[00:00:05] Speaker 02: Just watch your time if you want to reserve a rebuttal. [00:00:09] Speaker 01: Thank you, Your Honor. [00:00:15] Speaker 01: Good morning, Your Honors. [00:00:16] Speaker 01: Lynette Belsky, Federal Defenders of San Diego. [00:00:19] Speaker 01: I would like to reserve two of my minutes for rebuttal, please. [00:00:23] Speaker 01: Your Honors, the district court erred in determining that Mr. Gonzalez-Reyes did not satisfy prongs one and two of 1326D. [00:00:33] Speaker 01: For that reason alone, this court should reverse. [00:00:36] Speaker 01: Mr. Gonzalez has demonstrated that he satisfied all three prongs of 1326D. [00:00:42] Speaker 01: and Valdivia Flores still controls as to all three prongs. [00:00:47] Speaker 01: As to D1, Valdivia Flores addressed the exact form present here in Mr. Gonzalez's case, that is Form I-851. [00:00:57] Speaker 01: Form I-851 includes several check boxes that are options for non-citizens [00:01:03] Speaker 01: to check if they want to contest their removability. [00:01:08] Speaker 01: However, three of those four options are specifically geared towards resolving factual disputes, not legal ones. [00:01:16] Speaker 01: The government treats the fourth box as a catch-all option that would still allow a non-citizen to challenge the legal classification of their conviction. [00:01:26] Speaker 01: However, that's simply not the way that this court has interpreted that checkbox and similarly other circuits [00:01:31] Speaker 01: have not interpreted the checkbox in that way. [00:01:34] Speaker 01: The Ninth Circuit, in reasoning that these checkboxes were misleading and misled a non-citizen to believe that only a legal, that only a factual contestability would be appropriate in response to the form, the Fourth Circuit has similarly held that [00:01:55] Speaker 01: individuals in removal proceedings may follow the steps on the form and those steps do not include the option to contest legal determinations. [00:02:06] Speaker 01: The Fifth Circuit has gone even a step further and has determined that even if the form itself were corrected, the regulations do not allow for a non-citizen to use the form in that way. [00:02:19] Speaker 03: Didn't the form say that he could appeal to the Ninth Circuit? [00:02:23] Speaker 01: That is correct, Your Honor. [00:02:25] Speaker 03: And if he had appealed to this court, what would we have done with this? [00:02:29] Speaker 03: It's not an appeal really from anything. [00:02:30] Speaker 03: I mean, there's no fact finding. [00:02:32] Speaker 03: There's just a form. [00:02:34] Speaker 03: What could we have done with this? [00:02:36] Speaker 01: Well, Your Honor, the form itself alleged that Mr. Gonzalez was an aggravated felon under his conviction [00:02:45] Speaker 01: for a Cal Penal Code 261A2. [00:02:48] Speaker 01: So the forum did not give him an option to say, actually, I'm not an aggravated felon. [00:02:52] Speaker 01: The only box concerning the conviction itself allowed him to contest that he was actually not convicted of that offense. [00:03:00] Speaker 01: So for a non-citizen who is convicted of that offense and wants to challenge the legal classification of their conviction, [00:03:08] Speaker 01: Form I-851 does not present them an option to do so. [00:03:11] Speaker 01: The Third Circuit recently joined the Fourth and the Fifth Circuit in determining that the form cannot be used in the way that the government and the Eleventh Circuit suggest that it can. [00:03:22] Speaker 01: In reviewing Form I-851, the Third Circuit determined that it satisfies multiple ROS factors. [00:03:34] Speaker 01: The third circuit said, we are hard pressed to think of a more opaque way to put an alien on notice that DHS intends him to raise a legal challenge in response to the notice of intent, satisfying the second Ross factor. [00:03:50] Speaker 01: Here, we contend that Form I-51 is both a dead end and misrepresents options available to non-citizens. [00:04:01] Speaker 01: With respect to D2, [00:04:06] Speaker 01: Valdivia Flores has concluded that the waiver of the right to seek judicial review when it is not considered an intelligent can satisfy D2. [00:04:17] Speaker 01: The district court erroneously determined that even if there is no knowing and considered waiver that D2 would not be satisfied. [00:04:27] Speaker 01: That was [00:04:29] Speaker 01: error under Valdivia Flores. [00:04:32] Speaker 03: So is the judicial review that's contemplated by D2, is that review by any court, including this court? [00:04:38] Speaker 01: Yes, Your Honor. [00:04:40] Speaker 03: So the reference to our court would satisfy then the possibility of judicial review? [00:04:46] Speaker 01: No, Your Honor, because the reference to this court does not correct [00:04:51] Speaker 01: the misleading nature of the form itself. [00:04:53] Speaker 01: So even though there is a reference to this court and a reference to the possibility of circuit review, that reference does not correct the misleading information found on the form I-551. [00:05:05] Speaker 01: And this is because that does not provide any instruction that the conclusions of law or an aggravated felony finding classification could be appealed. [00:05:15] Speaker 01: recent case law confirms Valdevia Flores's point that it is the government's burden to show that [00:05:24] Speaker 01: by clear and convincing evidence that the non-citizen received adequate advisement of the consequences of his waiver of appeal. [00:05:30] Speaker 02: Are we bound by Valdivia Flores on this issue? [00:05:33] Speaker 02: Because Valdivia Flores didn't address the language in the final administrative removal order that has additional language about judicial review. [00:05:41] Speaker 02: So how should we handle Valdivia Flores? [00:05:45] Speaker 02: We only decide [00:05:46] Speaker 02: Cases based on whatever facts or legal arguments the parties present it seems like in build a build a via Flores They didn't address this language in the final administrative removal order your honor Yes, the the Language in the removal order similarly does not [00:06:08] Speaker 01: correct the misleading information found in Form 851, which Valdivia-Flores directly addressed. [00:06:16] Speaker 01: So Valdivia-Flores is still on point with respect to D2. [00:06:21] Speaker 01: Valdivia-Flores says this form is not enough to show a knowing and intelligent waiver of judicial review. [00:06:28] Speaker 02: So should we look at what Valdivia-Flores said and then look at what the language in the final administrative removal order does in kind of a denover review and figure out what it means, or do we just [00:06:39] Speaker 02: defer to Valdivia Flores? [00:06:42] Speaker 01: We defer to Valdivia Flores, Your Honor, because the logic and reasoning of Valdivia Flores was that if a noncitizen was not presented with an option to contest the classification of their conviction as an aggravated felony, then the subsequent appellate waiver is not knowing and intelligent because the agent is not or the noncitizen is not on notice that he is able to challenge his conviction in that way. [00:07:07] Speaker 00: Can you tell me how the Supreme Court's holding in Palomar Santiago impacts our analysis? [00:07:15] Speaker 01: Yes, Your Honor. [00:07:16] Speaker 01: The Supreme Court's holding in Palomar Santiago really did not overrule anything that's important here. [00:07:23] Speaker 01: Additionally, the Alfred on Bonk case overruled the categorical approach analysis, which we're not relying on here. [00:07:31] Speaker 01: What we're looking to for Valdivia Flores is specifically the analysis and reasoning [00:07:36] Speaker 01: that this form I-851 had deficiencies. [00:07:41] Speaker 01: The government has not presented any evidence that those deficiencies were corrected for Mr. Gonzalez. [00:07:48] Speaker 01: In fact, just like in Valdivia Flores, the government relies on the form's text to communicate options to him. [00:07:54] Speaker 01: The text itself doesn't communicate those options. [00:07:57] Speaker 01: And Valdivia Flores is not alone in determining that. [00:08:01] Speaker 01: Multiple circuits, the majority of circuits who have [00:08:04] Speaker 01: Considered this issue have determined the same. [00:08:06] Speaker 03: Before you before you before you have to sit down, would you please address D3 and tell us why you've satisfied that? [00:08:14] Speaker 01: Yes, of course your honor D3. [00:08:17] Speaker 01: D3 is satisfied because the California rape statute 261A2 is overbroad to constitute the generic definition of rape. [00:08:30] Speaker 01: This is because it includes sexual intercourse accomplished via economic or social coercion. [00:08:38] Speaker 01: When this court looks to the definition of rape and what generic rape is, the court [00:08:45] Speaker 03: Can you point to I'm sorry you used I'm trying to figure out where you've got the economic or social coercion Your honor it's I'm through through Through duress so so that's not it does those terms appear in the statute no duress appears in the stature Maybe we should talk about duress and not social coercion. [00:09:07] Speaker 03: I don't know what social coercion is but duress is a statutory term [00:09:10] Speaker 03: Your concern is it's over broad because it uses the word duress, which does not appear in the generic definition. [00:09:16] Speaker 01: The, your honor, the, when, yes, it references duress, but when you look to how California courts have defined duress and what is included within that definition, social and economic coercion are two of those items. [00:09:31] Speaker 01: I see that I'm running out of time, but I would point the court to Minsky and Serrano as demonstrations of California's use of the statute. [00:09:41] Speaker 03: It means direct or implied threat of force, violence, danger, [00:09:46] Speaker 03: or retribution? [00:09:47] Speaker 01: Retribution is the key word there, Your Honor. [00:09:49] Speaker 03: And you're reading retribution to mean what? [00:09:53] Speaker 01: Well, Your Honor, according to California case law, Minsky and Serrano, retribution would include social or economic retribution, which is why it is outside the bounds of generic rape. [00:10:04] Speaker 01: When this court has considered threats, rape via threat, for example, in Viscara Wilkinson, the court determined that [00:10:14] Speaker 01: a threat to property exceeded the bounds, the generic definition of rape. [00:10:18] Speaker 01: So it would be the same here. [00:10:19] Speaker 01: The social economic retribution is not within the generic definition of rape and looking at the MPC, the dictionary definition at the time, [00:10:29] Speaker 02: that rape was added to the INA in 1996, as well as the state statutes. [00:10:47] Speaker 02: or fear or under other prohibitive conditions. [00:10:50] Speaker 02: So doesn't other prohibitive conditions include duress and other similar things? [00:10:56] Speaker 01: No, Your Honor. [00:10:57] Speaker 01: That would include incapacitation. [00:10:59] Speaker 02: So it doesn't use those words as prohibitive conditions. [00:11:01] Speaker 02: It's a pretty broad term. [00:11:03] Speaker 01: Correct. [00:11:04] Speaker 01: But in the statutes that address this, so if we look again largely to the MPC and the state statutes that actually defined rape at the time, [00:11:15] Speaker 01: that Congress added it to the INA, it would be that rape could only be accomplished three ways. [00:11:21] Speaker 01: So one, through physical force, two, through threat of physical force or physical harm, [00:11:26] Speaker 01: And three, under incapacitation or other probative conditions. [00:11:29] Speaker 02: How should we balance this? [00:11:30] Speaker 02: We look at what the definition was at the time Congress passed the statute here. [00:11:34] Speaker 02: It's 1996, the immigration statute. [00:11:38] Speaker 02: The Blacks Dictionary, they quote, is 1990. [00:11:40] Speaker 02: MPC, I know they cite it, but MPC is from the 1960s. [00:11:44] Speaker 02: And it is a bit more narrow. [00:11:46] Speaker 02: I mean, how do we balance this? [00:11:48] Speaker 02: Shouldn't we look at the more recent definition? [00:11:51] Speaker 02: What do we do when there's a little bit of a conflict there? [00:11:53] Speaker 01: Your honor, I don't think we look at the most recent definition. [00:11:57] Speaker 01: This court looked at the sixth edition in Castro Bias. [00:12:02] Speaker 01: The definition that we should look to is the definition that [00:12:06] Speaker 01: was in place at the time that Congress added this very specific term of rape to the INA. [00:12:13] Speaker 01: Now, with respect to minors, the Congress said sexual abuse of a minor. [00:12:18] Speaker 01: So it intended it to be more vague and broad to cover a wider scope of conduct. [00:12:23] Speaker 01: But rape is a very specific term, and it was very specific at the time that it was added to the INA. [00:12:28] Speaker 01: The majority of states [00:12:30] Speaker 01: and the dictionary and the MPC do not include this social economic retribution component. [00:12:37] Speaker 01: While I can appreciate that California has progressed and has added these other ways of committing crimes to the statute, it's not rape. [00:12:49] Speaker 01: It's gross sexual imposition. [00:12:51] Speaker 01: It's something else, but it's not rape. [00:12:53] Speaker 00: I do have one follow-up question. [00:12:54] Speaker 00: I know you're over time, but please indulge me here. [00:12:57] Speaker 00: I'm a little bit perplexed, I guess. [00:13:00] Speaker 00: Explain to me how the definition of rape by duress fits outside the federal generic definition, given that rape by its very nature is physical, right? [00:13:10] Speaker 00: The penetration is a physical violation of someone's body. [00:13:13] Speaker 00: So how is it that if you accomplish that part of it, the fact that what got you there was duress and maybe not holding someone down, how does that fall out of the federal [00:13:23] Speaker 00: generic definition. [00:13:25] Speaker 01: Yes, Your Honor. [00:13:26] Speaker 01: So the short answer to that is that when Congress added rape to the INA in 1996, there were very specific ways to commit rape. [00:13:36] Speaker 01: One of them was through force, one of them was through threat of force, and then incapacitation, so to the point where a victim could not consent for whatever reason. [00:13:45] Speaker 01: When we're talking about the California statute and we're talking about duress, [00:13:51] Speaker 01: California allows for sexual intercourse accomplished via social or economic coercion to be classified as rape and bundled into the same rape by force. [00:14:03] Speaker 01: So it's not, sure, it's not someone being held down, but it's a coercive social or economic way of... But it's still coercion. [00:14:20] Speaker 01: Yes, it is coercion. [00:14:21] Speaker 00: And it's still physical, given the penetration. [00:14:23] Speaker 01: That's where I'm... Well, sure, but it's not physical harm in the same way that physical force is, Your Honor. [00:14:32] Speaker 01: That's not the way that physical force was thought about at the time that Congress added. [00:14:36] Speaker 01: this term to the INA. [00:14:38] Speaker 01: And I would also point this court to Valdez Amador v. Garland, which is a different section of the California rape statute. [00:14:46] Speaker 01: It's 261A4. [00:14:52] Speaker 01: And in that case, this court considered a different section of California rape statute. [00:14:57] Speaker 01: It was raped by fraud. [00:14:58] Speaker 01: And the court determined that it owed the BIA deference to determine [00:15:03] Speaker 01: whether that specific section of the statute fell within the generic definition of rape. [00:15:08] Speaker 01: So it remanded back to the BIA. [00:15:11] Speaker 01: I think that that section is much closer to the section we're discussing today than the section in Castro Bias. [00:15:19] Speaker 03: Fraud is completely different. [00:15:21] Speaker 03: Somebody has misrepresented themselves. [00:15:25] Speaker 03: There may be a lie there, but there may not be any kind of coercion in the sense that California requires it here. [00:15:30] Speaker 01: There is a lie here, Your Honor. [00:15:32] Speaker 01: If you look at the cases from California, it involves specifically Minsky. [00:15:35] Speaker 01: It involves him duping. [00:15:37] Speaker 01: That's the word that the court uses. [00:15:39] Speaker 01: It involves him duping women into believing that if they don't engage in sexual intercourse with them, he's going to press charges for a hit and run. [00:15:48] Speaker 01: So it is a lie. [00:15:49] Speaker 01: It's a misrepresentation. [00:15:51] Speaker 03: But that's not fraud in the way that says, you shouldn't have sex with me because I'll take care of you because I'm a billionaire. [00:15:58] Speaker 03: That's a very different kind of fraud. [00:16:02] Speaker 01: Well, I respect the court's opinion on that. [00:16:05] Speaker 01: I think that it's much different than, for example, Castro-Bias, where this court considered a different section of the California rape statute that said, you know, rape via, it addressed incapacitation. [00:16:20] Speaker 01: I think that our issue is very narrow here. [00:16:26] Speaker 01: We're not saying that [00:16:27] Speaker 01: Rape requires force. [00:16:29] Speaker 01: We're not saying that rape requires a threat of force. [00:16:32] Speaker 01: What we are saying is that when rape can be accomplished via threat, it must be a threat of physical force or physical harm. [00:16:41] Speaker 01: And this court, similarly, when considering the threat to property, rape via threat to property, decided that that was not sufficient. [00:16:49] Speaker 01: That's outside the generic bounds of rape. [00:16:52] Speaker 01: And the government failed to address that case at all in its response. [00:16:57] Speaker 02: Great. [00:16:57] Speaker 02: Thank you. [00:16:58] Speaker 02: I know we've taken you well over time. [00:16:59] Speaker 02: We'll get an extra minute for rebuttal. [00:17:01] Speaker 01: Thank you, Your Honor. [00:17:13] Speaker 04: Good morning, Your Honors. [00:17:14] Speaker 04: May it please the Court, Andrew Chang for the United States. [00:17:17] Speaker 04: This court has multiple pathways to affirming the district court's order, and I want to just start with where we picked off, which is the federal generic definition of rape. [00:17:28] Speaker 04: The defendant claims that he was misclassified as an aggravated felon because his California statute of conviction swept more broadly than the federal generic definition. [00:17:40] Speaker 04: And from what I understood from the briefs, they defined federal rape as more limited, requiring some sort of forcible compulsion, like violence or the threat of violence. [00:17:52] Speaker 04: But this court has already addressed and rejected that argument in prior precedent. [00:17:58] Speaker 04: In Yanez-Soseto, which we discussed in page 33 of our brief, this court held that forcible compulsion is [00:18:07] Speaker 04: can but is not required in the commission of rape. [00:18:12] Speaker 04: And that case dealt with a very similar statute as the one here, which was third degree rape under Washington law. [00:18:20] Speaker 04: That statute criminalized non-consensual sexual intercourse without forcible compulsion or without the threat of violence or the use of violence. [00:18:32] Speaker 04: And it found that that statute was a categorical match with the federal generic definition of rape. [00:18:39] Speaker 04: I don't see any reason why this court should find a different outcome with the statute at issue here. [00:18:46] Speaker 04: It's a very similar statute. [00:18:48] Speaker 04: The statute here, the provision that we're talking about is non-consensual sexual intercourse under duress. [00:18:56] Speaker 04: And the defense is saying, well, the federal [00:19:00] Speaker 04: generic definition requires some sort of forcible compulsion, this court has already decided that it doesn't need to have that in the federal generic definition. [00:19:11] Speaker 03: But what do we do? [00:19:11] Speaker 03: I'm still a little concerned. [00:19:13] Speaker 03: I mean, California does use the word duress, which starts off in the definition as director-implied threat of force, violence, danger. [00:19:22] Speaker 03: Now, then it says, or retribution, and opposing counsel says, [00:19:26] Speaker 03: Yes, and California has accepted that retribution may mean something that would be far less than force, violence, danger. [00:19:34] Speaker 03: Those three terms seem to be very, very consistent with the overall generic definition. [00:19:39] Speaker 03: But if retribution concerns, you know, some kind of economic, you know, do this or, you know, I'll take your property away, you know, I'll foreclose on your house, does that, would that satisfy the generic? [00:19:55] Speaker 03: Yes, it would. [00:19:57] Speaker 04: Our position is that it would, because the federal direct definition is broad enough to cover that type of coercion. [00:20:06] Speaker 04: If indeed California would apply the statute in that way. [00:20:10] Speaker 04: Again, the statute in Washington, third degree rape, [00:20:14] Speaker 04: did not require forcible compulsion. [00:20:16] Speaker 04: It just required lack of consent and then an expression of non-consent. [00:20:21] Speaker 04: And I think that was very similar to the statutory issue here. [00:20:26] Speaker 04: If the statutory issue here could mean some sort of economic or social retribution, the federal generic definition would cover it. [00:20:35] Speaker 04: So the defendant was an aggravated felon. [00:20:38] Speaker 04: The defendant was properly removed under expedited procedures. [00:20:42] Speaker 04: But even if this court does not want to engage in the categorical analysis with respect to this California statute, it could still find that the defendant did not meet any of the three prongs of 1326D. [00:20:57] Speaker 04: And I just want to start first with the third prong, which is fundamental unfairness. [00:21:03] Speaker 04: the defendant can't show that even if his removal was Had a legal deficiency that his removal was fundamentally unfair And the reason is that it's indisputed that the defendant here had no lawful status in the United States It's indisputed that the defendant here had no plausible path to obtaining relief from removal And that's important the long-standing rule in the ninth circuit [00:21:28] Speaker 04: as recognized in Valdes Navoa is that to show prejudice, you have to be able to demonstrate some plausible avenue for relief from removal. [00:21:38] Speaker 04: And the defendant can't show that in this case because the defendant, one, again, had no lawful status in the United States, came to the United States unlawfully when he was an adult, and then spent the majority of his life, adult life, in the United States in prison [00:21:53] Speaker 04: for committing one of the most horrific crimes that one can think of. [00:21:58] Speaker 04: There was no plausible avenue to obtaining relief from removal in this case. [00:22:04] Speaker 04: And Valdivia's Flores really didn't alter that rule. [00:22:08] Speaker 04: And I want to talk about that a little bit because, yes, Valdivia Flores [00:22:13] Speaker 04: did say that the defendant was prejudiced because he was misclassified as an aggravated felon. [00:22:18] Speaker 04: But there was no analysis about, well, was that person actually prejudiced? [00:22:25] Speaker 04: It wasn't presented to the court in briefing. [00:22:27] Speaker 04: No part of that opinion considered the question of actual prejudice. [00:22:33] Speaker 04: And I would just submit that that does not constitute controlling binding precedent. [00:22:39] Speaker 04: To make such a sharp left turn from longstanding [00:22:42] Speaker 04: Ninth Circuit president and have no comment whatsoever on, well, you know, the rule in Valdes Novoa. [00:22:48] Speaker 04: You know, was the person actually prejudiced? [00:22:50] Speaker 04: I would submit that that does not constitute precedent that this court needs to follow. [00:22:56] Speaker 04: And this court does not have to allow precedent to develop in that way in the Ninth Circuit. [00:23:03] Speaker 04: So that goes to D3. [00:23:05] Speaker 04: And even if, you know, Valdivio Flores did create binding precedent with respect to prejudice, [00:23:12] Speaker 04: I would just say one more thing, that Palomar Santiago made it very clear that each of the three prongs have to be satisfied. [00:23:21] Speaker 04: And if Valdivia Flores presumed prejudice with respect to D3, that's just another way of excusing the need to demonstrate actual prejudice. [00:23:33] Speaker 04: And Palomar Santiago has made it very clear the excusal doctrines in the Ninth Circuit can't [00:23:39] Speaker 03: Can no longer so what does form I 851? [00:23:44] Speaker 03: How does this help us? [00:23:46] Speaker 03: I have to say I find the form myself very confusing. [00:23:48] Speaker 03: I've been doing this for a while [00:23:50] Speaker 03: And I read this, and I don't really understand what you're supposed to do. [00:23:53] Speaker 03: There's no IJ that's been involved. [00:23:55] Speaker 03: There's no BIA determination. [00:23:57] Speaker 03: There's no district court that's been involved. [00:23:59] Speaker 03: What would we do with this? [00:24:00] Speaker 03: If he had followed this and says, yeah, OK, I'll appeal. [00:24:04] Speaker 03: And not only that, I'm going to get it in within 14 days to make sure you don't move me from the country in the meantime. [00:24:09] Speaker 03: What would we have done with this? [00:24:13] Speaker 03: It's a petition of what I don't even I don't even know what this is okay? [00:24:17] Speaker 03: Let me try to address your question judge by the end the reason I'm asking is I'm just not sure that there really was Judicial review here if there's really sort of nothing for nothing nothing that we recognize I'm not aware of any appeal I've ever seen that it was an appeal from an eight You know an I eight eight five one order, so I just don't know what this looks like so I just don't understand [00:24:40] Speaker 03: what there was realistically that would have given him judicial review here. [00:24:44] Speaker 04: Oh, I think there's no question that the defendant had the opportunity to appeal to this court. [00:24:49] Speaker 04: And I understand that the form may not be a model of clarity. [00:24:53] Speaker 04: And I know we've talked, the defense has talked about those four boxes and that they're potentially confusing. [00:24:59] Speaker 04: And I also recognize that there's a circuit split on what those four boxes mean. [00:25:05] Speaker 04: But I think the point that I really want to drive home to the court is that those four boxes were confined to the defendant's administrative remedies. [00:25:17] Speaker 04: And that only has to do with 1326D1. [00:25:19] Speaker 04: 1326D2 has to do with his deprivation of judicial review. [00:25:27] Speaker 04: And there's nothing in the form that deprived him of his opportunity to take an appeal to this court. [00:25:33] Speaker 04: I mean, even if those four boxes were somewhat confusing, the form makes it very clear. [00:25:37] Speaker 04: Those four boxes were on the form that needs to be sent to the DHS. [00:25:43] Speaker 04: And sending stuff to the DHS is administrative review. [00:25:48] Speaker 04: It's administrative remedies. [00:25:50] Speaker 04: That's not the same thing as him taking an appeal to this court, the Ninth Circuit, and the form [00:25:57] Speaker 04: gave him no restrictions on his ability to appeal to this Ninth Circuit. [00:26:02] Speaker 04: And to your question, Judge Bybee, what would this court have done? [00:26:06] Speaker 04: I think if the defendant took an appeal to the Ninth Circuit and said, hey, I think they got it wrong, rape is not an aggravated felony, this court would then review that in a direct petition for review. [00:26:21] Speaker 04: Was the defendant an aggravated felon? [00:26:23] Speaker 04: was California Section 261. [00:26:25] Speaker 03: And we would ask for briefing in a case in which there had been no prior briefing. [00:26:30] Speaker 03: I can't think of another matter in which we would initiate briefing in that way when there is no underlying decision by an administrative agency or a district court. [00:26:39] Speaker 04: Well, I, you know, I think I would disagree with that and I would point the court to the 10th Circuit case in Belota Zarate versus Sessions. [00:26:48] Speaker 04: And pardon me, I didn't cite this in my brief, so I'm going to cite it now. [00:26:51] Speaker 04: 892 F third 1137 from the 10th circuit and that was a petition for review direct petition for review from a direct finding by DHS that the defendant was not an aggravated felon and so the the defendant did have that opportunity to [00:27:12] Speaker 04: if he wanted to make an appeal to the Ninth Circuit about the DHS's legal conclusion that he was an aggravated felon. [00:27:22] Speaker 04: And Congress required the defendant to at least attempt to make the showing before he can meet the prongs of 1326D, because you want defendants to appeal in the first instance and not appeal later [00:27:37] Speaker 04: on a collateral basis after they've been deported, come back to the United States once again, and then take up the issue. [00:27:45] Speaker 04: I mean, that's collateral review, and Congress has instituted some barriers to that. [00:27:52] Speaker 04: So to your point, Judge Bybee, I think he did have that opportunity to directly appeal to this court. [00:28:00] Speaker 04: I'm running out of time, but I want to make one final point that Valdivia Flores did not foreclose his need or didn't excuse his need to show that he was deprived of judicial review. [00:28:13] Speaker 04: The most that Valdivia Flores did was to show that the waiver in that case was invalid. [00:28:19] Speaker 04: But showing that the waiver is invalid is not the same thing as showing that you were deprived judicial review. [00:28:27] Speaker 04: What Valdivia Flores [00:28:29] Speaker 04: ruled was that the waiver in that case was invalid because he wasn't specifically told that he could appeal legal conclusions to the Ninth Circuit. [00:28:40] Speaker 04: But I don't think that's what deprivation of judicial review really means. [00:28:46] Speaker 04: The deprivation of judicial review inquiry doesn't require the government to advise the defendant of every conceivable basis in which he can appeal a finding. [00:28:56] Speaker 04: I think that's somewhat absurd. [00:28:58] Speaker 04: And I don't think it's workable. [00:29:00] Speaker 04: And it would stretch the word deprived beyond what it could really bear. [00:29:05] Speaker 04: All the government needed to do was to tell him, hey, you can appeal. [00:29:09] Speaker 04: And the government did that in this case. [00:29:11] Speaker 04: It told him you can appeal this decision. [00:29:13] Speaker 04: and that this decision contained conclusions of law, including that he was an aggregate felon and defendant chose not to appeal. [00:29:21] Speaker 04: So he can't satisfy 132062. [00:29:22] Speaker 04: Great. [00:29:23] Speaker 04: Thank you. [00:29:24] Speaker 04: Thank you. [00:29:37] Speaker 01: Your Honor, I'll be brief. [00:29:39] Speaker 01: I want to just begin by addressing Yanez and Castro Baez. [00:29:44] Speaker 01: The government repeatedly said that we're dealing with a similar statute here. [00:29:48] Speaker 01: We are not dealing with a similar statute. [00:29:50] Speaker 01: If the court looks to the statute directly at issue in Yanez, it's actually a statute of incapacitation. [00:29:55] Speaker 01: That's not what we're dealing with here. [00:29:57] Speaker 01: That's a different section of California rape statute. [00:29:59] Speaker 01: Castro Baez did deal with an incapacitation portion of California rape statute. [00:30:07] Speaker 01: That is not the same thing, and more importantly, our argument is not inconsistent with either of those findings. [00:30:13] Speaker 01: Our argument touches on something entirely different than what those cases say, and that is whether a threat of social or economic coercion is within the generic definition of rape. [00:30:28] Speaker 01: The second thing I would just like to mention is [00:30:32] Speaker 01: You know, the government has a lot of opinions about the, you know, judicial advisor and the ability to appeal. [00:30:40] Speaker 01: But I think that the government ignores the empirical reality of these cases. [00:30:45] Speaker 01: And I think the Third Circuit does a very good job of explaining what actually plausibly happens in these situations when a defendant or noncitizen tries to appeal the classification of their conviction as an aggravated felony. [00:31:00] Speaker 01: And we do discuss this extensively in our reply on page seven. [00:31:06] Speaker 01: There are multiple cases where the noncitizen checked the box indicating, I wish to contest and or request withholding of removal. [00:31:13] Speaker 01: And then the BIA could not reach any decision because they determined they did not have authority to determine that question. [00:31:24] Speaker 01: So this further demonstrates that not only was the form misleading, [00:31:29] Speaker 01: And had deficiencies those deficiencies impaired him for making a knowing and intelligent waiver of his right to judicial review and As a result Mr.. Gonzales was removed for being an aggravated felon when he was not one. [00:31:50] Speaker 02: Thank you Thank you both for the helpful argument the case is submitted