[00:00:00] Speaker 02: All right. [00:00:00] Speaker 02: Everyone looks like they're collected. [00:00:03] Speaker 02: And the next case for argument is Ramos versus Bondi, I assume, by now, instead of Garland. [00:00:10] Speaker 02: Is that right? [00:00:11] Speaker 02: That's correct, Your Honor. [00:00:12] Speaker 02: Automatically substituted. [00:00:14] Speaker 02: Thank you. [00:00:14] Speaker 02: It is docket 23-9567. [00:00:17] Speaker 02: Counsel, please proceed when you're ready. [00:00:20] Speaker 01: Thank you, Your Honors, and may it please the court. [00:00:22] Speaker 01: I'm Brandon Gould of Covington and Burling, representing petitioners Modesta Ramos Ramos and her two minor children, [00:00:29] Speaker 01: on petition for review of the BIA's 2023 decision, reversing an immigration judge grant of asylum, a second grant of asylum from 2019. [00:00:38] Speaker 01: I'd like to reserve three minutes for rebuttal. [00:00:43] Speaker 01: Petitioners' asylum proceedings have now stretched for more than a decade after they fled Honduras to escape death threats that began immediately after the brutal murder of Ms. [00:00:53] Speaker 01: Rama's partner and the father of their children. [00:00:58] Speaker 01: Ten years, two grants of asylum, and two BIA reversals later, the issue before this court is narrow. [00:01:05] Speaker 01: All parties agree that the BIA's 2023 decision cannot stand. [00:01:10] Speaker 01: The government no longer disputes that the BIA reweighed the IJ's detailed fact-finding on nexus, relocation, and government protection, violating the clear error standard of review. [00:01:21] Speaker 01: The only remaining issue is whether this court should remand so that the BIA has a chance to redo its clearer analysis years down the road or [00:01:32] Speaker 01: whether the court should end petitioners' decade-long legal limbo and decide now that the IJ's detailed fact-finding was perfectly permissible and not clearly erroneous. [00:01:42] Speaker 00: Counsel, what is the point of departure for our inquiry in this case? [00:01:46] Speaker 00: In other words, does the ordinary remand rule in Ventura is not our place to start? [00:01:52] Speaker 01: For the reasons that we put forth in our brief, we don't think that this is even a case governed by Ventura and Thomas. [00:02:00] Speaker 01: Ventura and Thomas covered a situation where the Ninth Circuit dealt with an issue that had not previously been decided by the BIA. [00:02:10] Speaker 01: And so that, the Supreme Court said, needed to be decided by the agency in the first instance rather than decided by the appellate court. [00:02:21] Speaker 01: when the agency had not given its final word on that issue. [00:02:24] Speaker 01: So we're not even, in our view, in the universe of Ventura and Thomas and the cases that we cited both in our apply brief and in our brief in opposition to their motion to remand. [00:02:36] Speaker 00: So how is this case of, let's assume that you're right and we don't start there, how is this case different from CABA? [00:02:44] Speaker 01: How is this case different from CABA in terms of remand versus not remand? [00:02:48] Speaker 01: So in CABA, I agree there are many similarities between our case and CABA in that the BIA in both cases failed to properly apply the clear error standard review. [00:03:01] Speaker 01: And as a result, the decision from the BIA could not stand. [00:03:04] Speaker 01: The main distinction between CABA with respect to the remand question is in CABA, the petitioner there took the position that it was a purely legal error case. [00:03:14] Speaker 01: They were only challenging whether or not the BIA had properly applied the clear error standard, which is a question of law. [00:03:22] Speaker 01: Whereas in our case, we are challenging both whether or not the BIA has properly applied the clear error standard, which again, no party disputes at this point. [00:03:32] Speaker 01: and also whether the IJ's fact finding as a factual matter were clearly erroneous. [00:03:37] Speaker 01: The CABA petitioner stayed away from that particular question because actually in CABA, it was the government's position that that was a factual dispute. [00:03:45] Speaker 01: And Cabell was only making the legal argument. [00:03:47] Speaker 01: Here we're making both. [00:03:48] Speaker 00: And isn't that precisely the problem, though, that if what we're left with is does your position put the appellate court in a fact-finding role here if we're not simply reviewing whether the BIA improperly applied a legal standard, but actually marshaling evidence in support of the clear error standard itself? [00:04:09] Speaker 01: So in this case, when the BIA has reached a decision and has applied the clear error standard, in our view, and apparently undisputed in an incorrect manner, when the BIA has reached that decision, per Ventura, per Thomas, per all of the other cases that we've cited, it is proper for the appellate court to take the further step, because again, the agency has already spoken, [00:04:35] Speaker 01: and look at that factual determination, the clear error determination, and analyze whether the record compels the conclusion that that clear error determination was wrong. [00:04:48] Speaker 01: That's a proper [00:04:50] Speaker 01: use of the appellate authority. [00:04:51] Speaker 01: And in fact, even Ventura itself stands for that proposition. [00:04:56] Speaker 01: Because if you look, and I encourage the court to take a close look at Ventura itself, in Ventura, there were two issues that were at stake in that asylum case. [00:05:08] Speaker 01: One was nexus, as it is in our case. [00:05:11] Speaker 01: The other was changed country conditions. [00:05:14] Speaker 01: In Ventura, the IJ said no nexus and country conditions had changed. [00:05:18] Speaker 01: So both of those were grounds for denial of asylum. [00:05:21] Speaker 01: Appealed up to the BIA, the BIA only reached nexus and it affirmed the IJ. [00:05:27] Speaker 01: It did not reach change country conditions in their view because there was no need to potentially. [00:05:33] Speaker 01: And so when that was appealed up to the Ninth Circuit, the only issue before the Ninth Circuit from the BIA's decision was nexus. [00:05:43] Speaker 01: And the Ninth Circuit said, [00:05:45] Speaker 01: the evidence compelled the conclusion that Nexus was established. [00:05:49] Speaker 01: So in that case, they reversed the BIA factually, but the problem with the Ninth Circuit decision in Nexus was they went a step too far. [00:05:58] Speaker 01: They went on to reach the changed country conditions issue, which was not decided by the BIA. [00:06:05] Speaker 00: And all we have to do, if I understand your argument correctly, [00:06:08] Speaker 00: is to see whether the record compels the opposite conclusion. [00:06:12] Speaker 00: That's it. [00:06:13] Speaker 00: There's no question we need to decide independently within the factual framework for the claim itself. [00:06:19] Speaker 01: Exactly. [00:06:20] Speaker 01: That's the standard of Rudy here. [00:06:23] Speaker 01: What is the compels the conclusion mean? [00:06:25] Speaker 01: Here it means, does the record compel the conclusion that the IJ's fact finding was not clearly erroneous? [00:06:33] Speaker 01: We're not looking at this de novo. [00:06:34] Speaker 01: We're not taking a fresh look at the underlying fact finding. [00:06:39] Speaker 01: We're looking at the BIA's decision because the BIA's decision was this fact finding was clearly erroneous. [00:06:45] Speaker 01: And if the record compels the conclusion that it was not clearly erroneous, this court has the authority to reverse the BIA. [00:06:52] Speaker 03: Council, speaking of narrowing the issues, this case has some procedural oddities, but it seems to me both parties agree that the second petition is properly before us. [00:07:02] Speaker 03: We're reviewing the June 20-23 BIA order. [00:07:05] Speaker 03: How concerned do you think we need to be about the first petition and all the sort of procedural irregularities? [00:07:12] Speaker 01: Now, of course, the court has to assure itself of its own jurisdiction. [00:07:16] Speaker 01: No one disagrees with that. [00:07:18] Speaker 01: But here, the court doesn't need to get into the first petition whatsoever to find that it has jurisdiction here. [00:07:27] Speaker 01: We maintain that there was jurisdiction over the first petition, if not from the beginning, which we also maintain. [00:07:32] Speaker 01: But then certainly when the IJ entered a final order of removal, and that petition, if it ever were untimelified or prematurely matured, [00:07:42] Speaker 01: But certainly on the second petition, which again the government encouraged us to file after the entry of the final order of removal, there it's a classic nothing unusual appeal from a written final order of removal consolidating in all of the claims for relief along the way. [00:08:05] Speaker 01: You don't have to touch the first petition for review. [00:08:08] Speaker 01: We maintain this jurisdiction there. [00:08:10] Speaker 01: There's no dispute that there's jurisdiction on the second petition review between the parties. [00:08:16] Speaker 01: But of course, the court has to evaluate its own jurisdiction. [00:08:20] Speaker 03: Council, can I also ask you about the evidence of nexus and from what the IJ's findings for nexus to the BIA disagreeing and finding those clearly erroneous. [00:08:30] Speaker 03: One of the things that's just not clear to me is the nature of the threats themselves and whether or not those were too vague or perhaps even the fact that they were reported to have occurred over such a long period of time sort of maybe renders them less threatening. [00:08:45] Speaker 03: But how do we evaluate the evidence of nexus was in relation to the threats? [00:08:49] Speaker 01: So I think all of that is questions that the IJ in the initial instance grappled with in evaluating whether Nexus was established from the evidence presented. [00:09:00] Speaker 01: The Nexus itself is Nexus to a particular social group of the nuclear family of her murdered partner. [00:09:09] Speaker 01: Which I don't think either party disputes. [00:09:11] Speaker 01: Yeah, no party disputes. [00:09:13] Speaker 01: And the IJ weighed quite a lot of evidence to say that Nexus was established. [00:09:18] Speaker 01: The threats only began. [00:09:21] Speaker 01: once her partner was murdered. [00:09:22] Speaker 01: She had never had any personal relationship with the persecutor. [00:09:26] Speaker 01: She never was threatened by him before. [00:09:29] Speaker 01: The threat started immediately afterwards. [00:09:32] Speaker 01: They repeatedly invoked the death of her partner. [00:09:35] Speaker 01: The gang member said, I am going to do to you what was done to your partner. [00:09:44] Speaker 01: I'm going to do to your children. [00:09:45] Speaker 01: They won't grow up because they will become like their father. [00:09:48] Speaker 01: They will become murdered like their father. [00:09:50] Speaker 01: And also I think one of the kind of key things that stick in my mind on the Nexus determination, which again is inherently the IJ's determination to weigh the evidence and reach a conclusion, is that there's really no evidence in this case of any other alternative [00:10:07] Speaker 01: nexus or motive for the persecutor's threat. [00:10:11] Speaker 01: This isn't a case where she's being extorted. [00:10:13] Speaker 01: This isn't a case where she's being recruited by the gang or her children are being recruited by the gang. [00:10:22] Speaker 01: This isn't a case where she's being dissuaded from alerting the police. [00:10:26] Speaker 01: In fact, the persecutor here said, go ahead, tell the police. [00:10:30] Speaker 01: They don't scare me at all. [00:10:33] Speaker 01: And that threat was actually what prompted her to flee the country after she received that one. [00:10:39] Speaker 01: So it's kind of an absence of evidence of any other possible conclusion that a fact finder could reach. [00:10:46] Speaker 01: And again, I kind of view this as a kind of racist ipsa locutor type scenario. [00:10:51] Speaker 01: There's no other conclusion. [00:10:54] Speaker 01: But again, we don't need to dive that deeply into the IJ's fact finding here, because again, it is the IJ who has that fact finding role. [00:11:02] Speaker 01: And the IJ exercised that by evaluating the evidence, by marshaling forth a wide amount of evidence, not just the evidence from her own experience, but also country conditions evidence on all three elements, and found those three elements to be established. [00:11:18] Speaker 01: So I'm going to bring it back to the standard of review which Judge Rossman asked about. [00:11:24] Speaker 01: Here the standard review is not if we were doing it over again at the IJ level, at the fact finder level, could you reach a different conclusion? [00:11:33] Speaker 01: But the standard review is we have a decision from the BIA saying the IJ's fact finding was clearly erroneous. [00:11:41] Speaker 01: Does the evidence compel the conclusion that the IJ's fact finding was not clearly erroneous? [00:11:47] Speaker 01: And if you look at the government's briefs, if you look at the cases that they cite, [00:11:51] Speaker 01: We're in agreement on what that standard of clear error is. [00:11:55] Speaker 01: Is there any fact, is the IJ's fact finding supported by facts in record or even a single fact viewed in light of common sense and ordinary experience? [00:12:07] Speaker 00: I mean, isn't it even more than that? [00:12:08] Speaker 00: It's if the finding is permissible? [00:12:10] Speaker 01: Yeah, it's permissible. [00:12:11] Speaker 01: Is there a single fact that supports this? [00:12:13] Speaker 01: Only in the case where there is a complete absence of probative facts. [00:12:17] Speaker 01: That's in their briefs, page 20. [00:12:19] Speaker 01: Lavender versus Kern and Dior. [00:12:21] Speaker 01: Only in that instance. [00:12:23] Speaker 01: can they find the BIA have found that there was clear error. [00:12:27] Speaker 01: And the evidence compels the conclusion that there was not clear error here. [00:12:32] Speaker 01: I see we're at two minutes. [00:12:35] Speaker 01: If I'm happy to answer any further questions or reserve time for one. [00:12:37] Speaker 03: Yeah, I have one on remand question. [00:12:39] Speaker 03: You cited a case out of the Eighth Circuit Mayo for the idea that the length of time the proceedings have gone on [00:12:46] Speaker 03: sort of dictates or at least favors an outcome here that you're seeking. [00:12:50] Speaker 03: Is there any, have we said that the length of proceedings and fairness to the petitioners and consideration as the Supreme Court said that is just other circuits? [00:12:58] Speaker 01: Certainly other circuits have. [00:13:00] Speaker 01: I've not been able to identify a specific case here, but certainly the court has grappled with immigration proceedings that go on and on and on. [00:13:09] Speaker 01: and it is frustrating for the parties, it's frustrating for the government, it is an inefficient use of the court's time, the party's resources, and it places petitioners in a sort of legal limbo that is very psychologically stressful and we have submissions in the record [00:13:27] Speaker 01: kind of saying that this has been a stressful 10 years for them. [00:13:30] Speaker 01: I'd also point you specifically to the Fourth Circuit's decision in Alvarez Lagos. [00:13:37] Speaker 01: That is another case almost mirroring the procedural posture here where the government no longer disputes the BIA's position. [00:13:46] Speaker 01: But the Fourth Circuit went a further step and resolved the factual question when the evidence compelled the conclusion. [00:13:53] Speaker 01: Because that case, part of their reasoning, was that case had already dragged on for five years. [00:13:59] Speaker 01: It was time to finish. [00:14:01] Speaker 01: Enough was enough. [00:14:02] Speaker 01: It was clear on the record what the right answer should be. [00:14:05] Speaker 01: And so the court cut to the chase and resolved that factual issue. [00:14:10] Speaker 01: I'll reserve my last minute or so of time. [00:14:14] Speaker 04: Thank you. [00:14:16] Speaker 04: May I please the court? [00:14:17] Speaker 04: Robert Tennyson for the government. [00:14:20] Speaker 04: Let me start with where counsel ended. [00:14:24] Speaker 04: There's no exception to the ordinary remand rule just because proceedings have gone on for a long time. [00:14:30] Speaker 00: Counsel, I'm really troubled by the government's position in this case. [00:14:36] Speaker 00: Okay. [00:14:37] Speaker 00: It seems to me that [00:14:38] Speaker 00: your, or at least you need to help me better understand your argument. [00:14:43] Speaker 00: It seems to me that you are essentially confessing error that the BIA erred in how it understood the IJ's determination, that the IJ's determination was not clearly erroneous. [00:14:55] Speaker 00: And you're asking this court to send it back to the BIA because the BIA, and this is your language, may wish to reconsider its holdings. [00:15:06] Speaker 00: I have no idea what that means unless further factual development is needed. [00:15:10] Speaker 00: It does not seem to be needed in this case. [00:15:13] Speaker 00: So why isn't the government confessing complete error here and asking us [00:15:20] Speaker 00: as it seems, it seems that that's the, I'm reading the tea leaves to suggest that you don't think that the BIA's decision is affirmable. [00:15:30] Speaker 00: Why would we remand here? [00:15:32] Speaker 04: So our remand is premised not on the application of the clear error standard necessarily. [00:15:39] Speaker 04: It's premised on some [00:15:43] Speaker 04: misunderstanding, and reconstrual of the record, both with regard to Nexus, with regard to relocation, and the Unable and Unwilling finding. [00:15:52] Speaker 04: That the board, for example, when construing Nexus, didn't really discuss the immigration judge's findings with regard to timing, mentioned timing, and then said, but this is all vague. [00:16:04] Speaker 04: And then unraveled the immigration judge's finding from there. [00:16:11] Speaker 04: So too with relocation, the board completely just missed the immigration judge's finding that even as an individual who has a brother who's in Anastroza, [00:16:26] Speaker 04: which is a subset of MS-13, that he would be able to himself, with his familiarity with criminal networks, be able to find out whether the petitioner, you know, find out whether the petitioner has returned to the country. [00:16:43] Speaker 04: And also with regard to the Unable and Unwilling finding, again, the board took this position that [00:16:54] Speaker 04: The petitioner had effectively entered in and discussed with the police that she was being threatened by her persecutor in this instance. [00:17:08] Speaker 04: And whereas the immigration judge had found that she couldn't even get in the door. [00:17:13] Speaker 04: So the board in that regard [00:17:15] Speaker 04: either misunderstood or reconstrued those findings in order to undermine them. [00:17:19] Speaker 00: But what is the point of sending this case back to the BIA if really the best evidence or argument in support of the IJ's affirmable ruling comes from your brief? [00:17:33] Speaker 00: So what is the point? [00:17:35] Speaker 04: The point is that the board should be, has the first crack at applying the clear error standard because we're not saying there's [00:17:43] Speaker 00: It's had multiple cracks at applying. [00:17:47] Speaker 04: We're saying that there are mistaken apprehensions of the immigration judge's findings of fact and that what the board needs to do is actually pay attention to those findings as made by the immigration judge and then go through the record and apply record evidence to determine whether or not [00:18:09] Speaker 04: they have a firm conviction that she got it wrong. [00:18:12] Speaker 00: Do you have any reason to believe that if we issued an opinion that did exactly what the government is asking us to do based on your own arguments that the result would be different? [00:18:25] Speaker 04: I can't put myself in the place of the agency. [00:18:29] Speaker 04: It's quite possible that they could say there is evidence here. [00:18:35] Speaker 04: The petitioner stated with regard to Nexus that [00:18:40] Speaker 04: She was only threatened after her partner was killed. [00:18:46] Speaker 04: And in fact, the threats specifically relate to that partner. [00:18:50] Speaker 04: So there is some indication that there is a timing relation that one comes after the other and that there weren't any threats before that. [00:19:01] Speaker 04: But in her testimony, she wasn't clear on how many times she was threatened. [00:19:07] Speaker 04: She spoke of [00:19:09] Speaker 04: some sort of, you know, she spoke of her children being abducted or killed by the gangs or by her persecutor. [00:19:22] Speaker 04: But, you know, there's no concrete, there's no evidence that because during that time that any concrete steps were taken or alternatively that [00:19:33] Speaker 04: He specifically indicated that even though he relied on those statements to reference the kinds of harms that he would carry out, that it was because of her relationship to her deceased partner that these threats were being made. [00:19:56] Speaker 04: And the board could go through and assemble record evidence to support that finding. [00:20:00] Speaker 04: Would it be compelled? [00:20:03] Speaker 04: Well, that's the question. [00:20:04] Speaker 04: The board hasn't actually applied the clear error standard on appropriate understanding of the facts on the record. [00:20:13] Speaker 02: Counsel, the downside is evident, which is what you're describing, it goes back and then a year or two from now we get the same thing and about the same posture and maybe it's a different counsel than yourself, but someone is standing there telling us the same thing again. [00:20:30] Speaker 02: And so I understand Judge Rossman's question and feeling on that. [00:20:37] Speaker 02: At what point is enough enough? [00:20:39] Speaker 02: And my question to you is this. [00:20:42] Speaker 02: Is there any legal restraint on our ability to simply send it back and say no more from you, impose what the IJ said, and case closed? [00:20:56] Speaker 02: All right. [00:20:58] Speaker 02: I believe there is because the agency has something to do. [00:21:01] Speaker 02: What is it? [00:21:02] Speaker 02: And be precise on what legally stops us from doing that rather than... I would say the ordinary remand rule stops you from doing that. [00:21:10] Speaker 00: How does the ordinary remand rule apply? [00:21:12] Speaker 00: I'm sorry to interrupt your answer to Judge Phillips's question, but could you address that as well? [00:21:17] Speaker 04: The ordinary remand rule would apply because once the board properly apprehends what [00:21:23] Speaker 04: the immigration judge's findings are, then we get to, then the board has something to do. [00:21:28] Speaker 04: It has to apply the clear error standard there. [00:21:31] Speaker 04: We can't get ahead of their application of that standard. [00:21:34] Speaker 04: Even if we think, even if I think or you think that the end result is probably, you know, is already in the cards. [00:21:43] Speaker 04: They have to do it. [00:21:45] Speaker 04: It's their requirement. [00:21:46] Speaker 04: I mean, for the same reason the Ninth Circuit in Ventura [00:21:51] Speaker 04: Thought that, you know, that the result pass nexus, but council distinguished those cases, right? [00:21:57] Speaker 03: And said in those cases, the BIA did not actually review all the findings of the IJ. [00:22:04] Speaker 03: Whereas here that's happened twice. [00:22:07] Speaker 03: So how do you rely upon those cases when they don't seem to be applicable? [00:22:12] Speaker 03: Because the BIA reviewed the IJ's determinations, remanded back. [00:22:17] Speaker 03: There was a second fact-finding hearing. [00:22:19] Speaker 03: The BIA then reviewed them again. [00:22:21] Speaker 03: And what I hear you saying, I think, is that the BIA did not correctly apply the clear error rule. [00:22:28] Speaker 03: And in fact, there may be reasons why on the record evidence that there could be some legitimate questions as to whether there was actually clear errors to Nexus or relocation. [00:22:41] Speaker 03: But even though they've already gone through that twice, we should still remand and apply the ordinary remand rule. [00:22:47] Speaker 03: But I haven't heard you answer the question of, is there anything under the law that would prevent us from exercising our discretion to say, no, they've done it twice. [00:22:57] Speaker 03: They've covered the field of all the issues. [00:23:00] Speaker 03: And so rather than following the ordinary remand rule, we're going to exercise our discretion instead and affirm the IJ's findings in grant of asylum. [00:23:09] Speaker 03: What would prevent us legally from doing that? [00:23:14] Speaker 03: The answer's nothing, right? [00:23:16] Speaker 04: I don't think there's anything but you should. [00:23:17] Speaker 04: I mean, under the ordinary remand rule, you should. [00:23:19] Speaker 04: Look, when you talk about- When you should or we have to, that's what we're getting at. [00:23:24] Speaker 04: Yes. [00:23:25] Speaker 04: But at bottom, when we talk about two board decisions, they're not challenging that first board decision. [00:23:31] Speaker 04: It's not as though they're saying that the board got it wrong the first time around, but challenging that second board decision. [00:23:36] Speaker 03: It's at least relevant for us to determine what [00:23:39] Speaker 03: the scope of the issues the board has already considered. [00:23:43] Speaker 04: Right? [00:23:43] Speaker 04: Right. [00:23:44] Speaker 04: And the scope of what the board is considered and the only basis for review here is that second decision. [00:23:51] Speaker 04: And if this court thinks that the board gets it wrong when it goes back, you have a mandate rule. [00:23:58] Speaker 04: If it comes back here, you can say, there is a mandate. [00:24:00] Speaker 04: The board ignored our mandate. [00:24:03] Speaker 04: We're going to issue a decision against the government. [00:24:10] Speaker 04: Right? [00:24:10] Speaker 04: You have that option. [00:24:12] Speaker 04: But this is the first time this case is here. [00:24:16] Speaker 04: And it's the first time you're getting to review this application of the standard. [00:24:21] Speaker 04: And this court, in previous applications of the clear error standard, has remanded it for the board to apply the clear error standard correctly. [00:24:31] Speaker 04: I mean, it's not just Cabo. [00:24:33] Speaker 04: A couple of years back, there's an unpublished decision where your order of the court was either A, grant asylum, or B, apply the clear error standard. [00:24:42] Speaker 04: I mean, you could certainly do that. [00:24:45] Speaker 04: But you can't just out grant asylum in this case. [00:24:51] Speaker 04: The court has no further questions for me. [00:24:53] Speaker 02: Well, you said as you close there, the court can't. [00:24:56] Speaker 02: And everything I heard before that sounded like the court can't. [00:24:59] Speaker 04: Sorry. [00:25:00] Speaker 04: Let me just, or the court shouldn't. [00:25:02] Speaker 04: How is that? [00:25:04] Speaker 04: Okay. [00:25:05] Speaker 04: Okay. [00:25:06] Speaker 04: If the court has no further questions for me. [00:25:09] Speaker 00: I'm just curious to know why you waited so long to file your motion for remand. [00:25:15] Speaker 04: I think that often we don't. [00:25:19] Speaker 04: see the grounds for remand until the initial brief comes in. [00:25:23] Speaker 00: But you did file a motion for remand. [00:25:25] Speaker 00: It was just way late. [00:25:28] Speaker 00: Very late. [00:25:31] Speaker 04: Yes. [00:25:32] Speaker 04: I suppose from that perspective. [00:25:33] Speaker 04: But sometimes what happens is that, say for example, the petitioner comes in and waves issues, doesn't raise them. [00:25:40] Speaker 04: happens often. [00:25:40] Speaker 04: I mean, those are legal grounds to uphold an agency's decision, even if there might have been something that could have been remandable or a deficiency in the agency decision. [00:25:54] Speaker 04: We wait until we know what the claim of error by a petitioner is before we step in and say, given the claims of error that they've [00:26:08] Speaker 04: We see an issue that the board needs to resolve, too. [00:26:13] Speaker 04: And sometimes there will be instances where this happens very early on before there's any brief. [00:26:19] Speaker 04: But in this case, that didn't happen until briefing occurred. [00:26:23] Speaker 04: And so that's the way it happened in this case, Your Honor. [00:26:29] Speaker 02: Thank you, counsel. [00:26:30] Speaker 02: Thank you. [00:26:31] Speaker 02: There is some time remaining for rebuttal. [00:26:40] Speaker 01: All right. [00:26:41] Speaker 01: Thank you again. [00:26:41] Speaker 01: And I'll be very brief because I have to be. [00:26:45] Speaker 01: What you just heard from the government is that there is no legal authority stopping this court from deciding the factual matter now. [00:26:53] Speaker 01: There is no need, from a legal perspective, to remand. [00:26:57] Speaker 01: That's clear even from the very case that established the ordinary remand rule, which is Ventura. [00:27:02] Speaker 01: Again, Ventura left undisturbed the Ninth Circuit decision. [00:27:07] Speaker 01: The evidence compelled the conclusion on nexus. [00:27:09] Speaker 01: It only touched the changed circumstances. [00:27:12] Speaker 01: The last time this case was before the BIA, it took four years for the BIA to render a decision. [00:27:19] Speaker 01: Council for the government has just said, this is the first time the case is here before the Tenth Circuit. [00:27:24] Speaker 01: Let's make it the last time. [00:27:25] Speaker 01: It's here before the 10th Circuit. [00:27:27] Speaker 01: Thank you. [00:27:28] Speaker 02: Thank you, counsel. [00:27:30] Speaker 02: The case is submitted. [00:27:31] Speaker 02: Counselor excused. [00:27:32] Speaker 02: Thank you for your arguments.