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"stt_transcript": "May it please the Court, this case can be resolved on a narrow ground. Section 1231A5 permits reinstatement only if DHS establishes that the petitioner re-entered the United States illegally. Here, DHS's own record includes an approved I-212 followed by a CBP encounter and DHS parole. Yet, the reinstatement record does not show that the officer considered those intervening agency actions or afforded the process required under ACFR 241.8. We are not collaterally attacking the underlying removal order. Instead, we are challenging DHS's present statutory authority to reinstate it. This Court's precedent supplies the framework. Ochoa Carrillo holds that this Court has jurisdiction to review and order reinstating a prior removal order. Perez-Garcia confirms that review reaches the predicate establishing DHS's authority to proceed, including whether the non-citizen unlawfully re-entered. The Second Circuit's recent decision in Santos v. Blanche provides additional persuasive support that the reinstatement order itself is a final order reviewable under… Now, this is the first of two inconsistent 2026 Second Circuit decisions? Well, Your Honor, all I can tell… I think you're talking about the first one. Aren't I right that the second…well, maybe I've got my jurisdictions wrong. Your Honor, this case came out of the Second Circuit on September 8th, and it provides… it spoke in terms of the Court's jurisdiction to review the reinstatement order, and in light of Riley has found that a reinstatement order is, in fact, a final order that is subject to jurisdiction. So the question before this Court is not whether the old removal order was valid. It is whether DHS lawfully reinstated it now. Now, Section 1231A5 requires a subsequent illegal re-entry. The administrative history here is unusual and important. DHS had already approved Petitioner's I-212 granting permission to reapply for admission after removal. Petitioner later encountered CBP, and at that point, DHS could have addressed the prior order and reinstatement. When is this now? That, Your Honor, occurred in 2019. So the I-212 was, in fact, approved in 2016. Three years later, in 2019, he appears and has an encounter with CBP in Arizona. This is when the alleged parole occurred. That's correct, Your Honor. And it seems to me, I understand what you're arguing, but it is not. He illegally re-entered with his son, and they then were allowed to go back across the border and re-enter for his son's removal proceeding. Well, Your Honor- So, you can call that a parole. I think it was anything but. I think it was. So, to me, we start out, he illegally re-entered. Well, Your Honor, I would submit to you that the agency's own precedent, though, takes a different position. Matter of Q. Lee specifically addresses exactly this kind of fact scenario. And in matter of Q. Lee, the Board of Immigration Appeals has specifically found that DHS's release of someone under 1225B applies as an exercise of statutory parole authority. Put another way, is at the point that CBP encounters him in 2019 and allows him to re-enter the United States. At that point, he is inspected and paroled in under statutory parole authority. They could have- He was not allowed in. He was detained, and then he was allowed to go back across the border. No, Your Honor. That is not correct. He was allowed- He was then allowed, because of his custodial relations to his son, to get his son's benefit of a time out, so to speak. No, Your Honor. That's also factually not consistent with the administrative record. What occurs is, is they give him a notice to appear so that he has to appear in court with his son. Well, why would a parole undo the fact that he is illegally entered? Well, Your Honor- That's the predicate for reinstatement, right? So how does a parole undo that? How does it cure the original difficulty? There's two issues to that, Your Honor. The first is, is that the agency action that is subsequent to his initial entry has to be reviewed as part of the agency determination under the regulations. That's what's lacking here. The question that the court is asking is not really before the court now, in the sense that we are- I don't think that's right. I think whether he illegally reentered is what we have jurisdiction to review de novo. That is correct, Your Honor. But I think where the disconnect is occurring is that the statute requires the agency fully review all of the evidence. So in 2025 is when the actual- I'm just talking 2019. But in 2019, Your Honor, there is subsequent agency action. There's intervening agency action that occurs after his arrival. To me, the starting question, once we have jurisdiction, is almost completely answered by the question of illegal reentry under the Supreme Court precedent. If he illegally reentered, then the first of the two- well, the last of the three things that have to be found before the shall remove kicks in, are there, is there. He illegally reentered. But, Your Honor, I think that that takes the statute too far. For the umpteenth time, by the way. No, well, it was actually the second time, Your Honor. The first time, he did not- once he illegally reentered, he began the process to finalize his legal status when he left voluntarily in 2013. And I say voluntarily, even though it was under an order of- overstaying to begin with that triggered the removal, right? I mean, did he enter on student- No. Some kind of a visa? That's right. He overstayed. He didn't overstay. It wasn't unlawful. It was the first unlawful entry. He then leaves in 2013 under an order of removal. That is not a matter that we are contesting. And when he- He comes back and gets- well, he gets stopped and- He comes back and is encountered by CBP in 2019. No, I'm talking 2013. In 2013, yes, Your Honor. That fact is not in dispute. And he concedes, well, yeah, I'm trying to illegally reenter. No, Your Honor. The only order that- He was inadmissible for multiple reasons. Your Honor, the only unlawful- the only reentry occurs in 2019. There is no pre-reentry. There's only- He was stopped at the border in 2013. No, Your Honor. In 2013, he enters and is then- he is, in fact, placed in removal proceedings. That is correct. But there's a reentry after an order of removal only occurs in 2019. Okay, but before you run out of time here, I was wondering. Tell me the effect of the employment authorization. Yes, Your Honor. Does that mean that deportation is deferred? Is that what you're suggesting? Well, at this point, Your Honor, under the circuit ruling, the federal court ruling in ICWC, he falls within the certified class membership in that case. He has a BFD, which is a bona fide determination, and he has his- I'm not sure that will have an effect on this proceeding. Well, Your Honor, what I'm saying is- In fact, he's in the class. I don't know that that has an effect on this proceeding. At this point, Your Honor, with the employment authorization in conjunction with the bona fide determination, he has deferred action. That is correct. What does that mean under immigration law? Forget about the class action. It would mean that there is a forbearance from removal. Say that again? There would be a forbearance from removal. So that would be the end of the case. Well, now we're in the direct action law. I'm sorry, Your Honor. Your argument is he has a BFP, so we have a direct action that prevents removal, right? No, Your Honor. It is a matter for the agency to consider as part of the regulations. It is not before this court in particular. It does provide context for the agency to consider consistent with the regulations as they are required to do. So then it has no effect on this appeal. It does not. The existence of the deferred action is mere context in the terms that, even if this court were to today allow for the reinstatement to be present, he does have deferred action, which would by definition give him a forbearance from removal. Well, that would be off in the immigration service, though, not in this case. That's correct, Your Honor. Okay, thank you. That helps me. And I see I'm out of time. Thank you. Mr. LaForte? May I proceed? Good morning. May it please the Court. Dietz LaForte on behalf of the respondent. There are three issues in this case, jurisdiction, exhaustion, and the merits. The court can elect to forego addressing the merits and simply dismiss the case on exhaustion grounds. Looking at that, on page 1 of AR1 is the notice to reinstate the final removal order. On there, there is a box that petitioner did not check. Petitioner refused to sign, did not check the box, and in doing so, did not contest reinstatement of the final removal order. That, in fact, is a failure to exhaust. That's a contested interpretation of the effect of that, refusing to sign. There is a box on there, Your Honor, on page 1. I saw the box. That is petitioner's opportunity, Judge Loken, to contest the reinstatement order. Simply checking it is contesting it. Now, fleshing out those claims can be supplemented later. But by refusing to sign, to check the box, he's failed to exhaust that contestation of the reinstatement order. So based on that... I understand the argument, and let's assume it's not persuasive. Yes, Judge. Mendez-Gomez is this court's binding precedential roadmap to the disposition of this case. Mendez-Gomez provides three criteria to assess the validity of the reinstatement order. Number one, prior removal order. That's not contested. There is a prior removal order back in 2013. Number two, petitioner's identity. You've got ten minutes. You're talking about, well, that's not contested. And, you know, it took a minute. It'll take you a minute to state the two that aren't contested. Judge Loken, we'll skip to the third component, illegal entry. Here, illegal entry was galvanized by four things in the record. First is the affidavit. That's on page AR1. That's on AR1 page 19, where the petitioner signed and gave a fingerprint saying, quote, I last entered the U.S. on March 6th, 2009. That's not contested. That goes right to... The illegal entry is the issue. That is the illegal entry. It's an admission. I understand the government's position, technical position. But we're here to, I'm here to listen about probation and direct, I mean, about direct action and what's... On deferred action, Your Honor? No, well, the parole. And parole doesn't bother me. Direct action darn well bothers me. Yes, Your Honor. Because I don't understand it. Well, I do understand it, but I didn't understand it from the briefs. And I didn't understand it until I looked pretty hard at the Supreme Court's opinions with its history. Regarding parole? No, regarding direct action and the effect of direct... Its origin. And nobody talks about the effect of direct action. In what context? I'm a law school... This context. Well, are you talking about the direct action? So here what we have is we just have enforcement of... We have reinstatement of a final removal order here. So that... What we're effectively doing is the agency has a final order. It served it and the petitioner was removed back in 2013. It then... That final order is in a drawer, let's say, in effect. He illegally reenters back in 2019. And in 2025, that final order is reinstated. And all it does, it attacks back to the original. The reinstated order just attacks back to the final order. This petitioner, there's no factual support at all in the record that he was paroled. He was, in fact, not. Petitioner is confusing the order of supervision with parole. There are two distinctions between the two. The order of supervision was just a tool whereby the government offered a petitioner, an alien-like petitioner who was subject to a prior removal order and was, in fact, removed to be released from detention. That is not parole. That was a tool to keep families together like petitioner and his minor son. Parole, by comparison, allows... Let's talk about direct action. Have you read footnote 8 in Reno in the last half century? I'm not familiar with footnote 8 in Reno, Your Honor. Well, it tells it prior to 1997, deferred action decisions were governed by internal INS guidelines which considered... After in the text saying called deferred action. Well, deferred action has no impact on this case. This case is about the validity of the reinstated removal order. Deferred action, all deferred action... Petitioner is arguing direct action. Right, but direct action, all it does is forebears removal. It doesn't apply to this case, Your Honor. That removal, if I'm understanding correctly here, the impact on removal itself is not impacted by direct action. Direct action forebears removal. It doesn't impact the validity of the removal. The removal stays in effect. What we have here is... No, we're talking about the reinstatement. We're not talking about the original order of removal. Correct. Reinstatement doesn't affect the rationale of... It doesn't add new rationale or new inadmissibility grounds in this particular case. All it does, it revives that prior or final removal order. Here, what's at stake is just an approved 212. An approved 212 does two things. One, it waives the reentry bar that's applicable in this case. Two, it gives petitioner permission to reapply for admission. The other inadmissibility grounds remain. After the 212 application is granted, petitioner then has to apply for a visa through the Department of State, apply for a waiver, have the waiver granted, and then present that visa at an official point of entry. Then at that point, Border Patrol... 212 is the U visa, right? 212 is an application to waive the bar of reentry. It's different than the U visa. They're two totally separate things. The 212 is what's at issue here. 212 doesn't grant permission to enter. It does not terminate the reinstated order. It does not permit petitioner to illegally walk across the border. It's not a border crossing... The argument, as I understand it, from the petitioner, is that plaintiff got a direct action in connection with the BFD from the U visa approval. That's factually incorrect. That's not correct. That's the issue. It is, but it's factually incorrect. All right, well, I don't understand the cases. You understand it. Right. And you won't listen. Courts have held that direct action makes executing a removal order unlawful, citing Western District of Washington. This is not a direct... No direct action is your response. The BFD says he may be placed in direct action, but it only begins upon employment authorization. All the employment authorization did was defer execution. He's not in direct action. Counsel conceded that that doesn't govern. I understand the court's point, Judge Loken, but this petitioner was not... If the issue is whether or not petitioner was served with a notice to appear on a direct action, that's factually incorrect. Petitioner was not served. Petitioner was given a notice of reinstatement. I'm looking at Justice Scalia and Reno saying direct action is administrative grace and discretion. The key word is discretion. So we're talking about 1252G and its scope. The key word is discretion. It's discretion whether or not to enforce removal. It has zero impact on this case, Your Honor. It does not. This individual is not in a direct action pursuant to an NTA. This is an issue of whether or not the reinstatement of a prior final order is valid. And here, again, Mendez-Gomez is the court's guidance. If the petitioner satisfies all three criteria, then that's it. There is no case. And that issue is galvanized, and the reinstatement is valid, which it is here. As Judge Loken said, he entered illegally, and that was the third criteria. We satisfied all three criteria. We have a valid reinstatement of the final removal order, and that's the case in a nutshell. Any kind of deferred action on the execution of removal, Your Honor, is not at issue and irrelevant to the disposition of this case. Thank you. Thank you. Is the time up again? Yeah, she's up. Pardon? She used it all. I gave you 30 seconds. Hold on. Thank you, Your Honor. I would like to address the court's question directly, which is that deferred action, reinstatement is a process. It means we're going to reinstate the old order and execute it. But deferred action says you cannot execute that order because, as the court has already determined, that it is an act of grace that allows for forbearance of deportation. So in essence, the reinstatement process, and again, that's why the regulations are so important, Your Honor, because these are all factors that the government should have considered and did not, and that is our position. Thank you, Your Honor. Thank you, counsel. The case, at least for me, is complicated, and we'll take it under advisement. Thank you."
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