[00:00:00] Speaker 03:
And we'll move on to the next case set for argument, which is Rubio-Paleo versus Bondi, case number 23-858.

[00:00:37] Speaker 00:
May I please the court?

[00:00:38] Speaker 00:
Shivana Yella on behalf of Mr. Rubio Palaio, the petitioner.

[00:00:44] Speaker 00:
This case has a number of issues that are important for the court.

[00:00:48] Speaker 00:
And importantly, whether or not the standard applied by the IJA and the board is overly strict.

[00:00:57] Speaker 00:
For instance, matter of Montreal from the BIA presidential decision talks about

[00:01:04] Speaker 00:
exceptional and extremely unusual hardship not requiring unconscionable harm.

[00:01:09] Speaker 00:
However, the evidence in this case does appear to demonstrate unconscionable harm.

[00:01:18] Speaker 04:
Let me ask you a housekeeping question.

[00:01:22] Speaker 04:
In the gray brief, starting at seven, you argue that Petitioner didn't waive the due process violation claims previously asserted in the

[00:01:35] Speaker 04:
Where in the opening brief does petitioner explain how the IJ or the BIA violated his due process, right?

[00:01:46] Speaker 00:
The issue comes out when the immigration judge imposes... Where in the opening brief?

[00:01:54] Speaker 00:
I'm sorry?

[00:01:55] Speaker 00:
Show me where in your... Oh, in the opening brief.

[00:01:57] Speaker 00:
So it would be... The opening brief would be page 20 and 21.

[00:02:05] Speaker 00:
when the immigration judge implants her own solutions to the problems that the family is dealing with, for example.

[00:02:17] Speaker 04:
And where do the words do and process appear there?

[00:02:25] Speaker 00:
Your Honor, I think the words do process are not used.

[00:02:29] Speaker 00:
It's an explanation.

[00:02:31] Speaker 00:
It's an analysis of the facts in the case.

[00:02:35] Speaker 00:
regarding the fact that the immigration judge was giving her own solutions to the problem, these solutions were not, the petitioner was not given an opportunity to respond to these because these were articulated in the immigration judge's decision.

[00:02:53] Speaker 00:
And as we noted in the reply brief, when an argument

[00:03:04] Speaker 00:
is not briefed.

[00:03:06] Speaker 00:
It is not considered waived when the government responds to it and they're answering brief.

[00:03:11] Speaker 00:
So.

[00:03:12] Speaker 04:
Could you agree that this is a mixed question of fact and law?

[00:03:18] Speaker 00:
Yes, exactly, Your Honor.

[00:03:19] Speaker 00:
It is the mixed question of fact and law.

[00:03:21] Speaker 04:
Why should we apply abusive discretion review?

[00:03:26] Speaker 00:
The Supreme Court in Wilkinson v. Garland indicated that this type of analysis is a mixed question of fact and law and it is reviewable by the circuit courts of appeals.

[00:03:39] Speaker 00:
Regarding the standard of review, the Ninth Circuit has yet to articulate a particular standard of review.

[00:03:47] Speaker 00:
It dealt with this issue of Wilkinson v. Garland

[00:03:54] Speaker 00:
in Magana Magana and it said that in a small note that it was considering the analysis under abuse of discretion.

[00:04:04] Speaker 00:
And so the third circuit has indicated that they're adopting a substantial evidence standard and the fourth circuit has declined to set a standard only indicating that the standard is deferential.

[00:04:20] Speaker 00:
So if the court decides to issue an opinion about the standard, we would ask that it be abusive discretion.

[00:04:29] Speaker 03:
As opposed to substantial evidence.

[00:04:32] Speaker 02:
Yes.

[00:04:32] Speaker 02:
So what's the difference in practical application?

[00:04:34] Speaker 02:
I mean, I get the difference.

[00:04:37] Speaker 02:
Wilkinson says deferential.

[00:04:39] Speaker 02:
It doesn't tell us anything more precise.

[00:04:42] Speaker 02:
What's the difference between these competing standards?

[00:04:45] Speaker 00:
Well, the amount of deference that's owed to the lower courts.

[00:04:51] Speaker 00:
And so I think even for instance, the standard substantial evidence, it uses the word evidence.

[00:05:01] Speaker 00:
I mean, you have to look at the evidence and the facts of the situation in order to analyze the situation.

[00:05:09] Speaker 00:
I understand it's a very difficult task for the court because

[00:05:14] Speaker 00:
the amount of deference that is owed is not very clear at this point.

[00:05:18] Speaker 03:
Maybe, I mean, say we do apply abuse of discretion, which is what you're advocating for and may be correct.

[00:05:26] Speaker 03:
Why do you win?

[00:05:27] Speaker 03:
I mean, at the end of the day, I'm not sure.

[00:05:31] Speaker 03:
There's clearly substantial evidence, I think, and I'm not sure that you have a much better argument under abuse of discretion.

[00:05:38] Speaker 03:
I mean, why, you basically have to say that nobody could reach that same result, don't you?

[00:05:43] Speaker 00:
Well, Your Honor, I think under either standard, the petitioner would win.

[00:05:49] Speaker 00:
The medical hardship is extreme and exceptional.

[00:05:55] Speaker 00:
I mean, the petitioner's qualifying relative, his wife, has uncontrolled insulin-dependent diabetes with unexpected episodes of hypoglycemia, carpal tunnel surgery with lingering effects of pain, numbness, and weakness, blurry vision, high blood pressure.

[00:06:14] Speaker 00:
pain at different parts of her body, back, pelvis, leg, which makes her unable to walk, nausea, fatigue.

[00:06:20] Speaker 03:
Everything you're saying is just playing into the idea that this is factual.

[00:06:25] Speaker 03:
I mean, it may be a mixed question of fact and law, but even the Supreme Court said not all mixed questions of fact and law are equally presented.

[00:06:35] Speaker 03:
And everything you're saying are all facts.

[00:06:38] Speaker 03:
I mean, where's the legal hook that

[00:06:40] Speaker 00:
They are all facts, but it is the application of these facts to the standard, which is what is that issue before the court.

[00:06:50] Speaker 03:
I guess my point is that you're giving the facts that you think that the IJ should have.

[00:07:01] Speaker 03:
should have found, but he didn't.

[00:07:06] Speaker 03:
I'm just saying he didn't.

[00:07:08] Speaker 03:
We've got to look at that and say, yeah, you can pitch this in a way.

[00:07:12] Speaker 02:
The IJ didn't quarrel with what you say.

[00:07:15] Speaker 02:
The IJ just said that didn't satisfy the standard.

[00:07:19] Speaker 02:
The IJ was not quarreling with the evidence in front of him.

[00:07:23] Speaker 00:
Right, except the IJ, she... Or she has, you should say.

[00:07:27] Speaker 00:
Yes.

[00:07:28] Speaker 00:
She talked about the fact that the diabetes was difficult to control, and then in her illegal analysis of the facts, she states it's a manageable condition.

[00:07:39] Speaker 02:
And then she describes the ways in which it can be managed.

[00:07:41] Speaker 00:
Right.

[00:07:42] Speaker 02:
She says you can put the stuff beside the bed.

[00:07:44] Speaker 02:
I mean, she could get somebody else to hook up the trailer.

[00:07:48] Speaker 00:
Exactly.

[00:07:52] Speaker 00:
Like I said, the petitioner and his wife were not able to respond to these assumptions.

[00:07:57] Speaker 00:
And the fact that she describes it and then minimizes it is a legal conclusion.

[00:08:09] Speaker 03:
Well, is it a legal conclusion?

[00:08:10] Speaker 03:
I mean, that's the question.

[00:08:13] Speaker 03:
Because it's still a factual determination whether

[00:08:18] Speaker 03:
you could minimize it.

[00:08:20] Speaker 03:
And I guess that's why, why is it an abuse of discretion that when the IJ said you can take these steps to minimize the serious medical problems you're facing, why is that an abuse of discretion?

[00:08:39] Speaker 00:
Because it doesn't, the IJ found both the petitioner and his wife credible.

[00:08:47] Speaker 00:
And so the testimony should be given full weight.

[00:08:50] Speaker 00:
And then basically, she inserts her own version of facts that were not established in the record.

[00:08:58] Speaker 00:
So that is an abuse of discretion.

[00:09:00] Speaker 04:
You're saying that because the question wasn't asked, could you put the injection next to the bed that it shouldn't be considered?

[00:09:12] Speaker 00:
Right.

[00:09:13] Speaker 00:
Yes.

[00:09:20] Speaker 00:
I just want to talk briefly about the fact of the seriousness of the hardship.

[00:09:31] Speaker 00:
Ms.

[00:09:33] Speaker 00:
Rubio, the petitioner's wife, is afraid that she will die because of her medical issues with diabetes.

[00:09:40] Speaker 00:
Additionally, there's emotional hardship.

[00:09:45] Speaker 00:
She's an older woman who's 54.

[00:09:50] Speaker 00:
And then there's the fact that she has her brother who suffered a stroke and is in a wheelchair living with her, so there is that strain on the family as well as her 84-year-old mother who maybe we could agree she is older.

[00:10:20] Speaker 00:
And then there's also the economic hardship, which I think is very serious in this case because of her disability and the fact that the petitioner is the main provider financially in the family and would only earn $5 a day in Mexico.

[00:10:38] Speaker 00:
And that hardship that he would experience then flows to the qualifying relative because she would not be able to support herself

[00:10:50] Speaker 00:
possibly could lose the home, et cetera.

[00:10:53] Speaker 00:
So I'm gonna reserve some time for rebuttal.

[00:10:55] Speaker 00:
Okay, thank you.

[00:10:56] Speaker 00:
Thank you.

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

[00:11:12] Speaker 01:
May it please the Court, Christopher Giger for the Attorney General.

[00:11:15] Speaker 01:
Your Honors, I have two points.

[00:11:16] Speaker 01:
First, the Court should dismiss this petition because the petitioner's arguments ultimately challenge the agency's factual findings, which are not reviewable.

[00:11:24] Speaker 04:
Should we ignore Wilkinson?

[00:11:27] Speaker 01:
No, your honor.

[00:11:28] Speaker 01:
And if the petitioner was presenting an argument that challenged or applied undisputed facts to the hardship standard, then certainly the court would have review.

[00:11:37] Speaker 01:
But here the government's position is that when actually looking at the petitioner's arguments in our opening brief and reply brief,

[00:11:44] Speaker 01:
the petitioner is only challenging the or is the petitioner is disputing the the facts well no i understand that the facts were not not with the testimony the ij's believes all the testimony why are you saying the facts are disputed uh specifically with the challenges that the petitioner makes in

[00:12:04] Speaker 01:
in his opening brief and particularly I think if we look at the reply brief this summarizes on page 7, 8 of the reply brief petitioner summarize their arguments that the as judge Wallach you brought up that the immigration judge in the board incorrectly applied the standard including weighing of the evidence and applying proper weight to the evidence.

[00:12:26] Speaker 02:
Yeah, but that's not a dispute as to what happened or the or the degree of disability.

[00:12:31] Speaker 02:
That's not a dispute as to what the facts are.

[00:12:34] Speaker 01:
It's a dispute as to how you treat the facts.

[00:12:37] Speaker 01:
I respectfully disagree, Your Honor, because as the Supreme Court recently noted in Buffen v. Collins, weighing of the evidence is inherently factual.

[00:12:44] Speaker 01:
And so when the petitioner is challenging... Wait a minute.

[00:12:48] Speaker 02:
There is evidence...

[00:12:50] Speaker 02:
And then there's the weighing of the evidence.

[00:12:52] Speaker 02:
I'm asking as to whether is there any dispute about what the evidence is?

[00:12:57] Speaker 02:
And I don't think there is a dispute as to that.

[00:12:59] Speaker 01:
Your honor, the government's position is that the petitioner has disputed what the evidence is.

[00:13:04] Speaker 01:
For example, on page 19 and 20 of the petitioner's opening brief, they challenge the immigration judges finding that Mrs. Rubio could use an alternative form of transportation.

[00:13:18] Speaker 01:
The petitioner in his opening briefing alleges that that's not possible challenging what the hardship what what could happen and secondly on page 20 of the opening brief.

[00:13:29] Speaker 01:
As it relates to the immigration judge's finding that Mrs. Rubio could keep sweets next to her bed in the event of a medical episode, the petitioner asserts that the immigration judge erred by downplaying the severity of her condition.

[00:13:42] Speaker 01:
And in Wilkinson, the Supreme Court has explained that the seriousness of a medical condition is an example of a factual finding that this court can't review.

[00:13:50] Speaker 03:
So maybe let me try and frame it up, because it seems like there's no dispute about the medical condition.

[00:13:58] Speaker 03:
The dispute is all about whether there's mitigating factors that can address the consequences of the medical condition.

[00:14:08] Speaker 03:
But in your opinion, that's, in your view, in the government's view, that's still a factual finding.

[00:14:14] Speaker 01:
Yes, Your Honor, particularly in this case with the manner that the petitioner frames the argument, because asserting that the immigration judge improperly found her conditions to be manageable, that is inherently addressing the seriousness of her medical conditions.

[00:14:33] Speaker 01:
So it's the government's position that these are factual challenges that the petitioner is disputing, and the court doesn't have jurisdiction to review those.

[00:14:44] Speaker 04:
I expect to be able to rely on the government for fair analysis.

[00:14:48] Speaker 04:
Do you say due process in the Blueberry?

[00:14:52] Speaker 01:
No, Your Honor, due process was cited.

[00:14:58] Speaker 01:
Case law relating to a neutral fact finder was referenced in the opening brief, but there was no analysis that actually challenged that Mr. Rubio or Mrs. Rubio did not have a neutral fact finder.

[00:15:12] Speaker 01:
So the government's position is that that is waived.

[00:15:14] Speaker 01:
And I think the reply brief concedes that there was not a neutral fact finder argument raised.

[00:15:22] Speaker 01:
But I would also like to address the court's questions about if there were reviewable arguments that this court could review, that substantial evidence is the correct standard or the most applicable standard that should be applied here.

[00:15:38] Speaker 01:
The government's position is that substantial evidence is consistent with both the INA and with recent Supreme Court precedent.

[00:15:45] Speaker 02:
What's the difference in practical application between the two standards that we're talking about?

[00:15:50] Speaker 01:
Practically speaking, Your Honor, there probably is not much of a difference when it comes to, when it really gets down to it.

[00:15:56] Speaker 02:
Yes.

[00:15:57] Speaker 02:
I mean, this may be giving away a judicial secret as to me, but I mean, I look at those two things and I kind of say, well, is this about right?

[00:16:05] Speaker 02:
Is this close enough?

[00:16:06] Speaker 02:
I mean, it's hard for me to see the operational difference between the two.

[00:16:11] Speaker 01:
Yes.

[00:16:12] Speaker 01:
And they're really, Your Honor, the government's position is that in actuality there are

[00:16:16] Speaker 01:
probably very minute practical differences, but in terms in this case, your honor, the government position is that regardless of abuse of discretion or substantial evidence here, the hardship that Mrs. Rubio would experience does not rise to the high level of exceptional and extremely unusual hardship.

[00:16:37] Speaker 01:
But I will just note for the record that substantial evidence is consistent with the INA under 1252 B4B.

[00:16:44] Speaker 01:
That supplies the courts of appeals with the standard of review.

[00:16:49] Speaker 01:
And where here cancellation as the Supreme Court noted in Wilkinson, this is a primarily factual inquiry.

[00:16:55] Speaker 01:
And so it makes sense for the court to utilize the factual standard of review that concerns petitions for review.

[00:17:04] Speaker 01:
And the Supreme Court also recently in Buffen versus Collins, which we provided a 28-J letter on, utilized a similar or came to the similar conclusion

[00:17:14] Speaker 01:
in terms of the Veterans Court standard of review and reviewing the VA's application of the benefit of the doubt doctrine.

[00:17:21] Speaker 01:
There 38 USC section 7261 provided clear error review for factual questions to the Veterans Court and the court determined that when there's a primarily factual inquiry, which is ultimately what the benefit of the doubt doctrine was, it made sense to utilize the factual standard.

[00:17:41] Speaker 01:
So to here, the court should adopt the substantial evidence standard.

[00:17:46] Speaker 01:
And I will just briefly note that here, applying the substantial evidence review, Mr. Rubio has not established that the hardship his wife would experience is exceptional and extremely unusual.

[00:17:59] Speaker 01:
This is a very high burden with a very low statutory cap.

[00:18:04] Speaker 01:
I will note that

[00:18:06] Speaker 01:
His wife's will still have access to her medical insurance, which covers her health care, her prescriptions and her treatment plans.

[00:18:15] Speaker 01:
She also has significant assets in this country, which the board and matter of and Azola had noted was a significant factor in determining whether.

[00:18:24] Speaker 01:
hardship was met.

[00:18:25] Speaker 01:
She has they own a home with over $100,000 in equity.

[00:18:29] Speaker 01:
They own a investment property that's worth approximately 6 to $18,000.

[00:18:34] Speaker 01:
They own two cars.

[00:18:36] Speaker 01:
She also has two adult Children within an hour of her.

[00:18:40] Speaker 01:
And as my friend on the other side noted, she does live with her brother who is wheelchair bound.

[00:18:46] Speaker 01:
But she tested Mrs Rubio testified to the fact that he's not dependent on her and has his own retirement

[00:18:53] Speaker 01:
So ultimately, under substantial evidence or abuse of discretion, but we urge the court to adopt substantial evidence, it supports the agency's decision.

[00:19:03] Speaker 01:
So unless the court has any further questions.

[00:19:06] Speaker 01:
Thank you.

[00:19:06] Speaker 01:
Thank you.

[00:19:07] Speaker 03:
We'll give you time for rebuttal.

[00:19:14] Speaker 04:
Please talk about the 28-J letter.

[00:19:19] Speaker 00:
I think the question before the court is, what is the review that the Supreme Court anticipated in Wilkinson v. Garland?

[00:19:29] Speaker 00:
Because here we are looking at factual issues and then how they are applied to the standard.

[00:19:36] Speaker 00:
So I think that the court is empowered to look at this case and articulate a standard.

[00:19:43] Speaker 00:
Articulate what the standard is under Loper-Bright

[00:19:47] Speaker 00:
of what exceptional and extremely unusual hardship is and whether or not the facts in this case compel a finding of exceptional and extremely unusual hardship.

[00:19:59] Speaker 03:
But doesn't, I mean, ultimately, doesn't that all hinge on whether the medical condition is manageable?

[00:20:06] Speaker 03:
Because if it's manageable, then it seems to not meet the standard.

[00:20:12] Speaker 03:
If it's not manageable, then it might meet the standard.

[00:20:17] Speaker 03:
To me, it all comes down to a factual issue of whether the disease is manageable or not.

[00:20:26] Speaker 00:
Well, the disease, the respondent's wife, Mrs. Rubio, explained how it's not manageable.

[00:20:33] Speaker 00:
I mean, in the evidence, in the testimony, she talked about the fact that the doctors are perplexed about why she keeps having hyperglycemia episodes, how she can't drive because of the blurry vision.

[00:20:46] Speaker 00:
how she wakes up in the middle of the night unable to speak and unable to walk.

[00:20:51] Speaker 00:
I mean, not alone.

[00:20:52] Speaker 00:
If she's waking up in the middle of the night unable to walk or speak and then she's supposed to somehow with knowledge grab a suite by her bed, that's not reasonable.

[00:21:07] Speaker 03:
But don't you see how everything you're arguing is all factual?

[00:21:11] Speaker 00:
Right.

[00:21:12] Speaker 03:
It's not legal.

[00:21:13] Speaker 00:
I understand, but the conclusion that those facts are manageable is a legal conclusion.

[00:21:19] Speaker 03:
I'm not sure that's correct.

[00:21:23] Speaker 03:
I mean, how is that a legal conclusion?

[00:21:25] Speaker 03:
That's a factual conclusion.

[00:21:27] Speaker 03:
I mean, the consequences of whether it's manageable under the standard is a legal application, but not whether it's manageable.

[00:21:36] Speaker 03:
I mean, that has to be a factual determination.

[00:21:39] Speaker 00:
Well, Your Honor, I would read

[00:21:42] Speaker 00:
I agree it is a legal conclusion, however, the legal conclusion, or excuse me, a factual conclusion, however, the factual conclusion is, we would argue, is an abuse of discretion, yes.

[00:21:54] Speaker 00:
And we just asked the court to grant the petition for review with the finding that exceptional and extremely unusual hardship has been met.

[00:22:06] Speaker 00:
remand the case for further consideration of the evidence that was extrapolated by the judge regarding the possibility of managing the diabetes.

[00:22:19] Speaker 00:
Thank you.

[00:22:20] Speaker 03:
Okay, thank you.

[00:22:21] Speaker 03:
Thank you to both counsel for your arguments.

[00:22:22] Speaker 03:
In the case, the case is now submitted and that concludes our arguments for the morning.