[00:00:15] Speaker 03: Good morning, Counsel. [00:00:16] Speaker 03: Good morning, Your Honors. [00:00:18] Speaker 03: May it please the Court, Hannah Comstock on behalf of Petitioner Francisco Aguilar-Torres. [00:00:23] Speaker 03: I would like to reserve four minutes for rebuttal. [00:00:25] Speaker 04: Counsel, please be reminded that the time shown on the clock is your total time remaining. [00:00:30] Speaker 03: Thank you, Your Honor. [00:00:31] Speaker 03: All right. [00:00:32] Speaker 03: Over the course of five agency opinions, the agency denied Francisco's applications for asylum, withholding of removal, relief under the Convention Against Torture, and cancellation of removal. [00:00:42] Speaker 03: But the issues before this court are very narrow, and they all relate back to the agency's failure to evaluate Francisco's claims. [00:00:49] Speaker 03: under the correct legal standard, and in light of all, by giving reasoned consideration to material potentially dispositive record evidence. [00:00:57] Speaker 01: Can you first start off by addressing the impact of the Korea decision? [00:01:02] Speaker 01: I know the parties exchanged rural 28-J letters, but do we have jurisdiction anymore over the asylum claim? [00:01:08] Speaker 03: Yes, Your Honor. [00:01:08] Speaker 03: The Court retains jurisdiction over all of the asylum arguments that are before the Court. [00:01:14] Speaker 01: Can you explain that? [00:01:18] Speaker 01: The well-founded fear element of it, isn't that a factual question that we no longer can review? [00:01:24] Speaker 03: No, Your Honor. [00:01:25] Speaker 03: Francisco challenges the agency's well-funded fear determination under Flores, which applies coal to asylum claims. [00:01:31] Speaker 03: And that's a legal error in the agency's failure to give reason consideration to material potentially dispositive record evidence. [00:01:39] Speaker 04: So there was a question raised regarding whether or not a 28-J letter can raise a new argument [00:01:47] Speaker 04: Is it your position that this is a new legal argument that cannot be raised in the 28-J letter? [00:01:53] Speaker 03: Yes, Your Honor. [00:01:54] Speaker 03: It is not an issue that the government disputed previously, and the government's position on Andrade shows that it has disputed this issue in other cases. [00:02:02] Speaker 03: It just did not do so here. [00:02:03] Speaker 00: Well, the issue is jurisdictional, if it applies. [00:02:07] Speaker 00: So I mean, if you break the asylum claim down, I take it your view would be the particular social group questions, those are legal. [00:02:15] Speaker 00: How about just whether he had a well-founded fear of persecution? [00:02:20] Speaker 00: Is that legal or factual? [00:02:22] Speaker 03: That's a legal question, Your Honor. [00:02:23] Speaker 03: So again, it all goes back to the agency's failure to consider the evidence. [00:02:27] Speaker 03: So I can jump into the merits of that and kind of explain. [00:02:30] Speaker 00: But when you say failure to consider, that sounds like a due process, right? [00:02:32] Speaker 00: So that sounds more legal. [00:02:34] Speaker 00: But if that's the argument, then that's one thing. [00:02:37] Speaker 00: But if the argument is, if you just take the facts and look at them, do they amount to a well-founded fear? [00:02:42] Speaker 00: Would you agree that's factual? [00:02:44] Speaker 03: If the question is, yes, if you're looking at the facts and determining, does this establish a well-funded fear, that is a factual question. [00:02:50] Speaker 00: But that's not what you're claiming. [00:02:51] Speaker 03: But that's not what we're arguing, no. [00:02:53] Speaker 04: Well, Counselor, do you agree that if we consider the, is it Korea? [00:03:00] Speaker 04: Judge Bresch, you wrote that was, is the case Korea? [00:03:02] Speaker 00: Yes. [00:03:03] Speaker 04: Korea. [00:03:04] Speaker 04: If we determine that Korea governs, that we're bound by the holding in Korea, [00:03:13] Speaker 04: setting aside whether or not this is a legal or factual argument, does Korea apply to the facts of this case? [00:03:21] Speaker 03: Korea applies if the court is looking or if Francis goes ask the court to look at the facts, but that's not what's at issue before this court, so Korea doesn't apply. [00:03:29] Speaker 04: But I'm just saying, does the holding in Korea apply because there was a [00:03:37] Speaker 04: an excluding criminal conviction that was at the core of this case. [00:03:40] Speaker 04: That's why I'm asking you, do the facts of Korea meet this case so that we would have, we would be limited in our jurisdiction? [00:03:48] Speaker 04: Do you concede that Korea applies to the facts of this case? [00:03:53] Speaker 03: Only if, so, okay, the jurisdictional bar would seemingly apply. [00:03:56] Speaker 04: I don't want only if. [00:03:57] Speaker 04: I want, are the predicate facts set forth in this case so that we have to apply Korea? [00:04:04] Speaker 03: The criminal bar would apply if Francisco was not asserting legal challenges. [00:04:10] Speaker 03: That is the distinction. [00:04:11] Speaker 04: I just want to make sure that you agree that we analyze this case under Korea. [00:04:16] Speaker 03: Again, only if the court gets a substantial evidence question, but it does not if it's a legal issue, which it is. [00:04:22] Speaker 00: So what is the legal issue then? [00:04:24] Speaker 00: The argument is that the agency didn't consider this sufficiently? [00:04:28] Speaker 03: No, it's that the agency didn't consider all of the evidence that is dispositive to the issue in resolving what specifically. [00:04:34] Speaker 03: So the way that the court resolved or the agency resolved the well-funded for your question was by looking at evidence that goes to really what's going to happen when Francisco is initially a move. [00:04:42] Speaker 03: So kind of conjecture around familial support. [00:04:45] Speaker 03: the fact that he's been to Mexico previously and left unharmed after day trips, and the fact that there was insufficient record evidence about the unavailability of medication. [00:04:55] Speaker 03: But really the issue happens to, or it relates to the agency's evaluation of the record with respect to Francisco's likelihood of future torture in mental health institutions and by police at arrest. [00:05:07] Speaker 03: So when the IJ was forced to examine the record on remand after the board sent it back and said, do this, [00:05:12] Speaker 03: cat analysis over, that I.J. [00:05:15] Speaker 03: answered in the positive that yes, there is at least a possibility that Francisco will be involuntarily institutionalized where torture occurs, and there's at least a possibility that he'll be arrested by police who torture individuals in their custody. [00:05:28] Speaker 03: And that I.J. [00:05:29] Speaker 03: answered that or made that determination based on evidence that appears nowhere in the well-founded fear analysis and isn't contemplated by the well-founded fear operative rationale. [00:05:38] Speaker 00: And slow down for me just a little bit in the presentation just so I can keep up. [00:05:41] Speaker 00: On the, what about the particular social group issues? [00:05:45] Speaker 03: So if we want to move on to the PS. [00:05:47] Speaker 00: I guess I'm not, I don't want to necessarily move on, but I'm wondering. [00:05:51] Speaker 00: You made some arguments here about other aspects of these claims, but you also have to have a particular social group, and the agency found that was wanting. [00:06:01] Speaker 00: You have to overcome both of those. [00:06:03] Speaker 03: That's correct, Your Honor, and we do, because the only ground on which the board affirmed the agency's negative PSG determination or the IJ's PSG determination was based on particularity. [00:06:13] Speaker 03: And the thing that makes Francisco's groups particular, he asserted five, is that each group is limited to a diagnosable condition and its associated symptoms. [00:06:23] Speaker 03: But that is the aspect of Francisco's groups that the agency never considered. [00:06:28] Speaker 03: The agency never mentioned Mr. Sanchez's psychological evaluation, which delineates two to five symptoms per each diagnosis. [00:06:36] Speaker 03: Take, for example, unspecified delirium. [00:06:38] Speaker 03: There are only two symptoms associated with that diagnosis on the record, and they are that the disturbance in one, attention, and two, awareness. [00:06:49] Speaker 03: This aspect of Francisco's claim appears nowhere in the analysis, but under Acevedo Granados, that the symptoms, the delineated symptoms and the diagnostic criteria provided in Mr. Sanchez's psychological evaluation provide the type of benchmark for an adjudicator to determine who falls within the group and who doesn't. [00:07:10] Speaker 00: Is the argument here that these groups are cognizable or just that the agency didn't analyze this the right way? [00:07:18] Speaker 03: Well, it's both, Your Honor. [00:07:20] Speaker 03: It's both that the agency never conducted the individualized case-by-case analysis that this Court has long required, as illustrated by it only looking at the shared term of the group's Mexican males who exhibit symptoms associated with suffering from and never examining the narrowing characteristics. [00:07:37] Speaker 03: But it's also the agency's failure to look at the evidence, which does demonstrate particularity. [00:07:42] Speaker 03: So the kind of the initial issue, right, is the failure to conduct the analysis. [00:07:48] Speaker 03: Because the agency hasn't conducted that analysis, it's my position that the groups are particular, but that's not something for this court to resolve. [00:07:54] Speaker 03: That's something for the IJ to evaluate on remand as a part of his fact-finding obligations. [00:08:00] Speaker 00: In the specific error at the [00:08:03] Speaker 00: I guess you're saying at the IJ level here, in terms of examining the cognizability of the groups, the error sort of began with the IJ, what specifically was it in terms of what he or she didn't consider? [00:08:16] Speaker 03: The IJ never looked at Mr. Sanchez's psychological evaluation. [00:08:20] Speaker 03: It appears nowhere in the IJ's discussion of the particular social groups, and it's not captured anywhere in the operative rationale around that the symptoms could be. [00:08:31] Speaker 00: I thought that the BIA had some other problems with the groups, that some of the language was general in nature, it was broad terms, and how does this issue with his diagnoses solve for those problems? [00:08:43] Speaker 03: Well, Your Honor, it's general in nature, and it may encompass all possible terms. [00:08:47] Speaker 03: That just reveals the agency's failure to look at the record. [00:08:51] Speaker 03: Because again, the record, Mr. Sanchez only provided or kind of delineated two to five symptoms per diagnosis. [00:08:59] Speaker 03: And none of those symptoms overlap except for insomnia, which appears both in major depressive disorder and anxiety disorder, which are two diagnoses that are included in two of the separate and distinct PSGs. [00:09:11] Speaker 03: And so it's the board's rationale around that, you know, it may encompass all possible symptoms or there's this overlap that just, it does not exist on this record and reveals the agency's failure to look at the record in the first instance. [00:09:25] Speaker 03: I do realize I have just under two minutes and if I may, can I touch on Kat briefly? [00:09:30] Speaker 03: Okay, so the cat issues before this court are also very narrow and it's based solely on the agency's negative likelihood determination with respect to mental health institutions alone. [00:09:42] Speaker 03: And there are three legal errors in that approach. [00:09:45] Speaker 03: And the first is that by only approving that aspect of the IJ's opinion, the board necessarily failed [00:09:51] Speaker 03: to consider Francisco's risk of future torture from all sources in the aggregate. [00:09:56] Speaker 03: Francisco's fear was not limited to mental health institutions. [00:09:59] Speaker 03: He also fears future torture by police at arrests and prisons and jails and rehabilitation centers through the intentional denial of medical care. [00:10:08] Speaker 03: And that aspect of Francisco's fear is not captured by the board's analysis. [00:10:14] Speaker 03: And that is a threshold legal error that requires reversal and remand at the outset. [00:10:18] Speaker 00: So it's a little unusual because that is the issue on which it was sent back to the ij and see and then there was a motion for reconsideration so There's now been multiple cracks at it and your position is that that none of those have been sufficient? [00:10:30] Speaker 03: That's correct your honor the when the board sent it back to the ij the ij separated each group and [00:10:37] Speaker 03: And subjected each source to a JFF kind of analysis. [00:10:44] Speaker 03: Is Francisco more likely than not to suffer torture from each source by recasting his likelihood as predicated on a linear chain of events? [00:10:52] Speaker 03: We challenged that to the board. [00:10:53] Speaker 03: The board did not hear that and elected to only affirm the IJ's findings with respect to mental health institutions. [00:10:59] Speaker 03: And the motion to reconsider was based on Velasquez-Samayoa. [00:11:02] Speaker 03: which creates the second legal error in the agency's analysis, and that is its failure to apply Velasquez-Samaioa and its reliance on JFF in rejecting Francisco's likelihood of future torture in mental health institutions. [00:11:16] Speaker 03: Before I stop, I'll just note that this is a case where dissenting Judge Lehman filed two dissents to the board opinions. [00:11:24] Speaker 03: pointing out what are call errors in the IJ's contradictory, or failure to consider contradictory record evidence in the IJ's inconsistent factual findings. [00:11:34] Speaker 03: This court, to remand, need only look at Judge Liebman's dissenting opinion, a twice dissenting opinion, and kind of find the same way, that there are call legal errors in the IJ's treatment of mental health institutions and the other sources at large, but of course the other sources are not before this court. [00:11:50] Speaker 01: What are the contradictory findings? [00:11:52] Speaker 03: The contradictory findings are with respect to sobriety and Francisco's homelessness. [00:11:58] Speaker 03: Finding that there's a possibility that Francisco could be homeless but then relying on familial support and most notably it's with respect to sobriety. [00:12:06] Speaker 03: The IJ kind of picked and choose when he wanted to endorse Francisco's testimony that he wanted to remain sober and then other times would say, well, he has a history of alcoholism and might possibly relapse in the future. [00:12:19] Speaker 00: Is your client detained right now? [00:12:21] Speaker 03: No, Your Honor. [00:12:22] Speaker 00: And he's in the United States? [00:12:23] Speaker 03: Yes, and he's watching this as we speak. [00:12:25] Speaker 00: Thank you. [00:12:27] Speaker 03: I will reserve the rest of my time for rebuttal. [00:12:28] Speaker 03: Thank you, counsel. [00:12:29] Speaker 04: Thank you, your honor. [00:12:29] Speaker 04: We'll hear from the government. [00:12:43] Speaker 02: May it please the court, Rebecca Hoffberg-Phillips on behalf of the United States Attorney General. [00:12:48] Speaker 02: I'd like to start with jurisdiction as the court did in the beginning. [00:12:51] Speaker 02: I think it's fundamental in this case. [00:12:53] Speaker 02: As I mentioned in the 28-J, Coria and Wilkinson were both decided the same day. [00:12:58] Speaker 02: So unfortunately, we don't have a ton of clarity about this mixed question of law and fact and what parts that pertains to. [00:13:06] Speaker 02: But in this case, there is no question that factual issues underlie the denial of asylum. [00:13:11] Speaker 02: And I'm going to go through both of those factual issues. [00:13:13] Speaker 02: The most obvious one is the well-founded fear, as I think this court understood. [00:13:18] Speaker 02: The likelihood of something happening is clearly a factual question, and they can try to cloak it in constitutional garb. [00:13:26] Speaker 02: I know that's in a lot of the cases, but the fact is it comes down to facts. [00:13:30] Speaker 02: It's a likelihood of something happening. [00:13:33] Speaker 02: It's actually more apparent in this court's cat jurisdiction. [00:13:37] Speaker 02: I'm sorry. [00:13:38] Speaker 02: Precedents regarding the likelihood of torture being a factual question that came up more most recently in Andre versus Garland 94 f4 904 specifically talking about a likelihood of torture being factual my 28 days sites and unpublished decision because that was the most clear cut. [00:13:56] Speaker 02: framing of well-founded fear being exactly factual, but there are many cases in this court talking about the likelihood of harm being a factual question. [00:14:08] Speaker 02: Actually, in Guerra, that also came up as the likelihood of torture being factual. [00:14:13] Speaker 02: Just the fact that it's a factual question, the likelihood of something happening to somebody. [00:14:18] Speaker 02: Now, they raise, they claim to raise legal questions about that, but in reality, they're disputing the facts. [00:14:25] Speaker 02: They're disputing whether the fact that the IJ found a possibility of something was contradictory to finding a clear probability of something. [00:14:33] Speaker 02: And in fact, the IJ's decision on page 174 of the record clearly says a possibility. [00:14:38] Speaker 02: When I say a possibility, it's not the same thing as a clear probability. [00:14:42] Speaker 02: And my opposing counsel would like to say that there's inconsistency here. [00:14:46] Speaker 02: When you say that something is possible, that doesn't make it reasonably possible. [00:14:50] Speaker 02: It also doesn't make it a clear probability. [00:14:53] Speaker 02: Those are distinct findings. [00:14:54] Speaker 02: And I raised that numerous times throughout my brief to try to show the difference. [00:14:58] Speaker 02: So acknowledging something could happen. [00:15:00] Speaker 02: Anything could happen, right? [00:15:01] Speaker 02: You could say anything could happen. [00:15:03] Speaker 02: Whether it's reasonably likely or whether it's a clearly probable event to happen are very different inquiries. [00:15:09] Speaker 02: And they were done in different contexts depending on the claim. [00:15:12] Speaker 02: Part of the problem in this case is that we have an IJ decision on the cancellation claim that became separate and apart from the CAT claim because it was remanded. [00:15:20] Speaker 02: So the IJ perhaps could have done a better job of weaving the two decisions together had they been decided simultaneously. [00:15:27] Speaker 02: But what we have here is a remand to the IJ to address the CAT claim, which brings me to the point that nothing that, I'll just quickly say, it seems as though the IJ couldn't have said anything that would have pleased opposing counsel with respect to the aggregate analysis, because it was specifically remanded for the aggregate analysis. [00:15:45] Speaker 02: The IJ went through it very carefully, and I'll go back to jurisdiction in a second, but that is exactly why it was remanded and why there is a separate decision on the CAT analysis here. [00:15:54] Speaker 02: It doesn't make it contradictory and it doesn't raise a legal question. [00:15:57] Speaker 02: I'll go back now to jurisdiction. [00:16:00] Speaker 01: And with respect to, I know it's not an issue here, but whether something rises to the level of persecution. [00:16:06] Speaker 01: I think there's an intra-circuit split here in the Ninth Circuit, whether that's a factual question or a legal question. [00:16:11] Speaker 01: I think Judge Graber and Judge Collins have written concurrences on opposing sides on this issue. [00:16:18] Speaker 01: On the well-founded fear issue, I mean, is there clear precedent based on the facts here that this is a factual question? [00:16:26] Speaker 02: Actually, I think in the Sharma decision, which may have been authored by Judge Breast, I think that was... I think everything's been written by Judge Breast. [00:16:33] Speaker 02: Yes, I was going to say you did the Coria decision, too. [00:16:35] Speaker 02: So I think you're very familiar with all of these issues, clearly. [00:16:39] Speaker 02: So Sharma, I thought, found that whether something rises to the level of persecution was a factual question. [00:16:44] Speaker 02: And I remember reading that decision, making it clear that it's factual. [00:16:48] Speaker 02: But we're not worried about whether it rises to the level. [00:16:50] Speaker 02: In terms of whether something is factual, I think that there's an argument that maybe things that are reviewed for substantial evidence could be factual, but I can also see how the standard of review doesn't dictate [00:17:01] Speaker 02: whether something is factual for jurisdictional purposes. [00:17:05] Speaker 02: I think there's some tension, and I think that's something that still needs to be flushed out more. [00:17:10] Speaker 02: But the particularity is a subsidiary question of PSG, which I haven't gotten to, but that's the other part of the factual determination. [00:17:17] Speaker 02: and the well-founded fear. [00:17:18] Speaker 02: So as I mentioned, Guerra is one case, the case I cited in my 28Js. [00:17:24] Speaker 02: They all refer to the factual question that I'm discussing here. [00:17:29] Speaker 02: So particularity and social distinction have been found to be subsidiary questions of the PSG. [00:17:35] Speaker 02: Now, at what point does a PSG become a legal question? [00:17:38] Speaker 02: I'm pretty unclear on that. [00:17:39] Speaker 02: But what I know is that this court has specifically found, as I mentioned in my 28J, that those subsidiary questions are factual. [00:17:46] Speaker 02: And in this case, you have him claiming the social groups are not like Granados at all. [00:17:51] Speaker 02: And this is just a plain reading of the groups. [00:17:54] Speaker 02: I think my opposing counsel wishes that these groups had been defined by a diagnosis, and that would have made her arguments just like Granados. [00:18:02] Speaker 02: Unfortunately for petitioner, his groups were all defined as symptoms associated with suffering from, okay? [00:18:09] Speaker 02: I might have symptoms associated with suffering from COVID, but in fact, I was diagnosed with the flu. [00:18:14] Speaker 02: This actually just happened to me. [00:18:15] Speaker 02: I might have symptoms associated with ALS, but in fact, I have multifocal neuron disease. [00:18:21] Speaker 02: I might have symptoms associated with delirium, and in fact, I'm drunk. [00:18:25] Speaker 02: I can tell you a million examples of where you could say that you have symptoms associated with something that have nothing to do with an actual diagnosis. [00:18:34] Speaker 02: And it's the way these groups were written, and that's why they're grouped together, and they all fail for the same reason, because associated with suffering from symptoms is too broad. [00:18:44] Speaker 02: I just showed you several examples of how you cannot narrow who is in the group. [00:18:48] Speaker 02: There are many ways to exhibit symptoms. [00:18:51] Speaker 02: What kinds of symptoms? [00:18:52] Speaker 02: They might have anything or nothing to do with the listed condition. [00:18:56] Speaker 02: And so it's the way these groups were formed. [00:18:58] Speaker 02: It was the wording of these groups. [00:19:01] Speaker 02: We are not disputing that a medical diagnosis-based group would fall under the Granados case. [00:19:07] Speaker 02: That's not how these groups were articulated. [00:19:10] Speaker 02: And I don't believe that counsel was the same [00:19:14] Speaker 02: Council before the IJ when these groups were created I think that she came in later for my recollection But these groups were first announced to the IJ and they are what they are and they were never modified and they say what they say So we cannot change them now to be something along the lines of Granada's and so because these are Yeah, nonetheless. [00:19:35] Speaker 00: These are factual issues factual [00:19:37] Speaker 00: How do you square that? [00:19:38] Speaker 00: There are cases saying whether something is a particular social group is a legal question. [00:19:44] Speaker 00: Now, whether that really, in light of Wilkinson, should mean mixed question of law and fact, perhaps that will need to be clarified at some point. [00:19:52] Speaker 00: But they have said many times, I think, that they're illegal. [00:19:56] Speaker 02: So I'll point to a couple cases in the Ninth Circuit. [00:20:00] Speaker 02: So Santos Ponce, 987 F3rd, 886, affirmed an agency. [00:20:06] Speaker 02: Finding Christian males who oppose gang membership was not particular because the evidence does not compel the conclusion. [00:20:13] Speaker 02: So it was reviewing it under the factual standard, the absence of record evidence in Reyes versus Lynch, 842 F3rd, 1125, also looking at particularity using a substantial evidence test. [00:20:27] Speaker 02: I'll say the board's decision in matter of WYC, the board reaffirmed the factual aspect of particularity in the context of requiring the applicant to delineate the PSG before the IJ, who is, and this is in the board's decision, who alone is authorized to find facts. [00:20:45] Speaker 02: So, there's lots of indication that the particularity question, I cited Cuevedo, Q-U-E-V-E-D-O in my letter, 947 F3rd, 1238, talking about how the subsidiary, it is focusing on social distinction more than particularity, but it is clearly showing how there are factual questions that arise because you're looking at whether society recognizes boundaries. [00:21:11] Speaker 02: in these definitions in terms of particularity. [00:21:14] Speaker 02: Is there a definable group that's not amorphous, that's not too, you know, overly broad or undefinable, that it has boundaries? [00:21:23] Speaker 02: And so you're looking at the words used in the definition of the group that they provided. [00:21:30] Speaker 02: So I think it's clear here that we're looking at the definition of what does it mean to be associated with suffering from. [00:21:36] Speaker 02: The definition of that is that particular. [00:21:40] Speaker 02: But I'll also say that even if this court wants to find that particularity is some sort of mixed question of law and fact that under Wilkinson would be reviewable, which the government disputes and does not take that position. [00:21:51] Speaker 02: But even if the court wants to say that the PSG is a mixed question reviewable under Wilkinson, the well-founded fair finding is absolutely factual. [00:21:59] Speaker 02: And that is abundantly clear from all of the predictive case law findings. [00:22:04] Speaker 02: And that would be a dispositive way of handling the asylum claim in this case. [00:22:09] Speaker 02: So unless the court has more questions on the asylum claim, we would say that it lacks jurisdiction over a dispositive finding. [00:22:15] Speaker 02: And therefore, the court should affirm it. [00:22:18] Speaker 02: It cannot review the agency's denial. [00:22:21] Speaker 02: With respect to cancellation, my brief made clear that that has always been unreviewable except for legal and constitutional claims, and Wilkinson did not affect that with the hardship determination. [00:22:34] Speaker 02: The ultimate exercise of discretion has always been subject to the review bar. [00:22:39] Speaker 02: And so in this case, you have to raise colorable legal and constitutional claims. [00:22:43] Speaker 02: My opposing counsel keeps raising the Cole case and keeps saying, you know, the refusal to look at evidence and the, you know, ignoring evidence. [00:22:52] Speaker 02: I'd like to point out that in both of the IJ decisions on pages 169 and 373, the IJ says something along the filing. [00:23:02] Speaker 02: The court has carefully reviewed all of the evidence, even if not specifically referenced in this decision. [00:23:08] Speaker 02: He says it twice. [00:23:09] Speaker 02: And that's because 2,000 pages of evidence were submitted in this case. [00:23:15] Speaker 02: You can see I've got three volumes of records right here. [00:23:18] Speaker 02: It's hard to go through each and every piece of record evidence and identify it all. [00:23:25] Speaker 02: And in fact, if you keep reading Cole, this court has actually made clear that Cole says that the agency doesn't have the obligation to go through and identify every piece of evidence. [00:23:37] Speaker 02: Cole itself says that. [00:23:38] Speaker 02: And one of the best cases to look at is Hernandez and that point, which is 52 F4 757. [00:23:47] Speaker 02: And you can also take a look at Chavarin, an unpublished case, 690, Fed, APPX, 924. [00:23:54] Speaker 02: Both of those cases recognize the limitations of coal. [00:23:57] Speaker 02: Castillo is another case where it says the agency can't ignore expert evidence. [00:24:02] Speaker 02: But the fact is, when it's not shown to be relevant, or when the agency says that it's reviewed things, but it doesn't specifically go through them, that doesn't mean that it ignored them. [00:24:10] Speaker 02: In this case, the expert medical evaluation [00:24:14] Speaker 02: was alluding to the fact that maybe the petitioner had gone to rehabilitation a few times, but specifically said, I don't have any evidence of this. [00:24:23] Speaker 02: Meanwhile, the petitioner's affidavit said, I went to a program. [00:24:28] Speaker 02: And the immigration judge [00:24:29] Speaker 02: accredited the direct statement from the petitioner, which by the way was in a written statement that was through counsel, you know, counseled written statement, not testimony that you might be able to say, well, we can't totally trust his testimony because he was found not competent to, you know, he needed to be represented. [00:24:45] Speaker 02: This was a written statement that said, I went to a rehabilitation program. [00:24:50] Speaker 02: And the fact that the immigration judge credited that to mean that you went to one, the medical evaluation, the mental health evaluation references, you know, he says a few that were required by employers, but no evidence of this. [00:25:05] Speaker 02: So I think it's not fair to say the agency ignored it. [00:25:08] Speaker 02: It's fair to say that the agency credited petitioners' own statements that submitted in a written statement through counsel. [00:25:14] Speaker 02: And so that's really the main point that I think he makes in terms of ignoring evidence. [00:25:21] Speaker 02: It's just very hard to go through nearly 2,000 pages of evidence. [00:25:25] Speaker 02: It's not realistic for the agency to identify each and every piece of evidence. [00:25:30] Speaker 01: So, as far as coal goes, that's not really a colorable legal claim, and it doesn't restore... Can you address the cat claim, as Judge Bress said, it was unusual for this issue that's before us to have been remanded back to the IJ, but it's also unusual to have one BIA member dissent twice. [00:25:49] Speaker 01: Can you address this point? [00:25:50] Speaker 02: Yes, I think because there's so much record evidence, I had to go through this very carefully in terms of where it says a possibility versus a reasonable possibility versus a clear probability. [00:26:02] Speaker 02: I went through that and I think the fact that there was a dissenting board member means that if you're not reading very, very carefully and going through a lot of the evidence, I think it's easy to be overwhelmed and say we need more [00:26:16] Speaker 02: We need more clarity on this, but I think when the board remanded, there was a specific remand to correct the aggregation analysis. [00:26:25] Speaker 02: It's hard to imagine how that wasn't enough here, because here's the problem. [00:26:29] Speaker 02: If you spend too much time aggregating, someone's going to argue you didn't spend enough time on the individual claims. [00:26:34] Speaker 02: And if someone spends a lot of time on the individual claims, you're going to argue that they didn't spend enough time aggregating. [00:26:39] Speaker 02: When you go through the individual claims the way that the immigration judge did, very thoroughly, by the time you get through all of it, you realize a lot of it was not even based on a clear probability. [00:26:50] Speaker 02: It was based on not meeting the definition of torture, whether through lack of specific intent to torture or lack of acquiescence. [00:26:56] Speaker 02: Because remember, likelihood of harm and state action are different components to it. [00:27:01] Speaker 02: And I think you have to remember that also the specific intent finding, I just wanted to raise this. [00:27:07] Speaker 02: It's very clear, my opposing counsel tries to say the specific intent finding wasn't brought forward to the second decision. [00:27:14] Speaker 02: The reason the first decision was remanded was because of the aggregation. [00:27:17] Speaker 02: Nothing else about the first decision was found erroneous. [00:27:21] Speaker 02: In both decisions, the immigration judge cites matter of JRGP [00:27:24] Speaker 02: on page 177 and page 386. [00:27:27] Speaker 02: 386 is the first decision. [00:27:29] Speaker 02: 177 is the second decision. [00:27:31] Speaker 02: He does raise it in the context of discussing prisons as opposed to mental facilities in the second decision. [00:27:37] Speaker 02: But the parenthetical he uses for both include mental health facilities. [00:27:41] Speaker 02: So the specific intent part of his decision was clearly carried forward. [00:27:45] Speaker 02: And to remand it for the immigration judge to repeat what he found ages ago would be futile. [00:27:52] Speaker 02: He clearly found there was no specific intent. [00:27:54] Speaker 02: very well recognized within this court's precedent as no specific intent in mental health institutions. [00:28:00] Speaker 02: I see my time is up. [00:28:02] Speaker 02: Unless the court has any further questions, the government will rest on its brief. [00:28:20] Speaker 03: Government counsel has conceded that when the IJ looked back at the opinion or the case on second glance, he took a much more thorough review of the record. [00:28:31] Speaker 03: Were there errors in how he approached the record then? [00:28:33] Speaker 03: Yes. [00:28:34] Speaker 03: But his analysis was much more comprehensive. [00:28:37] Speaker 03: He looked at different evidence. [00:28:38] Speaker 04: What does that mean in terms of your argument? [00:28:40] Speaker 03: That means that with respect to well-founded fear, this proves that the agency or the IJ did not look at all of the record evidence that was dispositive to [00:28:49] Speaker 03: the well-funded fear inquiry. [00:28:51] Speaker 03: And he shows that and how he treats the evidence with respect to likelihood of future torture and how that evidence that he relied on there appears nowhere in the well-funded fear analysis. [00:29:00] Speaker 03: When we're looking at, just to briefly touch on jurisdiction, these are legal issues. [00:29:06] Speaker 03: Cole exists in this circuit. [00:29:07] Speaker 03: Cole says it's a constitutional issue. [00:29:09] Speaker 03: It's a statutory issue. [00:29:10] Speaker 03: It is a legal issue that this court must resolve before moving to the merits. [00:29:15] Speaker 03: Despite its best efforts, the government cannot [00:29:19] Speaker 03: make what are legal issues into factual issues. [00:29:22] Speaker 03: This court in Park, and this is something that we noted in our briefs, has distinguished between, you know, when somebody raises a coal issue, that is a procedural threshold legal issue that needs to be resolved before moving to the merits. [00:29:34] Speaker 03: And that is exactly what has to happen here. [00:29:35] Speaker 04: Your legal issue is the IJ never thoroughly [00:29:38] Speaker 03: With respect to well-founded fear, yes, and with respect to the actual findings made with respect to mental health institutions and the likelihood of future torture. [00:29:48] Speaker 03: And the issues, again, are very narrow before this court. [00:29:50] Speaker 03: With CAT, it's just this mental health likelihood finding, and the errors that underlie that. [00:29:55] Speaker 03: And with asylum, it's just this particularity finding and just this well-founded fear finding. [00:30:03] Speaker 03: I want to touch briefly on the particularity legal question and just point out that in Andrade, this court rejected the exact same argument that the government is now making here. [00:30:12] Speaker 03: This is a legal question. [00:30:13] Speaker 03: Did the agency comply with Acevedo Granados? [00:30:16] Speaker 03: And the answer is no. [00:30:18] Speaker 03: This isn't about just the diagnosable condition in the groups. [00:30:21] Speaker 03: It's about the term symptoms and how the agency did not look into the record to see, okay, is the term symptoms as used in these groups defined or explained in the record? [00:30:31] Speaker 03: And guess what it is? [00:30:33] Speaker 03: The agency just never looked at it. [00:30:34] Speaker 03: Mr. Sanchez provided an expert opinion that delineated two to five symptoms per diagnosis. [00:30:42] Speaker 03: That appears nowhere. [00:30:43] Speaker 03: And so that's what makes this case both distinguishable and like Andrade in that the agency here didn't do what it did in Andrade, which made the agency opinion there comply with Acevedo Granados. [00:30:54] Speaker 03: Here it did not comply with Acevedo Granados. [00:31:00] Speaker 03: And just to briefly go back to Cole, what Cole says, or what this court's authority interpreting Cole has said, is that where something indicates in the opinion that something is amiss and the agency did not consider all the evidence before it, that is legal error. [00:31:12] Speaker 03: And that is exactly what we have here. [00:31:14] Speaker 03: My time is up, Your Honors. [00:31:17] Speaker 03: Thank you so much. [00:31:18] Speaker 04: Thank you to both counsel for your helpful arguments. [00:31:22] Speaker 04: The case just argued is submitted for decision by the court.