[00:00:00] Speaker 00: Next, number 20-5079. [00:00:03] Speaker 00: Selvin Leonardi Solis Meza, a balance, versus Tracy Renaud, senior official performing the duties of the director, United States Citizenship and Immigration Services. [00:00:13] Speaker 00: Mr. Forney, for the balance. [00:00:15] Speaker 00: Ms. [00:00:15] Speaker 00: Laurie Kurtz, for the appellee. [00:00:23] Speaker 03: Good morning, Mr. Forney. [00:00:26] Speaker 05: Good morning, Your Honor, thank you and may it please the court, Charfee Forney, for appellant, Sullivan Solis Meza. [00:00:34] Speaker 05: The district court below erred in dismissing Mr. Meza's complaint for lack of jurisdiction. [00:00:40] Speaker 05: Neither the Immigration and Nationality Act is amended nor the Administrative Procedure Act. [00:00:46] Speaker 05: include judicial review of Mr. Metz's legal challenge to USCIS's error in rejecting his adjustment of status application to pursue permanent resident status. [00:00:59] Speaker 05: The issue is whether USCIS correctly applied the regulation governing adjustment status applications, which involves a pure question of law over which the district court had jurisdiction. [00:01:11] Speaker 05: The application of law to the facts presents a question of law for the court to decide. [00:01:16] Speaker 05: And the district court improperly dismissed Mr. Meza's claims for lack of jurisdiction. [00:01:24] Speaker 05: Now the district court's decision turned primarily on a mistake of presupposing that removal proceedings provided Mr. Meza with further relief. [00:01:35] Speaker 05: That's incorrect. [00:01:39] Speaker 05: Pre-subposition is primarily incorrect because USCIS's action in dismissing Mr. Meza's complaint for the agency's lack of jurisdiction was a final agency action. [00:01:52] Speaker 05: It's a final agency action for which there's no further relief either through an administrative appeal at USCIS, nor is there any other form of relief that Mr. Meza could pursue in immigration court. [00:02:07] Speaker 05: Therefore, the agency's action is a consummation of the agency's decision-making process from which legal consequences flow. [00:02:17] Speaker 05: As the court can see from the agency's decision on the face of it, USCIS decision is a consummation of its decision-making process. [00:02:26] Speaker 05: It came to a conclusion and it rejected Mr. Meza's application. [00:02:31] Speaker 05: There are certainly legal consequences that flow from this. [00:02:33] Speaker 05: It determines Mr. Mass's rights, at least with respect to his pursuit of permanent resident status based on his U.S. [00:02:42] Speaker 05: citizen spouse's petition for him as an immediate relative. [00:02:47] Speaker 05: Because U.S. [00:02:48] Speaker 02: citizens... I'm sorry, finish your sentence. [00:02:51] Speaker ?: Sorry. [00:02:52] Speaker 05: But because USC has dismissed this application, there's legal consequences at flow. [00:02:57] Speaker 05: Namely, he's not able to pursue permanent residence status under the statute, and nor is he able to obtain work authorization. [00:03:06] Speaker 05: And he cannot remain here, at least lawfully, with his US citizen spouse and children. [00:03:15] Speaker 02: So much of the debate here seems to turn on [00:03:19] Speaker 02: whether he's an arriving alien or someone who is admitted without authority. [00:03:24] Speaker 02: And you focus on the notice to appear and the box that is checked at the top of that this is arriving alien. [00:03:33] Speaker 02: Correct. [00:03:33] Speaker 02: But once an immigration judge has issued a removal order, isn't it the immigration judge's decision that we should look to? [00:03:41] Speaker 02: Doesn't that sort of overtake whatever the paperwork was before? [00:03:44] Speaker 02: And we look at the immigration judge's decision to determine whether the removal order was based on his status as an arriving alien or as somebody who had entered without authority. [00:03:58] Speaker 05: Ordinarily, that would be the case. [00:04:00] Speaker 05: But there's an absentia removal order here. [00:04:03] Speaker 05: I mean, I think the government does correctly point out, it does not necessarily get into the details of that point. [00:04:09] Speaker 02: No, but there still is a removal order, and it seems to me that is now, whatever the paperwork said before, that is now the relevant basis for determining his status, right? [00:04:21] Speaker 05: That could be to the extent that the removal order states that [00:04:26] Speaker 05: it's based on the charging document they noticed to appear. [00:04:29] Speaker 05: I mean, that's what legally initiates the removal. [00:04:34] Speaker 02: But again, we're talking about what the immigration judge did and what the immigration judge may have incorporated something, but it's still a focus should be the immigration judge's decision. [00:04:45] Speaker 05: If the immigration judge issued detailed findings, that may be the case. [00:04:48] Speaker 05: He did not just simply adopted the government's. [00:04:53] Speaker 02: Is there some case that says, based on the length or detail of the immigration judge's decision, whether that is the operative focus of an inquiry to determine the basis on which he was ordered removed? [00:05:09] Speaker 05: Well, there's a Ninth Circuit case, and we cited it in our [00:05:12] Speaker 05: brief and I'm sorry I can't remember off the top of my head it's in our opening brief. [00:05:16] Speaker 05: The Ninth Circuit accepts a notice to appear as functionally equivalent to a complaint in a civil proceeding such that the statements in that notice to appear are construed against the government because they're admissions and [00:05:34] Speaker 05: The only thing I can say on your honor's point is that the notice to appear is legally operative in that it initiates removal proceedings and forms the basis of those proceedings because based on how the government charges the foreign national determines how the proceedings go forward structures that forms of relief that are available. [00:05:57] Speaker 02: Okay, but once so is there any way that we could determine his status without [00:06:03] Speaker 02: also looking at the immigration judge's removal decision? [00:06:08] Speaker 02: We'd have to look at them both. [00:06:10] Speaker 02: Would you agree with that? [00:06:11] Speaker 05: I don't think you'd have to look at them both, because again, the immigration judge's decision does not have detailed findings. [00:06:17] Speaker 02: Right. [00:06:18] Speaker 02: But in another case, where say it's more detailed, if the immigration judge's decision were explicit, that someone was ordered removed based not on their status as an arriving alien, but instead as someone who was [00:06:32] Speaker 02: had entered without authority, then that would control over the complaint, as you called it, correct? [00:06:42] Speaker 02: If it were explicit, I know it's you. [00:06:44] Speaker 05: Yeah, it's not explicit in this case, but given your honor's hypothetical, I believe in that type of situation, of course, it would depend on facts and circumstances. [00:06:53] Speaker 05: Well, I suppose, take your honor's hypothetical at face value that there's detailed factual findings that the immigration judge made. [00:07:02] Speaker 05: that would likely be determinative, but it can't be in this case, because that's not what happened. [00:07:08] Speaker 02: Given that you've agreed that even in this case, we have to also interpret and analyze the removal decision. [00:07:16] Speaker 02: And either if we thought it read, if we thought that the immigration judge had ordered him removed based as not as an arriving alien, but as someone who had entered without authority, then we would have to, [00:07:31] Speaker 02: disagree with that determination for you to have jurisdiction, for you to establish jurisdiction in the USCIS, wouldn't we? [00:07:42] Speaker 02: If we would, I'm not saying how we would at all. [00:07:44] Speaker 02: I'm just trying to sort out the decisional tree here. [00:07:47] Speaker 05: I understand. [00:07:48] Speaker 05: I guess it's difficult to answer your question directly without acknowledging several perhaps suppressed premises in your question. [00:07:59] Speaker 05: And so let me just say that [00:08:01] Speaker 02: Your question we go through the premises actually would like to just I realize what premises I put in there. [00:08:05] Speaker 02: I'm saying is, if we do. [00:08:07] Speaker 02: Well, your honor, we that he was not determined as an arriving alien, and then to either on your claim for jurisdiction for the USC is and obviously the ultimate merit. [00:08:19] Speaker 02: We would have to disagree with the immigration judges removal order. [00:08:24] Speaker 05: Well, certainly if the court in these proceedings would have to do something with the immigration judge's order, it would have had to have gone up through the channeling provisions on a petition for review. [00:08:40] Speaker 05: But that can't be the case here because again, we're not challenging the removal order and it doesn't go into detailed factual findings. [00:08:47] Speaker 03: Well, let me let me ask you about let me let me try to get a judge. [00:08:51] Speaker 03: Well, that's question a different way and your statement that quote you're not challenging the removal order leads me to ask you to focus specifically on the government's a 1252 a five argument. [00:09:07] Speaker 03: They say, you both agree, you agree with the government that that bar is indirect challenges also. [00:09:14] Speaker 03: And you say this is not an indirect challenge because as you just said, you're only challenging the USCIS argument and rejecting the adjustment application, right? [00:09:28] Speaker 03: That's your argument. [00:09:29] Speaker 03: But the government responds that this is still an indirect challenge on the removal order, because if you're successful in removing, in challenging that, the USCIS argument, [00:09:46] Speaker 03: If you succeed in that, it will result in validating the removal. [00:09:52] Speaker 03: So the government says it is an indirect challenge. [00:09:56] Speaker 03: And I didn't see a response to that argument in your reply brief. [00:10:01] Speaker 05: Well, I apologize if there wasn't, but the obvious response, and I believe I put that in my reply brief, but the obvious response is that the regulations provide for this form of relief to be channeled through CIS. [00:10:16] Speaker 05: So if the government's argument is taken [00:10:19] Speaker 05: at face value, it simply negates the possibility of that happening because it gives with the right hand regulation. [00:10:28] Speaker 03: That may be right, but I'm asking you the question about why its absence in your reply brief leads at least me to ask whether or not you haven't forfeited this argument. [00:10:41] Speaker 05: No, the argument, okay, what I just stated, Your Honor, here is in our reply brief, is that it can't be an indirect challenge to... No, you, what you, but no, I, well, could you, I just didn't see in the reply brief where you said, no, the government is wrong. [00:10:58] Speaker 03: Yes, it's true, we're challenging this CIS decision, but it's nonetheless not an indirect challenge. [00:11:07] Speaker 03: And I didn't see where you gave us that argument. [00:11:15] Speaker 03: You do say that you're challenging the USCIS decision on whether or not your client is an arriving alien, but you never say, the government said, well, that's an indirect challenge and I didn't see a response to that. [00:11:31] Speaker 03: That's my only question. [00:11:33] Speaker 05: Okay. [00:11:33] Speaker 05: Well, I'm looking at our reply brief and I believe it's addressed on [00:11:42] Speaker 05: I believe it's addressed on pages four and five. [00:11:47] Speaker 03: What specifically on four and five? [00:12:25] Speaker 02: I think it's is it when you're responding to Martinez versus Napolitano which was their indirect challenge case that they relied on. [00:12:32] Speaker 05: Yeah, I mean I distinguish those cases I'm sorry maybe I could have been more direct but in distinguishing those cases. [00:12:38] Speaker 05: Those decisions involved people who were going directly after removal were saying it was defective in some manner, either procedurally or because it didn't have a legal basis. [00:12:50] Speaker 05: But they didn't have a situation where the government's own regulation says if, okay, and I know we have this disagreement about whether he's an arriving alien. [00:13:00] Speaker 05: If he's an arriving alien, use the regulations. [00:13:02] Speaker 05: You go to CIS, you cannot go to the immigration court. [00:13:06] Speaker 05: you have to go to CIS. [00:13:08] Speaker 05: And if the government is telling you, you have to go to CIS, it can't then later say, if you're going to CIS and you're seeking a form of relief that is available to you, whether you're in removal proceedings or not, and if you are in removal proceedings and you're arriving alien, you have to go to CIS. [00:13:25] Speaker 05: It can't then at the same time say, well, if you're challenging CIS's decision that you were required to go and seek, [00:13:32] Speaker 05: That is an indirect challenge to a removal order. [00:13:36] Speaker 05: If that's the government's position, then in all cases, they would foreclose judicial review of that channeling mechanism that they forced everyone to go through to CIS to seek adjustment of status. [00:13:50] Speaker 05: It makes no sense. [00:13:51] Speaker 05: It's a self-defeating proposition. [00:13:54] Speaker 05: So I'm sorry, maybe I could have been more clear about that, but I think that position does come through in our reply brief. [00:14:00] Speaker 05: The government's position is self-contradicting. [00:14:04] Speaker 05: That just can't be the case. [00:14:07] Speaker 05: Otherwise, there would never be judicial review of a decision by CIS of an arriving alien removal proceedings. [00:14:15] Speaker 05: But the CIS can't, and I believe KUKANA stands for this proposition generally, is the regulation can't [00:14:24] Speaker 05: be the mechanism by which the court is stripped of jurisdiction. [00:14:28] Speaker 05: It has to be statutory basis. [00:14:31] Speaker 05: So, I mean, that's the reason why the government's position just can't stand. [00:14:37] Speaker 05: I mean, I would say that our position ultimately comes down to that. [00:14:41] Speaker 02: Can I just ask a bottom line question? [00:14:45] Speaker 02: If you were granted adjustment of status, what happens to the removal order? [00:14:54] Speaker 05: Well, because adjustment of status is a form of relief that again is permitted by the regulation that you have to go through CIS, then his status is adjusted, he becomes a permanent resident. [00:15:06] Speaker 02: So the removal order by virtue of the grant of adjustment of status is initiated or? [00:15:14] Speaker 05: Well, he then has a relief from removal. [00:15:16] Speaker 05: So it's [00:15:19] Speaker 02: But does the order of removal still stand? [00:15:21] Speaker 02: And if they try to take him out, he has this as a defense, or does it actually sort of negate the removal order? [00:15:27] Speaker 05: Well, he's the lawful permanent resident at that point, so they wouldn't have a basis to remove him. [00:15:34] Speaker 02: Because he need to do something to have the removal, because you have to seek cancellation of removal. [00:15:39] Speaker 02: Is he at risk of being removable and the adjustment of status as an affirmative defense, or does as a matter of law, does the grant of adjustment of status nullify the removal order so they couldn't even try to remove him if they wanted to? [00:15:53] Speaker 02: Say someone, you know, something doesn't get. [00:15:54] Speaker 05: Sure. [00:15:55] Speaker 02: Right-handed and talk to the left-handed in the computer, he's gone abroad for a trip and tries to reenter the country or something like that. [00:16:02] Speaker 02: It shows order of removal. [00:16:05] Speaker 05: Well, if CIS would grant adjustment of status, I mean, just, you know, they issue a permanent resident card. [00:16:12] Speaker 05: So he would travel on that and come back, I suppose, you know, if the customer's border protection center where you have a removal order here, it wouldn't be legally operative because again, adjustment status is a form of relief for removal that he is under the regulation authorized to pursue through CIS and CIS can grant that and grant that relief from removal. [00:16:36] Speaker 04: I take it back to the removal order. [00:16:40] Speaker 04: You said that the grounds of decision aren't clear, there are no findings and such, but the immigration judge specifically credited the factual allegations of the government in the notice to appear. [00:17:02] Speaker 04: And if you look at the notice to appear in its entirety, the arriving alien box is checked. [00:17:10] Speaker 04: That's true. [00:17:12] Speaker 04: But the substance of the document makes crystal clear the government's view that Mr. Mesa came in the country without being admitted or paroled, as that in the numbered allegations and then in the formal charge that follows. [00:17:34] Speaker 05: Right, correct. [00:17:35] Speaker 05: I will note that the box that's checked by the immigration judge does say that the documentary evidence establishes the truth of the factual allegations. [00:17:45] Speaker 05: The second sentence says, I find removability established as charged. [00:17:50] Speaker 05: So it's also referenced to how he was charged. [00:17:55] Speaker 05: And again, that's legally significant because the charge initiates removal proceedings, structures the proceedings, and determines what forms of relief [00:18:04] Speaker 04: are available. [00:18:05] Speaker 04: And on the face of the notice to appear, the charging clause appears to be not box number one that's checked at the top of the form, but the paragraph after the specific allegations, which says on the basis of the foregoing, it is charged that you are subject to removal because you're present in the country without being admitted or paroled. [00:18:37] Speaker 05: That's true. [00:18:38] Speaker 05: Although if you read Board of Immigration Appeals Decisions, which we set in our brief, the term of our charge also means what box is checked at the top. [00:18:52] Speaker 05: It's how they're charging for an action. [00:18:55] Speaker 05: So I do admit you have to because it is a form document that the immigration judge checked. [00:19:04] Speaker 05: There are no detailed factual findings. [00:19:07] Speaker 05: We're left with a checked box. [00:19:09] Speaker 04: So suppose we agree with you that all of that makes the administrative record with regard to removal ambiguous. [00:19:28] Speaker 04: Then it's still the case that [00:19:32] Speaker 04: the second administrative order, the one directly under review, which is the denial of status by USCIS, the jurisdictional question before USCIS turns on answering that hypothetically ambiguous question. [00:19:52] Speaker 04: And the USCIS officer concluded that what was decided in the removal proceeding [00:20:02] Speaker 04: was that Mesa was not admitted, not paroled, not an arriving alien. [00:20:12] Speaker 05: Well, that's, I don't think what CIS officer did. [00:20:18] Speaker 04: He went beyond the charging document and the- That's the basis of his finding that he lacked jurisdiction. [00:20:27] Speaker 05: He went beyond the charging document in the immigration judge's decision. [00:20:31] Speaker 05: I went into other documents, specifically documenting the arrest and the detention at issue. [00:20:42] Speaker 04: But what he was doing was trying to figure out what facts were found in a removal proceeding. [00:20:54] Speaker 04: which seems to just take you right into at least B9, if not A5, 1252B9. [00:21:06] Speaker 05: Okay, I didn't expect that conclusion from, I didn't know we were going into the jurisdiction stripping component again. [00:21:13] Speaker 05: That I have to disagree with completely because, again, it's USCIS decision that's subject to review. [00:21:20] Speaker 05: Now, the court may agree or disagree with the decision that CIS made, but there certainly is jurisdiction review because, again, the regulations channel everything through CIS. [00:21:32] Speaker 05: And whether CIS correctly applied the regulation to the charging document is a question of law. [00:21:41] Speaker 05: And that doesn't have to do with any attack on a removal order. [00:21:46] Speaker 05: It's simply Mr. Meza saying, well, you told me it's charges of arriving alien. [00:21:50] Speaker 05: You told me I have to go through CIS to seek adjustment status. [00:21:53] Speaker 05: I'm doing that. [00:21:55] Speaker 05: I'm going to you. [00:21:56] Speaker 05: But whether CIS did that correctly or not is a question of law. [00:21:59] Speaker 05: And it has nothing to do with his removal order being attacked. [00:22:03] Speaker 05: He's saying, I have a form of relief available to me that you've made available to me through the regulation. [00:22:09] Speaker 05: And that's what I pursued. [00:22:10] Speaker 05: And it's just simply a question of laws to whether CIS applied the regulation correctly. [00:22:15] Speaker ?: OK. [00:22:16] Speaker 05: Thank you. [00:22:17] Speaker 05: Thank you. [00:22:18] Speaker 03: All right. [00:22:18] Speaker 03: Unless Judge Mulady, you okay? [00:22:20] Speaker 03: Do you have any other questions? [00:22:22] Speaker 02: Not right now. [00:22:23] Speaker 03: Okay. [00:22:24] Speaker 03: We'll give you a minute or two, Mr. Forney, but I think we'll hear from the government now. [00:22:31] Speaker 01: Thank you. [00:22:32] Speaker 01: May it please the court, Mary Larikas on behalf of the United States. [00:22:35] Speaker 01: This court should affirm the dismissal of the district court for three primary reasons. [00:22:40] Speaker 01: First, because section 1252 bars plaintiff's claim, [00:22:44] Speaker 01: Second, because plaintiff has not exhausted his administrative remedies available to him in immigration court. [00:22:50] Speaker 01: And third, that plaintiff's APA claim fails on the merits because USCIS properly determined that she is not an arriving alien. [00:23:00] Speaker 01: So I'd like to turn first to my third point, actually. [00:23:03] Speaker 03: Are those all independent? [00:23:05] Speaker 03: Those are all independent reasons. [00:23:08] Speaker 03: You're not suggesting we need to decide them all, are you? [00:23:12] Speaker 01: No, Your Honor, you should not have to decide that. [00:23:16] Speaker 01: You should only have to decide the jurisdictional question. [00:23:18] Speaker 01: So there are two ways. [00:23:20] Speaker 03: Why don't you start with that? [00:23:22] Speaker 01: Sure, Your Honor. [00:23:23] Speaker 01: So there are two ways that the court could address this jurisdictional issue. [00:23:28] Speaker 01: The way the government proposes that the court address the jurisdictional issue is by first looking at what plaintiff is really asking for here and then what USCIS did. [00:23:39] Speaker 01: to determine that plaintiff first should have gone to immigration court as Congress clearly intended, seen if his claim is right, that he could, that he cannot adjust status in immigration court. [00:23:54] Speaker 01: And then and only then come back to the district court claiming that he has exhausted his administrative remedies and gone through the administrative process channeling provisions. [00:24:06] Speaker 03: He says he's an arriving alien. [00:24:09] Speaker 03: doesn't have to do. [00:24:10] Speaker 01: Yes. [00:24:11] Speaker 01: Yes, Your Honor, he does. [00:24:12] Speaker 01: However, USCIS has made a finding that he is not an arriving alien. [00:24:17] Speaker 01: And Congress clearly intended that when there is a challenge that can be brought in immigration court, that that challenge should be brought there first. [00:24:26] Speaker 01: Now, what is undisputed here is that plaintiffs can move to reopen his immigration proceeding [00:24:33] Speaker 01: and attempt to adjust status in front of an immigration court. [00:24:36] Speaker 01: Isn't it too late for that? [00:24:38] Speaker 03: Isn't it too late for that? [00:24:39] Speaker 01: No, Your Honor. [00:24:40] Speaker 01: No, Your Honor, it is not. [00:24:41] Speaker 01: Under the code provision that plaintiffs cited, it is too late. [00:24:45] Speaker 01: However, there are other code provisions that allow for motions to reopen out of time, and one of which is the CFR provision stated in our brief, which is 1003.23B1, which allows for Sue Esponte motions to reopen [00:25:02] Speaker 01: based on other circumstances. [00:25:05] Speaker 01: So plaintiffs can move to reopen his or her proceedings. [00:25:09] Speaker 01: Wait, what regulation? [00:25:10] Speaker 01: Can you tell me that regulation again? [00:25:14] Speaker 01: Yes, Your Honor, that's 8 CFR 1003.23B1. [00:25:19] Speaker 01: And that essentially doesn't meet those criteria. [00:25:21] Speaker 01: He doesn't meet those criteria. [00:25:27] Speaker 01: those criteria he does meet. [00:25:28] Speaker 01: That provides for a Suez-Sponte motion to reopen. [00:25:32] Speaker 01: It's a little bit of a misnomer, Your Honor. [00:25:35] Speaker 02: Can you guys amend this regulation just last December, just a few months ago, to sharply limit Suez-Sponte reopenings? [00:25:46] Speaker 02: It's now prominent vibe? [00:25:50] Speaker 01: No, Your Honor. [00:25:51] Speaker 01: I think the regulation that allows Suez-Sponte reopening still [00:25:56] Speaker 01: provides the opportunity there for Sue Espante reopening. [00:25:59] Speaker 01: Now, whether... Hang on, hang on. [00:26:01] Speaker 02: I want to be crystal clear on this. [00:26:03] Speaker 02: So the government's position is that the amendment last December, which is now Roman at five, that exact same regulation, doesn't bar Sue Espante reopening in his case. [00:26:18] Speaker 01: No, Your Honor, I do not believe so. [00:26:19] Speaker 01: However, I am not- I'm sorry, no, you don't believe. [00:26:22] Speaker 01: I'm going to use Chris. [00:26:23] Speaker 01: Your Honor, personally, I would have to look at the text of that regulation, and I have not looked at the text of that. [00:26:31] Speaker 02: You haven't looked at the text of the rest of this regulation that you're saying could rely on for him to reopen? [00:26:37] Speaker 01: Your Honor, I was unaware that it had been amended such that it says that there would be an argument that he's precluded from even moving [00:26:47] Speaker 01: for re-opening. [00:26:48] Speaker 01: You can probably make it easy, Your Honor. [00:26:50] Speaker 02: Go ahead, please finish your sentence, sorry. [00:26:52] Speaker 01: Oh, Your Honor, I'm more than happy to fully brief that for Your Honor, but unless that part of the regulation says that he cannot apply, that he cannot even seek a motion to reopen, then the government's argument stands. [00:27:07] Speaker 02: Well, it says, sui espante reopening cannot be granted unless the ground for reopening [00:27:15] Speaker 02: would in itself vitiate all basis for removal. [00:27:19] Speaker 02: Do you think that would in this case? [00:27:22] Speaker 02: I'm sorry, Your Honor, I didn't hear the last part would. [00:27:24] Speaker 02: The basis on which he seeks reopening has to be something so powerful, maybe it does apply here, that it would vitiate the basis for removal completely. [00:27:40] Speaker 01: Oh, yes, your honor, absolutely here, because here he would be applying for adjustment of status based on his marriage to a U.S. [00:27:46] Speaker 01: citizen, which would completely oblige his final order of removal, and he would no longer be able to be removed from the state. [00:27:53] Speaker 02: Got it, okay, so it vitiates all grounds, this is the text of the regulation, vitiates all grounds of removability applicable to the alien. [00:28:03] Speaker 01: Yes, your honor, if he were granted adjustment of status, then he would no longer be [00:28:09] Speaker 01: removable from the United States. [00:28:10] Speaker 01: So that would be a reason that would initiate all grounds of removability from the United States. [00:28:15] Speaker 02: And even even easier, as I'm sure you know, because it hasn't been amended is Roman at four right before that one says a jointly filed motions to reopen aren't subject to any time limits. [00:28:27] Speaker 02: So given your position that the government would join with him in a motion to reopen, so that this would be about time limits. [00:28:38] Speaker 01: Your honor, I can't speak for the prosecutorial discretion of ICE that falls under their prosecutorial discretion. [00:28:45] Speaker 01: However, the point of the A5 and B9 argument here is that that avenue hasn't even been attempted. [00:28:52] Speaker 01: And that's what Congress was getting at with A5 and B9, and even the APA, the purpose behind the exhaustion of remedies, is that if there is an avenue available to bring a certain legal challenge, and that avenue is immigration court, [00:29:07] Speaker 01: that you should bring that. [00:29:09] Speaker 02: I understand that argument. [00:29:10] Speaker 02: I do get it. [00:29:11] Speaker 02: And it's very soundly presented in your brief. [00:29:14] Speaker 02: What was just difficult for me was that I didn't see any answer from the government to his argument that I can't do it. [00:29:22] Speaker 02: And there's no, as you said, you haven't addressed or you're not aware of the amendment in December, 2020. [00:29:29] Speaker 02: It sounds like maybe you could get back to us and let us know if you think that would apply to his case. [00:29:36] Speaker 01: Yes, I absolutely can, and I can brief that and I apologize. [00:29:41] Speaker 02: If it doesn't apply, I'm not sure how he deals with the ones. [00:29:47] Speaker 01: Yes, Your Honor, I think you're correct on that point. [00:29:50] Speaker 01: But the response to the government, the plaintiff's argument that he could not, was not based on [00:29:57] Speaker 01: the fact that there was a new amendment. [00:29:59] Speaker 01: It was based on the fact that he said he couldn't file it out of time. [00:30:02] Speaker 01: And the government responded by citing the regulation that you just read, Your Honor, which was that these two Espante reopenings do allow for him to file them past that ordinary 30-day motion reopen period. [00:30:14] Speaker 01: So the government proposes that the court look at where plaintiffs could have gone to bring this challenge first, where the purpose of this action is to shift jurisdiction [00:30:26] Speaker 01: from the tribunal that entered his removal order in order to render his removal order ineffective. [00:30:33] Speaker 01: Section A5 and B9 clearly apply. [00:30:36] Speaker 01: And the government is not proposing that plaintiffs just bounce between USCIS and immigration court constantly and never have this issue decided. [00:30:47] Speaker 01: The government is merely positing that plaintiffs should have gone to immigration court first. [00:30:52] Speaker 01: And immigration court, [00:30:54] Speaker 01: had said the opposite of USCIS that, well, he is an arriving alien, USCIS has jurisdiction, then we might have a case here to decide whether A5 and B9 apply. [00:31:05] Speaker 01: But here where plaintiff hasn't even gone to immigration court to have that legal issue decided, he hasn't even attempted it. [00:31:11] Speaker 01: And USCIS has already found. [00:31:14] Speaker 01: Please, I'm sorry. [00:31:16] Speaker 02: The time delay has not yet. [00:31:18] Speaker 02: Absolutely, Your Honor. [00:31:19] Speaker 02: Did you want to finish your sentence on holidays? [00:31:22] Speaker 01: No, Your Honor, I'd like to hear what your question is. [00:31:26] Speaker 02: You had mentioned jurisdiction out of the box, 1252. [00:31:30] Speaker 02: And as you know, the Supreme Court has a cert petition pending before it right now that addressed the 1251, sorry, 1252 A, B, [00:31:47] Speaker 02: Sorry, A2B ground for a jurisdictional bar on which there appears to be a circuit conflict. [00:31:59] Speaker 02: Is it the government's position, or does it have a view on whether we should hold this case to see what the Supreme Court says about jurisdiction? [00:32:07] Speaker 02: No, Your Honor. [00:32:09] Speaker 01: The government believes that the court should follow the majority of circuit courts, and here plaintiffs and I, the government agree that [00:32:17] Speaker 01: jurisdiction is not stripped in this case because USCIS. [00:32:21] Speaker 02: I understand your merits argument there, but there is a circuit conflict. [00:32:28] Speaker 02: And so there is your efficiency. [00:32:30] Speaker 02: I didn't know that the government usually ask courts to weigh in when the petition was pending on a circuit conflict rather than wait and let the Supreme Court resolve it. [00:32:41] Speaker 01: Well, Your Honor, here, the majority of the circuit courts have found, as we stated in our supplemental briefing, that jurisdiction isn't stripped under A2BI here. [00:32:51] Speaker 01: And in addition to that, there are other grounds for dismissal. [00:32:55] Speaker 01: And because there are other grounds for dismissal here, we believe it would be judicially appropriate to take those grounds up and decide those grounds. [00:33:04] Speaker 01: And then the court doesn't have to reach the A2BI issue itself. [00:33:09] Speaker 04: If we agree with you on B9 or A5, those are alternative jurisdictional grounds for dismissal. [00:33:20] Speaker 04: Clearly, we don't need to reach the A2B ground, but we don't really have the luxury of ruling on [00:33:35] Speaker 04: final agency action or the merits, skipping over A to B to get to final agency action or the merits, right? [00:33:42] Speaker 04: Because then we have a steel coat problem, right? [00:33:44] Speaker 04: We have to decide jurisdictional grounds before merits ones, right? [00:33:50] Speaker 01: Yes, your honor. [00:33:52] Speaker 01: So the alternative way that this court could decide this issue, first, the way the government stated that he had another avenue to go to, he didn't go A5 and B9 apply. [00:34:02] Speaker 01: The alternative way to do it is the way the Second Circuit did in Singh, where the almost exactly the same issue was presented. [00:34:10] Speaker 01: So in Singh, which is cited in the government's brief, the alien went to USCIS to try to adjust status. [00:34:17] Speaker 01: USCIS said, we don't have jurisdiction because you have a final order of removal. [00:34:21] Speaker 01: The alien said, well, yes, you do have jurisdiction. [00:34:25] Speaker 01: And what the Second Circuit did is the Second Circuit actually went to his claim that USCIS did have jurisdiction. [00:34:33] Speaker 01: found that USAIS did not have jurisdiction and then determined that A5 and B9 applied. [00:34:40] Speaker 01: So the court did look at the underlying merits of the claim in order to determine whether A5 and B9 applied. [00:34:49] Speaker 01: So first and foremost, the government would say that the court should just look at what plaintiff is claiming, look at the fact that he's trying to invalidate his removal order, look at the fact that USCIS already found that he wasn't an arriving alien, and the fact that he could bring it in immigration court and at least have that issue tried first there means that A5 and D9 apply. [00:35:11] Speaker 01: But alternatively, the court could do it the way the Second Circuit did, which was to look at that claim [00:35:18] Speaker 01: that plaintiff made whether USCIS had jurisdiction. [00:35:24] Speaker 01: Find that USCIS did indeed, did not have jurisdiction. [00:35:29] Speaker 01: And then find, well, clearly you have to go to immigration court, A5 and B9 apply. [00:35:34] Speaker 01: You have to go there first and you didn't and therefore jurisdiction is barred. [00:35:38] Speaker 01: So the court could do it one or two ways. [00:35:40] Speaker 01: So when we turn to the approach that Singh took, we do have to look at plaintiff's claim that he is an arriving alien. [00:35:47] Speaker 01: And what plaintiff misses here in his brief and in his oral argument is that the highly differential standard review from State Farm clearly applies. [00:35:56] Speaker 01: We're looking at whether USCIS applied the right standards, which plaintiff says that they did, and then look to whether USCIS considered the facts and made a reasonable conclusion. [00:36:11] Speaker 01: And here USCIS clearly did for the reasons that [00:36:16] Speaker 01: multiple judges just stated. [00:36:20] Speaker 01: First USCIS looked at the notice to appear. [00:36:24] Speaker 01: They noted that at the top of the notice to appear, there's a box that is checked. [00:36:28] Speaker 01: However, USCIS went on later in that charging document and saw that he's actually not charged as an arriving alien. [00:36:37] Speaker 01: Under the allegations part, [00:36:39] Speaker 01: he's charged as someone who has not been admitted or paroled, which specifically negates any opportunity that he is an arising alien. [00:36:48] Speaker 01: And then it looked at the facts in the I-213, where the border patrol agent saw plaintiffs coming across the Rio Grande River, and he was not paroled in effect time. [00:36:58] Speaker 01: And then finally, they looked at the immigration judge's order, where the immigration judge did not adopt the top of the document where it said, you are an arising alien, [00:37:08] Speaker 01: but adopted the charges and allegations as charged. [00:37:12] Speaker 01: And the charges and the allegations in the document are not at the top of that NTA. [00:37:18] Speaker 01: They're under the charges and allegations section. [00:37:21] Speaker 01: So at best, we have a situation where the NTA and the order of immigration judge is inconsistent and USCIS is the one that makes those findings there. [00:37:36] Speaker 01: I see your honors that I'm out of time. [00:37:38] Speaker 01: If I had another question, I wasn't sure if Judge Katz's was done. [00:37:44] Speaker 02: Go ahead. [00:37:45] Speaker 02: OK. [00:37:46] Speaker 02: So first of all, is there a case law that talks about what to do if the notice will appear as internally inconsistent on the top? [00:37:56] Speaker 02: Because there are cases that attach significance to that checkbox, legal significance where that has been. [00:38:02] Speaker 02: the government's position. [00:38:03] Speaker 02: And so the first question is, and I didn't see your brief addressing that contradiction within the notice to appear. [00:38:13] Speaker 02: And two, once we have an immigration judge decision, does that sort of render that, does that overtake whatever was in the notice to appear? [00:38:26] Speaker 01: So I think here, [00:38:28] Speaker 01: The NTA does have, you know, it does have legal significance and certainly it does in immigration and removal. [00:38:34] Speaker 01: At the NTA, the box at the top of the NTA. [00:38:37] Speaker 01: That's what I'm talking about. [00:38:38] Speaker 02: So the entire NTA itself has legal significance. [00:38:41] Speaker 02: Of course it does. [00:38:42] Speaker 02: I get the box though. [00:38:43] Speaker 02: That's what he realized. [00:38:46] Speaker 01: I didn't see you in the box. [00:38:48] Speaker 01: So there is no [00:38:52] Speaker 01: I guess there's no clear cut line here with regard to what USCIS can and cannot consider. [00:38:58] Speaker 01: Under the APA standard of review, when it's making a completely different determination, not whether the alien is properly charged as a petition for review might consider or as an immigration judge might consider, USCIS is not within the realm [00:39:19] Speaker 01: of the BIA cases that plaintiff cited where just because a box is checked that that would automatically mean someone is an arriving alien. [00:39:31] Speaker 01: USCIS is making a completely different agency determination here. [00:39:35] Speaker 02: You want to take the position that you're making a completely different [00:39:39] Speaker 02: agency determination here. [00:39:40] Speaker 02: I thought your whole point was that this is interwoven with... Not exactly helping you on that. [00:39:46] Speaker 02: Yeah, no. [00:39:47] Speaker 02: I mean, if you want us to say it's completely different and divorced from the removal proceeding, we could do that. [00:39:55] Speaker 02: I thought that was not the name of your position. [00:39:57] Speaker 01: I'm sorry, I was clearly trying to distinguish the BIA cases that attach... Right, I'm not sure that's a good... I mean, if that's your distinction is that when [00:40:07] Speaker 02: you're in a removal proceeding, the box check matters and has legal import in its own right, just the box check part of the NTA. [00:40:18] Speaker 02: But this thing is so far divorced from that proceeding that the checkbox doesn't matter. [00:40:24] Speaker 02: That's what I understood you to be arguing. [00:40:26] Speaker 02: Is that your position? [00:40:27] Speaker 01: Oh, so the checkbox does matter. [00:40:29] Speaker 01: However, at death, USCIS here has a conflicting document. [00:40:34] Speaker 01: It has a document that at the top says, [00:40:36] Speaker 01: you are an arriving alien. [00:40:38] Speaker 01: And if that is all the document said, then I think plaintiff would have a much better argument here. [00:40:42] Speaker 01: However, USCIS right underneath that has a charge that completely negates the above statement that he is an arriving alien. [00:40:50] Speaker 01: It says that he has not been admitted parole into the United States. [00:40:56] Speaker 01: Plaintiff claims that he's an arriving alien because he was paroled into the United States. [00:41:00] Speaker 01: And yet you have a charge on the NTA and the specific charging document that says, [00:41:05] Speaker 01: you have not been admitted or paroled into the United States. [00:41:08] Speaker 01: Then, as your honors pointed out, we have an immigration order from an immigration judge that has made the factual finding. [00:41:18] Speaker 02: But there's a separate argument about his parole. [00:41:20] Speaker 02: I understand that argument. [00:41:22] Speaker 02: But he says he was given humanitarian parole. [00:41:24] Speaker 02: And he has a document from a border agent that says he was given parole for humanitarian reasons. [00:41:29] Speaker 02: And again, I saw nothing in your brief about that. [00:41:33] Speaker 02: So he's got a box check. [00:41:36] Speaker 02: and government documents saying he was given parole for humanitarian reasons. [00:41:40] Speaker 02: And your brief just didn't address either of those things. [00:41:43] Speaker 02: And so I'm not sure what to, and I didn't see the decision here addressing that. [00:41:48] Speaker 02: And the jurisdiction and merits are so interwoven here. [00:41:52] Speaker 02: This is all very confusing not to have any arguments on that in your brief. [00:41:56] Speaker 01: So your honor, I do not believe he has a parole document that says he has been [00:42:06] Speaker 02: J-29 is the record of deportable and admissible alien. [00:42:12] Speaker 02: And that says the last operative line on J-29 says, subject were issued a list of legal services and documentation pertaining to pertaining to an NTA, which they were issued due to humanitarian reasons. [00:42:26] Speaker 02: And they were paroled, sorry, and they were paroled earlier, right? [00:42:30] Speaker 01: He wasn't kept. [00:42:33] Speaker 01: Um, that's very different from a, uh, from a parole document. [00:42:39] Speaker 02: Um, if he was issued humanitarian parole, he was given either conditional parole or humanitarian parole. [00:42:45] Speaker 02: Do you have. [00:42:47] Speaker 02: Right. [00:42:47] Speaker 02: And so how do it says assess humanitarian there? [00:42:50] Speaker 02: How do we know? [00:42:50] Speaker 02: Is there, is there a special document you get when you have humanitarian parole? [00:42:56] Speaker 01: On the IQ 13 record, it would say that the individual. [00:43:01] Speaker 01: was granted humanitarian, was granted humanitarian parole. [00:43:06] Speaker 01: There would be an entire, there would be an entire section. [00:43:09] Speaker 01: I believe he would also get a document, but I think we're getting a little bit further away from what- I'm just confused because there's documents here that are contradictory already, so it's a little hard to rely on the paperwork here. [00:43:21] Speaker 02: Let me ask you a separate question. [00:43:23] Speaker 01: Absolutely, to the point that USCIS had to look at. [00:43:28] Speaker 01: And that is precisely what USCIS did look at, looked at these conflicting documents, which the government does not dispute. [00:43:35] Speaker 01: You have an NCA that's clearly conflicting, looked at the immigration judge and made a determination and applied reasonable, applied the facts, considered all the facts and made a reasonable conclusion. [00:43:48] Speaker 01: And absent, and absent a finding by this court or a claim, by plaintiff even, [00:43:55] Speaker 01: that no reasonable fact-finder could have failed to find how USCIS found, then this court must uphold USCIS's decision under the extremely deferential arbitrary capricious. [00:44:09] Speaker 01: That's on the merits. [00:44:10] Speaker 02: So just back on some more of the threshold questions. [00:44:12] Speaker 02: So again, the centerpiece of your brief is that he should file a motion to reopen. [00:44:20] Speaker 02: Yes, Your Honor. [00:44:21] Speaker 02: But then your argument to us was not that he should file because his motion would be untimely unless this new regulation covers him. [00:44:30] Speaker 02: So put aside that, and we'll hear from you on that. [00:44:36] Speaker 02: Other than that, his motion, and your argument to us was all about Cuiasponte reopening. [00:44:41] Speaker 02: And I'm trying to figure out how someone gets an immigration judge to Cuiasponte reopen. [00:44:47] Speaker 02: But you have to file, [00:44:49] Speaker 02: an untimely, legally prohibited motion to reopen and hope that it inspires the immigration judge to respond to reopen? [00:44:58] Speaker 02: I don't know how we can relax. [00:45:01] Speaker 01: It's a little bit of a misnomer in the way it works, but it's really what you do. [00:45:06] Speaker 01: You can first reach out to ICE council to see if they would join in a motion to reopen. [00:45:11] Speaker 01: And what that CFR provision allows for is a sui sponte [00:45:17] Speaker 01: uh, reopening by the immigration judge. [00:45:19] Speaker 01: And essentially what you do is you file that motion to reopen and say, judge, you have the authority under this section to Sue Esponte, uh, reopen and use, and I want you to use that authority for these reasons. [00:45:31] Speaker 01: And the reasons why plaintiff would say, uh, plaintiff would say is like, I am eligible for adjustment of status. [00:45:36] Speaker 01: USCIS has found that I'm not an arriving alien. [00:45:39] Speaker 01: It's found that you have jurisdiction. [00:45:41] Speaker 01: Um, please reopen my proceedings, use that authority, reopen my proceedings so I can adjust that. [00:45:46] Speaker 02: And that's essentially [00:45:47] Speaker 02: Okay, I mean, the only difficulty I have is that the Federal Register notice that accompanies this December regulation says that's what we're trying to stop. [00:45:57] Speaker 02: So, Yes, sir. [00:45:57] Speaker 02: And I was used about your argument here today, but hopefully you can clarify. [00:46:02] Speaker 01: Yes. [00:46:03] Speaker 01: And the vision that your honor stated at the end there would encompass because it would [00:46:10] Speaker 01: remove the reasons why he'd be removed, I'm happy for the opportunity to bring that back. [00:46:14] Speaker 02: That would clarify a lot of things, and thank you. [00:46:16] Speaker 01: Thank you. [00:46:17] Speaker 03: Thank you. [00:46:18] Speaker 03: Thank you. [00:46:20] Speaker 03: Thank you. [00:46:20] Speaker 03: Judge Casas, do you have anything else? [00:46:22] Speaker 04: I'm all set. [00:46:23] Speaker 03: Okay, great. [00:46:24] Speaker 04: Thank you. [00:46:26] Speaker 03: Thank you. [00:46:26] Speaker 03: Mr. Forney, you are out of time, but you can have two minutes. [00:46:29] Speaker 05: Thank you. [00:46:31] Speaker 05: Just two brief points. [00:46:32] Speaker 05: One is that the Board of Immigration Appeals decision that we cited in our brief matter of MBCB 28 INA decision 18 at page 30 discusses that in that case, there was an issue of whether the alien was properly charged. [00:46:53] Speaker 05: And the way in which the Board of Immigration Appeals uses that term of art is that [00:47:00] Speaker 05: whether or not the person was charged as an arriving alien. [00:47:04] Speaker 05: So the government's position that charged in no way means what is checked at the top of the notice to appear is not consistent with how that term is used in immigration, in the history of immigration proceedings, and even recently by the Board of Immigration Appeals so that that argument isn't going to work. [00:47:25] Speaker 05: Of course, the government wants to present this case as a balancing of facts because they know that they get a deferential review on that, but we're not asking the court to reweigh facts, nor is this case in our view about the weighing of facts. [00:47:37] Speaker 05: It's just simply whether USCIS properly discounted the legal significance of the charge that the legacy INS made that he was an arriving alien. [00:47:49] Speaker 05: And I think we've put forward the reasons why that's legally significant. [00:47:53] Speaker 05: I won't go into that in any more detail. [00:47:57] Speaker 04: Your argument, as I understand it, is right-line the other way, which is once they check that box at the top of the form, they are as a matter of law precluded from contesting that issue in this case. [00:48:17] Speaker 04: We are legally bound to [00:48:20] Speaker 04: take the checked box for what it says, regardless of anything else in that form or in that administrative record. [00:48:31] Speaker 04: That makes sense, yes. [00:48:34] Speaker 04: Even if we think that the box has some significance and can't be ignored, what support do you have for the proposition that it's talismanic and we have to ignore everything else? [00:48:48] Speaker 04: in that document and in the removal record? [00:48:55] Speaker 05: By regulation, the government has control over the charges. [00:49:00] Speaker 05: By regulation, the government may amend the charges during the removal proceedings at any time. [00:49:05] Speaker 05: The government actually can elect not to check a charging box, and that has legal significance. [00:49:11] Speaker 05: Herrera, Vasquez, 27, INN decision, [00:49:15] Speaker 05: E25, that's the decision from the BIA of last year. [00:49:19] Speaker 05: But if it does so elect to charge the foreign national at the top of the charging document, that structures the nature of the proceedings and determines the forms of relief that are available. [00:49:32] Speaker 05: It has legal significance. [00:49:34] Speaker 05: So if the court's gonna allow the agency then to second guess those [00:49:43] Speaker 05: prosecutorial choices over which it had complete control and could amend them at any time, it's allowing them to speak out of both sides of the mouth. [00:49:52] Speaker 05: And that's exactly what they're doing and have been doing. [00:49:56] Speaker 05: The government cites Chen B. Rodriguez in support of his position, but it actually supports Mr. Mez's position because we see exactly how CIS is acting consistently. [00:50:06] Speaker 05: In that case, they kicked someone out of [00:50:10] Speaker 05: applying for adjustment status because they weren't charged as an arriving alien. [00:50:16] Speaker 05: And they're doing the exact opposite here. [00:50:19] Speaker 05: So the position is inconsistent from start to finish. [00:50:23] Speaker 05: And they've ignored the legal significance of the charge on the NTA. [00:50:27] Speaker 05: And the government is bound by that charge. [00:50:32] Speaker 03: All right. [00:50:33] Speaker 03: Mr. Forney, thank you. [00:50:33] Speaker 03: Thank you both. [00:50:35] Speaker 03: Were you done, Judge Cassis? [00:50:37] Speaker 04: Yes, I am. [00:50:38] Speaker 03: Thanks. [00:50:38] Speaker 03: Okay. [00:50:39] Speaker 03: Judge Millett, anything else? [00:50:40] Speaker 04: That's it. [00:50:41] Speaker 03: Thank you. [00:50:41] Speaker 03: Okay. [00:50:42] Speaker 03: Mr. Forney, Mr. Lederkirch, thank you both very much. [00:50:44] Speaker 03: The case is submitted.