[00:00:00] Speaker 04:
Good morning, Your Honours, and may it please the Court.

[00:00:02] Speaker 04:
My name is Evangeline Abril, and I represent Mr. Tumane Utiliti here.

[00:00:07] Speaker 04:
I would like to reserve... Would you mind speaking up?

[00:00:09] Speaker 00:
Just a little?

[00:00:10] Speaker 00:
Yes.

[00:00:11] Speaker 04:
My name is Evangeline Abril, and I represent Mr. Tumane Utiliti.

[00:00:15] Speaker 04:
I would like to reserve four minutes for rebuttal.

[00:00:18] Speaker 04:
All right.

[00:00:19] Speaker 04:
Thank you for this opportunity to tell you about this young refugee and about the conviction that brings him before this court.

[00:00:26] Speaker 04:
I would like to make three points today.

[00:00:28] Speaker 04:
And the first two of those arise from the board's denial of Mr. Utiliti's motion to reopen, in which they found that he had not established prejudice.

[00:00:38] Speaker 04:
Those two points are, first, that Mr. Utiliti did not have a crime involving moral turpitude.

[00:00:45] Speaker 04:
And second, that his offense was also not a particularly serious crime that barred him from asylum and withholding.

[00:00:52] Speaker 04:
The third point I'd like to make arises from the original proceedings in the case, and that is that Mr. Agiliti established his claim under the Convention Against Torture.

[00:01:03] Speaker 04:
I would like to ask the court, because of these errors, to reverse the board's decisions and remand to the Board of Immigration Appeals.

[00:01:13] Speaker 04:
I'm turning to my first point that Mr. Talese's conviction was not for a crime involving moral turpitude.

[00:01:20] Speaker 04:
To be a crime involving moral turpitude, the statute of conviction must require both reprehensible conduct and a culpable mental state.

[00:01:29] Speaker 04:
and the statutes to which Mr. Utiliti pled guilty do not meet these requirements.

[00:01:35] Speaker 04:
Mr. Utiliti pled guilty to Section 1203A3 of the Arizona Revised Statutes.

[00:01:44] Speaker 04:
That requires a knowing touching of another person with intent to injure, insult, or provoke.

[00:01:50] Speaker 04:
This de minimis conduct of touching and the de minimis mens rea of knowing with the intent to injure, insult or provoke does not rise to the level of moral turpitude.

[00:02:06] Speaker 01:
How about when it's paired with the aggravator of the deadly weapon?

[00:02:11] Speaker 04:
Yes, Your Honor.

[00:02:12] Speaker 04:
We do have that aggravating factor of 1204A2, but we can't look at that statute in isolation.

[00:02:18] Speaker 04:
Mr. Utilita did not plead guilty to just that statute, but also to 1203A3.

[00:02:24] Speaker 04:
And this court has emphasized the importance of intent in Altayar.

[00:02:29] Speaker 04:
The intent involved in Mr. Utoliti's case of knowing is recognized as a lower mens rea than the intentional requirement.

[00:02:39] Speaker 01:
It's fairly similar, right?

[00:02:42] Speaker 01:
It's not reckless, it's knowing.

[00:02:45] Speaker 04:
Your Honor, the Arizona statutes define knowing quite differently from intentional.

[00:02:50] Speaker 04:
Knowing means that the person is aware of the conduct, the nature of the conduct, but there's no requirement that the person be aware of the illegality of the conduct.

[00:03:01] Speaker 04:
Intentional isn't defined as actually intending the consequences to occur.

[00:03:05] Speaker 01:
Right, but there's two mens rea, right?

[00:03:07] Speaker 01:
It's knowingly touching and then with the intent to do one of three other things.

[00:03:12] Speaker 01:
So we do have both.

[00:03:14] Speaker 04:
The word intent in that phrase, intent to injure, provoke, or insult, is not really describing a mens rea.

[00:03:23] Speaker 04:
What it's doing is really being used as a synonym for the word purpose.

[00:03:28] Speaker 04:
So the intent in 1203A3 is knowing, and that's not sufficient under this courtster's prudence to rise to the level of moral turpitude.

[00:03:39] Speaker 04:
Your Honor, I'd like to move on to talk about the particularly serious crime point, and here the board and the immigration judge made two errors.

[00:03:49] Speaker 04:
The first of those was that the immigration judge believed that Mr. Utiliti had an aggravated felony, and he did not, and no one is asserting that he did.

[00:03:57] Speaker 04:
I mean, it was just a clear error on the immigration judge's part, but it was a really critical error because it

[00:04:05] Speaker 04:
because the aggravated felony is a complete bar to asylum and a very limited restriction on other forms of relief.

[00:04:14] Speaker 01:
And the immigration judge... So you want us to look at the facts, basically, under frontisque?

[00:04:20] Speaker 04:
For particularly serious crime, yes, Your Honor.

[00:04:22] Speaker 04:
All reliable evidence can be considered in determining whether a particularly serious crime exists.

[00:04:28] Speaker 01:
So why wasn't it particularly serious to essentially drive a car towards police officers in the middle of the night?

[00:04:35] Speaker 04:
Well, Your Honor, if we look at the record, we can see that, you know, what emerges from looking at what Mr. Chaliti said and what we see in this, in the pre-sentence report is a 19-year-old who got drunk, had had extremely traumatic experiences at the hand of the Uganda police, saw police and sped up and ran away.

[00:04:57] Speaker 03:
Counsel, do we look at the facts or if we agree with you, just simply remand for the BIA to take another look at it?

[00:05:03] Speaker 04:
Yes, Your Honor, that would be the remedy if we asked that you reverse and remand to the Board of Immigration Appeals.

[00:05:13] Speaker 04:
Returning to that point.

[00:05:14] Speaker 00:
In terms of the factors, the IJ and the VA looked at the police report.

[00:05:23] Speaker 00:
They looked at the circumstances.

[00:05:26] Speaker 00:
And I agree with you that the aggravated felony doesn't count in this context, but how are we to review that?

[00:05:35] Speaker 00:
Do you think it's to know or do you think it's clearer in terms of the finding or abuse of discretion?

[00:05:43] Speaker 04:
Well, normally this court reviews a particular search crime determination for abusive discretion, but where there's an error of law that... Why is it an error of law?

[00:05:53] Speaker 04:
Well, there's no aggravated felony.

[00:05:55] Speaker 00:
No, I understand that.

[00:05:57] Speaker 00:
But then the BIA went on to analyze the factors and took them all into consideration.

[00:06:02] Speaker 00:
So why was that an abuse of discretion?

[00:06:04] Speaker 04:
Your honor, the main reason for that is that the board and the immigration judge relied on an unreliable document.

[00:06:11] Speaker 04:
So all reliable evidence can be considered in determining whether there's a particular serious crime, but it has to be reliable.

[00:06:18] Speaker 04:
And the document that was used here isn't reliable for a number of reasons.

[00:06:23] Speaker 01:
You're talking about the police report?

[00:06:24] Speaker 04:
Your honor, it's not actually a police report, it's a pre-sentence report.

[00:06:27] Speaker 04:
The board referred to it as a police report, but it is a pre-sentence report that purports to summarize a police report.

[00:06:34] Speaker 04:
So it's one step removed from the police report.

[00:06:37] Speaker 04:
But it also has another, a number of other indicia of unreliability.

[00:06:42] Speaker 03:
Why isn't a pre-sentence report reliable?

[00:06:44] Speaker 03:
That's what the trial judge used to sentence, right?

[00:06:48] Speaker 04:
That's correct, Your Honor, but that was for a different purpose.

[00:06:50] Speaker 04:
The trial judge is using that pre-sentence report to actually determine what a Senate should be, not whether it's a particular serious crime that would keep someone who has already been declared to be a refugee.

[00:07:03] Speaker 01:
But, I mean, doesn't it just lay out the facts?

[00:07:05] Speaker 01:
I mean, the facts don't seem to be that disputed here, do they?

[00:07:10] Speaker 04:
Your Honor, you're right, there are quite a bit of similarities in the facts.

[00:07:15] Speaker 04:
But the fact that the police officer, the presentence report actually says what the police report says, that Mr. Utiliti swerved to tit the police officers, which would indicate more of an intent.

[00:07:28] Speaker 04:
That part is denied by Mr. Utilite's own testimony.

[00:07:32] Speaker 04:
So this report, it isn't the actual police report.

[00:07:37] Speaker 04:
It's purporting by someone, a third party, to summarize it.

[00:07:40] Speaker 04:
That third party's name appears, but there's no signature and there's no attestation of veracity on this as there might be on a police report.

[00:07:47] Speaker 04:
So we don't know what

[00:07:49] Speaker 04:
what errors might have been made, what information might have been excluded in this pre-sentence report.

[00:07:57] Speaker 00:
It also has... Counselor, you also pled guilty to attempt to commit aggravated assault on law enforcement.

[00:08:04] Speaker 04:
What weight does that have?

[00:08:06] Speaker 04:
He pled guilty to Section 13-1204A2.

[00:08:10] Speaker 04:
Right.

[00:08:12] Speaker 04:
That does not involve law enforcement.

[00:08:15] Speaker 04:
For purposes of the particular serious crime, we can look at the evidence, but he didn't actually plead to that.

[00:08:24] Speaker 04:
What he pled to was the intentional... What he pled to was knowingly...

[00:08:32] Speaker 04:
I beg your pardon, Your Honor.

[00:08:33] Speaker 04:
Touching.

[00:08:34] Speaker 04:
Yes, he pled guilty to knowing touching with a deadly weapon or a dangerous instrument.

[00:08:41] Speaker 04:
Attempted touching.

[00:08:44] Speaker 00:
So he says, I was intoxicated and scared and I was afraid of police officers.

[00:08:54] Speaker 00:
And the police officers say, he tried to hit me.

[00:08:57] Speaker 04:
Your Honor, we don't know that the police officer said that.

[00:08:59] Speaker 04:
We know that the pre-sentence report says that.

[00:09:02] Speaker 04:
But the two police officers themselves declined to give statements.

[00:09:06] Speaker 04:
So we don't have anything in that pre-sentence report from the police officers themselves.

[00:09:12] Speaker 03:
Counsel, the plea agreement and the sentencing order

[00:09:16] Speaker 03:
all categorized the lesser charge that he pled to as being non-dangerous and non-repetitive.

[00:09:24] Speaker 03:
Does that have a legal significance in terms of that conviction under state law, Arizona state law?

[00:09:31] Speaker 04:
Yes, Your Honor, I apologize.

[00:09:33] Speaker 04:
I'm not sure what the exact significance would be under Arizona law, but for... Well, it's a state crime, which I'm asking.

[00:09:39] Speaker 03:
I'm assuming non-dangerous.

[00:09:41] Speaker 03:
That seems obvious, but it repeatedly has the phrase non-dangerous and non-repetitive for each crime that he charged you, and that's consistent throughout the documents, the plea agreement, the sentencing minutes, the sentencing order.

[00:09:55] Speaker 03:
What do we make of that?

[00:09:57] Speaker 04:
Your Honor, that's something that the Board of Immigration Appeals and the immigration judge did not note.

[00:10:02] Speaker 04:
There's nothing in their decisions that notes this thing about the non-dangerous, non-repetitive, and we argue that that's very important.

[00:10:10] Speaker 04:
That was a decision by the state judge that this was a non-dangerous

[00:10:15] Speaker 04:
offense, and one of the Frantescu factors is the dangerousness.

[00:10:20] Speaker 04:
That's one of the factors under Frantescu.

[00:10:22] Speaker 04:
So to not consider the assertion or the designation of non-dangerous and non-repetitive was a failure on the board to consider these points.

[00:10:36] Speaker 04:
We also can't tell for sure whether the judge's aggravated felony error also infected her decision on withholding of removal.

[00:10:46] Speaker 04:
We know that it was a very big part of her decision because she says in her decision that the aggravated felony was a big influence on the court's decision on eligibility.

[00:10:56] Speaker 04:
And because of that, that's another reason why

[00:10:59] Speaker 04:
the case should be remanded for clarification on that particular error.

[00:11:04] Speaker 04:
We just don't know how much it infected the rest of the decision.

[00:11:08] Speaker 04:
And, Your Honors, if I could turn quickly to the Convention Against Torture claim.

[00:11:12] Speaker 04:
Mr. Taliti established his claim for torture.

[00:11:15] Speaker 04:
This is someone who had been

[00:11:17] Speaker 04:
experienced extreme torture at the hands of the Uganda police.

[00:11:20] Speaker 04:
When he was a young teen, he was arrested and beaten on at least two occasions.

[00:11:26] Speaker 04:
And then that escalated into a much more serious incident when he was 14, when he was arrested, detained for four days, beaten, and then sodomized by the Uganda police.

[00:11:35] Speaker 04:
And he testifies to the trauma that this inflicted on him.

[00:11:38] Speaker 04:
that the worst thing that had happened in his life, the pain that he had never experienced before, couldn't walk the next day, never told anyone else until the immigration judge, and then the judge had to clear the courtroom so that he could reveal this information.

[00:11:53] Speaker 04:
So in deciding that this had not, that Mr. Itulisi had not established his claim, the board and the immigration judge both aired, they both found that there was past torture, but that it didn't, that he had not established a clear probability of future torture.

[00:12:08] Speaker 04:
But in doing so, the judge first makes an inexplicable speculation of fact when she says that the only way Mr. Utiliti would be returned to Uganda was if the Uganda government allowed, permitted him to, and then he would be safe.

[00:12:25] Speaker 04:
But there's just nothing in the record to support that assumption on the judge's part.

[00:12:29] Speaker 04:
To the contrary,

[00:12:31] Speaker 04:
country conditions reports show that there's continued serious violations of human rights and torture in Uganda and impunity for law enforcement.

[00:12:40] Speaker 01:
Is your client still detained?

[00:12:42] Speaker 04:
He's still detained, Your Honor.

[00:12:44] Speaker 04:
You wanted to save a little bit of time?

[00:12:46] Speaker 04:
I did, Your Honor.

[00:12:46] Speaker 04:
Thank you very much.

[00:13:04] Speaker 02:
Good morning, Your Honors.

[00:13:05] Speaker 02:
Good morning.

[00:13:05] Speaker 02:
Rodolfo Sines for the U.S.

[00:13:07] Speaker 02:
Attorney General.

[00:13:10] Speaker 02:
Before I get into addressing some of opposing counsel's points, I wanted to just quickly recap what issues are at stake in each petition.

[00:13:18] Speaker 02:
In the petition for the underlying removal order, the only issue before the court are the

[00:13:27] Speaker 02:
The cat denial of the cat deferral denial and the due process claims that are associated with that in the more new petition for review of the motion to reopen we're looking at the two independently dispositive findings the the no ineffective assistance of counsel

[00:13:46] Speaker 02:
determination and the no prejudice determination that pertains to it.

[00:13:50] Speaker 03:
Let me ask you this because I would like to understand more what the government's response is.

[00:13:55] Speaker 03:
I'll tell you what my main concern in this case with and it's with the prejudice determination with regard to ineffective census council and I know this relates to the motion to reopen.

[00:14:06] Speaker 03:
In looking at the underlying documents and I don't think the government disputes this, he did plead to a lesser charge

[00:14:13] Speaker 03:
And I'm looking at the plea agreement, it says it's a non-dangerous, non-repetitive offense under the state criminal code, and that's with regard to both of his charges, or the charges that he pled to, right?

[00:14:30] Speaker 03:
And my concern is that despite

[00:14:34] Speaker 03:
the agreement and the something to a lesser charge, the BIA looked at the wrong charge and it seems to me from looking at the BIA's analysis that it was very much an element-based approach where the BIA really focused on dangerousness.

[00:14:51] Speaker 03:
So how do we know

[00:14:53] Speaker 03:
that starting at the wrong threshold didn't infect the BIA's determination that this was a particularly serious crime.

[00:15:02] Speaker 03:
Sure.

[00:15:03] Speaker 02:
I think in answering that question, Your Honor, it's important to point out the standard of review because we're in the motion to reopen context.

[00:15:10] Speaker 02:
We're talking about whether there's an abuse of discretion.

[00:15:13] Speaker 02:
And even if we weren't, that's the standard that governs when there's a direct appeal of a PSC determination anyway.

[00:15:20] Speaker 02:
But in terms of what

[00:15:23] Speaker 02:
this court can review, normally there's not jurisdiction to reweigh the evidence as to particularly serious crime determinations.

[00:15:33] Speaker 03:
In terms of the dangerous... No, I understand that, but the problem with me...

[00:15:37] Speaker 03:
that I have with it is that the BIA started with the elements, and they're the wrong elements.

[00:15:42] Speaker 03:
So all of the discussion very much focused on the nature of the conviction being dangerous and then trying to match it up to the dangerousness element, which is not in the convictions that he pled to.

[00:15:55] Speaker 02:
Yes, and we acknowledge the error.

[00:15:58] Speaker 02:
The ambit factor has to start with considering the nature of the crime, looking at the elements to do so.

[00:16:04] Speaker 02:
And here they've quoted the wrong provision, even though they cited the right provision for the CIMT determination.

[00:16:12] Speaker 02:
So our position is that remand would be a foregone conclusion, because it's still a crime against a person.

[00:16:17] Speaker 02:
We know that crimes that generally are against people tend to be particularly serious.

[00:16:23] Speaker 02:
It still involves a deadly weapon.

[00:16:25] Speaker 02:
and an intent to injure, insult, or provoke.

[00:16:28] Speaker 02:
And together, that kind of creates a situation where there's potential escalation for violence.

[00:16:34] Speaker 02:
And we know that there's also involvement of a police officer based on the subsection 1203, pardon, 1204 subsection F, which confirms that the victim has to be a police officer, although there does not have to be knowledge that the person is a police officer.

[00:16:54] Speaker 00:
So aren't you basically asking us to reweigh the evidence to find prejudice?

[00:17:00] Speaker 00:
Because you've conceded that the board erred, and then you're saying it's harmful.

[00:17:05] Speaker 00:
Basically, there's no prejudice because we can look at the facts and reweigh them, which is what you told us we couldn't.

[00:17:13] Speaker 02:
We're not looking at the facts though, Your Honor.

[00:17:15] Speaker 02:
We're just looking at the legal determination of what the elements of the crime are.

[00:17:20] Speaker 01:
Are you speaking now about the CIMT or the PSC?

[00:17:24] Speaker 02:
This is for the PSC.

[00:17:26] Speaker 02:
Non-aggravated felony.

[00:17:29] Speaker 01:
What are we to make of the BIAs?

[00:17:30] Speaker 01:
They have a whole paragraph where they talk about the IJ's review of the facts of the crime.

[00:17:36] Speaker 01:
Isn't that the analysis they were supposed to undertake here?

[00:17:39] Speaker 02:
The BIA is supposed to?

[00:17:41] Speaker 01:
On the motion to reopen decision, they have a whole paragraph talking about the police report and the judicially noticeable documents and the events that supported this finding.

[00:17:51] Speaker 02:
Correct.

[00:17:52] Speaker 02:
That's if once we've determined that the offense falls within the ambit,

[00:17:57] Speaker 02:
of particularly serious, then we look to the underlying facts of the conviction and the sentence.

[00:18:03] Speaker 03:
Right, that analysis, if the nature of the crime though is mapped onto the BIA's mistaken assumption that the elements included dangerousness, right?

[00:18:15] Speaker 03:
And the crimes that he pled to was specifically deemed under state law to be non-dangerous and non-repetitive.

[00:18:21] Speaker 03:
I'm not sure what non-repetitive means in that context, but certainly non-dangerous, right?

[00:18:26] Speaker 02:
Well, if we're looking at the facts as opposed to the ambit, which is more about what the elements of the offense are, and let's put aside the issue of reliability of the documents, we know based on the evidence that there was a lot of corroboration in the account, namely that there was drunk driving involved, speeding, that there was a passenger in the car,

[00:18:54] Speaker 02:
that a high-speed chase ensued afterwards.

[00:18:57] Speaker 02:
This is all corroborated by Mr. Utiliti's own testimony.

[00:19:01] Speaker 02:
So if we're looking at those facts together with this state determination of non-dangerousness, I think there's a lot of things that weigh against that.

[00:19:11] Speaker 02:
And then we know, even as to the disputed fact in terms of reliability, that his own testimony, I'm sorry, the plea agreement transcript says that he

[00:19:22] Speaker 02:
had factual, that he, sorry, that the factual allegations were that he attempted to touch a police officer with his vehicle.

[00:19:32] Speaker 02:
And we also know from the elements of the offense that he had to have done that as well.

[00:19:36] Speaker 02:
So looking at the weight of the evidence, putting aside reliability, there's still enough in the evidence in the record to determine that there is, that the nature of the crime is serious.

[00:19:49] Speaker 00:
So why don't you turn to the crime of moral turbitude findings?

[00:19:53] Speaker 02:
Sure.

[00:19:55] Speaker 02:
For the CIMT determination, we know that there are two mens rea that are involved, which either independently or together are sufficiently culpable.

[00:20:07] Speaker 02:
We know that based on board and Ninth Circuit precedent, that even recklessness is sufficient.

[00:20:13] Speaker 02:
Here we have the knowing that you touched the victim and then the intent to injure, insult, and provoke.

[00:20:19] Speaker 02:
those two together are sufficient to pass the bar and then we have the aggravated felony of the use of the deadly or dangerous weapon which this court analyzed in Altayar and determined that that either involves some sort of instrument that is designed for death or serious bodily injury or based on the circumstances is capable of having that sort of an effect.

[00:20:44] Speaker 02:
That alone is enough for this court to conclude that it is a

[00:20:49] Speaker 02:
CIMT.

[00:20:50] Speaker 02:
In terms of Mr. Udaliti's approach to the CIMT analysis, it's contrary to the categorical approach in that we know from Mathis and its progeny that we consider all the elements together when looking at the statutes of conviction versus the generic offense.

[00:21:11] Speaker 02:
And we also know that it's contrary to this court's CIMT case law.

[00:21:16] Speaker 02:
which looks at assault offenses with a sliding scale and inherently looking to see whether some elements of an offense make up for other elements of an offense.

[00:21:26] Speaker 01:
What about the reference to insult?

[00:21:27] Speaker 01:
I mean, that's the one piece of this that probably seems the least turpitude-ness, if you will.

[00:21:35] Speaker 01:
Sure.

[00:21:36] Speaker 01:
Because it's one thing to injure someone or provoke somebody, but it's another thing to just insult them.

[00:21:42] Speaker 02:
And I think there, Your Honor, it's important to highlight that that insult doesn't happen in a vacuum.

[00:21:48] Speaker 02:
It happens in the context of use of a deadly weapon.

[00:21:51] Speaker 02:
And so even when you're insulting someone with a deadly weapon.

[00:21:54] Speaker 02:
How do you do that?

[00:21:55] Speaker 02:
How do you insult somebody with a deadly weapon?

[00:21:57] Speaker 02:
Well, you commit the assault with the deadly weapon, but you have the intent to insult them.

[00:22:02] Speaker 02:
So built into this crime is sort of a recognition that certain actions are going to lead to escalating harm.

[00:22:10] Speaker 02:
with the deadly weapon and with the intent even to insult, you're creating a dangerous situation.

[00:22:16] Speaker 02:
And that's why we argued that, similar to Altayar, there is this necessary inherent risk of danger associated with this crime.

[00:22:26] Speaker 00:
If, hypothetically, we disagreed with you on CMIT, what does that do to remove ability?

[00:22:35] Speaker 00:
Let me explain.

[00:22:38] Speaker 00:
You didn't charge particularly serious offense in removability.

[00:22:43] Speaker 00:
You only charged CMIT.

[00:22:45] Speaker 00:
So if, hypothetically, we disagreed with you and said there's not enough here for CMIT, what does that do?

[00:22:54] Speaker 00:
Aren't you limited to that?

[00:22:55] Speaker 00:
I guess to be direct, aren't you limited to the removability issue that you charged?

[00:23:04] Speaker 02:
Correct, Your Honor.

[00:23:05] Speaker 00:
So if CMIT is off the table, then he's not removable.

[00:23:12] Speaker 00:
And particularly serious is an add-on to removability.

[00:23:15] Speaker 00:
But you have to be removable in the first instance.

[00:23:18] Speaker 00:
Would you agree with that?

[00:23:20] Speaker 02:
So because there's only one removability ground, then there's nothing else in terms of removability.

[00:23:25] Speaker 02:
But our position is that you don't even need to get there because we have the added aggravated factor of a police officer.

[00:23:32] Speaker 02:
which we know based on this court's precedent, is enough to add to the seriousness, the reprehensibility of the crime.

[00:23:39] Speaker 00:
I'm just trying to make sure that my analysis is correct in terms of what's on the table.

[00:23:49] Speaker 00:
I get your argument.

[00:23:50] Speaker 01:
Was he charged with a police officer aggravator?

[00:23:55] Speaker 02:
It's a little bit tough to follow, but the plea agreements all say aggravated assault with a deadly weapon involving a police officer.

[00:24:04] Speaker 02:
His plea agreement transcript has facts and also lists that charge against the police officer.

[00:24:10] Speaker 02:
He admits those facts that it involves a police officer.

[00:24:15] Speaker 02:
The disposition and the sentencing documents, however, omit this.

[00:24:19] Speaker 02:
But based on the fact that we, looking at subsection 1204F, that we know that this has to have been a class two felony in order to ultimately get the class three felony designation that was assigned at the conviction level.

[00:24:40] Speaker 02:
And that's because any attempt basically raises the class felony designation up one level.

[00:24:48] Speaker 02:
And based on our review of the statute, the only way that you could get a class three felony and therefore a class two initially before the attempt is by having this added element of a victim.

[00:25:03] Speaker 01:
I mean, do you understand the BIA and IJ to be conceiving of the offense in that way or just simply with the dangerous weapon aggravator?

[00:25:12] Speaker 02:
The board did.

[00:25:15] Speaker 02:
quote from the plea agreement and does acknowledge language of with the police officer in its decision before it gets to the Altayar discussion, but it ultimately in terms of its reasoning just relied on the elements without the police officer offense.

[00:25:38] Speaker 02:
I'll just quickly jump back to Kat in

[00:25:44] Speaker 02:
In looking at the cat deferral determination, we in the agency acknowledge that there was past torture in this case.

[00:25:53] Speaker 02:
Mr. Utoliti in the reply brief concedes that there's no presumption of future torture as a result, and that makes sense in light of this

[00:26:01] Speaker 02:
Circuits precedent basically there needs to be some sort of continuing risk sorry to interrupt.

[00:26:08] Speaker 03:
Can I have you go back to the plea agreement?

[00:26:09] Speaker 03:
You're saying the plea agreement Reference the police officer and are you talking about the part on page three of the plea agreement?

[00:26:16] Speaker 03:
Where says defendant shall not initiate contact with the victim officer or you're looking at something else So your honor is talking about the plea agreement itself right right?

[00:26:26] Speaker 02:
There's a change

[00:26:27] Speaker 02:
Both the plea agreement and the change of plea agreement, those are at... One minute, Your Honor.

[00:26:37] Speaker 02:
Well, the change of plea is at 884.

[00:26:40] Speaker 03:
That references the police officer, and so does... No, I'm looking at the plea agreement, and you're saying the plea agreement specifically referenced the officer.

[00:26:50] Speaker 03:
I do see that it says defendants shall not initiate contact with the victim officer.

[00:26:55] Speaker 02:
Yes.

[00:26:56] Speaker 02:
Is that what you're referring to?

[00:26:58] Speaker 02:
No.

[00:26:58] Speaker 02:
I was actually referring to when it identifies the offense itself in count one.

[00:27:05] Speaker 02:
I believe it says aggravated assault.

[00:27:09] Speaker 02:
On law enforcement?

[00:27:09] Speaker 02:
On law enforcement.

[00:27:11] Speaker 02:
That's what I was referring to.

[00:27:16] Speaker 02:
If there are no further questions on the CMT or PSC determinations, I'll just wrap up with Cat.

[00:27:23] Speaker 02:
So I mentioned that there is no presumption of future torture, and we know based on this court's case law that there has to be evidence of sort of continuing risk of that torture occurring.

[00:27:35] Speaker 02:
Cases like Sopanzi Salazar and Xochitlwa, Jaimes, sort of get to this point that there needs to be additional evidence of the same harm occurring.

[00:27:46] Speaker 02:
Here we have no evidence of refugees being targeted for harm, the worst that we have in the

[00:27:53] Speaker 02:
Department of State record is that they are discriminated against.

[00:27:57] Speaker 02:
And even putting that aside, there's a divide between his claim of future torture, which is what he testified was the basis for his claim, and his past torture.

[00:28:07] Speaker 02:
So he alleged that he was fearing that he would be at the airport and that there would be an interest in extorting him due to his origins in the US.

[00:28:17] Speaker 02:
That's definitely far from what his past torture was and there is no evidence as the agency determined of particularized risk.

[00:28:27] Speaker 02:
In fact, the State Department reports just focus on the targeting of political dissidents and journalists who oppose the government.

[00:28:35] Speaker 02:
So our position would be that substantial evidence supports that determination.

[00:28:39] Speaker 03:
Thank you, counsel.

[00:28:40] Speaker 02:
Thank you.

[00:28:49] Speaker 04:
I'd like to address three points on rebuttal, Your Honors.

[00:28:52] Speaker 04:
The first is the opposing counsel's reference to the police.

[00:28:56] Speaker 04:
Neither the Board of Immigration Appeals nor the immigration judge commented at all on the fact that there was a police officer involved in this.

[00:29:03] Speaker 04:
They might have stated it in facts, but they did not refer to it as something that they considered in determining that this was morally to opportunist or particularly serious.

[00:29:15] Speaker 03:
And to the... Well, I mean, to be fair, the BIA decision

[00:29:19] Speaker 03:
On page 5, ER 7 does talk about the nature of the offense.

[00:29:28] Speaker 03:
High rate of speed, defendant responded, turned his vehicle toward them, causing them to turn out of the way.

[00:29:34] Speaker 03:
So they did discuss the facts as relayed in the police report or the pre-sentence report.

[00:29:41] Speaker 03:
But my issue is that that discussion of the nature of the offense really maps on to what they thought were the elements, which includes dangerousness, and that allegation was specifically dismissed as part of the plea agreement, the dangerousness allegation.

[00:29:57] Speaker 04:
Yes, Your Honor.

[00:29:57] Speaker 04:
We are definitely in agreement with you on that point.

[00:30:03] Speaker 04:
But in terms of what you just described, the board discussing, they didn't highlight that these were police officers as opposed to someone else.

[00:30:12] Speaker 04:
In other words, they didn't use the identity of the victims as any kind of

[00:30:17] Speaker 04:
in their determination of moral turpitude or particular serious crime.

[00:30:23] Speaker 04:
And we can't, but more importantly, we're using the categorical approach for the crime involving moral turpitude.

[00:30:30] Speaker 04:
And the elements that Mr. Mutaliti pled guilty to in 131202 were the aggravating factor of deadly weapon or dangerous instrumentality, not police officer.

[00:30:43] Speaker 04:
There is a separate aggravating factor under 1202,

[00:30:47] Speaker 04:
12-04-88 of having the victim be a peace officer.

[00:30:54] Speaker 04:
But that's not what Mr. Chilita was charged with, nor what he pled to.

[00:30:59] Speaker 04:
The provisions that my friend is referring to occur in the sentencing provisions.

[00:31:06] Speaker 04:
The sentencing provisions are not part of the elements that we look at in determining whether we have a crime involving moral turpitude or not.

[00:31:13] Speaker 04:
And the sort of determination of how this became a class three felony versus a class two felony is really just speculation on our part.

[00:31:21] Speaker 04:
There's no indication of the record of how that happened.

[00:31:25] Speaker 03:
So you're saying having police officers as victims is a specific aggravator that has to be charged?

[00:31:31] Speaker 04:
Yes, Your Honor.

[00:31:32] Speaker 04:
There are sentencing provisions that change the sentence if there's a police officer involved, but that's not an element that we look at in the categorical approach for purposes of determining whether there's a crime involving moral turpitude.

[00:31:46] Speaker 03:
I'm right, you're actually getting overtime so you can go ahead and wrap up.

[00:31:50] Speaker 04:
My last point was just to emphasize that past torture is the most important element, most important factor looked at in determining whether someone has established the claim for

[00:32:02] Speaker 04:
for under the convention against torture.

[00:32:04] Speaker 04:
So thank you very much, Your Honors.

[00:32:06] Speaker 04:
We ask that you reverse and remand.

[00:32:08] Speaker 03:
Thank you.

[00:32:08] Speaker 03:
All right.

[00:32:09] Speaker 03:
Thank you very much to both sides for your very helpful argument this morning.

[00:32:13] Speaker 03:
And thank you in particular for participating in our pro bono program and taking this case.

[00:32:18] Speaker 03:
It's very helpful to the court.

[00:32:20] Speaker 03:
The matter is submitted.