[00:00:00] Speaker 00:
23-9511, Ron Helfuentes versus Bondy, Mr. Godey.

[00:00:27] Speaker 04:
Good morning, Your Honor.

[00:00:29] Speaker 04:
Matteo Gaudi of Paul Weiss for Petitioner Cristina Rangel Fuentes.

[00:00:34] Speaker 04:
With the Court's permission, I'd like to reserve five minutes for rebuttal.

[00:00:38] Speaker 00:
That often doesn't work, but we'll see how the time goes.

[00:00:42] Speaker 04:
Thank you, Your Honor.

[00:00:43] Speaker 04:
May it please the Court.

[00:00:44] Speaker 04:
The qualifying relative provision sets a precondition for discretionary cancellation of removal.

[00:00:52] Speaker 04:
It requires non-citizens to establish that removal would result in a hardship to a parent, a spouse, or as in this case, a child.

[00:01:02] Speaker 04:
But as is court held in Martinez-Ferez, that provision does not directly identify the point in time at which the age of a child should be determined.

[00:01:11] Speaker 04:
After Loper-Brite, it is now this court's duty to determine what the best reading of that provision may be.

[00:01:18] Speaker 04:
And petitioners' fundamental submission is that common usage, statutory history and context, and the canons of construction, including the rule of lenity, confirm that the best reading of the qualifying relative provision is that it looks at no later than when the immigration judge closes the record.

[00:01:35] Speaker 02:
Council, the government suggests that after Loper,

[00:01:39] Speaker 02:
There's not a lot of work for us to do that we can look at Martinez-Perez through the lens of statutory stare decisis and

[00:01:52] Speaker 02:
We don't need to do much work in this case.

[00:01:54] Speaker 02:
What do you say to that?

[00:01:55] Speaker 04:
A couple of things, Your Honor.

[00:01:56] Speaker 04:
So what Loper-Brite held is that it was not meant to disturb prior decisions that relied on Chevron and found that a particular interpretation of a statutory provision was lawful.

[00:02:09] Speaker 04:
If this court had gone the extra step in Martinez-Perez and not only held that the provision is ambiguous, but that in fact a particular interpretation was the lawful one,

[00:02:20] Speaker 04:
then the government's argument would make sense.

[00:02:23] Speaker 04:
But as the court recognized in its prior penal decision, which is now being vacated, Martinez-Perez did not go that extra step precisely because the board had not exercised its right there.

[00:02:35] Speaker 04:
The board had thought that it lacked jurisdiction because as soon as the child aged out, it had no authority to interpret the statutory provision at all.

[00:02:45] Speaker 04:
So there is nothing to defer

[00:02:46] Speaker 04:
in this court's precedent under Oprah Bright.

[00:02:50] Speaker 00:
I understand that.

[00:02:52] Speaker 00:
They said since it aged out, but that deprived it of jurisdiction.

[00:02:57] Speaker 00:
But that was interpreting the statute to say if the child ages out, then it's too late to get released.

[00:03:05] Speaker 04:
But what this court did in recognizing that the board had jurisdiction was saying, we know there is a few different ways in which this provision may be interpreted.

[00:03:15] Speaker 04:
And the court went on to list a few of them.

[00:03:17] Speaker 04:
It could be the time of the application.

[00:03:18] Speaker 00:
It's clear we said it was ambiguous.

[00:03:20] Speaker 00:
Right.

[00:03:20] Speaker 04:
But then it didn't go on and pick one interpretation.

[00:03:24] Speaker 04:
It just said it's ambiguous.

[00:03:25] Speaker 04:
It could be the time of the hearing.

[00:03:26] Speaker 04:
It could be the time of application.

[00:03:28] Speaker 04:
It could be the time of adjudication.

[00:03:30] Speaker 04:
It could be some other time.

[00:03:31] Speaker 04:
And we send it back to the board to pick one of those interpretations.

[00:03:35] Speaker 04:
But the court did not say one of these is the lawful one is the best one.

[00:03:42] Speaker 04:
And that is our fundamental submission here, is that if you look at the statutory context and the history of the ways in which the statute was amended, and you utilize the various canons of construction, including the rule of lenity, you can see that the best reading is that the latest point in time is the closure of the record.

[00:04:02] Speaker 02:
So our point of departure is still ambiguity, right?

[00:04:05] Speaker 04:
We're not here suggesting that the panel should overturn circuit precedent.

[00:04:09] Speaker 02:
We think that Martinez Perez is finding... But it doesn't... We don't give it statutory stare decisis under LOPER because it's not a specific agency action.

[00:04:18] Speaker 02:
That's your position, right?

[00:04:20] Speaker 04:
Our position is that you don't give it statutory stare decisis insofar as it did not pick one interpretation.

[00:04:26] Speaker 04:
But we do think that the ambiguity holding, that's the law of the circuit.

[00:04:31] Speaker 04:
And that is from the starting point here.

[00:04:33] Speaker 04:
And that is why I think that this court's task is to then figure out how to narrow that ambiguity and whether it's possible to pick one particular time, or as we argue, it's not necessary for the court to pick a particular time in this case, and indeed not.

[00:04:50] Speaker 04:
And in fact, the best reading is simply that the latest point in time is the closure of the record.

[00:04:55] Speaker 04:
And I say that because

[00:04:57] Speaker 04:
Each case may be different.

[00:04:58] Speaker 04:
There are some cases in which a non-citizen attaches evidence to their application.

[00:05:03] Speaker 04:
The government stipulates to a cancellation of removal.

[00:05:07] Speaker 04:
There's never a hearing.

[00:05:08] Speaker 04:
There's never a formal closure of the record.

[00:05:10] Speaker 04:
And so the establishing happens at the time of application.

[00:05:14] Speaker 04:
There are other cases in which hearings are held.

[00:05:17] Speaker 04:
Record is open.

[00:05:19] Speaker 04:
Evidence is taken in.

[00:05:21] Speaker 04:
It may be kept open for a little longer as it was in this case.

[00:05:24] Speaker 04:
There was a question on eligibility.

[00:05:25] Speaker 04:
And the immigration judge expressed it on the record, said, I'm going to hold it open for a few more weeks so that additional evidence can come in to determine eligibility.

[00:05:36] Speaker 01:
Can I ask you to back up a little bit?

[00:05:38] Speaker 01:
You mentioned that sometimes the evidence is attached to the petition.

[00:05:43] Speaker 01:
Wasn't the evidence here, not as to hardship, but as to the status of the child, wasn't that attached to the petition?

[00:05:52] Speaker 01:
Isn't that in the form of a birth certificate that would show both the date of birth and citizenship?

[00:05:57] Speaker 04:
Yes.

[00:05:58] Speaker 01:
So in a lot of senses, the petitioner had at least established, as of the date of the application, the age of the child.

[00:06:11] Speaker 01:
Yes.

[00:06:12] Speaker 01:
the age changes, but the proof of that age in the citizenship is already established.

[00:06:18] Speaker 04:
Correct.

[00:06:18] Speaker 04:
I think we, you know, if that is true in this case, because the child, and it's true at a later point in time, in which case... Right.

[00:06:27] Speaker 01:
It never changes, does it?

[00:06:28] Speaker 01:
It doesn't change.

[00:06:29] Speaker 01:
From the date of the application, if the proof is attached, which it would need to be.

[00:06:33] Speaker 04:
It doesn't change, but the question is then, when is statutory eligibility determined under the statute?

[00:06:40] Speaker 01:
And if you look at 1229... Well, your view is that it's when that proof is established.

[00:06:48] Speaker 01:
Our view is... I understand it, and that's what I'm asking you about in terms of that particular aspect of the qualifications.

[00:06:56] Speaker 01:
Isn't that established at the time of the application?

[00:07:00] Speaker 04:
Yes, the age changes, but the proof of age is what really matters.

[00:07:17] Speaker 04:
because he was unmarried.

[00:07:19] Speaker 04:
During the testimony, he referred to his wife and then the question arose, is that a common law marriage, is it a legal marriage, is that just a relationship?

[00:07:28] Speaker 04:
And so the immigration judge said, wait a minute, this goes to eligibility, this goes to whether or not there is exceptional hardship to a child, someone who's below the age of 21 and unmarried.

[00:07:41] Speaker 04:
So I'm going to hold the record open.

[00:07:43] Speaker 04:
and I'm going to let additional evidence come in on the status of their relationship.

[00:07:48] Speaker 04:
So the additional evidence came in and at the closure of the record it was established that it was a child as in someone who was below the age of 21 and who was unmarried.

[00:07:59] Speaker 00:
Let me ask you, you've said that several times.

[00:08:04] Speaker 00:
There was a dispute between counsel the last time you heard this case about

[00:08:10] Speaker 00:
what can happen after it's closed and before the order is established.

[00:08:16] Speaker 00:
And I don't, I'm sorry, I don't recall who argued, maybe it was not you, said that no, it couldn't be reopened after this closure because of new dispositive evidence and the government attorney said it could.

[00:08:34] Speaker 00:
If, okay, so this provision provides for,

[00:08:40] Speaker 00:
relief if the child or spouse, I can't remember who else, parent, would be terribly harmed by the departure.

[00:08:59] Speaker 00:
If the spouse died in the interim before the order,

[00:09:03] Speaker 00:
Could the government present that and prevent removal?

[00:09:07] Speaker 00:
And yes, prevent.

[00:09:08] Speaker 04:
We think the government could do that with one caveat, that once the record closes, what is allowed under the regulation is a motion to reopen or to supplement the record.

[00:09:18] Speaker 04:
And that is entirely at the discretion of the immigration judge.

[00:09:21] Speaker 00:
Yeah, but it can be done.

[00:09:23] Speaker 00:
If the child died, then the fact that the child had been proved to be

[00:09:33] Speaker 00:
potentially harmed by the removal of the parent.

[00:09:37] Speaker 00:
You agree that that could be changed?

[00:09:40] Speaker 04:
The caveat again is that it said the discretion of the immigration judge.

[00:09:43] Speaker 04:
What difference does that make?

[00:09:45] Speaker 04:
It makes differences insofar as... The discretion depends on whether a fact is happening.

[00:09:50] Speaker 04:
But they have extremely broad discretion as to whether or not to allow evidence in their cases in which joint motions from the government and the immigrant are denied in the judge's discretion.

[00:10:01] Speaker 04:
And the only review of that is the Board of Immigration Appeal.

[00:10:04] Speaker 04:
Those decisions are not reviewed by this court.

[00:10:06] Speaker 04:
And that evidence has to be new evidence.

[00:10:08] Speaker 04:
In other words, it has to be an event that occurred after the closure of the records, such as the birth of a child.

[00:10:14] Speaker 00:
Such as the person aging.

[00:10:16] Speaker 00:
That's a new event.

[00:10:18] Speaker 04:
That is something that the date of birth was true at the time.

[00:10:26] Speaker 00:
You were just saying, I think, that it's not the birth certificate that's the proof.

[00:10:32] Speaker 00:
That shows the date of birth.

[00:10:34] Speaker 00:
Then the age changes every day.

[00:10:36] Speaker 00:
That's a new fact every day.

[00:10:38] Speaker 00:
When another day has passed, the person is one day older.

[00:10:42] Speaker 04:
And so if the government had done that,

[00:10:45] Speaker 04:
Perhaps that would be a different case.

[00:10:47] Speaker 04:
That is not this case, because what the government did here was never move to reopen the record, never move to add new evidence.

[00:10:53] Speaker 01:
Why would you need to reopen the record to prove a change in age?

[00:10:57] Speaker 04:
I don't think you do, Your Honor.

[00:10:59] Speaker 01:
Of course not.

[00:10:59] Speaker 01:
Because what the statutes ask... The age of state, once you prove age, I understand what you're saying about marriage, potentially a child could be married, that might change things, but you can't change

[00:11:12] Speaker 01:
the proof of the age.

[00:11:13] Speaker 01:
The proof of the age is established early on.

[00:11:17] Speaker 01:
But the age itself, you can't stop it from continuing.

[00:11:22] Speaker 04:
But so that goes to when the relevant point in time to make that determination is.

[00:11:27] Speaker 04:
And I think that's the crux of this case.

[00:11:29] Speaker 04:
Of course age changes over time, but it cannot be that the government could reopen after a decision is issued, that cancellation is granted, which they have a right to do.

[00:11:38] Speaker 04:
They can reopen for new evidence.

[00:11:40] Speaker 04:
if the child ages out.

[00:11:42] Speaker 04:
But that is, of course, just logic.

[00:11:45] Speaker 04:
Children will always age out, but the government cannot always reopen the record.

[00:11:51] Speaker 00:
You have limited time, and I want you to... So that's why I interrupted, because I think we understand that point.

[00:11:57] Speaker 04:
Thank you, sir.

[00:11:58] Speaker 00:
But there's a... This is a very strange provision, in my view, because

[00:12:08] Speaker 00:
What it should say is you can't be removed until your child becomes an adult.

[00:12:14] Speaker 00:
But it doesn't.

[00:12:16] Speaker 00:
It depends on what happened at that particular moment.

[00:12:19] Speaker 00:
If the child is one day short of majority, then removal is prevented.

[00:12:26] Speaker 00:
And in that context, it seems to me that the important date would have to be the date when you order

[00:12:37] Speaker 00:
confirm the removal, you order the removal of the alien.

[00:12:41] Speaker 04:
If I can take 30 more seconds of my rebuttal time just to address why that cannot be right for a couple of reasons.

[00:12:48] Speaker 04:
First, the statutory provision is not a temporary status.

[00:12:51] Speaker 04:
It's not unlike temporary status applications.

[00:12:54] Speaker 04:
This is a cancellation of removal.

[00:12:56] Speaker 04:
So it's not tied to so long as the child is below 21.

[00:13:01] Speaker 04:
This is permanent.

[00:13:02] Speaker 04:
And that is why it matters what

[00:13:05] Speaker 04:
the relevant point in time is.

[00:13:07] Speaker 04:
And if it were the time of cancellation, I think that would lead to absurd results and prove that there are ambiguous readings to the statute and one is better and the other one is worse.

[00:13:18] Speaker 04:
The absurd result will be some of the ones I was suggesting to earlier.

[00:13:22] Speaker 04:
For example, the government could reopen as soon as the child turns 21.

[00:13:26] Speaker 04:
If the child turns 21, 90 days after the decision is issued.

[00:13:30] Speaker 04:
So after cancellation is granted, you can still move to reopen.

[00:13:34] Speaker 04:
And if they move to reopen because the childs are 21, that would undo the cancellation of removal under the interpretation that your honor is suggesting.

[00:13:43] Speaker 00:
And you think that's an absurd result?

[00:13:45] Speaker 04:
It is because if the government, if Congress meant to do that, to tie the relief to the age so long as the child is 21, it wouldn't have asked whether or not the alien has established that they have

[00:14:02] Speaker 04:
that removal would cause a hardship to a child.

[00:14:05] Speaker 04:
It would have said, so long as the child is 21, you may obtain a temporary status visa and then you remain removable after your child ages out.

[00:14:17] Speaker 04:
But that is not what the provision does.

[00:14:20] Speaker 04:
And the other absurd conclusions would be that the agency could simply slow down the process, whether it's because of a meritorious appeal on the part of the applicant that takes years, whether it's a recalls to insurance agency that simply does not refuse to sell.

[00:14:36] Speaker 00:
But that can happen anyway, no matter how you...

[00:14:39] Speaker 00:
we decide this case.

[00:14:41] Speaker 04:
Well, but the record closes at a certain point in time, right?

[00:14:44] Speaker 04:
So if the agency simply takes a long time to issue the decision, that doesn't count against... So it could take a long time to... before you close the record?

[00:14:53] Speaker 04:
It can.

[00:14:53] Speaker 00:
And it does, often, unfortunately.

[00:14:55] Speaker 04:
It can, but that is why we think that there are two readings to this statute, and neither one of them is... the plain text doesn't answer this question, but one reading is better.

[00:15:06] Speaker 04:
because it avoids some of the absurdities that I was mentioning and the other one is worse because it causes those absurdities.

[00:15:12] Speaker 04:
Because if I may reserve- I actually had one more question for you.

[00:15:17] Speaker 02:
The 11th Circuit in Diaz-Ariano was in a similar posture as we are receiving this case.

[00:15:25] Speaker 02:
I was wondering what you thought of the analysis there, the statutory analysis and why that

[00:15:31] Speaker 02:
Why we shouldn't find that persuasive.

[00:15:34] Speaker 04:
The legal question, the statutory analysis is what I wanted to get your response to.

[00:15:52] Speaker 04:
difference to the analysis, so bracketing those differences to the analysis.

[00:15:56] Speaker 04:
I think it's persuasive for a few different reasons.

[00:15:59] Speaker 04:
One is that the court emphasized that whether or not hardship to a child is established depends on the facts on the ground.

[00:16:07] Speaker 04:
These are the words of the court at the time of removal.

[00:16:10] Speaker 04:
The court went back and forth talking about the time of adjudication, the time of removal, but it emphasized that

[00:16:16] Speaker 04:
The way to read the provision is to ask at the time of removal, whenever that may be, and the agency may take years to effectuate a removal after an order, it may never go about doing that.

[00:16:29] Speaker 01:
It used different terms, but it seemed to be referring to the time the decision is made as to whether to cancel removal, which is what this is all about.

[00:16:39] Speaker 01:
Will there be a cancellation of removal?

[00:16:41] Speaker 01:
That's what it all comes down to, and that's what the 11th Circuit relied on, which makes some sense.

[00:16:46] Speaker 04:
The majority, the dissent, and I think that the dissent is more persuasive than the majority for a few different reasons.

[00:16:53] Speaker 04:
As I mentioned, I think the majority has problems.

[00:16:55] Speaker 00:
You can answer the question, but you tend to...

[00:16:59] Speaker 00:
Talk too much and repeat yourself, so please be very succinct.

[00:17:05] Speaker 00:
Go ahead and answer, but be succinct.

[00:17:08] Speaker 01:
Why wasn't the 11th Circuit correct in focusing on the decision, the time, the relevant time being the decision at hand, which was removal, or cancellation of remover.

[00:17:25] Speaker 04:
So to avoid repeating some of the reasons I gave, I'll give you a new reason to maybe try to persuade you of that.

[00:17:33] Speaker 04:
As the dissent pointed out, what the majority does is change the subject

[00:17:36] Speaker 04:
of the relevant provision.

[00:17:38] Speaker 04:
It looks at what the immigration judge adjudicates rather than, as the provision says, if the alien establishes.

[00:17:45] Speaker 04:
It doesn't focus on the meaning of the word establishes and why that word was put in in 1996 and why the prior provision instead had the attorney general as its subject and asked if the attorney general in his or her opinion

[00:17:58] Speaker 04:
finds that the alien is a person whose removal would cause a hardship.

[00:18:03] Speaker 04:
There was a change to the subject.

[00:18:05] Speaker 04:
There was a change to the verb.

[00:18:07] Speaker 04:
The same verbs were kept for the other provisions of this 1229B1.

[00:18:12] Speaker 04:
So we think that... Thank you, Your Honors.

[00:18:15] Speaker 04:
Thank you.

[00:18:17] Speaker 01:
I appreciate it.

[00:18:20] Speaker 00:
In case I decide to be generous and give you a few seconds, everybody will be thinking about how you can say things very concisely.

[00:18:41] Speaker 03:
Good morning, Your Honors, and may it please the Court, Corey Farrell, on behalf of the Attorney General.

[00:18:47] Speaker 03:
Following the Supreme Court's decision in Loper-Brite, the Court should hold that the Board's construction of the cancellation of removal statute requiring that a qualifying relative exist at the time of an immigration judge's decision adjudicating the application is the best interpretation of the statute, even if this Court affords no deference to the agency's interpretation.

[00:19:11] Speaker 03:
Accordingly, the court should again deny the portion of the petition for review challenging the agency's determination that petitioner was not eligible for cancellation of removal.

[00:19:22] Speaker 03:
I would like to start with this court's decision in Martinez Perez.

[00:19:27] Speaker 03:
In that case, the court held that the statute at issue here is ambiguous and that the board has interpretive flexibility in that case.

[00:19:36] Speaker 03:
And that has not changed following Loper-Brite.

[00:19:41] Speaker 03:
And so the board interpreted the statute in Matter of the Cedro Zamorano.

[00:19:47] Speaker 03:
And that was just one case in a continuing long line of cases since 1961, where the board held that applications for relief are continuing.

[00:19:58] Speaker 03:
So since Matter of K in 1961, the board has held that applications for relief, such as cancellation of removal, are continuing.

[00:20:07] Speaker 03:
And the board interpreted that for the qualifying relative provision at issue here to mean at the time of the immigration judge's decision on the application.

[00:20:18] Speaker 03:
And that is, even post-Loper, that decision is still entitled to some deference, at least under Skidmore, because we have

[00:20:31] Speaker 03:
the agency's body of experience.

[00:20:33] Speaker 03:
And that's what we have all these cases holding that it is a continuing application that has the power to persuade.

[00:20:41] Speaker 03:
And even if there is no deference following Loper, the government's position is that the board's interpretation of the statute is the best reading.

[00:20:51] Speaker 03:
As the 11th Circuit held in Diaz-Ariano,

[00:20:57] Speaker 03:
It is the time of the immigration judge's decision on the application, which is what is relevant, because that is when you look at whether there is a qualifying relative.

[00:21:08] Speaker 02:
So is the government no longer insisting that, notwithstanding the death of Chevron, that there is still discretionary authority in the statute here?

[00:21:18] Speaker 02:
Are you relying on that or not?

[00:21:20] Speaker 03:
There is still discretionary authority in the statute, yes, Your Honor.

[00:21:26] Speaker 03:
That has not changed.

[00:21:27] Speaker 00:
You mean to interpret?

[00:21:29] Speaker 00:
To decide the issue before us, there's still discretion?

[00:21:33] Speaker 03:
Do you mean discretionary authority and granting cancellation of removal in the statute?

[00:21:39] Speaker 02:
I mean, if there is not deference in the way that we would understand deference in a chevron world, where in the statute would you identify sort of that capacious discretion that the agencies that relies on to act?

[00:21:55] Speaker 03:
In the government's brief, we point to 1103G2, which delegates authority to the agency.

[00:22:04] Speaker 01:
If that was the case, wouldn't we just be reinstating Chevron?

[00:22:09] Speaker 01:
It's a broad delegation of authority.

[00:22:11] Speaker 01:
That is a broad delegation.

[00:22:12] Speaker 01:
If that gives them authority to interpret and for us to provide deference,

[00:22:17] Speaker 01:
We might as well not be sitting here.

[00:22:20] Speaker 01:
I didn't get that argument.

[00:22:21] Speaker 03:
The difference I think here is that this is more of a process or a procedure where the agency is interpreting how to adjudicate these applications.

[00:22:32] Speaker 03:
And under Vermont Yankee, the agency can establish its own procedures in that way.

[00:22:38] Speaker 03:
And so because the statute is ambiguous, then the agency has this authority to carry out

[00:22:45] Speaker 03:
the procedure of when applications close and when the qualifying relative is established.

[00:22:53] Speaker 01:
It didn't seem that you addressed in your brief the really the basic argument that the petitioner is making here regarding the meaning of the word establishes.

[00:23:03] Speaker 01:
Do you disagree with their interpretation of that term and giving it basic

[00:23:08] Speaker 03:
Dictionary definitions your honor the government does disagree and also that I reading focusing on the word established is a bit too narrow to decide the best meaning of this statute as the court determined in its its since vacated decision in this case established also means convinced and the immigration judge is not convinced until the

[00:23:35] Speaker 03:
that he or she rules on the application.

[00:23:38] Speaker 03:
And establish, it doesn't say when the applicant must establish, it just says establish.

[00:23:46] Speaker 03:
So the focus simply on the word establish is not enough to give us the best reading of the statute.

[00:23:54] Speaker 03:
I would say that the agency's interpretation of the statute here, it looks at the cap on

[00:24:03] Speaker 03:
the grant of cancellation and it harmonized.

[00:24:06] Speaker 01:
What about this statute gives us any reason to think that Congress intended us to read it in conjunction with the cap?

[00:24:17] Speaker 03:
Part of statutory interpretation is to read the statutes as a whole and not to eliminate one provision of the statute.

[00:24:27] Speaker 01:
It makes sense in the sense that you can read it and understand it without going to the limit.

[00:24:34] Speaker 01:
I guess I just don't understand why the limit.

[00:24:36] Speaker 01:
I understand as a practical matter why the agency

[00:24:41] Speaker 01:
considers that statute, but I don't understand from an interpretive matter how it fits in.

[00:24:49] Speaker 03:
Well, I would go back to my earlier point about the long history of holding that these applications are continuous applications, and Congress has knew for years that the agency treated these as continuous applications and made no attempt to change that.

[00:25:06] Speaker 03:
Congress also has made no attempt since to raise the cap.

[00:25:10] Speaker 03:
from only $4,000 per year.

[00:25:14] Speaker 03:
So if you look at that, it shows that Congress has been OK with the agency's interpretation and application of this provision.

[00:25:26] Speaker 03:
And so it looks at the statutory scheme as a whole.

[00:25:29] Speaker 03:
And also, the regulations do not permit an immigration judge to grant an application for cancellation of removal once the statutory cap has been

[00:25:40] Speaker 03:
the regulations state that the immigration judge must reserve a decision at that time.

[00:25:47] Speaker 00:
Well, the issue about the word establishes seems that petitioner, to me, makes a pretty good point.

[00:25:55] Speaker 00:
He points out that establishes is different language from the other grounds.

[00:26:02] Speaker 00:
It occurred to me maybe that's to emphasize who has the burden of production and persuasion, but I'm curious what

[00:26:09] Speaker 00:
reason you can give for why the difference in the language in subparagraph or whatever D from the other provisions.

[00:26:20] Speaker 03:
If you read the statute, the first three provisions apply to petitioner.

[00:26:27] Speaker 03:
The petitioner has been or the applicant has been physically present

[00:26:32] Speaker 03:
The applicant has been a person of good moral character and the applicant has not been convicted.

[00:26:38] Speaker 03:
And then the last provision D discusses what the applicant must show in relation to a qualifying relative.

[00:26:47] Speaker 03:
So I think it would be difficult to phrase that last provision as

[00:26:56] Speaker 03:
has been because it refers to the qualifying relative and the hardship to the qualifying relative, not the applicant, him or herself.

[00:27:05] Speaker 00:
Is that the original language for that provision?

[00:27:09] Speaker 00:
Was it ever expressed otherwise?

[00:27:10] Speaker 00:
Did it ever use different language?

[00:27:13] Speaker 03:
Under the suspension of deportation statute, the applicant could establish hardship to him or herself as well.

[00:27:21] Speaker 03:
So it was worded slightly differently.

[00:27:24] Speaker 00:
Did it use establishes?

[00:27:27] Speaker 03:
I don't have that in front of me, Your Honor, the language of that provision.

[00:27:33] Speaker 00:
But the other language was not changed.

[00:27:36] Speaker 00:
The language for A, B, and C was not changed.

[00:27:38] Speaker 00:
But indeed, there was a change in language to introduce the words.

[00:27:41] Speaker 00:
I believe that's correct, Your Honor.

[00:27:44] Speaker 00:
And do you have an explanation for that?

[00:27:47] Speaker 03:
As I stated at that point, the applicant could show hardship to him or herself as well.

[00:27:54] Speaker 00:
To him or herself is all.

[00:27:56] Speaker 03:
And now it has been changed to the qualifying relative.

[00:28:02] Speaker 01:
Which of the provisions A, B, C, and D are continuing?

[00:28:07] Speaker 01:
Because you're just generally arguing that all of these, all of the requirements are continuing, but that's not really how it's been interpreted or how the agency interprets it, is it?

[00:28:18] Speaker 03:
The good moral character provision and the hardship

[00:28:22] Speaker 03:
provision are continuing.

[00:28:24] Speaker 01:
I believe that conviction is continuing too as well because... Okay, so all but A are continuing and does that make any sense in light of the fact that A and B both specifically refer to a 10-year period immediately preceding the date of the application?

[00:28:43] Speaker 01:
We're kind of all over the place, aren't we, when we're talking about continuing?

[00:28:48] Speaker 01:
Both A and B set the period of time as

[00:28:52] Speaker 01:
The relevant period of time is not less than 10 years immediately preceding the date of the application.

[00:28:57] Speaker 01:
B is you've been a person of good moral character during such period which is the 10 years preceding the application.

[00:29:05] Speaker 01:
And yet you're saying the agency doesn't interpret one of those as continuing and it interprets the other as continuing even though the statute specifically says

[00:29:15] Speaker 01:
identifies the period.

[00:29:16] Speaker 03:
I'm trying to look at my notes to verify on B, but... I think that's correct.

[00:29:21] Speaker 01:
I'm just saying it doesn't make a lot of sense.

[00:29:24] Speaker 01:
And your argument that all of this is continuing isn't how the agency has interpreted it.

[00:29:30] Speaker 03:
Well, the agency has squarely held that D is continuing.

[00:29:35] Speaker 01:
I'm talking about A, B, C, and D because your argument

[00:29:39] Speaker 01:
And why would, why?

[00:29:42] Speaker 01:
Why do we continue be moral character when it specifically identifies the period of time that is relevant?

[00:29:52] Speaker 03:
Your Honor, with all due respect, that is not the question at issue.

[00:29:56] Speaker 01:
I'm aware of that, but it is a question.

[00:29:59] Speaker 01:
You're asking us to interpret this statute that has been interpreted inconsistently by the agency and

[00:30:06] Speaker 01:
and it's essentially courts all over the place.

[00:30:09] Speaker 01:
And so, I mean, to try to come up with a decision about what D means when nobody's been consistent about even what A, B, and C mean in terms of the timing of the decision or what's relevant at what point, it's all over the place.

[00:30:26] Speaker 03:
I would say that the agency's interpretation is

[00:30:30] Speaker 03:
not all over the place.

[00:30:32] Speaker 03:
The agency has been consistent.

[00:30:34] Speaker 01:
What's the agency's interpretation of A and B?

[00:30:37] Speaker 01:
Does it interpret them consistently with the specific language of the statute?

[00:30:41] Speaker 03:
I don't know.

[00:30:43] Speaker 03:
I don't have in front of me how the agency has interpreted them together.

[00:30:49] Speaker 03:
But the agency has consistently interpreted the provision at issue.

[00:30:55] Speaker 02:
And are you talking about Isidro Zamorano?

[00:30:57] Speaker 02:
That's the case that you're... And Batista Gomez.

[00:31:00] Speaker 00:
as well.

[00:31:02] Speaker 00:
Let me ask you about A then.

[00:31:04] Speaker 00:
We're talking about 2229B, subsection B, paragraph 1, subparagraphs A and B. If, say, evidence came to light of bad moral character after the proceeding, but in the same sort of setting as here,

[00:31:29] Speaker 00:
Could the board then deny cancellation of removal because of this new evidence?

[00:31:35] Speaker 00:
If the petitioner left the country for a while during that period and came back, could they deny cancellation of removal because subparagraph A no longer is satisfied?

[00:31:48] Speaker 00:
Do you know?

[00:31:50] Speaker 03:
I do not know that, Your Honor.

[00:31:52] Speaker 03:
I do know that up until the immigration judge's final decision,

[00:31:57] Speaker 03:
the immigration judge may consider intervening criminal history, for example.

[00:32:04] Speaker 03:
That would be something that the immigration judge could consider.

[00:32:08] Speaker 02:
And it would be a motion of the government to reopen the record?

[00:32:12] Speaker 03:
I don't believe that it would require a motion to reopen the record.

[00:32:18] Speaker 03:
It could possibly be a motion to reopen the record.

[00:32:23] Speaker 03:
The immigration judge

[00:32:24] Speaker 03:
can also recalendar proceedings and hold additional evidentiary hearings.

[00:32:30] Speaker 03:
But these are facts that could be considered prior to an immigration judge's decision on the case.

[00:32:38] Speaker 03:
And that is why the agency's interpretation is the best reading, because we do know that things change, that between

[00:32:48] Speaker 03:
a final hearing and a decision that children get older, criminal history occurs, qualifying relatives may pass away.

[00:32:57] Speaker 00:
The question is whether the board can take into consideration those changes.

[00:33:02] Speaker 00:
And you said we should just stick to subparagraph D.

[00:33:12] Speaker 00:
if it's treated differently from A, subparagraphs A, B, and C, that's important to us.

[00:33:18] Speaker 00:
And you're saying you don't know whether they could reconsider if the alien, the petitioner, left the country or did something establishing bad moral character in the interim.

[00:33:32] Speaker 00:
That's why we're asking this question.

[00:33:33] Speaker 00:
I think that's why I'm interested in the answer, yeah.

[00:33:36] Speaker 00:
Okay, thank you.

[00:33:37] Speaker 03:
Thank you, Your Honor.

[00:33:44] Speaker 00:
You've got a hard 30 seconds.

[00:33:49] Speaker 04:
I'm stopping you mid-set.

[00:33:53] Speaker 04:
Thank you, Your Honor.

[00:33:54] Speaker 04:
So let me start from the end.

[00:33:55] Speaker 04:
I think those are the reasons why the agency's interpretation should not be given skin more deference.

[00:34:01] Speaker 04:
The statutory language is clear.

[00:34:02] Speaker 04:
A, B, talk about a particular period.

[00:34:05] Speaker 04:
If you look at Isidro's memorandum, page 831,

[00:34:09] Speaker 04:
agency does consider A, does consider B continuing, that's the same reasons it gives to consider D continuing.

[00:34:16] Speaker 04:
That's not a recent interpretation of the statute.

[00:34:19] Speaker 04:
That is why it should not be given death threats.

[00:34:22] Speaker 04:
Second, if I may just posit an hypothetical.

[00:34:26] Speaker 04:
If an event happened... Oh, you're over.

[00:34:29] Speaker 00:
Yeah, sorry.

[00:34:31] Speaker 04:
If I may ask that this court grant a petition for review and remain to the BIA with instructions.

[00:34:39] Speaker 04:
Thank you.

[00:34:43] Speaker 00:
Thank you, counsel.

[00:34:45] Speaker 00:
The case is submitted and counsel excused.