[00:00:01] Speaker 03:
Council.

[00:00:03] Speaker 01:
Good morning, Your Honors.

[00:00:05] Speaker 01:
Brett Weaver on behalf of the petitioner, Myra Beatrice Castellón de O'Farrill.

[00:00:10] Speaker 01:
With the Court's permission, I'd like to reserve three minutes of my time for rebuttal.

[00:00:13] Speaker 03:
Okay, please watch the clock.

[00:00:15] Speaker 01:
Sure.

[00:00:18] Speaker 01:
Petitioner testified credibly before the immigration judge that she suffered horrific sexual, physical, verbal abuse at the hands of her husband.

[00:00:29] Speaker 01:
Carlos Alfaro.

[00:00:31] Speaker 01:
The abuse started when she was 15 and took place nearly every day for 25 plus years until she finally fled El Salvador to seek asylum here in the United States.

[00:00:41] Speaker 01:
There are obviously a lot of different elements to a claim for asylum relief.

[00:00:46] Speaker 01:
I'd like to focus my time on what was the crux of the government's argument, which is namely the element of whether the police were willing and able to help petitioner.

[00:00:58] Speaker 01:
And as they point out, there is a high standard.

[00:01:03] Speaker 01:
Deference is often given to that finding.

[00:01:09] Speaker 01:
But I would point out that deference does not equal blindness.

[00:01:12] Speaker 01:
The court needs to take a hard look at the evidence.

[00:01:14] Speaker 01:
And I think the evidence is clear here that the Salvadorian government was unwilling and unable to protect Petitioner from Carlos.

[00:01:24] Speaker 04:
Council, what do we do with the fact that the officers that she called showed up three times?

[00:01:30] Speaker 01:
They showed up three times, but they laughed at her when they got there.

[00:01:33] Speaker 01:
They said everything is normal and they left without taking a report.

[00:01:38] Speaker 01:
As this court and other courts have said on numerous occasions, the response, what the government does has to be meaningful.

[00:01:47] Speaker 01:
It can't be a token.

[00:01:48] Speaker 01:
It can't be a nominal effort.

[00:01:51] Speaker 01:
And certainly it can't be to show up and mock the victim.

[00:01:55] Speaker 02:
And in any of the three instances, was any investigation undertaken beyond just showing up?

[00:02:02] Speaker 01:
There's no evidence that it was.

[00:02:04] Speaker 01:
And I think it's reasonable to conclude that there wasn't for a couple of reasons.

[00:02:07] Speaker 01:
First is, you know, police don't typically investigate behavior that they have.

[00:02:11] Speaker 01:
That's normal.

[00:02:13] Speaker 01:
And then second, they showed up the first time.

[00:02:17] Speaker 01:
Carlos came back a week later and raped her and beat her again.

[00:02:21] Speaker 01:
And the same thing happened the third time.

[00:02:23] Speaker 01:
So clearly, there wasn't any meaningful efforts to investigate or stop him.

[00:02:32] Speaker 03:
I think there is some evidence that the police went around the block looking for Carlos.

[00:02:38] Speaker 01:
Well, Your Honor, I don't think that's what the actual testimony bared out.

[00:02:43] Speaker 01:
She did say that to the immigration officer during her credible fear interview.

[00:02:47] Speaker 01:
But then when it was before the immigration judge, she testified on direct.

[00:02:53] Speaker 01:
that she was actually adamant that they didn't look for him.

[00:02:58] Speaker 01:
And then when on cross, when the government's attorney asked her to reconcile those two statements, the petitioner explained that there were multiple exits from her brother's house, and sometimes they would go out one exit and go one way, and other times they go out the other exit and go the other way.

[00:03:15] Speaker 01:
And then on cross, the government's attorney, again, asked her point blank, did you tell the interpreter that the police looked for Carlos?

[00:03:23] Speaker 01:
And petitioner testified, no, I'm sorry.

[00:03:27] Speaker 02:
At the end of the... She's saying it's a mistranslation and she was deemed credible at the hearing.

[00:03:33] Speaker 01:
Exactly.

[00:03:35] Speaker 01:
The government took no issue with the credibility.

[00:03:38] Speaker 01:
The immigration judge found that it was credible, consistent, and sufficiently detailed.

[00:03:42] Speaker 01:
So I don't think there's, like I said, any evidence to support.

[00:03:45] Speaker 01:
But even if they did look for him, again, it's a nominal effort.

[00:03:52] Speaker 01:
And every case that I found where it supported a BIA finding that the police were willing and able, there's been some actual interaction between the government and the abuser.

[00:04:06] Speaker 02:
I would say many of the cases that we see have to do with the unable prom, for example, dealing with a cartel and saying, you know, well, the government is kind of trying, but just because they're not successful doesn't mean they're either unwilling or unable.

[00:04:24] Speaker 02:
This case seems unusual in that it's basically about unwilling, as I understand it.

[00:04:29] Speaker 02:
And does that in any way affect our analysis?

[00:04:34] Speaker 01:
I don't, because it's an unable and unwilling, or an or.

[00:04:39] Speaker 01:
Either one is sufficient to prove.

[00:04:43] Speaker 01:
And I think, as the country condition evidence suggests, that whatever steps that they've taken are ineffective, because— So you're saying it's both regardless.

[00:04:56] Speaker 02:
It seems strugger.

[00:05:00] Speaker 02:
more focused on the unwilling end.

[00:05:02] Speaker 01:
But well, I think this is the unique case and the police were so unwilling.

[00:05:08] Speaker 01:
You don't have cases like this.

[00:05:10] Speaker 01:
I haven't found a single case where they've upheld the finding when there hasn't been an arrest, there hasn't been some sort of criminal prosecution or something meaningful that happens.

[00:05:22] Speaker 01:
And in fact, in

[00:05:23] Speaker 01:
Antonio versus Garland, I think, is a perfect example of how weak the police's willingness to help was in this case.

[00:05:31] Speaker 01:
There, the criminal branch of the municipal court referred the perpetrator to the headquarters for follow-up and doing a criminal investigation.

[00:05:45] Speaker 01:
And the BIA said that was sufficient to show that the police were willing to help.

[00:05:50] Speaker 01:
This court said it wasn't.

[00:05:52] Speaker 01:
Again, there has to be something much more than just even referring for an investigation or even conducting an investigation.

[00:06:00] Speaker 01:
It said there has to be an arrest, a criminal prosecution, or some other meaningful effort to protect the victim.

[00:06:11] Speaker 01:
Unless the court has any other questions, I'll reserve the balance.

[00:06:21] Speaker 03:
The government argues that on the cat claim that you forfeited the argument that she could not reasonably relocate by not raising it in your brief.

[00:06:34] Speaker 03:
What's your response to that?

[00:06:36] Speaker 01:
We did raise it in our brief.

[00:06:37] Speaker 01:
We did it in a different—we didn't do it in a section about the cat, but we did it in a section about the asylum relief.

[00:06:42] Speaker 01:
It's the same evidence.

[00:06:44] Speaker 01:
And the evidence was

[00:06:46] Speaker 01:
that simply because of the machismo culture, it doesn't matter where you move to in El Salvador, the police are going to look the other way in either case.

[00:06:56] Speaker 01:
And so I do believe we addressed it just not in the section that specifically talks about cat removal.

[00:07:02] Speaker 03:
And so is your position that

[00:07:06] Speaker 03:
there's a particularized risk of torture for her anywhere, even though she was only suffering at the hands of her husband?

[00:07:16] Speaker 01:
Yes, and in fact, the immigration judge explicitly said that I find it more likely than not, or probable, that if Carlos were ever to find her, he would continue to abuse her.

[00:07:30] Speaker 01:
I reserve the rest of my time.

[00:07:33] Speaker 01:
Thank you.

[00:07:43] Speaker 00:
Good morning.

[00:07:46] Speaker 00:
Edward Durant for the United States.

[00:07:49] Speaker 00:
This is a very unfortunate case.

[00:07:51] Speaker 00:
It's a very sad case with horrible facts.

[00:07:55] Speaker 00:
There's no doubt that Petitioner was abused

[00:07:58] Speaker 00:
in El Salvador by her husband for many years.

[00:08:01] Speaker 00:
And that's a horrible thing.

[00:08:03] Speaker 00:
But she has not met her burden.

[00:08:04] Speaker 00:
She has not conclusively shown that the government of El Salvador is unwilling or unable to help her.

[00:08:10] Speaker 00:
First of all, get into when she responded to the police.

[00:08:14] Speaker 00:
She married Carlos when she was 15.

[00:08:17] Speaker 00:
And that was in, if my math is correct, 1989.

[00:08:22] Speaker 00:
And at that point,

[00:08:23] Speaker 00:
El Salvador is embroiled in a civil war.

[00:08:25] Speaker 00:
From when she married him to when she left in 2017, 30 years, she called the police officers three times in 2014.

[00:08:33] Speaker 04:
I'm not sure that that argument gets you very far because the agency made a finding that her lack of report for the vast majority of time, I believe is the statement, was well founded.

[00:08:45] Speaker 00:
I'm sorry, ma'am.

[00:08:46] Speaker 00:
I'm sorry, Your Honor.

[00:08:47] Speaker 04:
The agency specifically made a finding that her failure to make a report for the vast majority of time that you're talking about

[00:08:53] Speaker 04:
was well founded because of the fear that she had of reprisal from her husband and because of the culture in El Salvador.

[00:09:00] Speaker 00:
I understand that, Your Honor.

[00:09:01] Speaker 04:
Are you disputing that finding by the agency?

[00:09:04] Speaker 00:
I'm not faulting her for not reporting.

[00:09:06] Speaker 00:
What I'm saying is during the three times she did report

[00:09:09] Speaker 00:
Carlos's abuse, and I'm not denying it didn't occur.

[00:09:12] Speaker 00:
They did respond.

[00:09:13] Speaker 00:
They responded that day.

[00:09:14] Speaker 02:
Responded in an appalling way, counsel.

[00:09:18] Speaker 02:
I mean, basically, they made fun of her and told her that being beaten up by your spouse or partner is a normal part of life.

[00:09:29] Speaker 02:
And I don't know how that counts as being willing or able to protect her.

[00:09:40] Speaker 00:
No doubt, Your Honor, their response was disgusting, their behavior boorish, and what you're dealing with is a culture, and my second part of the argument, that has evolved greatly from 1996 through 2016.

[00:09:52] Speaker 00:
They did, maybe this was commonplace, but they did respond.

[00:09:56] Speaker 02:
They did look for him.

[00:09:58] Speaker 02:
But responding, I mean, what if they had responded by slapping her around themselves?

[00:10:05] Speaker 02:
Responding isn't really,

[00:10:08] Speaker 02:
all by itself without understanding the nature of the response, a showing of willingness or ability to protect her.

[00:10:17] Speaker 00:
They may have been far from professional, but they did encourage... But it's more than that.

[00:10:22] Speaker 02:
They didn't do anything to assist, and they said, you know, gosh, this is perfectly normal, but feel free to call us back if you want.

[00:10:32] Speaker 02:
Well, I mean, who would accept that invitation?

[00:10:36] Speaker 00:
Well, I don't know how the...

[00:10:38] Speaker 00:
the dialogue occurred between the parties.

[00:10:40] Speaker 00:
But I do know that in her statement, she said that the police did look for them.

[00:10:45] Speaker 00:
They scanned the horizon.

[00:10:47] Speaker 00:
They said, call us back.

[00:10:48] Speaker 00:
We don't know if she ever filed a report.

[00:10:50] Speaker 00:
We don't know if there's an investigation.

[00:10:52] Speaker 00:
We don't know if when petitioners showed them, they asked where does he live, and she pointed in the general direction, if anything was done.

[00:11:00] Speaker 00:
And it's petitioners' burden.

[00:11:02] Speaker 00:
It is an ugly case.

[00:11:03] Speaker 00:
It is not perfect.

[00:11:04] Speaker 00:
but it does not conclusively show that El Salvador authorities are unwilling to help her.

[00:11:09] Speaker 00:
Now, unable, if you look at the country, and now Petitioner rightly points out how tough El Salvador can be, and speculates that- I have a question about the country conditions that I'm struggling with.

[00:11:21] Speaker 04:
The IJ, as far as I can tell, has one statement, one sentence in its decision about the country conditions reports, and the sentence sort of basically says that, you know,

[00:11:33] Speaker 04:
The conditions show that domestic violence is widespread and there is this problem, but it doesn't meet the standard set out in matter of a B. In the government's brief, uh, actually, no, in the, in the BIA decision, the BIA backs away from that a bit and says, you know, matter of a B is off the table now, but nonetheless, nothing has changed.

[00:11:54] Speaker 04:
And I'm trying to figure out where the record leaves us in terms of.

[00:11:58] Speaker 04:
how the country conditions were even considered.

[00:12:00] Speaker 04:
If the IJ's only statement about this evidence is in relation to a matter of AB, and the BIA takes AB off the table, can we even conclude that the agency reasonably looked at the country conditions evidence?

[00:12:14] Speaker 00:
I believe so, Your Honor.

[00:12:14] Speaker 00:
The immigration judge indicated that she considered all the evidence when looking at country conditions exhibits from 2012.

[00:12:23] Speaker 04:
Well, that sort of a generic statement is not sufficient.

[00:12:27] Speaker 04:
when there is particularly probative evidence that isn't addressed.

[00:12:31] Speaker 04:
And here, where we have a story that is deemed credible from the petitioner, and the country conditions report gives some explanation to her story about why things happened the way they did with her interactions with the police.

[00:12:46] Speaker 04:
I'm struggling with why the agency didn't need to do a little bit more in showing that it wrestled with that evidence and why it wasn't compelling.

[00:12:54] Speaker 00:
Well, the board in its decision, both of them, they absolutely looked at the entire record.

[00:13:00] Speaker 00:
And what you see from El Salvador is in 1996, you have your first law that allows women to file a restraining order.

[00:13:08] Speaker 00:
Back in 1990 or 1889, when Petitioner was married,

[00:13:12] Speaker 00:
They don't even have laws against domestic violence.

[00:13:14] Speaker 00:
You have your first law against domestic violence.

[00:13:16] Speaker 02:
Counsel, the 2017 Country Conditions Report also said that in spite of these laws, the laws against domestic violence are poorly enforced.

[00:13:24] Speaker 02:
They basically are a dead letter.

[00:13:26] Speaker 02:
That's how I read the report, and there's no analysis of that by the board.

[00:13:36] Speaker 00:
The board does not analyze that, Your Honor, you're correct, but it can be read that they did consider that.

[00:13:41] Speaker 00:
And in 2016, in the country reports, you see that El Salvador, for the first time, coming out of the Civil War 20 years prior to that, to now, where you have actual specialized courts, just like vet courts,

[00:13:54] Speaker 00:
focused on domestic violence.

[00:13:56] Speaker 00:
The first one opening up in San Salvador were petitioners from, and two more slated open in 2017.

[00:14:02] Speaker 02:
How does that take away from the statement in the report of 2017 that the laws against domestic violence and rape are not enforced effectively?

[00:14:16] Speaker 00:
They're not enforced.

[00:14:17] Speaker 00:
It's a process, Your Honor.

[00:14:18] Speaker 00:
It's not perfect, but it doesn't conclusively show, if you see it in the last ways,

[00:14:23] Speaker 00:
that the government's not, that there's indifference, that they're not doing anything.

[00:14:27] Speaker 00:
It's an imperfect place.

[00:14:28] Speaker 00:
El Salvador is imperfect.

[00:14:31] Speaker 00:
Quite imperfect.

[00:14:31] Speaker 00:
But it does show a progress.

[00:14:33] Speaker 04:
I'm struggling with that argument a bit because our en banc court has said the following.

[00:14:37] Speaker 04:
Where country conditions evidence is inconsistent with past legislations, the court must not falsely equate legislative and executive enactments prohibiting persecution with on the ground progress.

[00:14:49] Speaker 04:
So that gets to Judge Graber's point of

[00:14:51] Speaker 04:
Just because there has been progress made in sort of legislation being passed, that's great.

[00:14:56] Speaker 04:
But that's not the end of the analysis if the record about what is actually happening in that country is inconsistent with that effort.

[00:15:05] Speaker 00:
I agree, Your Honor.

[00:15:07] Speaker 00:
There was legislation.

[00:15:08] Speaker 00:
They're passing legislation from 97 through 2012.

[00:15:12] Speaker 00:
In a document in the record, it indicates that while laudable, a lot of times it's inefficiently or not effectively enforced, just like in a lot of South American or Central American countries.

[00:15:25] Speaker 00:
But what you have now, as of late, is a continued growth in El Salvador with the specialized courts specifically that fight against domestic violence, specifically in San Salvador.

[00:15:36] Speaker 00:
And in 2013, I mean, you're changing cultural norms, too.

[00:15:39] Speaker 00:
It's a machismo society.

[00:15:41] Speaker 00:
Yes, femicide is number one in San Salvador, but that's due in large part to the growth of MS-13.

[00:15:47] Speaker 00:
That's the reasons the numbers are up.

[00:15:48] Speaker 00:
And in 2013, finally, in this machismo culture, you have legislation where 30 percent of the candidates have to be in the legislative assembly, have to be women.

[00:15:56] Speaker 00:
You have that in the cabinet.

[00:15:58] Speaker 02:
You have that in— How does that bear on the question of protection against domestic violence, that a certain number of women have to be in the legislature?

[00:16:11] Speaker 02:
That just seems off point.

[00:16:13] Speaker 00:
It shows the country is changing in many ways, specifically culturally and also legally with these courts protecting women.

[00:16:22] Speaker 00:
Now, I know it's not perfect there, and this is a disgusting case, and Petitioner's Husband is probably one of the worst people I've read about in the last 20 years.

[00:16:29] Speaker 00:
But that does not show that the government of El Salvador is unwilling or unable to help.

[00:16:34] Speaker 02:
I don't understand how you can say that in view of her testimony about what happened when the police showed up, but, you know, I just don't understand how you can say that that is a reasonable

[00:16:51] Speaker 02:
or in any way helpful response.

[00:16:53] Speaker 02:
It seems almost to reinforce what the husband has done, rather than to combat it.

[00:16:59] Speaker 00:
Again, it's boorish behavior, Your Honor, and showing up every – and I know it's – but there's evidence that they did look for him.

[00:17:07] Speaker 00:
They – they point – she pointed out where they – where they could find him.

[00:17:11] Speaker 00:
There's no evidence on record which, you know, petitioners burden to show that they're unable or unwilling.

[00:17:16] Speaker 00:
to show that they never filed an investigation, they never did this, and they never did that.

[00:17:21] Speaker 00:
And it was one time, 10 days, and that was the response.

[00:17:24] Speaker 00:
Three times they responded imperfectly, but it doesn't show that El Salvador is unwilling or unable to help petitioner.

[00:17:33] Speaker 00:
If there's no further question, this concludes the government's presentation.

[00:17:36] Speaker 00:
I thank you.

[00:17:37] Speaker 03:
Okay, thank you.

[00:17:38] Speaker 00:
Thank you.

[00:17:39] Speaker 03:
You have some time left for rebuttal.

[00:17:44] Speaker 01:
Thank you.

[00:17:46] Speaker 01:
Judge Forrest, in response to your question about the genericness of the BIA's decision and the IJ's decision, I think you're absolutely correct.

[00:17:55] Speaker 01:
In fact, if you really look at the BIA's decision, it's basically the immigration judge found this, and I think that's right.

[00:18:04] Speaker 01:
There's no very little citation to any authorities.

[00:18:07] Speaker 04:
I mean, I don't think it's a clear issue because we have also said very clearly in our precedent that

[00:18:14] Speaker 04:
the IJ does not have to discuss every piece of individual evidence, that it can make sort of summary statements in its decisions, as long as we can tell that it considered all the relevant evidence to the question.

[00:18:27] Speaker 04:
So I guess my question there to your side is, what more should the IJ have said?

[00:18:35] Speaker 01:
It's not so much what the IJ should have said.

[00:18:39] Speaker 01:
It's what the conclusions that they reached that were unsupported

[00:18:43] Speaker 01:
and contrary to both BIA and Ninth Circuit precedent.

[00:18:49] Speaker 01:
They also seem to have sort of created hurdles that don't exist.

[00:18:54] Speaker 01:
My friend keeps talking about we have the burden of proving there was an investigation.

[00:18:58] Speaker 01:
I'm not aware of any case from this or any other circuit that places the burden on the plaintiff to prove what the police, whether the police investigated or not.

[00:19:09] Speaker 01:
I think we have met that standard and proven that.

[00:19:12] Speaker 01:
Again, given by the fact that he raped her three times after she reported it, or two times after she reported it.

[00:19:19] Speaker 02:
Well, she also testified that they took no report.

[00:19:22] Speaker 02:
Correct.

[00:19:23] Speaker 02:
Which would be the predicate for an investigation.

[00:19:26] Speaker 01:
Absolutely.

[00:19:27] Speaker 01:
And again, it's normal behavior.

[00:19:29] Speaker 01:
You don't investigate normal behavior.

[00:19:32] Speaker 01:
Unless the court has any other questions, I'll submit.

[00:19:35] Speaker 03:
Okay.

[00:19:36] Speaker 01:
Thank you, Your Honors.

[00:19:37] Speaker 03:
We thank you for your argument.

[00:19:39] Speaker 03:
The case of Castellón de O'Farrill v. Garland is submitted on the brief.