[00:00:02] Speaker 01:
Good morning, your honors. May it please the court. My name is Erica Vejar, and I'm here before this court on behalf of the petitioner.

[00:00:10] Speaker 01:
The petitioner is a father to three US citizen children, and he is the son to two elderly legal permanent residents.

[00:00:19] Speaker 01:
I stand here before this court to ask that this court finds that the BIA committed legal error when it determined that Cruz, one of petitioner's qualifying relatives, was no longer a qualifying relative for purposes of cancellation of removal, because at the time that BIA rendered its decision on appeal, Cruz was already over the age of 21.

[00:00:45] Speaker 01:
However, the BIA purported to consider the hardship to Ana Laura, the petitioner's daughter, who was also over the age of 21.

[00:01:00] Speaker 01:
So that clearly shows the incongruency in the BIA's assessment and evaluation of the petitioner. Do you think the agency maybe didn't realize the daughter was over 21? No.

[00:01:11] Speaker 01:
We don't know from the language of the BIA's decision, but it really seems incongruent, and it gives the appearance of the lack of attention to the facts of the case and the application of the law. And so in doing so, the BIA committed legal error by, one, finding that Cruz didn't qualify as a child under the cancellation of removal statute, And on the other hand, implying or holding that Ana Laura was a qualifying relative.

[00:01:50] Speaker 03:
So maybe we should focus on the Cruz part because if the agency was right that Cruz was not eligible, then the error in considering the daughter would have at most helped your client. Is that right?

[00:02:03] Speaker 01:
Not really, because the cancellation of removal statute and the guideline calls for the immigration judges and the BIA to look at the totality of the circumstances. So by leaving out an evaluation or looking at the hardship to cruise, it doesn't help the petitioner here.

[00:02:22] Speaker 03:
No, but it seems like if it was correct that someone who's over 21 by the time the BIA rules is ineligible, then it would suggest that the correct way to handle this case would have been to say that both children were ineligible and that would not really be better for you right

[00:02:40] Speaker 01:
And so because we have this incongruency and an inconsistency in the BIA's decision, what the BIA should have done or what this court should do is, one, hold that the correct time to ascertaining a qualifying relative's age is at the time that the application for cancellation of removal is being considered on its merits at the immigration judge's level, at the immigration court level.

[00:03:07] Speaker 04:
So the board has taken the view, as I understand it, So sometimes the passage of time can hurt, as in this case where the child was a child and then turns 21. Sometimes the passage of time can help make the claim better. Either somebody wasn't sick before and now they are, or you hadn't accrued enough time to satisfy the good moral character requirement and now you have.

[00:03:32] Speaker 04:
And as I understand it, the board has taken the position that when the passage of time helps – the board can consider that and can say, okay, now we're going to look at things as they are now before the board. Do you think that's wrong? Should they not do that either? Everything is frozen as it is before the IJ?

[00:03:53] Speaker 01:
Well, the BIA has to look at the decision, the immigration judge's decision, when it rendered it, when the case was before it. So the BIA doesn't get to look at the facts and make findings of fact de novo on appeal.

[00:04:10] Speaker 04:
I mean, for this, it's not really a finding. I mean, there is a finding as to, you know, what is the child's date of birth, right? And after that, like, if I know his age today, I don't need to find any new facts to know his age next year or seven years from now, right? I mean, the rest of that is... pretty uncontroversial arithmetic. So why should we think of this as a new finding?

[00:04:39] Speaker 01:
The way I understood your question, Your Honor, and if I apologize if I misunderstood it, what you're asking me to answer is, is it wrong that the BIA is looking at the hardship, per se, after the passage of time when the case is on appeal. And what I am saying is the law requires for the BIA to look back to see whether the immigration judge committed either an erroneous finding of fact or the wrongful application of the law.

[00:05:13] Speaker 03:
But what in the statute requires considering this question of when a minor is a minor is at the time of the IJ rather than at the time of the BIA?

[00:05:25] Speaker 01:
Well, because at the time of the immigration judge, the immigration judge has to go through the Counselation of Removal statute and determine whether all of the elements are met. the physical presence requirement, the existence of a qualifying relative to begin with, the good moral character, lack of disqualifying criminal offenses. So the statute itself requires that initial assessment.

[00:05:56] Speaker 01:
So it is the immigration judge who is going through those elements. Do we have continuous physical presence and then make that determination? Does the petitioner or respondent before the immigration court, does he have a qualifying relative?

[00:06:11] Speaker 03:
So if the qualifying relative at the time of the IJ is 20 years old and the IJ says their birthday is X day, and then the BIA, it's two years later when the BIA is deciding the case, is the BIA not able to consider the passage of time as a matter of judicial notice? I mean, why shouldn't the BIA realize that that person who was 20 is now 22?

[00:06:35] Speaker 01:
Because then you're precluding – it's a due process violation. You're precluding an individual from availing himself from a benefit, an immigration benefit against removal, when he or she is presenting that application – on the first instance before the immigration court. Because then the other – so we have a case at the Board of Immigration Appeals, the matter of Isidro Zamorano.

[00:07:05] Speaker 01:
It's a 2012 case where the board dismissed the appeal because the – the child or the qualifying relative aged out. So if we take the proposal that the BIA has the right or should look at the age of the qualifying relative, then a petitioner would be left without the relief that, but for an appeal, he or she would have qualified for.

[00:07:44] Speaker 04:
So in your brief before the board, you took issue with the IJ's assessment of the facts.

[00:07:55] Speaker 04:
And you suggested that you'd be granted relief. But then you said, alternatively, respondent moves the board. to remand this matter to the IJ to enter original findings of fact on those factors previously not considered. If you had gotten that relief, wouldn't you then have lost on this issue, on the remand? Or do you think, would the IJ on remand have been allowed to look at what his age then was? Or would the IJ have had to say, well, I'm sure he's over 21 now, but the last time it was before me, he wasn't, and I'm stuck with that?

[00:08:29] Speaker 01:
The difference would be on remand is that the immigration judge had already made a finding and that the petitioner or respondent before the immigration court had already established that he had a qualifying relative or multiple qualifying relatives.

[00:08:47] Speaker 04:
So your answer is even on remand, the IJ would be stuck with the previous finding because the first hearing took place before the child was 21? Yes. Okay.

[00:08:58] Speaker 01:
Because on remand, the immigration judge is not always looking at the case de novo. It's a very limited scope. And so the BIA would provide guidelines as to what needs to happen on remand.

[00:09:11] Speaker 03:
It's not a brand new... What if the BIA had said reconsider whether this relative is qualifying and whether there's enough hardship?

[00:09:21] Speaker 01:
On remand?

[00:09:23] Speaker 01:
The judge would have only limit...

[00:09:28] Speaker 01:
a ruling or an evaluation on the facts that the judge had before it during the merits hearing.

[00:09:38] Speaker 01:
They couldn't have a new merits hearing?

[00:09:40] Speaker 01:
Well, it would have a new merits hearing because they schedule it as a merits to, it's a trial date, but it would have to look at the facts and circumstances as they appeared at the previous marriage, because now we're back on remand, and the remand is limited in scope.

[00:10:03] Speaker 02:
Aren't you challenging what the IJ found at the first hearing, and that you've established at the BIA that there was a defect in his finding?

[00:10:12] Speaker 01:
Right.

[00:10:12] Speaker 02:
And then he would be bound by the findings that you challenged?

[00:10:17] Speaker 01:
He wouldn't be bound by the findings that we challenged, because we're saying that those findings...

[00:10:25] Speaker 01:
were not either supported by the evidence before it, during the merits, or there was an erroneous application.

[00:10:34] Speaker 02:
Why wouldn't there be a de novo new hearing following a remand where the findings of the IJ itself were the basis of the challenge before the board?

[00:10:48] Speaker 01:
If the board finds that that should be the scope of the remand, then the board is free to make those confines or specific instructions for the immigration judge.

[00:11:02] Speaker 03:
Is there any chance here that if we thought the agency's decision about the daughter was supported, that there would be a different decision as to the son's level of hardship?

[00:11:14] Speaker 01:
Yes.

[00:11:14] Speaker 03:
What would be the reason for that?

[00:11:17] Speaker 01:
Because if there is... So hardship is to be evaluated Individually as well as cumulatively. So if there's hardship to the daughter, then considering the sons or considering the hardship to the son would make the petitioner's case for hardship stronger.

[00:11:43] Speaker 03:
And so you think that even if we thought the agency was appropriate in thinking that the daughter and the parents combined was an extreme and unusual, that adding the son makes it?

[00:11:54] Speaker 01:
meet the standard i believe so yes is there anything different about the son or you just think adding another relative is no i mean you would we would have to look at the specific um hardship that the son would endure um if the petitioner were removed so it's a it's a case-by-case evaluation it's not a number thing you could um a petitioner could meet the exceptional and extreme unusual hardship with one qualifying relative.

[00:12:28] Speaker 01:
So it's not a number. Well, now we have four qualifying relatives versus one. And so an application should be granted for someone who has four qualifying relatives and not for one that has one. It's not that kind of analysis. But certainly, if you have one qualifying relative and the hardship but it doesn't rise to the level of exceptional and extreme minutiae hardship, then if you have four qualifying relatives taken altogether, and that's just the hardship.

[00:13:01] Speaker 01:
It's country conditions. It's different factors. It's not just one. So there's got to be an evaluation of all factors individually applied to each qualifying relative as well as cumulatively. And so here the BIA also said or held hardship or country conditions as they affect the petitioner, we don't have to consider that. And that's contrary to law and to well-established precedent in the context of cancellation of removal.

[00:13:36] Speaker 01:
And so it's not just one factor or one hardship circumstance is taking everything together as it applies to the petitioner because hardship to the petitioner as it relates to the hardship that it would cause the qualifying relatives has to be considered.

[00:13:56] Speaker 03:
You want to save the remaining time? I'm worried about you using up your time.

[00:14:00] Speaker 01:
Thank you, Your Honors. Thank you.

[00:14:18] Speaker 00:
Good morning. May it please the court. Edward Durant for the United States.

[00:14:23] Speaker 00:
Before I start, I'd just like to clarify that if I'm unable to get my points across, if I'm not clear, if I'm distracted, my argument would track perfectly Senior Judge McKeague's dissent in Perez that came on after the briefs that were written. But that is the government's argument. If I stutter or stammer or don't get my point across, That's what I would rely on. And despite petitioner's contentions, at the time of the board's decision, Cruz, the son at issue, was no longer a qualifying relative under the statute.

[00:15:00] Speaker 00:
With respect to Anna, I don't know why the board analyzed her hardships. I would think it would be just an error in math, which is always possible. Even so, there's no prejudice because it determined that there was no No prejudice there for her at all. She was going to school, doing well, no harm, probably going to get a scholarship to nursing school.

[00:15:21] Speaker 00:
But it is well established and endorsed by this court that the application for a cancellation of removal is continuing and not fixed. And this was endorsed by this court in Mendez in 2013, I believe, where they relied or adopted the – the board in Isidro and Batista, which recognized that these applications were continuing. They're never fixed. And I rely on the text of the statute, how these cases have always been interpreted and the purpose of the statute in making my argument.

[00:15:55] Speaker 00:
First of all, if the court were to look at the text of the statute, under the statute, the alien may seek cancellation if he establishes or she establishes that his removal, his removal would result in exceptional, an extremely unusual hardship to that qualifying relative. In this case, a child under the 21 and unmarried. So it's going to have to be removal that causes the hardship. That hardship will arise upon the applicant's removal to a person who at the time of removal is a qualifying relative.

[00:16:27] Speaker 00:
It makes no sense to fix that. This is an extraordinary form of relief. This exceptional and reasonable hardship standard is very difficult to meet. There's only 4,000 of them, I believe, granted every year. The purpose is a petitioner is sort of a subsidiary beneficiary. He's not really the beneficiary of this form of relief. It's his children. Usually kids with special needs. You know, I know it when I see it, but this is not the case. So it's a fiction to allow Cruz to be to fix him in time when right now he's probably in his he is in his mid 20s.

[00:17:01] Speaker 00:
From the record, it looks like he was helping his father at the at a very look like a very successful garage and good on him. But that's not the type of hardship that this statute is designed.

[00:17:11] Speaker 04:
You said a moment ago that it's whether the removal would cause hardship. So does that mean – I mean, the removal does not take place at the time of the board's decision. It takes place some – at least months after the board's decision. Sometimes years. So sometimes years. Yes, sir. Would it be – suppose you had somebody who was 20 at the time it comes before the board. Do you think it would be – appropriate for the board to say? I mean, on your theory, it seems like what the board should say is, well, sure, he's 20 now, but we're pretty sure he's not going to be removed until he turns, he's not being removed, but we're pretty sure that the alien won't be removed until the child turns 21.

[00:17:53] Speaker 04:
So therefore, you're not eligible.

[00:17:57] Speaker 04:
Would that be the conclusion the board should draw in that kind of case?

[00:18:00] Speaker 00:
No, sir. It's the government's position that The court – the age is established at the final administrative order, which in this case would be the board.

[00:18:09] Speaker 04:
Well, that – I mean, that's fine, but then it seems like you're not really – I mean, your textual arguments seem to turn on, like, what is the age when he's removed. And so if you've – if you're not tying it to that, then it's not clear to me why the board – time of the board decision is a better time than the time of the IJ decision. It's –

[00:18:31] Speaker 00:
Because it's the board and this court has always recognized that this is a continuing. There's got to be some.

[00:18:38] Speaker 00:
It's a continuation. It's never fixed. And this court has has followed that twice. Post Loper Bright in in Cervantes Mejia and in Dominguez Montoya. When this court observed that in Mendez Garcia, which endorsed the board's theory that the application is always continuing in both those cases. The aliens' children turned 21 between the IJ's decision and the board's decision. And in both those decisions, this court determined that the board was correct.

[00:19:12] Speaker 00:
So we do have court precedent here. Of course, they were unpublished.

[00:19:16] Speaker 00:
I don't know if that would be – I guess it's still persuasive to this court. And it is post loper bright. I mean, we used to – the court would usually defer to the board. They don't do that anymore, but it can still see if it's – what's the word I'm looking for?

[00:19:30] Speaker 02:
If I can – Yes, sir. Are you saying that because of this interpretation of the impact of the administrative order that notwithstanding the text of the statute that says it is to be determined at the time of removal, it will be determined at the time of the order – knowing that the time of the order, it will come perhaps even years before removal.

[00:20:01] Speaker 02:
Notwithstanding that gap, the key point of determination and the one that we should use on this appeal is the time of the administrative order by the BIA.

[00:20:13] Speaker 00:
The final administrative order. That's where it should be fixed.

[00:20:16] Speaker 04:
And so does that mean that? Suppose you have a case where the child is 20 at the time of the board's order and they say, okay, he's a qualifying child, but we're denying relief for some other reason. And then there's a petition for review to this court.

[00:20:34] Speaker 04:
And we conclude that the board made some legal error on some other point.

[00:20:39] Speaker 04:
But now it's before us and the child is now over 21.

[00:20:44] Speaker 04:
You would say in that situation, we should not consider the fact that he's over 21 because the age got fixed at the time of the board's decision?

[00:20:54] Speaker 00:
As my understanding, this court would consider the finding of the board. Now, in Petitioner's case...

[00:21:07] Speaker 00:
They also argue that the agency didn't consider crime in Mexico or things like that. Petitioner's testimony, he never testified to anything like that.

[00:21:18] Speaker 03:
Before you move on from this age issue, can I just ask, if your interpretation is correct that we determine this as of the time of the board decision, why wasn't it a due process violation for the board to take so long?

[00:21:34] Speaker 00:
It's a...

[00:21:35] Speaker 00:
There is really, I mean, it didn't really track, it wasn't that inordinate. There is no, and you can see this in some other cases, there is no, the statute itself is straight. Petitioner didn't argue that at least that the, or the board, what I'm getting at is petitioner never addressed to the board that there was a due process violation. This lag in time is usual.

[00:22:05] Speaker 04:
How could she have raised it? I mean, she filed a brief before the board, and when she files the brief, she doesn't know that they're going to take so long.

[00:22:13] Speaker 00:
The time the board took is similar to what it usually takes, several years. And that time, that delay, that ordinary delay, that harm, it mitigates. Any harm to a child mitigates because that kid is growing up. He's no longer or she's no longer – This defenseless person right now.

[00:22:31] Speaker 03:
But if the board had decided this earlier, at least hypothetically, the board could have.

[00:22:38] Speaker 03:
The person could have gotten relief if the board decided that that IJ had erred on the hardship determination.

[00:22:45] Speaker 00:
I mean, if they if they'd done it within within months, I'm sure that the kids could have been underage, but they do take their time and it's an administrative process. This is an imperfect form of relief, as everyone has. Sometimes it helps, sometimes it hurts. And it's an extraordinary form of relief. It's designed to help kids at the time the alien is removed. They're the ones who are supposed to benefit.

[00:23:09] Speaker 04:
Except it's not really designed just for that, because if it were designed just for that, it would be deferral of removal until you no longer have a qualifying relative. But if you get this when you have a child, then you – get adjusted to being an LPR, and then that's indefinite, right? So the statute seems to contemplate something more than just temporary relief while you have a child, doesn't it?

[00:23:36] Speaker 00:
The statute contemplates harm to the children if that person's a child at the time of removal. That can only occur, you can only have a removal with a final administrative order. It's a continuing process. It's never been fixed in time. And every case that I can find, except Perez out of the Sixth Circuit, this court or the courts have adopted that continuing philosophy of looking at an application for cancellation of removal. In other cases where they've said it depends on immigration judge, that's what the facts demanded.

[00:24:07] Speaker 00:
The issue wasn't whether or not the kids aged out between the administrative decisions. But if you look at the – the 11th Circuit in Pena. If you look how this court has interpreted the statute, it's always a continuing process based on reliance on the board when the board acts. And while it is unfortunate, sometimes harsh, it can also help the alien as well. And it also serves the purpose of the statute. Again, a very limited form of relief, exceptional and extremely unusual hardship to children, and even under the best circumstances in this case.

[00:24:44] Speaker 03:
If there was no chance that considering the sun would make a difference, I'm not sure we would need to decide this issue in this case. Do you think there's an argument that the sun could make a difference here?

[00:24:56] Speaker 00:
No, Your Honor.

[00:24:58] Speaker 00:
Assuming the board had considered Cruz, what you have here is there's not even close to being exceptional and extremely unusual hardship in this case, even under the best reading. Financially, everyone's working. The petitioner has a very successful business, but it looks like Cruz is helping out there. Everyone contributes.

[00:25:18] Speaker 02:
What was the IJ's finding with respect to Cruz?

[00:25:22] Speaker 00:
With respect to Cruz is that he was, if I remember correctly, he was a young man, mid-20s, or in his early 20s at the time. He was no health issues. He was working. He was living at home.

[00:25:36] Speaker 03:
He was working with his father, though, so if his father was removed, could that change?

[00:25:41] Speaker 00:
The record doesn't indicate that he would he would not continue to work there I believe that this is the father's garage based on what I saw in terms of emotional hardship That's that happens in every removal and I'm empathetic to that that happens, but that's not exceptional or extremely unusual Do you think do you think Chenery permits us to say that there would be no I mean?

[00:26:00] Speaker 04:
There'd be no hardship to the Sun and deciding the case on that basis when the board didn't I'm speaking hypothetically I would think if this is

[00:26:08] Speaker 00:
If this court disagrees with me on the age-out issue, we would have to go back.

[00:26:15] Speaker 00:
But I'm just speaking hypothetically. If I look at this case in the aggregate, while I'm empathetic, and this is just government counsel talking, the hardships that Petitioner has indicated don't even come within the realm.

[00:26:30] Speaker 02:
On your theory, if it did go back and – the final administrative order is determinative, then both the son and the daughter will have aged out before the now new final administrative order. Is that correct?

[00:26:45] Speaker 00:
Yes, Your Honor. And they both aged out now in terms of – in fact, she had aged out as well too, but the board didn't catch it. But therein lies the purpose of the statute. We're trying to protect those who need it the most. And here, both Anna and Cruz certainly don't. It's unfortunate that their dad goes back. but they can always visit them. That was in the record as well. She may have gotten a scholarship to nursing school. That's wonderful, and God bless her. But this is not, not exceptional and an extremely unusual hardship.

[00:27:17] Speaker 00:
You consider one, you consider both.

[00:27:22] Speaker 00:
I appreciate the court's time. Thank you very much.

[00:27:25] Speaker 03:
Thank you.

[00:27:26] Speaker 03:
We have some time left for rebuttal.

[00:27:31] Speaker 01:
Thank you, Your Honor.

[00:27:34] Speaker 01:
So if the cancellation of removal application is a continuum application, then in the ruling in this court, in Pop-Tart Beholder, where at the time of the immigration judge's decision or the mayor's hearing, there was an unborn child, it went up on appeal.

[00:27:58] Speaker 01:
it got to the BIA, and the BIA said, well, there's no qualifying relative, or there was no qualifying relative, and there isn't one now because at the time of the immigration judge's decision, the child was not born yet. So presumably, the child was already born at the time the BIA decided the appeal. So if it were a continuing application, like my friend on the other side is arguing and proposing to this court, then wouldn't this court have found that at the time of the BIA's appeal or the decision on the appeal, the qualifying relative or the requirement that the petitioner have a qualifying relative would have been met?

[00:28:46] Speaker 01:
And so on that, clearly there is a divide. And I ask this court to make a bright line rule With respect to the question, the legal question, what is the point in time where the statute requires that the determination of whether or not a respondent has a qualifying relative for purposes of cancellation of removal needs to be answered? And we need this court's guidance.

[00:29:17] Speaker 01:
Thank you, Your Honor.

[00:29:19] Speaker 03:
Thank you, both sides, for the helpful arguments. This case is submitted.