathis didn't change anything.

[00:28:38] Speaker 00:
This court had already been consistently interpreting DesCamp properly, we think,

[00:28:43] Speaker 00:
only deem a statute divisible if it's statutory alternatives or elements rather than means.

[00:28:48] Speaker 00:
There had been some conclusion in other courts as to whether that's actually how you proceed.

[00:28:53] Speaker 00:
This court had been doing it consistently.

[00:28:55] Speaker 00:
That's why when Mathis came out, it just restated what this court was already doing.

[00:28:58] Speaker 00:
And that's why Martinez-Lopez said what it did.

[00:29:01] Speaker 02:
So I'm confused by something in your argument.

[00:29:07] Speaker 02:
You're not presenting an argument based on state law to us today, but I thought in your brief you contested their argument that we couldn't make a finding of divisibility based on anything other than a state Supreme Court decision.

[00:29:22] Speaker 00:
We contested that that's what Mathis said.

[00:29:24] Speaker 00:
I think counsel's argument was that

[00:29:27] Speaker 00:
that math has said you can only rule that a statute is divisible if the state supreme court has said that.

[00:29:32] Speaker 00:
And that's very clearly not what any reading of math has ever said, including by this court.

[00:29:38] Speaker 00:
So we don't get into state law on the specific question of divisibility here, but that argument is just about what math has said and what you can look at for purposes of the divisibility analysis in general.

[00:29:48] Speaker 02:
Right, which would seem to be relevant if we were going to look at VACA, because it's not a Supreme Court decision.

[00:29:54] Speaker 00:
Yes.

[00:29:54] Speaker 02:
We were going to conclude that based on VACA, this is a divisible statute.

[00:29:59] Speaker 00:
Yes, Your Honor.

[00:30:00] Speaker 00:
Of course, our position is clear on whether this Court should get in at the panel stage to California law, but there's no question that less than state Supreme Court law is relevant to the divisibility analysis.

[00:30:10] Speaker 00:
We rely on those authorities all the time in our own arguments.

[00:30:14] Speaker 04:
Alright, unless many of my colleagues have any questions, your time has expired.

[00:30:18] Speaker 04:
Thank you.

[00:30:23] Speaker 01:
I have three points.

[00:30:25] Speaker 01:
Cervantes did exactly what the government said.

[00:30:29] Speaker 01:
The Cervantes said it was a mistake and an error when finding that 273 was divisible and saying that the judicial omission was enough to prove under the modified categorical which part of the statute it was.

[00:30:49] Speaker 01:
The first error, even if this court finds it divisible, the proper remedy is remand for the court to actually look at conviction documents and not the admissions.

[00:30:59] Speaker 01:
And that's at 589 in Cervantes.

[00:31:03] Speaker 01:
The second point is under Lopez Marroquin cites Martinez Lopez.

[00:31:08] Speaker 01:
And Lopez Marroquin makes it very clear that Mathis clarified that was

[00:31:13] Speaker 01:
with disjunctive statutes, there was a mistake for this court to presume them divisible.

[00:31:20] Speaker 01:
Rather, there has to be an inquiry into the state law, which is what Mathis created new framework for.

[00:31:26] Speaker 01:
And the third issue is that the court has never provided a cogent theory as to why California state law says that 273 is divisible.

[00:31:37] Speaker 01:
It did not do it in its briefing.

[00:31:39] Speaker 01:
It did not do it before the BIA, and it did not do that here in argument.

[00:31:46] Speaker 03:
Can you answer?

[00:31:47] Speaker 03:
It does seem in your brief you are arguing that unless there's a state Supreme Court case on point, it does seem like you were making that argument, but Mathis clearly says the statute could be clear on its face, right?

[00:32:02] Speaker 01:
Yes, Your Honor.

[00:32:03] Speaker 01:
There are two different arguments.

[00:32:05] Speaker 01:
One, today I focused on looking at this court's existing divisibility analysis.

[00:32:11] Speaker 01:
We win.

[00:32:12] Speaker 01:
A second pathway is the way that six other federal circuits have done so, which is where they say if there has not been a state Supreme Court that has clearly already identified whether

[00:32:25] Speaker 01:
a statute of state or elements or means, which is what happened in Mathis, there's no need to even guess.

[00:32:31] Speaker 03:
But Mathis doesn't require that.

[00:32:33] Speaker 01:
Mathis does not require that, and the court does not have to engage into that other analysis.

[00:32:39] Speaker 03:
No, but we don't have to have a state Supreme Court case on point.

[00:32:43] Speaker 01:
Right, and actually Mathis says there are three points.

[00:32:45] Speaker 01:
You look at the statute for different punishments, which is not here.

[00:32:48] Speaker 01:
You can look at the case law, and then lastly, the peak of the record.

[00:32:54] Speaker 04:
All right, there don't appear to be additional questions.

[00:32:56] Speaker 04:
Thank you both for your argument.

[00:32:58] Speaker 04:
This will be submitted.

[00:33:00] Speaker 04:
I always, we appreciate everyone that appears, but we also always like to acknowledge our pro bono counsel for that's very helpful to the court and particularly in matters where, you know, the petitioners can't afford to hire counsel and we have

[00:33:18] Speaker 04:
these meaty legal issues that continue on and on and on.

[00:33:22] Speaker 04:
So we thank both of you for being and a special thanks to Pro Bono Council.

[00:33:27] Speaker 04:
This matter will stand submitted.

[00:33:29] Speaker 04:
Santiago Ramirez versus Bondi 23-2874, that was submitted on the briefs, will be submitted as of this date.