[00:00:08] Speaker 01: Good morning, Your Honors. [00:00:09] Speaker 01: Jesse Agostin, Federal Defenders, on behalf of Mr. Avalos. [00:00:13] Speaker 01: A deciding officer gave the country's last word in Mr. Avalos's immigration case. [00:00:19] Speaker 01: That officer was in your carbon copy of the officer in Nishimura Ekyo, and he unilaterally issued a final decision in an administrative adjudication. [00:00:28] Speaker 01: So he was subject to the appointments clause, and this court should remand for the district court to consider the remaining prongs of 132060 in the first instance. [00:00:38] Speaker 01: So I'd like to begin with the significant authority deciding officers have. [00:00:44] Speaker 00: Could you could you begin with the continuing and permanent office because we have cases saying it has to be set out by statute or regulation and the deciding officer is not [00:00:59] Speaker 01: So deciding officer's roles are clarified in 8 CFR 238.1D. [00:01:07] Speaker 01: This court has also said BIA officers, similarly, their role is set out only by regulation, not statute. [00:01:15] Speaker 01: But that is sufficient to establish continuing duties. [00:01:22] Speaker 01: So to go to what those duties are under the regulation, [00:01:26] Speaker 01: Deciding officers decide someone's citizenship, including derivative citizenship claims, which get real complicated real fast. [00:01:37] Speaker 00: So the deciding officer is sort of a random employee, right? [00:01:43] Speaker 00: That's in 238.1A. [00:01:46] Speaker 00: And there's no permanent deciding officer, deciding service officer role. [00:01:51] Speaker 00: That's what stopped me. [00:01:54] Speaker 00: It says deciding service officer is the district director, chief patrol agent, other immigration officer. [00:02:01] Speaker 00: There's nothing that says that's the salary, term, duties, emoluments, all of the things that our cases have said are required for an inferior officer. [00:02:14] Speaker 01: So the government largely did not make that argument. [00:02:16] Speaker 01: It makes one argument, just as far as I understand it, stating the regulation is insufficient and need to be established by statute, which this court has held otherwise. [00:02:25] Speaker 01: But I will say it does establish duties pretty extensively. [00:02:28] Speaker 01: And the Supreme Court's recent case in Kennedy v. Braidwood, that case established that volunteers to the task force there [00:02:38] Speaker 01: were still sufficient to be officers even though they weren't getting paid, but their duties were established by statute and that is why their role was continuing. [00:02:53] Speaker 01: When it comes to what those duties are, not only do they decide citizenship, they decide specific immigration status, they decide the conviction as a factual matter, and then they decide whether the conviction is an aggravated felony as a legal matter. [00:03:08] Speaker 01: They decide extensions under the regulation. [00:03:10] Speaker 01: They can decide bond under the regulation. [00:03:13] Speaker 01: And then taking all this information to account, if they need additional evidence, they can go out and get it. [00:03:19] Speaker 01: They can obtain additional evidence from any source, including the alien. [00:03:22] Speaker 01: And then they issue orders like the one in this case that contains, quote, findings of fact and conclusions of law. [00:03:30] Speaker 01: So for that reason, they do have significant authority, just like the officers in Nishimura-Eku. [00:03:35] Speaker 04: But, I mean, if you look at our other cases that discuss officer, you know, Freytag, Lucia, you know, and our circuit, Duanus, [00:03:43] Speaker 04: They involved ALJs that held trials or full extensive appellate proceedings. [00:03:52] Speaker 04: Here the deciding officer really decides on a very small discrete issue and for the most part admittedly there may be some edge cases but [00:04:00] Speaker 04: For the most part, it's almost ministerial, very easy, just a matter of fact, you can resolve it very quickly. [00:04:08] Speaker 04: So it does seem like you're trying to extend that beyond what the case law has established about significant authority. [00:04:14] Speaker 01: Respectfully, Your Honor, deciding whether a conviction is an aggravated felony is not clear cut. [00:04:20] Speaker 04: It is. [00:04:20] Speaker 04: There are some cases we get those, but for the most part, it's pretty straightforward. [00:04:24] Speaker 04: In probably 90, you know, whatever, you know, plus percent of the cases. [00:04:28] Speaker 04: It's a pretty straightforward determination for a deciding officer. [00:04:31] Speaker 01: I would point, Your Honor, in two directions. [00:04:34] Speaker 01: The first is to independent counsel in Morrison. [00:04:37] Speaker 01: So there, the independent counsel was empowered to perform, quote, certain limited duties [00:04:43] Speaker 01: limited in jurisdiction, limited in tenure, but they need final decisions on those. [00:04:49] Speaker 04: I know the majority, but everyone now looks at the dissent, and dissent points out that it's not limited jurisdiction, it's vastly more powerful than what the majority is characterized as. [00:04:59] Speaker 01: But of course, this court is subject to the majority opinion. [00:05:02] Speaker 01: And I'd also point this court to Nishimura Eku. [00:05:04] Speaker 01: The immigration inspector there decided a very narrow set of removal grounds. [00:05:09] Speaker 01: The inspector had the power to put people under oath, but didn't in that case, had the power to collect additional evidence, but didn't. [00:05:16] Speaker 01: It was a simple public charge case. [00:05:18] Speaker 01: And this court, or sorry, the Supreme Court said the case turned on the validity and effect of the inspector as an inspector and said because his appointment was not [00:05:29] Speaker 01: illegal under Constitution Article 2, Section 2, that the inspector of immigration was duly appointed. [00:05:37] Speaker 01: It is very hard to differentiate this inspector here with limited number of grounds, with the potential to do evidentiary work, but no need to in many cases. [00:05:49] Speaker 01: Distinguish them as an inferior officer. [00:05:52] Speaker 01: And I'll say, despite all of the recent case law and sort of a reinvigoration of the appointments clause when it comes to ALJs, [00:05:59] Speaker 01: ALJs are not the only inferior officers in that vast executive branch. [00:06:04] Speaker 01: And the Supreme Court has said that it puts significant weight on historical practice. [00:06:10] Speaker 01: So that's why Nishimura Eku was really relevant. [00:06:14] Speaker 01: I want to make sure I hit fundamental unfairness. [00:06:16] Speaker 01: I think that's the other major contested issue in this case, unless this court has any other questions. [00:06:22] Speaker 01: So I'll point out that it's fundamentally unfair to be adjudicated by someone without any authority under Article 2. [00:06:30] Speaker 01: SILA law says a litigant challenging governmental action as void on the basis of separation of powers is not required to prove that the government's course of conduct would have been different in a counterfactual world. [00:06:43] Speaker 01: Now, we're in a different situation than a direct appeal, right? [00:06:46] Speaker 01: We're in 1326D. [00:06:48] Speaker 01: But even under EDPA, fundamentally unfair errors are not reviewed for prejudice. [00:06:54] Speaker 01: EDPA is, I think, a higher bar than 1326D, because there have been so many courts adjudicating that issue. [00:07:00] Speaker 01: But even still, this court has held en banc that when an error is structural, it is not subject to harmless error review of any kind, even in habeas proceedings. [00:07:12] Speaker 01: I'll say Mendoza-Lopez left open that some errors necessarily render a trial fundamentally unfair. [00:07:18] Speaker 01: even without a showing of prejudice, like adjudication by a biased judge. [00:07:23] Speaker 01: And pro a tovar, this court's en banc case, similarly held that there may be circumstances in which some errors are so fundamentally unfair, a showing of prejudice can't be made. [00:07:34] Speaker 02: It's hard on these facts to find fundamental and fairness [00:07:42] Speaker 02: in a different sense, isn't it? [00:07:44] Speaker 02: I mean, there's little doubt that, or is there serious doubt? [00:07:49] Speaker 02: What doubt is there about whether his underlying conviction was an aggravated felony? [00:07:56] Speaker 01: So this court's case law says it was, right? [00:07:59] Speaker 01: And there's nothing in this record to show relief like cat relief or other forms of relief, although those are available in administrative removal. [00:08:08] Speaker 01: But some fundamental unfairness comes not from the possibility of a change in outcome, but from fundamental separation of powers problems. [00:08:19] Speaker 01: Appointments clause remedies are supposed to have bite. [00:08:23] Speaker 01: They're designed to create incentives to raise appointments clause. [00:08:25] Speaker 02: Well, it's not meant to be gotcha. [00:08:27] Speaker 01: No. [00:08:27] Speaker 02: And as you emphasize, fundamental fairness is kind of the underlying question here. [00:08:33] Speaker 02: And it's hard to find fundamental unfairness here, given that he [00:08:39] Speaker 02: what I think we found by any body making the determination to have previously been convicted of an aggravated felony. [00:08:46] Speaker 01: So here's an analogy. [00:08:47] Speaker 01: If somebody confesses to a crime and there are 20 eyewitnesses, Public Street says, this guy definitely did it. [00:08:55] Speaker 01: If at his trial he's adjudicated by a biased judge, he shows fundamental unfairness, even though no person in their right mind would look at that record and go, [00:09:05] Speaker 01: Well, maybe he didn't do it. [00:09:07] Speaker 01: The same holds true when it comes to adjudicating without Article II authority. [00:09:12] Speaker 01: It's a really important basic separation of powers issue that comes to the president being able to control this huge bureaucracy. [00:09:19] Speaker 00: Is that the same sort of structural error that's a bias judge? [00:09:24] Speaker 01: Yes, bias judge is structural error. [00:09:26] Speaker 00: But is your appointment clause violation the same sort of structural error? [00:09:33] Speaker 01: Well, it's fundamentally under a different part of the Constitution. [00:09:36] Speaker 01: But I would say, yes, it's a structural error. [00:09:38] Speaker 01: Is there a case that says, [00:09:40] Speaker 01: Yeah, the DC Circuit has said that at Landry. [00:09:43] Speaker 01: There's certainly no rule that a party claiming constitutional error must show a direct causal link between the error and the authority's adverse decision. [00:09:51] Speaker 01: I don't know that the government in their briefs even really objects to the issue being structural. [00:09:57] Speaker 01: It just objects to how you raise structural arguments in the context of 1326D. [00:10:05] Speaker 00: You want to save some time for rebuttal? [00:10:07] Speaker 01: Yeah, I'll save the remainder of my time for rebuttal. [00:10:09] Speaker 01: Thank you. [00:10:10] Speaker 00: We'll hear from the government. [00:10:19] Speaker 03: Good morning. [00:10:20] Speaker 03: May it please the court? [00:10:21] Speaker 03: Zach Howell on behalf of the United States. [00:10:23] Speaker 03: Judge Akuta, let me start where you started, which is this question of continuing and permanent employment. [00:10:29] Speaker 03: I think what sets this case apart from the situation of an IJ or a BIA judge is that an IJ or a BIA judge, that's a full-time job. [00:10:38] Speaker 03: They're not moonlighting, making arrests, or something like that. [00:10:42] Speaker 03: But Judge Akuta, as you note, the regulation governing deciding officers is very self-consciously taking from pre-existing positions. [00:10:52] Speaker 03: So it mentions a district director, a chief patrol officer, or someone that they designate. [00:10:57] Speaker 03: a chief patrol officer, that's an existing position with existing duties. [00:11:02] Speaker 03: So the regulation is contemplating that someone could act as a deciding officer one day and not the next. [00:11:09] Speaker 03: Maybe they won't act as a deciding officer again for a week or a month or a year. [00:11:13] Speaker 03: So I do think it's hard to categorize this as a continuing and permanent position just by the very way that the regulation is written. [00:11:23] Speaker 04: But in Kennedy versus Braidwood, the court at least assumed, I don't think it was really at issue, the issue was really principal versus inferior officer, but the court assumed that people in this HHS task force were officers. [00:11:36] Speaker 03: I think that's correct, but there, as I read it at least, these are dedicated HHS task force officers who remain task force officers [00:11:50] Speaker 03: for the duration of their term and they're continually giving out these recommendations that then become covered in insurance. [00:11:57] Speaker 03: It's not a changing position where they stop being a task force officer for some period of time, as I read it at least. [00:12:05] Speaker 03: That's not the case for these deciding officers because, again, it's existing positions that can be doing other things. [00:12:13] Speaker 03: Maybe they'll be a deciding officer day in and day out, [00:12:16] Speaker 03: Under the regulations, they very well could be a deciding officer one day and not the next. [00:12:23] Speaker 03: But even if you look to the other prong for inferior officers, significant authority, deciding officers don't exercise either significant procedural or substantive authority. [00:12:34] Speaker 03: I'll start with procedural. [00:12:35] Speaker 03: I think that one's relatively straightforward. [00:12:37] Speaker 03: Unlike an IJ, unlike an SECALJ, unlike a special trial judge, [00:12:44] Speaker 03: A deciding officer is not holding a trial, they're not taking testimony, they're not examining witnesses, they're not enforcing compliance with discovery orders or issuing sanctions or anything like that. [00:12:58] Speaker 03: They are deciding cases by looking at the issuing officer's filing and supporting evidence and a written response. [00:13:06] Speaker 03: So this court has described them as summary proceedings before and that's really what they are. [00:13:11] Speaker 03: It's meant to be decided on the papers. [00:13:13] Speaker 03: In fact, I point out in my answering brief that I'm not aware of an instance in which a hearing has ever been held in an administrative removal proceeding. [00:13:21] Speaker 03: And my friend on the other side doesn't point to any example of that taking place. [00:13:25] Speaker 03: So procedurally, this is night and day between a deciding officer and an IJ or other positions. [00:13:32] Speaker 04: In assessing significant authority, should we consider the fact that the setting officer's decision is final? [00:13:38] Speaker 04: Is that a factor we should consider? [00:13:40] Speaker 03: It's absolutely a factor you should consider. [00:13:42] Speaker 03: I certainly agree with my friend on the other side on that, but it is not the end-all be-all of inferior officer status. [00:13:48] Speaker 03: We point to a few examples of instances where officials have had final authority and yet have not been deemed inferior officers. [00:13:55] Speaker 03: One is the Offmort v. Headon case from 1890 where the Supreme Court held merchant appraisers. [00:14:02] Speaker 03: were not inferior officers, even though they made final assessments on the value of goods subject to tariffs. [00:14:09] Speaker 03: Another is the Tucker v. C.I.R. [00:14:11] Speaker 03: case from the D.C. [00:14:12] Speaker 03: Circuit, where it held that IRS Office of Appeals officials were not inferior officers, even though they had final say over certain tax matters. [00:14:21] Speaker 03: One more I can add to the mix. [00:14:23] Speaker 03: My friend on the other side cites the 2025 memorandum from the OLC on the Appointments Clause. [00:14:31] Speaker 03: If you look at page 16 of that memorandum, it cites as an example line federal agents or prosecutors and [00:14:41] Speaker 03: says that they might not be inferior officers. [00:14:43] Speaker 03: And the example it gives is the Steele v. United States case from the Supreme Court, where Chief Justice Taft concluded that Deputy U.S. [00:14:52] Speaker 03: Marshals were not inferior officers, even though they have powers to [00:14:56] Speaker 03: execute warrants, enforce the laws, execute writs, things of that nature. [00:15:03] Speaker 03: So finality is certainly not the end-all be-all. [00:15:06] Speaker 03: You have to look at the significance of the authority, the discretion exercised, and here those things set deciding officers apart from all of the other positions the courts have held to be inferior officers. [00:15:18] Speaker 03: Unlike an IJ, [00:15:20] Speaker 03: A deciding officer is not addressing all aliens, they're only addressing non-resident aliens. [00:15:25] Speaker 03: Unlike an IJ, they're not addressing the full spectrum of removability grounds, they're only addressing aggravated felonies. [00:15:33] Speaker 03: Unlike an IJ, they're not applying these exemptions from removal grounds, with perhaps the exception of if you've been pardoned for your crime. [00:15:42] Speaker 03: They really are just asking if you've been convicted of an aggravated felony. [00:15:47] Speaker 03: And then they also, unlike an IJ, are not applying any grounds for relief from removal. [00:15:52] Speaker 03: They're not authorized to do that. [00:15:55] Speaker 03: Now, given my duty of candor to the court, I will never claim that the categorical approach is an easy thing to apply. [00:16:01] Speaker 03: But Judge Lee, I think you're right that the hard cases will tend to be a very, very niche area. [00:16:09] Speaker 03: Misdemeanors are out by definition. [00:16:11] Speaker 03: Many common crimes are not going to qualify as aggravated felonies, property crimes, petty theft, immigration offenses. [00:16:18] Speaker 03: Many crimes will actually be pretty easy to categorize because you don't have to do the categorical approach. [00:16:23] Speaker 03: They fall within enumerated aggravated felonies. [00:16:26] Speaker 03: So really that just leaves you with this crime of violence category. [00:16:29] Speaker 03: And even there, not all cases are going to be hard. [00:16:32] Speaker 03: Any intentionally violent crime is probably going to qualify. [00:16:36] Speaker 03: And even in the tough cases, you will often have a BIA decision or court decision on point. [00:16:41] Speaker 03: So we're talking about a very, very niche category of cases, again, within the singular category of cases that deciding officers are actually able to consider. [00:16:51] Speaker 03: So I don't think it can be said that that places them on par with an immigration judge or a BIA judge. [00:16:59] Speaker 03: My friend on the other side says that the ECU case is dispositive here. [00:17:04] Speaker 03: The ECU case is not dispositive here because it simply did not address the appointments clause. [00:17:12] Speaker 03: Neither party cited the appointments clause in their briefs. [00:17:17] Speaker 03: claim in that case was in fact the exact opposite of an appointments clause argument because the alien in that case was saying that the inspector who ordered her removal should have been appointed by a lower level position, not a department head. [00:17:31] Speaker 03: It's certainly true that the Supreme Court devoted one sentence to the Appointments Clause, but it simply wasn't necessary for what was ultimately a statutory interpretation question. [00:17:41] Speaker 03: And that's why no court that I'm aware of has cited ECU as Appointments Clause authority in the 130 years since it was decided. [00:17:48] Speaker 03: But as I point out, even if it were binding authority on this court, I think it would help us more than it hurts, because the immigration inspectors of 1892 had far more power than the deciding officers here, both procedurally and substantively. [00:18:04] Speaker 03: Procedurally, they were making the arrest in the first place. [00:18:07] Speaker 03: They were conducting the investigation and the inspection, which could include a medical examination. [00:18:13] Speaker 03: So in that sense, they were more like the arresting officer and the issuing officer than the deciding officer. [00:18:18] Speaker 03: And then even in their deciding powers, they had more procedural powers. [00:18:24] Speaker 03: The statute expressly contemplated taking testimony, which isn't the case here. [00:18:28] Speaker 03: And then as to the substantive powers, they were applying the full spectrum of grounds for removal, like having a certain disease or being a public charge or things beyond just the crime that was committed. [00:18:41] Speaker 03: So I don't think ECU ultimately helps my friend on the other side here. [00:18:46] Speaker 03: Maybe just to wrap up this discussion, I think maybe one kind of broader point to make is that the Supreme Court has always conceived of [00:18:56] Speaker 03: the officer label as being very narrow. [00:19:00] Speaker 03: So I'll point you to footnote nine from a free enterprise fund case. [00:19:04] Speaker 03: There the Supreme Court cites a case from 1879 and that case said that nine-tenths of the persons rendering services to the government undoubtedly would not be officers. [00:19:14] Speaker 03: And then the Supreme Court goes on to say that the applicable proportion has of course increased dramatically since 1879. [00:19:22] Speaker 03: So by the Supreme Court's own estimation, far less than nine-tenths of officials within the government should be deemed officers. [00:19:31] Speaker 03: I think if the Court here were to conclude that deciding officers were inferior officers, it would be making the exception the rule. [00:19:38] Speaker 03: Because many of the authorities that my friend on the other side relies on are things that are common to almost all federal officers, things like the ability to [00:19:48] Speaker 03: Execute a search warrant or make an arrest or put someone under oath So I think the court can conclude on the merits that these are not inferior officers If there are no other questions on that I'll spend a minute on the final prong d3 under 1326 D I Think it's undisputed here that [00:20:13] Speaker 03: If Avalos had been placed before an immigration judge, he would have been removed from the country and he would have received no relief from removal. [00:20:20] Speaker 03: If he had been placed before a deciding officer who had been appointed by the DHS secretary or the attorney general or the president himself, he would have been removed from the country and would have received no relief from removal. [00:20:32] Speaker 03: He suffered no prejudice from this alleged violation here. [00:20:37] Speaker 03: Now, the argument my friend on the other side is making is that there's no showing of prejudice necessary because this is structural error. [00:20:44] Speaker 03: But I simply don't think that's consistent with the text of 1326D, with Palomar Santiago, or even with other collateral attack contexts. [00:20:56] Speaker 03: It's not consistent with 1326D because that statute says that you cannot attack the validity of a removal order unless you meet prongs D1, 2, and 3. [00:21:08] Speaker 03: And Palomar Santiago has concluded that based on that language, all prongs are in fact mandatory. [00:21:15] Speaker 03: And that has always been interpreted to require a showing of prejudice, even going back to this court's en banc decision in Proetovar. [00:21:23] Speaker 03: The court said there that the only time you wouldn't need to show prejudice is if you were subject to a removal that wouldn't have occurred. [00:21:31] Speaker 03: And here, that's simply not the case. [00:21:33] Speaker 03: But then if you want to look at the collateral attack context and other contacts, page 34 and 35 of our brief, we cite the Martinez case, which is a 2254 case from this court. [00:21:45] Speaker 03: We cite the Pollard case, which is a 2255 case from this court. [00:21:50] Speaker 03: Both of those cases said that you have to show prejudice even when you're dealing with a structural error if you're in that collateral attack context. [00:22:00] Speaker 03: The Pollard case cites the Weaver versus Massachusetts case from the Supreme Court in which the Supreme Court in a 2254 case also held that you have to show prejudice even if it's structural error. [00:22:12] Speaker 03: There it was a violation of the right to a public trial and the court still said that you had to show prejudice. [00:22:18] Speaker 03: So to the extent that the case my friend on the other side is citing from back in 2008 is inconsistent with that Supreme Court case and is inconsistent with the more recent cases from this court, the court should be applying the Supreme Court's precedent and this court's more recent precedent. [00:22:33] Speaker 03: So again, I think whether you're looking at the text of the statute, whether you're looking at Palomar Santiago, whether you're looking at other collateral attack contexts, this court should be concluding that there was no prejudice here and D3 was not satisfied. [00:22:48] Speaker 03: The only other times I'm aware of that this court has excused prejudice would be Ochoa Orgel, which dealt with an LPR who was wrongly removed as an aggravated felon, neither true here. [00:23:01] Speaker 03: And Valdivia Flores, which also dealt with someone wrongly removed as an aggravated felon, which again isn't the case here. [00:23:08] Speaker 03: And Judge Lee, you've written in your Gambino Ruiz concurrence that it may not even be good law on prejudice to begin with. [00:23:17] Speaker 03: So for all those reasons, I think the court, if it were inclined, can avoid the Appointments Clause issue altogether and simply rule on prejudice. [00:23:27] Speaker 03: Otherwise, I would ask the court to affirm on the merits. [00:23:30] Speaker 03: If there are no other questions, I'm happy to yield the remainder of my time. [00:23:33] Speaker 00: All right. [00:23:33] Speaker 00: Thank you. [00:23:44] Speaker 01: Thank you. [00:23:44] Speaker 01: So Judge Lee, I'll start by answering your question about the role a final decision plays in the officer analysis. [00:23:52] Speaker 01: Whether someone unilaterally issues a final decision is, of course, very important in the Appointments Clause analysis. [00:23:59] Speaker 01: The Supreme Court in seal of law said the power to unilaterally issue final decisions and administrative adjudications is a significant executive power. [00:24:08] Speaker 01: It's very important in the scope of the officer analysis. [00:24:14] Speaker 01: And then once you've established that you've, the officer has the last word authority, then the question often becomes whether they're inferior or a principal officer. [00:24:25] Speaker 01: Now we would not argue these officers here in this case are principal officers because their jurisdiction is narrow. [00:24:33] Speaker 01: And the Supreme Court said that sort of the balance of the breadth of jurisdiction with the last word authority is relevant to inferior versus principal. [00:24:45] Speaker 01: That's not the world we're in, right? [00:24:48] Speaker 01: I will also say I think this issue is fixable. [00:24:53] Speaker 01: The government talks about suggesting that this would apply to a really broad set of officers. [00:24:59] Speaker 01: In my experience, I've only ever seen these administrative removals issued by either a field office director or an assistant field office director. [00:25:07] Speaker 01: There are only 25 ICE field offices in the country. [00:25:10] Speaker 01: So we're really talking about, you know, less than 100 people who the ICE secretary or the DHS secretary could sign a piece of paper with their names and then they're properly appointed. [00:25:21] Speaker 01: So the breadth of this issue is not a huge one. [00:25:29] Speaker 01: I will also say on the continuing authority, continuing duty issue, Freitag has said the fact that an inferior officer on occasion performs duties that may be performed by an employee not subject to the appointments clause does not transform a status. [00:25:47] Speaker 01: And in fact, many of the appointments clause cases over the years, [00:25:50] Speaker 01: deal with people who do employee actions many days but also do inferior officer actions on others. [00:26:07] Speaker 04: real position where someone's appointed, it's almost kind of ad hoc. [00:26:11] Speaker 04: Whoever's not busy, you know, hey, you come here, you can be the deciding officer. [00:26:17] Speaker 04: It doesn't fit into any doctrinal analysis, but it doesn't seem that someone who exerts significant authority or is in a continuing position. [00:26:23] Speaker 04: It just seems intuitively very odd to consider someone like that if you have a kind of ad hoc job to be deemed an officer. [00:26:33] Speaker 01: I recognize the, you know, court's uncertainty with that. [00:26:36] Speaker 01: I'll say in my experience, this is not like a one removal a year, these assistant field office directors or field office directors are doing. [00:26:43] Speaker 01: This is a core part of their job. [00:26:45] Speaker 01: They do other things too, but they do also issue final removal orders on behalf of the United States that are not subject to appeal to the attorney general, not subject to appeal to the BIA. [00:26:56] Speaker 01: In this limited jurisdiction area that they are regularly engaging in, [00:27:02] Speaker 01: This is a really important adjudication. [00:27:05] Speaker 04: It's come to suggest that this is such a simple task that, you know, we can get anybody, you know, as long as it's not the issuing officer, whoever, you know, and the DHS can come in and complete this task. [00:27:16] Speaker 01: I mean, I certainly, the Attorney General is optimistic. [00:27:19] Speaker 01: It would be a simple task. [00:27:20] Speaker 01: I've often seen these administrative removal orders allege a conviction that turns out is not an aggravated felony. [00:27:26] Speaker 01: The robbery in this case is actually a great example. [00:27:28] Speaker 01: Second degree robbery in California has been subject to litigation for [00:27:32] Speaker 01: about the past decade, and it was only in 2019 that this court firmly said, okay, so it's not a crime of violence, and that's what you alleged, officer, but actually it's a theft offense that qualifies as an aggravated felony. [00:27:44] Speaker 01: And so it is very complicated and subject to lots of dispute that we regularly see, I regularly see in my practice. [00:27:54] Speaker 01: I would also just ask this court to look at ECU. [00:27:57] Speaker 01: I think the government is incorrect to say that those officers have substantially more authority than the officer here has. [00:28:03] Speaker 01: It's a very narrow set of grounds there, too. [00:28:05] Speaker 01: I think it was four or five grounds of removal, as opposed to every possible kind of aggravated felony. [00:28:11] Speaker 01: And the officer in that case did not do any additional evidentiary work, but the fact that he had that power was relevant. [00:28:19] Speaker 01: I will say at that time the Supreme Court practice was very different. [00:28:24] Speaker 01: Briefs were brief. [00:28:26] Speaker 01: I think at the time oral argument had been limited to three hours a party, which was a source of controversy. [00:28:33] Speaker 01: And so what is contained in the briefs is not the end all be all of what the arguments were. [00:28:39] Speaker 01: If the court does not have any further questions, thank you. [00:28:45] Speaker 00: We thank both sides for their argument. [00:28:48] Speaker 00: The case of United States versus Avalos is submitted.