[00:00:02] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:04] Speaker 01:
Hilary Hahn, a parent on behalf of the petitioner.

[00:00:07] Speaker 01:
And if I may, I'd like to reserve two minutes for rebuttal.

[00:00:09] Speaker 01:
Very welcome.

[00:00:12] Speaker 01:
Thank you.

[00:00:12] Speaker 01:
The BIA here relied on three alleged inconsistencies to find that Ms.

[00:00:16] Speaker 01:
Barrasso was not credible.

[00:00:18] Speaker 01:
We don't believe that any of these three inconsistencies provide substantial evidence for an adverse credibility determination, and I think that's particularly true when considered in the totality of the circumstances.

[00:00:30] Speaker 01:
I'm just going to briefly go through each of those alleged inconsistencies.

[00:00:34] Speaker 01:
First, the board relied on an alleged inconsistency about how Ms.

[00:00:39] Speaker 01:
Barassa knew that the people who shot at her house were gang members.

[00:00:44] Speaker 01:
According to the board, she testified inconsistently at her reasonable fear interview and at an immigration court hearing.

[00:00:53] Speaker 01:
But the problem with the board's reasoning is that she was asked different questions at the reasonable fear interview and at the immigration court hearing.

[00:01:00] Speaker 01:
At the reasonable fear interview, she was asked how she knew that the people were gang members, and she testified that the next day she spoke to some security guards who had witnessed the incident and they told her that the people were gang members.

[00:01:14] Speaker 01:
At her immigration court hearing though, she was never asked how she knew the people were gang members.

[00:01:19] Speaker 01:
She did testify that she looked out the window and saw the people who were shooting, but she never testified that that was how she knew that the people were gang members.

[00:01:29] Speaker 00:
Didn't she go on to say, and I saw it by light.

[00:01:32] Speaker 01:
She did.

[00:01:33] Speaker 01:
Um, but she didn't, she, she didn't testify that that was how she knew they were gang members.

[00:01:38] Speaker 01:
She saw that she, she said that she saw people, um, but she didn't say that that was the way that she found out that they were gang members.

[00:01:46] Speaker 01:
And then there's also, the board also kind of pointed out that at the reasonable fear interview she never said that she peeked out the window.

[00:01:55] Speaker 01:
But that's because she was never asked whether she looked out the window.

[00:02:00] Speaker 01:
Her testimony at the reasonable fear interview is that she heard the shots, she threw her son onto the floor, and then the next thing she says is that the next day she spoke to people who told her who shot at the house.

[00:02:13] Speaker 01:
So there was really no, there was no detail about kind of the interim period there and she was never asked.

[00:02:19] Speaker 01:
So there was really no inconsistency, she just added more detail that she hadn't added the reasonable fear in her view.

[00:02:26] Speaker 01:
And beyond that, the immigration judge's attempt to have her explain this alleged inconsistency, not only was it entirely convoluted, and we laid out the exact question that he asked in the reply brief, but it also assumed something that wasn't true.

[00:02:45] Speaker 01:
It assumed that she had answered those two questions inconsistently at the reasonable fair interview in the immigration court hearing, and she hadn't done that.

[00:02:52] Speaker 01:
So that just added to the confusion.

[00:02:56] Speaker 01:
And so in our view, that's neither an inconsistency nor was she given a proper opportunity to explain what the immigration judge perceived to be an inconsistency.

[00:03:07] Speaker 01:
The second ground that the board relied on was Ms.

[00:03:14] Speaker 01:
Barraza's inconsistency about the order of two different events, the shooting at her house and the threatening visit from a gang member.

[00:03:23] Speaker 01:
She was inconsistent.

[00:03:26] Speaker 01:
She switched the order of the two events.

[00:03:29] Speaker 01:
In Kumar, this court said that the board should not rely heavily on inconsistencies that are attributable to simple human error.

[00:03:39] Speaker 01:
That's all this is.

[00:03:41] Speaker 01:
She switched the order of two events that happened very close in time.

[00:03:47] Speaker 01:
by correcting at her hearing the proper order of the events, there was no attempt to enhance her asylum claim.

[00:03:55] Speaker 01:
Whether one happened before the other or vice versa, the takeaway is really just the same.

[00:04:01] Speaker 01:
She was threatened by gang members who shot at her, and then somebody came and told her why they'd shot at her and who had done it.

[00:04:07] Speaker 02:
Well, there's a little more to it.

[00:04:10] Speaker 02:
In her testimony, she's entirely consistent.

[00:04:14] Speaker 02:
What's inconsistent is the written statement prepared by somebody else for her.

[00:04:22] Speaker 02:
I'm speculating, but it kind of smells to me that if she's telling the truth, what happened is that she had someone who was writing hastily and not recording properly.

[00:04:36] Speaker 02:
But when she herself is talking in her own voice, she's entirely consistent.

[00:04:42] Speaker 01:
Right.

[00:04:42] Speaker 01:
And I think, you know, she said that, you know, she said at the hearing in response that it was a mistake in her declaration.

[00:04:50] Speaker 01:
And, I mean, I think that that's consistent with what you're saying.

[00:04:52] Speaker 01:
I mean, it was, there was either a mistake with, you know, communicating at that particular point in time or

[00:05:00] Speaker 02:
her own kind of review of the declaration maybe wasn't... As you read that written statement, it's very clearly, it's not written in her own voice.

[00:05:09] Speaker 02:
That's written by somebody who's quite fluent in English, who's kind of... Right.

[00:05:14] Speaker 01:
And we'll take responsibility.

[00:05:16] Speaker 01:
I mean, we prepared the case.

[00:05:17] Speaker 01:
We interviewed her.

[00:05:18] Speaker 01:
We wrote the declaration.

[00:05:19] Speaker 01:
We read it back to her in Spanish.

[00:05:22] Speaker 01:
You know, that there was a mistake.

[00:05:24] Speaker 01:
And again, I mean, I think this is really just nothing more than a mistake.

[00:05:29] Speaker 01:
And her response to the questions about it, she was asked three different times on cross-examination, twice by the trial attorney and once by the immigration judge, why she made this mistake or why there was this difference.

[00:05:42] Speaker 01:
And she just said very plainly, you know, it was a mistake and I'm sure that it happened.

[00:05:46] Speaker 01:
She was honest about it.

[00:05:47] Speaker 01:
She didn't try to, you know, make, you know, to try and take back her testimony or walk it back.

[00:05:54] Speaker 02:
This is outside the record.

[00:05:56] Speaker 02:
Have you talked to the person who prepared the statement for her?

[00:05:59] Speaker 01:
Our office did.

[00:06:01] Speaker 02:
I know that.

[00:06:02] Speaker 02:
I'm asking, have you talked to the person within your office?

[00:06:05] Speaker 00:
But that's not in the record.

[00:06:06] Speaker 00:
And not before us, I don't think.

[00:06:08] Speaker 02:
Not in the record.

[00:06:09] Speaker 02:
I understand.

[00:06:10] Speaker 00:
We can't consider that.

[00:06:11] Speaker 02:
That may be privileged information that you might want to think about.

[00:06:15] Speaker 02:
Don't even answer the question.

[00:06:16] Speaker 02:
I realize it's not in the record.

[00:06:19] Speaker 01:
OK, then I'll take that cue and not answer the question.

[00:06:24] Speaker 01:
The third alleged inconsistency

[00:06:28] Speaker 01:
that the board relied on was again something that in our view isn't an inconsistency at all.

[00:06:34] Speaker 01:
This is about whether Miss Barassa's husband was present at the soccer field at the time that the armed men chased her.

[00:06:42] Speaker 01:
And Miss Barassa testified that her husband was there at the soccer field.

[00:06:48] Speaker 01:
Her cousin, he didn't testify that the husband wasn't there, but when he was asked about who was there, he never said that the husband was there.

[00:06:58] Speaker 01:
At the end of the day, really, there's no inconsistency.

[00:07:02] Speaker 01:
This is just the fact that the cousin didn't mention that the husband was there doesn't mean he wasn't there.

[00:07:11] Speaker 01:
And under the factual circumstances that the cousin described, it was particularly incumbent upon the immigration judge, if he thought that there was an inconsistency, to ask about it.

[00:07:26] Speaker 01:
The cousin was 13 years old at the time.

[00:07:29] Speaker 01:
He testified that there were two different soccer games going on, and people playing in those games.

[00:07:34] Speaker 01:
He said that there were other people who were waiting to play soccer, and then there were other people presumably watching the soccer match, and then there were probably some other people kind of in the vicinity.

[00:07:44] Speaker 01:
So there's a very good reason to think that he just simply didn't see Ms.

[00:07:51] Speaker 01:
Barraza's husband there.

[00:07:54] Speaker 01:
you know, if the immigration judge thought that there was an inconsistency, it was not at all clear from the record that there was.

[00:08:01] Speaker 01:
The immigration judge should have asked for an explanation and that's why this court has generally held that asylum applicants need to be given an opportunity to explain any alleged inconsistencies.

[00:08:14] Speaker 01:
Even if the court finds that there is some validity to one or maybe even two of these grounds, under Kumar, we still believe that the agency's decision should be reversed.

[00:08:31] Speaker 01:
And that's just because if you take away one or two of these grounds, ultimately the agency's initial credibility determination has really no legs left to stand on.

[00:08:43] Speaker 01:
when you consider it in the totality of the circumstances.

[00:08:47] Speaker 01:
And I'd like to make one other quick point with regard to the credibility claim.

[00:08:52] Speaker 01:
Ms.

[00:08:52] Speaker 01:
Barassa's withholding claim was based on really two discrete grounds, fear of the gangs and fear of her husband, who subjected her to domestic violence, both in the United States and in El Salvador.

[00:09:08] Speaker 01:
All of the boards stated reasons to find her not credible related to the gang-based claim.

[00:09:16] Speaker 01:
And this is significant because the immigration judge did find her not credible specifically as to the domestic violence claim.

[00:09:23] Speaker 01:
The board decided not to adopt that reasoning.

[00:09:28] Speaker 01:
And so even if the court were to find that the adverse credibility determination has validity or it should be upheld, we believe that that's true only as to the gang-based claim, because these are entirely discreet claims based on separate sets of facts, and the agency hasn't provided any basis whatsoever to question that she was a victim of domestic violence and that her husband still would seek to harm her, or I should say ex-husband.

[00:09:58] Speaker 01:
Turning quickly to the unable or unwilling issue, the board also found that Ms.

[00:10:04] Speaker 01:
Barassa had not established that the government in El Salvador was unable or unwilling to protect her from either gang violence or from domestic violence.

[00:10:14] Speaker 01:
We don't believe this conclusion is supported either by the facts of the case or by the country conditions evidence of record.

[00:10:22] Speaker 01:
You know, I think the one significant fact in this case is that Miss Barassa was taken by the police, provided information about the whereabouts of the gang member, and then almost immediately afterwards, the gang had become aware of the fact that she had done that.

[00:10:40] Speaker 01:
So, understandably, Ms.

[00:10:43] Speaker 01:
Barraza had no faith that the police were going to be able to protect her if they were seemingly in cahoots with the gangs.

[00:10:50] Speaker 02:
Well, and she testifies that she doesn't want to go to the police because they're linked to the gangs.

[00:10:56] Speaker 00:
But that's testimony we hear in almost every case out of this country.

[00:11:01] Speaker 00:
So the question I have is that, you know, the fact that the police don't do anything, of course, we do have the warrant and conviction of Mr. Abarca here.

[00:11:11] Speaker 00:
So it's not that nothing is happening.

[00:11:20] Speaker 00:
you can't say that, you know, would it have been futile.

[00:11:24] Speaker 00:
And that's where I'm having some difficulty.

[00:11:26] Speaker 00:
Maybe you can fill in here, because it's not clear to me, given the totality of the circumstances, that it would have been futile.

[00:11:34] Speaker 00:
But we always hear the same testimony as, well, they can't do it, and it would always be futile.

[00:11:39] Speaker 00:
And that seems to me to be generalizations that wouldn't support a petitioner's petition versus the findings of the BIA.

[00:11:50] Speaker 01:
I think you have to look at the record of this particular case to make that determination.

[00:11:55] Speaker 01:
Um, and you know, the fact that, um, the gangs became aware immediately, um, that she had done, that she had done this, um, I mean, suggests very strongly that there was this link between the police and the gangs.

[00:12:09] Speaker 01:
Um, the police, when they took her to identify this gang member, um, threatened that they would take away her son, um, if she didn't help them, which didn't exactly inspire her confidence in the police.

[00:12:21] Speaker 01:
being willing to protect her.

[00:12:24] Speaker 01:
And then even later after she came to the United States, you know, the William the gang member called her from prison in El Salvador to threaten her.

[00:12:33] Speaker 01:
So she wasn't the government wasn't really

[00:12:37] Speaker 01:
providing any kind of protection to her.

[00:12:40] Speaker 01:
I mean, this is the same as in the JR case, right?

[00:12:44] Speaker 01:
There was a prosecution.

[00:12:46] Speaker 01:
The police did take some action to punish gang violence, but they didn't ultimately, they weren't ultimately able to protect the actual asylum applicant in that case.

[00:13:00] Speaker 01:
So

[00:13:00] Speaker 01:
And I guess the other point just with regard to general country conditions, we believe that those do show that it would have been futile and dangerous for her to report to the police.

[00:13:11] Speaker 01:
The board cited, I think, two different passages from the administrative record in support of

[00:13:18] Speaker 01:
you know, their determination that the Salvadoran government could protect her.

[00:13:22] Speaker 01:
One of them is at page 360 of the administrative record.

[00:13:26] Speaker 01:
It's a discussion about the fact that the Salvadoran laws prohibit domestic violence and the prosecutors are required to prosecute rape cases even if the rape victim doesn't want to go forward with the charges.

[00:13:39] Speaker 00:
But on the— I mean, going back to the JR case, that seems to be quite a bit different because of the air I thought the—

[00:13:47] Speaker 00:
The government authorities actually knew of these escalating threats against the petitioner, and here we don't have that, do we?

[00:13:56] Speaker 00:
How do the police know that there's an issue?

[00:14:02] Speaker 00:
We don't have that.

[00:14:03] Speaker 00:
That's kind of a yes or no.

[00:14:05] Speaker 01:
Yeah, we don't have that here.

[00:14:07] Speaker 01:
But the escalating threats do show that the government's unable to protect her from them happening.

[00:14:16] Speaker 00:
I mean, they're aware that she's- That's a different, you know, it's a question.

[00:14:20] Speaker 00:
The government can't necessarily intervene in terms of escalating threats.

[00:14:25] Speaker 00:
It can come in and remedy.

[00:14:28] Speaker 00:
But if the government isn't aware of those threats,

[00:14:34] Speaker 00:
then you just have a different situation than JR, it seems to me.

[00:14:39] Speaker 00:
She didn't go to the police, right?

[00:14:41] Speaker 00:
And I understand we have cases that say you don't have to go to the police.

[00:14:48] Speaker 00:
It just concerns me that you're in this vacuum of evidence in terms of

[00:14:53] Speaker 00:
how they can't protect her, but they don't know about it.

[00:14:56] Speaker 00:
It's like an internal contradiction.

[00:14:59] Speaker 01:
Right.

[00:15:00] Speaker 01:
I mean, I think it just kind of goes back in terms of why she didn't report.

[00:15:06] Speaker 01:
I mean, I think it just goes back to her own interactions on that day with the police and kind of what happened subsequently.

[00:15:13] Speaker 03:
I'll give you some more time in rebuttal.

[00:15:15] Speaker 03:
I did have two more questions for you real quick.

[00:15:17] Speaker 03:
First, I think there was a mention in the record of her son.

[00:15:20] Speaker 03:
Is the son still a minor or is the son an adult now, if you know?

[00:15:24] Speaker 01:
He is still a minor.

[00:15:27] Speaker 03:
Still a minor.

[00:15:28] Speaker 03:
And I'm just curious, during all the years that she's been in the United States, did she have any criminal convictions of any kind?

[00:15:34] Speaker 03:
No.

[00:15:34] Speaker 03:
OK.

[00:15:34] Speaker 03:
Thank you.

[00:15:35] Speaker 03:
So we'll give you three minutes for rebuttal.

[00:15:37] Speaker 03:
Thank you.

[00:15:51] Speaker 04:
Good morning.

[00:15:52] Speaker 04:
Aaron Nelson for the Attorney General.

[00:15:55] Speaker 04:
Your Honours, as we argue in our brief, the petition for review can and should be

[00:16:01] Speaker 04:
denied based on one of the two bases that the agency found.

[00:16:07] Speaker 04:
And it won't surprise you that we believe that there are indeed several inconsistencies that can support that, and that they're not trivial, as Mr. Hahn proclaimed.

[00:16:23] Speaker 04:
And I would like to start with the fact of the shooting.

[00:16:28] Speaker 04:
The fact of the shooting in the asylum interview context, the petitioner said that she heard shots and she threw herself on the floor.

[00:16:42] Speaker 04:
And when asked how she knew who did the shooting, she said, well, the next day or two days after, the guards for the ranch, the adjacent ranch, told her that they had seen some ne'er-do-wells coming down the street.

[00:17:00] Speaker 04:
And then thereafter, they heard shots.

[00:17:03] Speaker 04:
So if we take that, that's basically a hearsay.

[00:17:06] Speaker 04:
Well, they said that they saw, they didn't see them shoot, they saw these guys going down the street and then there was a shooting and so we can assume.

[00:17:12] Speaker 02:
And they said they were gang members.

[00:17:15] Speaker 04:
And they said they were gang members and evidently, you know, they knew that they were gang members by how they dress or tattoos or something else.

[00:17:23] Speaker 04:
In her testimony, she says that she saw the shooters through the window.

[00:17:29] Speaker 04:
and she knew that they were, she again threw herself down on the ground with her child, but while she's being shot at, she also looks through the window and she saw that they were gang members.

[00:17:43] Speaker 02:
Now, did she say, and I knew because I saw them that that's how I knew they were gang members?

[00:17:50] Speaker 04:
I mean, I'd have to go to the specific line, but she... No, no, no, well, maybe you should, because that's my question.

[00:17:56] Speaker 02:
Because I don't think she did say that.

[00:17:57] Speaker 04:
Well, in her declaration, she said, in her declaration at 277, she said that she looked out and she saw the shooting, and she said that her house was shot at, whereas in her testimony at 192 on cross-examination, she was asked about the shooting, and she said, they shot in the air.

[00:18:18] Speaker 00:
Whereas in her- That's not the inconsistency that's been identified.

[00:18:22] Speaker 00:
If she saw these people, that's one thing.

[00:18:26] Speaker 00:
And then the people, neighbors from the neighboring ranches later say, and they were gang members.

[00:18:32] Speaker 00:
Aren't those two separate things?

[00:18:34] Speaker 04:
I think that's the crux of the inconsistency about who did the shooting, because before the asylum officer, she says that she dropped to the ground.

[00:18:46] Speaker 04:
There was a shooting.

[00:18:48] Speaker 04:
This is a case where as we get further away from the events

[00:18:52] Speaker 04:
that form the crux of her protection claim, she gets more detailed, and there become more facts.

[00:19:01] Speaker 04:
And I can understand that Mr. Hahn maybe would like not to have to rely on the seven-page, single-spaced declaration that Your Honor says was not in her voice, but it is their case in chief, and it was presented as part of their evidence.

[00:19:16] Speaker 04:
And so, you know, the difference here, even if we don't look at the declaration, the difference between hearing the day after that there were gang members who came down the street and then we heard shooting and that must have been who shot your house, and having seen the shooting and surmised that they were gang members by how they look,

[00:19:38] Speaker 04:
is again a difference of hearsay versus first person witness witness account of somebody shooting either at her house near her house in the air by her house and the reason that that matters is if you look at her declaration she

[00:20:00] Speaker 04:
If you look at her declaration, she said that her home and adjoining restaurant was located at the crossroads of two competing gangs and that there was gunfire all the time.

[00:20:14] Speaker 04:
If we take that as, if we take her at her word, there was gunfire all the time and there was a shooting based on her asylum interview.

[00:20:26] Speaker 04:
There was a shooting, we don't know that this is necessarily linked to anything.

[00:20:31] Speaker 04:
But as we get further, the testimony and then the crafted declaration, we find that not only did she see who did the shooting, she saw them doing the shooting, ING, and they were either shooting at her house or in the air.

[00:20:49] Speaker 04:
The inconsistency, when a claim gets embellished over time,

[00:20:53] Speaker 04:
it tends to negate the credibility of the witness.

[00:20:58] Speaker 04:
So with respect to the second inconsistency about whether she was warned ahead of time, and then there was a shooting, or there was a shooting, and then there came some warning, Mr. Hahn says that it's a trivial inconsistency that she

[00:21:19] Speaker 04:
that she, simple confusion about the chronology.

[00:21:22] Speaker 04:
It's not a simple confusion about the chronology.

[00:21:28] Speaker 04:
It's either a case of, again, referring to her own declaration, living in a violent area where gunfire often happens, and then a 17-year-old kid coming along sometime later and saying, hey, you know, the word on the street is that you turned in William.

[00:21:47] Speaker 04:
And she said, no, I didn't turn in William.

[00:21:49] Speaker 04:
Well, what is the linkage between the two?

[00:21:52] Speaker 04:
Of course, she would like there to be a direct linkage.

[00:21:55] Speaker 04:
Or the emissary from the gang comes and says, word on the street is, you turned in William.

[00:22:02] Speaker 04:
And shortly thereafter, gunfire erupts at nearby her house.

[00:22:07] Speaker 04:
It's quite a difference.

[00:22:08] Speaker 04:
One's a cause and effect, and another is maybe nothing.

[00:22:11] Speaker 04:
So it's not a trivial inconsistency there.

[00:22:17] Speaker 02:
So what do we make of the fact that when she's testifying in her own voice, she's entirely consistent, that Bacho comes before and the boy comes after the shooting.

[00:22:27] Speaker 02:
But the inconsistency comes with the written statement.

[00:22:31] Speaker 02:
Does it make a difference that when she's speaking in her own voice, she's entirely consistent?

[00:22:38] Speaker 04:
If we are told to accept the evidence that she presents in support of her case, we have to do something with the declaration.

[00:22:48] Speaker 02:
I understand that.

[00:22:50] Speaker 02:
But does it make a difference, the manner in which the narratives are presented?

[00:22:56] Speaker 02:
Because when she's talking in her own voice, she's very consistent.

[00:22:59] Speaker 04:
when she's talking in her own voice before the immigration judge but when she was talking in her own voice in a non adversarial setting with the with the asylum officer she says clearly that there was a shooting this is at the record at five five seven she says that there was a shooting and then

[00:23:17] Speaker 04:
Four or five days later the shooting was on May 1st and then four or five days later the emissary came So that's also her own voice her own voice That's right, but she and she's very consistent and saying Bacho comes before There's then the shooting and then the 17 year old boy comes So but no, I'm sorry I

[00:23:37] Speaker 04:
I read the record quite different that the testimony she says there's a warning, then there's a shooting.

[00:23:45] Speaker 04:
Her own voice before the asylum officer is there's a shooting, and then there's a warning.

[00:23:49] Speaker 04:
Those two can't be reconciled, both in her own voice.

[00:23:52] Speaker 02:
No, she says both happened.

[00:23:53] Speaker 02:
Bacho came first, then there was the shooting, and then there was the boy afterwards.

[00:23:58] Speaker 04:
Well, it's the same Bacho.

[00:24:00] Speaker 04:
So he came before and after?

[00:24:01] Speaker 02:
No, Bacho is the friend, 17-year-old boy she doesn't know.

[00:24:05] Speaker 02:
That's her testimony.

[00:24:08] Speaker 02:
Okay, I... Bacho and the 17-year-old are different people.

[00:24:13] Speaker 02:
That's your testimony.

[00:24:14] Speaker 04:
I believe that Elias Bacho is the same person.

[00:24:16] Speaker 04:
No.

[00:24:19] Speaker 04:
So, well, nonetheless, we stand on our contention that in her own voice before the asylum officer, she said there was a shooting, and then days later there came a warning.

[00:24:30] Speaker 02:
Well, she did say that.

[00:24:31] Speaker 04:
She did say that.

[00:24:32] Speaker 02:
And she also said that Bacho came before.

[00:24:36] Speaker 04:
Before the asylum officer, Your Honor?

[00:24:39] Speaker 04:
Before the shooting.

[00:24:40] Speaker 04:
But I mean, at the asylum officer interview?

[00:24:43] Speaker 00:
Then it was after the shooting.

[00:24:46] Speaker 00:
There's two different versions, is my understanding, about Baccio.

[00:24:52] Speaker 04:
My understanding is that Elias Baccio was the emissary who either came before or after, that there were not two emissaries.

[00:24:59] Speaker 00:
But I'm... Before the IJ, I thought she was sure it was after.

[00:25:08] Speaker 04:
For the IJ at 145, 146, and on cross-examination at 193, she says she received a warning before the shooting.

[00:25:18] Speaker 04:
In her asylum interview at 557, she says that there was a shooting on May 1st.

[00:25:23] Speaker 04:
And then she said, the next Wednesday, four or five days later, the emissary came with the warning.

[00:25:30] Speaker 04:
And the asylum officer said, well, he looked on the calendar.

[00:25:33] Speaker 04:
May 1st was a Wednesday, so four or five days later would be Saturday or Sunday.

[00:25:37] Speaker 04:
And she's like, no, it was a Wednesday, so it was a week later.

[00:25:39] Speaker 04:
So she fixed in time before the asylum officer that there was a shooting and then there was a warning, which is exactly opposite of the testimony.

[00:25:48] Speaker 04:
I take your honor's point.

[00:25:50] Speaker 04:
I believe that as we dissected the record that the Elias Bacho was the same person that he came with one warning, and it was either before or after.

[00:26:00] Speaker 02:
She says Elias Bacho is a friend of Williams.

[00:26:04] Speaker 02:
And then there's a 17-year-old boy who's a different person.

[00:26:08] Speaker 04:
I believe, well, I take your point, Your Honor.

[00:26:13] Speaker 04:
And so with regard to the soccer game, again, our contention is that as time goes on, she enters the United States for the second time unlawfully in July of 2013.

[00:26:27] Speaker 04:
The interview with the asylum officer is in August.

[00:26:31] Speaker 04:
Her testimony is six years later, and the declaration is also six years later.

[00:26:37] Speaker 04:
And in the asylum officer, with what happened at the soccer game, there's no mention that the husband was at the soccer game when she was allegedly chased.

[00:26:47] Speaker 04:
Her testimony, she says that she was at the soccer game in part because her husband was playing soccer.

[00:26:54] Speaker 04:
And she says at 148, he never realized or saw the people who were chasing her.

[00:27:01] Speaker 04:
Now in the declaration, she says Cruz, her ex-husband, kept playing soccer and acted as if nothing was happening.

[00:27:09] Speaker 04:
So again, Your Honors, this is as time as she gets further away, the claim gets enhanced and it gets embellished.

[00:27:17] Speaker 04:
And so if you take her declaration as true, she's saying that he didn't care if the

[00:27:22] Speaker 04:
And in the brief, there's an allegation that Cruz would report her, turn her into the gang if she were returned to El Salvador.

[00:27:32] Speaker 04:
But nothing like that comes in her own voice and her testimony.

[00:27:36] Speaker 04:
And again, this is her case.

[00:27:38] Speaker 04:
This is her evidence.

[00:27:41] Speaker 04:
And so if it doesn't square, it doesn't square.

[00:27:43] Speaker 02:
Can I interrupt for just a minute?

[00:27:44] Speaker 02:
You said she was there to watch her husband.

[00:27:47] Speaker 02:
As I read her testimony, she was there to watch her son.

[00:27:50] Speaker 02:
And her husband was also playing, but she was there to watch her son.

[00:27:54] Speaker 04:
Well, I mean, her son at the time would have been a toddler or three or four years old.

[00:27:58] Speaker 04:
The son was not playing in the soccer game.

[00:28:02] Speaker 04:
And for the context of the other evidence of record here, this is a village.

[00:28:08] Speaker 04:
This is a small place.

[00:28:09] Speaker 02:
This is not a soccer.

[00:28:10] Speaker 02:
But I don't have it right here in front of me.

[00:28:12] Speaker 02:
My recollection of the testimony is that she said, I came there to watch my son play soccer.

[00:28:17] Speaker 02:
Am I mistaken on that?

[00:28:19] Speaker 04:
I believe she came there to watch her son in the sense of a day out, but she also was there because her husband was playing soccer.

[00:28:29] Speaker 02:
I don't remember the testimony that way.

[00:28:32] Speaker 04:
I don't remember that her son, who would have been a toddler, two or three years old, was playing in a soccer game that day.

[00:28:37] Speaker 04:
He might have been kicking the soccer ball around in the periphery, but based on her cousin's testimony... I do not remember her saying, I came to watch my husband play soccer.

[00:28:48] Speaker 04:
What do you I believe the the I believe the the record certainly says that she came to the soccer fields where her husband was playing soccer.

[00:29:00] Speaker 02:
Oh, I agree with that.

[00:29:01] Speaker 02:
OK, so so but that does not say she came to watch him.

[00:29:05] Speaker 04:
Okay, fair point.

[00:29:06] Speaker 04:
She came to the soccer match where her husband was playing soccer.

[00:29:09] Speaker 04:
And her testimony is that when these guys came across the field with their guns, her ex-husband never realized or saw these people.

[00:29:20] Speaker 04:
So that's why he didn't intervene at 148.

[00:29:22] Speaker 04:
Or her declaration at 277, as I said before, he kept playing soccer and acted as if nothing was happening.

[00:29:29] Speaker 04:
So one is either an innocent.

[00:29:33] Speaker 04:
He was engaged in the soccer game.

[00:29:34] Speaker 04:
And the other one is he doesn't care about me.

[00:29:37] Speaker 04:
He's beaten me.

[00:29:38] Speaker 04:
He would turn me into the gangs if I was sent back.

[00:29:41] Speaker 04:
And again, these are inconsistencies, and they are not immaterial, and under the totality of the circumstances, her claim simply doesn't pass substantial evidence review.

[00:29:54] Speaker 02:
Well, it's a little hard to parse this.

[00:29:58] Speaker 02:
This is, of course, an English translation of the Spanish.

[00:30:02] Speaker 02:
She says, Cruz just kept playing soccer at the field and acted as if nothing was happening.

[00:30:07] Speaker 02:
to an English speaker, you might say, well, he knew something was happening, but he acted as if nothing was happening.

[00:30:16] Speaker 02:
But it's possible the literal meaning of that is he acted as if nothing was happening because he didn't realize anything was happening.

[00:30:24] Speaker 04:
Well, another view of that is that where reasonable minds can differ about the meaning of this, at this stage we should defer to the fact finder in the first instance who was able to assess all of the evidence and on substantial evidence review should support that finding.

[00:30:41] Speaker 02:
But that's just the meaning of this sentence.

[00:30:42] Speaker 02:
Does it mean that he saw and he pretended or he acted as if nothing was happening because, well, he acted as if nothing was happening because he didn't realize anything was happening.

[00:30:52] Speaker 04:
Well, Your Honor, the fact that you're positing that it could be one or two interpretations.

[00:31:00] Speaker 02:
Well, one of them is consistent, makes her testimony entirely consistent.

[00:31:03] Speaker 04:
And one doesn't.

[00:31:04] Speaker 02:
Yes.

[00:31:05] Speaker 02:
And I'm saying there's a meaning of this sentence that makes everything of her testimony consistent.

[00:31:10] Speaker 04:
And there's a meaning that makes it inconsistent.

[00:31:13] Speaker 04:
And I think we owe deference to the fact finder in the first instance.

[00:31:16] Speaker 02:
The English translation of something that's in Spanish.

[00:31:20] Speaker 04:
I'm not sure how to answer that.

[00:31:22] Speaker 02:
Not either, but we're always just a little bit worried when something was said in one language and now we're reading in English and there's a connotation in English that's a connotation rather than a literal meaning.

[00:31:37] Speaker 04:
I understand your concern.

[00:31:39] Speaker 04:
I would say in this case, the petitioner has been represented by a very good counsel, both before the immigration judge, up to today.

[00:31:47] Speaker 04:
And the, I think we have to take it, you know.

[00:31:51] Speaker 02:
Well, but that translation was done by a court translator.

[00:31:54] Speaker 02:
That was not, we're talking about testimony.

[00:31:58] Speaker 02:
Her lawyers did not do that translation into English.

[00:32:02] Speaker 04:
The testimony?

[00:32:03] Speaker 02:
Yeah.

[00:32:03] Speaker 02:
No, correct, correct.

[00:32:05] Speaker 02:
So, yes, she's represented by a good lawyer, but the lawyer didn't give us this language.

[00:32:10] Speaker 04:
So, well, I would say we can't just discount the declaration.

[00:32:16] Speaker 02:
No, I understand that part, too.

[00:32:18] Speaker 03:
Yeah.

[00:32:18] Speaker 03:
If I can just ask real quick, I know we're over time, but similar along the lines, I asked the other side.

[00:32:24] Speaker 03:
I was trying to recall in this case, have there been any attempt to mediate this case?

[00:32:29] Speaker 04:
So with respect to mediation, Mr. Hahn reached out in the late fall or early winter and said that, and he can explain.

[00:32:39] Speaker 04:
I'll ask him.

[00:32:40] Speaker 04:
He can explain on his rebuttal time.

[00:32:43] Speaker 04:
And said that there was a pending U visa for the daughter, who's not a party to this action, for the daughter, U visa.

[00:32:51] Speaker 04:
and would my office entertain some kind of abeyance or judicial administrative closure.

[00:32:59] Speaker 04:
But we get requests for appending visa all the time, and it may or may not mean anything.

[00:33:05] Speaker 04:
And so we declined at that point.

[00:33:08] Speaker 04:
And then in the late winter, early spring, Mr. Hahn said the actual, that pending U visa is now, has now been approved for the daughter.

[00:33:16] Speaker 04:
And my understanding is that the petitioner here, the mother, it can be or is a derivative of that U visa.

[00:33:24] Speaker 04:
So I'm not certain that

[00:33:27] Speaker 04:
I'm not certain what exactly that does for her.

[00:33:31] Speaker 04:
I'll let Mr. Hahn explain that.

[00:33:32] Speaker 04:
But here's why, and he reached out again in the late winter, early spring.

[00:33:37] Speaker 04:
Could we do mediation?

[00:33:38] Speaker 04:
Could we park this?

[00:33:39] Speaker 04:
And it was discussed in my office.

[00:33:42] Speaker 04:
And I'll tell the panel that after a different panel of this court in Sarkar,

[00:33:49] Speaker 04:
uh... issued a decision in which it really took uh... great issue with the government and uh... and private bar trying to enter into uh... judicial administrative closure after the after briefing had been uh... completed and the course of uh... i'm sorry the case had been scheduled for argument so after that uh... my office has taken a slightly different view and so uh...

[00:34:16] Speaker 04:
uncertain how a panel would view putting this in administrative closure or some other kind of abeyance.

[00:34:23] Speaker 00:
I can understand that because some people take that view, but I don't think that's a uniform view of the court.

[00:34:33] Speaker 04:
It caused some ripples in my office.

[00:34:35] Speaker 00:
I can understand that.

[00:34:36] Speaker 00:
We can understand why that may have been.

[00:34:38] Speaker 04:
And it's a big office, and people are still interpreting how and when judicial administrative closure can be used.

[00:34:43] Speaker 04:
Is it going to get rejected?

[00:34:45] Speaker 04:
The attorney who did oral argument, and she was taken to task for having asked for judicial administrative closure some six weeks before oral argument.

[00:34:56] Speaker 00:
No, and we're aware of those circumstances.

[00:34:59] Speaker 00:
given the U visa situation and the timing of here we are at this argument and the possibility that the government could reach a negotiated solution given the potential derivative status.

[00:35:21] Speaker 00:
I assume if the panel were to order mediation, the government would willingly

[00:35:28] Speaker 03:
Absolutely.

[00:35:30] Speaker 03:
Yeah, and to the record's clear, this was not a situation where you guys sandbagged the panel.

[00:35:35] Speaker 03:
This was me asking the questions.

[00:35:37] Speaker 03:
So to me, you are in the clear, and I am in no way upset the fact that you have suggested this.

[00:35:43] Speaker 03:
So just so we're on video, looking at the camera, no issues here.

[00:35:47] Speaker 03:
Thank you.

[00:35:47] Speaker 03:
Thank you.

[00:35:48] Speaker 03:
Thank you, Council.

[00:35:48] Speaker 04:
I appreciate it.

[00:35:49] Speaker 04:
Thank you.

[00:35:56] Speaker 03:
And if you could talk about mediation, that's why I asked the questions before.

[00:35:59] Speaker 01:
I'll begin with that.

[00:36:00] Speaker 01:
Just to be clear, it's correct that Ms.

[00:36:04] Speaker 01:
Barassa's daughter has filed a U visa application.

[00:36:07] Speaker 01:
It was filed in 2019.

[00:36:08] Speaker 01:
Ms.

[00:36:09] Speaker 01:
Barassa is included as a derivative in that application.

[00:36:12] Speaker 01:
She qualifies because her daughter was under 21 when it was filed.

[00:36:18] Speaker 01:
It has not been approved.

[00:36:20] Speaker 01:
They don't have U visas yet, and that's because, as the court probably knows, there's significant backlog in processing these cases.

[00:36:28] Speaker 01:
The USCIS has been reviewing these applications, and if it appears that the person is prima facie eligible for a U visa, they grant what's called deferred action.

[00:36:39] Speaker 01:
And deferred action means that they will not take any steps to remove the person from the United States.

[00:36:47] Speaker 00:
That would be the daughter under the U visa?

[00:36:49] Speaker 00:
Right.

[00:36:50] Speaker 01:
Correct.

[00:36:51] Speaker 01:
And so we've gotten the notice that the daughter's petition is bona fide.

[00:36:58] Speaker 01:
We technically because she still needs to file a work permit in order to technically be granted deferred action.

[00:37:06] Speaker 01:
We filed work permits for her and for Ms.

[00:37:08] Speaker 01:
Barassa.

[00:37:09] Speaker 01:
We anticipate that once those are approved, they will, you know, the family will be in deferred action, which doesn't mean they have permanent status, but does mean that they can't be removed.

[00:37:20] Speaker 01:
And so that was the reason we went back to the government to ask for judicial closure the second time.

[00:37:26] Speaker 00:
So just kind of running things out, if the court here were to deny the petition, but as we know,

[00:37:36] Speaker 00:
It's rare that any immediate action is taken.

[00:37:40] Speaker 00:
And then in the interim, Ms.

[00:37:44] Speaker 00:
Barraza and the mother were to be part of the deferred action.

[00:37:50] Speaker 00:
then she would not be eligible for removal, correct?

[00:37:54] Speaker 01:
That's correct.

[00:37:55] Speaker 01:
And I think even, you know, I don't want to speak for the government, but I think even under these circumstances where technically she's not in deferred action, it's hard for me to imagine that ICE would take any removal action.

[00:38:09] Speaker 03:
So one thing I have seen done in other cases is we actually would defer Send you guys to mediation and then you would effectively give us status reports every three or six months and Sometimes it works out and sometimes it doesn't is is that again?

[00:38:25] Speaker 03:
I'll let the mediator if we did do go that road the mediator can figure this out But is that something that you would be comfortable with if we simply put a hole on this case?

[00:38:33] Speaker 03:
See if something can be worked out and with the parties providing us with status reports.

[00:38:36] Speaker 01:
Yeah, we definitely be amenable to that.

[00:38:38] Speaker ?:
Okay

[00:38:38] Speaker 00:
And do you have any estimate of how long it's taking to move from this kind of preliminary deferred status to actually being granted the U visa?

[00:38:53] Speaker 01:
Right now, they're approving U visa applications that were filed in 2016.

[00:38:58] Speaker 01:
This was filed in 2019.

[00:39:00] Speaker 01:
That sounds good on its face, but there are far more people who have applied each year.

[00:39:07] Speaker 01:
So it's not even a one-to-one thing.

[00:39:09] Speaker 01:
It's going to be a lot more than three years until they're granted U visas.

[00:39:17] Speaker 01:
And I guess I'm over time.

[00:39:19] Speaker 03:
Thank you very much, counsel.

[00:39:20] Speaker 03:
Thank you both for your outstanding briefing and argument.

[00:39:23] Speaker 03:
We really appreciate it.

[00:39:25] Speaker 03:
This matter is submitted.