[00:00:12] Speaker 02:
Good morning, Your Honors.

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

[00:00:14] Speaker 02:
May it please the Court, I am Conrad Gregory Bedar.

[00:00:17] Speaker 02:
I'm here on behalf of the petitioner, Tong Xiu Wang.

[00:00:21] Speaker 02:
Now generally, this case is the petitioner's story of religious persecution by the Chinese authorities.

[00:00:29] Speaker 02:
But specifically, when we drill it down, this case is a compelling story of enforced religious deprivation.

[00:00:39] Speaker 02:
Now, what do I mean by that?

[00:00:41] Speaker 02:
What I mean is that in 2012, the petitioner was compelled to leave his home, his wife, his family, and his culture, principally on his account of enforced religious deprivation.

[00:00:55] Speaker 03:
Can you address the credibility challenges and how do you get over that?

[00:01:01] Speaker 03:
I'm sorry, I have a hearing impairment, I'm so sorry.

[00:01:03] Speaker 03:
No, that's okay.

[00:01:04] Speaker 03:
Can you address the credibility finding and how you get over that?

[00:01:09] Speaker 02:
Yes, yes, I was going to do that.

[00:01:13] Speaker 02:
To be sure, when Tong Xiu Wang presented his testimony at his May 2016 evidentiary hearing,

[00:01:25] Speaker 02:
It was not a shining moment.

[00:01:26] Speaker 02:
His testimony did conflict internally and with both of his declarations and his sister's affidavit and the other corroborating documentation of his household registration booklet.

[00:01:45] Speaker 00:
You're not arguing that the average credibility determination is not supported by substantial evidence.

[00:01:54] Speaker 02:
For those limited portions, correct.

[00:01:57] Speaker 02:
As it relates to the petitioner's account of past persecution for those first two days, on the record it appears that his inconsistent testimony does impact his credibility.

[00:02:15] Speaker 02:
However, what I want to focus on today are the strengths of the petitioner's testimony.

[00:02:22] Speaker 03:
Namely that the petitioner did testify that he as a as a condition of his release hold on You're conceding that there that that there were credit that the credibility finding is correct as to and that they are inconsistent as to those points that you're conceding that right now and

[00:02:50] Speaker 02:
as to the testimony as it relates to this.

[00:02:52] Speaker 00:
Do you really want to concede this?

[00:02:53] Speaker 00:
I really am tired of Petitioner's Council coming here and conceding their petitioner's case.

[00:02:59] Speaker 00:
Let me ask you something.

[00:03:01] Speaker 00:
We've sent out numerous orders to you asking for responses in this case.

[00:03:06] Speaker 00:
It was closed for a while administratively.

[00:03:09] Speaker 00:
You haven't responded at all.

[00:03:11] Speaker 00:
The current motion that you filed is a motion to dismiss petitioner's case.

[00:03:18] Speaker 00:
Is that zealously representing your client?

[00:03:21] Speaker 02:
I am zealously advocating for my client's interest because that is what he has expressly authorized me to do.

[00:03:28] Speaker 00:
Why?

[00:03:28] Speaker 02:
Because he has earned lawful permanent residence since May of 2022.

[00:03:33] Speaker 00:
Why haven't you filed any documentation to that effect?

[00:03:36] Speaker 00:
Why are we here?

[00:03:38] Speaker 02:
Right, Your Honor.

[00:03:39] Speaker 02:
That's what I did in my motion.

[00:03:40] Speaker 00:
Why didn't you say this for the first, he has lawful permanent residence now?

[00:03:45] Speaker 02:
Yes, he does since May of 2020.

[00:03:46] Speaker 00:
Have you filed any papers demonstrating that?

[00:03:49] Speaker 02:
Yes, included as an exhibit in my motion to dismiss the PFI.

[00:03:53] Speaker 00:
So if he has lawful permanent residence, which the agency grants through one hand of its operations, why is the other part of the agency trying to enforce a deportation order?

[00:04:10] Speaker 02:
Yes, Your Honor.

[00:04:13] Speaker 02:
Months ago, I had related

[00:04:15] Speaker 02:
the same as I'm discussing right now to oil and I was instructed to by both the clerk and My clerk Which clerk what clerk?

[00:04:29] Speaker 00:
Clerk of what deputy clerk here which clerk what what's the name?

[00:04:35] Speaker 02:
Well, it's not Susan Gomez, but someone before that

[00:04:38] Speaker 02:
and but susan gilmes knows what what i did file and uh... she instructed me that i was not permitted to withdraw the petition that the court wanted to hear remarks uh... from the petitioner have you filed anything to reopen and uh... uh... in the b i a into it to resolve this interagency

[00:04:59] Speaker 04:
Conflict that Judge Ward laws identified so if you filed anything in the Bia reflecting the lawful permanent status that your client now has what I did file was a when when the enforcement priorities were in effect with DHS was a request to For prosecutorial discretion on this matter, but do you understand whether you?

[00:05:27] Speaker 04:
Whether your client has a right to reopen the proceedings before the BIA given this change in conditions to address the underlying removal order?

[00:05:38] Speaker 04:
I understood that I had to dismiss the matter here before I could... In order to do it in the BIA, your understanding is that the BIA would not allow you to reopen before the dismissal of the matter here?

[00:05:52] Speaker 02:
That has been my experience before.

[00:05:54] Speaker 04:
Okay.

[00:05:54] Speaker 00:
Wait, that's been your experience, but as to this case... Not as to this case, Your Honor.

[00:05:59] Speaker 00:
As to this case.

[00:06:02] Speaker 00:
I mean, that's why we were issuing all these orders for information from you, is because we saw that his wife had had her status adjusted.

[00:06:14] Speaker 00:
We could see that, but we can't see from the agency's administrative record evidence of the lawful permanent residence status of your client.

[00:06:28] Speaker 02:
Included in the record as an exhibit is the I-730 approval.

[00:06:33] Speaker 00:
I also forwarded- We don't have the administrative record from the agency as to that.

[00:06:42] Speaker 02:
I hear the court's words and-

[00:06:44] Speaker 02:
I did not obtain the documentation that the courts... But, no, usually the agency provides it to us.

[00:06:50] Speaker 00:
Did they know about... They being the USCIS and the... I don't know.

[00:07:00] Speaker 00:
Okay.

[00:07:00] Speaker 00:
Why don't you reserve your three minutes?

[00:07:02] Speaker 00:
I will.

[00:07:02] Speaker 00:
I will reserve.

[00:07:03] Speaker 00:
And maybe the agency can shed some light on this.

[00:07:07] Speaker 00:
Very good.

[00:07:09] Speaker 00:
Okay.

[00:07:09] Speaker 00:
Great.

[00:07:16] Speaker 01:
Good morning, Your Honors.

[00:07:17] Speaker 01:
May I please the court?

[00:07:18] Speaker 01:
My name is Linda Chang, representing the U.S.

[00:07:22] Speaker 01:
Attorney General in this matter.

[00:07:23] Speaker 01:
Unfortunately, my office was also in the dark for most of this case regarding his adjustment to lawful permanent status.

[00:07:30] Speaker 01:
We learned about that on Friday, just a few days ago.

[00:07:34] Speaker 01:
How did you learn about it?

[00:07:35] Speaker 01:
I called through various channels within USCIS and finally got a hold of someone who could tell me this.

[00:07:42] Speaker 01:
However, I do not have the documentation for it.

[00:07:45] Speaker 01:
It was just a conversation that I had.

[00:07:46] Speaker 00:
But it's true.

[00:07:49] Speaker 00:
Yes, this is apparently true.

[00:07:50] Speaker 00:
So are you going to withdraw the deportation order?

[00:07:54] Speaker 01:
So that deportation order is something that petitioner and the agency need to work out.

[00:08:00] Speaker 01:
At this point, we do not oppose his motion to withdraw the PFR in this court because his own

[00:08:07] Speaker 01:
asylum application is irrelevant as he has obtained legal status.

[00:08:12] Speaker 01:
So it is something that he needs to work out with the agency at this point and this court is no longer or my office is also no longer playing any roles in his application for asylum because it is not

[00:08:27] Speaker 01:
You did?

[00:08:28] Speaker 04:
Well, if that's the case, I mean, what's the agency's general practice that now and, you know, to the extent you can speak to it, where there are now grounds that you concede that the, he's not removable given the change in the status.

[00:08:46] Speaker 04:
Why is it up to the petitioner to do that when the agency, the executive, which we sometimes think of as unitary,

[00:08:58] Speaker 04:
has this information, why can't it do something about it?

[00:09:02] Speaker 01:
So this case is in a different and unique posture typically when petitioners reach out to our office

[00:09:09] Speaker 01:
regarding the potential to adjust.

[00:09:11] Speaker 01:
They do have something that is pending before USCS in terms of a benefit.

[00:09:18] Speaker 01:
And therefore, we would have them request the board for a joint motion to reopen with DHS before the board and then have it sent back down to be adjudicated before the immigration judge for the relief that they request.

[00:09:31] Speaker 01:
However, his relief has already been granted at this point, which is unique here.

[00:09:36] Speaker 00:
And therefore... So are you arguing that this is moot?

[00:09:39] Speaker 00:
Yes.

[00:09:40] Speaker 04:
But I guess what's puzzling to me at least is that this is in a category of cases that I understand have been held in kind of administrative abeyance for years.

[00:09:56] Speaker 04:
And it would have taken, as I understand it, the agency to take an affirmative step

[00:10:02] Speaker 04:
to reactivate this case, get us all involved in this, reactivate, you know, was there never any, did one hand check with the other with respect to whether this case should be reactivated?

[00:10:16] Speaker 04:
I guess my concern is given the number of cases that are in this status and that as I'm sure you well understand that are quite stale now as in this case, that the,

[00:10:31] Speaker 04:
agency and oil would be seeking to reactivate cases without checking to see whether they were moot.

[00:10:41] Speaker 01:
I understand your concern your honor but as I said our office only knew that he had the approved 730 which he had filed at

[00:10:50] Speaker 01:
in 2021 before we put this case into JEC.

[00:10:53] Speaker 01:
At that point, we thought he was going to do something with that.

[00:10:57] Speaker 01:
He did not tell us that any further progress had been made with that application.

[00:11:02] Speaker 01:
So we assumed that he was just still at a standstill.

[00:11:04] Speaker 01:
And so as we took it out of JEC, we thought that that

[00:11:06] Speaker 01:
would be something that we need to address with him or pursue or somehow figure out, but he never reached out.

[00:11:13] Speaker 01:
Ms.

[00:11:13] Speaker 04:
Chang, might I recommend that oil place that call before it takes something off of the administrative stay so that we know that we have a case rather than after?

[00:11:23] Speaker 01:
I do understand that frustration, Your Honor.

[00:11:26] Speaker 01:
However, again, this is the information that you seek is within petitioner's hands.

[00:11:31] Speaker 01:
He has known since 2023 that he was an LPR.

[00:11:34] Speaker 01:
We did not, we were not notified that he was an LPR until I reached out.

[00:11:39] Speaker 01:
Office of Immigration, of Litigation, my office.

[00:11:41] Speaker 00:
Litigation, oil, didn't know, even though USCIS had granted the relief.

[00:11:46] Speaker 01:
That is correct.

[00:11:49] Speaker 04:
Certainly, I understand your predicament, but I also hope you understand at least my concern, particularly with all of these cases held in abeyance, that the i's are dotted and the t's are crossed to make sure that you still have a case before you ask us to renew our review of the petition.

[00:12:13] Speaker 01:
Understood.

[00:12:13] Speaker 00:
So what do you think we should do with this case?

[00:12:16] Speaker 00:
Because frankly, I was

[00:12:17] Speaker 00:
Until I heard the argument, I was inclined to grant the petition because I don't think the adverse credibility determination here is supported by substantial.

[00:12:27] Speaker 00:
This is just speaking for myself.

[00:12:29] Speaker 00:
So I don't know if he's better off if we could just go ahead and grant it or if he's better off if we just dismiss it or if the next step is you need to make a joint motion to reopen before the immigration agency to say, hey,

[00:12:45] Speaker 00:
He's a lawful permanent resident, so we can't deport him because we've got to get the deportation order off the record or his client could be deported even though he has the right to remain in the United States.

[00:12:59] Speaker 01:
That's right, Your Honor.

[00:12:59] Speaker 01:
So as I had said earlier, normally while we have a petitioner who has pending relief, we would advise that they need to file a joint motion to reopen with DHS before the Board of Immigration Appeals and reopen and then get it before the immigration judge to have their relief adjudicated.

[00:13:20] Speaker 01:
In this case, since he already has relief,

[00:13:23] Speaker 01:
We believe that this PFR can be withdrawn as he has filed in his motion or requested in his motion because this PFR is moot at this point.

[00:13:34] Speaker 03:
So you're saying grant the motion to withdraw?

[00:13:36] Speaker 01:
That's correct.

[00:13:39] Speaker 04:
That's not the same as saying that the order of removal is moot?

[00:13:46] Speaker 01:
Not technically, no, Your Honor.

[00:13:48] Speaker 04:
That's an important technicality.

[00:13:51] Speaker 01:
That is something that Petitioner would need to work out with agency at this point.

[00:13:57] Speaker 01:
Like I said, because his petition for review is no longer relevant to his obtaining status, I believe that my office and this court no longer have a role in his pursuit of that relief.

[00:14:14] Speaker 04:
But it's still on the books with the agency.

[00:14:15] Speaker 01:
That's correct.

[00:14:18] Speaker 04:
You can see how that might be unsatisfactory in terms of full relief here, given that we have a petition in front of us and we may have concerns about whether the agency action is supported by substantial evidence that we're relying on, we'll say, a complicated bureaucratic apparatus to ensure that the petitioner here is entitled to the relief that the government has granted him.

[00:14:46] Speaker 00:
So if we were to grant the petition and remand, that's, in effect, reopening the proceedings.

[00:14:56] Speaker 01:
That would be reopening proceedings.

[00:14:57] Speaker 01:
However, you actually would be putting him back into proceedings.

[00:15:00] Speaker 01:
And the immigration judge might want to hear the case all over again, which actually puts him further back in his relief pursuit rather than.

[00:15:09] Speaker 00:
So maybe we should be asking, but why haven't you filed a joint motion to reopen yet?

[00:15:16] Speaker 00:
that would be his request.

[00:15:18] Speaker 00:
He needs to request it.

[00:15:20] Speaker 00:
So my understanding is when we first sent this to, when we first administratively closed it, it was for it to go to mediation.

[00:15:28] Speaker 00:
Correct.

[00:15:28] Speaker 00:
Because there was this, you know, existence of the adjustment of status.

[00:15:33] Speaker 00:
So why didn't this come up in the course of mediation?

[00:15:37] Speaker 01:
It came up in mediation that he was going to pursue this route and he did not inform anyone in this courtroom that he actually achieved that.

[00:15:46] Speaker 00:
You're right, that's true, including us, including the court.

[00:15:52] Speaker 04:
Would that be worth, given the concerns about the state of the petition for review and the uncertainty about

[00:16:01] Speaker 04:
where this ends, would it be worth, and obviously the order has been around on the books for quite a while now, for us to hold off and allow the parties before we act to sort this out, before we relinquish our jurisdiction with respect to that order of removal.

[00:16:22] Speaker 01:
That could be one option, Your Honor, but like I said, he already has his relief available or relief obtained.

[00:16:30] Speaker 01:
He is an LPR at this point.

[00:16:33] Speaker 00:
How about we send it back to mediation where it was, require the parties to mediate.

[00:16:42] Speaker 00:
He can show proof of his lawful permanent residence status, and you could jointly move to reopen at that point.

[00:16:54] Speaker 00:
Would that work?

[00:16:55] Speaker 00:
That could work, Your Honor.

[00:16:59] Speaker 04:
Ms.

[00:16:59] Speaker 04:
Chang, again, I appreciate that you're in a spot, and I also appreciate your constructive answers to the questions.

[00:17:06] Speaker 04:
I understand that you don't know everything that's going on and that we're all in the dark about something.

[00:17:10] Speaker 04:
So I really appreciate your cooperation with my inquiries.

[00:17:13] Speaker 00:
I think we all do because we honestly didn't dismiss this case because we wanted to hear an attempt to sort out what's going on in this case.

[00:17:25] Speaker 00:
Thank you so much.

[00:17:31] Speaker 00:
Mr. Bader, do you object to being sent back to mediation?

[00:17:37] Speaker 00:
No objection.

[00:17:37] Speaker 00:
Okay.

[00:17:38] Speaker 00:
All right.

[00:17:40] Speaker 00:
I will not be submitting this case at this time, and we will issue the appropriate order after we discuss where we should go with this.

[00:17:52] Speaker 00:
Thank you, counsel.