# Oral argument — Shalimar v. Ashcroft > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A55440 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** December 8, 2004 ## Text When he was reported to IOWA, the Council was obliged to provide an attorney to make sure that the court represented the petitioner in that court, V. Shalimar, and to release him. This was received by the Supreme Court. There were three issues in this case. First, whether the court had certification of whether the petitioner was guilty. Second, whether the Board of Immigration was aired and family involved in their own regulations issuing a permit to have the petitioner in the case. And third, whether V. Shalimar and his family qualified for asylum as only an original and a women-only petitioner was tortured. I will only discuss the interstitial issues involved in this case, and there is a lot to discuss with the merits of V. Shalimar's asylum claim. We ask the court to take jurisdiction in its reverse and, if necessary, demand that we circumstructions the property plus the correct law. In terms of the convictional issues of equitable tolling, circumcision, and release process, all revolve around the same set of facts. V. Shalimar received an affirmative opinion in the Board of Immigration case. No longer able to afford counsel, V. Shalimar attempted to repeal that adverse decision for a second. The affirmative opinion she received contained only one line stating that it was a final agency action and referred to a regulation that had nothing to do with the petition for release. V. Shalimar went to the U.S. Department's website, which mentioned nothing about the correct federal review. Based on what information was contained on that website, she determined she needed to appeal to be admitted to the appeals unit of the agency. Within 30 days of filing an appeal, V. Shalimar filed a notice of appeal in a mail-in check for $110. The agency accepted the notice and cast V. Shalimar to check. V. Shalimar relied on this occasion to meet her full intent of her proper vendetta. It was not until V. Shalimar received notice that she and her family had reached an agreement that she realized something was not properly handled. She immediately moved to filed a request for a simple review and emergency stay approval in this court. Let me ask you this. She has a very sympathetic case, both on the facts and kind of as a moral issue. The difficulty is our circuit precedent. So what do we look to that would allow equitable tolling or letting us ignore what has been strictly enforced? Because the only precedent we have relates where there's some affirmative misleading by government officials. So I'm interested to know what you rely on and what we should look to. Well, I rely on, first, Green v. U.S. This is Green Court by equitable tolling, and this was decided after Stone. And I also rely on Davis v. West and both Green Court and Stone, held by the Associated Federal Circuit, which interpreted this Green Court language at the end of Stone v. INS to mean that factions of limitation and having equity provision are subject to equitable tolling, unless Congress expressed a contrary intent. This Court agreed to that interpretation, and so, by stating in the language at the end of this section of the Stone, was not intended to overrule the general rule in Irwin that statutes of limitations were presumptively subject to equitable tolling. The Court further stated that Congress is presumed to be aware of the doctrine of equitable tolling, and unless they expressed a clear intent, it would not apply to equitable tolling. Congress was going to express an intent to tolling in 1252. The fact is that the Supreme Court's intent is to be consistent with what the Supreme Court is aware of, to determine whether equitable tolling should apply, or whether the language, particularly in Stone and the timing of the decision on deterrent, the language in 1252 would not be really strong or bad, and it would certainly be a time when it did not particularly matter. Would you point me to the language in 1252 from which we would divine that it's not particularly strong or clear? Well, the language in 1252, the language that the Supreme Court, the Supreme Court in their own right, has been, and has actually applied equitable tolling, is much, much stronger. In cases such as Albright v. Shane, the Federal Circuit's decision in, most recently, in Assange v. Weiss v. Chown, stated that the time of vial is barred, and that there will be no further appeal. So the word deadline and must be filed, in your view, would leave some, I don't know, small, but nonetheless existing, I wouldn't call it a loophole, but some area, gray area, you think, in the mind of a filer. Yes, Your Honor, I would say that it was in the mind of a filer. In fact, Michele Montague, even though that articulation existed, she still attempted to file for appeal. She exercised vetoes against that. I'm familiar with the case where she attempted to file for appeal and relied on the government's comments and passionate acceptance of the notice to do what she had. But even if this Court does determine that 1252 is mandatory jurisdictional, cases such as Hernandez, Rivera, and Chown indicate that this Court can still entertain jurisdiction in a variety of circumstances. This is such a very different case. You're about a little more than halfway into the 10 minutes allotted to your side of the case. Did you wish to pass the baton to your co-counsel? I will hand it over to counsel. Okay. Just a brief thing for me. Michele Montague, who effectuated her right to federal review, even though she was in the U.S. Senate, but I can give you our information about federal review, she still attempted to effectuate her right to appeal. I don't know whether the U.S. Supreme Court or counsel did what she thought she needed to do. I am not sure that I want to pass the baton. The Supreme Court, Mr. DeVos. There are two issues that remain before this Court. Can you speak up a little bit? Thank you. Thank you, Your Honor. Mr. DeVos. Thank you, Your Honor. I just have a petitioner's testimony critical in the case for the American record. Ms. Xiaomeng was sexually assaulted on two occasions, and she testified credibly that she believes that is because she is a native of the Chinese. This occurs against the backdrop of the President's sexually assaulted experience of the Chinese women in Indonesia. Her husband was beaten and robbed, and when questioned by officers how they were born, they all told him he was Chinese. He was also threatened with serious harm because of his cartoons critical of the Indonesian government, and he took this threat very seriously because his mother received such threats as well. Xiaomeng's family members have also been beaten and robbed. They are subject to harassment, discrimination, and violence, and have their homes and businesses and property destroyed in widespread attacks on ethnic Chinese. The government of Singapore recognizes the threat to this family as so severe that it has assisted in airlifting several members of the petitioner's family to safety in Singapore. In the case below, I say that they don't consider all the evidence. And this is by demand. The BIA has accounted for these errors by approving the document. Therefore, we ask the Supreme Court to reverse the decision of the IJBO in order to support less scrutiny of the BIA and to ask the federal government to consider all the relevant evidence. Thank you very much. Okay, thank you for your argument. Your side has about two minutes for rebuttal. Thank you. We'll hear from the government at this time. Good morning, Your Honor. Judge McKeown, you actually accurately point out that in order for this court to reach the issue of equitable phone, that it would have to get past the phone precedent and wrap around the same. Also, the court would have to get past the plan by which the Supreme Court used the stone, where they said that petitions were reviewed. The prime minister's comment was to review the mandatory jurisdictional and, quote, are not subject to equitable calling. And, of course, the other side is arguing that that was what the Supreme Court said to us, and what the Supreme Court has done to distance itself from that. What, though, do you make of Hernandez-Rivera, who said that the rule is not absolutely inflexible and that the appellate tribunal may, in unique circumstances, extend the filing deadline? In Hernandez-Rivera, the court did set this court and other courts only to recognize basically two exceptions, and that's where it is, the official mislead, and then, in the other circumstances, the board doesn't hear the problems, which is not an issue at all in this case. And so the only exception in this case might be under the existing law of this court. It is, in fact, the official mislead. In this case, there certainly wasn't any official mislead by the court. The court certainly isn't in the – is not required to note it. There are due process arguments that the board should have notified them that they're going to issue a review. The board has never done that. No court in the country has ever held that the board is required to notify them. Wouldn't you think, whether they're required to or not, we wouldn't have so many of these cases if they just did a real simple thing, which was put at the bottom of all their opinions, you have a right to appeal the next day's – cite the regulation and – The idea of all that might be true if they said that at the bottom of their decision. However, the Petitioner also held to the perception that they had no law. I understand that. I'm just – Right. You hear my suggestion. You represent the service, or now the department. It sure would be easy. Well, you know, you have to answer all these claims, and whether they're misfiled, missent, lack of notice. We get a lot of these cases, and we spend a lot of time like we are this morning. So it would be simply cured. So it's a one-liner. The suggestions. Let me ask you this about the AAU. They cashed the check, right? Right. Then what happened? Do they still have the money? I'm not sure. Do they still have the money? I don't know. Are they acting on the petition? Are they acting on the petition? I'm sorry? Is the AAU acting on this petition? No. How do you know? Because they rejected it. I don't want to address that point because it adds to the trouble. Because first, the issue of due diligence. You know, if they had filed their petition in the wrong circuit, without question, that circuit would have transferred the case to us. Right. If they had filed it in district court, without question, the district court would find the proper place for it and send it there. If they filed it in State court, you have to believe that somebody would say, wait a minute, you're in the wrong place. They file it with the immigration service, who cashes the check, keeps the money. Did they think this was a contribution for the betterment of society or something like that? No. I agree with you in terms of the district court and another circuit court filing another court in the field. Clearly, then they would be properly filing a 9-3 court and transferring the case. I don't believe that the case law would allow for a transfer by State court to the You have to look at this case. If she filed this notice with the INS, totally and absolutely the wrong agency, she could have done any number of things. You know, I'd be willing to bet that if you went to the first year constitutional law class at Harvard Law School and excluded anyone who had actual personal experience with immigration law and said, okay, you've got a client who lost an asylum appeal before an immigration judge and then was denied review by the Board of Immigration Appeals, where do you file the appeal, and you gave them the choice of the court of appeals or the agency, I would guess half of the people in that class, some of the most outstanding undergraduate students and now law students in the country, would say, oh, with the agency. I think it's a miracle. Let me ask you. I think so. I know we see them. We have 50% of our docket, so we're pretty aware. Let me ask you about the form. You have this Justice Department form. It says Immigration and Nationalization Service, and then at the top of it, and it's actually in record number, I believe, 08 of the excerpts, it says Notice of Appeal to the Administrative Appeals Unit. What would you use that form for? I can tell you that. What the petitioner did was she went to the INS website and looked at how you would appeal a substantive decision filed issued by the FACTS. As I said earlier, this decision wasn't issued at all by the INS. In fact, it was issued by the Board of Immigration Appeals, and she could have done any number of things to find out how to appeal that. What she did was very unreasonable. In fact, she went to the INS website, and that is the form that she used. If the INS denies an application or a petition, that's the form that she used. It has no merit whatsoever to anything related to the INS. So this is usually, it's kind of a pre-administrative appeal for actions of the INS? Right. At the district level, the INS makes the decision. You have one chance to refer the administrative appeal to the FACTS when you file that form. There's nothing whatsoever to do with the Board of Immigration Appeals. I would have said that she could have done any number of things in terms of reviewed evidence to have reasonably found out how to file the notice of appeal. She was represented by counsel, and she was in front of the Board. She could have, even though she wasn't hired by counsel to take this appeal, she could have called and said, okay, I've gotten a decision from the Board. Just tell me where and how do I file it. That was one thing she could have done. She could have decided, I'm going to have a conversation with an immigration judge, pay for an hour consultation, and find out how to file this appeal. As you know now, there's hundreds of these individual cases floating around in the system. They could have consulted with people in the individual community as to how to effect this because of the laws and other places where we have five different individual communities Many of these cases have worked in this American problem. The other thing I could have done, she could have actually come back right here back to Seattle where she had her immigration lawyer in Seattle. She could have gone to the immigration court here in Seattle and said, you know, I've gotten this final decision from the Board. Can you please tell me what I have to do? Instead, she set off on this course, which was not very well viewed or well thought out. She just randomly goes to the IMS website and then longs on to this appeal process for IMS decisions and then she runs with that without making any other inquiries. The record is completely deployed in terms of her due diligence and couldn't have done anything else other than visiting the IMS website. Could you also just remind me, at the end of the BIA one-line opinion, it says to see this CFR 1003. What does that say? That's the streamline regulation. All right. That it's permissible to streamline. So in terms of due diligence, the court could just – I don't believe the court could find it. So if you went on the IMS website, and I haven't gone there for a long time, where are the instructions? Are there instructions on the IMS website on how to take an appeal? Properly? No. How to appeal from the BIA. Is that on the site? So. It wouldn't be the IMS's prerogative to be telling people how to appeal and support a decision? Is there something on the BIA website? I thought there was conditions that represented that there was. But the court could avoid the very difficult – the court would have to essentially create an interception outside of the district case law. And I think that this court could avoid that in our question by simply finding that the petitioner did exercise due diligence in this law. In terms of the actual merits of the case, I think it would be very difficult for the court to get to the merits because you have to find equitable tolerance, which would imply some kind of leniency. You'd also have to find that she exercised due diligence. But as to the merits of the assignment of the case, if the court were to reach that, I would rest on my letter for you to the Director of Insurance to decide on the case. Distinguishing the case from sale, I believe the government is secretly going to get a lot of people to support on that. It's a secret from the holding of the sale. Okay. Thank you for your argument. We'll hold a rebuttal argument at this time. Thank you. To answer your question, no, they have not refunded Ms. Shalimar's money. Could she ask for that? Is that in the record? Yeah. Well, Your Honor, as soon as she realized that her appeal wasn't probably pending, this Court has taken judicial notice of documents in the government's control that well before they formed Ms. Shalimar's use to be deported, they had district directors in the office, not just the clerk at the AAU, who were aware she'd appealed in the wrong place, were ordered to tell her she'd appealed in the wrong place and refund her money, and that still has not been done. Recently in Lanza v. Ashcroft, this Court stated that an alien's right to judicial review is not something to be taken lightly and that personal freedom can only be preserved when there are checks on arbitrary governmental action and reaffirming the principle that an alien facing deportation has a Fifth Amendment right to a fundamentally fair process. Ms. Shalimar not only faces deportation, she faces deportation due to a country in which she and her family may face persecution due to their Chinese ethnicity and Christian religion. She and her family face deportation to a country in which Chinese Christians are persecuted regularly and the government is unwilling to control the persecution. The immigration judge in this case failed to consider the record as a whole and improperly applied the law. The Board of Immigration Appeals failed to follow their own regulations and issued an affirmance without opinion in this case. Let me ask one question. You are actually a little bit over your time. Is there any evidence in the record to suggest that any of the acts directed against Ms. Shalimar were based on the knowledge of the people inflicting harm or the threat that she had converted to the LDS faith? It is assumed, Your Honor, and there is evidence in the record on documents of people situated in Indonesia, that most of the Chinese in Indonesia are Christians, and those that aren't persecuted are the ones who have obviously converted to Muslim. My question is, any evidence in the record on the merits portion of the petition that suggests that any of these actions directed against her were based on the fact that she had converted to the Mormon faith? It can be inferred from the people similarly situated as her that the vast majority of sexual assaults and things that they have faced happen when people are Mormon or Christian or Chinese. Thank you. Thank you for your argument. Thank both sides for their argument. The case that's argued will be submitted for decision, and we'll proceed to citizens for a mobility against Secretary Manetta. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A55440. Public record. Not legal advice.