Legal Case Summary

One that's a leave Friday free is so that everybody would get up at 4 o'clock in the morning so you could all watch the wedding. I have other things to do in the morning. Okay. Okay, we will hear counsel. Oh, in case you think that we don't have a full panel, that's not accurate. Judge Pollock is going to participate by telephone. Lou, can you hear me? I can indeed. Yes, yes, need. Okay, the only look forward to participating. Good. The only problem is you don't see the lovely faces that are sitting before me, us by on the appellan side and also, but I don't think lovely is the word. Good looking on the Apple East side. Okay, happy to hear that right. He didn't want to be well, I'm sorry to miss the scene, but the scene is attractive. Okay. All right, we'll hear the first case for today, which is Espinal versus Attorney General. May it please the court. I'm Beth Whirlin. On behalf of the Amicie Curie, American Immigration Council and National Immigration Project, I'd like to reserve two minutes for a bottle. That's great. Now you can't both have a bottle. Okay. So you have to decide who does the rebuttal. Okay, I was a mistake yesterday, but our rule is if you have joint counsel, then, one can be rebuttal. Okay. Are you the rebuttal? I'll check the door. I will be the rebuttal. Thank you very much

. Okay. Fine. And you want two minutes. Could I change that to three then because we were going to do two and share it? Sure. You didn't change it. Thank you very much. Okay. Roberta, you have that. Thank you. This case involves the validity of the departure bar regulations to motions to reopen and reconsider removal proceedings. You are in a much better position now that, well, at least three other circuits have won your way. Yes, your honor. Actually, it's five circuits right now. It's the second, the fourth, the sixth, the seventh, and the ninth have found that the departure bar regulation is unlawful. And there are two separate grounds. You know where it's going to go from here. Well, unless, unless the BIA changes its position, but I guess it might not. There is actually a petition for rulemaking pending before the agency or honor. And there have been several cert petitions filed on this issue as well, but the Supreme Court has not taken cert on any case cases, not yet at the Easter right. But there are two separate grounds for reaching the conclusion that the regulation is unlawful. First, that the departure bar regulation conflicts with the statute. And second, that the immigration agency has impermissibly contracted its own jurisdiction by interpreting the regulation as jurisdictional. I'd like to address the first argument and my colleague will address the second argument. Sure. And make it ask the court to find that the motion to reopen and motion to reconsider statutes unambiguously provide all persons in removal proceedings the right to file a motion to reopen and motion to reconsider regardless whether they're inside or outside the United States. Congress's intent to permit post-aparture motions is clear first from the plain language of the statute, but it's also supported by the overall structure of the motion to reopen provisions, which contains some limitations, but not at a departure bar. Also, its intent is clear from the simultaneously enacted provisions in the INA

. Most importantly, the mandatory removal period. The little slower. More slower. Well, that's right. Absolutely. It's going to get all the way to judge. I understand. Okay. The also the mandatory removal period, which is irreconcilable with the departure bar. So looking first at the plain language of the statute, the statute plainly affords all individuals in removal proceedings the right to file a motion to reopen or a motion to reconsider. And as the Supreme Court said in Zada, the statutory text is plain in so far as it guarantees each alien the right to file one motion to reopen proceedings. So the Supreme Court further went on to say that it would be reluctant to limit the availability of this right or this important safeguard given that the plain text reveals no such limitations. But the departure bar actually does that. It limits the right to a whole class of non-citizens simply by virtue of them being outside the United States. But beyond just the plain language, we look to the overall structure of the motion to reopen and reconsider provisions. We can see that Congress certainly intended to permit post-aparture motions when it codified the motion to reopen and reconsider statutes in 1990. I'm wondering whether the moment you move from plain language to the setting of the statute, you haven't departed from at least a chevron now. So I'm going to ask you some of the general statutory framework to show that the particular challenge language is not ambiguous. Your Honor, this case, this course case law, as well as the Supreme Court's case law has suggested that when you're looking at the first step of chevron, you start with the plain language, but beyond that, you can also employ traditional tools of statutory construction to determine Congress's intent. And they pointed that out in the decision Zang from 2005. And so I think that we can, in fact, move on to employing traditional tools of statutory construction, such as the rule that you read the statute as a whole and that you look to what exceptions were actually included in the statute, in the presumption that other exceptions were not, in fact, intended when it's clear that someone included. And I think that's what happened here. When you look at what Congress did in 1996, it actually did codify some limitations on motions to reopen that pre-existed in the regulations. But it's significantly, it did not codify the departure bar, which had previously existed. The government's basically asking you to give no meaning to Congress's deliberate omission of one of the regulations when it actually went forward and codified the other ones. Is there any legislative history that shows that this was intentional by Congress? No, we were not able to find anything specific to this provision. I've had some questions

. Yes, I don't, how do you put together the different timings for the motion to reconsider and the motion to reopen? To reopen. So under the judge. You argue that either or both. You could have a both. You can have a both. There are two independent provisions. They do have different time limits. It's 30 days for motion to reconsider and 90 days for motion to reopen. But in fact, you can file both. It's not in either or proposition. Do people file both? Yes, they do, actually. I would say that the motion to reopen is much more common. And that's, you know, it's a longer period. It's a longer period, but it's much more likely that new evidence would be coming up. The motion to reconsider is narrowly tailored to errors of law. So it's not dependent, errors of law or facts. So it's not necessarily dependent on a new development that occurred. Perhaps that's the explanation for the lengthier time. But in my remaining few moments, I just like to point out that the Ninth Circuit recently focused on the tension with the mandatory removal period, which says that the attorney general has to remove a person within 90 days. And there's a clear conflict there with the departure bar in order to give the motion to reopen provision meaning the court there found that it needed to strike the departure bar. Excuse me. The court there found what? Sorry, that was the case, Rayus Taurus. The court there actually found under step one that the statute required permitted motion's post departure and therefore the regulation was invalid. Thank you. Wait a minute, don't go in. Chef Pollock, do you have any questions before she sits down? Oh, yes, I do. So suppose the regulation provided that any alien could file one motion to reopen or reconsider

. But such a motion as filed on behalf of an alien who was departed the country would be considered only if accompanied by or supported by an application by a member of the alien's family resident in the United States. With that limitation on the right of an alien to file one motion to reopen or reconsider, would that be the compatible with the statute? Your Honor, I don't think it would be, I think that would sort of run up against the same problems that we're facing here with an absolute departure bar. That would be I guess a subset of the departure bar. But we'd still have the problem of it cutting off eligibility when Congress didn't specifically include such a limitation. And the fact that it did specifically include other limitations I think is significant there. So the Attorney General couldn't qualify procedurally the form of an application? I think the way that you've presented it though, it's beyond just procedural because I think depending on it would actually cut off a group of claims. Not all claims are going to involve situations where the person would have that qualifying relative. It could be, for example, a situation where there was a vacated conviction in the person's no longer removable. That would have no basis, it would have no relationship with the relatives in the United States. It could be a change in the law, a new Supreme Court decision that affects the removable ability. Again, it would have no relationship to relatives in the United States. Thank you. Welcome. Thank you. Thank you. Okay. We'll hear. May it please the Court? My name is Jacqueline Brown Scott. I represent the petitioner Ramon Pistol. I spent all, and I'll reserve two minutes which I can see to my council for the battle. The petitioner and native of the Insidistent of the Dominican Republic applied pro-say for withholding removal and protection under the Convention Against Torture because he had a good reason to believe that he was going to be killed if removed in his country. A little slower, so it's not to apologize. Sure. It's just that's what they're doing. Yeah. Thank you. I'm sorry

. I felt it. Okay. The immigration judge denied his relief, and I accepted his case pro bono through the BIA pro bono project. We filed an appeal, and the BIA denied petitioners appeal on November 3rd, 2009. I received the decision approximately five days later, and because the petitioner was being detained by DHS and York County, Pennsylvania, our primary method of communication was mail. I wrote him a letter and requested that he contact me as soon as possible to discuss the next steps. I received his phone call on November 24th to the Tuesday before Thanksgiving, and he was already in the Dominican Republic. DHS had deported him the day before. But within the next week, I've- Excuse me. Would you make a difference if he had been voluntarily departed as the Zs. I don't think it would make a difference in terms of how the statute- he's a statutory right to one motion, or open, no matter how you remove from the country. In his case, it would- in this case, it would help him because he was forced to be removed. Originally, the night circuit made a distinction between that in quite, but later, other circuits have said that in terms of voluntarily being voluntarily removed or in voluntarily removed, it doesn't affect that outcome. Of course, in my case, it still helps. So we filed this time in motion, or we consider, the BIA denied the motion citing jurisdictional grounds, notwithstanding his statutory right to file one motion to reopen within 30 days of the decision. As Miki stated, in addition to the fact that the regulation is in conflict with the statute, and relying on it, the agency also contracts without any authority, its subject matter jurisdiction, over-motions to reopen, which the Supreme Court has held is impermissible. In Union Pacific, the Court considered whether the National Railroad Adjustment Board had jurisdiction to arbitrate labor claims. Absent proof that the party's attempted to resolve the dispute through a pre-arbitration conference in the Supreme Court held that it's unlawful for an agency to contract its own jurisdiction by regulation or by decision. Finding that Congress gave that board no authority to adopt rules of a jurisdictional dimension. Similarly, Justice Congress delegated authority to the Adjustment Board in that case to adopt rules as it deems necessary to control proceedings. It also gave the Attorney General here the power to quote, establish the regulations, review such administrative decisions, determinations and immigration proceedings, delegate such authority, and perform other acts as the Attorney General deems necessary for carrying out the section. And that is 8USC-1103G2. And while in Union Pacific there was an explicit grant, here we have more of a scheme. Besides 1103G2, there's also section 1229A, which lays out removal proceedings, the conduct of proceeding, the authority of the immigration judge, and with this section that the motion review is actually- If I were to say, I wouldn't understand what you were saying. Hello? So you'd have to please speak to our close. Yeah, so that he can understand. I think that's the case with the telephone

. May I put in a question? Sure. I'm a Union Pacific argument, an intriguing one. But I wonder whether at bottom, it's any different from the proposition that under Chevron Analysis, the statute is unambiguously given an entitlement to any alien, wherever located to file a motion to reopen within the time period. In either case, there's one invoking the quote's clear statutory language to say in the one hand, this is the alien's right, and in the other hand, the VA can't contract its own jurisdiction in this fashion because of the statute. Analytically, did I wind up by being different arguments? I'm not 100% sure. I heard the whole- the first part of the question in terms of if there are different arguments because of the question. I guess maybe I'm sorry if I haven't clarified it. It seems to me that the reliance on Union Pacific ultimately comes down to how does one can true what Congress has done in conferring jurisdiction upon the agency. And in the Chevron line of argument, one is ultimately reduced to saying the statutory language unambiguously confers an entitlement to file wherever you're located. I'm wondering if those are really different analytic proceedings or whether in both cases one isn't reduced to saying this is what the statutory language means when it says one motion to reopen. I think that, sorry, go ahead. I think I understand they are two independent grounds of invalidating the regulation in terms of the first way looking at the clear language of the statute using the Chevron analysis. I think in Union Pacific, you could also, using the Union Pacific line of arguments, you could also technically use Chevron and there's evidence to show that the regulation is unreasoned under Chevron set two. I'm not sure if that's exactly what you're asking. I do think you can come with the same answer in terms of there's two ways to invalidate the regulation. Well, you've responded as I expected to the extent that I've made it a confusing question to put. I apologize, of course, but I'm glad to have you focus on both lines of argument. Thank you. You can continue. Okay. So, as the CISC circuit recently pointed out, improved say, the motionary open statute is an empowering, not a divesting provision and it grants the board authority to entertain a motion to reopen. Which is sort of the way the Supreme Court treated it in Dada. Right. So, exactly. That emphasizes the right to file motion. It means the right to have it heard and if the government is going to argue that- He said it was one of the most important rights in something. Yes

. That's the safe guard, exactly. And if the IJ and the BIA are not going to be able to adjudicate a motionary open, this right, who would adjudicate it? There are no cases anywhere that go the way you've identified five circuits, two, four, seven and a half. Right. The fifth circuit and the tenth circuit have gone the other way, but they are pre-union specific. And there's the descent in the fourth circuit. There's a strong descent in the fourth circuit, that's correct. So the INA authorizes the BIA to reconsider or reopen its decision and it does not make that step dependent on the non-citizens presence in the United States. While the BIA impermissively refuses to adjudicate statutory motion to reopen or motion to reconsider, based on the false premise that it lacks the power to hear them, it at the same time declares itself competent to adjudicate motion to reopen filed by non-citizens abroad in cases involving in-abcensia orders issued without proper notice. And that is, of course, a matter of bullnays. So a non-citizens presence... Why do you just mumbled something? A matter of bullnays, that's the case. They said they had the... I just wanted to be sure you'll have her there. Okay. Sorry. So a non-citizens presence in the United States does not impact the BIA's adjudicatory authority. In addition, the BIA continues to have jurisdiction over cases involving deported non-citizens that are remanded after a successful petition for review. So Congress certainly intended for a case to continue post-aparcher by removing the automatic state provision and that a parcher bar for judicial review. This court has also found that another limitation or another limit on motion to reopen the 180-day time limitation, re-in-up-centre removal orders, can be echoed or be told and that's in forages. If the court found that it instructed that there was no reference to jurisdiction in the statute or in the legislative history. In addition, I just want to add that the parcher bar is unreasonable because it's subject to unilateral manipulation by DHS which certainly happened in the petitioner's case. DHS has unilateral control over the litigation because it can deport a person anytime after the removal order becomes finalist to find in a.

.. I see my time's up. Yeah, I'm sorry. I don't know what you just said. Why don't you finish the sentence or the court clearly? That the regulation is subject to unilateral manipulation by DHS because they have the power to unilaterally withdraw the other side of motion. Why don't you assume that they would manipulate? Well, I don't know that agencies manipulate. I think that they have... I mean, they do things. They may not be things that you... Perhaps the manipulated is a poor word. They have the power to withdraw on other sides. Motion. I mean, they have the power to cut it short. Manipulation has within it. Negative connotation. Yes. Yeah. If one were to decide, yes, that the union-specific dictated that the board continued to entertain such motions. Well, we may have talked about this as a jurisdictional limitation before, but that was probably a mistake. It's really a claimous processing limitation. We're willing to entertain an alien's application, but only so long as the alien is in the United States. Would the board not be authorized to do this? How should I put it? Subdueristicional limitation. Right

. If so, if the board decided to later characterize it as like a mandatory claims processing, they could, however, we'd still go back to the original argument that the regulation is still in conflict with the statute. So I think we'd still have to be analyzed under Chevron. I think... I think so. Thank you. Thank you. Do you excuse me? Do you have any questions? Okay. Thank you. We'll hear from the agency. Mr. Yusef. Good morning. Pick up the phone. Good morning. May I please... Good morning. May I please the court... You know, Yusef for the responded. The court should grant Chevron deference to the Attorney General's categorical exercise of discretion in promigrating the departure bar regulation. Are you in a difficult position now that one, two, three, four.

.. I think it was five, but anyway, four circuits have gone... No, you're... It is five. The second, the fourth, the sixth, the ninth, and the seventh. Yes. And the seventh. In a difficult position, what does it take to have the agency... Reconcider its position when all those appellate judges think its position can't be sustained? I would note that the tenth in the first circuit, as well as the strong descents in the... I believe the fourth circuit, as well as the ninth circuit, would at least count on our side for that. But it would be our position in viewing that the extensive broad... The broad rule of authority given... You better say that again, we'll be back. Yeah. Our position that the broad rule of making authority given to the Attorney General and his exercise of that discretion in promigrating this regulation is clear. What's the reason for the regulation? And why shouldn't somebody who has been removed in voluntarily be able to ask to have a review, Regencillation? Firstly, the Congress gave the Attorney General the power to address immigration matters. Yeah, but what's the reason? I mean, the Attorney General, somebody, BIA, somebody had a reason. And it can't just be, we don't want to be bothered with requests by aliens who I know won't learn the United States, but we've removed them. Well, the thought is that the statute enacting these limitations on the motions to reopen, the purpose of that was to reduce the number of, I guess, frivolous applications into... Well, how do you know they're frivolous if they haven't been considered on the basis of the law? And the merits? I guess at that period of time when this, I-Rero was being considered, there was a concern by Congress of the successive applications and the motions to reopen being filed by aliens who would essentially keep filing in order to continue their applications in the system so order to prevent their removal. I know. Well, it's not what you have here, right? I mean, looking at the, excuse me, the facts in the first circuit case, in the fifth circuit case, you're talking about instances where action was sought years later. You know, here, it's right within the 30 days, or, yeah, right, the 30 days. So what's, I think, to its lower, it was getting at, what's the logic of this? We know what the law says, what's the logic of it, and looking at the two of three circuits that have gone the other way. The facts aren't really a positive or analogous to what we have here, so help us. Let me just add to that, you can, it's easy to say we won't hear a successive motion, which is what you were talking about. But that's not what this does. It's just says, if you're not in the United States, you can't find. We removed you, and if you're not in the United States, you can't find file motion. To that, the regulation support is in line with the idea of the statutory, and I rear end, promoting finality and move proceedings. Sure, and you could say no alien can file a motion to reopen. But the Supreme Court said those motions are important. We adopt them. I mean, we will stand behind them. They're very important, the Supreme Court said. So how do you reconcile the Supreme Court's approval of motions to reopen with the regulation that says you can't file it if you're not in the United States? And we remove you. In those Supreme Court cases, I think, Susanna, it was that the Court is still also stated that Congress did not affect in any way the government. The Attorney General's discretion in addressing these matters and in promulgating the regulation. As, for example, that regulation was in place for nearly 40 years while Congress was discussing and addressing these limitations on actions to reopen. And they made no, they remained silent as to the issue of whether they wanted to repeal the departure bar, which was present since 1952

. What's the reason for the regulation? And why shouldn't somebody who has been removed in voluntarily be able to ask to have a review, Regencillation? Firstly, the Congress gave the Attorney General the power to address immigration matters. Yeah, but what's the reason? I mean, the Attorney General, somebody, BIA, somebody had a reason. And it can't just be, we don't want to be bothered with requests by aliens who I know won't learn the United States, but we've removed them. Well, the thought is that the statute enacting these limitations on the motions to reopen, the purpose of that was to reduce the number of, I guess, frivolous applications into... Well, how do you know they're frivolous if they haven't been considered on the basis of the law? And the merits? I guess at that period of time when this, I-Rero was being considered, there was a concern by Congress of the successive applications and the motions to reopen being filed by aliens who would essentially keep filing in order to continue their applications in the system so order to prevent their removal. I know. Well, it's not what you have here, right? I mean, looking at the, excuse me, the facts in the first circuit case, in the fifth circuit case, you're talking about instances where action was sought years later. You know, here, it's right within the 30 days, or, yeah, right, the 30 days. So what's, I think, to its lower, it was getting at, what's the logic of this? We know what the law says, what's the logic of it, and looking at the two of three circuits that have gone the other way. The facts aren't really a positive or analogous to what we have here, so help us. Let me just add to that, you can, it's easy to say we won't hear a successive motion, which is what you were talking about. But that's not what this does. It's just says, if you're not in the United States, you can't find. We removed you, and if you're not in the United States, you can't find file motion. To that, the regulation support is in line with the idea of the statutory, and I rear end, promoting finality and move proceedings. Sure, and you could say no alien can file a motion to reopen. But the Supreme Court said those motions are important. We adopt them. I mean, we will stand behind them. They're very important, the Supreme Court said. So how do you reconcile the Supreme Court's approval of motions to reopen with the regulation that says you can't file it if you're not in the United States? And we remove you. In those Supreme Court cases, I think, Susanna, it was that the Court is still also stated that Congress did not affect in any way the government. The Attorney General's discretion in addressing these matters and in promulgating the regulation. As, for example, that regulation was in place for nearly 40 years while Congress was discussing and addressing these limitations on actions to reopen. And they made no, they remained silent as to the issue of whether they wanted to repeal the departure bar, which was present since 1952. So based off of that, there's nowhere in the statute. Is there any indication that Congress intended to repeal that? The statute is silent in that regard. And I remember when I first came, long time ago, the agency always said, doesn't matter if they removed because they can still be heard. They can file a motion to reopen. There's just been a complete turnaround of that. Why? I mean, I, of course, if you're an agency and you don't want to be bothered with aliens, then, you know, but that's your job. That's what the agency is doing. The post. Part of that is at the time of the discussion of the, I believe in the comment period after the statute was enacted and discussing the weather to maintain the departure bar, the Attorney General clearly stated that the burden associated with adjudicating all these motions would greatly outweigh the effect, the effect that would have on the agency in terms of the number of just in terms of, I guess, efficiency and ability to address all of the motions to reopen. And this was a regulation enacted by, I guess, a promulgated by the Attorney General in language. But without any congressional support, I mean, there's nothing in the con in the, in the statute that suggests that this regulation is appropriate. Or is congressional intent? At the same time that the Congress was considering this matter, when they repeal the judicial bar for a judicial review bar, it's presumed that they were aware of this regulation that was in place since 1952 and they made no mention of they may know, took no position on that matter, except at that same time, they maintain the extensive delegation of authority to the Attorney General to address immigration matters. Let's get back to the circuit cases that I heard earlier. Could the agency in its interest be? Actually, Lura, I'm in the middle of a question, one second. Thank you, Bart, and I'm sorry. No, I wasn't speaking into the microphone, which my law clerks have chided me about. So I apologize. My question is, can we go back to the circuits that you have relied on in the beginning of your presentation? It seems to me that they present instances that are factually distinct from this one, so I'm wondering what solace they really give you. Well, the approach of, I believe it was the Tencesterkin, the first circuit, they stopped their analysis at the first step of Chevron and indicating that, or sorry, not stopped, but I'm basing on the fact that the statute was silent as to any indication of Congress intending to repeal the departure bar. And we believe that that still holds in, that there's no indication that Congress spoke on the issue. And since there was no action, and that silence would then lend it to go to the second step of Chevron, where this is a reasonable interpretation of what Congress was intending here in terms of promoting the finality of immigration proceedings. Well, that's what's been before the courts, whether it is a reasonable regulation. Five circuits have said no. I'm not a camera exactly specifically how some circuits indicated that they felt that Congress was actually spoke on this issue in the statute. However, it's our position as well as the position of the tenth in the first circuit, I believe, that there was a silence on this issue. And the regulation itself is simply the categorical exercise of discretion by the Attorney General during this enactment of the statute. Did I thought you were a questioner? In data, didn't the Supreme Court recognize that Congress through the Errira created a statutory right to file a motion to reopen and be considering? I believe in that case, the

. So based off of that, there's nowhere in the statute. Is there any indication that Congress intended to repeal that? The statute is silent in that regard. And I remember when I first came, long time ago, the agency always said, doesn't matter if they removed because they can still be heard. They can file a motion to reopen. There's just been a complete turnaround of that. Why? I mean, I, of course, if you're an agency and you don't want to be bothered with aliens, then, you know, but that's your job. That's what the agency is doing. The post. Part of that is at the time of the discussion of the, I believe in the comment period after the statute was enacted and discussing the weather to maintain the departure bar, the Attorney General clearly stated that the burden associated with adjudicating all these motions would greatly outweigh the effect, the effect that would have on the agency in terms of the number of just in terms of, I guess, efficiency and ability to address all of the motions to reopen. And this was a regulation enacted by, I guess, a promulgated by the Attorney General in language. But without any congressional support, I mean, there's nothing in the con in the, in the statute that suggests that this regulation is appropriate. Or is congressional intent? At the same time that the Congress was considering this matter, when they repeal the judicial bar for a judicial review bar, it's presumed that they were aware of this regulation that was in place since 1952 and they made no mention of they may know, took no position on that matter, except at that same time, they maintain the extensive delegation of authority to the Attorney General to address immigration matters. Let's get back to the circuit cases that I heard earlier. Could the agency in its interest be? Actually, Lura, I'm in the middle of a question, one second. Thank you, Bart, and I'm sorry. No, I wasn't speaking into the microphone, which my law clerks have chided me about. So I apologize. My question is, can we go back to the circuits that you have relied on in the beginning of your presentation? It seems to me that they present instances that are factually distinct from this one, so I'm wondering what solace they really give you. Well, the approach of, I believe it was the Tencesterkin, the first circuit, they stopped their analysis at the first step of Chevron and indicating that, or sorry, not stopped, but I'm basing on the fact that the statute was silent as to any indication of Congress intending to repeal the departure bar. And we believe that that still holds in, that there's no indication that Congress spoke on the issue. And since there was no action, and that silence would then lend it to go to the second step of Chevron, where this is a reasonable interpretation of what Congress was intending here in terms of promoting the finality of immigration proceedings. Well, that's what's been before the courts, whether it is a reasonable regulation. Five circuits have said no. I'm not a camera exactly specifically how some circuits indicated that they felt that Congress was actually spoke on this issue in the statute. However, it's our position as well as the position of the tenth in the first circuit, I believe, that there was a silence on this issue. And the regulation itself is simply the categorical exercise of discretion by the Attorney General during this enactment of the statute. Did I thought you were a questioner? In data, didn't the Supreme Court recognize that Congress through the Errira created a statutory right to file a motion to reopen and be considering? I believe in that case, the... I mean, not only the Supreme Court. Well, that's a tough one to respond to, but... What? But it's before us. I understand. Well, that may be the case that there is still no... There might be a right to file a motion to reopen or a motion to consider the ultimate determination whether that's granted is not... It's still discretionary as determined by the Attorney General. But the administrative agency is limiting that right that the Supreme Court suggested that Congress created in the statute. Well, I guess... Is my question clear? It's very clear. Just hard to answer. Yes. In that in data, I still... While it may be interpreted that those motions to reopen would be granted as a matter of right, the notion that their motion to reopen are still disfavored and the finality of immigration proceedings is still the policy and the intent of Congress in this action. That when they enacted IRRA, they specifically simply limited the numerical and time and placed limitations numerically in terms of time on most of the open, but at the same time, they did not limit the Attorney General's discretionary rulemaking authority in this field

... I mean, not only the Supreme Court. Well, that's a tough one to respond to, but... What? But it's before us. I understand. Well, that may be the case that there is still no... There might be a right to file a motion to reopen or a motion to consider the ultimate determination whether that's granted is not... It's still discretionary as determined by the Attorney General. But the administrative agency is limiting that right that the Supreme Court suggested that Congress created in the statute. Well, I guess... Is my question clear? It's very clear. Just hard to answer. Yes. In that in data, I still... While it may be interpreted that those motions to reopen would be granted as a matter of right, the notion that their motion to reopen are still disfavored and the finality of immigration proceedings is still the policy and the intent of Congress in this action. That when they enacted IRRA, they specifically simply limited the numerical and time and placed limitations numerically in terms of time on most of the open, but at the same time, they did not limit the Attorney General's discretionary rulemaking authority in this field. And with that, it maintained... That was a gap that was left by Congress in which they delegated to the Attorney General in order to address how to adjudicate these motions. So if the agency acts properly according to its view of this law, you'd never have a motion to reconsider because they just make sure that the alien was removed on day one. Because the aliens removed on day one, there'd be no way to ever effectively exercise the motion to reconsider. Or re-adjudicate. Well, I'm even going with the shorter time period. So that you say is what Congress intended to give the Attorney General the discretion to essentially eviscerate the motion. And that's why Congress is not going to be able to eviscerate a right entirely. For that instance, I believe the petitioner would be able to file a stay in order to prevent that from occurring, but also... How's that? It's on day one. I found out yesterday that I'm going to be removed. The next day I'm removed, when am I to do this, according to what you've proposed is within the power of the Attorney General and therefore the agency? As to that, I'm not entirely sure how in terms of that actually plays out in terms of on a practical basis. Well, that's what we're concerned about. You say it's within Congress's right to give the Attorney General this authority. And I'm suggesting to you that there is a practical scenario in which the right would never be able to be exercised. And that's our concern and the concern of at least five other circuits. I understand that. And I see it as that the ability to file that the Attorney General's... I guess the notion is that the Attorney General is promulgating a regulation that is intended to ensure the finality of removed proceedings. The Congress intended that they remove individuals within a 90-day period. And so the Attorney General, removing someone in that time frame, is simply, I guess, in line with what Congress mandated in terms of maintaining that, I guess, the removal

. And with that, it maintained... That was a gap that was left by Congress in which they delegated to the Attorney General in order to address how to adjudicate these motions. So if the agency acts properly according to its view of this law, you'd never have a motion to reconsider because they just make sure that the alien was removed on day one. Because the aliens removed on day one, there'd be no way to ever effectively exercise the motion to reconsider. Or re-adjudicate. Well, I'm even going with the shorter time period. So that you say is what Congress intended to give the Attorney General the discretion to essentially eviscerate the motion. And that's why Congress is not going to be able to eviscerate a right entirely. For that instance, I believe the petitioner would be able to file a stay in order to prevent that from occurring, but also... How's that? It's on day one. I found out yesterday that I'm going to be removed. The next day I'm removed, when am I to do this, according to what you've proposed is within the power of the Attorney General and therefore the agency? As to that, I'm not entirely sure how in terms of that actually plays out in terms of on a practical basis. Well, that's what we're concerned about. You say it's within Congress's right to give the Attorney General this authority. And I'm suggesting to you that there is a practical scenario in which the right would never be able to be exercised. And that's our concern and the concern of at least five other circuits. I understand that. And I see it as that the ability to file that the Attorney General's... I guess the notion is that the Attorney General is promulgating a regulation that is intended to ensure the finality of removed proceedings. The Congress intended that they remove individuals within a 90-day period. And so the Attorney General, removing someone in that time frame, is simply, I guess, in line with what Congress mandated in terms of maintaining that, I guess, the removal. I know you're in a difficult position, but it just doesn't make any sense if the Attorney General through the agency can exercise a right that's been provided to the alien on day one. And just if it's right to write altogether by removing them before the aliens had a chance to do anything. I mean, this particular factual situation is akin to what I'm talking about just making it more drastic. I mean, but by the time the letter got there, it follows in the Dominican Republic. It could have just easily been before she mailed the letter and he sent the Dominican Republic. And that just can't be the result that Congress intended. The fact is that Congress remained silent as to the act. I mean, those circumstances may have occurred prior to the enactment of the... Can you speak up a little bit? Can you speak up a little bit? Sorry, so it might keep going. At the time of the enactment of the statutory where they codified kind of the limitations and the time issues regarding to much more... Are you talking about Erreira? Yes. And when at that time the departure bar wasn't... That was 96, wasn't it? Yes. And at that time, Congress was well aware of the departure bar regulation. They were aware that this is the regulation that the Attorney General had promulgated and had been enforcing since 1952. But did they put in a motion to reopen and reconsider it in Erreira? Yes. The statute that's relevant to this case specifically says the alien may file one motion to reconsider a decision of the... Okay, so that shows that Congress did consider it and put it in. Consider the

. I know you're in a difficult position, but it just doesn't make any sense if the Attorney General through the agency can exercise a right that's been provided to the alien on day one. And just if it's right to write altogether by removing them before the aliens had a chance to do anything. I mean, this particular factual situation is akin to what I'm talking about just making it more drastic. I mean, but by the time the letter got there, it follows in the Dominican Republic. It could have just easily been before she mailed the letter and he sent the Dominican Republic. And that just can't be the result that Congress intended. The fact is that Congress remained silent as to the act. I mean, those circumstances may have occurred prior to the enactment of the... Can you speak up a little bit? Can you speak up a little bit? Sorry, so it might keep going. At the time of the enactment of the statutory where they codified kind of the limitations and the time issues regarding to much more... Are you talking about Erreira? Yes. And when at that time the departure bar wasn't... That was 96, wasn't it? Yes. And at that time, Congress was well aware of the departure bar regulation. They were aware that this is the regulation that the Attorney General had promulgated and had been enforcing since 1952. But did they put in a motion to reopen and reconsider it in Erreira? Yes. The statute that's relevant to this case specifically says the alien may file one motion to reconsider a decision of the... Okay, so that shows that Congress did consider it and put it in. Consider the... When Congress was addressing this issue, they indicated to the Attorney General to, I guess, a set-up regulation... Sorry, a set-up what they thought was the appropriate limitations and or kind of codifying it to address the act. But isn't it reflected in the time period? Congress had in mind it's a narrow right and we're narrowly providing it in 30 and 90 days respectively. So that goes to the agency's desired alacrity. But it's got to be a right that has an opportunity to be exercised. But at the same time, Congress is intent and I guess enacting Erreira was to promote expediting addressing the motion... Sorry, immigration cases and to, I guess, adjudicate them and establish finality and mover proceedings. That explains the limited time period. At the same time that they established those limited time periods that Congress didn't affect the... Even though they were aware of this departure bar regulation did not in any way limit the Attorney General's discretion in addressing this issue. But the point is Congress couldn't have intended to eviscerate a right it provided. Right? That's really the essence of the point. If you... It's narrow, 30 days, 90 days. It can't be that you can undermine what they've provided just by moving more quickly to get the alien out of the country. The thought is that Congress was aware of this and it's presumed that they were aware of the fact that this regulation was in the departure bar regulation was in place. Is there anything in the legislative history that suggests that they were aware of it, that they consider it? And purposely didn't do anything? I'm not aware of that, but at the same time it is generally presumed that Congress would be aware, especially in light of the fact that they're considering the judicial review bar repealing it

... When Congress was addressing this issue, they indicated to the Attorney General to, I guess, a set-up regulation... Sorry, a set-up what they thought was the appropriate limitations and or kind of codifying it to address the act. But isn't it reflected in the time period? Congress had in mind it's a narrow right and we're narrowly providing it in 30 and 90 days respectively. So that goes to the agency's desired alacrity. But it's got to be a right that has an opportunity to be exercised. But at the same time, Congress is intent and I guess enacting Erreira was to promote expediting addressing the motion... Sorry, immigration cases and to, I guess, adjudicate them and establish finality and mover proceedings. That explains the limited time period. At the same time that they established those limited time periods that Congress didn't affect the... Even though they were aware of this departure bar regulation did not in any way limit the Attorney General's discretion in addressing this issue. But the point is Congress couldn't have intended to eviscerate a right it provided. Right? That's really the essence of the point. If you... It's narrow, 30 days, 90 days. It can't be that you can undermine what they've provided just by moving more quickly to get the alien out of the country. The thought is that Congress was aware of this and it's presumed that they were aware of the fact that this regulation was in the departure bar regulation was in place. Is there anything in the legislative history that suggests that they were aware of it, that they consider it? And purposely didn't do anything? I'm not aware of that, but at the same time it is generally presumed that Congress would be aware, especially in light of the fact that they're considering the judicial review bar repealing it. They must have been aware of the Attorney General's long-standing regulation and their decision not to address it or remain silent on it, but maintain the Attorney General's discretion. Would indicate a silence on that matter. Well, one can look at that and take the other result. Isn't it a little hard to assume that Congress must have known and proceeded or declined to proceed in a particular direction that would weaken the statutory undertaking? I think Congress must have known that and at the same time being aware of the point that Judge Greenoway has so effectively made that if there's immediate departure or departure within 24 hours removal, the presumed statutory right is initiated. Why would Congress presumably be aware of and approve such an arrangement? I suppose it's that Congress is having maintained the Attorney General's discretion in addressing these matters. And it generally is, I guess, in addressing an issue of relating to motions or any sort of filings outside of the United States, it could be presumed that they were aware of this regulation that had been in place for nearly 40 years prior to the discussions really leading up to IRERA. And I believe my time is up. That's for the lesson. Thank you so much. Thank you. Thank you. I just like to clarify on the bad decisions I would say the adverse decisions to our side that are out there. The other decisions. Our position is there really is only a conflict with one other circuit, the 10th circuit has addressed this issue, the statutory arguments in Rosio Puga. He said the first. He did say the first, I did want to address that, the case is Pena Muriel. And in that case there was actually a rehearing petition filed in a subsequent decision denying the rehearing petition in which the first circuit clarified that the issue of the conflict with the statute was not actually presented to the court and that it hadn't decided that argument. Oh, really? In that case the issue that was made. Is that a reported decision? Yes, it's cited in our brief. 49. In that case the only argument that had presented was that the repeal to the judicial review departure bar actually spoke to the issue alone. He did not, the petitioner in that case did not even raise the motion to reopen statute. And so the court just wanted to clarify. It was just the motion to reconsider but not the motion to reopen. It was neither actually the petitioner rehearing. The petitioner didn't actually raise any of these arguments. It didn't raise anything that was, that had been raised in William

. They must have been aware of the Attorney General's long-standing regulation and their decision not to address it or remain silent on it, but maintain the Attorney General's discretion. Would indicate a silence on that matter. Well, one can look at that and take the other result. Isn't it a little hard to assume that Congress must have known and proceeded or declined to proceed in a particular direction that would weaken the statutory undertaking? I think Congress must have known that and at the same time being aware of the point that Judge Greenoway has so effectively made that if there's immediate departure or departure within 24 hours removal, the presumed statutory right is initiated. Why would Congress presumably be aware of and approve such an arrangement? I suppose it's that Congress is having maintained the Attorney General's discretion in addressing these matters. And it generally is, I guess, in addressing an issue of relating to motions or any sort of filings outside of the United States, it could be presumed that they were aware of this regulation that had been in place for nearly 40 years prior to the discussions really leading up to IRERA. And I believe my time is up. That's for the lesson. Thank you so much. Thank you. Thank you. I just like to clarify on the bad decisions I would say the adverse decisions to our side that are out there. The other decisions. Our position is there really is only a conflict with one other circuit, the 10th circuit has addressed this issue, the statutory arguments in Rosio Puga. He said the first. He did say the first, I did want to address that, the case is Pena Muriel. And in that case there was actually a rehearing petition filed in a subsequent decision denying the rehearing petition in which the first circuit clarified that the issue of the conflict with the statute was not actually presented to the court and that it hadn't decided that argument. Oh, really? In that case the issue that was made. Is that a reported decision? Yes, it's cited in our brief. 49. In that case the only argument that had presented was that the repeal to the judicial review departure bar actually spoke to the issue alone. He did not, the petitioner in that case did not even raise the motion to reopen statute. And so the court just wanted to clarify. It was just the motion to reconsider but not the motion to reopen. It was neither actually the petitioner rehearing. The petitioner didn't actually raise any of these arguments. It didn't raise anything that was, that had been raised in William. He made a due process argument and pointed to the departure bar provision that had been repealed with respect to judicial review. But that in that case the alien had been removed five years earlier. As he may not have had the statutory argument. It really doesn't come within what we're talking about. You're right, Your Honor. So I just wanted to say that it is an open issue. Also they did not consider this jurisdictional argument under union. I didn't hear that. That the first circuit did not consider the jurisdictional argument under union Pacific. Then I would say with respect to the 10th Circuit while it clearly is at odds with the other circuits. At the time where the Puga was decided, none of the briefing on the union Pacific argument was presented to the court either. There is actually a rehearing petition on bond pending in the 10th Circuit in the court order the government to respond to that. They did respond just a couple of weeks ago. There's potential for reconsideration there as well. The court has no other questions for me. I'd like to rest on our brief. Thank you. Thank you. Judge Pollock, do you have any questions? No further questions. Thank you. Thank you. We will take this very important matter under advisement. The panel is going to be reconstituted. So we're going to get up and walk out. Judge Pollock, can we agree on the time for conferencing? What time is convenient for you? Because we're about to hear two more cases. I see. A time a convenient time here would be, oh, how long are you? You're going on forward in the balance of the morning

. He made a due process argument and pointed to the departure bar provision that had been repealed with respect to judicial review. But that in that case the alien had been removed five years earlier. As he may not have had the statutory argument. It really doesn't come within what we're talking about. You're right, Your Honor. So I just wanted to say that it is an open issue. Also they did not consider this jurisdictional argument under union. I didn't hear that. That the first circuit did not consider the jurisdictional argument under union Pacific. Then I would say with respect to the 10th Circuit while it clearly is at odds with the other circuits. At the time where the Puga was decided, none of the briefing on the union Pacific argument was presented to the court either. There is actually a rehearing petition on bond pending in the 10th Circuit in the court order the government to respond to that. They did respond just a couple of weeks ago. There's potential for reconsideration there as well. The court has no other questions for me. I'd like to rest on our brief. Thank you. Thank you. Judge Pollock, do you have any questions? No further questions. Thank you. Thank you. We will take this very important matter under advisement. The panel is going to be reconstituted. So we're going to get up and walk out. Judge Pollock, can we agree on the time for conferencing? What time is convenient for you? Because we're about to hear two more cases. I see. A time a convenient time here would be, oh, how long are you? You're going on forward in the balance of the morning. Is that right? Well, two more cases. And I think Jane has a capital case with another panel. That's a one-a-clock. That's a one-a-clock. Yeah. I see. Well, I was going to suggest, in any time before, say, two o'clock, it would be fine for me. Okay. Well, we'll call you before two. All right. I, after two thirty, I won't be available. Okay. Thank you. All right. Thank you both. Thank you all. Okay. Thanks a lot. Fine. We'll pass with the papers out. Thank you.

One that's a leave Friday free is so that everybody would get up at 4 o'clock in the morning so you could all watch the wedding. I have other things to do in the morning. Okay. Okay, we will hear counsel. Oh, in case you think that we don't have a full panel, that's not accurate. Judge Pollock is going to participate by telephone. Lou, can you hear me? I can indeed. Yes, yes, need. Okay, the only look forward to participating. Good. The only problem is you don't see the lovely faces that are sitting before me, us by on the appellan side and also, but I don't think lovely is the word. Good looking on the Apple East side. Okay, happy to hear that right. He didn't want to be well, I'm sorry to miss the scene, but the scene is attractive. Okay. All right, we'll hear the first case for today, which is Espinal versus Attorney General. May it please the court. I'm Beth Whirlin. On behalf of the Amicie Curie, American Immigration Council and National Immigration Project, I'd like to reserve two minutes for a bottle. That's great. Now you can't both have a bottle. Okay. So you have to decide who does the rebuttal. Okay, I was a mistake yesterday, but our rule is if you have joint counsel, then, one can be rebuttal. Okay. Are you the rebuttal? I'll check the door. I will be the rebuttal. Thank you very much. Okay. Fine. And you want two minutes. Could I change that to three then because we were going to do two and share it? Sure. You didn't change it. Thank you very much. Okay. Roberta, you have that. Thank you. This case involves the validity of the departure bar regulations to motions to reopen and reconsider removal proceedings. You are in a much better position now that, well, at least three other circuits have won your way. Yes, your honor. Actually, it's five circuits right now. It's the second, the fourth, the sixth, the seventh, and the ninth have found that the departure bar regulation is unlawful. And there are two separate grounds. You know where it's going to go from here. Well, unless, unless the BIA changes its position, but I guess it might not. There is actually a petition for rulemaking pending before the agency or honor. And there have been several cert petitions filed on this issue as well, but the Supreme Court has not taken cert on any case cases, not yet at the Easter right. But there are two separate grounds for reaching the conclusion that the regulation is unlawful. First, that the departure bar regulation conflicts with the statute. And second, that the immigration agency has impermissibly contracted its own jurisdiction by interpreting the regulation as jurisdictional. I'd like to address the first argument and my colleague will address the second argument. Sure. And make it ask the court to find that the motion to reopen and motion to reconsider statutes unambiguously provide all persons in removal proceedings the right to file a motion to reopen and motion to reconsider regardless whether they're inside or outside the United States. Congress's intent to permit post-aparture motions is clear first from the plain language of the statute, but it's also supported by the overall structure of the motion to reopen provisions, which contains some limitations, but not at a departure bar. Also, its intent is clear from the simultaneously enacted provisions in the INA. Most importantly, the mandatory removal period. The little slower. More slower. Well, that's right. Absolutely. It's going to get all the way to judge. I understand. Okay. The also the mandatory removal period, which is irreconcilable with the departure bar. So looking first at the plain language of the statute, the statute plainly affords all individuals in removal proceedings the right to file a motion to reopen or a motion to reconsider. And as the Supreme Court said in Zada, the statutory text is plain in so far as it guarantees each alien the right to file one motion to reopen proceedings. So the Supreme Court further went on to say that it would be reluctant to limit the availability of this right or this important safeguard given that the plain text reveals no such limitations. But the departure bar actually does that. It limits the right to a whole class of non-citizens simply by virtue of them being outside the United States. But beyond just the plain language, we look to the overall structure of the motion to reopen and reconsider provisions. We can see that Congress certainly intended to permit post-aparture motions when it codified the motion to reopen and reconsider statutes in 1990. I'm wondering whether the moment you move from plain language to the setting of the statute, you haven't departed from at least a chevron now. So I'm going to ask you some of the general statutory framework to show that the particular challenge language is not ambiguous. Your Honor, this case, this course case law, as well as the Supreme Court's case law has suggested that when you're looking at the first step of chevron, you start with the plain language, but beyond that, you can also employ traditional tools of statutory construction to determine Congress's intent. And they pointed that out in the decision Zang from 2005. And so I think that we can, in fact, move on to employing traditional tools of statutory construction, such as the rule that you read the statute as a whole and that you look to what exceptions were actually included in the statute, in the presumption that other exceptions were not, in fact, intended when it's clear that someone included. And I think that's what happened here. When you look at what Congress did in 1996, it actually did codify some limitations on motions to reopen that pre-existed in the regulations. But it's significantly, it did not codify the departure bar, which had previously existed. The government's basically asking you to give no meaning to Congress's deliberate omission of one of the regulations when it actually went forward and codified the other ones. Is there any legislative history that shows that this was intentional by Congress? No, we were not able to find anything specific to this provision. I've had some questions. Yes, I don't, how do you put together the different timings for the motion to reconsider and the motion to reopen? To reopen. So under the judge. You argue that either or both. You could have a both. You can have a both. There are two independent provisions. They do have different time limits. It's 30 days for motion to reconsider and 90 days for motion to reopen. But in fact, you can file both. It's not in either or proposition. Do people file both? Yes, they do, actually. I would say that the motion to reopen is much more common. And that's, you know, it's a longer period. It's a longer period, but it's much more likely that new evidence would be coming up. The motion to reconsider is narrowly tailored to errors of law. So it's not dependent, errors of law or facts. So it's not necessarily dependent on a new development that occurred. Perhaps that's the explanation for the lengthier time. But in my remaining few moments, I just like to point out that the Ninth Circuit recently focused on the tension with the mandatory removal period, which says that the attorney general has to remove a person within 90 days. And there's a clear conflict there with the departure bar in order to give the motion to reopen provision meaning the court there found that it needed to strike the departure bar. Excuse me. The court there found what? Sorry, that was the case, Rayus Taurus. The court there actually found under step one that the statute required permitted motion's post departure and therefore the regulation was invalid. Thank you. Wait a minute, don't go in. Chef Pollock, do you have any questions before she sits down? Oh, yes, I do. So suppose the regulation provided that any alien could file one motion to reopen or reconsider. But such a motion as filed on behalf of an alien who was departed the country would be considered only if accompanied by or supported by an application by a member of the alien's family resident in the United States. With that limitation on the right of an alien to file one motion to reopen or reconsider, would that be the compatible with the statute? Your Honor, I don't think it would be, I think that would sort of run up against the same problems that we're facing here with an absolute departure bar. That would be I guess a subset of the departure bar. But we'd still have the problem of it cutting off eligibility when Congress didn't specifically include such a limitation. And the fact that it did specifically include other limitations I think is significant there. So the Attorney General couldn't qualify procedurally the form of an application? I think the way that you've presented it though, it's beyond just procedural because I think depending on it would actually cut off a group of claims. Not all claims are going to involve situations where the person would have that qualifying relative. It could be, for example, a situation where there was a vacated conviction in the person's no longer removable. That would have no basis, it would have no relationship with the relatives in the United States. It could be a change in the law, a new Supreme Court decision that affects the removable ability. Again, it would have no relationship to relatives in the United States. Thank you. Welcome. Thank you. Thank you. Okay. We'll hear. May it please the Court? My name is Jacqueline Brown Scott. I represent the petitioner Ramon Pistol. I spent all, and I'll reserve two minutes which I can see to my council for the battle. The petitioner and native of the Insidistent of the Dominican Republic applied pro-say for withholding removal and protection under the Convention Against Torture because he had a good reason to believe that he was going to be killed if removed in his country. A little slower, so it's not to apologize. Sure. It's just that's what they're doing. Yeah. Thank you. I'm sorry. I felt it. Okay. The immigration judge denied his relief, and I accepted his case pro bono through the BIA pro bono project. We filed an appeal, and the BIA denied petitioners appeal on November 3rd, 2009. I received the decision approximately five days later, and because the petitioner was being detained by DHS and York County, Pennsylvania, our primary method of communication was mail. I wrote him a letter and requested that he contact me as soon as possible to discuss the next steps. I received his phone call on November 24th to the Tuesday before Thanksgiving, and he was already in the Dominican Republic. DHS had deported him the day before. But within the next week, I've- Excuse me. Would you make a difference if he had been voluntarily departed as the Zs. I don't think it would make a difference in terms of how the statute- he's a statutory right to one motion, or open, no matter how you remove from the country. In his case, it would- in this case, it would help him because he was forced to be removed. Originally, the night circuit made a distinction between that in quite, but later, other circuits have said that in terms of voluntarily being voluntarily removed or in voluntarily removed, it doesn't affect that outcome. Of course, in my case, it still helps. So we filed this time in motion, or we consider, the BIA denied the motion citing jurisdictional grounds, notwithstanding his statutory right to file one motion to reopen within 30 days of the decision. As Miki stated, in addition to the fact that the regulation is in conflict with the statute, and relying on it, the agency also contracts without any authority, its subject matter jurisdiction, over-motions to reopen, which the Supreme Court has held is impermissible. In Union Pacific, the Court considered whether the National Railroad Adjustment Board had jurisdiction to arbitrate labor claims. Absent proof that the party's attempted to resolve the dispute through a pre-arbitration conference in the Supreme Court held that it's unlawful for an agency to contract its own jurisdiction by regulation or by decision. Finding that Congress gave that board no authority to adopt rules of a jurisdictional dimension. Similarly, Justice Congress delegated authority to the Adjustment Board in that case to adopt rules as it deems necessary to control proceedings. It also gave the Attorney General here the power to quote, establish the regulations, review such administrative decisions, determinations and immigration proceedings, delegate such authority, and perform other acts as the Attorney General deems necessary for carrying out the section. And that is 8USC-1103G2. And while in Union Pacific there was an explicit grant, here we have more of a scheme. Besides 1103G2, there's also section 1229A, which lays out removal proceedings, the conduct of proceeding, the authority of the immigration judge, and with this section that the motion review is actually- If I were to say, I wouldn't understand what you were saying. Hello? So you'd have to please speak to our close. Yeah, so that he can understand. I think that's the case with the telephone. May I put in a question? Sure. I'm a Union Pacific argument, an intriguing one. But I wonder whether at bottom, it's any different from the proposition that under Chevron Analysis, the statute is unambiguously given an entitlement to any alien, wherever located to file a motion to reopen within the time period. In either case, there's one invoking the quote's clear statutory language to say in the one hand, this is the alien's right, and in the other hand, the VA can't contract its own jurisdiction in this fashion because of the statute. Analytically, did I wind up by being different arguments? I'm not 100% sure. I heard the whole- the first part of the question in terms of if there are different arguments because of the question. I guess maybe I'm sorry if I haven't clarified it. It seems to me that the reliance on Union Pacific ultimately comes down to how does one can true what Congress has done in conferring jurisdiction upon the agency. And in the Chevron line of argument, one is ultimately reduced to saying the statutory language unambiguously confers an entitlement to file wherever you're located. I'm wondering if those are really different analytic proceedings or whether in both cases one isn't reduced to saying this is what the statutory language means when it says one motion to reopen. I think that, sorry, go ahead. I think I understand they are two independent grounds of invalidating the regulation in terms of the first way looking at the clear language of the statute using the Chevron analysis. I think in Union Pacific, you could also, using the Union Pacific line of arguments, you could also technically use Chevron and there's evidence to show that the regulation is unreasoned under Chevron set two. I'm not sure if that's exactly what you're asking. I do think you can come with the same answer in terms of there's two ways to invalidate the regulation. Well, you've responded as I expected to the extent that I've made it a confusing question to put. I apologize, of course, but I'm glad to have you focus on both lines of argument. Thank you. You can continue. Okay. So, as the CISC circuit recently pointed out, improved say, the motionary open statute is an empowering, not a divesting provision and it grants the board authority to entertain a motion to reopen. Which is sort of the way the Supreme Court treated it in Dada. Right. So, exactly. That emphasizes the right to file motion. It means the right to have it heard and if the government is going to argue that- He said it was one of the most important rights in something. Yes. That's the safe guard, exactly. And if the IJ and the BIA are not going to be able to adjudicate a motionary open, this right, who would adjudicate it? There are no cases anywhere that go the way you've identified five circuits, two, four, seven and a half. Right. The fifth circuit and the tenth circuit have gone the other way, but they are pre-union specific. And there's the descent in the fourth circuit. There's a strong descent in the fourth circuit, that's correct. So the INA authorizes the BIA to reconsider or reopen its decision and it does not make that step dependent on the non-citizens presence in the United States. While the BIA impermissively refuses to adjudicate statutory motion to reopen or motion to reconsider, based on the false premise that it lacks the power to hear them, it at the same time declares itself competent to adjudicate motion to reopen filed by non-citizens abroad in cases involving in-abcensia orders issued without proper notice. And that is, of course, a matter of bullnays. So a non-citizens presence... Why do you just mumbled something? A matter of bullnays, that's the case. They said they had the... I just wanted to be sure you'll have her there. Okay. Sorry. So a non-citizens presence in the United States does not impact the BIA's adjudicatory authority. In addition, the BIA continues to have jurisdiction over cases involving deported non-citizens that are remanded after a successful petition for review. So Congress certainly intended for a case to continue post-aparcher by removing the automatic state provision and that a parcher bar for judicial review. This court has also found that another limitation or another limit on motion to reopen the 180-day time limitation, re-in-up-centre removal orders, can be echoed or be told and that's in forages. If the court found that it instructed that there was no reference to jurisdiction in the statute or in the legislative history. In addition, I just want to add that the parcher bar is unreasonable because it's subject to unilateral manipulation by DHS which certainly happened in the petitioner's case. DHS has unilateral control over the litigation because it can deport a person anytime after the removal order becomes finalist to find in a... I see my time's up. Yeah, I'm sorry. I don't know what you just said. Why don't you finish the sentence or the court clearly? That the regulation is subject to unilateral manipulation by DHS because they have the power to unilaterally withdraw the other side of motion. Why don't you assume that they would manipulate? Well, I don't know that agencies manipulate. I think that they have... I mean, they do things. They may not be things that you... Perhaps the manipulated is a poor word. They have the power to withdraw on other sides. Motion. I mean, they have the power to cut it short. Manipulation has within it. Negative connotation. Yes. Yeah. If one were to decide, yes, that the union-specific dictated that the board continued to entertain such motions. Well, we may have talked about this as a jurisdictional limitation before, but that was probably a mistake. It's really a claimous processing limitation. We're willing to entertain an alien's application, but only so long as the alien is in the United States. Would the board not be authorized to do this? How should I put it? Subdueristicional limitation. Right. If so, if the board decided to later characterize it as like a mandatory claims processing, they could, however, we'd still go back to the original argument that the regulation is still in conflict with the statute. So I think we'd still have to be analyzed under Chevron. I think... I think so. Thank you. Thank you. Do you excuse me? Do you have any questions? Okay. Thank you. We'll hear from the agency. Mr. Yusef. Good morning. Pick up the phone. Good morning. May I please... Good morning. May I please the court... You know, Yusef for the responded. The court should grant Chevron deference to the Attorney General's categorical exercise of discretion in promigrating the departure bar regulation. Are you in a difficult position now that one, two, three, four... I think it was five, but anyway, four circuits have gone... No, you're... It is five. The second, the fourth, the sixth, the ninth, and the seventh. Yes. And the seventh. In a difficult position, what does it take to have the agency... Reconcider its position when all those appellate judges think its position can't be sustained? I would note that the tenth in the first circuit, as well as the strong descents in the... I believe the fourth circuit, as well as the ninth circuit, would at least count on our side for that. But it would be our position in viewing that the extensive broad... The broad rule of authority given... You better say that again, we'll be back. Yeah. Our position that the broad rule of making authority given to the Attorney General and his exercise of that discretion in promigrating this regulation is clear. What's the reason for the regulation? And why shouldn't somebody who has been removed in voluntarily be able to ask to have a review, Regencillation? Firstly, the Congress gave the Attorney General the power to address immigration matters. Yeah, but what's the reason? I mean, the Attorney General, somebody, BIA, somebody had a reason. And it can't just be, we don't want to be bothered with requests by aliens who I know won't learn the United States, but we've removed them. Well, the thought is that the statute enacting these limitations on the motions to reopen, the purpose of that was to reduce the number of, I guess, frivolous applications into... Well, how do you know they're frivolous if they haven't been considered on the basis of the law? And the merits? I guess at that period of time when this, I-Rero was being considered, there was a concern by Congress of the successive applications and the motions to reopen being filed by aliens who would essentially keep filing in order to continue their applications in the system so order to prevent their removal. I know. Well, it's not what you have here, right? I mean, looking at the, excuse me, the facts in the first circuit case, in the fifth circuit case, you're talking about instances where action was sought years later. You know, here, it's right within the 30 days, or, yeah, right, the 30 days. So what's, I think, to its lower, it was getting at, what's the logic of this? We know what the law says, what's the logic of it, and looking at the two of three circuits that have gone the other way. The facts aren't really a positive or analogous to what we have here, so help us. Let me just add to that, you can, it's easy to say we won't hear a successive motion, which is what you were talking about. But that's not what this does. It's just says, if you're not in the United States, you can't find. We removed you, and if you're not in the United States, you can't find file motion. To that, the regulation support is in line with the idea of the statutory, and I rear end, promoting finality and move proceedings. Sure, and you could say no alien can file a motion to reopen. But the Supreme Court said those motions are important. We adopt them. I mean, we will stand behind them. They're very important, the Supreme Court said. So how do you reconcile the Supreme Court's approval of motions to reopen with the regulation that says you can't file it if you're not in the United States? And we remove you. In those Supreme Court cases, I think, Susanna, it was that the Court is still also stated that Congress did not affect in any way the government. The Attorney General's discretion in addressing these matters and in promulgating the regulation. As, for example, that regulation was in place for nearly 40 years while Congress was discussing and addressing these limitations on actions to reopen. And they made no, they remained silent as to the issue of whether they wanted to repeal the departure bar, which was present since 1952. So based off of that, there's nowhere in the statute. Is there any indication that Congress intended to repeal that? The statute is silent in that regard. And I remember when I first came, long time ago, the agency always said, doesn't matter if they removed because they can still be heard. They can file a motion to reopen. There's just been a complete turnaround of that. Why? I mean, I, of course, if you're an agency and you don't want to be bothered with aliens, then, you know, but that's your job. That's what the agency is doing. The post. Part of that is at the time of the discussion of the, I believe in the comment period after the statute was enacted and discussing the weather to maintain the departure bar, the Attorney General clearly stated that the burden associated with adjudicating all these motions would greatly outweigh the effect, the effect that would have on the agency in terms of the number of just in terms of, I guess, efficiency and ability to address all of the motions to reopen. And this was a regulation enacted by, I guess, a promulgated by the Attorney General in language. But without any congressional support, I mean, there's nothing in the con in the, in the statute that suggests that this regulation is appropriate. Or is congressional intent? At the same time that the Congress was considering this matter, when they repeal the judicial bar for a judicial review bar, it's presumed that they were aware of this regulation that was in place since 1952 and they made no mention of they may know, took no position on that matter, except at that same time, they maintain the extensive delegation of authority to the Attorney General to address immigration matters. Let's get back to the circuit cases that I heard earlier. Could the agency in its interest be? Actually, Lura, I'm in the middle of a question, one second. Thank you, Bart, and I'm sorry. No, I wasn't speaking into the microphone, which my law clerks have chided me about. So I apologize. My question is, can we go back to the circuits that you have relied on in the beginning of your presentation? It seems to me that they present instances that are factually distinct from this one, so I'm wondering what solace they really give you. Well, the approach of, I believe it was the Tencesterkin, the first circuit, they stopped their analysis at the first step of Chevron and indicating that, or sorry, not stopped, but I'm basing on the fact that the statute was silent as to any indication of Congress intending to repeal the departure bar. And we believe that that still holds in, that there's no indication that Congress spoke on the issue. And since there was no action, and that silence would then lend it to go to the second step of Chevron, where this is a reasonable interpretation of what Congress was intending here in terms of promoting the finality of immigration proceedings. Well, that's what's been before the courts, whether it is a reasonable regulation. Five circuits have said no. I'm not a camera exactly specifically how some circuits indicated that they felt that Congress was actually spoke on this issue in the statute. However, it's our position as well as the position of the tenth in the first circuit, I believe, that there was a silence on this issue. And the regulation itself is simply the categorical exercise of discretion by the Attorney General during this enactment of the statute. Did I thought you were a questioner? In data, didn't the Supreme Court recognize that Congress through the Errira created a statutory right to file a motion to reopen and be considering? I believe in that case, the... I mean, not only the Supreme Court. Well, that's a tough one to respond to, but... What? But it's before us. I understand. Well, that may be the case that there is still no... There might be a right to file a motion to reopen or a motion to consider the ultimate determination whether that's granted is not... It's still discretionary as determined by the Attorney General. But the administrative agency is limiting that right that the Supreme Court suggested that Congress created in the statute. Well, I guess... Is my question clear? It's very clear. Just hard to answer. Yes. In that in data, I still... While it may be interpreted that those motions to reopen would be granted as a matter of right, the notion that their motion to reopen are still disfavored and the finality of immigration proceedings is still the policy and the intent of Congress in this action. That when they enacted IRRA, they specifically simply limited the numerical and time and placed limitations numerically in terms of time on most of the open, but at the same time, they did not limit the Attorney General's discretionary rulemaking authority in this field. And with that, it maintained... That was a gap that was left by Congress in which they delegated to the Attorney General in order to address how to adjudicate these motions. So if the agency acts properly according to its view of this law, you'd never have a motion to reconsider because they just make sure that the alien was removed on day one. Because the aliens removed on day one, there'd be no way to ever effectively exercise the motion to reconsider. Or re-adjudicate. Well, I'm even going with the shorter time period. So that you say is what Congress intended to give the Attorney General the discretion to essentially eviscerate the motion. And that's why Congress is not going to be able to eviscerate a right entirely. For that instance, I believe the petitioner would be able to file a stay in order to prevent that from occurring, but also... How's that? It's on day one. I found out yesterday that I'm going to be removed. The next day I'm removed, when am I to do this, according to what you've proposed is within the power of the Attorney General and therefore the agency? As to that, I'm not entirely sure how in terms of that actually plays out in terms of on a practical basis. Well, that's what we're concerned about. You say it's within Congress's right to give the Attorney General this authority. And I'm suggesting to you that there is a practical scenario in which the right would never be able to be exercised. And that's our concern and the concern of at least five other circuits. I understand that. And I see it as that the ability to file that the Attorney General's... I guess the notion is that the Attorney General is promulgating a regulation that is intended to ensure the finality of removed proceedings. The Congress intended that they remove individuals within a 90-day period. And so the Attorney General, removing someone in that time frame, is simply, I guess, in line with what Congress mandated in terms of maintaining that, I guess, the removal. I know you're in a difficult position, but it just doesn't make any sense if the Attorney General through the agency can exercise a right that's been provided to the alien on day one. And just if it's right to write altogether by removing them before the aliens had a chance to do anything. I mean, this particular factual situation is akin to what I'm talking about just making it more drastic. I mean, but by the time the letter got there, it follows in the Dominican Republic. It could have just easily been before she mailed the letter and he sent the Dominican Republic. And that just can't be the result that Congress intended. The fact is that Congress remained silent as to the act. I mean, those circumstances may have occurred prior to the enactment of the... Can you speak up a little bit? Can you speak up a little bit? Sorry, so it might keep going. At the time of the enactment of the statutory where they codified kind of the limitations and the time issues regarding to much more... Are you talking about Erreira? Yes. And when at that time the departure bar wasn't... That was 96, wasn't it? Yes. And at that time, Congress was well aware of the departure bar regulation. They were aware that this is the regulation that the Attorney General had promulgated and had been enforcing since 1952. But did they put in a motion to reopen and reconsider it in Erreira? Yes. The statute that's relevant to this case specifically says the alien may file one motion to reconsider a decision of the... Okay, so that shows that Congress did consider it and put it in. Consider the... When Congress was addressing this issue, they indicated to the Attorney General to, I guess, a set-up regulation... Sorry, a set-up what they thought was the appropriate limitations and or kind of codifying it to address the act. But isn't it reflected in the time period? Congress had in mind it's a narrow right and we're narrowly providing it in 30 and 90 days respectively. So that goes to the agency's desired alacrity. But it's got to be a right that has an opportunity to be exercised. But at the same time, Congress is intent and I guess enacting Erreira was to promote expediting addressing the motion... Sorry, immigration cases and to, I guess, adjudicate them and establish finality and mover proceedings. That explains the limited time period. At the same time that they established those limited time periods that Congress didn't affect the... Even though they were aware of this departure bar regulation did not in any way limit the Attorney General's discretion in addressing this issue. But the point is Congress couldn't have intended to eviscerate a right it provided. Right? That's really the essence of the point. If you... It's narrow, 30 days, 90 days. It can't be that you can undermine what they've provided just by moving more quickly to get the alien out of the country. The thought is that Congress was aware of this and it's presumed that they were aware of the fact that this regulation was in the departure bar regulation was in place. Is there anything in the legislative history that suggests that they were aware of it, that they consider it? And purposely didn't do anything? I'm not aware of that, but at the same time it is generally presumed that Congress would be aware, especially in light of the fact that they're considering the judicial review bar repealing it. They must have been aware of the Attorney General's long-standing regulation and their decision not to address it or remain silent on it, but maintain the Attorney General's discretion. Would indicate a silence on that matter. Well, one can look at that and take the other result. Isn't it a little hard to assume that Congress must have known and proceeded or declined to proceed in a particular direction that would weaken the statutory undertaking? I think Congress must have known that and at the same time being aware of the point that Judge Greenoway has so effectively made that if there's immediate departure or departure within 24 hours removal, the presumed statutory right is initiated. Why would Congress presumably be aware of and approve such an arrangement? I suppose it's that Congress is having maintained the Attorney General's discretion in addressing these matters. And it generally is, I guess, in addressing an issue of relating to motions or any sort of filings outside of the United States, it could be presumed that they were aware of this regulation that had been in place for nearly 40 years prior to the discussions really leading up to IRERA. And I believe my time is up. That's for the lesson. Thank you so much. Thank you. Thank you. I just like to clarify on the bad decisions I would say the adverse decisions to our side that are out there. The other decisions. Our position is there really is only a conflict with one other circuit, the 10th circuit has addressed this issue, the statutory arguments in Rosio Puga. He said the first. He did say the first, I did want to address that, the case is Pena Muriel. And in that case there was actually a rehearing petition filed in a subsequent decision denying the rehearing petition in which the first circuit clarified that the issue of the conflict with the statute was not actually presented to the court and that it hadn't decided that argument. Oh, really? In that case the issue that was made. Is that a reported decision? Yes, it's cited in our brief. 49. In that case the only argument that had presented was that the repeal to the judicial review departure bar actually spoke to the issue alone. He did not, the petitioner in that case did not even raise the motion to reopen statute. And so the court just wanted to clarify. It was just the motion to reconsider but not the motion to reopen. It was neither actually the petitioner rehearing. The petitioner didn't actually raise any of these arguments. It didn't raise anything that was, that had been raised in William. He made a due process argument and pointed to the departure bar provision that had been repealed with respect to judicial review. But that in that case the alien had been removed five years earlier. As he may not have had the statutory argument. It really doesn't come within what we're talking about. You're right, Your Honor. So I just wanted to say that it is an open issue. Also they did not consider this jurisdictional argument under union. I didn't hear that. That the first circuit did not consider the jurisdictional argument under union Pacific. Then I would say with respect to the 10th Circuit while it clearly is at odds with the other circuits. At the time where the Puga was decided, none of the briefing on the union Pacific argument was presented to the court either. There is actually a rehearing petition on bond pending in the 10th Circuit in the court order the government to respond to that. They did respond just a couple of weeks ago. There's potential for reconsideration there as well. The court has no other questions for me. I'd like to rest on our brief. Thank you. Thank you. Judge Pollock, do you have any questions? No further questions. Thank you. Thank you. We will take this very important matter under advisement. The panel is going to be reconstituted. So we're going to get up and walk out. Judge Pollock, can we agree on the time for conferencing? What time is convenient for you? Because we're about to hear two more cases. I see. A time a convenient time here would be, oh, how long are you? You're going on forward in the balance of the morning. Is that right? Well, two more cases. And I think Jane has a capital case with another panel. That's a one-a-clock. That's a one-a-clock. Yeah. I see. Well, I was going to suggest, in any time before, say, two o'clock, it would be fine for me. Okay. Well, we'll call you before two. All right. I, after two thirty, I won't be available. Okay. Thank you. All right. Thank you both. Thank you all. Okay. Thanks a lot. Fine. We'll pass with the papers out. Thank you