[00:00:04] Speaker 01:
Good morning.

[00:00:06] Speaker 01:
Welcome to the Senator Day O'Connor U.S.

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courthouse.

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All of our cases this morning have been submitted on the briefs except for this one.

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This is the only case set for oral argument.

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And it is the case of Alejandro Villanueva Hernandez versus Pamela Bondi.

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And if counsel looks like you're ready to proceed,

[00:00:34] Speaker 01:
And let me just ask you, Mr. Wickers, can you hear us?

[00:00:41] Speaker 00:
Yes, Your Honor.

[00:00:42] Speaker 01:
Okay.

[00:00:43] Speaker 01:
Thank you.

[00:00:44] Speaker 02:
All right.

[00:00:45] Speaker 02:
Miss Wright.

[00:00:47] Speaker 02:
May I begin?

[00:00:48] Speaker 02:
Yes.

[00:00:48] Speaker 02:
Thank you.

[00:00:48] Speaker 02:
Good morning, Your Honor, and good morning, Council, on other

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honors.

[00:00:52] Speaker 02:
Thank you so much for having me here today.

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This is a simple case.

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The respondent, my client Alejandro Villanueva, was detained in 2020.

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He was placed in removal proceedings.

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He was just a regular individual driving and then the protest happened downtown Phoenix and he got picked up by ICE.

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And it was during COVID-19 pandemic where things were a little bit more complicated.

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Mr. Villanueva was placed on removal proceedings.

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He was released on bond and the court issued a request for written pleadings by February 22nd, 2021.

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We complied by submitting the pleadings on time.

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However, subsequent scheduling orders were issued in April 2021, which was critical to the case and was never received by me, counsel, due to mail delivery issues.

[00:01:54] Speaker 04:
Again, that- Let me ask you about that.

[00:01:56] Speaker 02:
Yes.

[00:01:58] Speaker 04:
When you filed what you call the motion to reissue, the IJ said, if you're going to contend that you never receive this,

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You need to make an evidentiary submission, not just enough to say it to me.

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You need to file a declaration or something.

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And as close as I can tell looking at this record, you never did.

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Is that correct?

[00:02:23] Speaker 02:
That is correct, yes.

[00:02:24] Speaker 04:
So why then was the presumption, and why was the presumption of delivery rebutted?

[00:02:31] Speaker 02:
Well, I filed a motion to reissue and before our policy is I'm not going to put my name on something if I cannot get the response of my client.

[00:02:41] Speaker 02:
And my client was, I guess, our office reached out to him multiple times and before filing I do have to get consent from the client in order to file.

[00:02:50] Speaker 04:
Your client eventually files a declaration, although it's with respect to the motion to reopen, that says I never got anything.

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I understand that.

[00:03:00] Speaker 04:
But that probably doesn't matter under the law if you receive the notice.

[00:03:05] Speaker 04:
Well, the cases seem to say service on council suffices.

[00:03:09] Speaker 04:
And so I'm trying to figure out whether you've ever filed anything in this case that said, no, I didn't receive it.

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You did file something in the building manager that says sometimes we have trouble delivering.

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Did you ever file anything in any place in the immigration court?

[00:03:26] Speaker 02:
Yes.

[00:03:27] Speaker 04:
A declaration from you that says you didn't receive it?

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I believe I did file it.

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Then identify for me where that is.

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And I believe that I don't know if the court had asked for an actual declaration.

[00:03:46] Speaker 04:
Well, he said, you just can't tell me you didn't receive it.

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That's what the IJ said.

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You need to put something in evidence, whether it's a declaration or a deposition or something.

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And I just can't find anything in this record.

[00:04:01] Speaker 04:
And maybe you can identify it later, if you can't find it now, where you said, in a form that would be admissible in evidence,

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I didn't receive it.

[00:04:12] Speaker 01:
And that's a very critical point, and so it seems like you would have it ready right now if you submitted that kind of a declaration.

[00:04:20] Speaker 02:
Yes, and to be quite honest, it was my impression that me filing the motion to reopen, explaining that I did not receive it.

[00:04:30] Speaker 04:
But the IJ told you.

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He told you when you filed the motion to reissue.

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You filing a motion is not enough.

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Evidently, you need something more.

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You need a declaration.

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You need something evidentiary.

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And you did file something from the building manager, but frankly, I don't find it very persuasive because the building manager says, sometimes if we don't get the right suite number, it doesn't go to the right place, but the mailing in this case had the right suite number.

[00:04:56] Speaker 02:
I understand.

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So I'm trying to figure out, did you do anything other than file motions?

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I don't believe so, but the standard is it wasn't certified male.

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So applying the strong standard, strong presumption, it shouldn't be applied.

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I feel like the department, and it's my impression that the department applied the strong presumption.

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But because it wasn't certified mail, it was actually just regular mail, then you can apply the weak presumption.

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And basically, based on the acquiescence of the client, him filing his written pleading.

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him, you know, us getting a declaration from the, well, a letter from the building manager about the mail mishap, and me explaining that, you know, during the COVID-19 situation, things in the mail has always been missing.

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Most of our mails had gotten missing around that time.

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And so I believe that the application, and maybe there was a mishap where we did not file, I did not file a personal declaration,

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But that declaration would be a presumption in and of itself of a strong, it would be applying the strong presumption.

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But because the mail is not certified, it wasn't like certified mail, then we should be applying the weak presumption to this case.

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And there are, the standards are more or lesser of the few.

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And when we, I did, you know, Mr. Villanueva did file a declaration himself as well.

[00:06:22] Speaker 01:
You agree this was not certified mail.

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This was regular mail.

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I agree, yes.

[00:06:28] Speaker 01:
But I'm going to back up just a little bit because I'm a little confused by what's in your pleadings.

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You say in your briefing that you didn't receive the April 14, 2020 order.

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You say you experienced difficulties receiving mail, but then you also seem to take responsibility

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for your client's lack of knowledge about the deadline in your motion to reopen, you say you take full responsibility for the lack of notice to Mr. Villanueva.

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You did or did not receive the April 14, 21.

[00:07:05] Speaker 02:
We did not receive the April 14, 21.

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We were only aware of Mr. Bowling.

[00:07:10] Speaker 01:
And so then, knowing you did not receive it, and after as Judge Hurwitz just identified for you, the court saying that you need to show evidence, your client submitted a declaration that he never got it.

[00:07:30] Speaker 01:
But you never submitted a declaration.

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That is correct.

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I did not submit a declaration.

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In your view, I guess, I think that could be an effective assistance of counsel.

[00:07:43] Speaker 02:
For me, the purpose of not submitting the declaration is I was having a really difficult time communicating with the client.

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And I honestly, in my statement, I honestly did not receive the pleadings.

[00:08:02] Speaker 02:
In what statement?

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In my motion that I drafted.

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I explained that I did not receive the statement.

[00:08:08] Speaker 01:
And then you didn't appeal.

[00:08:09] Speaker 01:
I don't understand why you didn't appeal the June 17, 21 removal order despite receiving an IJ order instructing you that you still had time to appeal.

[00:08:24] Speaker 01:
I don't understand why you didn't appeal the May 26, 2023, the IA decision affirming the denial of your motion to reopen.

[00:08:34] Speaker 02:
I didn't appeal it, as I said before, and if you look in the previous pleadings, the pleadings explained that Mr. Villanueva did go under the radar.

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We were not able to get in contact with him.

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His excuse said that he had lost multiple individuals in his family.

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And to me, that would be an effective assistance of counsel if I were to file a pleading without his knowledge or his acknowledgement of it.

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But you never filed anything to that effect.

[00:09:00] Speaker 01:
You never submitted anything to that effect.

[00:09:02] Speaker 02:
Yes, in the pleading it shows that, in our responses, it shows that Mr. Villanueva, it was really difficult to get in contact with him.

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And in the pleadings, you would see that there was written the acknowledgement that Mr. Villanueva lost about four or five family members at the same time he went missing.

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So me filing something on his behalf without his knowledge or without his consent, to me, that would be ineffective assistance of counsel.

[00:09:29] Speaker 04:
You eventually filed

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a declaration from Mr. Villanueva, right?

[00:09:33] Speaker 04:
You prepared that declaration, did you?

[00:09:35] Speaker 02:
Yes.

[00:09:36] Speaker 04:
At the same time you filed a declaration from him, now you had his attention, you had made contact with him, you did not file a declaration from you.

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So I don't think you can say, well, I didn't do so because I was waiting to be in contact with him.

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So if you didn't receive these documents, why didn't you just file a declaration saying so?

[00:10:00] Speaker 02:
And I can't it's I can't I believe that there is a declaration here and I'm just going to take if you mind if I take a look and see if I think what you maybe you might do is save the rest of your time for rebuttal and See if you can point it out to us when you stand back up.

[00:10:16] Speaker 02:
Okay, perfect.

[00:10:16] Speaker 01:
We'll do okay Council You may state sure I think you're on mute I

[00:10:28] Speaker 01:
I'm talking to government's counsel.

[00:10:30] Speaker 01:
You may be seated and look for your declaration and then I'll call you up for a battle.

[00:10:36] Speaker 00:
Yes, Your Honor.

[00:10:37] Speaker 00:
Can you hear me?

[00:10:37] Speaker 01:
Yes.

[00:10:39] Speaker 00:
May it please the court, Edward Wiggers for the respondent, Attorney General Bondi.

[00:10:43] Speaker 00:
The record shows that the court served its orders on the address that counsel provided.

[00:10:50] Speaker 00:
And indeed, the motion to reconsider actually confirmed delivery to that address.

[00:10:54] Speaker 00:
The issue of whether it reached her office or not is not a matter for the service, for the regulations only required provision of service to the address that counsel submitted to the written record of the address.

[00:11:05] Speaker 04:
Tell me how the motion to reconsider confirmed delivery to that address.

[00:11:09] Speaker 04:
Go ahead.

[00:11:12] Speaker 00:
On page 18 of the record, your honor, in the motion, counsel states,

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that despite the confirmation of mail delivery, there remains a notable absence of specific confirmation of delivery to our office.

[00:11:27] Speaker 04:
What is the confirmation of mail delivery here?

[00:11:32] Speaker 00:
I didn't see anything in the record other than her statement.

[00:11:35] Speaker 04:
I find that very confusing.

[00:11:37] Speaker 04:
I didn't know what it meant.

[00:11:40] Speaker 04:
It doesn't seem to refer to anything.

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doesn't say, I confirmed that there was mail delivery by checking with somebody or whatever.

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So I just found that statement very opaque.

[00:11:54] Speaker 00:
Yes, Your Honor, but it is counsel's statement on her client's behalf that the delivery happened.

[00:11:58] Speaker 00:
But regardless, the record shows that the immigration court used the address she provided.

[00:12:04] Speaker 00:
There's no evidence that the mailings never reached that address.

[00:12:07] Speaker 01:
Well, let's talk about the presumption because counsel

[00:12:13] Speaker 01:
is arguing that because it wasn't certified mail, there's a lesser presumption.

[00:12:21] Speaker 01:
Is that your understanding?

[00:12:23] Speaker 00:
Yes, Your Honor, and that's the understanding the board employed when they cited matter of MRA, which discusses the difference in the standards between certified mail and regular mail.

[00:12:33] Speaker 01:
And so here, when the petitioner filed his notice that he did not receive it, his declaration that he didn't receive it, why isn't that enough?

[00:12:44] Speaker 00:
Because it's the recipient, Your Honor, and in this case, the recipient was counsel.

[00:12:48] Speaker 00:
So counsel needed to provide evidence that counsel did not receive it at the address that she provided.

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And as the court noted in the earlier discussion, there is no evidence to that effect in this record.

[00:13:01] Speaker 01:
And because there is case law, I think it's the same case, that indicates that if petitioner or lawyer indicate that they did not receive

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submitted a declaration that the that the IJ needs to evaluate and weigh it with all the other evidence.

[00:13:23] Speaker 01:
And here the IJ neither the or the BIA recognized or stated specifically anything about the petitioner's declaration that he didn't receive it.

[00:13:38] Speaker 00:
Your Honor, it's because for the service

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has to be to the written record of address that the petitioner provides.

[00:13:45] Speaker 00:
In this case, petitioner through counsel provided counsel's address.

[00:13:49] Speaker 00:
So that's the relevant address for service and for issues of the presumption.

[00:13:54] Speaker 00:
The question is whether the recipient at that address failed to receive the mailing.

[00:13:59] Speaker 04:
So let me ask a question about that because I want to be clear.

[00:14:04] Speaker 04:
You didn't have an address for the petitioner?

[00:14:09] Speaker 00:
The only address that they had was the address counsel provided.

[00:14:13] Speaker 04:
That's what I'm asking.

[00:14:15] Speaker 04:
So in the record in this case, there's no address for the petitioner, just an address for counsel.

[00:14:22] Speaker 00:
Correct, Your Honor.

[00:14:23] Speaker 00:
And counsel is serving as petitioner's agent to receive mailings from the court.

[00:14:27] Speaker 04:
So that if that were true, and I don't know that the record in this case reflects it, you wouldn't have mailed a notice to the petitioner in any event, whether or not counsel received it or didn't.

[00:14:40] Speaker 00:
Correct, Your Honor.

[00:14:43] Speaker 04:
Was that point made below?

[00:14:45] Speaker 04:
I don't find it in anybody's ruling.

[00:14:51] Speaker 00:
Oh, what point was that, Your Honor?

[00:14:53] Speaker 04:
In other words, I could see the IJ saying, I have the declaration of petitioner, but I don't give it any weight because he wouldn't have been served with one.

[00:15:03] Speaker 04:
or the BIA saying it.

[00:15:06] Speaker 04:
This is the first time I'm here.

[00:15:08] Speaker 04:
I understand the argument you made on the law, which is that service on counsel at the address provided is sufficient.

[00:15:15] Speaker 04:
I didn't understand you to have argued before today that, of course, he didn't get served because we never had his address.

[00:15:23] Speaker 00:
I don't believe they discussed it in the agency decisions below, Your Honor, because from the beginning... Yeah, I'll take a look at them.

[00:15:30] Speaker 01:
I didn't understand that because you say in your answering brief that there's absolutely no evidence of non receipt by petitioner, but petitioner did submit a sworn declaration of seems which is evidence of non receipt.

[00:15:46] Speaker 01:
I understand the point that you're making that you send it to the council, but to say that there's absolutely no evidence of non receipt by petitioner when you have a declaration, it just causes me some pause.

[00:15:59] Speaker 01:
Um, and especially

[00:16:01] Speaker 01:
when we have held that the BIA has a duty to weigh all relevant evidence when there is a factual dispute about whether a document has been mailed by the agency to a petitioner.

[00:16:14] Speaker 01:
That's the same case in the Hernandez Velasquez versus Holder sighting scene.

[00:16:19] Speaker 01:
So I just had a question about whether or not the BIA in needing to weigh all the relevant evidence in this case

[00:16:30] Speaker 01:
Did it do so if it failed to mention Mr. Villanueva's declaration stating that he never received the April 14th order?

[00:16:40] Speaker 01:
Can you respond to that?

[00:16:43] Speaker 00:
Yes, Your Honor.

[00:16:44] Speaker 00:
I believe the agency took it into consideration.

[00:16:47] Speaker 00:
I can't point to it right off hand, but with counsel standing in for petitioner to be the agent for service and submitting her address as the address to which all service should be provided,

[00:17:00] Speaker 00:
And that proceeding through two immigration courts and through various proceedings in those immigration courts and up to the board twice.

[00:17:09] Speaker 00:
Petitioner was in the, petitioner's counsel was in the position of being the agent for receipt of service.

[00:17:15] Speaker 00:
So it's whether she received the service is the question that matters.

[00:17:20] Speaker 00:
Mr. Villanueva's affidavit that he never received anything from his lawyer or the court is informative only to the extent that he didn't actually physically get a copy of it.

[00:17:29] Speaker 00:
But as far as for whether the court affected service as required under the regulations, his affidavit doesn't really matter because he was not the recipient, counsel was.

[00:17:39] Speaker 01:
And is there a case on that?

[00:17:41] Speaker 01:
And I understand the point that you're making.

[00:17:43] Speaker 01:
I'm just wondering if there's a case on that because it does seem to put a spotlight on this Hernandez case that says when there is an actual dispute about whether a document and here you have the

[00:17:57] Speaker 01:
petitioner.

[00:17:58] Speaker 01:
So this is a little bit unique because I understand that the attorney was the agent, but you have something being submitted by the petitioner.

[00:18:08] Speaker 01:
I'm just wondering if that's enough to create a sort of factual dispute or if what you're saying that the lawyer being the named recipient is enough.

[00:18:22] Speaker 00:
It's not enough, Your Honor, because of the way the regulations are written.

[00:18:26] Speaker 00:
And the closest I could find was the Mayorga-Guzman case in our most recent 28J letter, which addressed the service of an immigration judge's decision for purposes of an untimely appeal to the board.

[00:18:42] Speaker 00:
And the individual in that case was arguing that he only received the written summary of an oral decision from the immigration judge that did not contain the legal reasoning, and he should have received that in order to be able to perfect his appeal.

[00:18:56] Speaker 00:
This court's resolution of it turned on the fact that the regulation, which is HCFR 1003.37A, only required submission of the written summary.

[00:19:06] Speaker 00:
It didn't require anything else.

[00:19:08] Speaker 00:
Now, if you take 1003.37A and B together for purposes of written decisions, or in this case, an order,

[00:19:16] Speaker 00:
you have to mail it to the address of record, the address of record provided by the petitioner.

[00:19:22] Speaker 00:
In this case, that address of record was counsel's address.

[00:19:25] Speaker 00:
So petitioner's statement that he did not receive anything from counsel has no bearing on whether counsel received it from the court.

[00:19:33] Speaker 00:
And the only factual dispute that matters is whether counsel received it from the court.

[00:19:37] Speaker 00:
There's no evidence showing she did not.

[00:19:38] Speaker 01:
And if counsel didn't submit a declaration that she never received it,

[00:19:45] Speaker 01:
Does that, because you allude, in fact, you stated that this is intertwined with an ineffective assistance of counsel case.

[00:19:56] Speaker 01:
What happens when it raises the whole spectrum of ineffective assistance of counsel?

[00:20:02] Speaker 00:
Well, the ultimate question in ineffective assistance cases, Your Honor, often is prejudice.

[00:20:06] Speaker 00:
Here, there's an independent dispositive issue with the board denying the motion reconsiderers untimely.

[00:20:11] Speaker 00:
But as far as ineffective assistance parameters itself,

[00:20:15] Speaker 00:
we would need more information about what was going on and make sure this was not some sort of tactical decision to buy time to pursuing the procedural avenues first before trying having to litigate the applications.

[00:20:26] Speaker 00:
And ultimately, yes, your honor.

[00:20:29] Speaker 03:
But you can go ahead and finish your sentence.

[00:20:31] Speaker 00:
Ultimately, the application in this case revolved around a cartel based extortion claim.

[00:20:37] Speaker 00:
So prejudice, if any, I don't believe the prejudice standard would be met and subject to the court's questions as my time is expiring.

[00:20:47] Speaker 03:
Here's my question.

[00:20:48] Speaker 03:
We've asked counsel for the petitioner whether she ever filed an affidavit firmly stating that she did not receive this notice.

[00:20:59] Speaker 03:
Uh, is that your understanding of the record?

[00:21:02] Speaker 03:
There's no such declaration in the record.

[00:21:06] Speaker 00:
Yes, your honor.

[00:21:06] Speaker 00:
I looked a couple of times for the record.

[00:21:08] Speaker 00:
I never saw anything that would be a declaration from counsel.

[00:21:12] Speaker 03:
Thank you.

[00:21:14] Speaker 03:
Thank you.

[00:21:17] Speaker 02:
And I know that my time is limited, but in the court's order, when it asked me to, I can do an appeal or resubmit something.

[00:21:26] Speaker 02:
The court never explicitly stated that I needed to submit an affidavit.

[00:21:30] Speaker 02:
Which court are you talking about?

[00:21:32] Speaker 02:
The immigration court, when we filed the motion to reissue the order.

[00:21:36] Speaker 04:
In the court's ruling on your motion to reissue, the court expressly said, it's not enough to tell me that or put it in a motion.

[00:21:44] Speaker 04:
You need to do something evidentiary.

[00:21:46] Speaker 04:
Yes.

[00:21:47] Speaker 04:
Did you?

[00:21:48] Speaker 02:
Yes, I did provide a letter from our building manager.

[00:21:52] Speaker 02:
And that was my understanding.

[00:21:55] Speaker 02:
If the court had explicitly said I needed to file an affidavit stating that I did not receive it, I would have filed the affidavit.

[00:22:03] Speaker 02:
But the court said I did not submit anything.

[00:22:05] Speaker 02:
And that's when I went to the building manager, which I believe was more believable than me submitting an affidavit in and of itself.

[00:22:12] Speaker 04:
All the building manager said was there's been a problem with delivery.

[00:22:17] Speaker 04:
And that often occurs when the suite number is not on the mailing.

[00:22:21] Speaker 04:
And there's no dispute in this case that the suite number was on the mailing.

[00:22:27] Speaker 02:
There is a dispute that the suite number was on.

[00:22:29] Speaker 04:
Tell me how do you dispute that?

[00:22:30] Speaker 02:
Because it says suite 2200 and my suite is 2223.

[00:22:33] Speaker 02:
So the building manager specifically stated that in the letter as well.

[00:22:40] Speaker 02:
But the court never asked or never said, if you provide an affidavit, that would be enough.

[00:22:46] Speaker 02:
So I provide an affidavit for my client.

[00:22:49] Speaker 02:
And I believe that getting an affidavit, getting a letter from a third party would suffice because it's more, it would be, I'm the one writing the motion explaining that the affidavit, the mail was not received.

[00:23:00] Speaker 02:
And then the building manager, who's a third party, who has no interest in this case or no interest to make a misrepresentation to this case, is stating that there might be a discrepancy when it comes to unit numbers.

[00:23:12] Speaker 02:
I believe under that would have been a more credible source of information for the court to make a decision.

[00:23:22] Speaker 03:
I'm looking at your application for relief.

[00:23:27] Speaker 03:
And one of the things it says

[00:23:30] Speaker 03:
is that your client's failure to submit any application for relief was, quote, due to exceptional circumstances beyond his control, namely that his counsel, the person he retained to represent him, is having difficulty receiving mail at her known address.

[00:23:48] Speaker 03:
Yes, seems to me have been a perfect time to did you tell your client you never received it?

[00:23:53] Speaker 02:
Yes, I did let my client know that I did not receive the mail.

[00:23:56] Speaker 03:
The perfect opportunity to say that in the application, but you don't you sort of skirt the issue.

[00:24:03] Speaker 03:
You have him talking about delivery failures, not your statement.

[00:24:09] Speaker 03:
I did not get this notice.

[00:24:12] Speaker 02:
And I, you know, it was under my belief and an impression that me writing and drafting the motion and letting the court know that I did not receive the notice, me calling the court and letting the court know that I did not receive the notice was sufficient to prove that I did not receive the notice.

[00:24:27] Speaker 02:
I have gone above and beyond for the client.

[00:24:31] Speaker 02:
I have even when

[00:24:32] Speaker 02:
We couldn't get in contact with the client for a while because he has experienced a lot of insurmountable amount of deaths in this family.

[00:24:39] Speaker 02:
I've contacted the court, let the court know that I'm not able to reach a client, but we will be filing something.

[00:24:45] Speaker 02:
You know, if an order specifically stated, Ms.

[00:24:49] Speaker 02:
Wright, you need to submit a declaration.

[00:24:51] Speaker 02:
I mean, in the pleadings, all through the pleadings, it specifically states, I did not receive notice.

[00:24:57] Speaker 02:
I had issues with the mail.

[00:24:59] Speaker 02:
And I even went to the building manager and asked for an affidavit, which was a lot to ask for.

[00:25:04] Speaker 02:
because I had to go all the way up to corporate to get that letter.

[00:25:06] Speaker 02:
And so I believe that under the circumstances and under the time limit, I did what was necessary for my client given the given the circumstances.

[00:25:16] Speaker 04:
Now, if I can ask you a question about the address issue, because yes, maybe I misunderstood the record.

[00:25:21] Speaker 04:
What address was on file in this case with the IRS as your address?

[00:25:27] Speaker 04:
What sweet number?

[00:25:27] Speaker 02:
Sweet 2200.

[00:25:28] Speaker 02:
Okay.

[00:25:29] Speaker 04:
And that's the suite to which it was addressed, correct?

[00:25:32] Speaker 02:
That was the suite that it was.

[00:25:33] Speaker 04:
It turns out you gave them the wrong number.

[00:25:36] Speaker 02:
No, it's not.

[00:25:36] Speaker 02:
So it's a, so before when I, when I was, I just had started out as an attorney and I rented, it's a Regis office.

[00:25:44] Speaker 02:
So in order for Regis to receive mail for us on our behalf,

[00:25:49] Speaker 02:
we have to make it addressed to suite 2200 so that they can distribute to each individual office owner.

[00:25:55] Speaker 04:
The suite number to which the notice was sent was the suite number that you provided to the agency, correct?

[00:26:06] Speaker 04:
Yes, I had no other choice.

[00:26:07] Speaker 04:
I'm not looking for an explanation of why, but I thought you said they addressed it to the wrong suite number.

[00:26:14] Speaker 04:
They addressed it to the suite number that you provided to them, correct?

[00:26:17] Speaker 02:
And that is correct.

[00:26:19] Speaker 02:
But I had no other option because we just would not be able to receive mail on me on my behalf because it's a co-op.

[00:26:26] Speaker 02:
So it was a co-office space that we were leasing.

[00:26:29] Speaker 02:
There are multiple different businesses in the co-op and the mail has to be distributed to them directly.

[00:26:34] Speaker 02:
The mailman cannot come directly to our suite and distribute mail individually.

[00:26:38] Speaker 02:
And hence the reason why I moved office spaces because there was a lot of mishap with mail.

[00:26:44] Speaker 03:
Did you ever advise the immigration court of these

[00:26:48] Speaker 03:
prior difficulties you were having with receiving mail?

[00:26:53] Speaker 02:
Yes, I have.

[00:26:53] Speaker 03:
Other than in this case?

[00:26:55] Speaker 02:
Yes, I have.

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

[00:26:57] Speaker 02:
And there have been multiple instances where mail has not been received by me.

[00:27:01] Speaker 02:
And the resolve was that we had to move to a different space and a unit of my own, which we now did.

[00:27:08] Speaker 02:
But at that time, I didn't have any money to do that.

[00:27:11] Speaker 01:
You understand, though, you were the recipient here.

[00:27:13] Speaker 01:
You were the recipient.

[00:27:18] Speaker 01:
I'm puzzled why you would not have just submitted a declaration.

[00:27:23] Speaker 01:
Why did the INS have to tell you to do that?

[00:27:28] Speaker 01:
You should have submitted a declaration, and the consequence of you not doing so are significant.

[00:27:36] Speaker 02:
Your Honor, but INS did not tell me to specifically submit a declaration.

[00:27:39] Speaker 01:
Did they need to?

[00:27:41] Speaker 02:
In most of the motions that we file for reopen, we submit declarations on our clients' behalf.

[00:27:48] Speaker 02:
I've had successful cases that have been reopened without me submitting the declaration based on my clients.

[00:27:57] Speaker 02:
When you've received it in this similar circumstance?

[00:28:02] Speaker 02:
The judge, the court said that I needed to supply and submit enough evidence, like additional evidence to prove that the mail was missed.

[00:28:12] Speaker 02:
Under the circumstances, I believe that getting a third party's statement that is more credible, that would be more credible than mine would be sufficient.

[00:28:23] Speaker 02:
And that was my understanding.

[00:28:24] Speaker 01:
But it's critical, under the law, it's critical for the INS to know that that was never received.

[00:28:31] Speaker 01:
And when you were the recipient, it's very murky to say, oh, I'm having problems with the mail.

[00:28:38] Speaker 01:
And then you take full responsibility for not informing your client.

[00:28:42] Speaker 01:
It's not clear.

[00:28:44] Speaker 01:
So unfortunately, your client's going to bear some significant adverse consequences, it looks like.

[00:28:52] Speaker 02:
Well, again, Your Honor, I would say that I've

[00:29:00] Speaker 02:
done multiple motions to reopen that have been granted and I have provided declarations of the clients and it was sufficient enough for the motions to reopen.

[00:29:11] Speaker 04:
Were those cases in which the only address given to the agency was that of you or was that address given to you?

[00:29:23] Speaker 04:
See, those may be cases in which the client was supposed to receive notice from the agency, correct?

[00:29:29] Speaker 02:
No, no, the clients don't receive if I'm the attorney of record in the client.

[00:29:33] Speaker 04:
I understand, but you can you can file a you can file with the agency.

[00:29:40] Speaker 04:
I want the client to receive notices at a certain.

[00:29:42] Speaker 04:
Yes, your honor.

[00:29:43] Speaker 04:
Did you do so in those other cases?

[00:29:46] Speaker 02:
No.

[00:29:48] Speaker 02:
So, I mean, the facts and circumstances are have always been different with motion to reopen.

[00:29:52] Speaker 02:
It can be for anything.

[00:29:53] Speaker 02:
It can be in client coming to me for, you know, to

[00:29:58] Speaker 02:
reopen their case from another law firm.

[00:30:00] Speaker 02:
So the circumstances are different now.

[00:30:03] Speaker 04:
I just have one other question if I can.

[00:30:06] Speaker 04:
What order are you appealing?

[00:30:10] Speaker 02:
I'm appealing the BIA's order.

[00:30:12] Speaker 04:
Oh, I know it's a BIA order.

[00:30:14] Speaker 04:
Tell me which of the BIA's orders are you appealing?

[00:30:16] Speaker 02:
The BIA order that denied our motion to reopen.

[00:30:19] Speaker 04:
You're not appealing the BIA order denying your motion for reconsideration?

[00:30:25] Speaker 04:
Yes.

[00:30:26] Speaker 04:
That's what I'm asking.

[00:30:28] Speaker 04:
Which order are you asking us to review?

[00:30:30] Speaker 02:
The one where the BIA was specifically saying that they're going to affirm the immigration court's decision on the motion to reconsider and reopen.

[00:30:38] Speaker 02:
So the motion to reconsider?

[00:30:40] Speaker 02:
Yes.

[00:30:43] Speaker 02:
And it's, I mean, the truth still remains the same, even in additional cases that I've reviewed.

[00:30:49] Speaker 02:
And, you know, the cases that we've reviewed and we've cited in our brief in

[00:30:55] Speaker 02:
Salta, the presumption was weak and the BIA and the courts, the Pella Court, this court specifically said that based on the weakness of the client showing up and showing up the date of the actual hearing.

[00:31:13] Speaker 01:
But that was not, the attorney was not the sole recipient in that case, if I recall correctly.

[00:31:20] Speaker 01:
That is correct.

[00:31:21] Speaker 01:
So you're trying to,

[00:31:25] Speaker 01:
equate that to the circumstance, you had a significant responsibility because you were the sole recipient.

[00:31:32] Speaker 01:
And I'm just still puzzled why you would not have the legal consequence of you not notifying your client and if you didn't really get notice, then you needed to establish clearly to the INS that you never got that notice and by

[00:31:51] Speaker 01:
submitting that, oh, there's just problems with our mail and the building.

[00:31:56] Speaker 01:
But it's not clear whether or not you got it.

[00:31:58] Speaker 01:
And you're taking full responsibility in other aspects of your brief.

[00:32:03] Speaker 01:
So I can understand why there's a question here.

[00:32:08] Speaker 01:
And just trying to figure out where the law applies to it in light of the cases that we have.

[00:32:14] Speaker 01:
But I hope

[00:32:19] Speaker 01:
you understand what it means when you are the only recipient on behalf of your client.

[00:32:27] Speaker 01:
Thank you very much.

[00:32:28] Speaker 01:
The case of Alejandro Villanueva Hernandez versus Pamela Bondi is now submitted.

[00:32:35] Speaker 01:
Thank you both for your oral argument presentations.

[00:32:38] Speaker 01:
We are adjourned.

[00:32:39] Speaker 01:
Thank you so much, Your Honors.