[00:00:15] Speaker 00: Good morning, Your Honor. [00:00:19] Speaker 00: My name is Wen Shinga on behalf of the petitioner. [00:00:21] Speaker 00: May he proceed. [00:00:23] Speaker 00: Thank you, Your Honor. [00:00:25] Speaker 00: So I present the petitioner seeking the yield of a BIA's decision affirming an immigration judge's denial of petitioner's motion to reopen and to reissue the immigration judge's written order of removal. [00:00:43] Speaker 00: Which copy was alleged mailed twice to the petitioner's counseled worker and returned it twice, undeniable, within a statutory 30-day period. [00:00:57] Speaker 00: Therefore, the petitioner was unable to exercise his right to appeal the immigration judge's removal order to the border immigration appeal. [00:01:07] Speaker 00: And he was unable, ultimately, [00:01:10] Speaker 00: to have a judicial review of the final removal order. [00:01:17] Speaker 00: For this case, on behalf of the petitioner, I will request the court to vacate the border immigration appeals decision and demand a case for further proceeding. [00:01:30] Speaker 00: Your honor, the case is controlled by a recent, recently published, ninth circuit court decision in United States versus Rivera-Varadis 21.1037, sir. [00:01:46] Speaker 00: In Rivera-Varadis, this court held that under Mounen and Jones, due process requires notice in removal proceedings. [00:01:58] Speaker 03: So could I ask, because this is a new case, the BIA hasn't considered it yet as applied to your client. [00:02:06] Speaker 03: Should we decide what Rivera Valdez means for your client, or should we send it to the BIA to decide that? [00:02:13] Speaker 03: What do you think procedurally should happen next? [00:02:18] Speaker 00: I think this case is governed by regulation, CFR. [00:02:23] Speaker 00: I mean 8 CFR section 1003.37 and also 90 governed by another regulation. [00:02:32] Speaker 00: It's a 8 CFR 1003.23, subsection B43. [00:02:43] Speaker 00: If properly applied for the case, for the regulation and the previous decided case law, the BIA [00:02:53] Speaker 00: should have already remand the case back to the immigration court. [00:02:58] Speaker 03: I'm sorry. [00:02:59] Speaker 03: I'm having trouble hearing you. [00:03:00] Speaker 03: Could you say again what you think should happen? [00:03:01] Speaker 00: I think even if prior to this new case, the BIA still made mistake and violated the due process right of the petitioner. [00:03:17] Speaker 02: Of course, I'm sympathetic to your client, particularly because lawyer number one, there's some ambiguity [00:03:24] Speaker 02: about what address he was having his office at. [00:03:28] Speaker 02: And we don't have anything in the record that really confirms the sequence of events. [00:03:34] Speaker 02: So the question I have is, if we were to determine that Rivera Valdez means that he had a due process right, if the lawyer messed up that they should have sent notice to his personal address, [00:03:54] Speaker 02: In your view, does that mean that any time notices are returned as undeliverable, that that would prompt an obligation on the part of the immigration service to then revert to the individual? [00:04:13] Speaker 02: What would it mean in terms of practical application? [00:04:18] Speaker 00: I think a case will name versus a censure [00:04:24] Speaker 00: hand over a band of trust company and trust company. [00:04:29] Speaker 02: Say the name of that case again, because again, we're having a little trouble hearing you. [00:04:32] Speaker 00: Sorry. [00:04:32] Speaker 02: No problem. [00:04:33] Speaker 02: You could pull the microphone a little closer. [00:04:35] Speaker 00: Yeah. [00:04:36] Speaker 00: The first case cited by Rivera for this name, which is a full name, full case name, my name, versus central or center handover bank and trust company. [00:04:52] Speaker 00: 339 US 306. [00:04:54] Speaker 00: It was already published long before this new case. [00:04:59] Speaker 00: This new case is published on September 18th this year, but [00:05:07] Speaker 00: The name was published long before this case in. [00:05:17] Speaker 00: Sorry, let me go back to the title of 1950. [00:05:21] Speaker 00: In 1950, the Supreme Court already required the notice must be reasonably calculated in general application to all cases, including immigration case. [00:05:38] Speaker 00: And in June, the Supreme Court again specifically held that notice is non-reasonably calculated under the circumstances when the government notes its measure of service was ineffective and take no additional reasonable step. [00:06:03] Speaker 02: Well, that raises an additional question. [00:06:06] Speaker 02: language you quote about reasonably calculated to reach the individual, the Ninth Circuit also has reaffirmed that language as far back as 2002. [00:06:16] Speaker 02: So that's been on the books, so to speak. [00:06:21] Speaker 02: But if that were the case, do we run into a question of whether that argument should have been raised or was forfeited by not having that in either the appeal to the BIA, [00:06:35] Speaker 02: or the appeal then to the Ninth Circuit? [00:06:40] Speaker 00: I don't think so, Your Honor, because if we go back to the proceedings, the Council already made clear this case governed by two specific regulations. [00:06:56] Speaker 00: Two specific regulations require, let me go to point number one, [00:07:02] Speaker 00: ACFR 1003.37 provides a written decision to be served on parties by personal service, mail, electronic notification, and regulation provided alternative options for that service. [00:07:23] Speaker 02: Well, I want to just focus your answer because I understand what you're saying. [00:07:28] Speaker 02: Statutorily, it seems that the [00:07:31] Speaker 02: Immigration Service met its statutory obligation because it sent it to counsel. [00:07:37] Speaker 02: That's kind of an alternative. [00:07:39] Speaker 02: But it would seem to me there's a constitutional question here separate from these various CFRs. [00:07:46] Speaker 02: So that's really, I think, the focus of my question is, was the constitutional issue raised? [00:07:56] Speaker 00: Yes, your honor. [00:07:57] Speaker 00: I think that I will go back to your initial question. [00:08:01] Speaker 00: I think that the case is appropriate to remand the case back to the BIA for further proceeding after the publication of new decision. [00:08:15] Speaker 00: Because in a way, the immigration court did not perform proper duty, did not discharge [00:08:27] Speaker 00: is obligation under the CFR, ACFR 133.37, because in this statute did not say clearly, did not say you can pick one and done. [00:08:41] Speaker 00: The statute, the regulations say you can choose different options. [00:08:47] Speaker 00: And it requires the government to take proper step to determine which option [00:08:55] Speaker 00: more practical. [00:08:57] Speaker 00: So it's consistent with the owner's case law. [00:09:04] Speaker 00: But the immigration court didn't do anything after that to return the mail. [00:09:11] Speaker 00: The 2 mail returned it undeniable. [00:09:15] Speaker 00: And there is also a mistake. [00:09:17] Speaker 00: I think we just mess about the fighting of facts. [00:09:23] Speaker 00: We have three cases that have been reported by the border immigration appeal, BIA, which accused the council relocated, but there's no record. [00:09:32] Speaker 00: So now council actually relocated, no clear evidence to support the speculation. [00:09:45] Speaker 00: have to return the mail. [00:09:46] Speaker 00: The first return the mail is especially problematic. [00:09:50] Speaker 02: We're quite familiar with the sequence of events on the return mail to the lawyer. [00:09:55] Speaker 02: You might want to save time for rebuttal. [00:09:58] Speaker 03: Would you like to save some time for rebuttal? [00:09:59] Speaker 00: I will go forward and finish it, if you allow me to. [00:10:08] Speaker 00: So the first return the mail. [00:10:10] Speaker 00: actually had a different language than two subsequently returning mail. [00:10:15] Speaker 00: The first returning mail saying that return to sender, no such number, which mean that USPS did not recognize the adjust as valid. [00:10:25] Speaker 00: And they had a problem to serve because of the adjust issue. [00:10:29] Speaker 00: Although adjust already used for two years from 2020 to 2022. [00:10:36] Speaker 03: So you've used up your time. [00:10:37] Speaker 03: I think we should hear from the government. [00:10:38] Speaker 03: Thank you. [00:10:39] Speaker 00: Thank you. [00:10:52] Speaker 01: Good morning, Your Honors. [00:10:53] Speaker 01: John Bailey with the Department of Justice for the respondent. [00:10:58] Speaker 01: So the panel issued an order asking us to address the impact of the circuit's recent en banc decision in Rivera-Valdes, as well as whether the petitioners due process argument had been forfeited. [00:11:09] Speaker 01: I think one of those questions is easier than the other, so I'm going to take those questions out of order. [00:11:13] Speaker 01: And I'd like to start with forfeiture. [00:11:16] Speaker 01: So the specific due process claim here is, well, it would be under Rivera-Valdes, whether the agency's failure to take additional steps after receiving return certified letters violated due process. [00:11:31] Speaker 01: So I think the question for the panel is whether that claim was that teed up for the agency such that the panel now can pass on it. [00:11:38] Speaker 01: And so when thinking about forfeiture, it's basically, was it enough that they were just on notice that they could even get to this issue themselves? [00:11:46] Speaker 01: And I think when we look at the brief that was filed to the BIA, the due process issue, even if you squint, it just can't be found here. [00:11:56] Speaker 01: And I'm looking at the starts on page 16 of the administrative record, and it goes to page 2022. [00:12:08] Speaker 01: The brief, it really focuses on [00:12:10] Speaker 01: that the agency had to do more. [00:12:12] Speaker 01: So there are some mistakes by the post office and lack of mistake by the petitioner. [00:12:17] Speaker 01: But it doesn't assert that the agency [00:12:25] Speaker 01: As far as to whether the agency did need to do more, the returned letters, that only gets a sentence in the statement of facts. [00:12:34] Speaker 01: It just notes that the, quote, the envelope containing the order was not delivered, but it was returned to the immigration court by error. [00:12:41] Speaker 03: So if Rivera-Valdes had already been decided when this was filed at the BIA, don't these facts [00:12:51] Speaker 03: state a claim that could be understood within Rivera Valdez if the BIA had known about Rivera Valdez? [00:13:02] Speaker 01: Well, I think one thing that's tricky, Your Honor, I mean, is they only mention just the one returned letter. [00:13:07] Speaker 01: I mean, that fact gets, it's pretty much buried in this brief. [00:13:12] Speaker 01: I don't think there's any emphasis on the point that like, look, the agency had this information, out of fairness, they should have done more. [00:13:17] Speaker 01: That's not what the thrust of the due process argument was about. [00:13:21] Speaker 03: It was about, well, the petitioner wasn't at fault, or it was... It does say that they never received the removal order. [00:13:27] Speaker 03: They found out when it was too late. [00:13:29] Speaker 03: I mean, isn't that enough to show that this return mail problem led to lack of notice? [00:13:42] Speaker 01: Sure. [00:13:43] Speaker 01: I mean, I think the agency, the BIA, would have understood that at a very high level, this is an issue of notice. [00:13:49] Speaker 01: But I think as to whether the petitioner was arguing that the agency violated due process by not itself taking an affirmative step, I think that claim is what is forfeited here. [00:14:01] Speaker 02: But even if it were forfeited, wouldn't we have discretion here to hear this constitutional argument? [00:14:10] Speaker 02: And if so, would it make sense [00:14:13] Speaker 02: to remand and let the BIA sort out in this context what Rivera-Valdes means? [00:14:21] Speaker 01: Your Honor, I think for this particular claim, because this is a procedural due process claim that the agency itself could have dealt with, I don't think that there would be an exception to the exhaustion requirement here. [00:14:33] Speaker 01: But that said if the court concludes that this is either not wavered or it has in its discretion can reach this issue I think it would be most appropriate to remand to the BIA so that the BIA can apply Rivera-Valdes to the facts of this case which due process notice as a general matter is fact-specific and then I think as it applies to the petitioner's case particularly so as you noted there's [00:14:57] Speaker 01: some ambiguity in the record as to exactly what happened with sequencing. [00:15:00] Speaker 01: And so it seems like it'd be most appropriate for the BIA to apply Rivera-Valdes if this court disagrees with the forfeiture position. [00:15:10] Speaker 03: And it would be the BIA considering whether to order the IJ to reissue to restart the time to appeal or basically just to have the BIA allow another appeal if the BIA decides that due process was violated? [00:15:27] Speaker 01: Yes, I think the latter. [00:15:28] Speaker 03: The latter. [00:15:30] Speaker 03: Because the IJ doesn't need to change anything, really. [00:15:34] Speaker 03: It's really the BIA needs to decide whether to allow an appeal. [00:15:37] Speaker 03: And that would be within the BIA's power if the BIA decided there had been a violation under Rivera? [00:15:42] Speaker 01: Yes, that's my understanding, Your Honor. [00:15:48] Speaker 01: I'm happy to answer any other questions on the forfeiture or Rivera-Valdes, if the court has any. [00:15:55] Speaker 03: I don't think so. [00:15:56] Speaker 03: Thank you very much. [00:15:57] Speaker 03: Thank you both sides for the arguments. [00:15:58] Speaker 03: This case is submitted.