[00:00:00] Speaker 00:
Good morning, Your Honors.

[00:00:02] Speaker 00:
My name is Michelle Mailey.

[00:00:04] Speaker 00:
I am pro bono counsel for petitioners Adonis Caldera and his wife, Jessica, and their son.

[00:00:11] Speaker 00:
I'm also here with my co-counsel, Crystal Martinez.

[00:00:14] Speaker 00:
I'd like to reserve two minutes for rebuttal.

[00:00:17] Speaker 03:
Counsel, please be reminded that the time shown on the clock is your total time remaining.

[00:00:21] Speaker 00:
Thank you, Your Honor.

[00:00:23] Speaker 00:
And before I get into things, I just wanted to thank the court for reinstating argument today.

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The family really appreciates the opportunity to talk about the issues in their case.

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And I personally appreciate the professional opportunity.

[00:00:36] Speaker 03:
And we thank you for taking the case pro bono.

[00:00:38] Speaker 00:
Thank you.

[00:00:40] Speaker 00:
I want to start by highlighting a fact that nobody in this case disputes.

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The government doesn't dispute it.

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The agency doesn't dispute it.

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And that's the fact that the family is related to a young man named Orlando Perez who was murdered by the Nicaraguan paramilitary for protesting.

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I that fact has been well documented by multiple news reports, as has the fact that family members of Orlando have been routinely stalked harassed and assaulted.

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by the Nicaraguan government ever since.

[00:01:16] Speaker 02:
And counsel, let's take all that as being true.

[00:01:19] Speaker 02:
Yes.

[00:01:20] Speaker 02:
But as you well know, under Singh versus Gonzales, one of our presidents, when we look at whether there is substantial evidence to back up the IJ and BIA's determination of adverse credibility, if there's any one finding of adverse credibility, that's enough.

[00:01:40] Speaker 02:
And in this case, you've got inconsistency in testimony, poor demeanor, and lack of corroborative evidence.

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Do you contend that each of these bases was unsupported by substantial evidence?

[00:01:53] Speaker 00:
Your honor, yes, I would.

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And I wanted to get into the standard.

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I would like to turn the court's attention to the Kumar case that we cited in our brief.

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There, I believe it was Judge McEwen explained that a recent case decided by this court dispensed with the single factor rule, meaning that it's no longer the case, that as long as there's a single factor supporting the adverse credibility determination.

[00:02:21] Speaker 02:
Well, with respect.

[00:02:23] Speaker 02:
You're talking about a three-judge panel interpreting another three-judge panel, right?

[00:02:27] Speaker 00:
Yes, Your Honor.

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And a three-judge panel can't overrule another three-judge panel.

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Only an en banc court can do that.

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So are you saying that what our colleagues said in the case that you just cited is enough to change the ruling in Singh versus Gonzalez?

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That's what the most recent precedent says, Your Honor.

[00:02:45] Speaker 02:
But again, you understand my point.

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Yes.

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Singh versus Gonzalez says that if you have a number of different bases to find adverse credibility, that if any one of them is adequate, has supported by substantial evidence, that's enough.

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No, three-judge panel can overturn that.

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An en banc panel can't.

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So my question to you is, are we not bound as a panel by Singh versus Gonzalez?

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I think the answer to that is no, Your Honor, but I would submit that regardless, let's take for granted that we are.

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The result should be the same in this case.

[00:03:25] Speaker 00:
When you looked, and I'm glad that you asked because I do want to address the adverse credibility determination.

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the agency did set forth that there were multiple bases for that determination.

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But I would submit that when you look at the testimony, a lot of that really falls apart very quickly.

[00:03:44] Speaker 03:
But counsel, do we get to do that?

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We don't get to second guess the credibility.

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We have to determine whether or not that decision that was made is supported by substantial evidence.

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So if it could go either way, you lose.

[00:03:59] Speaker 00:
Your Honor, it's correct that that determination is entitled to deference, but an adverse credibility determination does not insulate the agency's decision from the possibility of review and remand, which I would submit is the proper outcome.

[00:04:16] Speaker 02:
But as my colleague has indicated, and as we discussed a minute ago, you have the burden

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to show that all of these, in this case, three different bases for adverse credibility, that none is supported by substantial evidence.

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That's your burden.

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And as my colleague pointed out, if that doesn't happen, your client loses.

[00:04:37] Speaker 02:
So what's your response to that?

[00:04:38] Speaker 00:
Two responses, Your Honor.

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First is that I would submit the adverse credibility determination is not supported by a substantial evidence.

[00:04:47] Speaker 02:
Okay, and then why?

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Just give us some specific advice.

[00:04:48] Speaker 00:
Yes, would love to do that.

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There are a few examples here.

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So, for instance, we heard a lot about the family's moves, and I use both of those terms on purpose, throughout Nicaragua as a key basis for the adverse credibility determination.

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I think the agency really made a mistake here.

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If you look at the board's order with respect to the moves, they seem to have been under the impression that there was a single move and that the family gave multiple inconsistent dates as to when that move occurred.

[00:05:22] Speaker 00:
That's incorrect.

[00:05:24] Speaker 02:
Well, let's say you're correct, just because we have a little time here.

[00:05:27] Speaker 02:
Sure.

[00:05:27] Speaker 02:
Let's say you're correct about that.

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You still have poor demeanor and lack of corroborative evidence.

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What's your response to those?

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Um, I would disagree with the notion of that there was a lack of corroborating evidence.

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And this leads to another problem that we have with the agency's decision.

[00:05:42] Speaker 03:
What was the corroborating evidence?

[00:05:44] Speaker 00:
The corroborating evidence that I have in mind, your honor, there, there was a lot in the record, but let me start with what I think is the most important, which are a number of media articles that explain

[00:05:56] Speaker 00:
that Orlando, the cousin of the family, was murdered by the Nicaraguan government.

[00:06:01] Speaker 03:
But that wasn't the basis for the adverse credibility determination, whether or not he was murdered.

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And that's true.

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And that's actually a big problem, Your Honor, because the family's relationship with Orlando was its own theory of this case, separate and apart from Adonis's, the lead petitioner's, political activity.

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And the agency didn't consider that theory, the relationship to Orlando.

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And that's very significant because getting back to the evidence, it shows not only that the news reports establish not only that Orlando was murdered by the Nicaraguan paramilitary for protesting, but also that multiple family members of Orlando have been persecuted, have been stalked, harassed,

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and driven from Nicaragua to escape.

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None of that was considered at any point by the agency.

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The immigration judge didn't consider it.

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The board didn't consider it.

[00:06:59] Speaker 03:
Hey, Counselor, if the adverse credibility determination is dispositive, why would that be reversible that they didn't consider those?

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If the adverse credibility determination stands, then it doesn't matter if they considered those.

[00:07:13] Speaker 00:
I would say there are two reasons why the adverse credibility determination, in fact, is not dispositive.

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And the first is that there were legal errors here that require remand and reversal, regardless of the adverse credibility determination.

[00:07:30] Speaker 00:
What errors?

[00:07:31] Speaker 00:
The agency did not consider at least two of my clients' claims.

[00:07:36] Speaker 00:
That's the future persecution claim.

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mentioned the fact that they brought it, but didn't consider that claim at all.

[00:07:42] Speaker 02:
I thought they found that they didn't establish a subjective fear of future persecution.

[00:07:49] Speaker 00:
I didn't see that anywhere in the record, Your Honor, and I think it's important to take note of that, that in the board's order... Well, let's say argument that they did.

[00:07:57] Speaker 02:
Doesn't that undercut your argument?

[00:08:00] Speaker 00:
Well, it's a little difficult to respond to that because we have a lot of arguments here, but the key one I'm responding to is that the board didn't consider that claim at all or the torture claim.

[00:08:12] Speaker 00:
And I'll just wrap up here so I can leave a little bit of time for rebuttal, if I may.

[00:08:16] Speaker 00:
They didn't consider two particular social groups underlying the asylum claims, as well as the evidence that I mentioned.

[00:08:22] Speaker 00:
So I'll go ahead and pause there for now and come back for additional discussion.

[00:08:26] Speaker 00:
Thank you, counsel.

[00:08:29] Speaker 03:
We'll hear from the government.

[00:08:41] Speaker 03:
Council.

[00:08:43] Speaker 01:
Good morning, Your Honors.

[00:08:44] Speaker 01:
I'm just waiting for the clock.

[00:08:47] Speaker 01:
Good morning.

[00:08:48] Speaker 01:
May it please the court, Christopher Giger for the Attorney General.

[00:08:51] Speaker 01:
Your Honors, I have two points, first regarding adverse credibility and the second regarding the petitioner's cat claims.

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Your honors, the petitioners in this case were provided ample opportunity to testify credibly, consistently, and to explain any discrepancy between their testimony and the record evidence.

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The immigration judge did not sequester the petitioners when they testified, and the immigration judge provided a 30-minute recess in order for the petitioners to regroup, collect their thoughts, and attempt to testify consistently and to explain any discrepancies.

[00:09:24] Speaker 01:
They didn't do so.

[00:09:26] Speaker 01:
And I want to point out, Your Honor, is that before this court, the petitioners have argued extensively that many of the inconsistencies the agency relied on don't exist.

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That when you look at the record, there aren't actually inconsistencies.

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But as seen on page 2224 of the record, the petitioners never argued that before the agency.

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They only argued that the inconsistencies that the agency relied on were minor.

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or that they didn't go to the heart of the claim and that the agency relied too much on a lack of supporting evidence.

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And so there is a big difference between arguing

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an inconsistency is minor as opposed to an inconsistency doesn't exist at all.

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Ultimately, Your Honor, the agency provided specific cogent reasons for the agency's adverse credibility finding.

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And our brief goes through in detail why each inconsistency is supported by substantial evidence.

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And unless the court has any specific questions regarding the particular inconsistencies, we will rely on our brief to that portion.

[00:10:36] Speaker 02:
Let me ask you this.

[00:10:39] Speaker 02:
In our Kamaltas versus INS case from 2001, we held that the BIA can't deny a cat based on adverse credibility determination that basically made doomed asylum.

[00:10:55] Speaker 02:
Isn't that what the BIA did here?

[00:10:57] Speaker 01:
No, Your Honor.

[00:10:59] Speaker 01:
I think there's an important distinction between the case here and Kamaltas.

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And that being that, in Cal Mathis, this court noted that the adverse credibility finding did not relate whatsoever to the petitioner's claim for cap protection.

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In Cal Mathis, that regarded a Tamil male, and he asserted that as a Tamil male, or as a man, he would face a future risk of torture if removed.

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And his adverse credibility finding, on the other hand, was that IJ found that

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He had a wooden manner of speech and the immigration judge had heard, he alleged he had heard that exact claim before.

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And so that's very different than the case we have here where the petitioner's statements that the board found to not be credible are tied

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are inexplicably intertwined with their claim for cat protection.

[00:11:54] Speaker 01:
On pages 25 to 28 of the record, the petitioners assert that they have a risk of future torture because of the fact that they'd be perceived as political opponents, specifically because of their relation to their cousin and the events that occurred in Nicaragua, specifically attending the march

[00:12:17] Speaker 01:
attending their cousin's funeral or pictures were taken, and going to their cousin's grave site where they alleged that paramilitary approached.

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And so these are all statements that the board determined were not credible.

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And it's also the basis for the petitioner's cat plan.

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And so that's how ultimately how this case is distinguishable from Kalamathas and also from Guan versus Barr

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which the petitioners do rely on and cite to in their reply brief.

[00:12:50] Speaker 03:
And counsel, I'm sorry.

[00:12:53] Speaker 03:
Go ahead.

[00:12:54] Speaker 03:
Didn't the IJ go ahead to talk about the country conditions evidence in the context of the CAT claim?

[00:13:02] Speaker 01:
That's correct, Your Honor.

[00:13:03] Speaker 01:
In this case, the IJ did talk about the country conditions

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And in Guan versus Barr, that was actually a point that this court made that neither the board or the IJ in Guan versus Barr had discussed the country conditions, where here the IJ expressly did.

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And then the board noted it cited Singh versus Lynch and Yali Wang.

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for the proposition that when a petitioner's claims under the CAT are based under the same statements that the board determined to be not credible in the asylum context, it's proper for the agency to rely on the adverse credibility finding for both asylum and CAT.

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And so ultimately, that's what happened here.

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Because the petitioner's claim for CAT protection is based on the same statements that the board determined to not be credible,

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which is also supported, which the adverse credibility is supported by substantial evidence.

[00:13:58] Speaker 01:
The board acted properly in denying both asylum, withholding of removal, and protection under the cap.

[00:14:06] Speaker 01:
And if the court does not have any further questions, we respectfully ask the court to deny the petition for review.

[00:14:14] Speaker 03:
Thank you, counsel.

[00:14:15] Speaker 03:
It appears there are no additional questions.

[00:14:17] Speaker 03:
Rebuttal?

[00:14:18] Speaker 01:
Thank you.

[00:14:21] Speaker 00:
Yes, your honor, just a few responses here.

[00:14:24] Speaker 00:
One thing that I think is really notable about the government's argument just now is that at no point did I hear them talk about the claims that the agency did not consider.

[00:14:33] Speaker 00:
Again, there's no dispute on that, that there was no determination on future persecution specifically.

[00:14:39] Speaker 00:
There was no determination on behalf of the board or engagement with the board at all on the torture claim.

[00:14:45] Speaker 02:
Council Light.

[00:14:45] Speaker 02:
Again, maybe I misread the record, but I thought they did future persecution Respectfully your honor.

[00:14:53] Speaker 00:
I would just Taking a look at the order.

[00:14:56] Speaker 00:
That's not how I read it Maybe it would be worth just you know taking a second look, but that that was missing from the board's analysis completely and I would submit from the IJ's analysis as well in the oral decision and

[00:15:13] Speaker 00:
But you also have the separate issue, which is the theory of relief premised on the family's relationship to Orlando.

[00:15:20] Speaker 00:
That wasn't discussed at all.

[00:15:22] Speaker 00:
That wasn't covered by the adverse credibility determination because it wasn't discussed before the immigration judge.

[00:15:29] Speaker 00:
These things have been left untouched by the agency, and it's really important that the family gets an opportunity.

[00:15:34] Speaker 02:
Will the IJN, the BIA?

[00:15:35] Speaker 00:
That's right, Your Honor.

[00:15:37] Speaker 00:
And just one last thing on exhaustion, the government submits that we... I'm pretty surprised.

[00:15:44] Speaker 02:
I mean, the whole thing about the Orlando was ostensibly discussed, was it not?

[00:15:50] Speaker 00:
Yes, Your Honor.

[00:15:52] Speaker 00:
May I?

[00:15:52] Speaker 00:
I went past my time, but I would like to respond.

[00:15:55] Speaker 00:
Yes.

[00:15:56] Speaker 00:
The immigration judge did ask about Orlando, but only to the extent that he was trying to determine whether Adonis had participated in any political conduct.

[00:16:05] Speaker 00:
He didn't explore whether there was a basis for relief based on the fact that the family is related to Orlando and that the Nicaraguan government has targeted family members of Orlando since his death.

[00:16:19] Speaker 03:
All right.

[00:16:19] Speaker 03:
Thank you, counsel.

[00:16:20] Speaker 00:
Thank you very much.

[00:16:20] Speaker 03:
Thank you to both counsel.

[00:16:21] Speaker 03:
And once again, thank you for arguing this case pro bono.

[00:16:24] Speaker 03:
The case just argued is submitted for a decision by the court.