[00:00:00] Speaker 01:
Miss Hagelberg Good morning your honors and may it please the court.

[00:00:09] Speaker 01:
My name is Erica Hagelberg and together with met miss eventually in a real I'm here today as counsel for petitioner miss Vanessa Rodos I'd like to reserve two minutes for rebuttal

[00:00:25] Speaker 01:
Ms.

[00:00:25] Speaker 01:
Rodos was the unfortunate recipient of substandard work from her prior counsel, who failed to present evidence, including evidence of her brother's asylum grant, failed to know the nature of the proceedings on the day of her merits hearing, and who filed an inadequate brief to the BIA that made little mention of law, let alone the specific findings of the IJ.

[00:00:44] Speaker 01:
Today, this court is reviewing two cases, her original appeal following the BIA's adoption and affirmation of the IJ's denial of her

[00:00:52] Speaker 01:
of the IJ's opinion and her appeal of the BIA's denial of her motion to reopen for ineffective assistance of counsel.

[00:01:01] Speaker 01:
I'd like to highlight a few points from each of these cases today.

[00:01:04] Speaker 01:
First, regarding her motion to reopen, the BIA erred when it failed to consider all facts under the appropriate diligence standard and it erred when it failed to consider each of Ms.

[00:01:16] Speaker 01:
Rodas' six claims of ineffectiveness independently.

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And second, with regard to her merits hearing, the IJ erred when it denied Ms.

[00:01:25] Speaker 01:
Rodos's motion to continue, having only considered its own convenience.

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And subsequently, the BIA erred when it adopted and affirmed the IJ's error.

[00:01:35] Speaker 03:
Okay, so tell us why, when the BIA said that you should have been aware, and in fact, she was aware of the error dealing with her brother's asylum claim, that that was not sufficient to show that she had a lack of due diligence.

[00:01:48] Speaker 01:
Yes, Your Honor.

[00:01:49] Speaker 01:
Under this Court's standards, noted in a by-gun, there are two ways that diligence is counted.

[00:01:57] Speaker 01:
First, when the non-citizen is aware of fraud or error, and second, when the non-citizen is not.

[00:02:02] Speaker 01:
Ms.

[00:02:02] Speaker 01:
Rodos could not have been aware of the errors in her case.

[00:02:06] Speaker 01:
And the BIA ignores significant evidence that demonstrates this.

[00:02:10] Speaker 03:
Well, you would concede she should have been aware of the errors given that her brother received asylum on the same claim.

[00:02:15] Speaker 03:
So she should have known at that point that something was wrong with her attorney's presentation of her claim.

[00:02:24] Speaker 01:
No, Your Honor.

[00:02:25] Speaker 01:
She doesn't actually know the reason for her brother's asylum grant.

[00:02:29] Speaker 01:
Brian's grant was through USCIS, which offers only a notice of asylum, but doesn't offer a rationale.

[00:02:35] Speaker 01:
You can see this in his grant letter in the record at page 164.

[00:02:39] Speaker 03:
So the board... But were the reasons for the grant... I thought it was the same reasons that she applied and her brother applied.

[00:02:45] Speaker 03:
Didn't they provide the same reasons for the asylum?

[00:02:49] Speaker 01:
No, Your Honour, they did not provide the same reasons.

[00:02:51] Speaker 01:
While they have a shared history and they share the same history, that is factual, there's a stark contrast between the application of Brian's application and Ms.

[00:03:01] Speaker 01:
Rodos' application.

[00:03:03] Speaker 01:
Brian's application lists both harm from the gangs and history of child abuse, whereas Ms.

[00:03:08] Speaker 01:
Rodos' application only lists harm from the gangs.

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So we don't know the basis for the USCIS's decision any more than the board does.

[00:03:16] Speaker 03:
She didn't present the child abuse in her petition?

[00:03:19] Speaker 01:
Her asylum claim does not mention child abuse.

[00:03:25] Speaker 01:
Her application is found in the record at page 739.

[00:03:27] Speaker 03:
Well, then isn't that the problem then?

[00:03:31] Speaker 03:
Her brother presented the child abuse and hers didn't.

[00:03:34] Speaker 03:
Isn't that a glaring problem that she should have tracked down?

[00:03:38] Speaker 01:
No, Your Honor.

[00:03:39] Speaker 01:
So our argument here today is that Ms.

[00:03:42] Speaker 01:
Rodos could not have known because she was told over and over by her attorney beginning in 2016 with her asylum application that child abuse was irrelevant in her claim because she was no longer a minor.

[00:03:54] Speaker 01:
She had no reason to suspect that that wasn't true.

[00:03:58] Speaker 03:
Well, except for the fact that her brother received asylum and he included child abuse.

[00:04:02] Speaker 03:
So that might have put her on notice or flagged the issue that something was wrong here.

[00:04:07] Speaker 01:
Yes, Your Honor.

[00:04:07] Speaker 01:
However, her brother was 11 at the time of entry, and I believe 12 when the grant came through.

[00:04:14] Speaker 01:
So he was still a minor.

[00:04:15] Speaker 01:
So the idea that child abuse was relevant to him because he was a minor prevented her from seeing that child abuse was relevant to her because she was no longer a minor, as her counsel repeatedly told her.

[00:04:30] Speaker 01:
Additionally the board failed to assess each of diligence for each of miss rodos's six claims of ineffectiveness Instead it measured diligence solely from this principal alleged error that we've been discussing Each of miss rodos's six claims stands alone as sufficient grounds for reopening and should have been considered separately the board even agrees with us by noting that there were errors and these errors were quote would be difficult for a non-attorney to discover a particular concern

[00:04:57] Speaker 03:
Well, you know, it's a deference standard, right?

[00:05:00] Speaker 03:
I mean, discretionary standard, whether or not they reopen.

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So why is it abusive discretion to say, well, there's this glaring issue with your brother's claim, and that should have given you a notice to conduct due diligence.

[00:05:16] Speaker 03:
And so therefore, you should have then, at that point, if you did do that, you would have discovered all these other errors.

[00:05:22] Speaker 03:
That doesn't seem unreasonable.

[00:05:24] Speaker 03:
Why is that unreasonable?

[00:05:26] Speaker 01:
Your Honor, in Avogian there were two separate claims of ineffective assistance which were treated separately because they stem from different errors, different forms of errors.

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And so we're arguing here that Ms.

[00:05:39] Speaker 01:
Rodas has presented six forms of errors and that diligence should be counted from each of them independently as it was done in Avogian.

[00:05:47] Speaker 03:
But if she dug in on one of the issues, wouldn't she have discovered the other issues?

[00:05:53] Speaker 01:
Not necessarily, Your Honor, and certainly not necessarily with regard to the issues on appeal.

[00:05:59] Speaker 01:
The issues on appeal are of particular concern because those would be very difficult for a non-attorney to discover, to know what does competence look like for an appellate brief.

[00:06:12] Speaker 01:
Is it three and a half pages with one legal citation, or is it something else?

[00:06:15] Speaker 01:
She wouldn't have known that.

[00:06:17] Speaker 01:
The board itself notes the deficiencies of the appellate brief.

[00:06:21] Speaker 03:
Well, I think what the board was saying was thinking, well, given the problem with the first claim, she should have hired a different lawyer and then dug in on all the other issues.

[00:06:29] Speaker 03:
And then that would have discovered all these other issues that you're talking about.

[00:06:35] Speaker 01:
Yes.

[00:06:35] Speaker 01:
Your Honor, I understand the argument.

[00:06:37] Speaker 01:
However, I don't think that

[00:06:41] Speaker 01:
Because counsel made one error, that alone should have necessitated her to review everything and look at everything with scrutiny.

[00:06:51] Speaker 01:
She had an attorney that had won asylum for her brother, had the same facts.

[00:06:55] Speaker 01:
They had worked together through the representation.

[00:06:57] Speaker 01:
Ms.

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Rodos had also testified for him at his hearing before USCIS.

[00:07:03] Speaker 01:
She believed in his ability because she saw it in action.

[00:07:06] Speaker 01:
Further, some of these events are things that even though she was there for, she couldn't possibly have understood, such as the miscalendering.

[00:07:14] Speaker 01:
The difference between a merits hearing and a master calendar hearing is legal jargon, so much so that the government explains it in a footnote to this court in its brief on page 53.

[00:07:26] Speaker 03:
If we agreed with you that the BIA should have looked at each individual claim before declining to reopen, but we agree that there is a sufficient reason to deny the claim based off of the Brother's asylum petition, would you then go back to the BIA and just argue for the five other problems?

[00:07:50] Speaker 03:
Would you be precluded from deciding, re-raising the Brother's asylum claim?

[00:07:57] Speaker 01:
Should this court affirm the BIA's finding with respect to Brian's asylum grant?

[00:08:03] Speaker 01:
Yes, we would go back to the board and ask them to look at these other five claims because they do stand as sufficient grounds independently Did you want to save some for rebuttal?

[00:08:15] Speaker 03:
Yes, your honor Thank you.

[00:08:17] Speaker 03:
We'll hear from the government

[00:08:27] Speaker 00:
Good morning, Your Honors.

[00:08:28] Speaker 00:
May it please the court?

[00:08:29] Speaker 00:
This is Dana Camilleri for the Attorney General.

[00:08:32] Speaker 00:
We ask that this court deny the consolidated petitions for review.

[00:08:36] Speaker 00:
With respect to her asylum and withholding of removal applications, there are a number of dispositive findings, any one of which

[00:08:45] Speaker 00:
resolves that petition for review.

[00:08:47] Speaker 00:
First, the past harm amounted to unfulfilled verbal threats, which does not rise to the level of persecution.

[00:08:54] Speaker 00:
She did not identify a cognizable particular social group or identify a political opinion.

[00:09:00] Speaker 00:
She also failed to demonstrate that the Salvadoran government would be unable or unwilling to protect her, particularly given the fact that her cousin, who she is afraid of, was convicted and imprisoned at the time of her merits hearing.

[00:09:14] Speaker 00:
And finally, she did not show that it would be unreasonable for her to relocate within El Salvador in order to avoid harm.

[00:09:24] Speaker 00:
For the second petition for review, the ineffective assistance of council claim, the diligence finding is dispositive over that.

[00:09:33] Speaker 02:
So what is the standard on that?

[00:09:36] Speaker 02:
I mean, these are sad situations where, you know, I mean, you don't disagree that council was ineffective.

[00:09:46] Speaker 00:
I would only be speculating, to be honest with you, because as Petitioner's Council just pointed out, her brother was a minor, and he was in completely different proceedings before USCIS.

[00:09:57] Speaker 00:
It's simply not the same as an adult appearing before an immigration judge.

[00:10:03] Speaker 02:
What is the difference on the legality of that?

[00:10:08] Speaker 00:
As an unaccompanied minor, he has a number of different safeguards, procedural safeguards, and USCIS is a different process.

[00:10:18] Speaker 02:
And she was over 18 when she came in?

[00:10:21] Speaker 00:
She's an adult.

[00:10:23] Speaker 00:
The petitioners are the adult and her child.

[00:10:25] Speaker 00:
The child, yeah.

[00:10:27] Speaker 03:
But doesn't that count against you, then?

[00:10:28] Speaker 03:
Then it makes it more reasonable for her to suspect that her attorney's failure to bring up the child abuse in her petition, her application, was not.

[00:10:38] Speaker 03:
relevant given that her brother was still a minor.

[00:10:42] Speaker 00:
It may very well not have been.

[00:10:44] Speaker 00:
relevant because she's not someone who's going to return to the custody of her aunt and uncle as opposed to her brother.

[00:10:51] Speaker 03:
But the whole point though is that as I see the BIA's decision is that she should have known that something was wrong with her attorney's advocacy for her because her brother included this allegations of child abuse but hers didn't and that her brother's was successful.

[00:11:09] Speaker 03:
So at that point, she should have started investigating if her attorney was acting ineffectively.

[00:11:17] Speaker 00:
I believe the board is drawing a little bit, finding that the February 2019 denial of her application, not the grant of her brothers in 2017 started to run the clock.

[00:11:33] Speaker 00:
I mean, at minimum.

[00:11:34] Speaker 02:
Well, wait, but I thought it would be the grant of the brothers because the whole point was, well, you should have known that it was deficient because the brothers

[00:11:45] Speaker 00:
Her proceedings were still ongoing.

[00:11:47] Speaker 00:
There hadn't been a decision.

[00:11:48] Speaker 02:
Oh, the brothers was decided first.

[00:11:51] Speaker 00:
Yes, in 2017.

[00:11:54] Speaker 03:
Right.

[00:11:54] Speaker 03:
And then hers was denied in February 19.

[00:11:57] Speaker 03:
And then she knew.

[00:11:59] Speaker 03:
But as I understand the BIA's point is like, well, she should have known that at that point that he alleged a different type of harm than she did.

[00:12:08] Speaker 03:
And so therefore, she should have been digging in.

[00:12:10] Speaker 03:
And that should have flagged the issue.

[00:12:11] Speaker 03:
So that kicks in the duty for due diligence.

[00:12:14] Speaker 03:
But if you're conceding that child abuse is different for an adult and a minor, then maybe you wouldn't flag the issue for her and kick in the need for due diligence.

[00:12:24] Speaker 00:
Well, she certainly is aware that her claim has not been granted and that something has gone wrong.

[00:12:34] Speaker 03:
Well, that can't be right.

[00:12:35] Speaker 03:
Just because your claim is denied, it doesn't mean that it requires you to start the due diligence to figure out if your attorney's been ineffective.

[00:12:43] Speaker 03:
There's got to be something more.

[00:12:44] Speaker 02:
I think the concern here is what the BIA relied on

[00:12:54] Speaker 02:
Doesn't necessarily hold water.

[00:12:56] Speaker 02:
I mean it does seem like you could say Well, wait you I mean you you knew that he filed a three-page brief nothing's changed about that I mean that seems you can't you can't just say well you filed a three-page brief I knew you filed a three-page brief I didn't realize till five years later that was out of the ordinary That seems a little I mean you had the facts before you

[00:13:21] Speaker 02:
But that's not what the BIA relied on.

[00:13:23] Speaker 02:
They relied on the fact that the brother's claim had been granted and hers was denied.

[00:13:29] Speaker 02:
I mean, is there more that the BIA relied on?

[00:13:34] Speaker 00:
I believe the BIA relied on her affidavit saying that she knew something was wrong in 2019.

[00:13:41] Speaker 00:
And so that's why they determined the clock should be running from there.

[00:13:45] Speaker 00:
And she didn't detail anything, any steps that she took between 2019 and 2024.

[00:13:53] Speaker 03:
Do you happen to have the ER number or the CAR number for her affidavit?

[00:13:57] Speaker 03:
I do recall it saying that she knew something was wrong pretty early.

[00:14:00] Speaker 00:
I believe I do.

[00:14:02] Speaker 00:
Unfortunately, my iPad with the record.

[00:14:05] Speaker 00:
That's OK.

[00:14:06] Speaker 03:
If you don't have it, then don't worry about it.

[00:14:08] Speaker 00:
I'm sorry.

[00:14:08] Speaker 03:
You had it handy.

[00:14:11] Speaker 00:
I think it's in the brief.

[00:14:13] Speaker 03:
OK.

[00:14:14] Speaker 03:
Well, then let's move on.

[00:14:15] Speaker 03:
Even if the BIA acted reasonably on the brothers' basis,

[00:14:19] Speaker 03:
It is weird to then impute that to all these other unrelated errors.

[00:14:26] Speaker 03:
Why is that proper?

[00:14:26] Speaker 00:
It wasn't that they're imputing it.

[00:14:30] Speaker 00:
They're simply saying they're not even reaching that because there wasn't diligence in pursuing her rights at the time that she should have known to start digging and that something was wrong.

[00:14:40] Speaker 03:
But if you know something's wrong on one issue, that doesn't necessarily let you know that there's something wrong on other issues.

[00:14:45] Speaker 03:
So that's what the disconnect seems odd.

[00:14:50] Speaker 00:
I think the board did not look at those other issues because they decided it purely on diligence.

[00:14:56] Speaker 03:
Yeah, but diligence on the brothers' claim, not on the failure to, I forget what the other issues are, failure to seek continuance and other issues.

[00:15:07] Speaker 00:
Well, they did seek the continuance, and he was able to file all the documentary evidence.

[00:15:15] Speaker 00:
So the record contains

[00:15:19] Speaker 00:
his response, her prior counsel's response, and her affidavit.

[00:15:30] Speaker 00:
Are there any other questions for me?

[00:15:34] Speaker 00:
Thank you.

[00:16:09] Speaker 01:
Your Honor, I'd first like to point out that the record page that you're looking for is AR 109.

[00:16:14] Speaker 01:
Thank you.

[00:16:17] Speaker 03:
So yeah, if you want to look to that, I thought she pretty clearly said she knew something was wrong at that point pretty early on.

[00:16:26] Speaker 01:
Your Honor, awareness that she disagreed with the approach or that she wanted to

[00:16:32] Speaker 01:
expand the approach is not the same as her knowing the legal significance of the omission.

[00:16:37] Speaker 01:
And the significance of the omission here is glaring.

[00:16:41] Speaker 01:
Had he presented evidence of her childhood abuse, that would have opened the door to humanitarian asylum for which she could have been eligible

[00:16:48] Speaker 01:
based on the severity of the past harm she experienced as a child.

[00:16:52] Speaker 01:
And that would have been viewed from the standpoint and the perspective of a child receiving those harms.

[00:16:59] Speaker 01:
Those harms included being made to sleep in a barn with pigs, treated as a household servant, was beaten multiple times a week and watched her brother.

[00:17:07] Speaker 01:
She returned from school multiple times to find her tiny brother covered in welts from being hit with a belt.

[00:17:13] Speaker 01:
Her uncle sexually abused her for the first time at 10.

[00:17:16] Speaker 01:
Her aunt, even after she moved out, her aunt would come over uninvited to hit her.

[00:17:22] Speaker 01:
She would drag her down the street by the hair.

[00:17:24] Speaker 01:
Her uncle continued to solicit and catcall her when she was out on the street.

[00:17:28] Speaker 01:
And when she was 16 and pregnant, her uncle drove his car at her.

[00:17:31] Speaker 01:
Each of these things would have amounted to persecution and enabled her to seek humanitarian asylum.

[00:17:37] Speaker 02:
I thought that evidence was presented.

[00:17:40] Speaker 02:
Maybe I'm missing something.

[00:17:41] Speaker 02:
I thought that evidence was presented.

[00:17:43] Speaker 01:
Your Honor, that evidence is presented only on our motion to reopen.

[00:17:46] Speaker 01:
It was completely missing from the IJ.

[00:17:49] Speaker 01:
And the IJ had no reason to know that her brother even had received an asylum grant, let alone that her brother had been the recipient of this harmful childhood abuse.

[00:18:00] Speaker 01:
He had simply no reason to question it.

[00:18:02] Speaker 01:
It wasn't presented to him.

[00:18:03] Speaker 01:
And those are the errors of her attorney that she could not have discovered until she met with current counsel, which was appointed because she was diligent in pursuing relief.

[00:18:12] Speaker 01:
Thank you, Your Honors.

[00:18:14] Speaker 02:
OK.

[00:18:14] Speaker 02:
Thank you.

[00:18:15] Speaker 02:
Thank you to both counsel for your arguments in the case.

[00:18:17] Speaker 02:
Thank you particularly to the petitioner.

[00:18:22] Speaker 02:
She's got an adequate representation.

[00:18:24] Speaker 02:
We always love it when the law students come in and are helpful to the court.

[00:18:28] Speaker 02:
So thank you.

[00:18:29] Speaker 02:
Congratulations.

[00:18:31] Speaker 02:
The case is now submitted.