[00:00:07] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:09] Speaker 02:
My name is Eric Welsh, and I represent the petitioner, Tarek Zarkhani, in this petition for review of the decisions of the Executive Agency for Immigration Review.

[00:00:18] Speaker 02:
I'd like to reserve two minutes for rebuttal, if I may.

[00:00:22] Speaker 02:
This Court has jurisdiction to review constitutional claims and questions of law, and those are the issues that are presented here.

[00:00:30] Speaker 02:
My client entered into a good-faith marriage with his ex-wife, Crystal,

[00:00:35] Speaker 02:
And that, in a sense, was established through the proceedings in immigration court.

[00:00:41] Speaker 03:
So counsel, maybe you can jump into, because, I mean, starting out with a good faith marriage, that's like inherently a factual question.

[00:00:51] Speaker 03:
So how do you get us to a legal, and as you acknowledge, we can't review that, so how do you get us to a legal issue that we could grant relief on?

[00:01:01] Speaker 02:
Well, Your Honor, that was reaffirmed by this court last year in the case of Zia V. Garland that was submitted by counsel for respondent in the 28-J letter.

[00:01:16] Speaker 02:
And in the case from last year, this court found that although the factual determinations, the parts that lead up to the conclusion may not be reviewable, the overall

[00:01:28] Speaker 02:
conclusion, the finding that the marriage lacked good faith is reviewable.

[00:01:32] Speaker 01:
But isn't that a heavily fact-dependent inquiry?

[00:01:35] Speaker 01:
I would concede that it's sort of a mixed question of law and then the ultimate, excuse me, mixed question of fact, but then the ultimate conclusion is one of law.

[00:01:47] Speaker 01:
But it seems to me that if you put it on a scale, the factual analysis is heavier than the legal analysis.

[00:01:56] Speaker 02:
Well, Judge, there are two reasons why there is still jurisdiction for this court to review.

[00:02:00] Speaker 02:
One is how the courts and the board handles the evidence, so how they conduct the hearing to elicit the facts and whether due process is given to the respondent in those proceedings.

[00:02:12] Speaker 01:
Let's take one set of facts.

[00:02:14] Speaker 01:
You had challenged, I think, the admission of the testimony from the Clark County Superior Court divorce proceedings.

[00:02:24] Speaker 01:
Although there are other parts of your brief that argue that we should, that your client is relying on that testimony to establish the bona fides.

[00:02:32] Speaker 01:
So do you now concede that that evidence was properly admitted into the immigration proceedings?

[00:02:39] Speaker 02:
Well, Judge, the proceedings in the divorce court, I don't necessarily have an issue with those proceedings, but there is, I believe, a fundamental problem with assuming the testimony of a declarant who's not present in court is true or giving it full weight.

[00:02:56] Speaker 01:
But your client had, obviously, the opportunity to cross-examine and

[00:03:01] Speaker 01:
every incentive to challenge that testimony in the Superior Court proceeding.

[00:03:07] Speaker 01:
So how was due process violated in the agency relying on the record that was developed in the Superior Court?

[00:03:16] Speaker 02:
Well, Judge, specifically the issues that we can test are those statements that were not subject to cross examination.

[00:03:22] Speaker 02:
So the statements that she did make in the divorce proceedings and were subject to cross examination, I don't believe that those statements are necessarily excludable or should be excluded.

[00:03:32] Speaker 02:
But there were other statements that the declarants had made, for example, in the context of a temporary restraining order that was not necessarily subject to cross examination in court or

[00:03:43] Speaker 02:
examination by fraud investigators or USCIS investigators.

[00:03:47] Speaker 01:
But you do concede that the federal rules of evidence do not strictly apply to administrative proceedings before the agency?

[00:03:54] Speaker 01:
Certainly, Your Honor.

[00:03:55] Speaker 01:
So is your argument one of a due process violation that notwithstanding the fact that the rules of evidence don't apply, it was error for the immigration judge to admit them?

[00:04:05] Speaker 02:
Correct.

[00:04:05] Speaker 02:
Fundamental fairness.

[00:04:06] Speaker 02:
Exactly, Your Honor.

[00:04:08] Speaker 02:
that in the interest of fairness, and especially in issues such as this, and I think will always necessarily be a question of fact on the intentions of the parties entering into a marriage, there's a very strong benefit to having the ex testify and to testify to her meanings and the intentions that she had.

[00:04:30] Speaker 05:
So what, in your view, is the strongest legal

[00:04:33] Speaker 05:
argument that shows that the board erred, or the agency erred.

[00:04:38] Speaker 02:
Simply judge that the conclusion of the agency was based almost entirely on an adverse credibility determination without considering the countervailing evidence, that there was enough evidence of a good faith marriage giving full weight.

[00:04:55] Speaker 05:
If you put aside his not credible

[00:04:59] Speaker 05:
statements and just look at the rest of the evidence that was in the record.

[00:05:04] Speaker 05:
Yes, Judge.

[00:05:04] Speaker 05:
And is your argument that the board didn't give full consideration to that?

[00:05:08] Speaker 02:
That is my argument, yes.

[00:05:09] Speaker 02:
I don't believe that you're wrong.

[00:05:10] Speaker 03:
So what's your basis for that?

[00:05:11] Speaker 03:
Because I mean, we have case law, including the Loretta Martinez case, that says that we presume that a court looks at all the evidence.

[00:05:20] Speaker 03:
We don't have a rule, I think, although I want to hear from you, that says

[00:05:26] Speaker 03:
The board has to go through all, if there's 10 pieces of evidence, it has to mention all 10 or else we assume that it didn't consider it.

[00:05:33] Speaker 03:
In fact, the presumption is the opposite.

[00:05:35] Speaker 03:
We presume that they've considered all 10 pieces of evidence.

[00:05:39] Speaker 03:
They've weighed in on and mentioned what they need to, but where do we look to in the record to say, hey, here's a piece of evidence that they should have considered and we know they didn't?

[00:05:50] Speaker 02:
Well, Judge, I think if you consider the facts that are not disputed and the gloss or perhaps complete

[00:06:00] Speaker 02:
a failure to address entirely those indisputed facts, I think it would compel the conclusion that the board made an incorrect decision.

[00:06:08] Speaker 01:
But the board did acknowledge some of what I guess I'll call exculpatory evidence, for want of a better term, favorable evidence in its decision, at least sort of implicitly in saying, you know, although there were some equities in favor of finding

[00:06:26] Speaker 01:
you know, common marriage here, there were other items of evidence that cut the other way and the board chose to go with those items of evidence that cut against your client's position.

[00:06:40] Speaker 01:
Why isn't that sufficient in terms of meeting our case law and responding to the presumption that the agency did consider it?

[00:06:49] Speaker 02:
Judge, I think that the answer to that is just that there is such countervailing evidence to compel an opposite conclusion that it is difficult to understand even based on the rationale provided by the agency.

[00:07:00] Speaker 03:
But those are two different arguments, because you're now arguing, hey, taking these 10 pieces of evidence, it compels this other result.

[00:07:09] Speaker 03:
We don't have jurisdiction in this to review that.

[00:07:11] Speaker 03:
So I think Judge Tallman's asking you which of those exculpatory pieces of evidence did the board not consider that you think was legal error such that we need to send it back and say, look, this is so compelling.

[00:07:27] Speaker 03:
You didn't consider it, and you need to.

[00:07:29] Speaker 03:
What is that?

[00:07:30] Speaker 02:
Well, Judge, if

[00:07:32] Speaker 02:
Going back to the testimony of the ex-wife, of Crystal Cercarni, Crystal, again, never testified or provided any evidence that the marriage was fraudulent or that she was induced in fraud.

[00:07:45] Speaker 03:
Right, but that's not my question.

[00:07:47] Speaker 03:
At least that's not what I'm focused on.

[00:07:48] Speaker 03:
Mike, I think you've, you're unfortunately in a narrower box because you have to make a legal showing.

[00:07:55] Speaker 03:
So you can't challenge it.

[00:07:56] Speaker 03:
I mean, this isn't even substantial evidence and there may be substantial evidence here

[00:08:00] Speaker 03:
on its own that there wasn't a marriage.

[00:08:04] Speaker 03:
You have to say there was a legal error.

[00:08:06] Speaker 03:
So the fact that she didn't testify doesn't help you.

[00:08:08] Speaker 03:
It has to be the disregarded, I think, just disregarded or stated the facts wrong.

[00:08:15] Speaker 03:
Let's start with this.

[00:08:16] Speaker 03:
Did the BIA state any facts wrong that you can point to?

[00:08:20] Speaker 02:
I'm not sure if I could point to a misstatement of fact, but I would argue that there was a mischaracterization of fact.

[00:08:28] Speaker 03:
Okay, what's your best argument there?

[00:08:29] Speaker 02:
So there, Judge, I think there is, let's take, for example, the characterization about the courtship.

[00:08:36] Speaker 02:
It's undisputed that my client and his ex-wife dated for a few months before marriage.

[00:08:42] Speaker 02:
That evidence in and of itself, of course, does not demonstrate a fraud or lack of good, more marital intent.

[00:08:49] Speaker 02:
But at the same time, that time does not in and of itself prove or disprove my client's argument that he had a valid marriage.

[00:08:58] Speaker 00:
The agency seemed to focus on the significance of the fact that

[00:09:04] Speaker 01:
In very early, maybe the first communication between Crystal and your client, he essentially said, look, I want to get married, and if you won't marry me, I've got somebody in Chicago that I can marry.

[00:09:18] Speaker 01:
And the agency thought that was significant, that he was essentially looking for a marriage of convenience in order to obtain immigration benefits.

[00:09:29] Speaker 02:
But Judge, there's no suggestion in that statement or in an interpretation of that statement that that Crystal Zarkarney was somehow forced into a marriage or benefited from that marriage.

[00:09:42] Speaker 01:
Now, but doesn't that go to the state of his mind at the time?

[00:09:46] Speaker 01:
I think that's what the agency thought as I read their opinion.

[00:09:50] Speaker 02:
Judge, I agree.

[00:09:51] Speaker 02:
I think it's relevant to the question of the state of mind, but I don't think it compels a conclusion.

[00:09:57] Speaker 03:
I don't think that that fact in and of itself or even... Well, yeah, but that... I think you keep twisting the questions and the standard.

[00:10:07] Speaker 03:
Your job here is to show a legal error by the board that requires us to send it back.

[00:10:13] Speaker 03:
It's not to disagree and say, well, the board reached the wrong conclusion or it shouldn't have done that.

[00:10:18] Speaker 03:
And so I'll just repeat.

[00:10:20] Speaker 03:
So you said there was no misstatements.

[00:10:21] Speaker 03:
You talked about some mischaracterizations.

[00:10:23] Speaker 03:
What evidence in your mind did the board not consider that was in the record that if we send it back, they would consider it and reach a different conclusion?

[00:10:33] Speaker 02:
Well, Judge, I think maybe even just focusing on the question of what the board did wrong in its decision.

[00:10:40] Speaker 02:
With its handling of a specific piece of evidence, the board talks about or addresses the claim that was made in the appeal to the board about the due process violation, about using out-of-court statements and the relaxed evidence standard used in the agency.

[00:10:57] Speaker 02:
And the board essentially says, OK, we're not going to, or for the sake of argument, we will not acknowledge that evidence.

[00:11:03] Speaker 02:
But in the same analysis, in the same paragraph, the board uses those statements to impeach.

[00:11:10] Speaker 03:
From the divorce you're talking about?

[00:11:11] Speaker 02:
Correct, from the divorce proceedings.

[00:11:13] Speaker 02:
So the board is making the argument that that.

[00:11:15] Speaker 03:
So that goes to your due process argument.

[00:11:17] Speaker 02:
Correct, correct.

[00:11:18] Speaker 02:
But again, the due process argument is also concerned with how the board is handling this evidence, that the board is essentially cherry picking the parts of the evidence that would impede your appeal.

[00:11:29] Speaker 03:
What about the good faith marriage one?

[00:11:31] Speaker 03:
If we were to focus in and say, this is the bait, you know, if we're going to give relief, it's the good faith marriage exception for relief, what is the evidence of a good faith marriage that the board did not consider?

[00:11:47] Speaker 02:
Well, Your Honor, I think that the board did not summarize all of the favorable evidence, although it's true that the board doesn't necessarily have to talk about everything that is happening in court and every piece of good or bad evidence.

[00:12:00] Speaker 02:
And I understand that in the decision, the board did at least give lip service to an acknowledgment of recognizing this evidence.

[00:12:08] Speaker 02:
But essentially, when we look at the body of evidence, the totality of the evidence,

[00:12:13] Speaker 02:
My position is that this compels a conclusion, that a contrary conclusion isn't supported by the facts.

[00:12:19] Speaker 02:
The board's decision and the immigration judge's decision seems to be predicated on the finding that my client didn't tell the truth.

[00:12:26] Speaker 02:
And because he didn't tell the truth, they conclude that he must be lying about his intentions.

[00:12:32] Speaker 02:
I think that's a bridge too far.

[00:12:34] Speaker 02:
I think that that conclusion doesn't necessarily follow from that finding.

[00:12:39] Speaker 02:
So even a finding that he lacks credibility doesn't entitle a finding that he was lying about his intentions.

[00:12:48] Speaker 02:
And if we take the adverse credibility to say that his testimony shouldn't be given weight or that his testimony is deserving of less credit, we look to the other evidence of the record.

[00:13:02] Speaker 02:
And the other evidence of the record is primarily statements from his ex-wife, none of which would support a finding of a fraud.

[00:13:10] Speaker 03:
OK.

[00:13:10] Speaker 02:
Do you want to reserve?

[00:13:12] Speaker 02:
Yes, sir.

[00:13:12] Speaker 02:
Thank you.

[00:13:14] Speaker 02:
Thank you very much, Your Honors.

[00:13:15] Speaker 03:
Thank you.

[00:13:24] Speaker 03:
Did we lose counsel?

[00:13:29] Speaker 05:
There he is.

[00:13:29] Speaker 05:
There he is.

[00:13:32] Speaker 04:
Good morning.

[00:13:32] Speaker 04:
Can you hear me?

[00:13:33] Speaker 04:
Yes.

[00:13:34] Speaker 04:
OK, thank you.

[00:13:35] Speaker 04:
Good morning, Your Honors.

[00:13:36] Speaker 04:
May it please the Court, Drew Brinkman for the Attorney General.

[00:13:41] Speaker 04:
First off, I just want to briefly say thank you for allowing me to appear remotely.

[00:13:44] Speaker 04:
It's a big help, so I appreciate that.

[00:13:46] Speaker 01:
You got a lot of smell on the ground?

[00:13:49] Speaker 04:
There was yesterday, not today.

[00:13:51] Speaker 04:
OK.

[00:13:53] Speaker 04:
So this court's recent decision in Zia versus Garland, I think, controls most of this case.

[00:14:00] Speaker 04:
Under Zia, the court lacks jurisdiction to review the adverse credibility finding.

[00:14:06] Speaker 04:
And because Mr. Zucarno was not credible, substantial evidence supports the finding that he failed to meet his burden of proof.

[00:14:14] Speaker 04:
And we would say also, if the court needs to reach the issue, substantial evidence supports the alternate finding that he failed to meet his burden of proof, even assuming credibility.

[00:14:25] Speaker 04:
So then there's this due process issue, which we've been talking about, and that argument fails, I think, for two reasons.

[00:14:33] Speaker 04:
First of all, there is no constitutionally protected liberty interest in an application for discretionary relief.

[00:14:42] Speaker 04:
So the due process clause simply doesn't apply there.

[00:14:45] Speaker 04:
But even if it does apply, Mr. Zucarno was not prejudiced by the admission of his ex-wife's statements.

[00:14:51] Speaker 03:
So Council, and I don't want to speak for my colleagues.

[00:14:54] Speaker 03:
They may have other questions.

[00:14:55] Speaker 03:
But I'm particularly interested in, is there a legal error here?

[00:14:59] Speaker 03:
Because maybe you could address this.

[00:15:05] Speaker 03:
Is there evidence that the board didn't consider?

[00:15:07] Speaker 03:
I'm not sure I heard.

[00:15:10] Speaker 03:
Any that you know was mentioned, but I want to hear the government's point of this Do you think there was evidence that wasn't considered or that the board didn't need to consider it?

[00:15:20] Speaker 03:
About about the marriage about the marriage No, I don't think there's any evidence.

[00:15:25] Speaker 04:
They didn't consider.

[00:15:26] Speaker 04:
I thought the only Real legal issues that we might get into was whether the quote-unquote undisputed facts rise to the level of a good face good faith marriage and

[00:15:37] Speaker 04:
But I think the problem with that argument is there's really not many undisputed facts in this case.

[00:15:43] Speaker 04:
And the second legal issue I thought we'd get into was this due process claim.

[00:15:50] Speaker 05:
Let me just follow up on Judge Nelson's question.

[00:15:57] Speaker 05:
So the argument that I understand was made here by the petitioner, given the limited jurisdiction that we have to review,

[00:16:08] Speaker 05:
matters here is that the board did not fully consider all of the evidence in making its decision.

[00:16:18] Speaker 05:
And he points primarily, and this is somewhat related to his due process argument, they point primarily to the testimony of the ex-wife at the Superior Court family law matter, where she

[00:16:35] Speaker 05:
There's no evidence there that she doesn't testify or say anything that the marriage was entered into for any monetary transaction kind of situation or for immigration fraud or for anything like that.

[00:16:54] Speaker 05:
The argument I understand is that just wasn't fully considered.

[00:16:58] Speaker 05:
And there's other matters that are not mentioned that tend to be significant in these family, whether or not the marriage was entered into in good faith, is they shared a room together and a bed together for about a year.

[00:17:11] Speaker 05:
That doesn't seem to be emphasized at all or really examined by the board.

[00:17:17] Speaker 05:
The relationship that he had with her son,

[00:17:23] Speaker 05:
You know, so the argument I understand, that's the argument I understand, is that they just didn't consider fully the record.

[00:17:29] Speaker 05:
Now, if they didn't, if we were to conclude under our case law that they didn't, that would be legal airing.

[00:17:35] Speaker 05:
You would have to send it back and tell the board to fully consider all the evidence in the record.

[00:17:39] Speaker 05:
Is that correct?

[00:17:43] Speaker 04:
I don't think it's correct that there was air if that was the ultimate law.

[00:17:46] Speaker 05:
Well, no, if we were to conclude that they didn't consider, hadn't considered all the evidence.

[00:17:52] Speaker 05:
That would be legal air, right?

[00:17:54] Speaker 04:
If they ignored evidence, yes.

[00:17:57] Speaker 04:
That's legal air.

[00:17:57] Speaker 04:
OK.

[00:17:58] Speaker 05:
So how do you respond to the argument that they didn't consider all the evidence matters that I just pointed out?

[00:18:05] Speaker 04:
Well, you start with a presumption that they did because that's a presumption in our law that these judges do their jobs as they're supposed to.

[00:18:14] Speaker 04:
And then you look.

[00:18:16] Speaker 04:
I mean, you want to primarily be looking at the immigration judge's decision

[00:18:20] Speaker 04:
rather than the boards, because the immigration judge went into much more detail.

[00:18:24] Speaker 04:
And he did talk about the relationship with the son.

[00:18:27] Speaker 04:
He talked about that they lived together and shared a bed together.

[00:18:32] Speaker 04:
So that was not ignored.

[00:18:35] Speaker 04:
And then the final of the weather, the fact that the ex-wife didn't claim fraud in divorce court, I don't think

[00:18:46] Speaker 04:
I don't see the significance of that.

[00:18:49] Speaker 04:
She didn't need to claim fraud.

[00:18:50] Speaker 04:
She was just trying to get divorced.

[00:18:52] Speaker 05:
Well, there's never any statement anywhere that she had ever said that there was fraud or from her roommates who did testify.

[00:19:05] Speaker 04:
she did so in one of the statements that the boards explicitly did not rely on this was one of the statements to one of the investigators she said something like i think he may have married me for immigration purposes and i did mention that in our brief only in response to his claim that she's never said that he has said something to that effect but we the board didn't rely on it

[00:19:28] Speaker 01:
Your argument, I think maybe, although I didn't see this in either of the briefs, under Washington law, all you have to do is to allege irreconcilable differences.

[00:19:41] Speaker 01:
There's no need to prove that the marriage was entered into fraudulently or any other reason other than the fact that we're not getting along now.

[00:19:51] Speaker 04:
Right.

[00:19:52] Speaker 04:
Yeah, I mean, I didn't say it in terms of Washington law, but I did say she didn't have to claim fraud in the inducement.

[00:19:58] Speaker 04:
That would get her, I guess, an annulment.

[00:20:00] Speaker 04:
I don't know Washington law, but she didn't have to pursue that.

[00:20:04] Speaker 01:
It would not be a necessary element of a divorce action, is my point.

[00:20:09] Speaker 04:
Yeah, that was my point as well.

[00:20:11] Speaker 04:
She may not have known that that was an option to claim, or it may have been it costs more money or take more time to claim that.

[00:20:18] Speaker 01:
You wouldn't typically expect it to be raised at all because of the relatively low bar to establish entitlement to a divorce.

[00:20:28] Speaker 04:
Right.

[00:20:29] Speaker 04:
And I think you can tell from the proceedings is she just wanted to separate ties with him completely.

[00:20:34] Speaker 04:
She didn't want to drag out a long court battle over whether there was fraud in the inducement of this marriage.

[00:20:41] Speaker 04:
She just wanted to separate and be done.

[00:20:45] Speaker 03:
So can I ask you, because let's look at the board and this sort of goes to what you were saying of looking to the IJA.

[00:20:52] Speaker 03:
Let's take one of those pieces of evidence, but that they weren't sharing a bet.

[00:20:55] Speaker 03:
The board says it at AR4 that Ms.

[00:21:01] Speaker 03:
Winkle had stated that they were both getting along and sharing a bed and then it cites to IJ decision at 7 to 9, exhibits 5A and 46, 51, 58 to 59, 128, 130, 137, and 140 and then it goes on further and says

[00:21:19] Speaker 03:
and acknowledges that they were no longer sleeping in the same bedroom and cites again, IJ at 7, transcript at 337 to 38, 346, 350 to 52, exhibit 3 and 33 to 36, exhibit 5B at 20 to 21, 33 to 40, exhibit 6 at 25 to 26.

[00:21:43] Speaker 03:
Is there case law that would suggest that that is an insufficient consideration of the evidence for them that they used to sleep together?

[00:21:57] Speaker 04:
No, I don't.

[00:21:58] Speaker 04:
I think the board and immigration judge fully understood the facts of this case and they just saw the case differently than the petitioner sees it.

[00:22:06] Speaker 04:
So no, I don't think there's a good claim that they ignored any evidence in this case.

[00:22:12] Speaker 05:
I guess your argument would be that in looking at what happened here, you have to read both the IJ's decision and the board's decision.

[00:22:24] Speaker 04:
Right, the board adopted the IJ's decision.

[00:22:27] Speaker 05:
It doesn't say it adopted the IJ's decision.

[00:22:32] Speaker 05:
That's one of the first things I look for.

[00:22:35] Speaker 01:
It's not a Bourbono affirmative.

[00:22:38] Speaker 03:
It's not, yeah.

[00:22:39] Speaker 03:
No, it's not a Bourbono.

[00:22:40] Speaker 03:
What do you do when the board cites the IJ evidence?

[00:22:45] Speaker 03:
What does that do?

[00:22:49] Speaker 04:
But I think when they say the immigration judge's adverse credibility finding is not clearly erroneous, and then as you said, they cite the IJ over and over again, they're looking, the court should then look through to the IJ because the board is clearly just relying, summarizing the IJ's findings and relying on them.

[00:23:08] Speaker 03:
And then later on- At a minimum, the fact that they cite the IJ, whether they adopt the IJ or don't,

[00:23:14] Speaker 03:
It at least stands, it has to stand for the proposition that they didn't overlook this evidence.

[00:23:19] Speaker 03:
They cited it.

[00:23:20] Speaker 03:
Right?

[00:23:21] Speaker 04:
I agree.

[00:23:22] Speaker 04:
Right.

[00:23:22] Speaker 04:
I agree.

[00:23:23] Speaker 01:
I guess what's confusing me is I don't see why this is any different from what we do as an appellate court in reviewing a district judge's

[00:23:32] Speaker 01:
I mean, you obviously have to look at what the tribunal below said in order to decide whether or not to uphold or to overturn the finding.

[00:23:43] Speaker 01:
And we frequently cite to portions of the district court record in our appellate opinions, but I'm not aware of any cases that have overturned Ninth Circuit decisions because we didn't tick off every item of evidence that was included in the trial court's ruling.

[00:24:03] Speaker 01:
So why would that be any different in reviewing the BIA decision here?

[00:24:10] Speaker 04:
I don't think it should be.

[00:24:11] Speaker 04:
I mean, the board is an appellate body and it's doing just like the Ninth Circuit reviews, like you said, district court decisions.

[00:24:18] Speaker 04:
So it's trying to be streamlined in a sense.

[00:24:21] Speaker 04:
It's not rewriting the entire same decision.

[00:24:24] Speaker 04:
It's responding to the appellate arguments and then citing back to the evidence and the immigration judge's decision.

[00:24:32] Speaker 03:
Can I ask?

[00:24:33] Speaker 03:
I don't want to get off this topic, but I'm interested.

[00:24:36] Speaker 03:
The government sought to lift the stay of removal a year and a half ago.

[00:24:44] Speaker 03:
We granted that.

[00:24:45] Speaker 03:
We don't get that very often.

[00:24:47] Speaker 03:
So you could have removed Mr. Zarkarna over the last year and a half.

[00:24:52] Speaker 03:
Why didn't that happen?

[00:24:56] Speaker 03:
Well, actually, first, let me start with why did the government seek

[00:25:02] Speaker 03:
to lift the stay, because that's a little bit unusual.

[00:25:05] Speaker 03:
I haven't seen that often.

[00:25:12] Speaker 04:
So the answer is outside the record.

[00:25:14] Speaker 04:
OK.

[00:25:15] Speaker 04:
And I don't want to.

[00:25:16] Speaker 03:
OK, fair enough.

[00:25:18] Speaker 03:
But then why didn't he get removed?

[00:25:20] Speaker 03:
Because, I mean, we granted you relief.

[00:25:23] Speaker 01:
He's from Palestine, isn't he?

[00:25:25] Speaker 01:
What's that?

[00:25:25] Speaker 01:
Isn't he from Palestine, somewhere in the Middle East?

[00:25:28] Speaker 04:
he he yeah he's from palestine uh... he he has not been cooperating in getting travel documents for one and then for two the war between uh... that interrupted war in gaza basically put a positive things for a bit sure but they've assured me ices assured me that they will move him if that state it's lifted

[00:25:55] Speaker 04:
If the court's concerned that we're not going to remove him, they've said they will.

[00:25:58] Speaker 03:
Well, I don't know that we, I mean, I think that would go beyond.

[00:26:02] Speaker 03:
We have plenty of cases where I'm confident that we've denied relief and they're still in the country.

[00:26:09] Speaker 03:
And that doesn't color our decisions.

[00:26:11] Speaker 03:
But I'm more interested in why the government stepped forward and then didn't take action for a year and a half.

[00:26:18] Speaker 03:
But I guess it wouldn't have mooted out the case, because he'd still have his petition pending.

[00:26:26] Speaker 05:
Right.

[00:26:27] Speaker 05:
Is he in custody?

[00:26:30] Speaker 04:
Yes.

[00:26:33] Speaker 04:
Yeah, I mean, the reason we moved to Lyft is outside the record.

[00:26:36] Speaker 04:
I don't want to say it.

[00:26:38] Speaker 03:
Fair enough.

[00:26:38] Speaker 03:
No, that's all you need to say.

[00:26:41] Speaker 04:
Okay.

[00:26:45] Speaker 04:
I don't think... So the one thing I...

[00:26:49] Speaker 04:
uh... opposing counsel conceded that the transcripts from the divorce hearing were admissible, which I think is right.

[00:26:56] Speaker 04:
We argued that that's right.

[00:26:58] Speaker 04:
And I think once those transcripts come in, there's really nothing left of all the other evidence that

[00:27:06] Speaker 04:
that he said should be excluded, it's pretty much duplicative.

[00:27:10] Speaker 04:
I mean, the transcript is almost duplicative as well, because Mr. Zucarna admitted most of the facts that are now being used against him.

[00:27:18] Speaker 04:
But I really don't think there can be a due process claim once it's conceded that those transcripts come in, just because there's no prejudice.

[00:27:31] Speaker 04:
So unless the court has any further questions,

[00:27:34] Speaker 03:
Okay, thank you.

[00:27:37] Speaker 03:
Thank you, counsel.

[00:27:39] Speaker 03:
We'll give you time for rebuttal.

[00:27:46] Speaker 02:
Thank you, your honors.

[00:27:47] Speaker 02:
Just to briefly address the issue of the the boards, the agencies, I should say, the board and the immigration judges failure to consider the evidence.

[00:27:56] Speaker 02:
As counsel for respondents just told this court,

[00:28:00] Speaker 02:
The transcripts, if we agree that the transcripts from the divorce proceedings are acceptable and should be given full weight, then again, Judge, it's hard to understand how the board could have concluded that this was anything but a valid marriage.

[00:28:15] Speaker 02:
Again, I believe the error is that the board, one, not giving full weight

[00:28:21] Speaker 02:
consideration to the body of the evidence and second gave undue weight and compelled a conclusion based on an adverse credibility finding.

[00:28:31] Speaker 03:
The problem with how you framing it up is it has factual dispute all over it.

[00:28:38] Speaker 03:
i mean that's why i've tried to give you time and time again the opportunity to come in and say what did they not consider and i i'm not sure that i've heard anything to latch onto i mean it's hard you're just in a tough position to come in and argue that well i i would reach a different conclusion or anyone would reach the conclusion almost have to say

[00:28:57] Speaker 03:
Consider X piece of evidence.

[00:28:59] Speaker 03:
What's your response to the the stuff that I read about citing the IJ does does does the fact that they didn't incorporate the IJ's decision matter here or aren't we looking at something different about whether they looked at the evidence at all?

[00:29:13] Speaker 02:
Judge, I do believe that the court scope would include the judge's decision.

[00:29:17] Speaker 02:
I do believe in this case, and I believe there's case law that says that when the board references the judge's decision and adds analysis of its own, this court can look to both decisions.

[00:29:28] Speaker 02:
And I think looking at both decisions, we still see from the judge and from the Board of Immigration Appeals a failure to truly recognize and give weight and credence to Crystal Zucarni's testimony.

[00:29:42] Speaker 01:
But aren't you asking us to reweigh the evidence in reaching that conclusion?

[00:29:48] Speaker 02:
judge I'm just asking to remand it to the board to do its job more fully.

[00:29:52] Speaker 01:
But the last part of your sentence basically said that they gave undue weight to the unfavorable evidence and not sufficient weight to the favorable evidence.

[00:30:05] Speaker 01:
That's inherently a factual determination, is it not?

[00:30:09] Speaker 02:
Judge, even if that is a factual determination, if we consider where the board is making its credibility determination, it's not a question of the intentions at the time of marriage.

[00:30:19] Speaker 02:
It's a question of the viability of the marriage after the fact.

[00:30:23] Speaker 01:
Although you did concede that that one piece of evidence about introducing the person in Chicago comes at the very outset of their communications with one another, the agency thought that was very significant.

[00:30:39] Speaker 02:
That's true, Judge, and that may be perhaps the only evidence relating to the state of mind at the time of the marriage, the intentions entering into the marriage.

[00:30:49] Speaker 02:
But again, there too, Judge, and this is from this court's own precedent, a desire to obtain a green card is not equivalent of a fraudulent marriage.

[00:30:59] Speaker 02:
And marrying for a green card is not itself a fraud.

[00:31:03] Speaker 03:
Okay.

[00:31:04] Speaker 03:
Thank you.

[00:31:04] Speaker 03:
Thank you to both counsel for your arguments in this case.

[00:31:06] Speaker 03:
Thank you very much.

[00:31:07] Speaker 03:
The case is now submitted and