[00:00:00] Speaker 02: first case 24-9534, Nava Kapila versus Bondi. [00:00:06] Speaker 02: Council. [00:00:10] Speaker 00: Good morning, Your Honors. [00:00:11] Speaker 00: This is Ricardo Figueroa on behalf of the petitioner. [00:00:16] Speaker 00: If I may, I'd like to reserve time for rebuttal if that is possible. [00:00:22] Speaker 00: I don't think I have a very long presentation today, but just in case I run out of time, [00:00:29] Speaker 00: I'd like to reserve that time for rebuttal, Your Honor. [00:00:31] Speaker 02: Sure thing, Council. [00:00:33] Speaker 02: We'll just ask you to keep an eye on your time, and when you get to a point where you want to sit down, if we don't have any questions, we'll accommodate that. [00:00:41] Speaker 00: Thank you, Your Honor. [00:00:42] Speaker 00: Thank you. [00:00:44] Speaker 00: If I may, please record, Your Honor. [00:00:46] Speaker 02: Please. [00:00:47] Speaker 00: Thank you. [00:00:48] Speaker 00: The petition for review today is one in which there is a jurisdictional issue at stake, even at this juncture. [00:00:59] Speaker 00: in the proceedings. [00:01:00] Speaker 00: And that is that the petitioner did not file his petition for review within 30 days of the date of the last decision of the Board of Appeals for immigration appeals. [00:01:13] Speaker 00: And the reason for that is factually, the reason is that the notice was received too late for that to be effectively presented to the court. [00:01:26] Speaker 01: Was it really received too late? [00:01:29] Speaker 01: He did receive it, and he still had some days after that to respond, did he not, before the deadline? [00:01:36] Speaker 01: Yes, your arms. [00:01:38] Speaker 01: So he had almost 10 days. [00:01:41] Speaker 01: So it's unfortunate that our US mail does this to people, but you can't say that he received it too late because he did have he did have time. [00:01:54] Speaker 00: I have to agree with that, Your Honor. [00:01:56] Speaker 00: Absolutely. [00:01:57] Speaker 00: The problem here, if I may, Your Honor. [00:02:00] Speaker 00: Sorry. [00:02:00] Speaker 01: Oh, of course. [00:02:00] Speaker 01: No, you go ahead. [00:02:01] Speaker 00: Thank you, Your Honor. [00:02:02] Speaker 00: The problem here is that although there were some time, I mean, like, I think it's 16, 13 days or so, it's still available. [00:02:15] Speaker 00: The petitioner did not have the full 30 days to be more expedient in the matter. [00:02:21] Speaker 00: The petition for review was filed within the 30 days from the date in which was actually received, you know, and [00:02:31] Speaker 00: I mean, there are some, I guess, logistic and other problems that had to be dealt with in a shorter period of time, whereas everybody else who gets the notice really right after it's been issued, they would not have that kind of situation to resolve. [00:02:50] Speaker 02: Well, let me ask you this. [00:02:51] Speaker 02: So the document that had to be filed was sort of a summary form document. [00:02:55] Speaker 02: It's not like you had to have an opening brief or something filed within 10 days, right? [00:03:00] Speaker 00: Yes, correct, Your Honor. [00:03:01] Speaker 02: OK, and he was represented by counsel at the time that the notice was sent out. [00:03:09] Speaker 00: Yes, Your Honor. [00:03:10] Speaker 00: Well, I was the attorney of record in the appeal to the VIA. [00:03:15] Speaker 00: However, I was not being retained yet as for the 10th Circuit Your Honor appeal. [00:03:22] Speaker 00: So I had to be retained. [00:03:24] Speaker 00: And I mean, Lord, he could have retained somebody else. [00:03:27] Speaker 02: I mean, you received a copy of the decision. [00:03:32] Speaker 00: I did receive a copy of the decision, Your Honor. [00:03:35] Speaker 00: I think it was on the 17th day. [00:03:40] Speaker 00: I think I don't recall the month of this. [00:03:45] Speaker 02: No, that's fine. [00:03:46] Speaker 02: I mean, the record will show that. [00:03:47] Speaker 02: I was just, I think the [00:03:51] Speaker 02: Well, let me ask you a different question. [00:03:52] Speaker 02: So if it turns out that this is a jurisdictional statute as opposed to a claims processing rule, whether you got it with 10 days to go or whether you got it with 30 days to go, it wouldn't make any difference. [00:04:12] Speaker 02: Do you agree with that? [00:04:15] Speaker 02: I think what's it? [00:04:20] Speaker 00: I think it would make a little difference. [00:04:21] Speaker 02: Let me ask you a different question. [00:04:23] Speaker 02: So would you contend that tolling would apply if this was a jurisdictional statute? [00:04:28] Speaker 00: I think it would. [00:04:29] Speaker 02: OK. [00:04:30] Speaker 02: Go ahead and tell me why you think that. [00:04:32] Speaker 00: Well, because the notice of the decision by the VIA is similar to what it is, a notice of entity of judgment in a civil matter, for example. [00:04:45] Speaker 00: And when the notice of the civil matter is not [00:04:49] Speaker 00: actually served and received by the other party on time, then that other party, if he acts in a diligent manner and tries to file as soon as possible and does that without causing any delay or prejudice to the other party, then normally then equitable calling might apply. [00:05:13] Speaker 00: may apply. [00:05:13] Speaker 00: It might be that many of the requirements must be listed, Your Honors. [00:05:18] Speaker 01: But did your client ever argue there were unusual or extenuating circumstances that prevented, I mean, did your client ever express what diligent efforts he did engage in during the time frame? [00:05:36] Speaker 00: Well, Your Honor, if I may, you know, my client is a very, I mean, he's an unsophisticated person, you know. [00:05:43] Speaker 00: And in his view of life and thinking around him, he did everything he could to do it faster and efficiently and not try to delay it. [00:05:57] Speaker 01: But there's nothing in the record that shows steps he did take during that 10 or 12 days that he had that could be determined to be diligent efforts. [00:06:12] Speaker 01: We just don't know. [00:06:12] Speaker 01: There's nothing that shows what he did or didn't do. [00:06:15] Speaker 00: I guess, Your Honor, that is true in the sense that the record is devoid of that information. [00:06:20] Speaker 00: That's an absolute truth, I believe. [00:06:24] Speaker 00: It can be implied that he tried to hire counsel, get somebody, and actually have that [00:06:29] Speaker 00: uh, petition for review filed, even though it was not filed within the specific time that the statute will require in a normal. [00:06:38] Speaker 01: You say it could be implied, but there's nothing, nothing in the evidence that showed he was trying to hire counsel or who he tried to hire or why or any, we just, the record is silent about all of that. [00:06:51] Speaker 00: That is true. [00:06:52] Speaker 00: Your honor. [00:06:52] Speaker 00: Thank you. [00:06:52] Speaker 00: The record is the void of that information. [00:06:54] Speaker 00: That is absolutely true. [00:06:56] Speaker 03: Can I just ask, [00:06:59] Speaker 03: If the petitioner needed more than 10 days, could a request for extra time have been made? [00:07:10] Speaker 03: In other words, requested for a continuance or moving the deadline back, could that request have been made during that time? [00:07:22] Speaker 00: Your Honor, if I understood correctly, you're asking if he knew there was not enough time that whether a motion for a continuance to file the... That's my question. [00:07:34] Speaker 00: Is that a procedural option? [00:07:38] Speaker 00: It could have been that, Your Honor. [00:07:40] Speaker 00: The thing is that rather than waiting on or filing a new motion, [00:07:48] Speaker 00: what the petitioner did was to file the actual petition for review, although a little bit late. [00:07:55] Speaker 00: But it's not, I mean, many of the cases that talk about that issue, they noticed that the petitioner in those cases, you know, took months or even some years sometimes, you know, to actually file the petition for review by decision, like so many, so long ago. [00:08:15] Speaker 00: And in this matter, we're talking about purely some days, not a very long time to say that he sat on his rights rather than pursuing them or trying to pursue in those rights, Your Honor. [00:08:28] Speaker 03: And- Let me ask a question about an argument you have in your brief. [00:08:34] Speaker 03: As I understand it, one of the arguments you're making is that the 30 days should run from [00:08:44] Speaker 03: the service of the order as opposed to after the order of removal has been entered. [00:08:55] Speaker 03: If I'm understanding that argument correctly, how would we have the authority to do that? [00:09:05] Speaker 03: The time under the statute starts when the order of removal is entered. [00:09:13] Speaker 03: And if I'm reading the brief correctly, you're suggesting, well, it really should run from the date of service. [00:09:21] Speaker 03: And how would this court be in a position to adopt your position? [00:09:32] Speaker 00: Your Honor, in response, I can say that usually, [00:09:40] Speaker 00: The purpose of serving a notice of serving a lawsuit on anybody is to give it some time for the person to actually be able to respond to the lawsuit. [00:09:49] Speaker 00: In this case, on a notice of judgment, which is what in essence the Board of Immigration Appeals did, you should have time to respond from the moment it's been served on you. [00:10:02] Speaker 00: Because otherwise, like in this case, where you get it sometime later, then the problem is you don't have enough time to respond to it appropriately or in the best [00:10:15] Speaker 00: manner possible according to your circumstances. [00:10:19] Speaker 00: It's like asking somebody on a civil matter to respond to a lawsuit because the lawsuit is being filed, but it hasn't been served. [00:10:29] Speaker 00: Or when you have an appeal from the judgment to request or force the appellant to file his appeal before he knows that a judgment is being entered. [00:10:44] Speaker 00: kind of thing. [00:10:48] Speaker 00: I believe that in a plane, you know, I think it's in a plane due process situation, you have to be given notice so you have the time to respond to the judgment that is being entered. [00:11:05] Speaker 03: Council, what I'm getting at is wouldn't that require an amendment of the statute? [00:11:12] Speaker 03: the 1252B1 statute? [00:11:17] Speaker 00: Well, in general terms, he does because the statute speaks about that. [00:11:22] Speaker 00: But then when you look at the situation, to avoid any cutting of rights or due process procedural rights of somebody, I think that it's implied that you get noticed before you are forced to respond. [00:11:41] Speaker 00: even in the situation of this kind of statute. [00:11:46] Speaker 00: Because it really isn't the responsibility of the person to receive them. [00:11:54] Speaker 00: I mean, let me strike that out, because I'm going the wrong way. [00:12:00] Speaker 00: What I'm trying to say is that it's really the responsibility of the board, and I think in this case of the board, to have immediately put that on the mail so that they [00:12:11] Speaker 00: The respondent in that case gets the notice with enough time to be able to file his response or his appeal to the circuit. [00:12:23] Speaker 02: Are you able to monitor the BIA website or any kind of electronic filing in the BIA to determine the status of your cases? [00:12:34] Speaker 00: That's a great question. [00:12:37] Speaker 00: I think there is something called the ICAs now, but not all the cases are working under the ICAs yet. [00:12:44] Speaker 00: In this case, it's an old case that it's, I believe, going under the old system where you don't get anything on the internet. [00:12:51] Speaker 00: You cannot be checking on it. [00:12:53] Speaker 02: So you file everything in paper form with the BIA? [00:12:58] Speaker 00: I believe this is a case that you do it on paper alone. [00:13:05] Speaker 00: I think so. [00:13:06] Speaker 00: You know, okay, because it's an old case. [00:13:08] Speaker 00: This is coming from probably 18 years ago. [00:13:12] Speaker 00: You know, the new case is old, you know, kind of go through the new ecosystem and it's very easy to monitor them. [00:13:22] Speaker 00: Yeah, it is very expedient as well. [00:13:26] Speaker 02: Okay, Judge Matheson. [00:13:28] Speaker 00: Nothing further from Judge. [00:13:31] Speaker 02: Okay, we'll let you have the rest of your time for rebuttal. [00:13:34] Speaker 00: Thank you. [00:13:34] Speaker 02: Well, unless you want to keep going, it's up to you. [00:13:37] Speaker 02: You can for the court today. [00:13:38] Speaker 02: You can keep going if you want to. [00:13:40] Speaker 01: But it will. [00:13:42] Speaker 01: But you won't have any rebuttal. [00:13:43] Speaker 01: You just have a minute and 20 seconds. [00:13:45] Speaker 00: Oh, I got it. [00:13:46] Speaker 00: I just would like to state, Your Honor, if I may, that on the merits of the case, we have another situation. [00:13:57] Speaker 00: And I think is that [00:14:01] Speaker 00: the definition as applied or what a serious particular serious crime is is also defective. [00:14:12] Speaker 00: And although I don't have time to address it right now, just want to put it on the record for me. [00:14:21] Speaker 00: And that's all yours. [00:14:23] Speaker 02: Okay. [00:14:23] Speaker 02: Thank you, counsel. [00:14:29] Speaker 04: Good morning. [00:14:30] Speaker 04: May it please the court, Greg Kelch, representing the United States Attorney General. [00:14:34] Speaker 04: In 1995, the Supreme Court in Stone of the INS held that the filing deadline for an immigration petition is mandatory and jurisdictional and not subject to equitable tolling. [00:14:47] Speaker 04: And this court has followed that in its own presidential cases. [00:14:51] Speaker 01: Is that true even in extremes? [00:14:55] Speaker 01: I mean, let's say there was a postal strike. [00:14:57] Speaker 01: And for 30 days, everybody knew that nothing was going to be delivered through the postal services. [00:15:06] Speaker 01: Would that still get people out of luck because they didn't get their notice in time? [00:15:09] Speaker 01: I mean, do we have absolutely no authority, in your opinion, to extend that 30 days? [00:15:14] Speaker 04: That is correct. [00:15:16] Speaker 04: And so because of how harsh that is, it does seem like we should have a remedy to that. [00:15:20] Speaker 04: And as we noted in our briefs, there is a remedy. [00:15:23] Speaker 04: He can go back to the Board of Immigration Appeals, and he can file a motion to reissue that decision. [00:15:29] Speaker 01: He can do that? [00:15:30] Speaker 04: He can do that. [00:15:30] Speaker 04: Can he do it now? [00:15:32] Speaker 04: Yes, Your Honor, he can. [00:15:33] Speaker 04: And he can seek judicial review of that. [00:15:36] Speaker 04: As you've done before in, I'm sorry, it slips my mind. [00:15:41] Speaker 04: And you have done that before in unpublished cases. [00:15:45] Speaker 04: You've heard petitions for review of people seeking a motion to reissue from the BIA. [00:15:50] Speaker 04: And if he wishes to do that, that would really be the forum for him to raise this claim that he has about he didn't receive his mail. [00:15:59] Speaker 01: And what is the standard that the BIA has set forth for their willingness to grant a motion to reissue? [00:16:08] Speaker 04: It is for an abuse of discretion. [00:16:09] Speaker 04: But in the hypothetical that you are describing, where somebody is absolutely unable to seek judicial review that Congress intended for them to have, [00:16:20] Speaker 04: I think he probably would have a strong petition and have a strong argument that, hey, that's an abuse of discretion that the agency is not letting me get my judicial review. [00:16:28] Speaker 04: I can't imagine the BIA would deny a motion like that. [00:16:31] Speaker 04: What we have here, though, is he's claiming that he didn't receive the mail. [00:16:35] Speaker 04: And with respect, before he blamed the BIA, I do have to wonder if perhaps this mail got lost in his office. [00:16:42] Speaker 04: Remember that his client was also sent a courtesy copy of the decision. [00:16:47] Speaker 04: We don't have any explanation about what was the client doing. [00:16:51] Speaker 04: And then just in addition to that, I just do want to remind the court that there's a 16-day gap. [00:16:59] Speaker 04: It's 16 days between when he says he received it on April 7th, when he filed it, and when it would have been due on May 3rd. [00:17:07] Speaker 04: You have electronic filing in this circuit. [00:17:09] Speaker 04: It's not a hard thing. [00:17:11] Speaker 04: to follow the petition, I personally am surprised that the client and his attorney were not discussing this, because the arguments they were making before the agency are all foreclosed. [00:17:23] Speaker 04: His particularly serious crime argument is all foreclosed by this court's decision in El Salehi. [00:17:30] Speaker 04: So he should have known that he probably wasn't going to win before the agency and would have to seek further review. [00:17:37] Speaker 04: But if I could just redirect to the point that I [00:17:40] Speaker 04: that I wanted to make as I flew out here from Washington DC about this phrase, mandatory and jurisdictional and not subject to equitable tolling. [00:17:50] Speaker 04: That's the law. [00:17:50] Speaker 04: That's the precedent from the Supreme Court and from this court. [00:17:55] Speaker 04: This is an untimely petition. [00:17:57] Speaker 04: All that we are trying to make clear through our filings is that in more recent years, the Supreme Court has cautioned courts and practitioners that we should all be more mindful in how we use the term jurisdiction, because of course that term refers to your adjudicatory authority over the subject matter and over the person. [00:18:18] Speaker 04: And recently in Santo Zacharias, [00:18:22] Speaker 04: which is a case about the exhaustion bar. [00:18:24] Speaker 04: But in that case, the Supreme Court noted this language from Stone v. INS. [00:18:30] Speaker 04: And the Supreme Court did say that Stone did not attend to the distinction between jurisdictional rules as we understand them today and non-jurisdictional but mandatory ones. [00:18:42] Speaker 04: And so the only point that we're trying to make through our filings is just the way that you should characterize this, dispose of this untimely petition should be through a summarily deny a petition rather than to dismiss a petition is our understanding is that that's the proper language to be using at this juncture. [00:19:02] Speaker 04: But to be clear, our position is that this is still mandatory and equitable tolling does not apply. [00:19:08] Speaker 04: That part of stone still applies. [00:19:11] Speaker 04: and that part of this course, presidential decisions still applies. [00:19:15] Speaker 04: It's just not subject to equitable tolling. [00:19:18] Speaker 03: Council, can I just ask you about your reading of this course? [00:19:22] Speaker 03: We've got the Riley case is going to be argued what, next Monday? [00:19:26] Speaker 04: It is your honor. [00:19:29] Speaker 03: All right, so we've got that kind of in the background or maybe more in the foreground. [00:19:34] Speaker 03: If 1252B1 [00:19:39] Speaker 03: is a claim processing rule. [00:19:43] Speaker 03: Tell me again, why isn't it subject to equitable tolling? [00:19:49] Speaker 04: Well, first reason is that Stone, the Supreme Court and this court and its published decisions have held that that is not subject to equitable tolling. [00:19:58] Speaker 03: Well, let me just stop you there for one second. [00:20:02] Speaker 03: Stone and Gonzalez Alcaron used the terms jurisdiction [00:20:08] Speaker 03: and not subject to equitable tolling separately, didn't they? [00:20:13] Speaker 03: Why isn't the better reading that they were talking about the relationship between equitable tolling and jurisdiction? [00:20:20] Speaker 03: Because equitable tolling doesn't apply to jurisdiction. [00:20:24] Speaker 03: But if we move into the realm of claim processing, why isn't equitable tolling available? [00:20:33] Speaker 04: Well, if you read equitable tolling as modifying jurisdictional, as you just said, that wouldn't make any sense because jurisdictional rules are not subject to equitable tolling. [00:20:41] Speaker 03: Well, why wouldn't it make sense? [00:20:43] Speaker 03: It's just the court reminding everyone that equitable tolling doesn't apply to jurisdiction. [00:20:48] Speaker 03: Why wouldn't that make perfect sense for the court to say that? [00:20:52] Speaker 04: Well, because it would render the term mandatory just a nullity. [00:20:55] Speaker 04: Like, why would the Supreme Court have said that mandatory [00:20:59] Speaker 04: and jurisdictional not subject to total. [00:21:00] Speaker 03: They could have just said jurisdiction. [00:21:02] Speaker 03: The word mandatory is there, but there's nothing about claim processing at this point. [00:21:07] Speaker 03: So why isn't that up for grabs? [00:21:09] Speaker 03: If it is a claim processing rule, I take it your position is that it's a mandatory claim processing rule as opposed to a non-mandatory claim processing rule. [00:21:22] Speaker 03: But why is that a settled question when we still have to hear from the court in Ryland? [00:21:29] Speaker 04: Well, so we do not object to the court waiting until the Supreme Court. [00:21:34] Speaker 03: I'm not asking that question. [00:21:35] Speaker 03: I'm just saying, is it still an open question? [00:21:40] Speaker 04: Our position is it is not, respectfully, as I've said, our position would be that equitable tolling modifies the term mandatory. [00:21:48] Speaker 04: And so all that this does is it says, all that we're saying here is that it's mandatory and not subject to equitable tolling. [00:21:56] Speaker 04: And when the Supreme Court used the word jurisdictional in 1995, they weren't using that term the way they use it today. [00:22:03] Speaker 04: They were talking about it's mandatory and mandatory and not subject to equitable tolling. [00:22:08] Speaker 03: Well, they use the word jurisdiction then I just don't think you can ignore that. [00:22:15] Speaker 04: Well, I mean, respectfully, our position is that it's mandatory and not subject to equitable tolling. [00:22:22] Speaker 03: I understand your argument, but it seems to me that there's room for some debate. [00:22:31] Speaker 04: So if it is an open question, then I guess the next question would be why shouldn't equitable tolling apply here? [00:22:36] Speaker 04: And to that, we would refer the court to a federal appellate procedure 26B2. [00:22:42] Speaker 04: You can't extend the time to file a petition for review unless specifically authorized by law. [00:22:48] Speaker 04: So in nutraceutical corporation, the Supreme Court looked at federal rules of appellate procedure 23F, I believe it was. [00:22:57] Speaker 04: And that Supreme Court held that federal appellate procedure does not allow for equitable tolling. [00:23:04] Speaker 04: I think that would apply here. [00:23:06] Speaker 04: I also would refer the court back to stone behind us, not just the sentence that we that we keep harping on. [00:23:12] Speaker 04: But if you look overall to the logic of stone, what the Supreme Court was explaining was that Congress created a statutory scheme that they intended to have expedited adjudication of these cases. [00:23:25] Speaker 04: They want the final order of removal to come in and they want a petition for review right away. [00:23:30] Speaker 04: And if there's a motion to reopen, [00:23:32] Speaker 04: then you'll just add that in to whatever petition for reuse for the court. [00:23:37] Speaker 04: And I think that also counsels towards the idea that as a mandatory claims processing rule now, Congress did not intend for there to be equitable tolling for that filing deadline. [00:23:48] Speaker 02: Do you have a position on if this [00:23:55] Speaker 02: case is subject to equitable tolling despite all of your arguments, why it's not why it is or is not a good candidate for equitable tolling. [00:24:04] Speaker 04: Your honor, we believe strongly this is a very poor candidate for equitable tolling. [00:24:09] Speaker 04: First of all, there's no actual evidence here of when that document was received. [00:24:14] Speaker 04: And so again, as I was saying to Judge Apple, the better [00:24:18] Speaker 04: The better course of action would be for him to seek reissuance before the BIA, submit his evidence. [00:24:24] Speaker 04: The BIA can also check its logs of when it was sent out to see if there's some problem here. [00:24:30] Speaker 04: That's the first problem. [00:24:31] Speaker 04: Second problem is that he still had, it's actually 16 days, there's 30 days in April. [00:24:37] Speaker 04: So between April 17th when he says he received it and May 3rd, he still had 16 days to file that. [00:24:44] Speaker 04: Equitable tolling is not a briefing extension. [00:24:47] Speaker 04: Equitable tolling covers a period where someone is prevented from filing because of an extraordinary circumstance. [00:24:55] Speaker 04: And then last, as I said, it's sort of odd that he wouldn't have had a plan to go even before the BIA issued its decision because, I mean, his argument is foreclosed by a matter of car bail. [00:25:08] Speaker 04: and by this court's decision in Al Salehi. [00:25:10] Speaker 04: So any relief that he was gonna receive, it would have to be through this court. [00:25:15] Speaker 04: So we contend it's a very poor candidate for equitable tolling. [00:25:20] Speaker 03: Yeah, so can you just explain something you said a few minutes ago? [00:25:23] Speaker 03: I think you said that the proper disposition would be summary denial as opposed to dismissal. [00:25:34] Speaker 03: Could you explain that? [00:25:37] Speaker 04: Well, my understanding of those two terms is you dismiss a petition when you lack jurisdiction over it, and you summarily deny a petition when you have jurisdiction, but there are not facts and arguments of substance for the court to issue a decision on the merits. [00:25:55] Speaker 04: And that's my understanding of the semantics. [00:25:58] Speaker 04: Again, we were not trying to set off a bomb with our commentary about [00:26:03] Speaker 04: what the term jurisdictional means. [00:26:06] Speaker 02: Before you go further, will you say that again about the summary denial versus dismissal? [00:26:11] Speaker 04: My understanding of that language is that you dismiss a petition when you lack jurisdiction over it and you summarily deny a petition for review when you have jurisdiction, but there are not substantial arguments for the court to rule on. [00:26:27] Speaker 01: Well, I thought you said, here you propose we deny. [00:26:30] Speaker 01: Did I get that wrong? [00:26:32] Speaker 01: You're proposing that we dismiss and not deny? [00:26:34] Speaker 01: Summarily deny. [00:26:35] Speaker 01: Which do you think, if we bought your argument, do we dismiss or deny according to your standard? [00:26:42] Speaker 01: Deny. [00:26:43] Speaker 01: OK. [00:26:43] Speaker 01: Yeah. [00:26:44] Speaker 01: Because it's a non-timely version. [00:26:45] Speaker 01: That's what I thought. [00:26:45] Speaker 01: That's what I understood you to say originally. [00:26:49] Speaker 01: Just now I understood you to say it to the contrary. [00:26:52] Speaker 01: So I must have misunderstood you. [00:26:54] Speaker 01: Pardon me. [00:26:57] Speaker 04: So if there are no further questions, I don't know if the court wants me to address the merits of the case, we certainly are happy to stand on our briefs. [00:27:07] Speaker 04: Particularly serious crime bar does not have a provision for rehabilitation. [00:27:14] Speaker 04: And this case probably is a good demonstration of why he was convicted back in 2013. [00:27:20] Speaker 04: DHS put him into removal proceedings right away. [00:27:23] Speaker 04: The case is just dragged on for 10 years. [00:27:25] Speaker 04: So when the United Nations was coming up with this concept of particularly serious crime, they probably thought people would be removed in a very expeditious fashion and didn't realize people would still be here for 10 years. [00:27:36] Speaker 04: And then arguing for, hey, in those intervening years, I'm now rehabilitated. [00:27:41] Speaker 04: But the intention of the statute, as this court explained on its own in Al-Salehi, is that it's the crime itself, the conviction, that is what makes the person removable from our country. [00:27:52] Speaker 01: So this is not a new unusual situation. [00:27:58] Speaker 01: The delay [00:27:59] Speaker 04: just dumbfounds me and it's not because I take it the record doesn't say it's because he was unavailable or had gone underground or couldn't be found it just they didn't do anything they just let us sit there it's not that nothing we didn't do anything it's that there was you know he he went through some councils some he fired the council there was some councils who didn't return his phone calls and weren't diligent [00:28:23] Speaker 04: there was also an in absentia removal order where counsel had misadvised him when to show up and that required a bia appeal and it came down and then the immigration judge was detailed there was activity there was activity yes your yes your honor i don't want to fault the petitioner for that the case moved forward just moved forward very slowly all right thank you there's no further questions i have one more for you if we find that the petitioner has not shown a basis for equitable colon [00:28:53] Speaker 03: Wouldn't that alone call for dismissal or denial, as the case may be, but wouldn't that dispose of this matter? [00:29:08] Speaker 04: Yes, absolutely. [00:29:10] Speaker 04: Our position is that this is just a conversation about how the court is going to draft its order disposing of this petition for review, because it seems to us that there is just no way [00:29:19] Speaker 04: that the court should be hearing this untimely petition. [00:29:22] Speaker 04: And if you insist that you want to call it a dismissal, may I continue? [00:29:28] Speaker 04: Oh, please. [00:29:29] Speaker 04: If it's dismissed for lack of jurisdiction in accordance with your precedent, you can do that. [00:29:35] Speaker 04: We're just trying to be the fair dealers here and explain that our understanding of the language is that it should now be denied and not dismissed. [00:29:43] Speaker 04: And that was our only point to make today. [00:29:46] Speaker 04: Thank you. [00:29:47] Speaker 02: Thank you, counsel. [00:29:49] Speaker 02: You have 45 seconds if you'd like it, sir. [00:29:54] Speaker 00: I just want to address the issue of the refiling of a motion to get a new notice of the decision of the VIA. [00:30:04] Speaker 00: The problem with that is that there is no remedy. [00:30:09] Speaker 00: In this case, you will get a new notice with the same date of the decision of the VIA. [00:30:15] Speaker 00: So why would that make a difference? [00:30:20] Speaker 02: Well, but it would be, you would file your petition for review based on the date of issuance, right? [00:30:28] Speaker 02: Of the new notice. [00:30:29] Speaker 00: The new notice will contain the same date of the decision, which I believe is the operative date. [00:30:37] Speaker 01: I understood that the BIA would give you a new date of decision when you applied for it with cause. [00:30:46] Speaker 01: I expect BIA would require cause. [00:30:50] Speaker 01: But have you ever done that? [00:30:52] Speaker 01: Are you familiar with that process? [00:30:53] Speaker 00: Never done that, Your Honor. [00:30:54] Speaker 00: But I read the CFR that talks about it. [00:30:59] Speaker 00: And it doesn't say that it's going to give you a new notice, a new date of notice. [00:31:05] Speaker 00: going to give you a new date of noise, not a new date of decision. [00:31:09] Speaker 00: So there is no remedy. [00:31:10] Speaker 00: So there is no exhaustion to be to be done there because you can only do it when you can do it by, uh, to claim a remedy as a right, not as a discretionary matter. [00:31:23] Speaker 02: Okay. [00:31:23] Speaker 02: Thank you, counsel. [00:31:24] Speaker 02: You're out of time. [00:31:26] Speaker 00: Thank you. [00:31:27] Speaker 02: The case will be submitted and counselor excused.