[00:00:00] Speaker 04:
And move on to the next case on the calendar.

[00:00:01] Speaker 04:
Thank you, sir.

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

[00:00:03] Speaker 04:
The next case is United States versus Croytor 24-3444.

[00:00:29] Speaker 01:
Good morning, Your Honors.

[00:00:30] Speaker 01:
Good morning.

[00:00:30] Speaker 01:
Erin Radigan, appearing for appellant, Julie Croyder.

[00:00:35] Speaker 04:
Your Honor, Mr. Croyder has been in the United States since... Counsel, if you... We're having trouble hearing it.

[00:00:41] Speaker 04:
If you could pull the microphone down a little closer, that would be great.

[00:00:44] Speaker 04:
Okay.

[00:00:44] Speaker 04:
Thank you.

[00:00:46] Speaker 01:
The immigration consequences of criminal convictions have never been more severe.

[00:00:50] Speaker 01:
Mr. Croyder has been in the United States since 1995.

[00:00:55] Speaker 01:
He's at this time in danger of imminent removal.

[00:01:01] Speaker 01:
I think that the law right now is... Meaning what?

[00:01:03] Speaker 03:
That he can be removed or is he in the process of being removed now?

[00:01:07] Speaker 01:
Prosecutorial discretion was granted to him.

[00:01:11] Speaker 01:
However, that can be changed at any time and under the Trump administration.

[00:01:15] Speaker 03:
Okay.

[00:01:15] Speaker 03:
So when you say he's under imminent removal, there's nothing actually... He's not waiting detained about to be removed.

[00:01:22] Speaker 04:
No.

[00:01:22] Speaker 04:
He's not.

[00:01:22] Speaker 04:
Sorry.

[00:01:25] Speaker 04:
That phrase has different meanings to us these days, so we're trying to figure out what you're just, that wasn't a trick question, we're just trying to figure out what you're telling us.

[00:01:31] Speaker 01:
Right.

[00:01:32] Speaker 01:
So he's subject to removal now.

[00:01:34] Speaker 01:
He's subject to removal, he has a conviction, the Trump administration has made those an enforcement people who are here.

[00:01:40] Speaker 01:
with a conviction and enforcement priority.

[00:01:44] Speaker 01:
At the time he entered his plea, he had a US citizen wife.

[00:01:50] Speaker 03:
There's no doubt he's removable.

[00:01:52] Speaker 03:
He committed a serious crime.

[00:01:54] Speaker 03:
He pled guilty to that crime.

[00:01:55] Speaker 03:
So now the issue is just, can he essentially seek to, I guess he wants to undo his plea so that he can try this again?

[00:02:03] Speaker 01:
So our argument here is the district court erred in its latches analysis.

[00:02:08] Speaker 01:
Why?

[00:02:08] Speaker 01:
The district court erred because it gave undue weight to the government's interest in an old conviction under circumstances where Mr. Kreuter has paid the entire restitution and served a sentence the prosecution wanted for the case.

[00:02:25] Speaker 04:
Your argument is that the state abuses discretion, or forgive me, that the court abused its discretion by giving undue weight to the prior conviction?

[00:02:35] Speaker 01:
I do believe that the court erred in its latches analysis.

[00:02:39] Speaker 01:
I agree that the standard is abuse of discretion, the legal issues are reviewed de novo, and that factual

[00:02:47] Speaker 01:
and issues for clear error.

[00:02:49] Speaker 04:
It's a high hurdle so we're all, you've got our attention.

[00:02:52] Speaker 04:
What's your best shot on this?

[00:02:53] Speaker 01:
So Latches is an equitable doctrine.

[00:02:56] Speaker 01:
The standard provides that if the government comes forward with prima facie evidence of prejudice, which they did because two witnesses died, but not Behesnelian.

[00:03:06] Speaker 01:
Behesnelian was still alive.

[00:03:07] Speaker 01:
The prior counsel.

[00:03:08] Speaker 01:
He was sentencing counsel who clearly admitted IAC.

[00:03:13] Speaker 01:
But the court

[00:03:15] Speaker 01:
gave undue weight to the government's interest in having a conviction forever.

[00:03:23] Speaker 01:
that doesn't trump or outweigh Croyder's interests in getting a remedy from this conviction under circumstances where he served the sentence the government wanted.

[00:03:34] Speaker 01:
I think that the court gave way too much weight to the fact that the government has an interest in maintaining a conviction forever.

[00:03:41] Speaker 03:
This is a very broad argument, right?

[00:03:44] Speaker 03:
It would basically suggest that anybody could come back later and

[00:03:47] Speaker 03:
have their conviction vacated under a quorum nobis petition just after the passage of time on the theory that the government's interest is waned but I don't think the government interest can be so minimized I mean here there was a guilty plea there was there was significant evidence of a health care fraud that Mr. Croyder seemingly got a good result in the criminal case but not not he's not where he wants to be immigration wise but the logic of your argument would mean lots of convictions could just be vacated

[00:04:16] Speaker 01:
It would have to be conviction.

[00:04:17] Speaker 01:
This was a case where there was clear IEC demonstrated by sentencing counsel.

[00:04:21] Speaker 01:
Mr. Blackman in the first petition filed a declaration from sentencing counsel saying, I flat out misadvised, Croyder, that if you pay the restitution prior to sentencing, you will not have immigration.

[00:04:32] Speaker 03:
Well, I think he said they won't find out about it.

[00:04:34] Speaker 03:
But then in 2007, when he was detained at the border, doesn't he know right then, like that advice was wrong?

[00:04:42] Speaker 04:
In other words, the other problem you've got is there's a really very considerable delay.

[00:04:47] Speaker 01:
But Quan comfortably allows consideration of whether a petitioner was misadvised by counsel.

[00:04:55] Speaker 04:
I think under the hypothetical that Judge Bras is sort of entertaining is that let's assume that that was ineffective advice at the get-go and then many years go by.

[00:05:07] Speaker 04:
And when he's detained at the border, he's on notice that he got really bad advice.

[00:05:11] Speaker 01:
He was on notice that he was inadmissible.

[00:05:13] Speaker 04:
And then what?

[00:05:14] Speaker 01:
He's got to show diligence.

[00:05:15] Speaker 01:
And he immediately retained immigration counsel.

[00:05:18] Speaker 01:
And he provided in both Carmonobus Petitions details about exactly what every single attorney did.

[00:05:24] Speaker 01:
And then this court held in the first opinion that he was personally diligent.

[00:05:29] Speaker 01:
So it doesn't open it up to every conviction.

[00:05:32] Speaker 01:
It opens it up to a conviction where you can prove IAC.

[00:05:35] Speaker 01:
And what I'm really arguing here is Latches.

[00:05:38] Speaker 01:
Latches is an equitable doctrine.

[00:05:40] Speaker 01:
The district court just simply found the government made a prima facie case.

[00:05:44] Speaker 01:
The government would have prejudice improving its conviction.

[00:05:47] Speaker 01:
That's it.

[00:05:47] Speaker 02:
It is an equitable doctrine, but we do have a two-part test.

[00:05:51] Speaker 02:
There are elements for laches, and one of it is petitioner has to show reasonable diligence.

[00:05:57] Speaker 02:
Can you address the part after quarter one, after we decided quarter one, there's about a six-month delay before he files his petition.

[00:06:05] Speaker 02:
Can you address that why he delayed for about six months before filing the petition?

[00:06:12] Speaker 01:
He retained counsel about six months after the decision, and then we filed about six months later.

[00:06:19] Speaker 01:
And that was just to find counsel.

[00:06:21] Speaker 01:
He did have some medical issues, I understand, under Riedel.

[00:06:25] Speaker 01:
That doesn't matter, but he was having surgery and in the hospital.

[00:06:27] Speaker 01:
And then he retained counsel, and it was a procedurally complex case.

[00:06:32] Speaker 01:
I investigated it and filed the petition.

[00:06:36] Speaker 01:
So I submitted a declaration explaining everything I did, the immigration attorneys I spoke to, the declarations I obtained, and... Is it, though, an abuse of discretion for the court to say the six-month delay wasn't reasonable?

[00:06:52] Speaker 02:
I mean, it might be a little bit harsh, but is that abuse of discretion?

[00:06:55] Speaker 01:
I think it is abuse of discretion.

[00:06:56] Speaker 01:
I think it is harsh.

[00:06:58] Speaker 04:
Is there a case law that you want to call our attention to that would be the most comparable on this point to show some calibration of the standard where we have found abuse of discretion or

[00:07:11] Speaker 01:
No.

[00:07:12] Speaker 01:
The case law, frankly, is very, very severe for Carmen Ova's petitioners, despite the fact that it's supposed to be an extraordinary remedy.

[00:07:20] Speaker 01:
And there are people now who have convictions who can't get rid of them and are subject to permanent banishment from the United States for a conviction after they serve their entire sentence.

[00:07:30] Speaker 01:
The one thing I want to point out about the Latches standard, the standard is if the government comes forward with prima facie evidence,

[00:07:38] Speaker 01:
of prejudice, the burden shifts to Mr. Croyder to show, either rebut the prejudice showing or show that he was reasonably diligent.

[00:07:49] Speaker 01:
So Croyder attacked the prejudice showing and said, you can't give paramount consideration to maintaining a conviction under these circumstances.

[00:07:59] Speaker 01:
And I think that's fundamentally where the court erred.

[00:08:01] Speaker 01:
Latches is supposed to consider the equities of all parties here.

[00:08:05] Speaker 04:
The government suffers minimal... So is your point that you think the court didn't consider some of the evidence or sort of the countervailing prejudice to your client?

[00:08:15] Speaker 04:
Is that your point?

[00:08:17] Speaker 01:
Yes.

[00:08:17] Speaker 01:
I think the court didn't weigh Mr. Coyter's prejudice at all.

[00:08:21] Speaker 04:
Pretty much it was... So there's a difference there, and I'm trying to tease it out, but maybe I'm not asking a very precise question.

[00:08:27] Speaker 04:
I understood you originally to say that you thought that the court didn't weigh the prejudice to your client

[00:08:33] Speaker 04:
correctly, didn't give it adequate weight, and that would be different than if your argument now is that the court literally didn't consider it, because I think one would be an error of law.

[00:08:43] Speaker 04:
Which are you arguing?

[00:08:45] Speaker 04:
I believe that the court didn't consider it.

[00:08:48] Speaker 04:
What's your strongest showing?

[00:08:50] Speaker 04:
What supports that assertion?

[00:08:54] Speaker 04:
that the court did not consider your client's equitable interests.

[00:08:58] Speaker 01:
The opinion has only one sentence where the court basically says, Kreuter argues that his interests should be weighed here and that the government's interests are minimal because he admitted guilt

[00:09:13] Speaker 01:
He cooperated with the government, served the sentence, paid all the restitution.

[00:09:18] Speaker 01:
However, Croyder doesn't give adequate weight to the government's need for a conviction.

[00:09:24] Speaker 01:
I think that needs to be the case.

[00:09:26] Speaker 01:
It's ripe for an opinion that gives petitioners more leeway in the latches.

[00:09:32] Speaker 01:
argument where their interests have to be considered, especially in a case when the consequences are so dire and there's no remedy.

[00:09:40] Speaker 04:
All right.

[00:09:41] Speaker 04:
Thank you for your patience with our questions.

[00:09:43] Speaker 04:
You want to reserve your last minute?

[00:09:44] Speaker 01:
Yes.

[00:09:45] Speaker 04:
All right.

[00:09:45] Speaker 04:
We'll hear from the government, please.

[00:09:59] Speaker 00:
May it please the Court, Elliot Wong on behalf of the United States.

[00:10:03] Speaker 00:
The only undisputed thing about Curator's ineffective assistance claim here is that both attorneys whose conductee challenges have died, all of the contemporaneous evidence about what advice they may have given him is now long destroyed, and the government now lacks any ability to retry the underlying criminal case.

[00:10:20] Speaker 00:
This is a somewhat interesting situation, Your Honors, where this is not the first quorum nobis petition that this petitioner has brought, but the second.

[00:10:27] Speaker 00:
And specifically, this is done after there's already been a finding under the first petition that Mr. Kreuter had inexcusably delayed in bringing the first petition.

[00:10:37] Speaker 03:
I mean, there's also some language in Kreuter 1 that seems more favorable to him also.

[00:10:42] Speaker 00:
Correct, Your Honor, and I acknowledge that.

[00:10:44] Speaker 00:
But in addition to the finding about the two-year period in which this court examined in Kreuter 1, there's additional periods of delay which this court did not reach and I would submit although,

[00:10:57] Speaker 00:
this court's opinion was sympathetic to Mr. Carter's position, it did in fact uphold the standard and find that there was no valid reasons in order to excuse that period of delay.

[00:11:07] Speaker 00:
To address Judge Lee's question,

[00:11:12] Speaker 00:
I think just a quick point of clarification.

[00:11:14] Speaker 00:
There was about a one-year period of time between the affirmance in corridor one and the submission of the second petition in this case.

[00:11:25] Speaker 00:
And for authority on that, I would point to the Tellic case, which involved a period of delay of about a year and a half.

[00:11:33] Speaker 00:
And then in corridor one, there was about a two-year period

[00:11:35] Speaker 00:
So even standing alone, a one-year period does lead to a finding of inexcusable.

[00:11:43] Speaker 03:
I wasn't sure, you know, Mr. Corder's been through a lot of lawyers and this thing is complicated procedurally.

[00:11:51] Speaker 03:
It seems like when we're looking at the timeline here, I'm not sure why we're picking at the last year.

[00:11:57] Speaker 03:
It's really the middle seven, arguably nine, that cause more of the problems to me.

[00:12:04] Speaker 00:
Correct, Your Honor.

[00:12:05] Speaker 00:
And we can go from starting in 2007, when Mr. Crader indisputably knew that he was subject to removal, and in 2008, when he actually received that notice to appear in immigration court.

[00:12:17] Speaker 00:
Then we jump ahead to 2012, in which he successfully

[00:12:21] Speaker 00:
files for some form of post-conviction relief which gives the gives him the knowledge that he has that remedy available to him and then in 2014 he finds that explicitly and is explicitly told that this is an aggravated felony and you need to pursue post-conviction relief to try to get this vacated.

[00:12:45] Speaker 00:
From 2014 even

[00:12:48] Speaker 00:
Mr. Kreuter's citation to the Kwon case, after that period, Kwon can afford him no potential help.

[00:12:55] Speaker 00:
Because at that point, he's been explicitly told to seek post-conviction relief, explicitly told that this is an aggravated felony.

[00:13:05] Speaker 00:
Unduly delayed that was and that seems to be purely the lawyers fault as of 2014 Your honor I would dispute the the characterization that it was purely the lawyers fault the record is silent with respect to what mr. Crider did during that period and I'd point this court to the Supreme Court's two decisions in Lawrence and then in Holland and specifically in Holland Justice Alito's concurrence opinion does go through in fairly in fairly good detail and

[00:13:33] Speaker 00:
about when post-conviction counsel, whether the attorney's miscalculations can be excused from the client.

[00:13:44] Speaker 00:
And that's a high bar specifically because there is no constitutional right to post-conviction counsel.

[00:13:50] Speaker 00:
And so there were extraordinary circumstances necessary in order to find that equitable tolling is possible in that situation.

[00:13:58] Speaker 00:
And even though those cases were habeas cases in a 2241 context,

[00:14:02] Speaker 00:
The analysis readily applies here.

[00:14:04] Speaker 04:
I don't think it does apply here.

[00:14:07] Speaker 04:
This is a snarly area, this cremigration area.

[00:14:12] Speaker 04:
It's tough to find people who really understand it.

[00:14:14] Speaker 04:
I don't know if the 2241 context is comparable counsel.

[00:14:20] Speaker 04:
He's really at the mercy of what his lawyers are telling him and his lawyers weren't giving him great advice and they certainly weren't moving very promptly.

[00:14:28] Speaker 04:
I think that Judge Bress's point is well taken in that last year of delay.

[00:14:32] Speaker 04:
I don't see how the government's position changed at all.

[00:14:35] Speaker 04:
Your problem is you don't think you can retry him.

[00:14:37] Speaker 04:
But as to this middle seven year, I think a seven year period, that seems to be more problematic.

[00:14:43] Speaker 04:
But what authorities do you have on this point that don't rely on 2241?

[00:14:51] Speaker 00:
Well, Your Honor, there's the entire

[00:14:53] Speaker 00:
possibility that he could have brought the current IEC claims against Mr. Grayson in the first quorum nobis petition and it's inexcusable that he didn't at this point.

[00:15:03] Speaker 00:
So the fact that he brought the first petition it was denied and then he brings a second petition challenging different lawyers and Mr. Grayson's advice is from 2003.

[00:15:13] Speaker 00:
So there's no finding of new evidence, nothing that would excuse him from not diligently pursuing his rights in the first petition.

[00:15:21] Speaker 03:
I agree with you.

[00:15:22] Speaker 03:
That's the problem.

[00:15:23] Speaker 03:
But what about the Kwan case?

[00:15:25] Speaker 03:
That seems like the best case on the other side for this.

[00:15:27] Speaker 03:
So how do you distinguish that?

[00:15:28] Speaker 00:
For a couple of different reasons, Your Honor.

[00:15:31] Speaker 00:
So the Kwan case, what the holding in that case was is that the challenge is not required to be brought at the earliest opportunity, but only requires sound reasons for not doing so.

[00:15:42] Speaker 00:
At some point,

[00:15:43] Speaker 00:
between 2007 and 2021, in which Crater actually brought his second quorum nobis petition, there are any number of points where he was adequately armed with the knowledge in order to know that his conviction did carry immigration consequences and that he knew what to do in order to try to remedy that.

[00:16:04] Speaker 03:
I mean, I agree with you so far as it goes.

[00:16:06] Speaker 03:
And the question is, why wasn't that true in Quan?

[00:16:09] Speaker 00:
A couple of different reasons.

[00:16:10] Speaker 00:
So Kwon was explicitly instructed that he should focus on challenging his deportation.

[00:16:16] Speaker 00:
And even if that reasoning could be applied here, that would only last up until 2014 when he was explicitly told that he needed to pursue post-conviction relief.

[00:16:27] Speaker 00:
Further, in the Kwon case, that case involved no prejudice to the government, whereas here I think the prejudice to the government is plain considering both the prejudice to respond to the petition and the prejudice to mount a retrial.

[00:16:41] Speaker 04:
What were the dates of the deaths we're talking about?

[00:16:43] Speaker 04:
As of 2014, what position was the government in vis-a-vis the witnesses?

[00:16:50] Speaker 00:
One of the witnesses had died by then, I believe it was 2011 when the first lawyer had died, and then 2021 is when the second lawyer died, or 2020, I believe.

[00:17:01] Speaker 00:
Something around there.

[00:17:03] Speaker 00:
Further, I'd just like to address the prejudice issue a little bit.

[00:17:07] Speaker 00:
What Petitioner is doing here is he is saying that

[00:17:11] Speaker 00:
The court below did not give enough weight to his interest in the prejudice analysis.

[00:17:18] Speaker 00:
And that is not an element of the test that this court has to apply.

[00:17:24] Speaker 00:
The court is clear in telling what the prejudice is, which is prejudice on the government to respond to the petition and prejudice to mount a retrial.

[00:17:32] Speaker 00:
It's not a multi-factor analysis.

[00:17:34] Speaker 00:
And petitioners only case that would support that position

[00:17:39] Speaker 00:
is the Tillamook case, which they cite, which is a Lantham Act trademark case, which just has no application to present context.

[00:17:45] Speaker 04:
I don't think she's trying to add an element.

[00:17:47] Speaker 04:
I think she's trying to persuade us that the court abused its discretion by weighing these interests improperly.

[00:17:55] Speaker 00:
Correct, Your Honor.

[00:17:56] Speaker 04:
It's a do-over, I think, is what we're being asked to do.

[00:17:59] Speaker 00:
Yes, and I apologize if I was a little bit unclear about that.

[00:18:04] Speaker 00:
What he's asking to do is do a multi-factor interest balancing analysis

[00:18:09] Speaker 00:
for the prejudice prong here.

[00:18:10] Speaker 00:
And that's just not supported by telling, by write out.

[00:18:13] Speaker 03:
Do you think what we cannot do is say the government no longer has an interest in pursuing this prosecution and Mr. Croyder's immigration interests are very strong?

[00:18:23] Speaker 03:
You think we can't, that's not the way to do this.

[00:18:25] Speaker 03:
We need to look at essentially the prejudice to the government and then his diligence?

[00:18:29] Speaker 00:
Correct, Your Honor.

[00:18:31] Speaker 00:
And specifically, I would just say that the government has an interest in finality here.

[00:18:35] Speaker 00:
And the claim that the government has no interest beyond that, given the fact that he's paid restitution, is not accurate, I think.

[00:18:45] Speaker 00:
Because if he undoes the plea, at least as noted in telling, there's a possibility, at least, that he could then seek to remit the restitution or seek to undo any number of other things that flow from the conviction itself.

[00:19:01] Speaker 00:
Unless the court has any further questions, I will submit.

[00:19:02] Speaker 04:
It doesn't appear that we do.

[00:19:03] Speaker 04:
Thank you, counsel.

[00:19:10] Speaker 01:
First, I want to clear up an error Mr. Wong made.

[00:19:14] Speaker 01:
So in the second petition, Grayson, Behaznilian, and Blackman, those attorneys were challenged.

[00:19:24] Speaker 01:
Behaznilian is alive.

[00:19:25] Speaker 01:
Grayson and Blackman have died.

[00:19:28] Speaker 01:
But the district court just kind of disregarded that claim.

[00:19:31] Speaker 03:
That's why.

[00:19:31] Speaker 03:
But why wasn't Grayson part of the first Coramnobus petition?

[00:19:35] Speaker 01:
I don't know.

[00:19:36] Speaker 01:
I don't know.

[00:19:37] Speaker 01:
It could be because Mr. Blackman thought that just... Well, rather than speculate, is there anything in the record as to why that is?

[00:19:45] Speaker 01:
No.

[00:19:46] Speaker 03:
Okay.

[00:19:46] Speaker 01:
So I want to make clear the court found in Croyder made a factual finding that Blackman delayed because of uncertainty in the law.

[00:19:56] Speaker 01:
There was even discussion about there was no evidence of what he was doing other than that.

[00:20:00] Speaker 01:
So I think there's a factual finding that the court should make from the first Croyder opinion.

[00:20:05] Speaker 01:
There's no other reason why Blackman delayed.

[00:20:07] Speaker 01:
That's why he delayed.

[00:20:08] Speaker 03:
You think that's a factual finding we should make or a factual finding that this court already made?

[00:20:13] Speaker 01:
It's a factual finding the court already made in Croyder 1.

[00:20:17] Speaker 01:
Also, I just want to note that in 2007, Mr. Croyder retained immigration counsel who advised him to adjust status through his wife.

[00:20:28] Speaker 01:
That is all set forth in the record, that he retained multiple immigration attorneys who were telling him, you have a remedy.

[00:20:36] Speaker 01:
And I think it's time, and the equities support it, to expand Quan to allow where you receive serious misadvice and you're unable to bring a clear error here.

[00:20:48] Speaker 01:
As I said, this is clear error, and the district court could have dealt with that issue in best million.

[00:20:52] Speaker 01:
But the district court in the first petition interpreted Quan very narrowly to mean that

[00:20:58] Speaker 01:
Only if a petitioner is misadvised by counsel and also told that you don't have a post-conviction remedy.

[00:21:05] Speaker 01:
That's how the district court interpreted quant.

[00:21:07] Speaker 04:
Counsel, you're well over your time.

[00:21:09] Speaker 04:
I'm going to ask you to wrap up.

[00:21:10] Speaker 04:
Thank you both for your arguments.

[00:21:11] Speaker 04:
We'll take that one under advisement.

[00:21:13] Speaker 04:
Thank you.