[00:00:00] Speaker 03:
with 23-9586, Cortez versus Bondy.

[00:00:08] Speaker 03:
Mr. Barr.

[00:00:14] Speaker 04:
May I please support Mark Barr of Literary Immigration for the petitioners?

[00:00:20] Speaker 03:
Let me start out with questions because there are two things at play here.

[00:00:26] Speaker 03:
Yes.

[00:00:27] Speaker 03:
One is whether the

[00:00:29] Speaker 03:
The EIA properly ruled that your initial notice of appeal was inadequate.

[00:00:39] Speaker 03:
And you have some pretty good arguments about why they're wrong.

[00:00:44] Speaker 03:
The second question is, how long can you wait to challenge that?

[00:00:48] Speaker 03:
And I don't know that you've really addressed that so much.

[00:00:51] Speaker 03:
You waited until you got the bag and baggage letter.

[00:00:56] Speaker 03:
That could have come a year later.

[00:00:59] Speaker 03:
Raised this a year after you did and still get a hearing on it?

[00:01:07] Speaker 04:
I would initially say either the motion was correct and timely, or it wasn't.

[00:01:12] Speaker 04:
No, no, no.

[00:01:13] Speaker 04:
You have to challenge it.

[00:01:14] Speaker 03:
Yes.

[00:01:14] Speaker 04:
You have to challenge it at some point.

[00:01:16] Speaker 04:
Yes, absolutely.

[00:01:18] Speaker 04:
But I think the record here is clear that efforts were made immediately.

[00:01:23] Speaker 04:
What efforts were made immediately?

[00:01:25] Speaker 04:
Yes.

[00:01:25] Speaker 04:
Let me address that.

[00:01:27] Speaker 04:
So when we first received the notice that the notice of appeal was being rejected, the message we got was very opaque and confusing.

[00:01:37] Speaker 04:
It said the Notice of Appeal itself either was not signed or the wrong person had signed it.

[00:01:44] Speaker 04:
We didn't know what was wrong with it.

[00:01:46] Speaker 01:
Well, you knew it hadn't been signed, so obviously it couldn't be the wrong person signed it.

[00:01:51] Speaker 04:
Actually, no.

[00:01:52] Speaker 04:
We knew the Notice of Appeal itself had been signed.

[00:01:55] Speaker 04:
I signed it.

[00:01:56] Speaker 04:
And we could see the signature in the record.

[00:01:58] Speaker 04:
The rejection notice didn't say the certificate of service on the notice of appeal wasn't signed.

[00:02:03] Speaker 04:
It simply said the notice of appeal wasn't signed or it was the wrong person.

[00:02:07] Speaker 04:
Now, simultaneously, we noticed that our entries of appearance were being rejected.

[00:02:12] Speaker 04:
We didn't know why.

[00:02:13] Speaker 04:
But obviously, if I wasn't rejected, if I wasn't accepted as counsel of record, then me signing any form, I would be the wrong person because I wasn't counsel of record.

[00:02:23] Speaker 04:
So we initially thought that was the problem.

[00:02:25] Speaker 04:
We immediately tried contacting the board to get more information.

[00:02:30] Speaker 04:
I know this is not your area of law, but it's... Is that in the record?

[00:02:34] Speaker 04:
No, because these are phone calls.

[00:02:36] Speaker 02:
Right.

[00:02:37] Speaker 02:
You don't have anything in the record to show that you did anything until you got the bag and baggage letter.

[00:02:42] Speaker 04:
You're right.

[00:02:44] Speaker 04:
It doesn't show that we made multiple attempts to contact the board by telephone and didn't have, either didn't have our calls returned or we were just told that you need to look at the instructions.

[00:02:54] Speaker 04:
We sent you notice about what was wrong.

[00:02:56] Speaker 04:
So you're telling us now something that we can't confirm with the record, is that right?

[00:03:00] Speaker 03:
Right.

[00:03:00] Speaker 04:
And I can't, it's not part of the record.

[00:03:02] Speaker 04:
These are just phone calls.

[00:03:03] Speaker 04:
It would be my statements and that can't be evidence.

[00:03:05] Speaker 02:
Well, the main thing we do know is you didn't file anything.

[00:03:09] Speaker 02:
You didn't attempt to do the certified appeal that they told you you could do within 15 days.

[00:03:14] Speaker 02:
Nothing happened there.

[00:03:16] Speaker 02:
You didn't file a motion like you later filed in, I don't remember, October to have them reissue the order so you could file a new appeal.

[00:03:30] Speaker 02:
You didn't file anything like that.

[00:03:32] Speaker 02:
You didn't file anything to suggest that your original notice was timely.

[00:03:38] Speaker 02:
until December, again after the bag and baggage letter, you didn't file anything.

[00:03:45] Speaker 04:
Let me first address the issue of certification.

[00:03:49] Speaker 04:
That remedy was inadequate for several reasons.

[00:03:53] Speaker 04:
First of all, as it clearly stated on the face of that notice, it would not relieve me of the 30-day filing deadline.

[00:04:01] Speaker 04:
We got the rejection notice after it was already too late, so there was no guarantee that this would be accepted.

[00:04:07] Speaker 04:
until if the board took the case up on certification, which is a purely discretionary issue, my clients were walking around with administrative finals order of removal.

[00:04:20] Speaker 04:
Now, if we were relatively certain that we get a quick decision on certification, sure, we would have tried it, but the board is notoriously

[00:04:29] Speaker 04:
backlogged, we couldn't guarantee that it wouldn't take months or years, as appeals do.

[00:04:35] Speaker 04:
And if that was the case, and given that my clients were recent entrants, we expected, and this came to pass, they would have check-ins with ICE.

[00:04:43] Speaker 04:
And if they were removed, as people with administratively final orders of removal, that would constitute a withdrawal of their appeal.

[00:04:50] Speaker 04:
So we began searching for

[00:04:52] Speaker 04:
Remedies that we thought would be more immediate.

[00:04:56] Speaker 02:
None of your strategic reasons for not seeking a certification of appeal are in the record.

[00:05:02] Speaker 02:
This is just you telling us what could have been your reasons for not filing within the 15 days.

[00:05:11] Speaker 02:
So how is that relevant to anything, I guess?

[00:05:15] Speaker 04:
We chose a remedy, and this is included in the record, in September we filed with the immigration court in expectation that we could get a quicker decision there, also working with a local council who didn't oppose the motion, so we thought we had a good chance of getting that approved and things back on track.

[00:05:34] Speaker 04:
And again,

[00:05:35] Speaker 04:
The record is also clear that when we were filing those motions with the immigration court, we still didn't know what the reason was for the rejection.

[00:05:44] Speaker 04:
Our motions to the court were all based upon these rejections of our entries of appearance, which we thought the problem was.

[00:05:50] Speaker 04:
We didn't get a clarification from the board until December, which is when we said, oh, this didn't make sense to us.

[00:05:59] Speaker 03:
Did you have a petition for review to this court of the rejection of your notice of appeal?

[00:06:06] Speaker 03:
He didn't do that for months until this case.

[00:06:08] Speaker 04:
I don't think he could... I'm not sure you could do that.

[00:06:13] Speaker 03:
I thought the attorney for the board said in his brief that you could have... I could go directly to the 10th Circuit on a... Well, your appeal is rejected.

[00:06:24] Speaker 03:
I would think that that's one way to challenge it.

[00:06:30] Speaker 04:
Yeah, I think that would be a...

[00:06:32] Speaker 03:
novel procedurally, I'm not sure that that would work because there'd be... I mean, it's kind of a... If a judge dismisses your complaint, district judge dismisses the complaint for federal state of claim.

[00:06:47] Speaker 03:
and then gives you time to, 15 days in this case, to modify your complaint and you think your original complaint was fine, you're not going to try to modify it, you can appeal to this court.

[00:07:03] Speaker 03:
I would think that it would be analogous to that situation.

[00:07:07] Speaker 04:
I can see some overlap, but I think some of the procedural rules in immigration

[00:07:12] Speaker 04:
would make that path less obvious to me.

[00:07:17] Speaker 03:
Well, what I'm having trouble with is seeing how the path you did take is appropriate.

[00:07:25] Speaker 04:
I think the path was appropriate because it took us a long time to get clarification from the board about what the problems were.

[00:07:31] Speaker 03:
Which is not in the record.

[00:07:34] Speaker 03:
But by your standard, there's no time limit on what you did.

[00:07:39] Speaker 03:
You haven't recognized any need

[00:07:42] Speaker 03:
for action.

[00:07:45] Speaker 03:
If you had gotten the bag and baggage letter a year later and brought this by the argument you made, they'd be identical.

[00:07:57] Speaker 03:
And that just doesn't seem that you can sit around for a year.

[00:08:00] Speaker 03:
I agree.

[00:08:01] Speaker 04:
And I think there probably would be a limit.

[00:08:03] Speaker 04:
But whatever that limit is,

[00:08:05] Speaker 04:
I think we're well short of it, especially given the evidence in the record that we're trying to fix this.

[00:08:13] Speaker 04:
And again, in the motions made to the court, you can see from our arguments that we still didn't understand the reason the board was rejecting our notice.

[00:08:22] Speaker 04:
We thought it all had to do with the entry of appearance.

[00:08:25] Speaker 04:
So that's a strong indication that we still didn't get it.

[00:08:32] Speaker 03:
You signed the certificate of service on the entry of appearance.

[00:08:35] Speaker 03:
Do you know what?

[00:08:36] Speaker 03:
What was the problem that they said with that?

[00:08:39] Speaker 04:
Right.

[00:08:39] Speaker 04:
So that was generated by the ECAS system.

[00:08:42] Speaker 04:
Those were electronic signatures.

[00:08:44] Speaker 04:
It just, we fill out the form, and then it appears electronically in both.

[00:08:50] Speaker 04:
There's a signature.

[00:08:51] Speaker 04:
That's different than the notice of appeal, which apparently the board says we needed to... I'm sorry.

[00:08:57] Speaker 03:
I thought you said that you're...

[00:09:00] Speaker 03:
entry of appearance was rejected also.

[00:09:02] Speaker 03:
It was.

[00:09:02] Speaker 03:
On what ground?

[00:09:04] Speaker 03:
Did you have to find out?

[00:09:04] Speaker 04:
Well, I think ultimately the reason it was rejected was because the board had rejected the appeal.

[00:09:11] Speaker 04:
There was no case there, therefore there was nothing I could enter on.

[00:09:16] Speaker 04:
But they didn't say that.

[00:09:17] Speaker 04:
What they told me was your notice of appeal was either not signed or signed by the wrong person.

[00:09:24] Speaker 04:
And because it never occurred to us that

[00:09:27] Speaker 04:
We had to actually sign the certificate of service saying that we didn't provide service, especially when there's a box there that seemed to be the remedy.

[00:09:39] Speaker 02:
So if you have made this our, what we eventually got here, I think, is your motion to accept your original notice of appeal.

[00:09:50] Speaker 02:
That's what we're here on.

[00:09:52] Speaker 00:
Yes.

[00:09:53] Speaker 02:
The denial of that or the rejection of that.

[00:09:56] Speaker 02:
Could you have waited another couple of years to file that?

[00:09:59] Speaker 02:
Let's say she hadn't got the bag of baggage letter.

[00:10:02] Speaker 02:
Why not?

[00:10:04] Speaker 02:
You seem to be suggesting there is no timeline.

[00:10:08] Speaker 02:
There is no timeline.

[00:10:10] Speaker 02:
What is the timeline?

[00:10:12] Speaker 04:
I don't know.

[00:10:12] Speaker 04:
I think equitable principles would apply there, and I don't know where the deadline is, but I would concede that eventually we can draw this out to absurdities like two years, 10 years, whatever.

[00:10:26] Speaker 04:
you've lost the chance to do that.

[00:10:28] Speaker 04:
What I'm saying is whatever that hypothetical boundary is, given the evidence in the record that we were trying to do things, trying to figure out what the reason was, we're still going to be far short of that hypothetical dead end.

[00:10:42] Speaker 02:
I have a finding by the BIA that even though you didn't challenge the, even though this has nothing to do basically with the,

[00:10:53] Speaker 02:
certification of the appeal, because you never did try to certify it.

[00:10:58] Speaker 02:
They still made a finding, didn't they, that there was no exceptional circumstances or any equitable grounds for your failing to file within 15 days a certified appeal?

[00:11:13] Speaker 02:
And you haven't challenged that, right?

[00:11:15] Speaker 04:
Right.

[00:11:15] Speaker 04:
But they also relied on a legal conclusion that a signature is required.

[00:11:19] Speaker 01:
Well, I'm talking about the timeline.

[00:11:21] Speaker 04:
Yes.

[00:11:22] Speaker 01:
So I think Judge Moritz is saying, isn't that the place where you should have sought help from the circuit?

[00:11:32] Speaker 01:
I mean, you had a ruling that didn't relieve you of the deficiencies that the BIA determined were in your notice of appeal.

[00:11:43] Speaker 01:
And so even if certification initially was optional,

[00:11:49] Speaker 01:
At that point, you had essentially a final judgment from the agency, final agency action.

[00:11:56] Speaker 01:
Was that the point where you needed to file?

[00:12:00] Speaker 04:
Let me make sure that I understand what you're suggesting.

[00:12:03] Speaker 04:
You're suggesting when we got the rejection notice that simply said your notice of appeal wasn't signed or was signed by the wrong person.

[00:12:11] Speaker 04:
That would be a board decision that I could have filed a petition for review on.

[00:12:16] Speaker 01:
No.

[00:12:17] Speaker 01:
No.

[00:12:17] Speaker 01:
No.

[00:12:18] Speaker 01:
We were already past that.

[00:12:20] Speaker 04:
Okay.

[00:12:20] Speaker 01:
To the point where you get, I'm sorry Judge Mortz if I'm... No, go ahead.

[00:12:25] Speaker 01:
Where you get a decision that says there's no extraordinary circumstances that would relieve you of the prior decision that your notice of appeal was

[00:12:40] Speaker 04:
So aren't we talking about, that's what we're here on, on the denial of my motion to accept the appeal as timely, which I did file a petition for review on.

[00:12:52] Speaker 02:
But you don't seem to be challenging that aspect.

[00:12:55] Speaker 02:
The board's final decision, as I see it, was two parts.

[00:12:59] Speaker 02:
One part was to talk about the fact that you failed to timely seek certification of the appeal within 15 days, and that even though you weren't really challenging it,

[00:13:10] Speaker 02:
there's no extraordinary circumstances that justify that failure.

[00:13:14] Speaker 02:
The other part was about your substantive legal claim.

[00:13:17] Speaker 04:
Right, and because the decision is infected with what I believe were the erroneous legal conclusions, the whole decision is

[00:13:26] Speaker 04:
because it was premised on the fact that I needed in the first place to be apologizing or seeking a pardon for having done something wrong, and I don't think I did.

[00:13:37] Speaker 03:
I think my office... I don't think they were saying there was no reason for you to have waited so long.

[00:13:42] Speaker 03:
But you... I'm apparently the only one who's confused about the following point.

[00:13:49] Speaker 03:
You filed a motion to accept your original notice of appeal as correct.

[00:13:53] Speaker 03:
Yes.

[00:13:55] Speaker 03:
I don't see anywhere where the IA regulations allow that sort of motion.

[00:13:59] Speaker 03:
So when you say, well, I don't know how I could have filed a motion on it, you filed a motion that's not in there.

[00:14:05] Speaker 03:
But you also filed the Notice of Appeal with the proper signature.

[00:14:11] Speaker 03:
I did not see a formal response to your motion to accept your original Notice of Appeal as timely, as proper.

[00:14:21] Speaker 03:
And so I thought the only decision

[00:14:24] Speaker 03:
that the board thought was before it was an untimely notice of appeal, which they said, we're not going to exercise our discretion to review because you haven't shown extraordinary circumstances for being untimely.

[00:14:38] Speaker 03:
Is there a formal decision on your motion to accept your original notice of appeal as proper?

[00:14:45] Speaker 04:
These are, this is a unique procedural posture.

[00:14:49] Speaker 04:
So I've interpreted my motion as a request for the board to exercise its Suez-Bonte authority to reconsider or reopen a decision which it has made and I interpreted it as

[00:15:01] Speaker 04:
ultimate denial of the motion and of the timeliness of the original notice of appeal as its decision not to exercise its discretionary suespante authority.

[00:15:13] Speaker 01:
And my point is that... Well, do we have jurisdiction to review their discretionary decision?

[00:15:20] Speaker 04:
To the extent that it relies upon incorrect legal issues, yes, you do, and I see that I'm out of time.

[00:15:29] Speaker 03:
Let me ask you a little more.

[00:15:32] Speaker 03:
You seem to say that they said their rejection of your motion to accept the initial appeal is proper.

[00:15:42] Speaker 03:
Did they ever say that?

[00:15:44] Speaker 04:
The only thing they said was that the notice of appeal was either not signed or signed by the wrong person.

[00:15:51] Speaker 03:
But in response to that motion of yours, I don't think they said anything.

[00:15:57] Speaker 03:
I gather that the opinion we're reviewing is that

[00:16:01] Speaker 03:
denial of your notice of appeal because it's untimely.

[00:16:04] Speaker 04:
And this is the one that has the proper... Then perhaps I over-read it and took that as a denial also of the original filing as untimely.

[00:16:18] Speaker 03:
Maybe the alternative is they don't recognize a motion to accept an initial appeal as timely.

[00:16:24] Speaker 03:
So they just didn't deal with it.

[00:16:26] Speaker 03:
You talked about you didn't do anything earlier

[00:16:30] Speaker 03:
because there's no procedure for doing it, but then what you ultimately did was something that there's no procedure for doing either.

[00:16:49] Speaker 03:
Maybe you can help us with this procedural issue, because I've been confused from the start about that.

[00:16:55] Speaker 05:
I will try my best, Your Honor.

[00:16:56] Speaker 05:
Good morning, Your Honors.

[00:16:58] Speaker 05:
It's Don Robledare from the United States Department of Justice Office of Immigration and Litigation on behalf of Respondent.

[00:17:03] Speaker 05:
May it please the Court?

[00:17:06] Speaker 05:
Your Honor, I don't know if you want me to directly answer your specific question at this time.

[00:17:11] Speaker 03:
Start as you wish.

[00:17:12] Speaker 03:
I'm not sure the best way to clarify my mind, but maybe Judge, you have a question?

[00:17:17] Speaker 01:
The letter that they got said that they could file a motion for certification.

[00:17:25] Speaker 00:
Correct, Your Honor.

[00:17:26] Speaker 01:
But I don't see anything in the rules anywhere that says that they're required to do that.

[00:17:33] Speaker 05:
Well, Your Honor, if I can just step back just a little bit.

[00:17:35] Speaker 05:
The letter they got was a rejection.

[00:17:37] Speaker 05:
It's a filing.

[00:17:38] Speaker 05:
It's a rejection filing.

[00:17:39] Speaker 05:
Excuse me.

[00:17:40] Speaker 05:
It's a notice of rejection of their filing.

[00:17:43] Speaker 05:
And the board clearly provided them 15 days to cure that defect.

[00:17:47] Speaker 01:
Of course, they couldn't tell what the defect was.

[00:17:51] Speaker 05:
Well, the rejection filing did say missing or improper signature.

[00:17:54] Speaker 05:
That's what it stated.

[00:17:56] Speaker 05:
So he had noticed that there was either a missing or improper signature, and he had 15 days to curate.

[00:18:02] Speaker 05:
During these 15 days, he could have obviously reached out to the board.

[00:18:06] Speaker 05:
which sought further clarification if he needed it.

[00:18:08] Speaker 05:
But he says he did.

[00:18:09] Speaker 00:
He says he did.

[00:18:10] Speaker 05:
I know he says he did, but as Your Honor just said, it's not in the record.

[00:18:12] Speaker 05:
I have no indication that he did.

[00:18:14] Speaker 01:
Well, if you look at the rules, they would have said, oh, go look at our guidance documents, which are clear as mud.

[00:18:21] Speaker 01:
And, you know, I think it's pretty rational, particularly where it says sign if appropriate.

[00:18:31] Speaker 01:
that there are some instances where it's not appropriate to sign the certificate of service because you didn't serve it.

[00:18:39] Speaker 01:
You checked a box that said it's all being done electronically.

[00:18:43] Speaker 01:
It seems like a catch-22 here.

[00:18:49] Speaker 05:
And that not surprise you, but I think the rules are, well, I think we can all agree, all rules can always be clarified further.

[00:18:55] Speaker 05:
But they are clear.

[00:18:56] Speaker 02:
I think they are sufficiently clear.

[00:18:58] Speaker 02:
Let's assume they're clear as mud, because that seems to be about right.

[00:19:02] Speaker 02:
And it doesn't make any sense to request a signature on a proof of service when you have been told no proof of service is required or even wanted because of the electronic filing.

[00:19:13] Speaker 02:
Let's just assume that we agree on the merits of this for a moment and let's talk about what good it would have done for him to file a certification and still not knowing because of this lack of clarity what signature is required.

[00:19:31] Speaker 02:
So he lets the timeline go for whatever reason.

[00:19:35] Speaker 02:
what prohibited him, if anything, from doing what he eventually does, which is filing what he calls a sua sponte motion, a motion for you to exercise your sua sponte authority to recognize the original notice of appeal.

[00:19:51] Speaker 02:
That's what we're here on.

[00:19:52] Speaker 02:
And I didn't see anything in the BIA's order that said, oh, you can't do that.

[00:19:57] Speaker 02:
You can't file this request that we sua sponte

[00:20:01] Speaker 02:
take a look at this notice of appeal and figure out whether it really was justified, his actions were justified.

[00:20:07] Speaker 02:
I didn't see the BIA saying anything like that.

[00:20:11] Speaker 02:
And that's what I would like to know is, was there anything improper about the motion that he filed?

[00:20:19] Speaker 02:
Was it untimely?

[00:20:20] Speaker 02:
It didn't seem to be, even though it was several months later.

[00:20:24] Speaker 02:
You didn't, the BIA didn't say it was untimely.

[00:20:26] Speaker 05:
Your Honor, anybody can file a motion before the Board.

[00:20:30] Speaker 02:
Okay.

[00:20:30] Speaker 05:
Obviously, if they're, you know, if they're representing.

[00:20:32] Speaker 02:
Or a sui sponte.

[00:20:34] Speaker 05:
They can request a sui sponte.

[00:20:35] Speaker 05:
Or returning of a prior decision.

[00:20:36] Speaker 05:
Yes, of course.

[00:20:37] Speaker 05:
That is, that is, that is.

[00:20:38] Speaker 02:
A rejection of a notice of appeal.

[00:20:40] Speaker 05:
Yeah, the Board always adjudicates

[00:20:45] Speaker 05:
that request routinely adjudicates motions with their exercises so as to respond to authority.

[00:20:51] Speaker 02:
So they had the authority to do what he was asking to do and they provided... He was asking them to accept his filing as timely and they rejected it as untimely and they found no exceptional circumstances to grant it.

[00:21:04] Speaker 02:
They rejected it for two reasons.

[00:21:06] Speaker 02:
One, because there was no certification.

[00:21:09] Speaker 02:
Correct.

[00:21:11] Speaker 02:
And two, because they say legally

[00:21:14] Speaker 02:
They upheld the accept that he needs to sign a certificate of service when he's not serving in.

[00:21:22] Speaker 05:
Your Honor, I just want to push back on that point.

[00:21:23] Speaker 05:
The rules are clear.

[00:21:24] Speaker 05:
You do have to sign the agency's position.

[00:21:26] Speaker 01:
They are not clear.

[00:21:28] Speaker 01:
I bet you too.

[00:21:29] Speaker 01:
Oh, right now we'd have three people.

[00:21:31] Speaker 01:
I understand, Your Honor.

[00:21:32] Speaker 05:
I understand, Your Honor.

[00:21:33] Speaker 01:
I understand.

[00:21:34] Speaker 01:
And, you know, I mean, what does it mean when it says sign if appropriate?

[00:21:39] Speaker 01:
That assumes there are instances where it is not appropriate to sign the certificate of service.

[00:21:45] Speaker 01:
Now, a normal, intelligent person reading that when they've checked a box that says, I don't have to sign, I don't have to serve because I'm using your electronic system, it seems perfectly reasonable that that would be when signature is not appropriate because your signature certifies that you served it and you didn't serve it.

[00:22:08] Speaker 05:
Your Honor, I'm just going to give you the rules.

[00:22:13] Speaker 01:
Why don't you assume

[00:22:15] Speaker 01:
that we disagree with you and make your argument from there.

[00:22:19] Speaker 05:
Yes, Your Honor.

[00:22:20] Speaker 05:
If the assumption, if Your Honors are assuming that it is not clear that you must sign it, then absolutely the Board did deny it on those two separate grounds, that you must sign it, that Your Honors are clear to tell me it's assuming it's not clear, then it's absolutely untimely in the alternative.

[00:22:33] Speaker 03:
Two questions.

[00:22:33] Speaker 03:
Yes, Your Honor.

[00:22:34] Speaker 03:
One, when you referred to the manual of the Board, when I looked at it, it looks like it was written before you could electronically file.

[00:22:42] Speaker 05:
The rules are periodically updated, Your Honor, and that has been updated, and it does reflect the electronic filing.

[00:22:48] Speaker 03:
Was it updated at the time?

[00:22:51] Speaker 03:
I thought there was a link in your brief or something.

[00:22:55] Speaker 03:
Anyway, the rules I got...

[00:22:57] Speaker 03:
had didn't mention electronically file anyway.

[00:23:00] Speaker 05:
The last time the board updated was 2021, about a year before this case.

[00:23:05] Speaker 05:
And you're saying that in those guidelines, it says you have to sign.

[00:23:09] Speaker 03:
Yes, it does reflect that.

[00:23:10] Speaker 03:
Does it suggest what possible circumstances there could be?

[00:23:14] Speaker 05:
It actually explicitly says there are no circumstances.

[00:23:16] Speaker 05:
You must sign 3.3B.

[00:23:17] Speaker 05:
3.3 being your honor does state that signatures are required for any fine But he signature is on the notice of appeal.

[00:23:24] Speaker 01:
It's just not on the certificate of service attached.

[00:23:28] Speaker 05:
But the rules clearly state that you must sign the certificate of service.

[00:23:31] Speaker 02:
Can we go back to your worry?

[00:23:33] Speaker 02:
I understand you disagree.

[00:23:35] Speaker 02:
Assuming again, the legal basis that the BIA gave for not

[00:23:42] Speaker 02:
not recognizing the original notice of appeal, assuming that legal basis is incorrect and we don't accept that.

[00:23:49] Speaker 02:
You started to say, oh well, then we're going to base our argument on the alternative basis, which was that it was not timely.

[00:23:59] Speaker 02:
But the alternative basis was not that this motion itself was not timely.

[00:24:05] Speaker 02:
And you've told me that it is timely.

[00:24:07] Speaker 02:
The Suez-Fonte motion was timely.

[00:24:09] Speaker 02:
The alternative basis was that he did not file within 15 days a certification of appeal.

[00:24:18] Speaker 02:
But my understanding is that's not required.

[00:24:21] Speaker 02:
And he can any time file a motion to set aside the rejection of a notice of appeal.

[00:24:28] Speaker 02:
So why is that an alternative reason?

[00:24:31] Speaker 02:
Why does that even matter at all if the legal basis they give for not overturning that original decision is invalid?

[00:24:41] Speaker 02:
That's a really long question.

[00:24:43] Speaker 02:
I'm sorry, but that's what this case comes down to for me is...

[00:24:47] Speaker 02:
It's not really an alternative reason.

[00:24:50] Speaker 02:
It's something entirely separate.

[00:24:52] Speaker 05:
Yes, Your Honor.

[00:24:52] Speaker 05:
I don't want my comments to be misinterpreted.

[00:24:54] Speaker 05:
Nothing petitioners to opposing counsel filed was timely.

[00:24:58] Speaker 05:
I want to make that clear.

[00:24:59] Speaker 05:
In agency's view, nothing was timely.

[00:25:01] Speaker 05:
Nothing he filed was timely.

[00:25:02] Speaker 05:
That does not mean that anybody, what I said was just to be clear, they're free to file motions requesting that the board to exercise a suespante authority.

[00:25:09] Speaker 05:
It doesn't make the motion timely.

[00:25:11] Speaker 05:
It actually is untimely and they're requesting the Suez-Ponte authority to forgive the untimeliness and still grant their motion.

[00:25:17] Speaker 02:
Just to be clear.

[00:25:18] Speaker 02:
The BIA didn't say anything about the motion for Suez-Ponte authority or to exercise their Suez-Ponte authority.

[00:25:24] Speaker 02:
The BIA said nothing about that motion being untimely.

[00:25:29] Speaker 02:
They only talked about the failure to file a certification of the appeal.

[00:25:34] Speaker 02:
That's all they talk about.

[00:25:36] Speaker 02:
The two paragraph decision.

[00:25:38] Speaker 02:
Yes, Your Honor.

[00:25:38] Speaker 05:
It's a rather concise decision.

[00:25:40] Speaker 05:
It is clear.

[00:25:40] Speaker 02:
Now, your briefing on this was way beyond that and talked about a lot of other things as far as timeliness.

[00:25:46] Speaker 02:
But their decision was not.

[00:25:49] Speaker 02:
It only talked about that certification.

[00:25:52] Speaker 02:
And as long as they had the ability to consider setting aside that original rejection

[00:26:01] Speaker 05:
If there were exceptional circumstances, that is the basis.

[00:26:03] Speaker 05:
That is the law under the board, right?

[00:26:05] Speaker 02:
There were two bases.

[00:26:06] Speaker 02:
There were two bases.

[00:26:07] Speaker 05:
I'm focusing on the untimeliness, Your Honor, because we're already assuming that the requirement for a signature, as Your Honors have stated, you guys... And I'm saying, why doesn't that resolve the matter?

[00:26:19] Speaker 02:
If we disagree that there was a legal basis

[00:26:23] Speaker 02:
But rejecting the notice of appeal.

[00:26:25] Speaker 05:
I'm not sure how he's able to overcome the untimeliness, Your Honor.

[00:26:27] Speaker 05:
I don't understand how.

[00:26:28] Speaker 02:
The untimeliness of the certification not certifying within 15 days?

[00:26:33] Speaker 02:
Because that's what they were talking about.

[00:26:35] Speaker 05:
The untimeliness of responding to the board's rejection file.

[00:26:38] Speaker 02:
The board rejected it.

[00:26:38] Speaker 02:
Within 15 days.

[00:26:39] Speaker 05:
Correct, Your Honor.

[00:26:40] Speaker 05:
Yes.

[00:26:40] Speaker 02:
Where is there a regulation?

[00:26:43] Speaker 02:
Is there a case?

[00:26:43] Speaker 02:
Is there something that says if you don't respond within 15 days and request a certification of the appeal,

[00:26:52] Speaker 02:
by correcting, trying to correct the notice, that you can't seek sua sponte exercise of their authority later.

[00:27:01] Speaker 02:
There's nothing that says that.

[00:27:02] Speaker 02:
Right.

[00:27:03] Speaker 05:
There's nothing that says that.

[00:27:03] Speaker 05:
Right.

[00:27:04] Speaker 05:
And that's what they did.

[00:27:05] Speaker 05:
There's a 30-day filing deadline.

[00:27:07] Speaker 05:
He filed it one day before the 30 days.

[00:27:09] Speaker 05:
12 days later, he was rejected by the board.

[00:27:11] Speaker 05:
And they gave him 15 days to curate or address any legal arguments he wanted to raise.

[00:27:15] Speaker 05:
And he failed to do so for two months.

[00:27:17] Speaker 05:
I think that's the untimeliness.

[00:27:18] Speaker 02:
I failed to see how the legal arguments

[00:27:20] Speaker 02:
Somehow is overtaken by this 15-day deadline that they didn't seek to certify the appeal in But the board sent the 15-day deadline clearly in the rejection right nothing says that if you don't comply with that 15-day deadline you can't ever have that rejection overturned with

[00:27:42] Speaker 02:
using the board to respond to it.

[00:27:43] Speaker 05:
Yes, but the standard is exceptional circumstances.

[00:27:46] Speaker 05:
If you have to establish exceptional circumstances to overcome the untimeliness.

[00:27:50] Speaker 01:
As far as the 15 days.

[00:27:51] Speaker 05:
Well, as far as any untimeliness, 15 days or any other untimeliness.

[00:27:54] Speaker 01:
When you say the untimeliness, you mean the untimeliness of the notice of appeal?

[00:27:58] Speaker 01:
Is that what you're saying?

[00:27:59] Speaker 05:
The untimely, well, the notice of appeal was rejected, Your Honor, correct?

[00:28:04] Speaker 05:
So he had 15 days to cure the defect.

[00:28:06] Speaker 05:
That is what was untimely, his response to the rejection notice.

[00:28:10] Speaker 01:
Okay.

[00:28:11] Speaker 01:
What Judge Moritz has just established is that while he might have been out of time to file for certification, there is this other procedure where you can file for asking the board to exercise its sous-spontae discretionary authority in this case to correct a legal error.

[00:28:34] Speaker 01:
Because there was nothing wrong with the original notice of appeal is his argument.

[00:28:39] Speaker 05:
That is his army, and the warden rejected that army.

[00:28:43] Speaker 01:
Where did he?

[00:28:45] Speaker 05:
Yes, yes, yes.

[00:28:48] Speaker 05:
Yes, on new grounds that he didn't fail to establish exceptional circumstances because he didn't take any action for two months.

[00:28:55] Speaker 05:
Well, obviously the board is not going to concede that no signature is required.

[00:28:58] Speaker 02:
It is clearly... But I'm just saying if you concede that, if that's where we go, doesn't it resolve the litigation?

[00:29:06] Speaker 05:
No, it does not, no.

[00:29:07] Speaker 05:
Right, right.

[00:29:08] Speaker 05:
I don't think it does because you cannot overcome the untimeless.

[00:29:11] Speaker 05:
The fact of the matter is he sat on it for two months, as Your Honor pointed out, until DHS tried to effectuate their move order.

[00:29:17] Speaker 05:
There was absolutely no communication made, as far as we know in the record and as far as I know.

[00:29:20] Speaker 05:
There's no communication he made with the board whatsoever.

[00:29:23] Speaker 05:
He let it sit.

[00:29:23] Speaker 05:
He got a rejection notice, and he let it sit for two months.

[00:29:27] Speaker 02:
Why did the board go on then?

[00:29:28] Speaker 02:
Why did they consider, once they decided it was untimely, which was in paragraph one, then, without saying any reason why, they went on to the legal grounds and rejected the legal grounds?

[00:29:40] Speaker 05:
Right, because they believed that our signatures required.

[00:29:42] Speaker 02:
I went.

[00:29:43] Speaker 05:
Yes, you're on.

[00:29:44] Speaker 05:
I'm just explaining to you why the board did that.

[00:29:46] Speaker 05:
Yeah, they addressed both, the untimeliness and the requirement for the signature.

[00:29:51] Speaker 03:
The decision, I think it's the only decision we have before us for review.

[00:29:56] Speaker 03:
Yes, Your Honor.

[00:29:57] Speaker 03:
Is the August 25, 2023 decision by BIA Judge Goodwin.

[00:30:03] Speaker 03:
Yes, Your Honor.

[00:30:04] Speaker 03:
And he's reviewing the notice of appeal that had been filed a few weeks later.

[00:30:13] Speaker 03:
Well, it was late, but it wasn't the original notice of appeal that was rejected.

[00:30:19] Speaker 03:
They filed a notice of appeal that had a proper certificate of service on it.

[00:30:28] Speaker 03:
And he's considering that notice of appeal.

[00:30:31] Speaker 03:
And that's all I can see that's being considered here.

[00:30:34] Speaker 03:
And let me continue.

[00:30:35] Speaker 03:
You'll have time to respond.

[00:30:39] Speaker 03:
First says, that appeal is untimely.

[00:30:43] Speaker 03:
There are no extraordinary circumstances

[00:30:47] Speaker 03:
present that would justify this coming several months after the immigration judge ruled.

[00:30:55] Speaker 03:
That's the first thing he says.

[00:30:58] Speaker 03:
Then there's the second sentence, the second paragraph that Judge Moritz was talking about, which then tries to justify the original rejection.

[00:31:07] Speaker 03:
Are those alternative grounds, or is that the sole ground?

[00:31:11] Speaker 03:
I mean, what's the relationship between those two things?

[00:31:16] Speaker 03:
if the statement that it was untimely and there are no extraordinary circumstances, that could stand on its own.

[00:31:24] Speaker 03:
And I think that would be a justification for rejecting.

[00:31:27] Speaker 03:
But then it goes on.

[00:31:29] Speaker 03:
And if the BIA is providing a second ground, then it's unnecessary.

[00:31:38] Speaker 03:
It's an alternative ground.

[00:31:40] Speaker 03:
But if it's explaining why it doesn't think there are extraordinary circumstances, then

[00:31:45] Speaker 03:
That's close enough to a legal error that we should reverse and remand to the BIA to reconsider.

[00:31:53] Speaker 03:
Then the BIA presumably could reject it solely on the first ground of untimeliness.

[00:31:59] Speaker 03:
But that's, I can't tell what they did here.

[00:32:02] Speaker 03:
There's no mention in this order of the motion to accept the original appeal as proper.

[00:32:08] Speaker 03:
There's nothing in this order by Judge Goodwin.

[00:32:13] Speaker 03:
So I don't understand what the second paragraph, the last paragraph is about.

[00:32:17] Speaker 05:
I think there are two alternative grounds for the denial.

[00:32:23] Speaker 05:
That is the agency's position.

[00:32:24] Speaker 05:
The two alternative grounds.

[00:32:25] Speaker 05:
One is, obviously, as I stated, the life of signature.

[00:32:27] Speaker 05:
And the second is the untimeliness.

[00:32:29] Speaker 05:
But just to answer your question, the untimeliness refers, when we talk about untimeliness, it is in fact

[00:32:34] Speaker 05:
the untimeliness to cure the defect, and that is, that was about four months after he received the initial rejection.

[00:32:42] Speaker 03:
And that's what the second paragraph, well, the second paragraph of the decision by Judge Goodwin is that ground.

[00:32:50] Speaker 03:
Yes, Your Honor, yes, yes, in their own second paragraph.

[00:32:53] Speaker 03:
And if he had stopped there, I don't think we'd have a problem.

[00:32:58] Speaker 03:
But he goes on for another paragraph which makes you wonder was that

[00:33:03] Speaker 03:
Part of the reason he found no extraordinary circumstances.

[00:33:07] Speaker 03:
Is this an alternative ground for rejecting this later notice of appeal?

[00:33:11] Speaker 03:
What's going on?

[00:33:12] Speaker 05:
Just to clarify, you're referring to a paragraph where he talks about how the reason he's not persuasive.

[00:33:18] Speaker 03:
The second paragraph begins, the respondent's appeal is untimely, no extraordinary circumstances.

[00:33:23] Speaker 03:
The third paragraph is the respondents argue that their notice of appeal was filed timely but was rejected.

[00:33:30] Speaker 03:
in error, who was rejected on August 1 in error.

[00:33:34] Speaker 03:
And then the judge goes on and explains that.

[00:33:37] Speaker 03:
Is that surplusage?

[00:33:39] Speaker 03:
Do we not need to address that to uphold the decision of the BIA?

[00:33:46] Speaker 03:
Or is that part and parcel of the determination that there were no extraordinary circumstances?

[00:33:53] Speaker 03:
Am I making any sense?

[00:33:55] Speaker 05:
You are making sense, Your Honor.

[00:33:57] Speaker 05:
Could I have one second to look at the board's decision?

[00:34:02] Speaker 05:
on the same page, Your Honor.

[00:34:05] Speaker 03:
Literally.

[00:34:05] Speaker 03:
Yeah.

[00:34:08] Speaker 03:
But I have this from record, page 86.

[00:34:10] Speaker 03:
Yes, Your Honor.

[00:34:11] Speaker 03:
That's exactly what I have here.

[00:34:12] Speaker 03:
OK.

[00:34:14] Speaker 03:
So you're referring to the... The second paragraph says the response appeal is untimely.

[00:34:17] Speaker 03:
Correct.

[00:34:18] Speaker 03:
Yes, Your Honor.

[00:34:20] Speaker 03:
That would seem to be sufficient to resolve the matter.

[00:34:25] Speaker 03:
Right.

[00:34:25] Speaker 03:
Then there's the next paragraph.

[00:34:27] Speaker 03:
The respondents argue that their notice of appeal was timely filed but was rejected in error.

[00:34:31] Speaker 03:
It was rejected on August 1st, 2020, in error.

[00:34:34] Speaker 00:
Yes.

[00:34:34] Speaker 03:
Now, what's the purpose of that last?

[00:34:36] Speaker 03:
Is that an alternative ground?

[00:34:38] Speaker 03:
Is that explaining why it's not extraordinary circumstance?

[00:34:41] Speaker 03:
What's going on?

[00:34:42] Speaker 05:
This third paragraph that you're referencing is simply the board acknowledging, recognizing the petitioner's argument regarding why it should still, nonetheless, be accepted and why, in their view, it's timely.

[00:34:53] Speaker 05:
They're recognizing their argument.

[00:34:54] Speaker 05:
But of course, they continue on.

[00:34:56] Speaker 05:
to the second to the fourth paragraph to say why.

[00:34:58] Speaker 02:
To address the merits of the argument.

[00:35:01] Speaker 02:
To address their signature requirement.

[00:35:03] Speaker 02:
And not to say what you're suggesting, which is there wasn't any reason to address the merits of the argument because there was no way to overturn it because it was untimely.

[00:35:13] Speaker 05:
I'm saying both, Your Honor, and I think the board is saying both.

[00:35:15] Speaker 05:
It's untimely, and you think there was?

[00:35:17] Speaker 02:
Well, they say the respondents argued that their notice of appeal was filed timely but was rejected in error.

[00:35:24] Speaker 02:
That's their argument, right, in error.

[00:35:26] Speaker 02:
And instead of saying, doesn't really matter, they go on to say, we disagree that it was rejected in error.

[00:35:34] Speaker 02:
Now, one would assume that if we disagree with that and say it was rejected in error, then we would need to reverse the board here.

[00:35:43] Speaker 05:
I'm not quite sure why it would still not be on time, Your Honor.

[00:35:45] Speaker 05:
I'm not sure.

[00:35:46] Speaker 03:
You're saying that the second paragraph is still in itself a reason?

[00:35:51] Speaker 03:
Yes, in and of itself a reason.

[00:35:54] Speaker 01:
So you think Belton suspenders?

[00:35:56] Speaker 05:
Your Honor, I'm saying that the board clearly, in writing, provided 15 days to cure the defect and they took a lash for two months.

[00:36:01] Speaker 02:
That's what I'm saying.

[00:36:01] Speaker 02:
What you're saying is they don't actually have authority to sue Espante overturn the decision to reject the notice of appeal, which I thought earlier you said they did have that authority.

[00:36:12] Speaker 02:
If they're established in exceptional circumstances, yes, Your Honor, but the board addressed this... Fulfilling to file a certification of appeal, which is a different thing.

[00:36:21] Speaker 02:
For failing to... You have 15 days to certify the appeal and correct deficiencies.

[00:36:26] Speaker 02:
And they failed to do so, right?

[00:36:27] Speaker 02:
So then... In this case, we're talking about a legal error in the decision rejecting the appeal and the basis for that decision.

[00:36:36] Speaker 02:
It's two different things.

[00:36:39] Speaker 02:
Whether they corrected it and just went right along with it, or whether they said, no, we're not going to correct it because we did the right thing and this was legal error.

[00:36:48] Speaker 02:
And please consider that within your discretionary authority

[00:36:51] Speaker 02:
And the board didn't say it.

[00:36:53] Speaker 02:
Well, we can't consider that.

[00:36:55] Speaker 02:
If you miss this timeline, sorry, you're out.

[00:36:58] Speaker 05:
I understand your argument, Your Honor, and it makes sense if, in fact, you disagree with the board that the signature is not required.

[00:37:05] Speaker 05:
But if you put on the shoes of the board or the shoes of this attorney representing the government, the requirement is there.

[00:37:11] Speaker 05:
So therefore, they address both the board's decision, however concise it is, addressing the untimeliness, as well as the requirement to sign.

[00:37:18] Speaker 03:
Thank you.

[00:37:18] Speaker 03:
Thank you, Your Honor.

[00:37:20] Speaker 03:
I'm going to give petitioner two minutes.

[00:37:22] Speaker 03:
If you want to say anything, you may not want to say anything.

[00:37:25] Speaker 03:
OK.

[00:37:29] Speaker 03:
Thank you, counsel.

[00:37:30] Speaker 03:
Case submitted.

[00:37:30] Speaker 03:
Counselor excused.