Again, may I please the court? I'm Robert Joban. I'm appearing today on behalf of the petitioner, Mr. Nick Hock. After being convicted of a deportable criminal offense in April of 1995, Mr. Hock entered into a quid pro quo agreement with the U.S. government under which he agreed to provide DEA with evidence against his co-offendance, testified before a grand jury, which he did in October of 1995, some six months before the enactment of Ed Puh, and withdraw his appeal of the conviction that he had sustained, as well as all other post-trial motions. Based on, quote, the substantial assistance and drug investigations afforded by Mr. Hock, unquote, the U.S. government agreed to file a motion to reduce Mr
. Hock's sentence, a motion that was granted by a sentencing judge in May 20, 1996. Now, relying on this court's decision in Armandaria's Montoya, and consistent with the two decisions of the Board of Immigration Appeals in this case, the government argues that because Mr. Hock did not plead guilty to the criminal charges that form the basis of the charge of removable here, but instead took his case to trial, Mr. Hock has precluded from establishing any sort of reliance interest that can form the basis of a land graph type retroactive. Right, and I think Ed Kensen has it exactly right, obviously that's not the law of our circuit. But anyway, the government argues that he's precluded from establishing any sort of reliance interest that can form the basis of a retroactivity claim, and suggests that Mr. Hock's post-conviction conduct is completely irrelevant to any analysis of whether Ed Puh and Ira Ira's restrictions can be applied to him. Now, as far as I can tell, that particular position, the government's position has not been accepted in any circuit. In assessing whether Ed Puh and Ira Ira's restrictions on 212 C-relief can be applied to Mr. Hock, we have to determine whether Ed Puh or Ira Ira imposed some new burden on conduct that was completed before the enactment of those two statutes
. So as a threshold question, I guess we have to decide what is the completed conduct that's at issue here. Now, in Armandari's Montoya and Saravilla Pugwata, as well as in the second circuit's decision in Rankin, the fifth circuit's decision in Hernandez Castillo, the conduct at issue, the conduct that was being focused on, there was limited to two things. The actual commission of the crimes at issue, and secondly, the decision to contest the criminal charges and go to trial rather than enter a guilty play. And focusing exclusively on those two forms of completed conduct, this Court and others held that aliens who committed crimes and then fought those criminal charges, can't plausibly claim that they would have acted any differently if they had known about Ed Puh's restrictions on 212 C-relief. This Court, as well as the second, fifth, and tenth circuits, have all recognized, however, that the fact that an alien was convicted at trial is not the be-all-end-all of retroactivity analysis, and that even permanent residents convicted at trial can retain their eligibility for discretionary relief from removal, if they can establish that Ed Puh or Ira Ira would impose some impermissible retroactive effect on their post-conviction conduct. I know you've argued a broader set of reliance, including going to trial and so forth, it seems to me that you're best argument, and I'm only speaking for myself, that your strongest argument is that he gave up his appeal rights. Now, how do we deal with that in light of the statement in St. Seer, the comment on persons going to trial giving up their constitutional rights? Well, I think there's obviously nothing in St. Seer that requires generally a quid pro quo, but even if a quid pro quo is required, and everybody agrees that no quid pro quo is required, that's not required by Hughes' aircraft, Martin versus Haddicks, any of those other Supreme Court cases, they don't require a quid pro quo at all. And what the Supreme Court said that had to be- What is required, some kind of reliance interest? Well, here in this circuit we require objectively reasonable reliance, and in this particular- what Camus, this course decision in Camus says is, although you don't need a quid pro quo, if you can establish a quid pro quo, that's clearly sufficient
. It says it's clearly sufficient. And here we have a quid pro quo, he's just not giving up a constitutional right. He's giving up a statutory right, in fact, he gave up a number of things. Not only did he give up his direct appeal, he agreed that to pursue or to work with the Supreme Court. And he would withdraw his motion for a quidl and his motion for a new trial. But also, I think there's another issue here in terms of his reliance interest, relying on the availability of 212-C relief, he agreed- I'm sorry, let me just go back. The motion for a new trial and motion for a quidl had not been ruled on by the District Court? No, no. They had not been ruled on. And they were withdrawn? Well, the record is unclear whether they were not- That's why I asked because I didn't find this in the record. Yeah
. It's set forth in Jerry Frolux Declaration, Mr. Hock's criminal attorney at the time. He makes clear that he thought that Mr. Hock had what he describes as an excellent chance of prevailing on his motion for a quidl. And yet as part of the agreement that they struck with the U.S. Attorney's Office, they agreed not to pursue that. So it's the combination of withdrawing his appeal. I find a little suspect, a lawyer's statement of excellent chance of it. Of course
. Yeah. And we take that for what it may. But we have to assume at the same time that's sort of what he was advising his client at the time. And- The principal grounds for appeal were that there was no evidence- there was no secure evidence that this was actually math. Right. Yes. And you know, Mr. Hock- I'm sorry, it was actually ecstasy, it was ecstasy. Excuse me, yeah. And Mr
. Hock, in his declaration on page 182 of the record, he indicates that he was quite- after talking with various attorneys, he was quite optimistic about his chances on appeal. Yet he decided pursuant to this agreement to withdraw that appeal. And so our position is it's not enough to focus on the mere fact that he went to trial. We have to look at what conduct post-trial is- Mr. Hock's perspective, having already drawn a sentence of 41 months, he thought that he was eligible for 212 C relief. That's right. The only way that he can beat Arirah and the Edpa amendments is if he can get to 0, is if he can win on appeal. Exactly. That's right. That's the only way that he can win
. So he's already under- he's already under the 5-year cap. So he still thinks he's got 212 C relief. Was his first- at his first trial, was there a possibility that his sentence would exceed 5 years? You know, we're trying to figure that out. I believe that there was. I believe that there was. You know, I'm having a difficult time ascertaining what was the maximum possible sentence for the crime. And I don't have an answer for you on that, unfortunately. But I believe it was, yeah. You have two cases under appeal. What is the precise relief that you asked under each of those cause numbers? Well, you know, the issues presented by the two cases, they seem to me to be the identical, you know
. The evidence is slightly different. But ultimately, the question is, was the Board correct in saying that Mr. Hock was ineligible for the sake of seeing what I'm all in one pot? You've got two causes of appeal. Tell me what you want under 15 to be on the other side. The relief is that we want this Court to ultimately find that Mr. Hock has set forth a valid retroactivity claim. Are you waving the first one then? No. Don't want to remand? Well, I think with respect to the first one, the Board of Immigration Appeals said that they can't even rule on this issue. And strangely, this Court's precedent seems to agree with this. This Court's precedent says that we don't have to even raise these retroactivity claims with the Board because the Board can't rule on them
. This Court said that in Saravia Paguata, it said it in Garcia Ramirez. So it's not an issue, supposedly, that the Board has jurisdiction to entertain. Are you waving the first appeal? No, not at all. We think the Board was incorrect in suggesting that Mr. Hock had failed to establish a valid retroactivity claim because if you look at page 182 of the record, there he makes clear that he did withdraw his appeal in reliance on the availability of 212 Cerelyve. And we think that that alone is sufficient to accept. But you don't really want the BIA to rule on retroactivity, do you? No. This is this panel, have the authority to order the BIA to consider the retroactivity? Yes. Okay, I thought I'd understand you to tell Judge Beeser that our cases seem to suggest that the support the Board in its view that it cannot consider retroactivity. That's right, and what I said to Judge Beeser's right as well
. I guess the problem here with what happened at the Board is the Board never resolved the factual dispute about when the agreement took place. The government's taken the position that there's no evidence here that the agreement was entered into before the important date, April 24, 1996. And this, the Court of Appeals obviously is not a fact-finding body. On that particular point, the case may have to go back so that the Board can make a determination as to when the deal was struck. I mean, we think the deal was obviously struck in June of 1995 because he began relying on the deal and in fact testified before the Grand Jury in October 1995. But that aspect of the case may have to go back to the Board so the Board can resolve that. But the legal question about whether, you know, somebody who withdraws an appeal or cooperates with DEA in hoping to improve his chances of success on appeal, those are issues that this Court has to decide because the Board is itself is claiming that it has no jurisdiction to decide them. There are no further questions. I reserve the balance by time. Okay. Good morning, please the Court. My name is Cindy Ferry and I'll be representing the Attorney General in this matter. Judge Viser, as you pointed out, it is critical to note that there are two cases before the Court and what exactly is before the Court with regard to each of them. The first is the dismissal of the appeal in which the Board relied on a Saint Seer to find that the petitioner was not eligible for relief. In that particular case, the petitioner did not raise his actual reliance or specific reliance on going to trial. Secondly, there is the denial of petitioner's motion to reopen in which the Board relied upon its regulation to find that he wasn't eligible for trial. Is the dismissal for failure to state a claim where it's dismissal because it was not timely file? I'm sorry, because it was not. I didn't hear you. Ernie? I didn't hear you. I'm asking
. Good morning, please the Court. My name is Cindy Ferry and I'll be representing the Attorney General in this matter. Judge Viser, as you pointed out, it is critical to note that there are two cases before the Court and what exactly is before the Court with regard to each of them. The first is the dismissal of the appeal in which the Board relied on a Saint Seer to find that the petitioner was not eligible for relief. In that particular case, the petitioner did not raise his actual reliance or specific reliance on going to trial. Secondly, there is the denial of petitioner's motion to reopen in which the Board relied upon its regulation to find that he wasn't eligible for trial. Is the dismissal for failure to state a claim where it's dismissal because it was not timely file? I'm sorry, because it was not. I didn't hear you. Ernie? I didn't hear you. I'm asking. I was dismissed. Why do you urge? The first appeal was dismissed because he had gone to trial and the Board determined that under Saint Seer that was not inappropriate. He was ineligible then for relief for 212C. There's no dispute that the Board's decision in applying its own regulation was appropriate. That is that the regulation, properly promulgated, does bar an alien who's gone to trial from getting relief. So therefore, the denial of the motion to reopen really was the correct decision. And what's before the court then should be, if anything, the dismissal of appeal and looking at the issues raised with regard to that. So, Council, if we were to rule that Mr. Hake had a reasonable reliance interest and that it was sufficient under Saint Seer, then what should the panel do? If you were to find that there was a reasonable reliance under Saint Seer, then it would still need to go back to the Board in order for the Board to obviously evaluate the merits of the petitioner's claim and to determine that. And so which docket number do we deal with? It would be the first, or I guess it would be the second docket number
. I was dismissed. Why do you urge? The first appeal was dismissed because he had gone to trial and the Board determined that under Saint Seer that was not inappropriate. He was ineligible then for relief for 212C. There's no dispute that the Board's decision in applying its own regulation was appropriate. That is that the regulation, properly promulgated, does bar an alien who's gone to trial from getting relief. So therefore, the denial of the motion to reopen really was the correct decision. And what's before the court then should be, if anything, the dismissal of appeal and looking at the issues raised with regard to that. So, Council, if we were to rule that Mr. Hake had a reasonable reliance interest and that it was sufficient under Saint Seer, then what should the panel do? If you were to find that there was a reasonable reliance under Saint Seer, then it would still need to go back to the Board in order for the Board to obviously evaluate the merits of the petitioner's claim and to determine that. And so which docket number do we deal with? It would be the first, or I guess it would be the second docket number. It would be the one that came through habeas, which was the actual seeking review of the dismissal of the appeal. That's the one that we would remand to the Board. Correct. And that one, again, the claims regarding him going to trial in reliance on 212C were not properly raised and were not before the Board at that point. That's our argument regarding exhaustion in the case that that's why the Court shouldn't find that the going to trial aspect of his claim, the reliance aspect, should be considered by the Court. It should not be considered by the Court because it wasn't properly exhausted and that's the only real case which raises it. However, the government's position is clearly that his claims on both aspects of his reliance, either it being going to trial or unseeking post trial, either motions or his appeal are for close by this Court's case law. The Court is well aware of Arman Derra's which says that an alien who goes to trial cannot possibly, plausibly, can't claim that they would have acted differently had they known about the elimination of 212C relief. And Saravilla reaffirms this principle and states even more strongly in concluding that Arman Derra is that such a claimed reliance interest is per se unreasonable, we reaffirmed a narrow reading of Saint Seer and excluded categorically claims for 212C relief outside of the guilty plea context. That language there, the crew is all of his claims
. It would be the one that came through habeas, which was the actual seeking review of the dismissal of the appeal. That's the one that we would remand to the Board. Correct. And that one, again, the claims regarding him going to trial in reliance on 212C were not properly raised and were not before the Board at that point. That's our argument regarding exhaustion in the case that that's why the Court shouldn't find that the going to trial aspect of his claim, the reliance aspect, should be considered by the Court. It should not be considered by the Court because it wasn't properly exhausted and that's the only real case which raises it. However, the government's position is clearly that his claims on both aspects of his reliance, either it being going to trial or unseeking post trial, either motions or his appeal are for close by this Court's case law. The Court is well aware of Arman Derra's which says that an alien who goes to trial cannot possibly, plausibly, can't claim that they would have acted differently had they known about the elimination of 212C relief. And Saravilla reaffirms this principle and states even more strongly in concluding that Arman Derra is that such a claimed reliance interest is per se unreasonable, we reaffirmed a narrow reading of Saint Seer and excluded categorically claims for 212C relief outside of the guilty plea context. That language there, the crew is all of his claims. And in the Court's consideration of the case can stop there. If the Court, though, wants to go further and consider later case law that seems to suggest that there might be an objectively, objectively reasonable reliance that it can examine, then that is where our argument regarding the liberty interest or the vested right is not sufficiently sufficient. So, I think it's a substantial here to bring about this retroactivity analysis. And in making that point, we had a couple points. I'm not saying that the Court's claim the devil's advocate or the Third Circuit's advocate. Yes. Is there any retroactivity, constitutional, Supreme Court, retroactivity case other than Saint Seer that even mentions the word reliance? I believe that the Third Circuit's position will be that there is not this Court's case law, I think precludes. I'm not talking about the Ninth Circuit. I'm talking about the Supreme Court. The Supreme Court
. And in the Court's consideration of the case can stop there. If the Court, though, wants to go further and consider later case law that seems to suggest that there might be an objectively, objectively reasonable reliance that it can examine, then that is where our argument regarding the liberty interest or the vested right is not sufficiently sufficient. So, I think it's a substantial here to bring about this retroactivity analysis. And in making that point, we had a couple points. I'm not saying that the Court's claim the devil's advocate or the Third Circuit's advocate. Yes. Is there any retroactivity, constitutional, Supreme Court, retroactivity case other than Saint Seer that even mentions the word reliance? I believe that the Third Circuit's position will be that there is not this Court's case law, I think precludes. I'm not talking about the Ninth Circuit. I'm talking about the Supreme Court. The Supreme Court. Land graph and the other retroactivity cases. Reliance is not a factor at all in determining retroactivity, is it? I am not aware of in the Supreme Court's jurisprudence, reliance on, or it bringing up reliance, I guess, or reliance on that factor. But Saint Seer, which is very closely akin to this particular case, does make reliance a pretty critical factor. And this Court has reaffirmed that principle in its case law. And in addition, if you if you weren't to consider reliance and a factor here, I think that the Court would be basically rendering moot the whole analysis that the Supreme Court did in the Saint Seer. Well, maybe it was the only way you could get enough justices to sign up on one side. Maybe what that is, in fact, what they came up with. So, again, the interest at stake, we argue, is not substantial enough to bring about the analysis of the retroactivity of this case. But why isn't it? Because withdrawal of the appeal is not akin to a guilty plea. Again, as you've already mentioned, it's not a constitutional right to appeal
. Land graph and the other retroactivity cases. Reliance is not a factor at all in determining retroactivity, is it? I am not aware of in the Supreme Court's jurisprudence, reliance on, or it bringing up reliance, I guess, or reliance on that factor. But Saint Seer, which is very closely akin to this particular case, does make reliance a pretty critical factor. And this Court has reaffirmed that principle in its case law. And in addition, if you if you weren't to consider reliance and a factor here, I think that the Court would be basically rendering moot the whole analysis that the Supreme Court did in the Saint Seer. Well, maybe it was the only way you could get enough justices to sign up on one side. Maybe what that is, in fact, what they came up with. So, again, the interest at stake, we argue, is not substantial enough to bring about the analysis of the retroactivity of this case. But why isn't it? Because withdrawal of the appeal is not akin to a guilty plea. Again, as you've already mentioned, it's not a constitutional right to appeal. A criminal conviction. It's only statutory. That's not akin to the guilty plea. But if this is his only chance to satisfy, if he's given up the one shot he's got to get discretionary relief from the government. And why isn't that sufficient? It cooperates with the government. He thinks he's got a sentence that's below that he's still qualified for. And now he's going to give up his only shot at being able to stay in the country, which is maybe a long shot. We don't know. His attorney was confident, but defense attorneys are always confident in that situation. Well, I think then we need to look at the Court's case, our decision in Calava, if I'm saying that correctly, in which the Court reaffirmed, again, Armandera's, and emphasizes Supreme Court's concern in St
. A criminal conviction. It's only statutory. That's not akin to the guilty plea. But if this is his only chance to satisfy, if he's given up the one shot he's got to get discretionary relief from the government. And why isn't that sufficient? It cooperates with the government. He thinks he's got a sentence that's below that he's still qualified for. And now he's going to give up his only shot at being able to stay in the country, which is maybe a long shot. We don't know. His attorney was confident, but defense attorneys are always confident in that situation. Well, I think then we need to look at the Court's case, our decision in Calava, if I'm saying that correctly, in which the Court reaffirmed, again, Armandera's, and emphasizes Supreme Court's concern in St. Steer that the alien had detrimentally relied on the availability of 212C in making, in that case, the plea agreement. In this case, it would be. All of these cases, I don't see that any of these cases, and I realize we have some very, very broad language. And we've spoken in sort of categorical terms, but I don't see that any of these cases ever had the opportunity to consider what happens if somebody gives up an appeal, right? I don't think that they have considered that bid, but it's unclear. As I pointed out in the 28J letter, there are, I believe, five cases, maybe six cents 2007, which Armandera's has been applied. It's not clear what arguments were actually being raised there, but it does appear as though it was a categorical denial for persons who have gone to trial. With regard to a person who gives up the right to appeal, again, as I was pointing out, it's not akin to the guilty plea in the sense that it's not as substantial of an interest. And we point out the various reasons in our brief, I believe. And in addition, even if you were to look at that belief, in this particular case, the objectively reasonable belief that he cites is that he believes that he was still be eligible if he withdrew that appeal. But again, it doesn't make clear what was his detrimental reliance in withdrawing that appeal
. Steer that the alien had detrimentally relied on the availability of 212C in making, in that case, the plea agreement. In this case, it would be. All of these cases, I don't see that any of these cases, and I realize we have some very, very broad language. And we've spoken in sort of categorical terms, but I don't see that any of these cases ever had the opportunity to consider what happens if somebody gives up an appeal, right? I don't think that they have considered that bid, but it's unclear. As I pointed out in the 28J letter, there are, I believe, five cases, maybe six cents 2007, which Armandera's has been applied. It's not clear what arguments were actually being raised there, but it does appear as though it was a categorical denial for persons who have gone to trial. With regard to a person who gives up the right to appeal, again, as I was pointing out, it's not akin to the guilty plea in the sense that it's not as substantial of an interest. And we point out the various reasons in our brief, I believe. And in addition, even if you were to look at that belief, in this particular case, the objectively reasonable belief that he cites is that he believes that he was still be eligible if he withdrew that appeal. But again, it doesn't make clear what was his detrimental reliance in withdrawing that appeal. Basically, the government gets no benefit from him withdrawing the appeal to the extent that it has already put forth its full burden of proof in prosecuting him and proving that he was guilty. Here, yes, he cooperated with the police department, and yes, that is benefit, but it's not related in particular to his claim for 212C. There certainly was never any agreement by the government that's ever been asserted that he would still be eligible for 212C or able to apply for 212C if we withdrew that appeal. And as was mentioned, he was eligible for 212C relief even before he withdrew the appeal, took the appeal, any part of that. So it's unclear what right with regard to 212C, he gave up by choosing to withdraw the appeal. And again, yes, our position is that there can't really be an objectively reasonable detriment or reliance here on the availability of 212C when the withdrawal of the appeal didn't come into well after, well, at least a month after, almost a month after the enactment of EdPA. And I should make clear that the date appears to be wrong on the docket that it was withdrawn on May 2, 1996. In the record, at page 100, the docket for the district court says that the appeal was withdrawn May 2, 1996. However, if you look at the 11th Circuit Stocket, it does say that it was actually withdrawn on May 20, 1996. And the magistrate judge in making his report in recommendation actually noted that fact that it appeared to be an error
. Basically, the government gets no benefit from him withdrawing the appeal to the extent that it has already put forth its full burden of proof in prosecuting him and proving that he was guilty. Here, yes, he cooperated with the police department, and yes, that is benefit, but it's not related in particular to his claim for 212C. There certainly was never any agreement by the government that's ever been asserted that he would still be eligible for 212C or able to apply for 212C if we withdrew that appeal. And as was mentioned, he was eligible for 212C relief even before he withdrew the appeal, took the appeal, any part of that. So it's unclear what right with regard to 212C, he gave up by choosing to withdraw the appeal. And again, yes, our position is that there can't really be an objectively reasonable detriment or reliance here on the availability of 212C when the withdrawal of the appeal didn't come into well after, well, at least a month after, almost a month after the enactment of EdPA. And I should make clear that the date appears to be wrong on the docket that it was withdrawn on May 2, 1996. In the record, at page 100, the docket for the district court says that the appeal was withdrawn May 2, 1996. However, if you look at the 11th Circuit Stocket, it does say that it was actually withdrawn on May 20, 1996. And the magistrate judge in making his report in recommendation actually noted that fact that it appeared to be an error. And in conclusion, I'd just like to say if the court determines that all of these arguments regarding the objectively reasonable reliance are appropriately before the court at this time in litigation because it was presented in the supplemental brief. And if you determine that's relevant to your analysis, the government would appreciate the opportunity to file a supplemental brief in response. Very, very briefly to establish, to establish objectively reasonably reasonable reliance, Mr. Hawk must simply plausibly claim that he would have acted differently if he had known that EdPA or Ira, Ira was going to render him ineligible for 212C relief. He answered to that question is clear. He says on page 182, I gave up my appeal only because I believed I was eligible for 212C. Had I known that the law of 212C was going to change, I would never have given up my appeal. And of course he would. Was that the subject matter of a written memorandum or agreement between the defendant and the government? There was no memorandum of agreement, Your Honor. It was a long period of discussion
. It was just the defendant's perspective, right? No, we have confirming letters from the US Attorney's Office that described the deal. We have letter from Catherine Monahan, the assistant US Attorney who helped structure the deal in the record. In fact, we have two of them confirming it. The deal was entered into in June of 1995, Mr. Hawk began relying, he testified in October of 1995, and then they implemented this agreement in stages. But the structure of the agreement was set in June of 1995. Thank you. We appreciate the arguments of both counsel and Hake is submitted