[00:00:01] Speaker 04:
Good morning and welcome to the Ninth Circuit.

[00:00:05] Speaker 04:
I'm Bridget Beatty and I am very pleased today to be joined by my colleagues Ken Lee and Dick Tallman.

[00:00:13] Speaker 04:
This morning we have one argument.

[00:00:14] Speaker 04:
The other cases on the calendar have all been submitted and I understand we have counsel appearing on video.

[00:00:22] Speaker 04:
Okay.

[00:00:22] Speaker 04:
We can see sort of the, there we go.

[00:00:24] Speaker 04:
Thank you.

[00:00:24] Speaker 04:
When you were sitting down I could just see the top of your head but as you stand we can see you.

[00:00:27] Speaker 04:
Can you hear us?

[00:00:32] Speaker 00:
Yes, Your Honor, I can hear you clearly.

[00:00:33] Speaker 04:
Great, and we can hear you too.

[00:00:35] Speaker 04:
So I think we are ready to begin.

[00:00:39] Speaker 04:
The case for argument this morning is Luis Salvador Sosa Morales versus Pamela Bondi.

[00:00:53] Speaker 04:
And Council, when you're ready, please begin.

[00:00:58] Speaker 03:
Good morning, your honors.

[00:00:59] Speaker 03:
May it please the court.

[00:01:00] Speaker 03:
My name is Jessica Anne Lehu, and I represent the petitioner in this matter, Luis Sosa Morales.

[00:01:05] Speaker 03:
I'd like to reserve two minutes for rebuttal.

[00:01:07] Speaker 03:
Thank you.

[00:01:08] Speaker 03:
Your honors, this case is about a one-day late notice of appeal that the board summarily dismissed despite attorney error and a record that satisfies the substantial compliance with Losada or independently plain on the record and effective assistance of counsel with a presumption of prejudice.

[00:01:24] Speaker 03:
Can I ask you?

[00:01:24] Speaker 03:
Oh, sorry.

[00:01:25] Speaker 03:
I was ready.

[00:01:27] Speaker 04:
A procedural question.

[00:01:30] Speaker 03:
Either you or prior counsel filed a motion to reopen with the board?

[00:01:35] Speaker 03:
That's correct, Your Honor.

[00:01:36] Speaker 03:
It's not myself.

[00:01:37] Speaker 03:
It's an independent counsel.

[00:01:39] Speaker 03:
Okay.

[00:01:40] Speaker 03:
Can you tell us what the status is of that motion?

[00:01:42] Speaker 03:
It's still pending, Your Honor.

[00:01:43] Speaker 03:
It was filed within the 90 days, so it was timely filed upon the dismissal of the BIA, but it remains pending at this time.

[00:01:51] Speaker 03:
And did the government oppose

[00:01:53] Speaker 04:
that motion to reopen.

[00:01:55] Speaker 03:
I spoke with the attorney that's working on that case.

[00:01:58] Speaker 03:
I believe she reached out to the department here in Phoenix, and they never gave a position on that.

[00:02:04] Speaker 03:
They have not opposed it.

[00:02:05] Speaker 03:
Nothing in writing has been filed with the board to oppose that motion, but they never gave a position on it.

[00:02:10] Speaker 03:
Okay, thank you.

[00:02:11] Speaker 01:
Council, my question had to do with substantial compliance with matter of Lozada.

[00:02:16] Speaker 01:
And as I understand the record, council

[00:02:20] Speaker 01:
Supplied an affidavit, but nothing came from the client, which is what Lazada requires.

[00:02:27] Speaker 01:
And secondly, there's no evidence that a complaint was actually filed against the attorney.

[00:02:34] Speaker 01:
The former counsel basically just told the client, here's how you file a bar complaint.

[00:02:39] Speaker 01:
Is that a correct recitation of the facts?

[00:02:42] Speaker 03:
Yeah, yes, Your Honor.

[00:02:44] Speaker 03:
I mean, I do believe that that would be a correct summary of it.

[00:02:47] Speaker 01:
So how is that substantial compliance with matter of Lozada?

[00:02:51] Speaker 03:
Judge, we would, Your Honor, with respect, we would say that it still substantially complies under this court's precedent.

[00:02:59] Speaker 03:
Specifically, the affidavit provided was sworn by prior counsel admitting fault, that she was at fault for this.

[00:03:06] Speaker 01:
And without regard to the question of whether it's the IAC is sort of patent on its face.

[00:03:14] Speaker 01:
I'm still struggling with compliance with Losada because here there's no evidence in the record that the state bar was ever actually informed of of her misconduct.

[00:03:25] Speaker 01:
Is there.

[00:03:26] Speaker 03:
Not before this court.

[00:03:29] Speaker 01:
And isn't the policy behind Losada the importance of alerting bar authorities to deficient performance by counsel in these types of cases?

[00:03:39] Speaker 03:
I mean, I do think, I think for Luzardo, there's various policy, like underlying policy considerations.

[00:03:46] Speaker 03:
I mean, some of them are collusion that they're not delaying proceedings.

[00:03:51] Speaker 01:
I'm not suggesting here, but I am suggesting that there's a major policy concern that is not addressed by count by prior council's conduct.

[00:04:01] Speaker 01:
And that is we need to alert state bar authorities to.

[00:04:06] Speaker 01:
The problem attorneys and there's no evidence in the record that the state bar even knows about what happened.

[00:04:13] Speaker 03:
Yet not in this record your honor and what I would explain to this court though is that that's when the policy of it is that not just that the state bar is notified, but that we have a record of attorneys if there is misconduct.

[00:04:27] Speaker 03:
And by her sworn affidavit, she opens herself to a malpractice claim.

[00:04:31] Speaker 03:
And this court in Korea, Rivera v. Holder has said that a declaration could replace a bar complaint because it opens her to the same amount of liability as a bar complaint would.

[00:04:43] Speaker 01:
Let me ask you, let me come at it a different way.

[00:04:45] Speaker 01:
If we find that there is not substantial compliance with matter of Lozada,

[00:04:52] Speaker 01:
Would your argument be that we can still proceed to examine whether or not the ineffective assistance was clear on its face?

[00:04:59] Speaker 03:
That would be our position, Your Honor, and obviously our position would be that it is clear on its face in this case.

[00:05:06] Speaker 03:
I would like to, I mean, I can kind of jump to that point a little to flesh it out a little more, but we would say that there was substantial compliance here.

[00:05:16] Speaker 03:
She filed the sworn affidavit stating that she miscalendered, that she filed it one day late.

[00:05:20] Speaker 03:
That admission under penalty of perjury still provides the highest level of reliability.

[00:05:27] Speaker 02:
Based on the record, do we even know if Sousa Morales is aware that his attorney made this error because

[00:05:34] Speaker 02:
So Samorales isn't the one who submitted the affidavit.

[00:05:37] Speaker 02:
He didn't file a complaint with the bar.

[00:05:40] Speaker 02:
So I mean, based on this record, we don't even know, right, if So Samorales is aware that he's in the situation because of his lawyer's mistake.

[00:05:48] Speaker 03:
I would say the record before the BIA, no.

[00:05:51] Speaker 03:
By the mere fact that he's changed counsel would show that he's aware of it.

[00:05:55] Speaker 03:
But before the BIA, when they made that decision, no, there's not anything on the record that they would know that he was aware of that.

[00:06:03] Speaker 04:
Is there anything in the record where petitioner or prior counsel argued to the BIA that the error was plain on its face?

[00:06:14] Speaker 03:
There's nothing I mean, the motion to accept late filing is admittedly there.

[00:06:20] Speaker 03:
I think it consists of maybe two sentences.

[00:06:24] Speaker 03:
But I would still say based on her affidavit, the prejudice is plain on its face.

[00:06:31] Speaker 03:
She admits.

[00:06:32] Speaker 03:
And I will say in her affidavit.

[00:06:33] Speaker 04:
I'm asking you about something a little different from prejudice, which I have some questions about that as well.

[00:06:40] Speaker 04:
But what I'm asking you about is really an exhaustion issue.

[00:06:43] Speaker 04:
If the argument wasn't made before the agency, how can we reach it?

[00:06:49] Speaker 03:
Your Honor, we would state that because the BIA made a decision on it, stating that the position had not otherwise shown ineffective assistance to counsel,

[00:07:00] Speaker 03:
that the prejudice was addressed in this court.

[00:07:04] Speaker 04:
So how do you distinguish our case law that says that when the agency basically makes a passing and dismissive reference to something, that's not sufficient.

[00:07:15] Speaker 04:
I mean, it wasn't argued to them.

[00:07:16] Speaker 04:
It wasn't presented to them.

[00:07:18] Speaker 04:
And in a very cursory line, they say that the standards of a matter of liaisons have not been met

[00:07:26] Speaker 04:
Ineffective assistance has not otherwise been shown to be applying.

[00:07:29] Speaker 04:
In your view, that's enough to avoid exhaustion, or that means the agency reached it, and so even though it wasn't raised before them, we now can reach it?

[00:07:40] Speaker 03:
Well, Your Honor, I believe that the board expressly found no substantial LASATA compliance and also added in their decision that ineffective assistance counsel was not otherwise shown.

[00:07:49] Speaker 03:
And we would assert that that's a merits determination allowing this court's review.

[00:07:53] Speaker 03:
I would probably distinguish that from the certification.

[00:07:56] Speaker 03:
I do think at the end they say we also declined to certify this.

[00:07:59] Speaker 03:
I think that would more be in passing.

[00:08:02] Speaker 03:
But I think the ineffective assistance counsel, they got to the merits of it.

[00:08:04] Speaker 03:
They discussed the affidavit.

[00:08:06] Speaker 03:
They discussed the

[00:08:08] Speaker 03:
the instructions for the bar complaint filed.

[00:08:10] Speaker 04:
Sure, but that's the matter of Lesada prong.

[00:08:13] Speaker 04:
I mean, there's a separate issue of whether even if you didn't comply with the matter of Lesada, the ineffective assistance is plain on the record.

[00:08:20] Speaker 04:
And that's what I'm getting at, whether that's been exhausted.

[00:08:24] Speaker 03:
Oh, sorry.

[00:08:25] Speaker 03:
So you're asking more on the plain of the record, if it's on its face, plain on its record.

[00:08:30] Speaker 03:
Well, Judge, we would say that that still is

[00:08:34] Speaker 03:
that they still reached the merits of that.

[00:08:36] Speaker 03:
They still discussed that.

[00:08:37] Speaker 03:
They said that this attorney, by still supplying this affidavit, sorry, Josh, I'm just thinking for a second, because I understand how you're distinguishing from the prejudice from the plane on its face.

[00:08:53] Speaker 03:
I guess I would argue that the Ninth Circuit still can get to the merits of that because they failed to acknowledge some of the information.

[00:09:03] Speaker 03:
or argument, it's not even arguments, but evidence before them and that couldn't have been brought up until the BIA made their decision.

[00:09:10] Speaker 03:
I mean, specifically, they failed to consider that the department was timely served, for example, and so they're not prejudiced by accepting this appeal and they don't address that at all and we couldn't have brought that to this court until the BIA made that decision.

[00:09:28] Speaker 04:
I'm sorry, I don't follow what you're saying.

[00:09:30] Speaker 04:
Couldn't counsel have

[00:09:32] Speaker 04:
made an argument that said, not simply in a couple sentences, this is my fault, I miscalculated the time, but also said, meanwhile, I'm self-reporting to the bar, you know, other things that we've said are acceptable for a matter of lazada, and then also said, this is under Ninth Circuit case law, this is clearly an effective assistance of counsel.

[00:09:52] Speaker 04:
It's plain on this record.

[00:09:53] Speaker 04:
I mean, they could have made that argument before the BIA did anything.

[00:09:57] Speaker 04:
They should have made that argument to the BIA.

[00:10:00] Speaker 04:
So you're saying we couldn't make that argument.

[00:10:02] Speaker 04:
I don't understand why.

[00:10:03] Speaker 04:
Can you explain that to me?

[00:10:04] Speaker 03:
Oh, no.

[00:10:05] Speaker 03:
No, they definitely could have.

[00:10:06] Speaker 03:
They could have and should have made that decision.

[00:10:09] Speaker 03:
What I'm saying, though, is that when the BIA rendered its decision and did not factor in evidence that was presented to it, not only just the sworn affidavit, but also evidence that the department was timely filed, that that

[00:10:24] Speaker 03:
raises on its face, ineffective assistance of council claim that they didn't acknowledge some of the evidence before them.

[00:10:30] Speaker 01:
Yeah, council have a related question and that has to do with our precedent that talks about the importance of not depriving the alien of appellate opportunity.

[00:10:44] Speaker 01:
And one of the problems I have with your argument, it's really goes to whether he can show prejudice under ineffective assistance of council.

[00:10:52] Speaker 01:
The board explicitly stated that it would reconsider its dismissal if he came back with proper proof to address these issues.

[00:11:03] Speaker 01:
And your council, prior council, didn't do that.

[00:11:10] Speaker 01:
So by virtue of that defolcation, how has he been deprived of the opportunity when the board gave him the opportunity and he simply didn't take it?

[00:11:23] Speaker 03:
Well, I do think he took it because he did file a motion to reopen and that's pending before the board with the information.

[00:11:29] Speaker 01:
I'm referring to the footnote in the BIA opinion that basically left the door open saying that the board would reconsider if he came back with proper proof.

[00:11:40] Speaker 01:
So he did have an opportunity.

[00:11:42] Speaker 01:
He just didn't avail himself.

[00:11:44] Speaker 03:
Oh, sorry.

[00:11:45] Speaker 03:
I understood the footnote to say.

[00:11:46] Speaker 03:
So sorry.

[00:11:47] Speaker 03:
I don't think that he well,

[00:11:49] Speaker 03:
Oh, I see.

[00:11:50] Speaker 03:
Sorry, Judge.

[00:11:51] Speaker 03:
I understand what you're saying.

[00:11:52] Speaker 03:
You're saying that he could have supplemented the record.

[00:11:55] Speaker 03:
Yeah, he could have.

[00:11:56] Speaker 03:
And again, I'm not sure of the conversations between him and prior counsel if she advised him to provide an affidavit of why he chose not to file a bar complaint at that point or why she didn't supplement the record.

[00:12:09] Speaker 03:
She actually did self-reports subsequent to this filing.

[00:12:13] Speaker 03:
I don't know why she didn't notify the BIA of that.

[00:12:17] Speaker 01:
It goes to the question of whether or not his prejudice was a self-inflicted wound.

[00:12:23] Speaker 03:
Oh, I see what you're saying, Your Honor.

[00:12:25] Speaker 03:
No, I don't think it was.

[00:12:27] Speaker 03:
I think it was a continuance of ineffective assistance of counsel by prior counsel.

[00:12:32] Speaker 01:
Second IAC claim, is that what you're arguing now?

[00:12:36] Speaker 03:
Yeah, potentially, Your Honor, it would be.

[00:12:39] Speaker 04:
We've taken you over, but that's okay.

[00:12:41] Speaker 04:
I have another question for you, and I'll still give you a couple of minutes for rebuttal.

[00:12:46] Speaker 04:
In fact, you can have the whole morning since we started everything else.

[00:12:48] Speaker 04:
I'm sure you're happy about that.

[00:12:53] Speaker 04:
Procedurally, we have the petition for review pending before this court, and there's a motion to reopen pending before the BIA.

[00:13:02] Speaker 04:
I'm wondering, does this end up where there's a dual track where if

[00:13:10] Speaker 04:
We were to deny the petition.

[00:13:11] Speaker 04:
The petition to reopen is still pending.

[00:13:13] Speaker 04:
If that's granted, then the matter is reopened.

[00:13:15] Speaker 04:
If it's denied, then he appeals from that as well.

[00:13:18] Speaker 04:
If we grant it and it goes back to the BIA and they are addressing it, and then the petition to reopen, is that still pending or would that be withdrawn?

[00:13:27] Speaker 03:
It would be withdrawn, Your Honor.

[00:13:29] Speaker 03:
Yeah, we would notify the BIA.

[00:13:30] Speaker 03:
It'd be moot at that point if this court remands to reopen to accept the appeal, which is what Mr. Sousa-Morales wants just to have his case heard.

[00:13:38] Speaker 03:
then that would become, the motion to reopen become moot.

[00:13:40] Speaker 03:
We'd ask the court to dismiss it as moot, withdraw it.

[00:13:45] Speaker 03:
Okay, thank you.

[00:13:48] Speaker 04:
All right, thank you.

[00:13:49] Speaker 04:
I'll give you a couple of minutes in rebuttal.

[00:14:06] Speaker 04:
Mr. Privy, when you're ready, please go ahead

[00:14:10] Speaker 00:
May it please the court, Christopher Pryby for the Attorney General.

[00:14:15] Speaker 00:
As laid out in the Attorney General's brief, there was not substantial LASATA compliance.

[00:14:21] Speaker 00:
And there are the question of whether the ineffective assistance was plain on the record could have been made before the agency and was not, therefore depriving the agency of the ability to rule on the issue.

[00:14:38] Speaker 00:
Therefore, it is not exhausted and not properly before this court.

[00:14:41] Speaker 04:
What about the point that your opposing counsel makes that the BIA's decision does reference that?

[00:14:47] Speaker 04:
It says, it's not otherwise shown ineffective assistance of counsel is plain on the record.

[00:14:55] Speaker 04:
It's at the bottom of page two, it's AR4.

[00:15:00] Speaker 00:
Unlike the analysis of the matter of Losada requirements, which was several paragraphs long, this is truly a passing note.

[00:15:12] Speaker 00:
It has not otherwise shown that is put on the record.

[00:15:22] Speaker 00:
This is especially where the petitioner has not

[00:15:30] Speaker 00:
address this at all in their motion to accept the late filed brief, then given the complete lack of analysis in the board's opinion, this can be conceived of as nothing other than a summary rejection of an unraised issue, which this court said is not sufficient for exhaustion under, I believe it's Vasquez-Borjas.

[00:15:56] Speaker 00:
So it is similar in the

[00:16:00] Speaker 00:
In that case, where again, there was no raising of that issue for the board and therefore just the fact that the board says that this has not been demonstrated.

[00:16:17] Speaker 00:
So another distinction would be that if the board had said there is no ineffective assistance that is playing on the record, that might be more of a merits determination.

[00:16:28] Speaker 00:
But here there's just a statement that the petitioner has not otherwise shown it.

[00:16:33] Speaker 00:
So that is more of a statement of what the petitioner has done, in this case not raised or shown the necessary requirement.

[00:16:44] Speaker 04:
Do you have, do you know what the government's position is on the motion to reopen?

[00:16:49] Speaker 00:
I do not, your honor.

[00:16:50] Speaker 00:
I am not.

[00:16:51] Speaker 00:
All I know is that it was filed on August 2nd, 2024, and it remains pending as of this morning.

[00:16:58] Speaker 01:
Did you double check to see if there had been any action this morning?

[00:17:03] Speaker 01:
I did, your honor.

[00:17:04] Speaker 01:
And nothing has happened.

[00:17:06] Speaker 00:
I don't know if any, uh, the docket that I have access to, uh, through EOIR, it just says that there is a motion pending.

[00:17:15] Speaker 00:
It doesn't tell me what, what filings have been made.

[00:17:17] Speaker 00:
If any opposition has been made and just says it was filed that, that date.

[00:17:23] Speaker 01:
Okay.

[00:17:24] Speaker 01:
Because my understanding is that if the board were to grant that motion to reopen, we would lose jurisdiction over this pending appeal.

[00:17:30] Speaker 01:
Would we not?

[00:17:34] Speaker 00:
I believe that is correct that it would... I think that's what our circuit authority... We wouldn't have a final order.

[00:17:43] Speaker 00:
Right.

[00:17:43] Speaker 00:
There would be no more final order of removal, so there would be no jurisdiction.

[00:17:46] Speaker 00:
That's correct.

[00:17:47] Speaker 00:
Okay.

[00:17:49] Speaker 04:
So why did the parties, and maybe it wasn't the government, but there was a motion before a motions panel in our court to stay this matter pending the resolution of the motion to reopen at the BIA.

[00:18:01] Speaker 04:
and the motions panel offered to do so if the parties would agree to administratively close the case.

[00:18:09] Speaker 04:
Do you know why that didn't occur?

[00:18:10] Speaker 00:
I'm not sure why the government did not agree to administratively close the case.

[00:18:17] Speaker 00:
I do know that under several cases, such as Stone v. INS, the Supreme Court has indicated that it

[00:18:28] Speaker 00:
does prefer that Congress, in fact, has mandated this dual track, as you described it, that it is more important to quickly adjudicate a pending petition for review than to consolidate matters that may still be pending before the agency.

[00:18:46] Speaker 00:
So in general, the government does not see a consent to staying these sorts of cases pending a motion to reopen or reconsider.

[00:19:00] Speaker 01:
The problem, as I understand it, is we have absolutely no control over the administrative agency's timing in terms of when it addresses these motions, as demonstrated in the record here, where everybody's just sort of sitting around waiting for something to happen.

[00:19:16] Speaker 00:
I mean, this is the scheme that Congress has created.

[00:19:22] Speaker 00:
The idea is that, well, we have a final order of removal that we want to have adjudicated as quickly as possible.

[00:19:28] Speaker 00:
If, by chance, the motion to reopen or reconsider is denied, then it will get consolidated in.

[00:19:35] Speaker 00:
But especially given that removal from the country does not moot a pending petition for review, there is not the same

[00:19:46] Speaker 00:
need to wait for everything to be consolidated uh... there's a there's an interest in quickly uh... executing uh... final orders of removal so has the petitioner been removed to my knowledge uh... no petitioners at liberty in the united states if we assume the claim has been exhausted can you explain why the i a c uh... isn't playing on the record

[00:20:16] Speaker 00:
If the, I believe under, I believe under this court's precedent, it would be plain ineffective assistance on the record, had it been exhausted.

[00:20:37] Speaker 01:
And the basis for not, for the, your statement that it was not exhausted is, is what?

[00:20:44] Speaker 00:
Oh, the case Vasquez-Borjas.

[00:20:49] Speaker 00:
I don't have the citation in front of me.

[00:20:51] Speaker 01:
Tell me the name again.

[00:20:53] Speaker 00:
Vasquez-Borjas.

[00:20:55] Speaker 01:
Vasquez.

[00:20:56] Speaker 00:
Correct.

[00:20:57] Speaker 01:
What's the surname?

[00:21:01] Speaker 00:
Vasquez-Borjas is hyphenated.

[00:21:02] Speaker 00:
It's 36F4-891.

[00:21:11] Speaker 00:
And there the statement is that if the board summarily rejects an unraised issue, that is not sufficient for exhaustion.

[00:21:21] Speaker 02:
I guess maybe the one distinction here is that in passing reference in the BIA's opinion, maybe we don't give credit to as exhaustion because it might have been a complex issue or something that involves a lot of factual determination.

[00:21:38] Speaker 02:
So we say, OK, there was no analysis.

[00:21:40] Speaker 02:
Here it just seems pretty straightforward.

[00:21:43] Speaker 02:
It's not legally that difficult.

[00:21:45] Speaker 02:
And there aren't any real factual issues.

[00:21:47] Speaker 02:
So maybe BIA did address it.

[00:21:51] Speaker 00:
I don't know what more it could have done.

[00:22:00] Speaker 00:
It could have cited a case.

[00:22:01] Speaker 00:
It could have cited something in the record to support its decision.

[00:22:06] Speaker 00:
It is not an absolute statement that it is not plain on the record.

[00:22:12] Speaker 00:
It is instead an assertion that the respondent did not show that it was plain on the record.

[00:22:20] Speaker 00:
And that makes sense because the motion to accept the late-filed appeal made absolutely no legal argument at all.

[00:22:26] Speaker 00:
It had no citations of legal authority.

[00:22:28] Speaker 00:
It had no citations to the

[00:22:30] Speaker 00:
to the record.

[00:22:31] Speaker 00:
So that is the bare minimum that Congress has said that must be done.

[00:22:38] Speaker 00:
It must be exhausted before the agency, even if it's a simple issue.

[00:22:44] Speaker 00:
And here that issue was not raised at all by the petitioner.

[00:22:47] Speaker 00:
And saying that it was not shown by the petitioner is not a statement of, it's just a statement of what was listed or what was raised in the motion, not a statement of

[00:23:00] Speaker 00:
I am of a merits determination of whether there is an effective assistance plan on the record.

[00:23:16] Speaker 00:
If there are no further questions.

[00:23:18] Speaker 04:
You have 52 seconds left, but you're more than happy to rest at this point.

[00:23:25] Speaker 04:
Thank you.

[00:23:26] Speaker 00:
Um, respond to requests that this court deny the petition for abuse.

[00:23:30] Speaker 00:
Thank your honors.

[00:23:31] Speaker 04:
Okay.

[00:23:31] Speaker 04:
Thank you.

[00:23:32] Speaker 01:
I also want to thank you for arguing.

[00:23:34] Speaker 01:
I know we denied your motion, uh, but, uh, notwithstanding the government shutdown, uh, we're working.

[00:23:44] Speaker 01:
So, uh, thank you.

[00:23:46] Speaker 01:
Thank your honors.

[00:23:52] Speaker 04:
All right.

[00:23:52] Speaker 04:
So you have two minutes for rebuttal.

[00:23:55] Speaker 03:
Thank you, your honors.

[00:23:56] Speaker 03:
I want to briefly just address an argument or position by opposing counsel as it goes to exhaustion and plain on its face.

[00:24:04] Speaker 03:
Opposing counsel just stated that the Board of Immigration Appeals just makes a statement saying that it's not plain on its face without citing any authority, and thus the merit of the claim was not reached.

[00:24:15] Speaker 03:
However, if I turn the court's record to AR4, the Board of Immigration Appeals does cite a case to support its merit determination.

[00:24:25] Speaker 03:
um, stating that is, uh, that quote, um, ineffective at council was that was, that what basically was not substantially did not substantially comply or shown that it's plain on its record that he has not shown that then they cite a ninth circuit precedent.

[00:24:41] Speaker 03:
Um, so I do reassert that it was, we'd asked this court to, when making its exhaustion determination, that we look at the substance of it.

[00:24:50] Speaker 03:
The board had the affidavit sworn by prior council.

[00:24:53] Speaker 03:
despite the board's decision stating that the affidavit did not provide the agreement between the council when they were hired what they were hired for her affidavit does comply with that she notes that she was hired on December 5th two weeks before the deadline and she was hired for the specific purpose of representing him before the Board of Immigration Appeals there is service and proof to the department

[00:25:20] Speaker 03:
which goes to prejudice that the department had the appeal timely.

[00:25:24] Speaker 03:
And that's enough to reach the merits under, I'm not going to say this right, is it a baby, A-B-E-B-E-N-M-A-M-A-I-E.

[00:25:35] Speaker 03:
So this court does have jurisdiction and should grant this appeal.

[00:25:41] Speaker 03:
We'd assert that the, that there was plain on it, the Losada is plain on its record.

[00:25:50] Speaker 03:
We'd also ask this court to take into consideration that the petitioner filed this appeal because the Board of Immigration Appeals tends to pen for years, three to four years, and it does put him in a legal limbo for a number of years.

[00:26:03] Speaker 03:
So we'd ask this court to grant and remand to accept his appeal.

[00:26:07] Speaker 04:
Thank you.

[00:26:08] Speaker 04:
Thank you.

[00:26:09] Speaker 04:
Thank you, counsel, both for your argument this morning, and I echo Judge Tallman's thanks to the government for appearing at argument while

[00:26:19] Speaker 04:
They are not being paid during the shutdown.

[00:26:23] Speaker 04:
We are adjourned.

[00:26:24] Speaker 04:
This case is submitted and we're adjourned until tomorrow morning.