[00:00:00] Speaker 00: Good morning, Your Honors. [00:00:01] Speaker 00: May it please the Court? [00:00:02] Speaker 00: My name is Marcel Rice, and I represent the Petitioner Juan Bermudez Arroyave. [00:00:07] Speaker 00: With the Court's permission, I would like to reserve three minutes for rebuttal. [00:00:11] Speaker 00: Petitioner raises three main challenges to the agency's withholding of removal decision. [00:00:16] Speaker 00: First, the immigration judge made several errors of law in evaluating whether Petitioner had established the requisite causal nexus between the harm he experienced in fears and his membership in a particular social group. [00:00:28] Speaker 00: The board then abdicated its responsibility to review and correct those errors by applying a clear error standard of review intended for purely factual determinations. [00:00:39] Speaker 00: Second, the board's finding that petitioner merely experienced and fears general criminality and strife prevalent in Columbia involved improper fact finding on appeal is too vague to permit review and is not supported by substantial evidence. [00:00:57] Speaker 00: The board also erred in finding that Petitioner had not established the requisite nexus because his mother and siblings remaining in Columbia had not experienced harm. [00:01:06] Speaker 00: In so doing, the agency failed to consider the ways in which Petitioner is not similarly situated to his family members. [00:01:13] Speaker 00: And further, the conclusion that they remained unharmed is not supported by substantial evidence, nor even by the IJ's own fact finding. [00:01:21] Speaker 00: The agency's cat determination also involved errors of law and fact. [00:01:27] Speaker 00: Turning with the court's permission to the first withholding of removal error I articulated, the IJ found that the particular social group was not legally cognizable and that there was not a sufficient nexus. [00:01:38] Speaker 00: The board did not affirm the IJ's particular social group cognizability finding and assumed, in fact, that a family-based social group could be legally cognizable, but it affirmed the IJ's nexus finding. [00:01:49] Speaker 00: However, in doing so, it applied the clear error standard of review instead of the de novo standard of review. [00:01:56] Speaker 00: appropriate under Umanya Escobar and matter of SEG. [00:01:59] Speaker 00: Had it applied the de novo standard of review, the outcome in this case might have been different because the judge made several errors of law. [00:02:07] Speaker 00: First, the IJ found that because petitioner had not established that his particular social group was one central reason for the harm he experienced and feared, that he necessarily had also failed to establish the lower a reason standard for withholding. [00:02:25] Speaker 00: This was error under Barajas Romero. [00:02:28] Speaker 00: Second, the IJ required petitioner to show that the persecutors possessed an animus or a punitive intent toward the entire family. [00:02:36] Speaker 00: And he made the animus, the litmus test for the motivation. [00:02:41] Speaker 00: He stated at AR 57, they engaged in criminal acts to get money from him. [00:02:46] Speaker 00: This does not constitute persecution on account of his family ties. [00:02:50] Speaker 00: because the acts were not motivated out of animus. [00:02:52] Speaker 00: But animus is not what this court or the board requires. [00:02:56] Speaker 00: In Pitcherskaya, this court noted that it is the characteristic of the victim and not the subjective intent of the persecutor that is the central analysis. [00:03:05] Speaker 00: And in matter of Kasinga, an en banc decision by the board that is certified as a precedent, the board found the same. [00:03:13] Speaker 00: In fact, in that case, they relied on matter of Kula [00:03:16] Speaker 00: which involved a Nazi concentration camp guard member who testified credibly that he was simply following orders, but the board found that his lack of animus was not dispositive to the fact that he had persecuted others on account of their religion. [00:03:31] Speaker 00: The third withholding of removal error, legal error that the IJ made was to ignore this court's mixed motive extortion plus line of precedent [00:03:40] Speaker 00: Even in the asylum context, which requires the one central reason standard, this court recognizes that multiple motivations can exist. [00:03:48] Speaker 00: The IJ seems to have curtailed his analysis at the point where he determined that there was a financial motivation at play without ever considering what other motivations might also have been a reason. [00:04:01] Speaker 00: The IJ never considered the specific facts that in this case show that he was sought out. [00:04:06] Speaker 00: He was identified by three men while he was leaving work on his motorcycle. [00:04:11] Speaker 00: He was stopped at a stoplight. [00:04:13] Speaker 00: These men knew somehow that he was the child of his stepfather. [00:04:17] Speaker 00: They told him that he had to settle his stepfather's debt of 10,000 US dollars. [00:04:22] Speaker 00: They made him get off his motorcycle. [00:04:24] Speaker 00: They hit him over the head with the handle of the knife. [00:04:27] Speaker 00: They beat him viciously so that he fell to the ground. [00:04:30] Speaker 00: And they stabbed him in the right knee, indicating a level of violence far exceeding what was necessary for a pure robbery. [00:04:38] Speaker 00: Later, they found him at home by placing threatening phone calls to him, indicating again a level of knowledge about him and his family, including where he resided or at least what his phone number was. [00:04:50] Speaker 04: This case also then, like the last one, involves how do we apply Rodriguez-Zuniga. [00:04:55] Speaker 04: So what's your response to that case? [00:04:58] Speaker 00: My response is twofold, Your Honor. [00:05:00] Speaker 00: First, in Rodriguez Uniga, the board found no valid particular social group, whereas here the board assumed that there was a valid social group. [00:05:08] Speaker 00: Second, the circumstances of that case are very different than this one. [00:05:11] Speaker 00: That case involved an isolated incident of the petitioner leaving the bank, a place where general robbery may be likely to occur. [00:05:19] Speaker 00: It was essentially she was in the wrong place at the wrong time, and she was robbed. [00:05:26] Speaker 00: This, and it was a nonviolent crime as well. [00:05:28] Speaker 00: This case not only was extremely violent, but there were three incidents showing the specific seeking out of petitioner. [00:05:36] Speaker 00: First the incident on the motorcycle, second the phone call at home, and later his mother was extorted. [00:05:42] Speaker 00: So that shows a really different scenario. [00:05:45] Speaker 00: There's evidence in the record that they knew who he was, they knew who his family was, and they targeted him for that reason, unlike Rodriguez Zuniga. [00:05:58] Speaker 00: Turning to the second withholding of removal error with the court's permission, the petitioner also challenges the board's finding that petitioner simply feared general criminality and strife prevalent in Columbia. [00:06:11] Speaker 00: But the IJ never made that finding. [00:06:13] Speaker 00: The IJ found that what petitioner feared and had experienced was a crime. [00:06:19] Speaker 00: But he stopped his analysis at that point, determining basically that because there was a financial motivation that it was a crime. [00:06:26] Speaker 00: He never found that it was random or general in nature. [00:06:31] Speaker 00: And the board's reliance on matter of SV and Zettino in reaching that conclusion that it was general criminality or strife show how the board failed to really look at the record in this case. [00:06:45] Speaker 00: Matter of SV on which they relied was a case based purely on country conditions. [00:06:50] Speaker 00: There was no past harm, no targeting. [00:06:53] Speaker 00: Zatino likewise was an incident that involved Petitioner's family 14 years prior while Petitioner was already in the United States, and the Petitioner's family was essentially living on a farm that the gang wanted. [00:07:07] Speaker 00: So he, again, it showed wrong place, wrong time, not at specific targeting. [00:07:14] Speaker 00: To the extent that the board's finding of general criminality and strife was not an improper fact finding on appeal, [00:07:23] Speaker 00: It is also not supported by substantial evidence for the reasons that I articulated earlier about the specific seeking out of petitioner. [00:07:34] Speaker 00: Finally, the general criminality and strife finding is so vague that it doesn't allow this court to review because it really conflates nexus and well-founded fear. [00:07:43] Speaker 00: They cite matter of AEM, which case really turned on well-founded fear, not nexus. [00:07:50] Speaker 00: And with the court's permission, I would like to reserve the remainder of my time. [00:07:55] Speaker 04: Okay. [00:07:55] Speaker 04: Thank you, Ms. [00:07:55] Speaker 04: Rice. [00:08:12] Speaker 01: May it please the court? [00:08:13] Speaker 01: Jenny Lee on behalf of the respondent, the attorney general of the United States. [00:08:17] Speaker 01: The petition for review should be denied in this case because substantial evidence supports the agency's finding that there was no motive tied to a protected ground. [00:08:28] Speaker 03: The BIA correctly... What do you mean by no motive? [00:08:31] Speaker 03: Is that what the law requires, a motive? [00:08:33] Speaker 01: Yes. [00:08:34] Speaker 01: The law requires that a petitioner establish that there was a harm or a fear of harm, and it has to be tied to one of the five protected grounds. [00:08:42] Speaker 03: Well, tied to is not the same as a motive. [00:08:45] Speaker 01: The motive has to be tied to a protected ground. [00:08:47] Speaker 01: Yes, Your Honor. [00:08:48] Speaker 03: No, but you said a motive. [00:08:50] Speaker 03: There had to be a motive. [00:08:53] Speaker 01: Yes, there has to be a motive that is tied to a protected ground. [00:08:58] Speaker 03: And in this case... Is that in your case that says there has to be a motive? [00:09:07] Speaker 01: Elias Zacharias tells us that a motive is crucial. [00:09:11] Speaker 01: in Borohus, Romero. [00:09:12] Speaker 01: Will they talk about motive being crucial? [00:09:15] Speaker 03: Do you have a second? [00:09:16] Speaker 03: I'll look at that. [00:09:17] Speaker 01: Yes. [00:09:18] Speaker 01: And so the BIA here correctly reviewed the immigration judge's motive finding under the clear error standard. [00:09:28] Speaker 01: And this court reviews the agency's motive finding under clear, I'm sorry, under the substantial evidence standard. [00:09:38] Speaker 01: And because the agency's motive finding [00:09:41] Speaker 01: is supported by substantial evidence, the no nexus finding is also supported by substantial evidence. [00:09:48] Speaker 01: Because if you don't have a motive tied to a protected ground, how could you ever have a motive tied to that protected ground? [00:09:55] Speaker 01: So with regard to the specifics of this case, we have three people who stole Petitioner's motorcycle. [00:10:06] Speaker 01: They only cared about Petitioner's family relationship [00:10:12] Speaker 01: as a means for them to accomplish something unrelated to that protected ground. [00:10:20] Speaker 01: So here they wanted money, Petitioner's motorcycle, and they knew they could get it from Petitioner, who worked. [00:10:28] Speaker 01: Petitioner testified that the reason why the criminals came after him was because they knew he worked. [00:10:35] Speaker 01: And he also testified that the criminals did not go after his siblings [00:10:39] Speaker 01: because they didn't work. [00:10:42] Speaker 01: So we know that the animus is not towards the family itself, but towards getting money. [00:10:49] Speaker 01: And as the court said in Rodriguez de Niga, as the board said in LEA 1, which is the board's decision, that you must show that there is an animus [00:11:06] Speaker 01: against the protected ground. [00:11:08] Speaker 01: And here, if the main reason, the means to an end, is money, that's not sufficient. [00:11:14] Speaker 02: Did they mention something about the family when they robbed him on his motorcycle? [00:11:20] Speaker 01: Yes, they said that is because he owed money for his stepfather's debt. [00:11:25] Speaker 01: But again, if we look at the facts of this case under the magnification of substantial evidence, [00:11:33] Speaker 01: They were not looking at him just because of his family relationship. [00:11:38] Speaker 01: They wanted the money. [00:11:40] Speaker 03: Well, but it doesn't have to be just because. [00:11:42] Speaker 03: It just has to be a reason, right? [00:11:45] Speaker 01: That is correct, Your Honor. [00:11:46] Speaker 03: Not the only or the dominant reason. [00:11:48] Speaker 03: It wasn't a reason why they went after him because of his family relationship? [00:11:52] Speaker 01: So a reason why they went after him is a family relationship, but that was not the motive [00:12:00] Speaker 01: the intrinsic motivation that's required under this court's precedent in Rodriguez-Zeniga. [00:12:07] Speaker 01: So under the intrinsic motivation test, when a robber threatened the applicant's son, it was only as an instrumental means to get money from the applicant. [00:12:18] Speaker 01: And in that situation, the court said the robber was not motivated intrinsically by the familial relationship to the mother. [00:12:26] Speaker 01: And that is what we have here based on Petitioner's testimony and the evidence in the record. [00:12:32] Speaker 01: He testified he had money, whereas his siblings didn't, and that is why they came after him. [00:12:39] Speaker 01: And in that situation, the only relevance [00:12:46] Speaker 01: to the robber of his family relationship is that it helped them achieve their purpose, which is to get money. [00:12:55] Speaker 01: And under this court's precedent in Rodriguez Suniga, that is not sufficient. [00:13:01] Speaker 01: The record does not compel the conclusion that a reasonable fact finder would find that the petitioner established that his particular social group was a reason for [00:13:16] Speaker 01: why the robbers came after him. [00:13:20] Speaker 01: Next, if you have no further questions on this point, I'd like to move on to Umana Escobar. [00:13:29] Speaker 01: In that case, remand under Umana Escobar is not necessary in this case because in Umana Escobar, the board stated that there was no clear error in the immigration judge's determination on Nexus. [00:13:46] Speaker 01: Here, that's not what the board said. [00:13:48] Speaker 01: The board explicitly stated that there was no clear error with regard to the immigration judge's motive determination. [00:13:57] Speaker 01: Then it stated that there was the general crime issue with regard to Nexus, which shows that they were doing a de novo review. [00:14:10] Speaker 01: Second clue from Umana Escobar is that they said [00:14:15] Speaker 01: that the board's no clear error statement with regard to the immigration judge's determination on nexus must be read in the context. [00:14:26] Speaker 01: And in that case, there was insufficient evidence from the rest of the board's decision that the board's clear error review pertained to the immigration judge's factual determination relating to persecutory motive as opposed to the ultimate nexus determination. [00:14:40] Speaker 01: But here we have sufficient evidence. [00:14:42] Speaker 01: Like I said, the board clearly stated, we find no clear error with the motive finding of the immigration judge. [00:14:48] Speaker 01: And then, as petitioners council noted, the board did a de novo finding by finding that this was general crime based on the immigration judge's motive determinations that the criminals targeted him because of money. [00:15:09] Speaker 01: I did a Westlaw search of Umana Escobar. [00:15:13] Speaker 01: And there were about 49 cases citing Umana Escobar. [00:15:16] Speaker 01: And there were only five unpublished cases where they remanded for the reason being the board clearly stated that there was no clear error with the immigration judge's nexus determination. [00:15:28] Speaker 01: And it was unclear based on the board's decision that the board did not follow through with that error. [00:15:42] Speaker 01: Finally, I'd like to say that this case is different from Ayala. [00:15:47] Speaker 01: It's not an extortion plus case. [00:15:51] Speaker 01: Because in Ayala, the court found significant that the agency made a legal error saying that the persecutor, if they're motivated by money, it could never be a reason for the harm. [00:16:10] Speaker 01: Sorry, it could never be tied to a protected ground. [00:16:13] Speaker 01: And then because it made that error, it didn't make the factual finding about motive. [00:16:18] Speaker 01: But here, we don't have that issue. [00:16:22] Speaker 01: And then finally, I'd like to note that in the board's case, that petitioner provided a 28-J letter on MRMS. [00:16:32] Speaker 01: There was one example where petitioners counsel sided to. [00:16:38] Speaker 01: Perez Sanchez, I believe, where the criminals targeted that applicant because of that family relationship. [00:16:47] Speaker 01: But in that case, there was a continuous contact with the applicant, and they were constantly extorting him. [00:16:58] Speaker 01: And in that case, the 11th Circuit found that substantial evidence did not support the agency's determination that that [00:17:09] Speaker 01: that there was no nexus in that case. [00:17:12] Speaker 01: However, in MSRS, there are over 10 examples of where a situation just like this one where there are people who wanted money or the family to join the gang was not tied to a protected ground. [00:17:35] Speaker 01: If the court has no further questions, the respondent rests on the brief. [00:17:41] Speaker 01: Thank you for your time. [00:17:42] Speaker 04: Thank you. [00:17:54] Speaker 04: Rice justice to start you off. [00:17:58] Speaker 04: You know the difference between extortion plus and just extortion seems to be where this case is at. [00:18:04] Speaker 04: I think the issue I'm most concerned with with your position is Rodriguez Zuniga because that it's a very new decision. [00:18:11] Speaker 04: I don't think there's been [00:18:13] Speaker 04: much precedent from our court applying it beyond itself. [00:18:17] Speaker 04: It came out only a few weeks ago, I think. [00:18:19] Speaker 04: But it does have some reasoning in there that seems contrary to where you're trying to take us. [00:18:25] Speaker 04: So I'd like you to just respond to that. [00:18:26] Speaker 00: Yes, Your Honor. [00:18:28] Speaker 00: Rodriguez Zuniga, in that case, there's no indication that the IJ applied the wrong legal standard, unlike here, where the IJ [00:18:39] Speaker 00: never applied the a reason standard to, so the IJ never reached the question of whether there could be multiple, multiple factors at play, multiple reasons for the harm. [00:18:52] Speaker 04: Although don't you think the IJ's decision makes fairly clear that in the IJ's view, this was all about money? [00:18:58] Speaker 00: Well, the IJ said at AR 56, respondent was targeted because the people to whom his stepfather owed money [00:19:07] Speaker 00: believed he had the ability to repay them because he was an architect. [00:19:11] Speaker 00: Now that shows a two-fold motivation. [00:19:14] Speaker 00: A, he had the ability to repay them, but also B, implicit in that is that he had the duty because he was the stepson. [00:19:25] Speaker 00: He had the means to pay and the duty to pay. [00:19:27] Speaker 00: And no one, neither the IJ nor the board, has exercised the expertise in making the judgment [00:19:35] Speaker 00: was the family a reason, as opposed to was it one central reason in this case? [00:19:41] Speaker 02: Was the crucial evidence in this, as one of the robbers said something about his stepfather? [00:19:49] Speaker 00: Yes, Your Honor. [00:19:50] Speaker 00: At AR 104, for example, the petitioner testified that his [00:19:56] Speaker 00: the three men who assaulted him told him he had to settle his stepfather's debt. [00:20:03] Speaker 00: So they referenced his stepfather then. [00:20:04] Speaker 00: They referenced his stepfather again when they made the threatening phone calls to him at home, which is at AR 59 and 118. [00:20:14] Speaker 00: And finally, they reference the stepfather's debt when they extorted his mother. [00:20:19] Speaker 04: And I see I'm- Is that, just to understand your position, is it your position that these kinds of references are sufficient to establish the mixed motive? [00:20:27] Speaker 00: I think they established but for, Your Honor, the but for causation, which is one central reason, but that's not even what's required in this case, that he just needs to show a reason. [00:20:38] Speaker 00: They could have chosen any architect in Columbia. [00:20:41] Speaker 00: they could have stopped that person on the street and said, hey, give us all your money. [00:20:45] Speaker 00: But instead, they asked him for a specific amount, that amount that his stepfather owed, and they referenced his stepfather repeatedly. [00:20:55] Speaker 04: OK. [00:20:57] Speaker 04: Thank you very much for your argument. [00:20:58] Speaker 04: We thank both counsel for the arguments and for the briefing. [00:21:01] Speaker 04: This matter is submitted, and that concludes our calendar for this morning. [00:21:04] Speaker 00: Thank you.