[00:00:00] Speaker 01:
Good afternoon, Your Honor.

[00:00:02] Speaker 01:
Good afternoon, Your Honors, and may it please the court.

[00:00:05] Speaker 01:
I would like to start off by reserving two minutes of my time for rebuttal.

[00:00:08] Speaker 01:
This case comes down to a singular issue, and that is that the BIA abused its discretion in holding that constitutionally sufficient notice of her hearing was given to Ms.

[00:00:18] Speaker 01:
Urquilla-Llanes.

[00:00:19] Speaker 01:
Based on the case law and the facts of the records, it is abundantly clear that it did.

[00:00:23] Speaker 01:
This court has recognized that even removal proceedings must conform with the Fifth Amendment's requirement for due process, which in this circuit has been determined that for due process to be effectuated, a non-citizen must be provided with a full and fair hearing that affords them the opportunity to present evidence and testimony in support of their case.

[00:00:46] Speaker 01:
Two key components of a full and fair hearing are notice and the ability for the non-citizen to understand the nature of their proceedings.

[00:00:53] Speaker 01:
Now, in this case, the record makes abundantly clear that Mesurki Allanes was never actually informed of her obligation under 8 USC 1229 A1F to keep the immigration court informed of any change in her address.

[00:01:09] Speaker 01:
They didn't do this when she was served... She was given a written form.

[00:01:13] Speaker 00:
I mean, she signed the NTA and the NTA has language in it that says that you have to keep the immigration

[00:01:22] Speaker 00:
court updated as to the address.

[00:01:24] Speaker 00:
Am I wrong on that?

[00:01:26] Speaker 01:
No, Your Honor, you're not.

[00:01:27] Speaker 01:
However, I will point out that that direction or that information was presented to her in a way that she could not understand.

[00:01:36] Speaker 01:
It was presented to her in English.

[00:01:39] Speaker 00:
Is it your position that the due process clause requires that we translate every form that we provide to aliens in their native language?

[00:01:51] Speaker 00:
Is that your position?

[00:01:53] Speaker 01:
Not every form, Your Honor.

[00:01:54] Speaker 01:
However, we're going to be, in this particular case, failure to keep the court updated of her address would essentially effectuate a waiver of her right to notice.

[00:02:06] Speaker 00:
What's your authority for the position that the due process clause requires that we provide that warning in her native language?

[00:02:16] Speaker 01:
Right, so in United States versus Reyes-Bonilla 671 F3D 1036, this court found that a waiver of rights cannot be found to have been considered in

[00:02:26] Speaker 01:
considered or intelligent where there is no evidence that it was first advised in the rights in a language that the non-citizen could understand.

[00:02:34] Speaker 01:
So in this case particularly if we're going to hold that she's going to waive her right to notice which is a constitutional right under the due process clause then therefore she has to be able to understand that failure to

[00:02:47] Speaker 01:
keep the court appraiser for any change in her address would result in her waiving that notice.

[00:02:53] Speaker 01:
In fact, one of the cases cited in the government's brief in, excuse me.

[00:03:01] Speaker 01:
The case were you just citing, was that Urbina Oseho or is that a different one?

[00:03:06] Speaker 01:
That was a different one.

[00:03:07] Speaker 01:
Urbina Oseho also does follow the same line of reasoning though, because in that case, in Urbina Oseho, this court also determined that

[00:03:16] Speaker 01:
because the respondent in that case or the non-citizen in that case was not advised of their obligation to keep the court informed of her change in address that she therefore did not receive the proper notice and could not comply with that requirement.

[00:03:29] Speaker 01:
Now obviously in that case was in order to show cause and we understand that that's different but the line of reasoning is still the same it concerned whether or not

[00:03:37] Speaker 01:
constitutional or whether or not the notice that was provided was constitutionally compliant.

[00:03:42] Speaker 01:
As I was stating, the case cited in the government's briefs Velasquez Escobar beholder 768 F3D 1000, which does state that a

[00:03:53] Speaker 01:
notice can be waived or the right to notice can be waived by failing to apprise the court of any change in address also highlights that where the respondent is not informed of their obligation to update the court

[00:04:11] Speaker 01:
of their address, they cannot receive proper notice.

[00:04:16] Speaker 01:
And so in this case, that's basically the same thing that happened.

[00:04:20] Speaker 01:
She had multiple interactions with ICE.

[00:04:23] Speaker 01:
She were with the government, first when she was taken into custody, then when she was released on her own recognizance, and then when she presented herself for an ICE check-in, and at no point was she informed of her obligation to keep the court updated on any change in her address.

[00:04:36] Speaker 01:
It also bears to note that in the board's decision,

[00:04:42] Speaker 01:
it states that because the notice to appear has a section on the second page which states that the obligation to keep the uh or the the the obligation to keep the court updated and the consequences of failing to appear to a hearing uh would were explained to her in Spanish however that would have been impossible to do because that section also states that she was informed of the date and time of her initial hearings which

[00:05:08] Speaker 01:
could not have been done.

[00:05:09] Speaker 00:
Well, no, that could easily mean that they just said, you know, it says that it'll be set and you'll get a subsequent notice that says that.

[00:05:18] Speaker 00:
So I don't view those as being directly contradictory.

[00:05:22] Speaker 00:
I understand the issue, but they can be reconciled in the way I just described.

[00:05:26] Speaker 01:
Right.

[00:05:27] Speaker 01:
But in this case, we have no reason to believe that they were as there is nothing that that actually shows or indicates that I have a question.

[00:05:36] Speaker 01:
Yes, your honor.

[00:05:36] Speaker 00:
I have a question about the declaration that was submitted because everything depends in terms of the factual support for the motion here on the declaration that was submitted.

[00:05:47] Speaker 00:
And it has it's very odd.

[00:05:50] Speaker 00:
The declaration is in English and is signed by the petitioner.

[00:05:56] Speaker 00:
And then it has a page that says, translator's declaration, and then says, I, Wendy Mariela Urquilla Llanes, attest to my competency to translate from Spanish to English, and I certify that Eugenio Lopez Ortiz's declaration has been accurately read back to him in Spanish word for word, and then appears to have your signature.

[00:06:20] Speaker 00:
What is this document?

[00:06:22] Speaker 01:
Correct, Your Honor.

[00:06:23] Speaker 01:
That would have been the declaration that was prepared and submitted in support of the motion to reopen.

[00:06:29] Speaker 01:
It does appear that there was a clerical error on that aspect in terms of the translator certification.

[00:06:36] Speaker 01:
What that should have said correctly is that it had been read to Ms.

[00:06:41] Speaker 01:
Urquellanes from English to Spanish word for word.

[00:06:47] Speaker 00:
Okay, and is that your signature on this page?

[00:06:50] Speaker 00:
Because it appears to be.

[00:06:52] Speaker 01:
Correct, Your Honor.

[00:06:52] Speaker 01:
At that time, I was not the attorney handling this case.

[00:06:56] Speaker 01:
At that time, it was being handled by Ms.

[00:06:59] Speaker 01:
Camille Cook, who was another attorney at this firm.

[00:07:03] Speaker 00:
So were you the person who translated this then, but didn't put your name on it, put this Eugenio Lopez Ortiz?

[00:07:11] Speaker 01:
I would have been the one that made that clerical error.

[00:07:13] Speaker 01:
Correct, Your Honor.

[00:07:20] Speaker 01:
Ultimately, to wrap, in this case, as I stated, Your Honor, the obligation to keep the court informed of any change in her address was not explained to Ms.

[00:07:29] Speaker 01:
Urquellanes in a language that she could not understand.

[00:07:32] Speaker 01:
And that failure to do that resulted in her essentially a waiver of her right to notice due to no fault of her own.

[00:07:39] Speaker 01:
And because she was not advised in a matter that she could understand of her right and her obligation to maintain the court appraised of any change, that

[00:07:49] Speaker 01:
The denial of that motion to reconsider and the subsequent denial by the Board of Immigration Appeals to grant the motion to reconsider is therefore an abuse of discretion.

[00:08:00] Speaker 02:
Okay.

[00:08:00] Speaker 02:
We'll give you time for rebuttal.

[00:08:01] Speaker 02:
Thank you.

[00:08:04] Speaker 02:
We'll hear from the government.

[00:08:08] Speaker 03:
May it please this court.

[00:08:09] Speaker 03:
My name is Andrew Oliveira.

[00:08:10] Speaker 03:
On behalf of the respondent, the Attorney General.

[00:08:13] Speaker 03:
The notice to appear here fully complied with the statutory requirement to provide a petitioner with notice that she was required to keep her address updated with both the immigration court and DHS.

[00:08:25] Speaker 03:
She admits that she did not do that.

[00:08:28] Speaker 03:
Accordingly, she was removed in absentia and now claims that she was not informed of her right.

[00:08:35] Speaker 03:
This court's case law, the statutory language, is fully consistent that the notice to appear was complied with the statutory language and that there is no due process violation for providing it in English without translating it either written or orally.

[00:08:52] Speaker 00:
What's your response to his argument that Reyes Bonilla requires that it have been translated into Spanish?

[00:09:02] Speaker 03:
Well, Your Honor, this court has consistently held that there is no due process violation when the notice to appear is provided in English.

[00:09:12] Speaker 03:
We've cited Sanchez Martin, also Flores Chavez, which we didn't cite in our brief.

[00:09:19] Speaker 03:
We would note that the due process claim was not raised until the reply brief.

[00:09:26] Speaker 03:
But even then on the merits, this court has never held that the due process clause requires that the notice to appear be translated into any language other than English.

[00:09:40] Speaker 00:
But Reyes Bonilla says that if a waiver of constitutional rights is required, that the waiver can't be predicated on a communication in the language that the person didn't understand.

[00:09:54] Speaker 00:
reading that correctly, and he says that that applies in these circumstances.

[00:10:01] Speaker 03:
It does not apply, Your Honor, because, again, the specific statutory requirement is that the notice be provided in English written on the notice to appear.

[00:10:16] Speaker 03:
That was done, and as this Court has held,

[00:10:21] Speaker 03:
complying with the statutory requirement cannot be a due process violation.

[00:10:26] Speaker 03:
Uh, there are simply no case law that supports the idea that the notice to appear must be translated.

[00:10:34] Speaker 03:
Um, there's just, there's simply no case law, your honor.

[00:10:46] Speaker 03:
Um,

[00:10:48] Speaker 03:
Briefly, we'd just like to point out that Urbina is not relevant in this case, simply because it was in order to show cause, which this court held the concern there in Urbina was that the regulations were unclear.

[00:11:03] Speaker 03:
This court did not reverse on a due process claim.

[00:11:06] Speaker 03:
The regulatory concerns are no longer present because Congress amended the statutory provision and subsequently the regulations were themselves amended.

[00:11:24] Speaker 03:
If there are no further questions, we ask that this court deny the petition for review as the board did not abuse its discretion in upholding the denial of the motion to reconsider.

[00:11:36] Speaker 02:
Okay, thank you.

[00:11:37] Speaker 02:
We'll hear rebuttal.

[00:11:38] Speaker 02:
Thank you.

[00:11:41] Speaker 01:
Thank you, Your Honors.

[00:11:43] Speaker 01:
I would like to start off by stating that Urbina Osejo, while not explicitly discussing due process and as a right notice, I'm sorry, as a due process right, it does specifically state that to overcome the presumption of adequate notice when notice of a deportation hearing was sent by a constitutionally adequate method, Urbina must present substantial and probative evidence demonstrating that there was improper delivery

[00:12:08] Speaker 01:
or that non-delivery was not due to her failure to provide an address.

[00:12:14] Speaker 01:
And so at its heart, Urbina Osejo did

[00:12:19] Speaker 01:
did touch on whether or not constitutionally adequate notice was provided to her.

[00:12:24] Speaker 01:
Now, as an extension of that, the court reasoned that because Ms.

[00:12:28] Speaker 01:
Udwina Osejo was not provided with that information, that she was obliged to do that by law, therefore there was that reasonable, it would be reasonable that she therefore would not appear at her hearing.

[00:12:41] Speaker 01:
And so that's why the motion to reopen should have been granted.

[00:12:44] Speaker 01:
Now, in this case, again, touching on constitutionality, the whole issue of notice is a constitutional issue at its heart.

[00:12:53] Speaker 01:
And so in hiding that, she was provided constructive notice where there was nothing on the record that shows that she was actually informed of her obligation to keep the court appraised of any change in her address.

[00:13:07] Speaker 01:
That in and of itself constitutes an abuse of discretion by the BIA.

[00:13:12] Speaker 01:
Thank you.

[00:13:13] Speaker 02:
Okay.

[00:13:15] Speaker 02:
Thank you to both parties for your arguments.

[00:13:18] Speaker 02:
The case is now submitted, and that concludes our arguments for the day.

[00:13:23] Speaker ?:
All right.

[00:13:30] Speaker 01:
Hear ye, hear ye, all persons having had business with the Honorable United States Court of Appeals for the Ninth Circuit will now depart for this court.

[00:13:38] Speaker 01:
For this session now stands adjourned.