[00:00:02] Speaker 04:
Good morning.

[00:00:02] Speaker 04:
May it please the court?

[00:00:04] Speaker 04:
My name is Cory Hong.

[00:00:05] Speaker 04:
I am from the Florence Project.

[00:00:06] Speaker 04:
I represent a petitioner, Ibrahim Baer, whom I'll refer to as Mr. Baer.

[00:00:13] Speaker 04:
I will reserve two minutes for rebuttal, and I will watch my time.

[00:00:17] Speaker 04:
I will talk about standard of review, torture, and acquiescence.

[00:00:22] Speaker 04:
On the standard of review, the BIA here stated that, quote, even if the applicant established change conditions in Somalia, he has not established prima facie eligibility for relief.

[00:00:37] Speaker 04:
The BIA jumped the threshold question of whether there is a reasonable possibility of relief and went straight to the merits of CAT.

[00:00:47] Speaker 04:
This is error.

[00:00:49] Speaker 04:
Fonseca Fonseca explains that a reasonable likelihood standard requires that a petitioner to show only more than a mere possibility that she will establish a claim of relief.

[00:01:01] Speaker 04:
It does not require the petitioner demonstrate that she more likely than not will prevail.

[00:01:09] Speaker 04:
like cower, the BIA abuses its discretion when it denies a motion to reopen by deciding the merits of torture and dismissing evidence of acquiescence.

[00:01:22] Speaker 03:
Two questions on this.

[00:01:24] Speaker 03:
One, is this an argument that was made in the opening brief?

[00:01:27] Speaker 03:
And two, should we just regard this more as shorthand?

[00:01:30] Speaker 03:
Is it really error?

[00:01:32] Speaker 04:
To the question, it came up on the first issue mentioning that the BIA made this implied reasoning when the government disputed whether that was an applied, I'm sorry, an applied finding on change conditions.

[00:01:48] Speaker 04:
When the BIA, when the government's brief responded to that in the reply brief, I cited more of the cases that were relevant.

[00:01:56] Speaker 04:
The government also cited Fonseca, Fonseca in its brief on this question.

[00:02:01] Speaker 04:
And to your second question, Your Honor, I apologize.

[00:02:05] Speaker 03:
The second question is, should we more disregard this as shorthand?

[00:02:09] Speaker 03:
Is it really an indication of clear misapplication of the legal standards, or is it a little more unclear?

[00:02:17] Speaker 04:
Cowher says it's not.

[00:02:19] Speaker 04:
The same language that the BIA used here was the same language that the BIA used in Cowher.

[00:02:27] Speaker 04:
In Guo, which is the third circuit case, also used the same language.

[00:02:32] Speaker 04:
And the fourth circuit case, Moons, from 2024 at page 411, the BIA used nearly identical evidence by saying that it was denying of the prima facie elements of cat.

[00:02:46] Speaker 03:
So what do you think the BIA should have done, refer this to an IJ for further proceedings?

[00:02:51] Speaker 04:
That's what Cower and Reyes-Corrado require, that when there's a reasonable possibility of evidence showing that the elements of CAT could be met, then remand is required.

[00:03:03] Speaker 00:
I guess I'm a little bit puzzled because the BIA did reference the reasonable likelihood standard and saying that the evidence here wasn't enough to meet that standard.

[00:03:12] Speaker 00:
So I'm a little bit confused as to your argument of the BIA applying the wrong standard.

[00:03:17] Speaker 04:
There are two ways to look at that.

[00:03:18] Speaker 04:
They used the magic words, but in fact, they denied it on the elements of cat.

[00:03:23] Speaker 04:
They said there wasn't enough evidence for torture and there wasn't evidence of acquiescence.

[00:03:28] Speaker 00:
Well, the elements are going to be present when you're assessing the reasonable likelihood of whether you can make a claim.

[00:03:32] Speaker 00:
You're going to be thinking about the elements and a reasonable likelihood of making those elements.

[00:03:36] Speaker 00:
So referencing the elements doesn't say that they're applying the wrong standard.

[00:03:40] Speaker 04:
There are two responses.

[00:03:42] Speaker 04:
One, the same language was parroted in Cower and Moons, where the court said that wasn't enough.

[00:03:49] Speaker 04:
But even also in this decision, the BIA invoked the heavy burden standard, which also the government used in its brief to defend the BIA reasoning.

[00:04:00] Speaker 04:
The heavy burden comes only from matter of Kohalo,

[00:04:03] Speaker 04:
which is the improper standard, which Fonseco Fonseco discusses.

[00:04:08] Speaker 04:
Under Dominguez-Ohedo, when the record is unclear as to what standard of review the agency used, remand is also warranted to clarify that ambiguity.

[00:04:20] Speaker 04:
So if the court agrees it's ambiguous, remand is required.

[00:04:23] Speaker 04:
If it isn't, because this matches other language, remand is also required.

[00:04:27] Speaker 02:
Council, this may be neither here nor there, but could you clarify for me your position as to what you think the IJ decided as to relocation?

[00:04:40] Speaker 04:
In 2017, the IJ said that because he's a member of the Bajuni tribe, he can only live in southern Somalia.

[00:04:52] Speaker 02:
So that's what I understood you to argue.

[00:04:55] Speaker 02:
That's not how I read what the IJ said.

[00:04:59] Speaker 02:
So when I look at page 21 of the IJ's decision on relocation,

[00:05:07] Speaker 02:
The IJ said, based on this record, the court finds that the evidence does not establish that the respondent could not safely relocate within Somalia to avoid harm.

[00:05:20] Speaker 02:
Doesn't that mean that he rejected the relocation argument?

[00:05:24] Speaker 04:
Your Honor, with the double negative, I read it differently.

[00:05:26] Speaker 04:
But regardless, under the reasonable standard, this is a fact-finding that the IJ must make under the current record.

[00:05:35] Speaker 04:
There is evidence in the record in the motion to reopen showing that al-Shabaab has taken over southern Somalia and runs religious courts and prisons that have inhumane and life-threatening conditions.

[00:05:49] Speaker 04:
Those are facts that an IJ must decide, and also the prediction

[00:05:53] Speaker 04:
of future torture, as the government noted, is also factual findings under a matter of ZZO.

[00:06:03] Speaker 04:
So these questions about whether acquiescence is met, whether relocation is met, are all fact findings that the IJ must decide, not the board at this stage.

[00:06:17] Speaker 04:
And on the evidence of torture at AR 142, al-Shabaab imposed harsh punishment and al-Shabaab, quote, tortured residents in Al Barak for offenses ranging from failure to pay taxes to being a government agent.

[00:06:31] Speaker 00:
So, counsel, I think the record is clear that life in Somalia is rough and that the government, I don't know if you'd call it a failed state, but it's certainly not effective in protecting its citizens.

[00:06:44] Speaker 00:
What I don't understand by your argument, though, is

[00:06:48] Speaker 00:
It seems the import of your argument is anybody who is from Somalia and is facing removal has the same perils that your client does.

[00:06:59] Speaker 00:
And if that's true, well, I guess I have two questions.

[00:07:02] Speaker 00:
One, do you agree with that?

[00:07:03] Speaker 00:
And two, if you do, how does that satisfy the particularity requirement?

[00:07:08] Speaker 04:
Well, I can't speak to other individuals, but Mr. Baer provided a declaration at 96 showing that he has been uniquely westernized.

[00:07:15] Speaker 04:
He left Somalia at age eight.

[00:07:18] Speaker 04:
He's been in the United States since age 17.

[00:07:20] Speaker 04:
He's now in his forties.

[00:07:22] Speaker 04:
He does not speak Swahili.

[00:07:26] Speaker 04:
And in immigration detention, other Somali nationals identified him and called him a dead man because he stood out as being westernized and different from other people in Somalia.

[00:07:38] Speaker 04:
That is a particularized risk.

[00:07:39] Speaker 04:
In addition, as a USD-14 and being westernized, that shows the different risk as well.

[00:07:45] Speaker 04:
And in the cases cited by the government, those factors were also present.

[00:07:50] Speaker 04:
And so again,

[00:07:51] Speaker 04:
What I'm asking for is everything to be sent down to the IJ.

[00:07:55] Speaker 04:
Maybe we'll win at the next hearing.

[00:07:58] Speaker 04:
Maybe we won't.

[00:07:59] Speaker 04:
But the IJ has to be the fact finder that makes that decision.

[00:08:06] Speaker 04:
And if there are no further questions, may I reserve my remaining time?

[00:08:09] Speaker ?:
Yes.

[00:08:22] Speaker 01:
Good morning, Your Honors, and may it please the Court, Michael Heiss on behalf of the Respondent, the Attorney General of the United States.

[00:08:28] Speaker 01:
The Board properly exercises discretion here to deny this motion to reopen because, as this record fails to confirm, Bayer does not face any particularized threat of harm.

[00:08:40] Speaker 01:
As your honor noted, Somalia is indeed a dangerous place, but the board here has to weigh whether or not he has established a prima facie case for cat protection.

[00:08:50] Speaker 01:
That's not deciding the merits necessarily completely, and petitioners asking for a remand to the immigration judge to further develop the record.

[00:08:59] Speaker 01:
The reality is, the burden for motions to reopen remains heavy, subsequent to Fonseca.

[00:09:04] Speaker 02:
Well, counsel, it strikes me there's a lot here in the country reports, and I was

[00:09:10] Speaker 02:
taken not in a positive way by a government statement at page 17 of their brief talking about

[00:09:20] Speaker 02:
The country reports and these individuals face detention and unspecified inhumane conditions but with no details and while detention and inhumane conditions for minor offenses with greater detail provided could substantiate a claim, the record here contains no such details.

[00:09:39] Speaker 02:
The breadth of the inhumane conditions that are detailed in the country report

[00:09:44] Speaker 02:
strikes me as fairly specific.

[00:09:47] Speaker 02:
What more details do you think the country report needed before the petitioner could rely on these statements as to the severity and breadth of the inhumane conditions?

[00:10:00] Speaker 01:
My reading of the country report in this regard only says inhumane conditions.

[00:10:06] Speaker 01:
It doesn't specify what those are.

[00:10:08] Speaker 01:
Presumably that's not anything good, but what those are and why these individuals were targeted.

[00:10:16] Speaker 01:
That again speaks to the weight of the evidence here.

[00:10:18] Speaker 01:
Is there enough to show that he would be detained?

[00:10:23] Speaker 02:
significant human rights issues included unlawful or arbitrary killings, extrajudicial killings by government forces, torture and cruel, inhuman or degrading treatment by the government.

[00:10:37] Speaker 02:
That also is too general.

[00:10:39] Speaker 01:
Is that as to these western, or excuse me, individuals that engaged in arguably westernized acts?

[00:10:45] Speaker 02:
I think that was a general description of country conditions and a discussion of inhumane conditions like being killed and tortured.

[00:10:54] Speaker 01:
Of course.

[00:10:55] Speaker 01:
That would, yes.

[00:10:56] Speaker 01:
Being killed and torture obviously constitutes torture.

[00:11:00] Speaker 01:
The question is whether or not westernized individuals, as Mr. Baer claims to be, that would be the basis for why he would be targeted.

[00:11:07] Speaker 01:
And the quantum of evidence produced here simply doesn't show that he would, because as far as the record, as the country report indicates, al-Shabaab targets seemingly everyone, as Your Honor noted.

[00:11:19] Speaker 01:
It's not good for pretty much anybody, but that he would be singled out for torture.

[00:11:25] Speaker 01:
And whether or not inhumane detention conditions rise to the level of torture is, again, his burden.

[00:11:31] Speaker 01:
And it is a heavy burden.

[00:11:32] Speaker 01:
And that comes from Abudu.

[00:11:33] Speaker 01:
I'd like to clarify, the Supreme Court stated that

[00:11:36] Speaker 01:
motions to reopen remain disfavored, and that it is a heavy burden to demonstrate that reopening is warranted.

[00:11:43] Speaker 01:
The Supreme Court in Avutu likened motions to reopen to motions for a new trial.

[00:11:49] Speaker 02:
Where does the BIA deal with, for example, petitioner's declaration where he talks about the form of Islam that he follows, the problems that he's going to have because of that?

[00:12:05] Speaker 02:
Where does the BIA engage with that?

[00:12:11] Speaker 01:
Concededly, the board's decision here is rather brief.

[00:12:13] Speaker 01:
I believe its administrative record, page 6, discusses his proffered evidence.

[00:12:19] Speaker 01:
The board did not squarely address his declaration or the prison hearsay statements specifically.

[00:12:28] Speaker 01:
But all the same, this court has long held that the board need not craft an exegesis when adjudicating these motions.

[00:12:37] Speaker 02:
were HCFR 1208, 16C, in assessing, et cetera, all evidence relevant to the possibility of future torture shall be considered.

[00:12:51] Speaker 02:
Is the government's position that shall there means may?

[00:12:56] Speaker 01:
No.

[00:12:57] Speaker 01:
Shall means shall.

[00:12:58] Speaker 01:
Shall means shall.

[00:12:59] Speaker 01:
But what the board shall do with respect to that evidence is at least demonstrate to the court that the board

[00:13:07] Speaker 01:
reviewed all of the evidence, and the board's decision here, yes, again, while a single paragraph on the merits of the prima facie question, is enough.

[00:13:15] Speaker 03:
One thing that's a little troubling for your position is that the board essentially assumed that the petitioner had demonstrated changed country conditions, which is a hard showing to make, and a lot of petitioners do not survive

[00:13:30] Speaker 03:
on that.

[00:13:30] Speaker 03:
But the board here made that assumption that he had.

[00:13:32] Speaker 03:
So it sort of begs the question, well, something changed.

[00:13:36] Speaker 03:
And we would like to know how that might affect this person.

[00:13:40] Speaker 03:
And what the board offers is obviously fairly limited.

[00:13:44] Speaker 01:
Yes.

[00:13:45] Speaker 01:
Change conditions, again, goes to the broader country conditions.

[00:13:48] Speaker 01:
Changes in personal circumstances shouldn't be considered within that.

[00:13:52] Speaker 01:
That's true.

[00:13:53] Speaker 03:
But he's not really claiming that, I don't think.

[00:13:55] Speaker 03:
He's claiming that al-Shabaab

[00:13:58] Speaker 03:
in the time since his original IJ hearing has gained greater control and demonstrated more ruthlessness.

[00:14:05] Speaker 03:
And I think the board seems to have accepted that for purposes of this.

[00:14:09] Speaker 03:
And the government agrees.

[00:14:10] Speaker 03:
Right.

[00:14:10] Speaker 03:
So why wouldn't, in those circumstances, why wouldn't we ask the board to give us a little more detail on why it's denying the petition?

[00:14:18] Speaker 01:
More detail certainly would be welcome here.

[00:14:20] Speaker 01:
But nonetheless, the board's decision shows that it specifically cited his country conditions evidence and said it wasn't enough.

[00:14:26] Speaker 01:
If the exegesis or lack thereof, the requirement that the board get into specific details, cite specific pieces of evidence, this court has long recognized that the board has discretion here.

[00:14:38] Speaker 01:
And then that's the point, is that the board is exercising its wide discretion whether or not to grant a motion to reopen.

[00:14:45] Speaker 01:
And what we have here, based on this record, and we heard it again during petitioner's opening argument,

[00:14:52] Speaker 01:
The evidence cited was his own declaration and prison hearsay.

[00:14:57] Speaker 01:
That's not enough.

[00:14:58] Speaker 01:
That hearsay gets limited.

[00:15:00] Speaker 01:
It's admissible in immigration proceedings, but that gets limited weight.

[00:15:04] Speaker 01:
So the only fact of the matter with respect to that hearsay is that the hearsay was uttered, not necessarily that the statements are true.

[00:15:12] Speaker 01:
And that's the whole point of hearsay.

[00:15:13] Speaker 01:
It's an out-of-court statement offered for the truth of the matter asserted.

[00:15:15] Speaker 01:
That gets limited weight, especially when it's coming from prison detainees.

[00:15:19] Speaker 03:
But if the country conditions have changed, don't we need to have some understanding of the way in which they've changed and how that might be relevant to the petitioner?

[00:15:28] Speaker 01:
It's a benefit to him to say that they've changed, but he still has to demonstrate a particularized threat of torture.

[00:15:36] Speaker 01:
Not just harm, but torture.

[00:15:37] Speaker 01:
So that conditions have changed doesn't necessarily ipso facto mean he qualifies for cat protection.

[00:15:43] Speaker 01:
It certainly helps.

[00:15:44] Speaker 01:
It gets him past his untimeliness for his motion reopen.

[00:15:49] Speaker 01:
But in terms of his burden of proof, which again remains heavy,

[00:15:53] Speaker 01:
He must demonstrate a reasonable likelihood that he can establish a prima facie case.

[00:15:57] Speaker 01:
And this record simply doesn't.

[00:15:58] Speaker 01:
Again, we have nothing.

[00:15:59] Speaker 01:
I'm sorry.

[00:16:01] Speaker 02:
So where the country report talks about some of the things that al-Shabaab did for what it described as relatively minor offenses, such as smoking, illicit content on cell phones,

[00:16:16] Speaker 02:
not wearing a hijab, the types of things that might be associated with practicing a different form of Islam.

[00:16:25] Speaker 02:
Would that have been enough in the government's view here if instead of saying generally inhumane conditions, which are often harsh and life threatening, that if that had had more detail, would that have been enough here?

[00:16:44] Speaker 01:
That's certainly hypothetical.

[00:16:45] Speaker 01:
I mean, that's for the board's discretion.

[00:16:47] Speaker 01:
But again, it's his burden of proof here.

[00:16:51] Speaker 01:
He's seeking a motion to reopen long after he's been ordered removed.

[00:16:55] Speaker 01:
This case has been pending for at least eight years now.

[00:16:59] Speaker 01:
It's not a standard to be dismissed.

[00:17:02] Speaker 01:
So yes, that the country conditions indicate some unfortunate possibilities for him.

[00:17:07] Speaker 01:
They still have to have that additional detail.

[00:17:09] Speaker 01:
And so at best, he's citing his own declaration

[00:17:13] Speaker 01:
based on hearsay statements from other individuals, there's nothing in the record that shows that he would be targeted specifically for those things, that those things might have happened to other similarly situated individuals is relevant.

[00:17:25] Speaker 01:
But again, without more detail, how is he demonstrating, how is he satisfying his burden of proof?

[00:17:31] Speaker 03:
The petitioner makes arguments about the BIA's legal standard, its description of it.

[00:17:37] Speaker 03:
Do you think any part of it was inaccurate or inartful?

[00:17:41] Speaker 01:
Again, ABUDU remains good law.

[00:17:45] Speaker 01:
Yes, this court clarified in Fonseca, Fonseca what the reasonable likelihood standard is versus the more likely than not standard.

[00:17:52] Speaker 01:
That doesn't change the fact that motions to reopen remain strongly disfavored, especially untimely ones, and that the burden remains heavy because it's akin to seeking a new trial.

[00:18:03] Speaker 01:
So it's still a heavy burden.

[00:18:05] Speaker 01:
The board properly cited, as your honor noted, the reasonable likelihood standard.

[00:18:09] Speaker 01:
Again,

[00:18:10] Speaker 01:
Certainly more detail as to the facts might have been useful, but it's not required, especially considering when the focus of petitioner's motion was a whole set of other circumstances arguing about a change in law that would affect his removability.

[00:18:24] Speaker 01:
So the board here wasn't exactly addressing this in the kind of detail it would if this were the only thing presented to it.

[00:18:32] Speaker 02:
One more question, and I would certainly understand if you don't know.

[00:18:37] Speaker 02:
And it's not in the record, I don't think.

[00:18:40] Speaker 02:
Are we currently deporting anyone to Somalia?

[00:18:43] Speaker 01:
I believe so.

[00:18:44] Speaker 01:
I don't know.

[00:18:45] Speaker 01:
I know it's difficult.

[00:18:46] Speaker 01:
I know it's difficult to obtain travel documents.

[00:18:48] Speaker 01:
That's likely why Mr. Bear was still here three years after the fact.

[00:18:53] Speaker 01:
One more thing I'd like to mention.

[00:18:54] Speaker 01:
There was some discussion of the immigration judge's decision here.

[00:18:57] Speaker 01:
Only the motion to reopen is before the court here.

[00:19:01] Speaker 01:
the immigration judge's findings on relocation were necessary to inform this decision, the court should remand to the agency for it to address that in the first instance.

[00:19:10] Speaker 03:
What do you mean by that?

[00:19:12] Speaker 01:
Well, because there was some confusion as to what the IJ said about relocation.

[00:19:19] Speaker 01:
If that needed clarification, if the court believes he has demonstrated enough for a prima facie case, that would need to be part of the remand for the agency

[00:19:29] Speaker 01:
consider relocation more clearly.

[00:19:31] Speaker 02:
No, it's just when I read it.

[00:19:33] Speaker 02:
I thought, I think he meant to say he couldn't relocate.

[00:19:39] Speaker 02:
But when I read it, he said the petitioner, I guess the then respondent, just failed in his burden.

[00:19:47] Speaker 02:
But I think the IJ probably did that mistakenly.

[00:19:50] Speaker 01:
I'm going from memory here because I handled the prior case as well.

[00:19:53] Speaker 01:
But I believe the board did not address relocation.

[00:19:57] Speaker 01:
Right.

[00:19:58] Speaker 01:
So that kind of makes it go away.

[00:20:02] Speaker 01:
Do you have a closing remark?

[00:20:03] Speaker 01:
I do.

[00:20:03] Speaker 01:
Ultimately, the board properly exercised its discretion here, applied the correct standard, and petitioner for it to satisfy his heavy burden of proof.

[00:20:10] Speaker 01:
Thank you, Your Honors.

[00:20:11] Speaker 02:
Thank you.

[00:20:18] Speaker 04:
I have four quick points.

[00:20:20] Speaker 04:
First, the government conceded here that the BIA did not address Mr. Baer's declaration and did not address the specific prison conditions under a gonifer in the same situation.

[00:20:33] Speaker 04:
It was error for the board to deny an MTR based on CAT without engaging in the specific evidence.

[00:20:42] Speaker 04:
Second, the government kept referencing hearsay.

[00:20:46] Speaker 04:
But under Cower and a motion to reopen, all facts are assumed true unless implausible.

[00:20:53] Speaker 04:
Third, the government also says that MTRs, or motions to reopen, are disfavored.

[00:21:00] Speaker 04:
However, the Moons case in the Fourth Circuit does a wonderful job of explaining that Congress has accepted motions to reopen based on asylum and CAT.

[00:21:10] Speaker 04:
because Congress has recognized that those fleeing persecution on changed circumstances deserve a hearing.

[00:21:18] Speaker 04:
And fourth, the government only defended the board based on the invocation of the standard heavy burden.

[00:21:26] Speaker 04:
That is not the reasonable likely standard.

[00:21:29] Speaker 04:
Under Rays-Corrado, again, the MTR is not required to conclusively prove that he's eligible for CAT, only that there's sufficient evidence to meet the elements.

[00:21:44] Speaker 04:
If there are no further questions, may I submit the case?

[00:21:49] Speaker 02:
All right.

[00:21:49] Speaker 02:
We thank counsel for their arguments, and the case just argued is submitted.

[00:21:54] Speaker 02:
We'll now move to the second