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

[00:00:04] Speaker 04:
May it please the court, Catherine Balkoski for petitioner, Mr. Vazquez. I'd like to reserve five minutes of my time for rebuttal. That's fine. Just keep your eye on the clock, please.

[00:00:15] Speaker 04:
I will do that. Thank you, Your Honor.

[00:00:17] Speaker 04:
This court should remand to the BIA and instruct the BIA to vacate the defective removal order under Gomez. Petitioner is a permanent resident who is not removable under an en banc decision of this court. The government acknowledges as much, but asks the agency to be allowed to consider the Gomez issue in the first instance. What the government asks for is senseless for three primary reasons. First, there's nothing left to apply or analyze on remand. This is a pure legal question.

[00:00:49] Speaker 04:
This court can and should decide. Second, this court should avoid... I think your point is we have decided it on Bonk, right? Correct.

[00:00:58] Speaker 03:
Okay.

[00:00:59] Speaker 04:
So there's nothing left for the agency to do on remand on that issue.

[00:01:03] Speaker 03:
Okay.

[00:01:04] Speaker 04:
Second, this court should avoid subjecting a permanent resident to additional months or years of detention and even potentially to deportation, given that the BIA may skirt the Gomez issue on remand. and fall back on its position, that petitioner waived appeal.

[00:01:22] Speaker 04:
Third, there are no alternative grounds on which to affirm the removal order. Only one charged ground is before this court, and the government is bound by how it has litigated this case.

[00:01:34] Speaker 04:
So on our first point, there's nothing left to analyze or apply on remand. Again, invalidity under Gomez is a pure legal question. And in cases such as Aguilar-Torcillos, Almutareb, and Gomez-Ponce, which we cite in our supplemental brief. This court ruled on the issue that the removal order was legally defective and ordered vacatur. This court should do the same here. In Al-Mutareb, the underlying condition... Can I stop you there?

[00:02:02] Speaker 03:
Of course. Because if we do that, then on remand, what happens?

[00:02:08] Speaker 04:
On remand, the agency vacates the defective removal order, and the agency... could attempt to bring a second deportation case against Mr. Vazquez. It's not clear if the government would be able to bring charges of removability based on additional facts, but it is clear from the case law that the government would be precluded from bringing a second deportation case based on facts that were known to it at the time that it brought its first case.

[00:02:40] Speaker 04:
Cases like Aguilar-Torcios, Al-Mutareb, and Bravo-Pedrosa make clear that re-studicata would bar the government from initiating a second deportation case without new evidence or new facts to support charges in that second case.

[00:03:02] Speaker 04:
Returning to the cases under which it's clear that vacator is appropriate here, In Aguilar-Turcios, the underlying conviction was not an aggravated felony. This court ordered vacator. In Almutareb, similarly, the sole charge ground was legally unsupportable. This court ordered vacator. And in Gomez-Ponce, this court expressly held remand is unnecessary to decide a purely legal question over which the BIA has no particular expertise. That's exactly the situation here.

[00:03:32] Speaker 04:
The law could not be clearer.

[00:03:34] Speaker 00:
Counsel, I don't... disagree with the point that you're making. The question that I have is we can also list a whole bunch of cases where we've done the opposite, where we've just remanded for the agency to deal with this new intervening issue, even questions of law.

[00:03:50] Speaker 00:
And so I guess I'm going to be interested in hearing what the government has to say about this, but what is the practical difference between vacating or just sending it back down and saying, you know, pay attention to Gomez and apply it in this case?

[00:04:05] Speaker 04:
Thank you, Your Honor. There's a significant practical difference. Mr. Vazquez has been in detention since August of 2023. The government has been on notice since September of 2024 that the sole removal ground was defective. September of 2024 is when the original panel decision in Gomez came out. The government had the opportunity to seek a remand then and to attempt to amend the charges against Mr. Vasquez then.

[00:04:32] Speaker 04:
It could take years for the BIA to apply Gomez now. And more troublingly, the board could decline to reach the Gomez issue.

[00:04:40] Speaker 00:
What makes you think it's going to take years?

[00:04:43] Speaker 04:
because of delay that we've seen before the agency in similar cases. I don't have any authority on that point to point you to, but I will represent to the court that in other cases that I'm aware of, the BIA has taken many months, if not years, to rule on remand on issues sent back by this court.

[00:05:04] Speaker 03:
Has the government taken any position regarding the detention status since the Umbach decision issued in January?

[00:05:12] Speaker 04:
We discussed with the government, well, we went into mediation with the government, and I can't disclose the contents of those confidential mediation discussions, but we have brought up with the government the possibility of Mr. Vazquez being released during the pendency of these proceedings and we were not able to reach a... So he remains detained today? He remains detained, yes. He's been in detention since August of 2023, and we are concerned that he will continue to remain detained for perhaps years while the board sits on this issue or even declines to reach the issue and falls back on its prior position that he waived appeal.

[00:05:51] Speaker 00:
So if the consequences are as significant as you are suggesting, and certainly a prolonged unjustified detention is significant, why didn't you initially ask for vacature? Because you're only asking for it for the first time in the supplemental briefing that we've received, even though you've been asking for quite some time to have the proceedings sent back down to the BIA.

[00:06:13] Speaker 04:
The conditions on the ground have changed. Previously, the government represented to us that they would be taking Gomez en banc, or they would be seeking rehearing en banc of Gomez.

[00:06:24] Speaker 04:
And at this point...

[00:06:26] Speaker 04:
That has happened. The en banc decision came out in January. The government's time to seek cert at the Supreme Court has now lapsed. Gomez is now as binding as binding can be in the circuit.

[00:06:38] Speaker 00:
That was true when your briefing was being, when you were initiating your briefing because Gomez had already been decided and the outcome of the original Gomez and the en banc Gomez is the same.

[00:06:49] Speaker 04:
That's correct, Your Honor, but the difference is that the government represented to us that they were seeking to take Gomez en banc.

[00:06:56] Speaker 00:
Sure, but until en banc happens and the panel's decision is vacated, it's in effect unbinding.

[00:07:02] Speaker 04:
And we did...

[00:07:04] Speaker 04:
Seek a remand at that time and and we did take the position that Gomez clearly made petitioner not removable the government Resisted a remand and sought a stay pending the Gomez rehearing proceedings We didn't agree to a stay because of mr. Vasquez's detention, and he didn't want to wait on his other meritorious issues on appeal because we feared that the Gomez petition proceedings could the Gomez rehearing proceedings could take years and

[00:07:33] Speaker 03:
After the three-judge panel issued in Gomez, that was a break with our prior precedent, and there's another layer then that needs to get worked out, which is Miller v. Gamme, right, and whether or not it was going to – whether the three-judge panel opinion that was expressed there was going to hold up after that review. But after – but we knew as of September – we knew earlier than that we were going to hear it en banc.

[00:08:01] Speaker 03:
the en banc decision issued and the Miller v. Gamme decision was, I guess I would say, solidified by our en banc court. I don't see any room for, maybe opposing counsel can talk about that when she comes to the microphone.

[00:08:16] Speaker 03:
There was a, you know, arguably there was an interest circuit split pre-en banc. Certainly it was muddy. I think you both asked the Ninth Circuit to hold up and both of those motions were denied.

[00:08:30] Speaker 04:
We never asked for a stay. The government sought a stay twice, and we opposed.

[00:08:35] Speaker 03:
You sought a remand. We did seek a remand, correct. And both of you did. That's what I mean about hold up. Pardon me for being imprecise, but you filed a motion to seek remand in light of Gomez, and the government filed a motion to stay in light of Gomez. I think you both recognized that was going to need to be worked out.

[00:08:53] Speaker 03:
But both of those requests were denied, right?

[00:08:56] Speaker 04:
Precisely, yes.

[00:08:56] Speaker 03:
Okay.

[00:08:57] Speaker 04:
All right.

[00:09:03] Speaker 04:
As I said, if this court simply remands for the BIA to consider the impact of Gomez in the first instance, there is a serious risk that the board would simply decline to reach the Gomez issue and would hold again that Mr. Vazquez waived appeal. And as this court held in Vega-Anguiano v. Barr, to allow a legally invalid removal order to be executed would constitute a gross miscarriage of justice.

[00:09:29] Speaker 04:
Throughout these proceedings. There's been some conduct from the government that we consider concerning. First, before the BIA, Mr. Vazquez was promised a new schedule in which to submit briefing, and then the BIA summarily dismissed his appeal before ever setting that schedule. The government tried to remove Mr. Vazquez in August of 2024, which required emergency motion practice from counsel. The government has declined to provide the full record on appeal. We only have transcripts of the individual calendar hearing and none of the master calendar hearings before the agency.

[00:10:03] Speaker 04:
And the government's only explanation for that is, well, that's what was before the BIA, suggesting that they can pick and choose what parts of the record should be submitted to this court. And again, the government has pursued delay at every stage in this case, which has caused burden on the petitioner who's remained in detention and on this court.

[00:10:25] Speaker 04:
I see that my time is ticking and I would like to save five minutes for rebuttal. That's fine. Thank you. That's fine. Thank you.

[00:10:44] Speaker 02:
May it please the court, Alana Young for the Acting Attorney General.

[00:10:47] Speaker 02:
Your Honors, the government would like this court to remand this case to the board so that the board can have only two options. One option is to terminate proceedings, and the second option is to remand to the immigration judge. That is what the government is requesting this court to do.

[00:11:04] Speaker 03:
Council, I'm going to ask you if you could speak up just a little bit. Oh, I'm sorry.

[00:11:07] Speaker 02:
That's all right. I'm sorry.

[00:11:09] Speaker 03:
It's an echoey room with a lot of marble in it. So if you could speak up just a bit, that would help me.

[00:11:13] Speaker 02:
Is that better? Yes. Okay.

[00:11:15] Speaker 03:
And so should I repeat what I asked?

[00:11:17] Speaker 01:
Yes.

[00:11:17] Speaker 03:
Okay. Oh.

[00:11:20] Speaker 01:
Go ahead.

[00:11:21] Speaker 03:
You said the government would have two choices, and they were... Yes.

[00:11:23] Speaker 02:
It was your punchline that got lost. Yes, that was my punchline. The government would like this court to remand the proceedings for the board.

[00:11:30] Speaker 01:
But what is the point of a remand without vacatur? I mean, the board can't say the en banc court was wrong.

[00:11:40] Speaker 02:
Your Honor, our position is the board only has two options. It would terminate proceedings and apply the en banc decision... Or two, it would remand the proceedings to the immigration judge for further proceedings.

[00:11:53] Speaker 01:
Or the immigration judge.

[00:11:54] Speaker 02:
Well, the immigration judge could terminate proceedings, or the immigration judge could permit the DHS to lodge additional charges.

[00:12:01] Speaker 03:
But there isn't any world in which DHS can't lodge additional charges, can it? I mean, I think that's a given. I think opposing counsel has conceded that point. It's just that on the first point, which is this existing order, you've said, I think, very candidly, and I appreciate your candor, that under our precedent that cannot be executed, that order of removal cannot be executed, right? Yes, Your Honor. So on the Gomez question, on the Gomez point, which is what Judge Thomas is asking, there isn't anything for the board to do, is there?

[00:12:29] Speaker 02:
There is the technical aspect of the board determining that the ground of removability is not valid. Well, okay, so now we're really splicing it.

[00:12:38] Speaker 03:
But I think what opposing counsel is asking is for us to enter an order here that says after Gomez, we're remanding for the board to vacate the order of removal.

[00:12:51] Speaker 03:
Yes, Your Honor. Do you object to that?

[00:12:53] Speaker 02:
We do object to that, Your Honor. We are objecting to the language of vacating the removal order. Vacating the removal order could terminate the proceedings.

[00:13:03] Speaker 03:
But you would be free to reinitiate, right?

[00:13:06] Speaker 02:
There is a difference because that's when res judicata would apply, Your Honor. Because if we reinitiate, we would have to charge a second NTA. And so that second NTA would be a separate action, and that's where res judicata would apply. Whereas in this case, if you are remanding to the board, the board can terminate proceedings, then this is gone. But if the board remands to the IJ, this is a continuation of the current proceedings. It's not a separate proceedings, and the DHS can lodge additional charges.

[00:13:35] Speaker 01:
Right, but so he's detained right now. Yes, Your Honor. And the average time to get to the board is six months to two years, correct?

[00:13:45] Speaker 01:
I mean, there are 3 million cases pending before the BIA in the immigration courts right now, right?

[00:13:50] Speaker 02:
But it's different because this would be a remand from this court.

[00:13:53] Speaker 01:
I understand, but we've looked at remands before, and it takes months or sometimes a lot longer to get to the case. And if it's a further remand, we're looking at a year or so in detention when the ground for removal, as you can see, has disappeared.

[00:14:10] Speaker 02:
But, Your Honor, this is a – one, it's a federal court remand, and two, he is detained. And so under the board's policy – under EOIR's policy memos, under the board's practice manual, this detained case would move faster.

[00:14:23] Speaker 01:
I agree with you on that, but they're still taking a long time on detained cases. I mean, because they've got – understandably, I'm not – they've got a huge backlog of cases. And so even those with priority are taking months, years.

[00:14:40] Speaker 02:
The government recognizes that, Your Honor, but we are still requesting that the court remand so that the board has that option of either terminating or doing what it does as the agency, either terminating or remanding to the immigration judge.

[00:14:54] Speaker 01:
And you would oppose letting him out?

[00:14:58] Speaker 02:
I think that would be a conversation that I would have to have with our clients, with DHS.

[00:15:02] Speaker 03:
Well, counsel, if the conversation hasn't been had, and I don't mean to pry, but the three-judge panel in Gomez, that decision was issued two years ago this month. Yes, Your Honor. Yes, Your Honor.

[00:15:14] Speaker 02:
And so, and as this court... And he's detained this whole time. I understand, Your Honor. And as this court said, like, when that panel decision was issued, prior president, 2009, 2015, 2018... Well, I've given you that.

[00:15:26] Speaker 03:
I've given you that in my questions to opposing counsel, but then we took it en banc, right?

[00:15:32] Speaker 02:
We took it, and we, the government had every right to take it en banc.

[00:15:35] Speaker 03:
Right, and the en banc decision issued in January, and you're saying the conversation would have to happen. It's been three more months. We have...

[00:15:44] Speaker 03:
There hasn't been a conversation about him being released pending whatever needs to happen next in this case. I think that's a privy client conversation. But we've had me into private. I'm just trying to express concern. This is taking a really long time. And I'm waiting for a justification for the government.

[00:16:01] Speaker 00:
Why is that? And I think we can ask the question. What is the government's position on this petitioner's detention?

[00:16:07] Speaker 02:
He is currently still subject to detention. Because the agency still needs to decide, still has to take that step of determining that the ground of removability is no longer valid.

[00:16:21] Speaker 03:
Wait, wait, wait. You conceded that in your briefing.

[00:16:23] Speaker 02:
I do.

[00:16:24] Speaker 03:
You conceded it in your briefing.

[00:16:25] Speaker 02:
But there's that technical aspect of it that the agency still has to do something.

[00:16:29] Speaker 00:
That doesn't make any sense to me. The government's position is this guy needs to stay detained because there's some sort of technicality. We all understand that the removal order that's been issued in this case is invalid.

[00:16:40] Speaker 02:
Yes, Your Honor, but it still has to go back to the agency or this court to determine that, Your Honor. No, we already determined that under Gomez. Under Gomez, and that is under Gomez, but not in this case.

[00:16:52] Speaker 03:
In this case, your briefing tells us that the order of removal is invalid and cannot be executed. You've conceded that, Counsel?

[00:16:59] Speaker 02:
Yes, Your Honor, we did concede that.

[00:17:01] Speaker 03:
What has to be determined?

[00:17:03] Speaker 03:
I don't understand your answer to Judge Forrest's question.

[00:17:06] Speaker 02:
The agency has to...

[00:17:08] Speaker 02:
The agency has to determine that the ground of removal is no longer valid.

[00:17:13] Speaker 01:
How can the agency say it's valid when our own bond court said it's not?

[00:17:20] Speaker 02:
It wouldn't, Your Honor, and that's why we are asking the court to remand to that.

[00:17:23] Speaker 00:
I think you're arguing yourself right into vacature. I don't understand your position at all.

[00:17:31] Speaker 01:
We agree— To get back to Judge Forrest's earlier point, we have cases that probably go both ways. We vacated in some cases and haven't in others. So it's really kind of up to us and not the board, isn't it, to decide what to do?

[00:17:44] Speaker 02:
Yes, Your Honor. Okay.

[00:17:46] Speaker 03:
Yes, Your Honor. And this one's a pure question of law. It's a categorical analysis that our en banc has done. And frankly, we wouldn't have deferred to the agency under Biden president. We wouldn't defer before Loperbright.

[00:17:58] Speaker 02:
Yes, Your Honor. And so— But the government is requesting remand so that the agency can take further proceedings if it decides to.

[00:18:08] Speaker 01:
Well, let me ask you this. Yes. Why didn't you ask for remand as soon as Gomez was decided two years ago?

[00:18:14] Speaker 02:
Because we were— Because you were in briefing, huh? Well, we were seeking a stay so that we can pursue en banc proceedings. So we did pursue en banc proceedings.

[00:18:24] Speaker 01:
But once Gomez was decided by the en banc court, you could have come back here and asked for the same relief you're asking today. That was two years ago.

[00:18:33] Speaker 01:
Well, a year ago.

[00:18:37] Speaker 03:
I think you two are... There's the three-judge panel opinion, and that's been two years. That's been two years.

[00:18:43] Speaker 02:
You're right. And so when the en banc decision came, we were in discussions with my friend on the other side about remand, and we were working through the nuances of remand.

[00:18:53] Speaker 03:
But I think also under discussion about detention, I think that that's been... To Judge Thomas' point, that's been another three months, and this man's still detained.

[00:19:03] Speaker 02:
Yes, Your Honor. We understand that, and it's just us talking with my friend on the other side, us talking with our clients, whether our clients could bring additional charges. Our clients have identified additional charges that they could bring, and so that's why we are requesting this court to either remand for the board to terminate. The waiver is no longer relevant. We concede that. And then, or for the board to remand for the IJA to take further proceedings. Okay.

[00:19:30] Speaker 03:
And let me just check in because we've talked over each other a little bit. Judge Forrest, do you have additional questions?

[00:19:36] Speaker 00:
Yes.

[00:19:38] Speaker 00:
So if the government has additional charges, couldn't you just file them?

[00:19:45] Speaker 00:
We could. Well, not right now, Your Honor, because the case is before this court. But. If there would be additional charges, they're going to be on wholly different grounds. Can you not have two different – I mean, this – I'm failing to understand the practical thing that you think the government is going to miss out on if we just vacate. What we all understand is an invalid removal order. Like, there's no way to make the removal order that has been issued so far – legitimate.

[00:20:17] Speaker 00:
There's no way to do that under our case law, under Gomez. So if the government has a new basis that perhaps it can bring because it didn't know about it before, then why can't you just do that?

[00:20:29] Speaker 02:
Various reasons, Your Honor. First, it's the distinction between the removal order that this court would be vacating and the agency vacating the ground of removal. We see those as two separate things. If this court vacates the removal order, that that gets rid of the current removal proceedings. Whereas if you vacate the grounds of removal, the current proceedings would still be active. The current NTA could be amended with an I-261 with additional charges.

[00:20:59] Speaker 02:
And so the practical implication, Your Honor, is exactly that. We think res judicata would apply if this court orders vacature of the removal order and this set of removal proceedings goes away. because it would be, if we file a new NTA, that's a separate proceedings. That's a separate proceedings which this court has talked about. Whereas like in Valencia Alvarez, the court was talking about one set of removal proceedings from one NTA. And so if this court just orders remands and not making sure of the removal order, then the board can terminate, the waiver's out, the board can terminate or remand to the IJ and the IJ can permit ICE to lodge additional charges and that would be based on the current NTA, not a separate NTA.

[00:21:43] Speaker 02:
It would be the same action, not a separate action.

[00:21:45] Speaker 01:
Not to interrupt, sorry, but to Judge Forrest's point, even if we vacated, you could bring new charges. What you're saying is it would be inconvenient. No, Your Honor, I think— Why are you precluded from bringing new charges if this is vacated?

[00:22:04] Speaker 02:
Because that would be under a second NTA.

[00:22:06] Speaker 01:
Yeah, I understand. But there's nothing that stops you from a second NTA, correct? Except that he's released.

[00:22:14] Speaker 02:
No, Your Honor. We would have to... One of the charges would actually... The crux is... could have been brought in the proceedings. If we could have brought those charges, then in the second proceeding, we cannot bring those charges.

[00:22:28] Speaker 03:
You'd have to arise from new facts or circumstances.

[00:22:29] Speaker 02:
Yes, Your Honor.

[00:22:31] Speaker 03:
You don't want those facts and circumstances to be basically tossed out the window.

[00:22:35] Speaker 02:
Yes, Your Honor. Whereas if you continue with the current action, like in Valencia Alvarez, the NTA, it's still the same NTA, it's just additional charges on that NTA.

[00:22:46] Speaker 00:
It's the same action. How long has the government known about these additional bases for removal?

[00:22:50] Speaker 02:
It's been, I probably, for me, it's been about a week or less, Your Honor.

[00:22:59] Speaker 03:
Anything that prevented the government from serving him with a new NTA while he's been sitting in detention?

[00:23:04] Speaker 02:
Because, additional charges, Your Honor, not a new NTA.

[00:23:08] Speaker 03:
No, I mean a new NTA. Is there anything that would have prevented the government from starting a new proceeding?

[00:23:13] Speaker 02:
Well, it's prosecutorial discretion, Your Honor. We only needed one charge. Does that mean no?

[00:23:18] Speaker 03:
You've got one charge and you've known for at least two years that it's arguably no longer valid. You've known for the last three months it's definitely not valid. And you've conceded as much in your briefing to our court. You've said that waiver is no longer relevant. So I'm trying to figure out. I fully appreciate why you don't want to have to start with a new NTA. You've explained that it would have to arise from news facts or circumstances. I appreciate that. I'm just trying to figure out. whether anything prevents you from having done that.

[00:23:47] Speaker 02:
It was our going through the process of first relying on the history of the cases prior to Gomez and us only needing one charge of removability. And when the case law was in flux, we were pursuing our hearing. That's the lead up to my question.

[00:24:03] Speaker 03:
And my question is, after that chronology, after it became clear you could not rely on the single charge for this order of removal, which you've conceded candidly and I appreciate, Is there anything that has prevented the government from going forward and serving this gentleman with a new NTA?

[00:24:21] Speaker 03:
The issue of Registratura Carta, Your Honor? No, a new NTA would need... Well, a new NTA... That's what's baked into my question, Counsel.

[00:24:28] Speaker 02:
But a new NTA, Your Honor, would put the petitioner in a new removal proceeding.

[00:24:33] Speaker 03:
That's the point. And that's the point. So you said that you have two choices, and if we were to vacate this, your concern is then you would have to start over with a new NTA, if that existing order... is vacated and he is released, and I'm just asking whether anything would have prevented you from doing that. That's your fallback. That's the worst thing that could happen for you, is that you'd have to start over again. And Judge Thomas has suggested that would be inconvenient for you and it would be time-consuming. I'm just trying to figure out, is there any reason you couldn't have done that, maybe as a belt and suspenders, so that something would be happening over the course of this last three months?

[00:25:08] Speaker 02:
No, Your Honor, we were in proceedings, we were in discussion with my friend on the other side with remanding the case. I see. And so we weren't going to pursue two, we weren't pursuing two different litigation strategies.

[00:25:18] Speaker 03:
Is the answer to my question you could have?

[00:25:21] Speaker 03:
It really is a sincere question. Would anything have prevented you from serving him with the NTA while you have him? I think litigation strategy-wise, we...

[00:25:30] Speaker 00:
We're asking a legal question. I think the question is legal. It's just a legal question.

[00:25:33] Speaker 02:
Is there a bar, or you just made a choice? As far as I'm aware right now, there would be no bar, Your Honor.

[00:25:39] Speaker 03:
It wasn't a trick question, and it was a legal question. Thank you. You've answered it, though. Thank you.

[00:25:45] Speaker 01:
But I think the whole point is, I mean, you could have asked for remand on the original Gomez.

[00:25:53] Speaker 01:
Are you telling, I don't want you to disclose your strategy, but are you representing to us today that you're going to bring additional charges regardless?

[00:26:03] Speaker 01:
Or do you know?

[00:26:04] Speaker 02:
We want to bring it.

[00:26:07] Speaker 02:
We would like to bring additional charges, Your Honor.

[00:26:10] Speaker 02:
When the panel decision in Gilmez came out, we decided to pursue a stay because that was our office policy. Right.

[00:26:15] Speaker 01:
Our office policy was pursuing a stay. It was a litigation strategy.

[00:26:18] Speaker 02:
Yes. Right.

[00:26:21] Speaker 02:
We were pursuing a stay a year on.

[00:26:23] Speaker 01:
You weren't prevented. It was a matter of choice.

[00:26:30] Speaker 02:
There was nothing...

[00:26:31] Speaker 03:
stopping us legally as this court yes thank you okay um it's an unusual posture our questions aren't supposed to be tricky or confusing we're really trying to figure out where the where the boundaries are and i think you've answered those questions i understand your honor i am also trying to figure out the boundaries of the government's position as with your questions thank you thank you okay i think that's all we've got thank you very much for your patience with our questions counsel

[00:27:05] Speaker 04:
Three points on rebuttal.

[00:27:07] Speaker 04:
First, we would ask this court for an order expressly stating that the agency can't bring new charges, which it could have brought in its first NTA. You mean new charges arising from the same facts, or do you mean new charges? I mean new charges arising from the same facts and circumstances.

[00:27:26] Speaker 04:
In cases such as Aguilar-Turcios, and Almutareb.

[00:27:31] Speaker 04:
The government argued against vacator, suggesting that the petitioners in those cases might be removable on other grounds.

[00:27:39] Speaker 04:
In both, this court held that those alternative theories of removability were not properly before this court. The government had litigated based on its one theory and lost as a matter of law, and so this court ordered vacator in both of those cases. That's exactly the situation here. Reystrudicada should bar a second case based on a charge which could have been brought in the first instance.

[00:28:03] Speaker 04:
I would also like to say that my co-counsel spoke with petitioner's habeas counsel. A habeas petition is currently pending, and my understanding is that the government is opposing the habeas petition.

[00:28:16] Speaker 01:
Where is that filed?

[00:28:20] Speaker 01:
Thanks.

[00:28:23] Speaker 04:
Finally, During the pendency of the proceedings before this court, nothing prevented the government from filing a motion to reopen at the agency level. As your honors have asked my friend on the other side about, the government chose its strategy of pursuing this one charge of removability. It had ample opportunity to try to amend the charges before the agency, even during these proceedings. It put all of its eggs in the 245A1 Gomez basket.

[00:28:53] Speaker 04:
It managed to get this case.

[00:28:55] Speaker 03:
Well, they did, but my point was slightly different, which is I don't think anything limits them on remand.

[00:29:02] Speaker 03:
They could have filed a motion to reopen, to reman and reopen. They could have, I think, also abandoned ship because they have, as I said, very candidly conceded here that this order of removal cannot be executed. And so, Mike, I am curious about whether you agree that there's nothing that prevents them from serving him with a new notice to appear.

[00:29:21] Speaker 04:
Nothing would prevent them from serving him with a new notice to appear based on charges that could not have been brought in the first notice to appear.

[00:29:30] Speaker 03:
All right. That's what you said the first time you were at the podium, and it sounds like you haven't changed your mind about that. So thank you for that.

[00:29:36] Speaker 03:
I have nothing further. All right. Thank you, Your Honors. Looks like we don't have any additional questions for either one of you. Thank you both for your advocacy. We appreciate it very much.

[00:29:46] Speaker 03:
And thank you for your pro bono service, counsel.

[00:29:50] Speaker 03:
We'll go on to the next case on the calendar, which is Soto-Lopez v. Blanche.