[00:00:07] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:00:09] Speaker 01:
Eric Rodriguez from O'Malbany and Myers, pro bono counsel for petitioner Mario Sandoval-Gomez.

[00:00:13] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:00:16] Speaker 01:
Your Honors, nearly 15 years ago, an immigration judge found that Mr. Sandoval merited cancellation of removal and had granted his application, which meant he had the right to remain in the United States.

[00:00:27] Speaker 01:
But due to various appeals, this longtime legal permanent resident with four adult children, all of whom are US citizens, was deported and has been forced to remain in Mexico for over a decade.

[00:00:37] Speaker 01:
In this appeal, the government concedes that we are correct about the central case law, yet it claims that it does not matter.

[00:00:43] Speaker 01:
But it does.

[00:00:45] Speaker 01:
Because the BIA misunderstood Supreme Court President, it incorrectly believed that it could not consider Mr. Sandoval's undisputed, on-the-record testimony about his offense, nor permit him to supplement it, for him to show that he is eligible for cancellation of removal, which is a step necessary for him to be reunited with his family in the United States.

[00:01:04] Speaker 01:
Indeed, because the limited conviction records in this case do not reveal how Mr. Sandoval Gomez committed his offense, testimony, again already on the record, unrebutted, and which he is offered to supplement, is necessary for him to show that he did not commit a disqualifying offense.

[00:01:20] Speaker 01:
Yet the BIA incorrectly held that it could not consider his testimony that was already in the record.

[00:01:26] Speaker 01:
To correct the BIA's error on the most crucial point, this case must be amended for Mr. Sandoval to supplement the record and show that he is eligible for relief.

[00:01:35] Speaker 00:
And is the reason the BIA did what they did and the position the government takes now that they believe that in these circumstances the alien is limited to shepherd type documents?

[00:01:52] Speaker 00:
Is that really the basis of the government's position?

[00:01:55] Speaker 01:
That's right your honor that that's what the bia order states that the bia believed it could not consider records outside of the typical shepherd conviction records and so it thought the testimony was not part of what it could consider for the Applicant to show that he is eligible for relief and then the remand that this court made Did it place any such limitation on the bia?

[00:02:19] Speaker 01:
It did not place that limitation or any such limitation on the BIA.

[00:02:22] Speaker 01:
It simply said that the BIA had not ruled on whether he was eligible for cancellation of removal.

[00:02:27] Speaker 01:
And so it sent it back down to the BIA.

[00:02:29] Speaker 01:
At the BIA, we argued that the government had waived that argument that he didn't merit cancellation of removal since an IJ had already in 2010 found that he did.

[00:02:40] Speaker 01:
The BIA disagreed with us, but in our BIA brief, we also said that if the government, if the BIA believed that he was not statutorily eligible, which would be step zero of cancellation of removal, then he should be permitted to provide additional testimony.

[00:02:55] Speaker 01:
And we pointed to the testimony already on the record that sheds light on how he committed his offense.

[00:03:00] Speaker 03:
So could I ask, is it your position that if the testimony that already exists is credited, then he,

[00:03:09] Speaker 01:
Already gets relief they don't he doesn't actually need additional testimony Your honor we believed if the BIA had reviewed the testimony that's already in the record

[00:03:18] Speaker 01:
that the record is not inconclusive and that he would meet his burden.

[00:03:21] Speaker 01:
For example, it shows that he did not intend at any point to set any fire.

[00:03:25] Speaker 01:
This court in 2021, in this case, had said there's three ways of committing attempted arson.

[00:03:30] Speaker 01:
The question isn't whether he was convicted of attempted arson, but how did he commit it?

[00:03:34] Speaker 01:
Which of the three ways did he commit it?

[00:03:36] Speaker 01:
And we believe the existing testimony on the record will show that he did not commit it in the way that would be disqualifying for him.

[00:03:42] Speaker 03:
I was trying to figure out whether the BIA could itself just say,

[00:03:48] Speaker 03:
Now that we know we can consider the testimony, he wins.

[00:03:52] Speaker 03:
Or whether it needs to go to an IJ to make a credibility determination.

[00:03:56] Speaker 03:
Because I wasn't sure anyone had made a credibility determination really ever about this yet.

[00:04:00] Speaker 01:
Your honor, we believe there was some sort of credibility determination made at the IJ.

[00:04:04] Speaker 01:
When Mr. Sandoval supplied this testimony, it was in the cancellation of removal context.

[00:04:10] Speaker 01:
So the IJ was weighing the equities to see whether he merited cancellation.

[00:04:16] Speaker 01:
And in that context, they asked about how his offense was committed.

[00:04:20] Speaker 01:
We see an attempted arson conviction here.

[00:04:22] Speaker 01:
Mr. Sandoval testified to it.

[00:04:24] Speaker 01:
And in his oral order, granting cancellation of removal,

[00:04:28] Speaker 01:
The IJ said that Mr. Sandoval indicated that he did not intend to set any fire, that he did not intend to harm anyone, and it considered that.

[00:04:36] Speaker 03:
So it sounds like you're reading that recitation as saying that it was credible.

[00:04:42] Speaker 03:
I couldn't tell whether the IJ was just saying, here's what he testified, because ultimately the IJ did say that the positive equities outweighed the negative, but it seemed to put the crime on the negative balance.

[00:04:51] Speaker 03:
So it was a little hard to tell, I thought.

[00:04:53] Speaker 03:
But do you have a reason why we should read it the way you're saying?

[00:04:56] Speaker 01:
It's not 100% clear your honor, but I would read it as favorably crediting it because ultimately he did grant the cancellation of removal and so looking at attempted arson offense and seeing that okay Yes, he sprinkled gasoline, but he did not attempt to set any fire It's on the record, but there's no means to set a fire for example that sort of thing would support granting cancellation And that's why the ij in our mind had credited it favorably and pointed it out It's correct that the ij did not kind of parse

[00:05:26] Speaker 00:
Relevant statute the divisibility of the statute and the four parts and so on and that's right your honor because that occurred in 2010 So we have his testimony twice on this so what more would need to be done

[00:05:40] Speaker 01:
For example your honor we would flush out the series of events to show to support his Testimony that he did not intend to commit any fire for example.

[00:05:49] Speaker 01:
We can point out that he had no means to set a fire There was no sort of planning involved.

[00:05:54] Speaker 01:
What were his goals and putting the gasoline?

[00:05:57] Speaker 01:
Clarifying why there was no intent so because the last time we were at the ij we had no motivation or incentive to

[00:06:04] Speaker 01:
Show okay, he's at step zero eligible statutorily for it and now let's develop direct lines of testimony to show Why he would meet his burden now for the very first time back at the Bia the burden was put back on us And that's why we requested to go back to the IJ for the first time to prevent it wasn't a burden always on you I mean you have to get entitlement to this discretionary relief

[00:06:26] Speaker 01:
No your honor the very first time the burden was put on us to show that he's eligible for cancellation of removal under his attempted arson offense and to show which of the three ways he committed it was back at the BIA in 2021.

[00:06:39] Speaker 01:
So in 2010 when this testimony was given to an IJ we weren't debating whether he was statutorily eligible and this court hadn't held that the attempted arson offense can be broken down into three ways under the modified categorical approach.

[00:06:53] Speaker 02:
Yeah I mean I think you know the case has gone on a long time

[00:06:56] Speaker 02:
I'm trying to understand, you know, the BIA, it seems to both sides agree, misunderstood Pareta.

[00:07:02] Speaker 02:
But in terms of what needs to happen next, we have two rounds of testimony from your client about this.

[00:07:08] Speaker 02:
And we went back to, from this court's last remand to the BIA, there wasn't really a proffer of other evidence that you would show.

[00:07:15] Speaker 02:
We have the suggestion that maybe the mother would testify.

[00:07:18] Speaker 02:
I'm not sure what she would say or if she was even there.

[00:07:21] Speaker 02:
And the same with the ex-girlfriend.

[00:07:23] Speaker 01:
Your Honor, and the reason for that was that the BIA generally doesn't consider new evidence.

[00:07:29] Speaker 01:
It doesn't engage in fact-finding.

[00:07:31] Speaker 01:
And so we believe it.

[00:07:31] Speaker 02:
That's fair.

[00:07:32] Speaker 02:
But you still, if you want to have more proceedings, usually you tell us or them, here's what we would do.

[00:07:37] Speaker 02:
And we don't have that.

[00:07:38] Speaker 01:
Well your honor the BIA did consider our request to rewind so it did see our request and say okay they want to go back to the IJ now let me see should it go back to the IJ.

[00:07:48] Speaker 02:
But their reason for that was not a good reason which was that they can't consider it everyone seems to agree that's not correct.

[00:07:54] Speaker 00:
And you would put to the the BIA then in general terms the kind of additional evidence you would submit.

[00:08:02] Speaker 00:
That's right your honor.

[00:08:04] Speaker 01:
But it's also it sounds like you're arguing an alternative if I'm understanding correctly because I think part of your argument is you don't even need additional evidence You don't even need additional testimony because it already is in the record or honor We believe that if the Bia had evaluated the existing record the existing testimony that our client would win but since the burden was placed on us for the very first time the last time with the Bia and since it's on us by the preponderance of the evidence to show that he needs his burden we would like to flesh out the series of events since we've never had that chance

[00:08:32] Speaker 03:
Okay, but is that argument in the alternative or is that your only argument because I thought my exchange with you earlier was if we read your position I thought what?

[00:08:41] Speaker 03:
We may or may not be persuaded by it, but I thought your position was the earlier IJ made a credibility determination This was treated as credible once that happens once the Bia understands it can consider it We just win we don't need more testimony wasn't that your first position.

[00:08:55] Speaker 02:
Yes, your honor It isn't the alternative and so okay, but so what do you what what do you want?

[00:08:59] Speaker 02:
What's your first ask here in terms of what should, if this goes back down, what do you want?

[00:09:04] Speaker 01:
Our first ask would be that it goes back down to the IJ because we want to develop the factual record and we believe it's most appropriate that the baseline procedure for that to happen at the IJ.

[00:09:14] Speaker 00:
That's nice of you, but wouldn't you rather if we say the BIA can consider this material, wouldn't you say A, we should win,

[00:09:24] Speaker 00:
But if you don't think we should win, we should get more evidence.

[00:09:28] Speaker 00:
Wouldn't that be the logic tree?

[00:09:29] Speaker 00:
I mean, it's nice of you to say that it has to go back to the IJ, but I just wondered.

[00:09:35] Speaker 00:
Wouldn't you say there's enough in the record that the BIA ought to give you the win?

[00:09:40] Speaker 01:
Your Honor, we do believe that because the existing record would be sufficient that if the BIA evaluated it.

[00:09:45] Speaker 00:
If they don't believe it, they might say, you know, we're not equipped to evaluate the credibility on a cold record.

[00:09:52] Speaker 01:
That's right, Your Honor.

[00:09:53] Speaker 01:
The BIA could evaluate it, perhaps determine it doesn't meet, but allow him to remand back.

[00:09:59] Speaker 03:
If there's this ambiguity about whether the first IJ made a credibility determination, is that something we should evaluate or we should ask the BIA to evaluate?

[00:10:06] Speaker 03:
Or who could decide whether the first IJ made a credibility determination implicitly?

[00:10:12] Speaker 01:
We believe the BIA would evaluate that if it's the one looking at the existing record to see what he testified to us to the series of events.

[00:10:19] Speaker 02:
Why not send this back to the BIA and let them

[00:10:21] Speaker 02:
Your positions on what should happen next that is one of the paths that we believe is acceptable here your honor and So would you be happy if we just say this goes to Bia or do you want us to say something about the Bia sending it to the ij We would prefer that it be sent back down to the ij so we could further develop the record Yeah, I mean my concern with the island It doesn't not clear to me why the Bia wouldn't get to evaluate that request in the first instance and one thing that

[00:10:49] Speaker 02:
is somewhat concerning about your position is this idea where we need to have more evidence developed, but we haven't heard what that evidence would even be.

[00:10:57] Speaker 02:
You know, and I hear, keep hearing one with a span, we're going to flesh out, but it's not like the record's bare.

[00:11:01] Speaker 02:
There is testimony from your client saying, I didn't intend to set a car on fire, and that can be evaluated for what it's worth, and presumably the other witnesses would say, yeah, that's exactly what happened to the extent they were there and saw it.

[00:11:14] Speaker 01:
Your honor yes on that point we believe that if the Bia evaluated it and it believed that that would be sufficient then it would grant It would find that he's eligible for cancellation of removal and if it finds that there's not enough evidence And we would believe it'd be permissible for the Bia to then decide that it should go back to the IJ Was the mother there?

[00:11:34] Speaker 01:
the mother Based on the record in the testimony your honor it is unclear at some points because he refers to she but it's unclear whether he's referring to the mother or to her

[00:11:45] Speaker 01:
I'm sorry her mother was there, but it's unclear at some points whether the girlfriend was there Yes But you're saying now that the girlfriend and the girlfriend's mother would testify before the IJ if there was an opportunity We believe we would we would hope that we'd be able to get them to test what would they say I mean we haven't been told anything about what the girlfriend or the mother would say about this

[00:12:10] Speaker 01:
For example your honor they could say whether they saw that he had any means to light any fire and that we could say a lot of things But what would they say right and we don't know there's nothing in the record that would give us any hint of that I can't speak on that right now your honor Do you want to reserve the remaining time yes, thank you great

[00:12:41] Speaker 04:
Good morning, your honors.

[00:12:42] Speaker 04:
May it please the court?

[00:12:43] Speaker 04:
My name is Jocelyn Wright.

[00:12:44] Speaker 04:
I'm here on behalf of respondent, the United States Attorney General.

[00:12:48] Speaker 04:
Let me first address Judge Boggs' comment earlier about what the government believes.

[00:12:54] Speaker 04:
It can rely on the Shepard documents only.

[00:12:58] Speaker 04:
That is not what happened in this case.

[00:13:00] Speaker 04:
When this court remanded to the Board of Immigration Appeals for a determination on Mr. Sandoval's eligibility for LPR cancellation of removal,

[00:13:11] Speaker 04:
It explicitly said, and this is at the record at, I believe, 404, I'm sorry, 405, based on the record before us, we cannot determine how Sandoval Gomez committed the attempted arson offense.

[00:13:28] Speaker 04:
Thus, the record is inconclusive as to whether he is convicted of an aggravated felony.

[00:13:34] Speaker 00:
This is the BIA in 2021?

[00:13:36] Speaker 04:
No, this was the Ninth Circuit panel in 2021.

[00:13:41] Speaker 04:
It didn't say the record of conviction.

[00:13:43] Speaker 04:
It said the record.

[00:13:44] Speaker 04:
And the record, keep in mind that the court was considering this case after Pareto already came down.

[00:13:51] Speaker 04:
And Pareto was explicit that whoever bears the burden of proof in immigration proceedings is not limited to considering just the Shepard documents.

[00:14:00] Speaker 02:
So what does this get us?

[00:14:02] Speaker 04:
It means that the Ninth Circuit already considered this entire record, including the testimony that's in it.

[00:14:09] Speaker 04:
and said, this is inconclusive as to the aggravated felony question.

[00:14:12] Speaker 02:
But there was also a request in the BIA to supplement the record.

[00:14:16] Speaker 04:
Right.

[00:14:16] Speaker 04:
But as you kept pointing out, Your Honor, it has never been specified what evidence would be considered.

[00:14:24] Speaker 02:
No, I have that concern.

[00:14:25] Speaker 02:
But the BIA didn't say that.

[00:14:26] Speaker 02:
The BIA said, well, any evidence that could be developed would be irrelevant under Parade because we couldn't consider the evidence.

[00:14:33] Speaker 04:
Well, the testimony.

[00:14:33] Speaker 04:
But at the same time, he didn't submit any other documents into the evidence once the case was below.

[00:14:39] Speaker 02:
No, I have that concern myself, but at the same time, the BIA could have allowed him to do so.

[00:14:46] Speaker 02:
That would be their decision.

[00:14:48] Speaker 04:
Right, and the BIA did.

[00:14:49] Speaker 04:
The BIA said on remand, both parties have the opportunity to file any submissions.

[00:14:54] Speaker 03:
But they never said if you want to have more testimony, you should tell us what it is, right?

[00:14:59] Speaker 04:
No, but file any submissions means including a proffer of I want to testify that.

[00:15:04] Speaker 04:
And to that point, I just want to make clear,

[00:15:08] Speaker 04:
The consideration of testimony, even under Pareta, is very limited, for the very limited purpose of determining under what part of the divisible statute was Mr. Sandoval convicted.

[00:15:19] Speaker 04:
His argument, or his proffer of testimony, and he says he doesn't even know what the ex-girlfriend and the ex-girlfriend's mother would testify to, is that he could say that he did not have the intent.

[00:15:33] Speaker 04:
But intent is irrelevant for purposes of determining whether or not which part of the

[00:15:38] Speaker 04:
the statute he was convicted under, because the entire statute under California law is a specific intent crime.

[00:15:45] Speaker 04:
Attempted arson under California law is a specific intent crime.

[00:15:48] Speaker 04:
You have to plead to that element in order to be convicted in the first instance.

[00:15:52] Speaker 04:
And so the question before this court and the board is which part attempt to burn, et cetera, two or three.

[00:16:00] Speaker 04:
And two and three, according to the previous panel, would not qualify as an aggravated felony.

[00:16:05] Speaker 04:
But I have yet to hear any

[00:16:07] Speaker 04:
Evidence or any proffer that he would say I was not convinced.

[00:16:11] Speaker 03:
I pled guilty to three rather than one Sorry, can you remind me what you think if you think it's not intent what what does make the difference between three and one and two and I don't know it's it would be the because The court had said this is a divisible statute and to write so can you remind me you're saying intent is not the difference So what is the difference between just remind me what what makes it one two or three and?

[00:16:35] Speaker 03:
It's the attempt to burn

[00:16:37] Speaker 04:
Is is the only one because it fits these is an act preliminary to an act preliminary to and this is an attempt isn't I'm just confused that about your idea that intent isn't the relevant thing because Isn't that what attempt means well, but the evidence okay, so stepping back a little bit the testimony and the record and the evidence is I think goes towards either one or three if it's one He's an aggravated felon if it's three then he's not under the court's

[00:17:08] Speaker 04:
Divisibility analysis under the modified categorical approach and how do we distinguish one in three whether it's intent to burn right well?

[00:17:14] Speaker 04:
No because he would have to say my plea colloquy says that I pled guilty to three not one or the prosecutor and my my former attorney my defense attorney Negotiated a plea and it was to three not to one.

[00:17:30] Speaker 04:
That's the kind of evidence That's the kind of proper not any testimony about his I didn't I didn't intend to burn it because again

[00:17:37] Speaker 04:
in order to be convicted under the statute.

[00:17:38] Speaker 00:
What is the difference between one and three, as Judge Friedland has asked?

[00:17:42] Speaker 04:
Oh, well, the third one is commit preliminary act thereto, in furtherance of.

[00:17:48] Speaker 00:
Okay, so the preliminary act would be sprinkling the gasoline, and so what would bring it under one?

[00:17:57] Speaker 04:
Because it would be with the intent of burning the property.

[00:18:03] Speaker 03:
So intent is the difference?

[00:18:05] Speaker 00:
No, because intent to sprinkle the gasoline.

[00:18:09] Speaker 00:
Right.

[00:18:09] Speaker 04:
The intent to burn, the ultimate intent to burn the property that he sprinkled gasoline on.

[00:18:15] Speaker 04:
That is the intent for attempt under the attempt statute.

[00:18:21] Speaker 04:
And California law is very clear on that.

[00:18:23] Speaker 00:
But then really that argument is that he's, it's an aggravated felony no matter what, isn't it?

[00:18:29] Speaker 00:
You haven't given us the distinction between because this court has said that it is a divisible subject and I'm bound by what the court has said in the Law of the case Modified categorical approach makes people do funny things on both sides of the bench has been my observation Can we go back to the point you made about?

[00:18:46] Speaker 02:
the scope what what The relevance of the testimony is under Pareto because he's I didn't see necessarily see this in the briefs, but you're

[00:18:57] Speaker 02:
Your point is really what we're testifying to is what he pled to and not he can't be tested.

[00:19:03] Speaker 02:
Your position would be essentially all this testimony that exists is not relevant, but I didn't see that point in the briefs.

[00:19:09] Speaker 04:
Well, it's not relevant because, again, we're not relitigating whether there was sufficient evidence for him to be convicted under the attempted arson statute.

[00:19:17] Speaker 04:
And that's basically what that intent, what that testimony goes to.

[00:19:20] Speaker 02:
Is his testimony about what happened not informative about what he pled to?

[00:19:24] Speaker 02:
In other words, doesn't it have some relevance to this?

[00:19:28] Speaker 04:
It could, but he hasn't said why it's relevant, other than to say that I didn't intend to burn anything.

[00:19:35] Speaker 03:
But there is no... I never saw... I have the same concern as Judge Bress.

[00:19:39] Speaker 03:
This idea that it doesn't matter whether he intended to burn anything.

[00:19:42] Speaker 03:
I don't see anywhere in your brief the idea that it doesn't matter whether he intended to burn anything.

[00:19:47] Speaker 04:
Because we were not litigating the conviction, we were litigating the fact that the court has already found the record inconclusive.

[00:19:55] Speaker 04:
And that includes the evidence.

[00:19:57] Speaker 03:
Included the entire record, but you didn't say the way I mean this is just very strange I don't think you said I we read the Ninth Circuit as saying the only thing that matters is sort of what's written in the plea or something so this I'm having trouble following what you're saying now is is what you argued to us.

[00:20:15] Speaker 04:
Oh, no Okay, so what we argued in the case is that?

[00:20:18] Speaker 03:
Whether that this record is in conclude the court has already found that this entire record including the testimony the conviction record because of the questions I was just asking earlier About it's unclear from this record whether there's been a credibility determination like if there had been a credibility determination Which maybe there is I mean?

[00:20:37] Speaker 03:
Maybe we need the Bia to tell us whether or the IJ to tell us whether there's already been a credibility determination But let's just take for a second an assumption

[00:20:45] Speaker 03:
that the first IJ determined that his testimony was credible.

[00:20:49] Speaker 03:
So maybe our court in the last round couldn't tell that, but let's just for a second say we resolved that and we find out that it is a credibility determination now, maybe a year from now, that his testimony is true, that he didn't have the intent.

[00:21:03] Speaker 03:
Wouldn't that be enough then to make it clear that he is eligible?

[00:21:09] Speaker 04:
Not necessarily, Your Honor, because the attempt to burn

[00:21:14] Speaker 04:
Willfully and maliciously attempts to set fire to maliciously and and willfully applies to the entire thing the attempts to burn or to aid That's an attempt but also or commits or who willfully and malicious and who commits any act preliminary to the willful and malicious burning and if you look at the definition on the second paragraph of CPC 455 it says that

[00:21:43] Speaker 04:
The intent can be read in there for the entire statute.

[00:21:47] Speaker 02:
I always thought that, you know, the act preliminary to statutes like this would be going to buy the materials that would then cause a fire.

[00:21:58] Speaker 02:
I mean, here he poured, put, you know, gas on a car.

[00:22:01] Speaker 04:
Right, which is why, in our view, it meets the definition of an attempt to burn, the placing or distributing of any flammable explosive.

[00:22:07] Speaker 03:
But then it would have been, then there wouldn't,

[00:22:12] Speaker 04:
be uncertainty about like we said it's ambiguous right who should win not it's clear you're saying it's clear none of this matters it's very clear isn't that inconsistent with what our court said before no no no I don't think so because well because the court had already said all of this is inconclusive it's there's just not enough evidence what you're arguing today is is that it is conclusive no we're saying it remains inconclusive because he hasn't supplemented the record with any evidence to clarify

[00:22:41] Speaker 00:
So is your case whole, really whole case rest on their failure to make a proffer, not on their inability?

[00:22:49] Speaker 04:
Yes.

[00:22:50] Speaker 04:
He already had the chance before, after Pareta was decided, after this court had the benefit of Pareta and considering whether or not to remand this case.

[00:22:58] Speaker 00:
What did the BIA say to him, though?

[00:22:59] Speaker 00:
He said that, I read it as the BIA saying, there is no more relevant evidence.

[00:23:06] Speaker 04:
Right.

[00:23:06] Speaker 00:
Well, the board says... In a sense, it was saying, well, the Ninth Circuit said it's inconclusive,

[00:23:12] Speaker 00:
If it's inconclusive, you lose because you have the burden, end of case, goodbye.

[00:23:17] Speaker 00:
And they say, no, we can make it conclusive.

[00:23:21] Speaker 04:
Right.

[00:23:22] Speaker 04:
No, the board said, I believe, we can't consider testimony, additional testimony.

[00:23:26] Speaker 00:
We can't consider it.

[00:23:28] Speaker 00:
Not that we don't want to consider it, not that you haven't made a proffer to us.

[00:23:32] Speaker 00:
They said, we can't consider it.

[00:23:33] Speaker 04:
But he hasn't proffered any testimony.

[00:23:35] Speaker 00:
But they didn't say that.

[00:23:36] Speaker 00:
When the BIA said that, they were wrong, right?

[00:23:40] Speaker 00:
Because if they had made a proffer, they could consider it.

[00:23:44] Speaker 04:
But the fact remains that they did have that opportunity and they chose not to use it.

[00:23:49] Speaker 03:
But that's a different reason for denying the claim than what the BAA gave.

[00:23:53] Speaker 04:
But we've cited cases to this court where under these circumstances,

[00:23:58] Speaker 03:
They've already had a chance under under Pareta to make their case to clarify any inconsistency and inconclusiveness Pardon me inconclusiveness in the record and they didn't do that so as far as I could tell from all those cases you cited the petitioners position had never Been the thing that they're trying to say they want to argue now like he has been saying all along Here's my testimony that I never had the intent to burn and now he's saying there could be additional testimony showing that I had no intent to burn but

[00:24:26] Speaker 03:
In the case, can you cite any one of those cases where you say a proffer is needed where it wasn't like a new idea that is coming up that needs a proffer as opposed to an old idea?

[00:24:36] Speaker 04:
But, and I think the cases were, they were unpublished because I couldn't find any published cases after Pareto that this court has applied, except for Marina Lorena too.

[00:24:48] Speaker 02:
Can I ask you, your opposing counsel, we're talking now about,

[00:24:53] Speaker 02:
What should have happened after this court's 2021 remand and was it the opponent your opposing counsel took the position that there was essentially no reason or incentive even prior to that time before the IJ to further develop the record on the nature of the arson offense do you agree with that.

[00:25:13] Speaker 04:
No I don't and let me let me make one point first I think the disconnect is petitioner believes that

[00:25:23] Speaker 04:
This court that our position is that only the shepherd documents can be considered in meeting the government's burden of proof for removability.

[00:25:33] Speaker 04:
And so when this court remanded the case to the board, it only considered the shepherd documents for removability and not the testimony.

[00:25:44] Speaker 04:
The government's point of view is that no,

[00:25:47] Speaker 04:
This court already had the benefit of Pareta and its holdings that you can consider more than the shepherd documents, including testimony that's already in the record.

[00:25:57] Speaker 04:
When it said, no, this record is inconclusive, the government failed to meet its burden, because that's what Pareta says.

[00:26:04] Speaker 04:
But because the board has not determined whether or not he's eligible for, hasn't spoken on cancellation of removal, it preempted that question by concluding that he had committed an aggravated felony.

[00:26:15] Speaker 04:
And we've decided now that he hasn't,

[00:26:17] Speaker 04:
We're going to give this back to the board for it to decide in the first instance whether or not he's eligible for lpr cancellation of removal On remand to the board then the board had the same exact inconclusive record this court had already decided had already Decided was inconclusive He had an opportunity the board gave both both sides the opportunity to submit evidence in

[00:26:38] Speaker 04:
And he didn't do it.

[00:26:39] Speaker 04:
He didn't say.

[00:26:40] Speaker 03:
Well the board didn't say submit evidence.

[00:26:42] Speaker 03:
It said file submissions or something.

[00:26:43] Speaker 04:
Right.

[00:26:44] Speaker 04:
File any submissions.

[00:26:45] Speaker 04:
That's as broad an invitation as I can have the board do.

[00:26:47] Speaker 02:
I mean if the board had written a decision that said he has submitted nothing to give us reason as to why there should be further proceedings and the record as it stands is inconclusive, then this would be a pretty different case.

[00:26:58] Speaker 02:
We're stuck with the way they resolve this.

[00:27:01] Speaker 02:
Right.

[00:27:02] Speaker 04:
But I don't think that.

[00:27:02] Speaker 04:
That means that the court has to ignore what this panel, the previous panel, had already decided, which is this record is inconclusive.

[00:27:09] Speaker 04:
And this is the very record that we have.

[00:27:12] Speaker 03:
But the board had before it.

[00:27:13] Speaker 03:
Can you explain to me what proffer you think he could have made that could have made it conclusive instead of inconclusive?

[00:27:22] Speaker 04:
He could have said, my plea colloquy, here's the transcript.

[00:27:25] Speaker 04:
And again, the only evidence of his conviction from the conviction record that's in this record is from the DHS below.

[00:27:33] Speaker 04:
When it was clear that it was his burden, once the case was back to the board, he could have said, and this is part of a motion to remand.

[00:27:43] Speaker 04:
It's kind of like a motion to reopen and a motion to remand.

[00:27:45] Speaker 04:
You have to give the board reason to remand.

[00:27:47] Speaker 03:
You have to give them evidence.

[00:27:48] Speaker 04:
So, yes.

[00:27:49] Speaker 04:
So the evidence would be like a transcript of the plea colloquy, and this is a felony, not a misdemeanor.

[00:27:54] Speaker 04:
Presumably it's somewhere.

[00:27:55] Speaker 03:
It sounds like you're saying he should have submitted more shepherd documents that not not limited to that but yes, so that seems sort of inconsistent with Your admission that there was a mistake in not understanding that you can consider testimony I Think you've admitted that in your briefs to us that yes, the Bia made a mistake in interpreting parede.

[00:28:17] Speaker 03:
It could have considered testimony I didn't see anywhere in your brief an argument that I

[00:28:22] Speaker 03:
It doesn't matter because testimony can never matter here now.

[00:28:26] Speaker 03:
You're saying that today You're saying the only thing that he can do is shepherd documents or am I misunderstanding.

[00:28:30] Speaker 04:
Oh, no I'm not saying that at all your honor I'm saying first that the board didn't say that we can't consider your testimony what it said was parede Doesn't allow us to consider testimony therefore testimony would not be helpful in your meeting your burden And you've admitted that that's a mistake

[00:28:46] Speaker 03:
It misread Pareta, that's correct.

[00:28:48] Speaker 03:
So what testimony could, now that we know testimony can be considered, what testimony could be given to show that this is no longer an inconclusive record?

[00:28:57] Speaker 04:
That is the question I have for him as well.

[00:28:59] Speaker 04:
What testimony would he give that is not already in this record?

[00:29:03] Speaker 03:
OK, so your position today is no testimony could make the difference, but that is not something you argued in your brief.

[00:29:08] Speaker 04:
No, what I said was he made no proffer other than what is already here, and that what's already here has been deemed inconclusive.

[00:29:14] Speaker 04:
He didn't say anything.

[00:29:16] Speaker 04:
Again, testimonies for limited purposes of determining which part of the statute he was convicted under, not his intent, not whether there was sufficient evidence to convict him under the statute.

[00:29:27] Speaker 04:
It is what part of it.

[00:29:29] Speaker 04:
And that question has never been answered by any additional or proffer of evidence, including testimony.

[00:29:37] Speaker 03:
I think we've taken you over your time.

[00:29:38] Speaker 03:
Thank you, counsel, for the argument.

[00:29:40] Speaker 03:
Let's hear rebuttal, please.

[00:29:45] Speaker 01:
Good morning, your honors.

[00:29:46] Speaker 01:
One quick point on rebuttal.

[00:29:48] Speaker 01:
The government says that the Ninth Circuit already found the existing record on conclusive, but that was in the context of the government meeting its burden to show that Mr. Sandoval was removable.

[00:29:59] Speaker 01:
The standard of proof there, for example, is clear and convincing, not preponderance.

[00:30:04] Speaker 01:
And second, in this court, in its order, when it found the record in conclusive, quoted another Ninth Circuit case and explained

[00:30:17] Speaker 01:
Explained what occurs when you're relying solely on the link quote between the charging papers and the abstract of judgment that link must be clear and convincing So that even sheds light that the testimony was not Reviewed at that point because that they cannot review testimony for the government to meet its burden Pareto was a cancellation of removal case

[00:30:34] Speaker 01:
So the government is wrong when it's saying that the Ninth Circuit finding the record before it unconclusive also applies to Mr.. Sandoval meeting his burden They're just two completely different context different standards of proof different evidence that can be evaluated even if you were even if we weren't convinced by that though There's also the ambiguity about whether we should take the testimony as credible right?

[00:30:57] Speaker 01:
Your honor we believe that the judge did already favorably credit the testimony but

[00:31:01] Speaker 03:
Right, but whether our court thought about that in 2021 or whatever.

[00:31:07] Speaker 03:
When we said this is inconclusive, we can't tell from the face of our opinion whether we were viewing the IJ's opinion the same way you are today.

[00:31:17] Speaker 01:
That's right.

[00:31:17] Speaker 01:
It was not in the context of whether he's statutorily eligible for cancellation of removal.

[00:31:22] Speaker 00:
And at the stage below,

[00:31:25] Speaker 00:
Don't know if it was you personally did you contemplate?

[00:31:29] Speaker 00:
Making a proffer or did you believe that the Bia was not letting you make a proffer?

[00:31:35] Speaker 01:
Your honor at that point we believe that because he had been granted cancellation of removal and The Ninth Circuit had said it was unresolved.

[00:31:41] Speaker 01:
We're looking at whether we were arguing that he That it should be at that ruling should be a front thought you were going to win anyway even without a proffer so you

[00:31:50] Speaker 01:
Either didn't try or didn't think about it or chose not to know your honor We still argued that he will merit counts that he is eligible for cancellation of removal based on the existing Testimony on the record and we pointed out to the fact that he didn't intend To set anything on fire and we pointed out that he did it to get his girlfriend's attention Thank you both sides and thank you for taking this case pro bono we really appreciate your assistance this case is submitted and