[00:00:00] Speaker 04:
We have six cases on the docket this morning, and we will take a break for about 10 minutes between the third and fourth cases.

[00:00:09] Speaker 04:
The first case is Chavez-Govea versus Bondi, and this is 2495-51, and we'll hear from Ms.

[00:00:21] Speaker 04:
Wong.

[00:00:22] Speaker 04:
Ms.

[00:00:22] Speaker 04:
Wong, I'm sorry.

[00:00:23] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:26] Speaker 01:
My name is Tiffany Wong and I represent the petitioner, Simone Chavez-Govea.

[00:00:31] Speaker 01:
I would like to reserve three minutes for rebuttal today.

[00:00:33] Speaker 01:
Mr. Chavez-Govea's request of this court is simple, to give him the opportunity to apply for protection from persecution, torture, and likely death in Mexico.

[00:00:45] Speaker 01:
This court should reverse and remand the BIA's decision with instructions to remand to the immigration judge for the following five reasons.

[00:00:53] Speaker 01:
First, the immigration judge set an unreasonable deadline of 15 days for Mr. Chavez-Govea, a man who appeared alone in a detention center struggling to keep up with the simultaneous English-Spanish interpretation during his first hearing.

[00:01:08] Speaker 01:
and he had 15 days to fill out a 12-page English language application that forms the basis of whether he will be deported to a country where he fears torture and death.

[00:01:17] Speaker 01:
Second, despite the unreasonable deadline, Mr. Chavez-Govea worked diligently to try to complete his application and showed good cause for continuance, which was unreasonably denied.

[00:01:28] Speaker 01:
Third, under the board's own precedent and matter of RCR, Mr. Chavez-Govea did not abandon his claim for relief.

[00:01:37] Speaker 01:
Fourth, Mr. Chavez-Goveo was denied a full and fair hearing.

[00:01:41] Speaker 01:
In addition to not being given a reasonable time to submit his I-589 application, he was denied a right to counsel and the immigration judge failed to fully develop the record, even though Mr. Chavez-Goveo was a pro se detained individual with limited English proficiency.

[00:01:57] Speaker 01:
And finally, fifth, Mr. Chavez-Goveo's motion to reopen was not moot.

[00:02:02] Speaker 01:
The question of whether Mr. Chavez-Govea had a reasonable time to submit his application was the central impetus for the government's motion to remand from the 10th Circuit two years ago.

[00:02:13] Speaker 01:
However, in the BIA's 2024 decision, it once again abused its discretion by putting the burden on Mr. Chavez-Govea, saying that he didn't explain his efforts to complete his application, rather than recognizing his statutory right to a reasonable opportunity to present evidence.

[00:02:30] Speaker 01:
We submitted a brief on remand, again, two years ago, explaining all the reasons why the deadline was unreasonable, yet the BIA failed to engage in any of those arguments.

[00:02:40] Speaker 01:
As a pro se detained applicant with limited English proficiency, Mr. Chavez-Govea needed to translate the application first into Spanish to understand the questions, then try to formulate answers as to why he feared torture and death for the immigration judge to understand why he could not return to Mexico.

[00:03:04] Speaker 01:
Ms.

[00:03:04] Speaker 04:
Wong, why would he need to do that?

[00:03:06] Speaker 04:
It was being simultaneously interpreted in Spanish.

[00:03:10] Speaker 01:
Your honor, this is referring to the 589 application.

[00:03:13] Speaker 01:
This is the 15 days that he had after he was given this application.

[00:03:18] Speaker 01:
This application is completely in English.

[00:03:20] Speaker 01:
It's a 12 page application.

[00:03:22] Speaker 01:
The Supreme Court itself in Nis Chavez

[00:03:24] Speaker 01:
the Garland recognized the really onerous nature of filling out this application that determines life or death.

[00:03:32] Speaker 04:
Okay.

[00:03:32] Speaker 04:
And that's a very good point.

[00:03:34] Speaker 04:
Well taken.

[00:03:36] Speaker 04:
The immigration judge offered to the petitioner to walk through the application and he said, no, I don't need to do that.

[00:03:46] Speaker 04:
I don't need you to do that.

[00:03:48] Speaker 01:
Your Honor, respectfully, I don't think the immigration judge offered to walk through each question of the application.

[00:03:57] Speaker 04:
Isn't that exactly what he said?

[00:03:58] Speaker 04:
If you want, I can walk you through the application.

[00:04:04] Speaker 04:
And he said, as I recall, no, I just want to talk to the deportation officer.

[00:04:10] Speaker 04:
Have I mistaken about that?

[00:04:12] Speaker 01:
My understanding, Your Honor, is that it was

[00:04:16] Speaker 01:
The immigration judge offered to, if he wants to proceed with the application, I'm looking here in the record on page 436, before, I guess, line 18, the judge is asking, do you want to actually be removed, or would you rather proceed with the application?

[00:04:35] Speaker 01:
Then Mr. Chavez-Gobayes says, I would like to talk to my deportation officer by saying, not

[00:04:42] Speaker 01:
The question I get, I guess the immigration judge was asking was not, would you like me to walk through the application, but rather, would you like me to proceed right now with determining whether or not you should be removed to Mexico or do you want to continue to have even the opportunity to fill out this application?

[00:04:56] Speaker 01:
Mr. Chavez-Govea.

[00:04:58] Speaker 01:
Again, this is him first time appearing in front of this court.

[00:05:01] Speaker 01:
He's been detained.

[00:05:03] Speaker 01:
He's not exactly sure what he wants to do.

[00:05:04] Speaker 01:
He's not sure what his options are.

[00:05:06] Speaker 01:
And he says, I would like to talk to my deportation officer.

[00:05:08] Speaker 01:
He then has those 15 days to decide whether or not he wants to fill out the application.

[00:05:14] Speaker 01:
It doesn't mean he knows anything exactly of what the application says beyond

[00:05:18] Speaker 01:
This is the application to explain why you fear returning to Mexico.

[00:05:23] Speaker 01:
So then from there, he is, he is tasked with translating this application, formulating his responses, responding in Spanish, and then once again, translating from Spanish to English to put on this 12 page application.

[00:05:38] Speaker 01:
Again, these questions that are asking, you know, why do you fear returning to Mexico?

[00:05:43] Speaker 01:
You have to explain, you know, what, what are these horrible things that you fear?

[00:05:48] Speaker 01:
And he has to be able to formulate this in a very concise way for the immigration judge to understand.

[00:05:55] Speaker 03:
Are you presenting it accurately and fairly, which is to say, this case seems unusual in that the IJ asked, why did you not fill out the application I gave you?

[00:06:07] Speaker 03:
And the answer isn't, I don't understand the language.

[00:06:11] Speaker 03:
I've been in the US for 20 years.

[00:06:12] Speaker 03:
I have six children with an American citizen in the US, but I didn't understand the language.

[00:06:18] Speaker 03:
And I'm seeking help, and so I just need a little bit more time.

[00:06:21] Speaker 03:
That's not what he says.

[00:06:22] Speaker 03:
He says, someone from Las Americas was helping me, but the truth is that I didn't really pay that much attention.

[00:06:29] Speaker 03:
I'm sorry.

[00:06:30] Speaker 03:
Which sounds like wasn't diligent.

[00:06:32] Speaker 03:
How can you say that he was diligent?

[00:06:35] Speaker 01:
Yes, Your Honor.

[00:06:37] Speaker 01:
In his appeal at the very beginning, back in again, 2021, he mentions that when he says I wasn't paying that much attention, what he was saying was that he was confused.

[00:06:48] Speaker 03:
It's not what he says.

[00:06:49] Speaker 03:
You're characterizing something other than what the language was.

[00:06:54] Speaker 03:
And elsewhere, he says, I thought that I'd heard from other detainees that you really didn't have to do it till the third hearing.

[00:07:03] Speaker 03:
Again, that reeks of lack of diligence rather than confusion or inability.

[00:07:09] Speaker 03:
What if, what if it is a lack of diligence?

[00:07:12] Speaker 03:
Is that the end?

[00:07:13] Speaker 01:
If, if he did not diligently, truly did not diligently pursue this, this case, Your Honor, yes, that would show that he did not have good cause for a continuance though.

[00:07:27] Speaker 03:
So if I, if I read the language as it's written,

[00:07:30] Speaker 03:
maybe differently than you're characterizing it with more information behind that, then he loses.

[00:07:38] Speaker 01:
Most likely, yes, Your Honor.

[00:07:41] Speaker 01:
There's, there's the question.

[00:07:42] Speaker 01:
I think the first point is that the 15 day deadline in general was just unreasonable for someone who, who didn't speak Spanish or who didn't speak English, who needed more time to just in general to fill out this application.

[00:07:55] Speaker 03:
Is that accurate though?

[00:07:56] Speaker 03:
Is it accurate to say didn't speak English, but he said his Spanish was his preferred language.

[00:08:02] Speaker 01:
Your Honor, Mr. Chavez-Govea, he understands a little bit of English through the construction sites that he worked on.

[00:08:10] Speaker 01:
But to be honest, if you're trying to explain the fear and the torture that you're going to face in Mexico, that feels... Explained it pretty well.

[00:08:20] Speaker 03:
Said that his father-in-law had been involved with the cartel and his conviction had been overturned, and so the cartel thought he might be an informant.

[00:08:29] Speaker 03:
Given full opportunity, the IJ was soliciting information rather than cutting him off from my reading.

[00:08:37] Speaker 03:
And so whether Spanish is his primary language after 20 years in the United States or not, he got his story out.

[00:08:46] Speaker 03:
And the IJ said, that doesn't sound like a real winner to me, as you've described it.

[00:08:52] Speaker 01:
Your honor, I would like to clarify and just to confirm everything that's in the transcript, this was translated, Mr. Chavez-Govea was answering in Spanish and in the transcript, right, it was, it's now in English.

[00:09:04] Speaker 01:
But when he was explaining, this is not because he understood English.

[00:09:07] Speaker 01:
Again, if he had time to, for the application itself, I think the essential question in this case is whether he had the opportunity to fill out this application, to really think through and explain all the reasons why he feared returning to Mexico.

[00:09:23] Speaker 01:
And he did, he was able to answer some of the questions that the immigration judge had.

[00:09:28] Speaker 01:
I will point you to your honor to one piece of the transcript.

[00:09:33] Speaker 01:
Let me confirm exactly where in on.

[00:09:38] Speaker 01:
On page 440, the immigration judge is asking him questions.

[00:09:43] Speaker 01:
The immigration judge literally says, I don't understand.

[00:09:46] Speaker 01:
And instead of giving Mr. Chavez-Govea the ability to respond to that question, the immigration judge moves on to a completely different topic.

[00:09:55] Speaker 01:
While the immigration judge did ask questions, I think it's hard to say that he fully developed the record when he's telling Mr. Chavez-Govea that he doesn't understand something but doesn't give Mr. Chavez-Govea the opportunity

[00:10:08] Speaker 01:
to then respond.

[00:10:10] Speaker 01:
In regards to, again, his diligence, Mr. Chavez-Govea, while he mentions at first that maybe he wasn't paying that much attention, the respondents like to characterize that as saying, they add in their brief, wasn't paying that much attention to my application.

[00:10:29] Speaker 01:
That's not what he says.

[00:10:30] Speaker 01:
He says, I wasn't paying that much attention.

[00:10:32] Speaker 01:
As he explains in his remand group, he means that he was struggling to understand the simultaneous interpretation.

[00:10:38] Speaker 01:
And then actually also at the very end of the hearing, he again apologizes to the judge, I'm sorry, I didn't quite understand what I needed to do in his first hearing.

[00:10:49] Speaker 01:
And so in that case, he really was trying his best.

[00:10:54] Speaker 01:
And while he was not able to complete his application fully, he had sought out the assistance of legal services provider.

[00:11:03] Speaker 01:
And then he asked for just a little more time, once again, turning to that question of whether the immigration judge was

[00:11:10] Speaker 01:
was fully considering the record and fully developing it.

[00:11:15] Speaker 01:
The immigration judge doesn't ask any questions about how much time he needs or just what else he needed to do in order to complete his application.

[00:11:24] Speaker 01:
Instead, he says, he starts to ask, I told you the deadline was this day, right?

[00:11:31] Speaker 01:
What's your plan?

[00:11:32] Speaker 01:
He doesn't actually even give Mr. Chavez-Govea an opportunity to respond with what his plan is.

[00:11:39] Speaker 01:
and instead says, well, you missed the deadline.

[00:11:42] Speaker 01:
I'm going to ask you a couple of questions to figure out if I think you have a claim, I guess, presumably to determine whether or not that warrants a continuance rather than considering all the other factors about a continuance, like how many continuances had been requested before, which was the first one.

[00:12:00] Speaker 01:
How much time has passed?

[00:12:02] Speaker 01:
It had been 15 days if we're looking at judicial efficiency.

[00:12:05] Speaker 02:
Council, can I ask you about the right to counsel?

[00:12:07] Speaker 02:
So you argue that he was denied his right to counsel, but he elected to proceed pro se at the initial calendar, the master calendar hearing.

[00:12:15] Speaker 02:
And then I don't see anywhere in the record where he expressed a change of heart, so to speak, about his election to pro se.

[00:12:23] Speaker 02:
So how is it that he was denied his right when he was, again, notified of

[00:12:27] Speaker 02:
his rights to counsel, how he could obtain counsel, and he never wavered from the decision that he made.

[00:12:33] Speaker 01:
Your Honor, to start, I think when the immigration judge, he said that you have a right to find counsel and then goes on for quite a while explaining what an individual will do

[00:12:46] Speaker 01:
if they decide to proceed pro se.

[00:12:47] Speaker 01:
And then at the very end asks, so what would you like to do?

[00:12:50] Speaker 01:
The immigration judge doesn't explain what the next steps would be for someone who did find counsel.

[00:12:55] Speaker 01:
So in that sense, Mr. Chavez-Govea only understands you can proceed with your case if you proceed pro se.

[00:13:02] Speaker 01:
And so in that sense, his waiver of counsel was not fully informed.

[00:13:06] Speaker 02:
But that's not what he says.

[00:13:08] Speaker 02:
I mean, he doesn't explain it to the immigration judge.

[00:13:10] Speaker 02:
We have a lot of cases where we've reviewed records where

[00:13:14] Speaker 02:
someone appearing before an immigration judge says, well, I'd like to find a lawyer.

[00:13:17] Speaker 02:
And then they're afforded time to do that.

[00:13:19] Speaker 02:
And this case just seems categorically different to me.

[00:13:23] Speaker 01:
Your Honor, I think it is different than a lot of cases where an individual expressly says that they're looking for counsel.

[00:13:31] Speaker 01:
Again, at first, his waiver of counsel, he does, we are acknowledging that he does say that he would like to proceed per se at first, but also acknowledging that

[00:13:42] Speaker 01:
He was given information about how only to proceed pro se, and that seems to make sense.

[00:13:50] Speaker 01:
And then coming back in the second hearing, then he explicitly says that he's working with a legal services provider.

[00:13:58] Speaker 01:
This is a well-known legal services provider in the area or in the detention center where he's detained, where the immigration judge is working.

[00:14:06] Speaker 01:
And instead of developing the record asking, oh, what's your relationship with this legal services provider?

[00:14:13] Speaker 01:
What's going on?

[00:14:13] Speaker 01:
The immigration judge says, you missed the deadline.

[00:14:16] Speaker 01:
What's your plan?

[00:14:17] Speaker 04:
Why would an immigration judge ask that?

[00:14:20] Speaker 04:
This is not under the Criminal Justice Act.

[00:14:21] Speaker 04:
You don't have a right to have the government pay for a lawyer.

[00:14:26] Speaker 04:
You don't have a right to a lawyer.

[00:14:29] Speaker 04:
All the right to counsel

[00:14:31] Speaker 04:
means in this context, as I understand it, is that if you show up with a legal representative, a paralegal lawyer, that the immigration judge can't say, no, I'm not going to hear from the legal representative.

[00:14:45] Speaker 04:
So at the master calendar, the staff distributes this list of organizations.

[00:14:52] Speaker 04:
And I'm going to give you some time for a bow.

[00:14:54] Speaker 04:
But it gives a list.

[00:14:57] Speaker 04:
I don't know if the record doesn't show whether Los Americas is on that list.

[00:15:01] Speaker 04:
He, whether he knows, understands what the immigration judge said or not, he clearly understands that he has the ability, the right to go to Los Americas, a legal representative, and he does it.

[00:15:15] Speaker 04:
So what could the immigration judge have done further?

[00:15:21] Speaker 04:
Assuming that he did have a change of heart, what's an immigration judge to do at that point?

[00:15:27] Speaker 04:
Say, I'm going to call up Los Americas and

[00:15:30] Speaker 04:
you know, get them on the stick or I'm going to call a lawyer and make them take the case for free.

[00:15:35] Speaker 04:
There's really nothing left to do.

[00:15:39] Speaker 01:
Your honor, regarding the statutory and regulatory right to representation of counsel, again, not paid for that by the government, but of an individual's choice, there is a right to be able to choose a lawyer and be able to have them at the hearing.

[00:15:54] Speaker 01:
And I think to say Mr. Chavez-Govea did find Las Americas and then say, I'm working with them, I think at the very least the judge could have said,

[00:16:06] Speaker 01:
Okay, what's that relationship?

[00:16:08] Speaker 01:
Just to confirm that there wasn't any issues with, like, why did Mr. Chavez-Govea bring up that he was working with Las Americas and then proceed with that?

[00:16:19] Speaker 01:
I mean, as we see on appeal, immediately after his continuance is denied and he's not able to proceed with his case, he

[00:16:28] Speaker 01:
He retains a lawyer from Las Americas and then appeals his case.

[00:16:32] Speaker 04:
Well, but only because, to follow up on Judge Phillips' questions, only because he acknowledges that he never told Las Americas that he had a 15-day deadline.

[00:16:42] Speaker 04:
Presumably because of the interchange of dialogue that you had with Judge Phillips, that he wasn't paying enough attention in some fashion.

[00:16:52] Speaker 01:
Yes, that's correct.

[00:16:54] Speaker 01:
Right, because he was struggling.

[00:16:56] Speaker 01:
He wanted to.

[00:16:58] Speaker 01:
Yeah, he wanted to proceed with his case, but just needed a little bit more time.

[00:17:02] Speaker 01:
I think the central fact of the matter is that all he asked for was a little bit more time to complete his application.

[00:17:08] Speaker 01:
And the BIA has decided that it was okay for him to not have any more time and that it would be fine.

[00:17:14] Speaker 03:
It would be fine.

[00:17:14] Speaker 03:
If he had said, it'd be a different case.

[00:17:16] Speaker 03:
If he had said 15 days judge, I looked at the application, I'm confused by it.

[00:17:21] Speaker 03:
I have people helping me.

[00:17:22] Speaker 03:
I need a little more time.

[00:17:23] Speaker 03:
That would be a totally different case.

[00:17:25] Speaker 03:
than saying, the truth is, I didn't really pay much attention.

[00:17:29] Speaker 03:
And then later, very soon after that, the IJ says, if you're so afraid to go back to Mexico, why wouldn't you have taken the time to fill out an application?

[00:17:38] Speaker 03:
No response.

[00:17:40] Speaker 03:
It's given an opportunity to talk to the IJ about needing time, and never did.

[00:17:45] Speaker 01:
Your Honor, I would ask you to put

[00:17:52] Speaker 01:
yourself in someone's shoes who has been detained.

[00:17:55] Speaker 01:
They're not totally, again, not totally sure what's going on.

[00:17:58] Speaker 01:
They've had 15 days to ask around with other people who are also detained.

[00:18:03] Speaker 01:
Try to understand, try to start to fill out this application.

[00:18:06] Speaker 01:
And then when he shows up at his next court hearing to ask for a little bit more time.

[00:18:10] Speaker 01:
And then in front of this judge who is this power of authority, who is then, you know, asking these questions, why didn't you fill out your application?

[00:18:17] Speaker 01:
You had some, like you had this time, why didn't you do it?

[00:18:20] Speaker 01:
I think understandably, he was trying to, you know, he responded in the best way that he could.

[00:18:26] Speaker 01:
And then when he had a little bit, when he did have a little bit more time, when, you know, he was able to hire Los Americas to represent him.

[00:18:34] Speaker 01:
He presented all these full reasons as to why he wasn't able to fill out this application in 15 days, what he was attempting to do when he asked for this continuance, and everything from there.

[00:18:46] Speaker 01:
And if there are no further questions?

[00:18:50] Speaker 04:
OK, thank you.

[00:18:52] Speaker 04:
Lisa, let's give Ms.

[00:18:54] Speaker 04:
Wong a minute and a half for rebuttal.

[00:18:56] Speaker 04:
Thank you.

[00:18:58] Speaker 00:
May it please the court at least as mercy of the Office of Immigration and Mitigation for the respondent.

[00:19:03] Speaker 00:
The court should deny the petition for review.

[00:19:06] Speaker 00:
The board did not abuse its discretion in affirming the immigration judge's determination that Mr. Chavez-Govia had waived and abandoned his opportunity to file an application for protection.

[00:19:17] Speaker 00:
The immigration judge reasonably set a filing deadline for submission of the application.

[00:19:21] Speaker 00:
And Mr. Chavez-Govia's only stated reasons in the record for not filing his application by deadline were that he was not paying that much attention to his application.

[00:19:32] Speaker 00:
Similarly,

[00:19:33] Speaker 00:
The board did not abuse its discretion in affirming that immigration judges denial of Chavez-Gabriel's request for continuance.

[00:19:39] Speaker 00:
I'm sorry.

[00:19:40] Speaker 00:
I don't know what I'm causing this to feedback.

[00:19:47] Speaker 00:
My apologies.

[00:19:48] Speaker 04:
Lisa, should she move a little further from it?

[00:19:53] Speaker 04:
Sorry about that.

[00:19:54] Speaker 00:
Likewise, the board did not abuse his discretion in affirming the immigration judge's denial of the request for continuance to file his application for relief and protection.

[00:20:03] Speaker 00:
Mr. Chair Fiskovier provided insufficient explanation for his ignoring of the immigration judge's instructions on timely filing his application.

[00:20:11] Speaker 00:
And his post-hoc explanations for his motion

[00:20:17] Speaker 00:
afterwards in his motion on his appeal and his motion to remand on appeal to the board are not persuasive, and moreover, they're not supported by the record.

[00:20:26] Speaker 03:
Counsel, if we're going to have a rule come out of this case, and we probably are, why would it be a bad rule to say if someone who comes in and needs a Spanish interpreter answers the IJ that question, why have you not given me your completed form,

[00:20:45] Speaker 03:
And at least in a one sentence answer says, someone from Los Americas was helping me, which is a change in circumstance from the first time the person was in front of the IJ.

[00:20:58] Speaker 03:
Why isn't that enough for the IJ to have to say, things have changed a little bit, tell me more?

[00:21:04] Speaker 00:
There are a lot of presumptions.

[00:21:06] Speaker 03:
When did they start helping you?

[00:21:07] Speaker 03:
Did they start helping you yesterday?

[00:21:09] Speaker 03:
Have you completed one third of the form?

[00:21:11] Speaker 03:
Can you have it done in a week?

[00:21:13] Speaker 03:
A lot riding on it.

[00:21:14] Speaker 03:
Why would that be an unreasonable rule?

[00:21:17] Speaker 00:
Well, the immigration judge only has what's being presented to him.

[00:21:20] Speaker 00:
And he asked what I would say is the appropriate questions in the transcript here.

[00:21:25] Speaker 00:
He says, why didn't you file, essentially?

[00:21:29] Speaker 00:
He asked that question to the petitioner here.

[00:21:33] Speaker 00:
And his response does reference Las Americas, but he immediately goes on and he says, honestly, I just wasn't really paying attention.

[00:21:42] Speaker 00:
And he doesn't expand on that.

[00:21:44] Speaker 00:
He doesn't say anything further that would make the immigration judge inquire further.

[00:21:51] Speaker 00:
The petitioners

[00:21:56] Speaker 00:
Later pleadings put a lot of speculation into his mindset then.

[00:22:01] Speaker 00:
He does a lot of post-hoc explanations as to what exactly happened there.

[00:22:07] Speaker 00:
But we only have what was before the immigration judge at the time.

[00:22:12] Speaker 00:
And the immigration judge says, OK,

[00:22:18] Speaker 00:
I gave you the warning beforehand.

[00:22:21] Speaker 00:
In the previous proceeding, I specifically said, and he does specifically say, I'm setting a deadline.

[00:22:29] Speaker 00:
If you do not file the application by that deadline, you risk having it being predominated, like not going forward with it.

[00:22:41] Speaker 02:
Council, can we also look at the record in the immigration judge's comments?

[00:22:46] Speaker 02:
Immediately after Mr. Chavez-Govea asked for more time, one of the first responses, the immigration judge, he says, well, you were convicted of transporting illegal aliens, right?

[00:22:58] Speaker 02:
And he says, so why didn't you fill out the application I gave you?

[00:23:01] Speaker 02:
And that's when Mr. Chavez-Govea says, someone from Las Americas helping me out.

[00:23:07] Speaker 02:
And that's where he says, I wasn't paying attention.

[00:23:08] Speaker 02:
I'm sorry.

[00:23:09] Speaker 02:
But then the judge again leaps to the conviction as if he has predetermined the merits of an application that hasn't been submitted.

[00:23:15] Speaker 02:
Because he's saying, you're not going to be eligible for cancellation.

[00:23:18] Speaker 02:
You're not going to be eligible for asylum.

[00:23:20] Speaker 02:
So in other words, what's the point of an application anyway?

[00:23:23] Speaker 02:
Why couldn't we read the record that way?

[00:23:24] Speaker 00:
Well, first of all, I refer to the initial discussion and the first hearing on August 31st, because the immigration judge at that time was trying to determine

[00:23:35] Speaker 00:
What applications would you be eligible for?

[00:23:38] Speaker 00:
So he tells the petitioner at that time, I'm going to go through this with you a little bit.

[00:23:43] Speaker 00:
I'm going to discuss, are you eligible for cancellation of removal?

[00:23:46] Speaker 00:
Are your parents or grandparents US citizens where you could claim derivative citizenship?

[00:23:52] Speaker 00:
And he does discuss a little bit in that initial proceeding, like you have a criminal conviction here, which is likely going to bar you from asylum.

[00:24:01] Speaker 00:
So I mean, to be honest,

[00:24:03] Speaker 00:
We only have what's there, but the immigration judge might be trying to discern.

[00:24:08] Speaker 00:
I possibly gave you the wrong impression at the beginning that I said that you probably weren't going to be eligible for asylum because you're a criminal conviction.

[00:24:18] Speaker 00:
Let me make sure that I understand what you're saying here, that you are eligible, whether or not you are eligible for withholding of removal and commending against torture.

[00:24:29] Speaker 00:
And he does go through questioning him,

[00:24:33] Speaker 00:
What kind of reliefs is it possible that we would be considering if I was going to continue the case or if I was looking at good cause for missing the deadline?

[00:24:45] Speaker 00:
So the immigration judge is giving him the process that he's due here, trying to figure out what is available to him and if good cause is being shown, either for missing the deadline

[00:25:02] Speaker 00:
which he didn't really say anything that would say, this is a good reason, a good cause for missing this deadline or for giving a continuance.

[00:25:14] Speaker 00:
Which in that respect, the petitioner's arguments in all three instances are pretty much the same argument.

[00:25:23] Speaker 00:
In every single instance,

[00:25:26] Speaker 00:
They are giving post-hoc explanations for what actually happened before the immigration judge, to use a well-worn face.

[00:25:34] Speaker 00:
It's a little bit like Monday, I believe it's called Monday morning quarterbacking.

[00:25:40] Speaker 04:
Well, Ms.

[00:25:40] Speaker 04:
Wong's explanation for that is because the immigration judge didn't adequately inquire.

[00:25:46] Speaker 04:
This is a non-adversarial proceeding.

[00:25:49] Speaker 04:
When the non-citizen says, I didn't pay enough attention,

[00:25:54] Speaker 04:
He also says, does he not, that I had trouble understanding.

[00:25:59] Speaker 04:
And then Ms.

[00:26:02] Speaker 04:
Wong's argument is that the immigration judge didn't inquire further.

[00:26:07] Speaker 04:
And so isn't that a good reason that there's a post-hoc explanation is that he never had the opportunity because the immigration judge didn't adequately develop a record on why a 15-day period would be sufficient.

[00:26:23] Speaker 00:
Well, the immigration judge, as we were stating previously, the immigration judge only had what was in front of them.

[00:26:30] Speaker 00:
And based on the response, the response was, but the truth is that I didn't really pay much attention.

[00:26:38] Speaker 00:
The immigration judge went with what was said beforehand.

[00:26:43] Speaker 04:
Doesn't he also say after that that I had trouble understanding?

[00:26:52] Speaker 00:
with all due respect to petitioners' characterization of the record there.

[00:26:58] Speaker 00:
Where he says, I don't understand, he says, Mr. Chavez-Covellas says, the truth is that I didn't really pay much attention.

[00:27:07] Speaker 00:
I'm sorry.

[00:27:07] Speaker 00:
The immigration judge says back, so here's the kind of issue we have.

[00:27:12] Speaker 00:
I'm going to go through some of your reliefs.

[00:27:14] Speaker 00:
And then he says, well, Mr. Chavez-Gofaya responds, well, my life is in danger, definitely, because my father-in-law, which is my wife's father, he goes through some of his claim.

[00:27:24] Speaker 00:
The immigration judge then responds, sir, I don't understand.

[00:27:29] Speaker 00:
Have you ever been harmed in Mexico?

[00:27:31] Speaker 00:
So he's not going back to what was considered an adequate response.

[00:27:36] Speaker 00:
for why didn't you fill out the application.

[00:27:39] Speaker 00:
He's trying to inquire more when he says, sir, I don't understand, about the possible applications for relief or protection that the petitioner is possibly eligible for.

[00:27:56] Speaker 04:
Let me ask you an unrelated question, just a hypothetical.

[00:28:00] Speaker 04:
Let's say, for your brief,

[00:28:02] Speaker 04:
you request a 15-day extension.

[00:28:07] Speaker 04:
You have a 15-day period to respond to the petitioner's opening brief.

[00:28:14] Speaker 04:
And you ask in the 15 days comes and goes, and you ask for additional time.

[00:28:23] Speaker 04:
The opposing counsel doesn't object.

[00:28:26] Speaker 04:
And we say, no, you had 15 days.

[00:28:32] Speaker 04:
Would that be an abuse of discretion?

[00:28:34] Speaker 04:
I don't remember seeing any district judge, magistrate judge, bankruptcy judge, circuit judge ever denying, without any opposition, an extension of a 15-day deadline when there's really no prejudice to anybody.

[00:28:54] Speaker 04:
Your Honor, this is... Why isn't that?

[00:28:57] Speaker 04:
Just, you know, even if he was a lawyer, why wouldn't that be an abuse of discretion?

[00:29:02] Speaker 00:
Well, Your Honor, this is why the regulation says that under ACFR 1003.29 that the immigration judge can grant a continuance for good cause shown.

[00:29:17] Speaker 00:
So the petitioner has to present something that presents good cause.

[00:29:24] Speaker 00:
And that's the issue here, that good cause wasn't shown.

[00:29:27] Speaker 03:
Are we on untrodden ground?

[00:29:29] Speaker 03:
Are there any cases that would point one way or the other where a petitioner has said something to this effect, someone from Las Americas was helping me out, which is a change from the original hearing, that that's enough to require more of an inquiry?

[00:29:46] Speaker 03:
Are we just our own deal here?

[00:29:51] Speaker 03:
Any helpful authority?

[00:29:54] Speaker 00:
Your Honor, I would have to respond.

[00:30:00] Speaker 00:
I think what we're... I'm so sorry.

[00:30:04] Speaker 04:
It's not your fault.

[00:30:05] Speaker 00:
I keep on getting too close to it.

[00:30:08] Speaker 00:
It's all right.

[00:30:09] Speaker 00:
Your Honor, the question of whether or not the petitioner had the opportunity for counsel here is

[00:30:26] Speaker 00:
in different aspects of this case.

[00:30:29] Speaker 03:
I'm not asking about counsel.

[00:30:31] Speaker 03:
I'm asking about the continuance.

[00:30:34] Speaker 00:
Essentially, that's what I'm trying to respond to, I'm sorry, in some ways.

[00:30:39] Speaker 00:
The petitioner brings up joy for the continuance when she says, like, good cause shown.

[00:30:50] Speaker 00:
The idea that Mr. Chavez Guvia was somehow

[00:30:55] Speaker 00:
restricted from counsel.

[00:30:58] Speaker 00:
But there's no evidence in the record that he'd retained counsel, that he was seeking counsel.

[00:31:07] Speaker 00:
He doesn't say, I need more time to seek counsel, which we see in other cases.

[00:31:15] Speaker 00:
In other cases, petitioners say, I need more time to consult with an attorney.

[00:31:23] Speaker 00:
I need to consult further with someone.

[00:31:26] Speaker 00:
He says in the beginning, in the first, I mean, it may not be an attorney, but in the first proceeding, he says, I need to talk to my deportation officer.

[00:31:35] Speaker 00:
He certainly was presented with a list of counsel providers.

[00:31:42] Speaker 00:
He says, I want to represent myself.

[00:31:45] Speaker 00:
When we go to the second proceeding, he never says, I need more time to look for counsel.

[00:31:51] Speaker 00:
And there's no evidence in the record

[00:31:53] Speaker 00:
that he'd retain counsel.

[00:31:55] Speaker 02:
Well, counsel, the petitioner's first argument is the 15-day deadline was just unreasonable from the outset.

[00:32:01] Speaker 02:
And then Judge Phillips is asking, well, at the point where 15 days has elapsed, are there any cases that look at that type of deadline and this continuance request that we can look to for guidance?

[00:32:12] Speaker 02:
But on the first question about 15 days, other than the regulation that allows the immigration judge to set deadlines, is there any case law that discusses and can give guidance to us as to whether or not that was just unreasonable from the outset?

[00:32:26] Speaker 00:
I do have to say I didn't cite any case law in my brief.

[00:32:31] Speaker 00:
One thing that wasn't cited in my brief, but I would refer to here, and I can certainly 28J afterwards, is the immigration court manual.

[00:32:44] Speaker 00:
that is the practice manual from 2019, which was around this time, which sets out the timing of submissions and the filing deadlines that depend on the stage of proceeding and whether the alien is detained.

[00:33:00] Speaker 00:
They do talk about master calendar hearings, individual calendar hearings, and they do talk about 15 days, that's sort of a standard at that point, when talking about

[00:33:11] Speaker 00:
The filing dates, they say when a filing is submitted at least 15 days prior to a master calendar hearing.

[00:33:17] Speaker 00:
The response must be within 10 days after the original filing.

[00:33:21] Speaker 00:
For individual calendar hearings, they say for non-detained aliens.

[00:33:25] Speaker 00:
For individual calendar hearings involving non-detained aliens, filing must be submitted at least 15 days in advance of the hearing.

[00:33:32] Speaker 00:
For detained aliens, which Mr. Chavez-Cavilla was at the time, he says for individual calendar hearings involving detained aliens, filing deadlines are specified by the immigration court.

[00:33:42] Speaker 00:
So again,

[00:33:46] Speaker 00:
Going back to what the record here, though, is here, the immigration court sets a deadline.

[00:33:52] Speaker 00:
And the petitioner doesn't come back and say, I need more time.

[00:33:56] Speaker 00:
I need more.

[00:33:57] Speaker 00:
That this wasn't a reasonable amount of time.

[00:34:02] Speaker 00:
And my apologies to the court and petitioner.

[00:34:06] Speaker 00:
I didn't cite this.

[00:34:06] Speaker 00:
But I certainly am contemplating what is a reasonable amount of time.

[00:34:15] Speaker 00:
As the board says here, the immigration court just set a deadline.

[00:34:21] Speaker 04:
You need to finish up.

[00:34:22] Speaker 04:
You're about 35 seconds over time.

[00:34:25] Speaker 00:
Oh, sorry.

[00:34:25] Speaker 04:
That's OK.

[00:34:27] Speaker 04:
But you go ahead and finish your thought.

[00:34:30] Speaker 00:
Essentially, the court should deny the petition for review here, because the post hoc explanations provided by the petitioner is not reflected in the record, either for the question of the deadline

[00:34:44] Speaker 00:
the continuance, or to be frank, in the due process, the allegations which repeat the explanations that the petitioner provided were both good cause for continuance and the deadline.

[00:34:57] Speaker 00:
Thank you.

[00:34:58] Speaker 04:
OK.

[00:35:00] Speaker 04:
Do you have any questions?

[00:35:00] Speaker 04:
No.

[00:35:00] Speaker 04:
Great.

[00:35:01] Speaker 04:
Did you have any?

[00:35:01] Speaker 04:
No.

[00:35:01] Speaker 04:
Thank you.

[00:35:01] Speaker 04:
OK.

[00:35:02] Speaker 04:
We'll hear from the petitioner.

[00:35:09] Speaker 01:
Make this court two quick things.

[00:35:11] Speaker 01:
First, regarding filing deadlines, while an immigration judge has discretion to set these filing deadlines, it doesn't aggregate a respondent's due process rights.

[00:35:21] Speaker 01:
Again, making sure that a respondent has enough time to submit evidence to the court is very important when determining what a reasonable filing deadline is.

[00:35:31] Speaker 03:
But it's not a reasonable time to get it done while acting lackadaisically.

[00:35:36] Speaker 01:
That is correct, Your Honor.

[00:35:37] Speaker 01:
It's not while acting laxadaisically.

[00:35:40] Speaker 01:
I don't think Mr. Chavez Govea was acting laxadaisically.

[00:35:43] Speaker 03:
But the truth is that I didn't really pay that much attention.

[00:35:46] Speaker 03:
I'm sorry.

[00:35:48] Speaker 01:
That is correct, Your Honor.

[00:35:50] Speaker 01:
He did say that.

[00:35:51] Speaker 01:
At the same time, he said that he was working with someone.

[00:35:55] Speaker 01:
While he may not have said it in the best way on that day, he mentioned, again, that he's working with a legal services provider and that

[00:36:05] Speaker 01:
What he really meant was that he was confused.

[00:36:06] Speaker 01:
And I understand that he didn't say exactly those words.

[00:36:10] Speaker 01:
But again, when looking at the situation that he was in, mentioning when he shows up by himself 15 days after his very first court hearing and says, I need a little more time.

[00:36:23] Speaker 01:
I'm working with this legal services writer.

[00:36:25] Speaker 01:
Sorry, I was a little confused.

[00:36:27] Speaker 01:
I think that both shows that the immigration judge should have

[00:36:33] Speaker 01:
you know, ask a few more questions and that should have, and he should have granted a continuance.

[00:36:38] Speaker 01:
Also, if I may.

[00:36:40] Speaker 03:
Is there ever a time when the IJ is not required to ask those additional questions?

[00:36:45] Speaker 03:
In other words, if the detainee comes in and says, well, yes, we had a checkers tournament and I ended up in the championship.

[00:36:56] Speaker 03:
It used up all my time, but I really do care about this and I want to get it done on the next one or the one after that.

[00:37:03] Speaker 03:
Does the immigration judge at that point have to say, well, tell me about this checkers tournament?

[00:37:09] Speaker 03:
Or did you talk with anyone at Los Americas?

[00:37:12] Speaker 03:
Have you set up a meeting with them?

[00:37:15] Speaker 03:
At some point, when someone says, I just didn't care enough to do it, is that the end?

[00:37:20] Speaker 03:
The IJA does not abuse discretion by saying, OK, I'll take it at your word.

[00:37:25] Speaker 01:
Your Honor, I think that is a good example of when the questions do not need to be asked.

[00:37:30] Speaker 01:
This person gave a full explanation of why they did not complete the application.

[00:37:35] Speaker 01:
And they also said nothing about, you're in your hypothetical here, the judge would have had to ask affirmatively about a legal services provider that the applicant never even mentioned.

[00:37:48] Speaker 01:
Instead, in this case, the applicant, Mr. Chavez-Govea said,

[00:37:53] Speaker 01:
I need a little bit more time.

[00:37:54] Speaker 01:
I'm working with this legal services provider.

[00:37:56] Speaker 03:
Where did he say that?

[00:37:59] Speaker 01:
This is on page... Which hearing are you talking about?

[00:38:05] Speaker 01:
This is the second hearing.

[00:38:06] Speaker 01:
This is the second hearing.

[00:38:07] Speaker 01:
The judge asked, are you tending to file an application or what's your plan?

[00:38:13] Speaker 01:
Mr. Chavez says to request a little bit more time in response to what's your plan.

[00:38:19] Speaker 01:
And then the next question is,

[00:38:22] Speaker 01:
At our last hearing, I gave you an application.

[00:38:24] Speaker 01:
Is that right?

[00:38:25] Speaker 01:
Yes.

[00:38:26] Speaker 01:
You were convicted for transporting illegal aliens.

[00:38:29] Speaker 01:
Yes.

[00:38:30] Speaker 01:
And then why did you not fill out the application I gave you?

[00:38:32] Speaker 01:
In this case, Mr. Chavez-Covea asked for a little more time and then went through a couple questions unrelated to that specifically and then told the immigration judge that he's working with a legal services provider.

[00:38:49] Speaker 01:
And I see I've gone way over time.

[00:38:51] Speaker 01:
So thank you.

[00:38:53] Speaker 04:
Thank you.

[00:38:54] Speaker 04:
Very well presented by both sides.

[00:38:57] Speaker 04:
We appreciate your zealous advocacy and your very effective advocacy.

[00:39:01] Speaker 04:
And this matter will be submitted.