[00:00:00] Speaker 03:
of Castro Perez versus Garland.

[00:00:13] Speaker 03:
I understand you're going to be taking 10 minutes, is that right?

[00:00:16] Speaker 03:
That's correct, your honor.

[00:00:17] Speaker 03:
And then your co-clerk is going to take five.

[00:00:21] Speaker 04:
That's correct.

[00:00:22] Speaker 03:
Very well.

[00:00:22] Speaker 03:
Are you going to save any of your time?

[00:00:23] Speaker 03:
How are you working your rebuttal time?

[00:00:26] Speaker 03:
Five minutes for rebuttal, your honor.

[00:00:27] Speaker 03:
OK.

[00:00:27] Speaker 03:
And who's coming off of whose time?

[00:00:30] Speaker 01:
I think they've got him separately on the calendar here.

[00:00:33] Speaker 03:
No, I understand that.

[00:00:34] Speaker 03:
They've got 15 minutes.

[00:00:36] Speaker 03:
He's got 10.

[00:00:37] Speaker 03:
She's got five.

[00:00:40] Speaker 03:
I'm sorry?

[00:00:40] Speaker 03:
You have five.

[00:00:43] Speaker 03:
OK.

[00:00:44] Speaker 03:
You only have 15 minutes altogether.

[00:00:46] Speaker 03:
So my question is, if 15 minutes, your rebuttal time has to come out of the 15 minutes.

[00:00:52] Speaker 03:
So whose time is it coming out of?

[00:00:53] Speaker 03:
I believe mine, Your Honor.

[00:00:55] Speaker 03:
Out of yours.

[00:00:55] Speaker 03:
OK.

[00:00:56] Speaker 03:
So how much time do you want?

[00:00:58] Speaker 03:
I'll be taking 10 minutes, Your Honor.

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

[00:01:01] Speaker 03:
We're not communicating.

[00:01:02] Speaker 03:
You have 10 minutes, but you want to save some time.

[00:01:05] Speaker 03:
So you want us to remind you to stop at what time?

[00:01:09] Speaker 03:
Oh, um, around eight minutes, your honor.

[00:01:11] Speaker 03:
Okay.

[00:01:11] Speaker 04:
Thank you very much.

[00:01:12] Speaker 04:
Okay.

[00:01:13] Speaker 04:
Thank you.

[00:01:13] Speaker 04:
Please proceed.

[00:01:15] Speaker 04:
Good morning, your honors.

[00:01:16] Speaker 04:
And may it please the court.

[00:01:17] Speaker 04:
Daniel Lewis Fuentes with Adnan Prowaz.

[00:01:20] Speaker 04:
And together we represent Leticia Gaspar Peles.

[00:01:22] Speaker 04:
I've reserved five minutes for rebuttal.

[00:01:25] Speaker 04:
This is a case about a Guatemalan woman who suffered years of persecution at the hands of her husband.

[00:01:30] Speaker 04:
When she reported to police that her husband had violated the restraining order put against him, her government failed to take steps to protect her.

[00:01:39] Speaker 04:
Our government today agrees that Ms.

[00:01:41] Speaker 04:
Castro-Velez made this report.

[00:01:44] Speaker 04:
Yet the IJ mischaracterizes crucial and undisputed point and failed to consider probative and dispositive evidence as a Guatemalan's unwillingness to protect Ms.

[00:01:54] Speaker 04:
Castro-Velez.

[00:01:55] Speaker 04:
Further, the record compels a conclusion contrary to what the IJ had found.

[00:02:00] Speaker 04:
These three reasons necessitate remand.

[00:02:02] Speaker 04:
And I'd like to start with the first, where remand is required where the agency misstates the record.

[00:02:08] Speaker 04:
Here, the I.J.

[00:02:09] Speaker 04:
misstated the record by incorrectly stating, Ms.

[00:02:12] Speaker 04:
Castro Verdez never contacted police about these violations.

[00:02:16] Speaker 01:
And I think the government concedes that that's a misstatement.

[00:02:20] Speaker 01:
The I.J.

[00:02:21] Speaker 01:
also said, then described how the police responded to this report that he said was never made.

[00:02:29] Speaker 01:
Given that and then his discussion of the response, does the misstatement make any difference in this case?

[00:02:40] Speaker 04:
Your Honor, I believe the IJ's response, the IJ's discussion on the police's response is that they were not allowed to act because of the incorrect notion that Ms.

[00:02:49] Speaker 04:
Castorford has never made any sort of contact or report.

[00:02:52] Speaker 01:
Well, did you read it that way?

[00:02:53] Speaker 01:
See, I read it as the IJ, it's not a good opinion.

[00:02:57] Speaker 01:
The IJ says one thing and then says something else.

[00:03:00] Speaker 01:
But I sort of read it as him saying, mistakenly, she never reported, and then discussing it

[00:03:08] Speaker 01:
the response of the police, which could have only come in, I mean, it's not clear how the police could have responded except in response to a report.

[00:03:19] Speaker 01:
So help me out with that.

[00:03:21] Speaker 04:
The I.J.

[00:03:21] Speaker 04:
seems to be conflating the two reports that Ms.

[00:03:24] Speaker 04:
Castro-Pedrez.

[00:03:25] Speaker 04:
She initially reported this to Guatemala City police officers.

[00:03:29] Speaker 04:
That is where she obtained her initial restraining order.

[00:03:32] Speaker 04:
And then it was to San Marcos police where she reported that this order had been violated.

[00:03:36] Speaker 04:
And she testified it before the I.J.

[00:03:39] Speaker 04:
that the San Marcos police offered to find her husband if he hit her again.

[00:03:47] Speaker 04:
Now, back to the IJ's mischaracterization, he states on page 63 of the record, quote,

[00:03:52] Speaker 04:
However, the respondent at no time contacted police or government officials to notify them that her husband had been violating the terms of the restraining order.

[00:04:02] Speaker 04:
And then again, just a few lines down, quote, however, at no time did the respondent contact police or other government officials.

[00:04:08] Speaker 03:
Okay, counsel, but you're just repeating what you just said before.

[00:04:12] Speaker 03:
We know the IJ didn't notify, note that, but the question is whether the government is unwilling or unable to help.

[00:04:20] Speaker 03:
I was surprised in this case, they really bent over backwards.

[00:04:23] Speaker 03:
They got her counsel.

[00:04:25] Speaker 03:
They got a restraining order.

[00:04:27] Speaker 03:
They paid attention to her.

[00:04:29] Speaker 03:
So how do we find that the government is unwilling and unable to help the petitioner in this case?

[00:04:38] Speaker 04:
Well, first, Your Honor, as JRVBAR provides, just because there is some official response from the government does not automatically equate to willingness by that entire government.

[00:04:48] Speaker 04:
We're focusing directly on San Marcos police's lack of response.

[00:04:52] Speaker 01:
Well, except, see, I think you have a strong argument with respect to the IJ not mentioning it.

[00:04:58] Speaker 01:
Let's assume for a moment that the IJ had recounted the facts correctly, including the response of the San Marcos police, and have said, I find that this is substantial evidence showing that the government is not unwilling or unable to protect her.

[00:05:14] Speaker 01:
There isn't any way we could overturn that finding, is there?

[00:05:18] Speaker 04:
Well, there is, Your Honor, because considering the San Marcos Police's response that they would not act unless she were physically harmed by her abuser again, that demonstrates unwillingness.

[00:05:30] Speaker 01:
Well, no, I'm not sure that's what they said.

[00:05:31] Speaker 01:
Isn't what they said is if he violates the order again, we can fine him or jail him.

[00:05:38] Speaker 01:
But we can't do it on the basis of the previous violations.

[00:05:42] Speaker 01:
I think that's what the record indicates that they said.

[00:05:45] Speaker 04:
Your Honor, on page 145 of the record, we can see Ms.

[00:05:48] Speaker 04:
Castro-Pérez's response as to San Marcos police response to her report.

[00:05:52] Speaker 01:
See, but on page 146, she said, I never asked the police to enforce the restraining order, rather only to renew it.

[00:06:01] Speaker 01:
So my problem is that, with your argument, that we're compelled to reach a different conclusion on this record.

[00:06:09] Speaker 01:
I understand your argument that the IJ

[00:06:12] Speaker 01:
didn't appropriately consider all the testimony.

[00:06:15] Speaker 01:
But it seems to me, on this record, had the IJ not made those mistakes, you would have a very hard time convincing me, at least, that the IJ's decision wasn't supported by substantial evidence.

[00:06:27] Speaker 04:
Well, Your Honor, regarding her testimony as to enforcement, it's important to understand the context of what she had just informed the government attorney beforehand that

[00:06:36] Speaker 04:
she couldn't get help unless she were hit again.

[00:06:38] Speaker 04:
With this context, it would have been futile and dangerous for Ms.

[00:06:40] Speaker 04:
Castro-Velez to ask for this enforcement, because it would require her to return face-to-face with her abuser of nearly 20 years and suffer additional physical harm.

[00:06:49] Speaker 02:
Mr. Fuentes, if we, let's assume that there is some error in the IJ's

[00:06:59] Speaker 02:
failure to consider the second reporting question.

[00:07:06] Speaker 02:
Isn't it for the agency to sort out in the first instance on all of these subsequent questions once it does take account of that?

[00:07:17] Speaker 04:
Well, here the agency committed the same error as the IJ had.

[00:07:19] Speaker 02:
Well, OK, so the, OK, I think what I'm speaking to is that even if we grant, I think there's some suggestion that you're asking us to instruct the IJ to pay attention to particular facts or whatever.

[00:07:33] Speaker 02:
I mean, basically, it should just be a do-over with respect to consideration of the fact that she reported.

[00:07:38] Speaker 02:
And the IJ potentially could develop substantial evidence on remand and reach the same conclusion.

[00:07:44] Speaker 02:
Is that right?

[00:07:46] Speaker 04:
Well, we're not just asking that the agency consider her reporting efforts, but also the police's response that they would not act unless she would hit her again.

[00:07:55] Speaker 01:
But I'm looking at page 145 of the record.

[00:07:59] Speaker 01:
Ms.

[00:07:59] Speaker 01:
Marcus to Ms.

[00:08:00] Speaker 01:
Castro Perez, you said that NEO continued to follow you and call you even if the police issued a restraining order.

[00:08:07] Speaker 01:
Did you ever tell the police that NEO violated the restraining order?

[00:08:10] Speaker 01:
No, because I was afraid.

[00:08:12] Speaker 01:
So I'm not sure that the record compels my conclusion that the police were unwilling to respond to her complaints.

[00:08:23] Speaker 01:
Help me with that.

[00:08:24] Speaker 04:
Reading the rest of her answer, starting with no, because I was afraid, it appears that Miss Castro Pérez is responding to the government attorney and that she was afraid to approach Guatemala City police.

[00:08:34] Speaker 04:
She continues by saying, quote, when I was at work, I would not go out.

[00:08:38] Speaker 04:
And then I went to my brother's house.

[00:08:40] Speaker 04:
And after that, I went to San Marcos.

[00:08:43] Speaker 04:
Then she continued on by saying that she did approach San Marcos police to inform them about this order.

[00:08:49] Speaker 04:
And this can be seen in her credible fear interview to the asylum officer.

[00:08:52] Speaker 01:
That's in front of the asylum officer.

[00:08:54] Speaker 01:
But in front of the IJ, she then responds to a question that says, you never asked the police to help you enforce the order against him, correct?

[00:09:03] Speaker 01:
And she says, yes, that's right.

[00:09:05] Speaker 01:
That's correct.

[00:09:06] Speaker 01:
So I understand your argument that the IJ didn't consider the testimony in the credible fear interview.

[00:09:14] Speaker 01:
What I'm pushing back on is your notion that her testimony at the hearing doesn't support the I.J.'

[00:09:19] Speaker 01:
's conclusion.

[00:09:21] Speaker 04:
Well, Your Honor, the context of her previous answer that she needs to be hit again for her enforcement does show that Ms.

[00:09:30] Speaker 04:
Castro-Badez, it would have been futile and dangerous for Ms.

[00:09:32] Speaker 04:
Castro-Badez to ask for any sort of enforcement because it would require her to be physically harmed once again.

[00:09:37] Speaker 03:
So your position is

[00:09:40] Speaker 03:
Even though they got an attorney, they got a restraining order, if she was afraid to say anything to get it enforced, the government's at fault.

[00:09:50] Speaker 03:
Is that your position?

[00:09:52] Speaker 04:
Our position, Your Honor, is that even though Guatemalan city police did provide her with those opportunities and forms of protection, San Marcos police would not follow up on them.

[00:10:00] Speaker 03:
Okay.

[00:10:01] Speaker 03:
Do you want to save any of your time?

[00:10:02] Speaker 03:
You're down to a little slower minute for rebuttal.

[00:10:05] Speaker 04:
I don't think so, Your Honor.

[00:10:06] Speaker 03:
Okay, very well.

[00:10:08] Speaker 04:
Now, here the IJ failed to consider probative dispositive evidence, asked to miscast her for that as an asylum claim.

[00:10:16] Speaker 04:
That being, it makes no mention of the evidence where San Marcos police stated they would not help her.

[00:10:22] Speaker 04:
unless she were hit again.

[00:10:23] Speaker 04:
As every view holder provides, authority's lack of response is powerful evidence to an unwilling claim.

[00:10:30] Speaker 04:
And that evidence was not discussed by the IJA, and it was not discussed by the board.

[00:10:34] Speaker 02:
What do we do about the fact that these are, I think, as you admit, these are authorities in two different parts of the country?

[00:10:42] Speaker 02:
Should that matter with respect to whether the substantial evidence

[00:10:46] Speaker 04:
No, Your Honor, Guatemalan's police system operates on a single national database.

[00:10:55] Speaker 04:
They are one single group.

[00:10:56] Speaker 04:
They had just named the national police.

[00:10:58] Speaker 04:
It is, Your Honor.

[00:10:59] Speaker 04:
This is seen on page 191.

[00:11:00] Speaker 02:
But doesn't that maybe cut both ways?

[00:11:03] Speaker 02:
Because a willingness to report to some authorities, even if she were unwilling to report to the Guatemalan authorities, could put the government on notice, right?

[00:11:16] Speaker 04:
Well, at the moment, San Marcos was — or when Ms.

[00:11:18] Speaker 04:
Castro-Velez was in San Marcos, that was nine hours away from Guatemala City.

[00:11:22] Speaker 04:
She had purposely left that part of the country to avoid her persecutor.

[00:11:27] Speaker 04:
And when she went to the nearest police officers, they stated they would not help her.

[00:11:30] Speaker 03:
I see — The time is up.

[00:11:31] Speaker 03:
Do either of my colleagues have additional questions?

[00:11:34] Speaker 03:
All right.

[00:11:34] Speaker 03:
Thank you very much, Counsel.

[00:11:36] Speaker 03:
Thank you very much.

[00:11:36] Speaker 03:
So we're going to hear next from Mr. Perves.

[00:11:41] Speaker 01:
I think the way they want to do it.

[00:11:44] Speaker 03:
Oh, you're going to hear afterwards?

[00:11:45] Speaker 03:
Okay.

[00:11:46] Speaker 03:
All right.

[00:11:46] Speaker 03:
Very well.

[00:11:47] Speaker 03:
Okay.

[00:11:47] Speaker 03:
So we're going to hear from the government then.

[00:12:05] Speaker 00:
Thank you, Your Honors, and may it please the court, Katie Roark on behalf of the Attorney General.

[00:12:09] Speaker 00:
Substantial evidence supports the agency's determination that Petitioner failed to show that the Guatemalan government was unable and unwilling to protect her from her husband.

[00:12:19] Speaker 00:
In Petitioner's case, the police documented Petitioner's complaint of abuse against her husband, informed her that Guatemalan laws protect women from domestic violence, appointed an attorney to represent her, granted her request for a restraining order, encouraged her to report her husband's violations of the restraining order, and offered to arrest and fine him for his criminal conduct.

[00:12:38] Speaker 00:
These facts demonstrate that the government would and could protect Petitioner, and Petitioner points to no evidence compelling reversal of the agency's denial.

[00:12:47] Speaker 01:
Well, let's assume that I agree with you, that this evidence supports the IJ's conclusion that the government was not unwilling.

[00:12:58] Speaker 01:
But the IJ also bases his decision on the fact that she never complained.

[00:13:05] Speaker 01:
And that's wrong.

[00:13:06] Speaker 01:
I mean, the record is to the contrary.

[00:13:09] Speaker 01:
And so what do we do with that?

[00:13:12] Speaker 00:
Your Honor, I would argue that the record is ambiguous as to whether the poof.

[00:13:17] Speaker 01:
Well, it's ambiguous in the sense that the IJ made two statements.

[00:13:22] Speaker 01:
But one of the statements is wrong, right?

[00:13:25] Speaker 01:
He said she never complained to the police.

[00:13:28] Speaker 01:
And that's just wrong, isn't it?

[00:13:31] Speaker 00:
Well, so what happened was that Petitioner had contacted the police in San Marcos about renewing the restraining order, and they told her it was not possible to renew the order.

[00:13:40] Speaker 01:
I understand all that, and I understand why the IJ might have made the mistake.

[00:13:45] Speaker 01:
But the IJ did make the mistake, did he not?

[00:13:48] Speaker 01:
You said so in your brief, so I'm not sure why you need to find it here.

[00:13:54] Speaker 00:
It would be a harmless error, but I would also argue that it is slightly mischaracterizing petitioner's testimony to say that the police ignored her report of her husband's violations of their train boarding.

[00:14:05] Speaker 01:
Well, the IJ said, let me just read the language to you so we don't nitpick it.

[00:14:09] Speaker 01:
The IJ said, Castro Perez at no time contacted police or other government officials to notify them of

[00:14:18] Speaker 01:
Shia Pasulial's restraining order of violations.

[00:14:22] Speaker 01:
That's what he said, page 63 of the record.

[00:14:25] Speaker 01:
That's wrong, is it not?

[00:14:27] Speaker 00:
If you look at her credible fear interview, it is slightly different.

[00:14:31] Speaker 01:
She says in her credible fear interview, which is in the record, that she did contact.

[00:14:35] Speaker 01:
Now, she says something a little bit different here.

[00:14:38] Speaker 01:
And I think he could say, I believe her most recent statement, not her past ones.

[00:14:42] Speaker 01:
But it's just not true that there's no evidence in the record that she contacted police.

[00:14:50] Speaker 01:
And you say that in your brief.

[00:14:51] Speaker 01:
So I'm not sure why we're quibbling about it right now.

[00:14:54] Speaker 01:
So the question is, tell me why that doesn't matter.

[00:14:57] Speaker 00:
It would be a harmless area honor and I would just note that a credible fear interview is a threshold screening interview.

[00:15:03] Speaker 00:
It's not a full evidentiary hearing and petitioner had the opportunity to fully present her claim at her merits hearing before the immigration judge and ultimately it was her burden of proof to establish eligibility for relief and protection at her merits hearing.

[00:15:17] Speaker 00:
And at her merits hearing, she testified about contacting the San Marcos police to renew the restraining order and then goes on to concede that she never asked the police to enforce the order against her husband after he violated the terms.

[00:15:28] Speaker 00:
So if there was some misstatement by the immigration judge as to whether it was an official report or not, it would be a harmless error.

[00:15:36] Speaker 02:
Why shouldn't we?

[00:15:38] Speaker 02:
Why shouldn't we take the BIA's decision at face value that their affirmance here, their rationale, is that she never reported?

[00:15:50] Speaker 00:
I guess my follow-up to that would be, even if there was some ambiguity about whether there was this second report due to her fake testimony at the credible fear interview and then her testimony at the merits hearing, the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's findings of fact from being supported by substantial evidence.

[00:16:10] Speaker 01:
That's not really what we're asking.

[00:16:12] Speaker 01:
What we're asking is, we can't make findings of fact.

[00:16:15] Speaker ?:
Correct.

[00:16:16] Speaker 01:
The IJ says, I'm finding

[00:16:19] Speaker 01:
that you haven't carried your burden of showing that the government was unwilling or unable, not for all the reasons you just laid out to us, which seemed perfectly justifiable, but because you never reported to the police.

[00:16:32] Speaker 01:
And that's factually incorrect.

[00:16:34] Speaker 01:
So don't we have to send it back to the IJ to make his own findings?

[00:16:39] Speaker 00:
I think there's a difference between reporting it to the police and then asking for the police to enforce the restraining order due to the violations.

[00:16:47] Speaker 00:
At the end of the day, a restraining order is just a piece of paper and the onerous is on the protected party, in this case, petitioner to seek enforcement of that order.

[00:16:55] Speaker 02:
Well, that's exactly it.

[00:16:56] Speaker 02:
I would think that the failure to enforce upon her request is even more probative of the government acquiescence or unwillingness.

[00:17:10] Speaker 02:
Because it is just a piece of paper.

[00:17:12] Speaker 02:
That's all she had was a piece of paper.

[00:17:13] Speaker 02:
And the piece of paper isn't going to protect her.

[00:17:18] Speaker 02:
What's going to protect her are the police.

[00:17:21] Speaker 02:
And so she goes to the police with this piece of paper and makes the request.

[00:17:25] Speaker 02:
I think that's not disputed anymore.

[00:17:27] Speaker 02:
And she says, no response.

[00:17:31] Speaker 00:
Well, she specifically asked the police not to enforce the restraining order.

[00:17:36] Speaker 00:
That's what she testified.

[00:17:37] Speaker 02:
Sometimes, but there's a long history here.

[00:17:41] Speaker 00:
Correct, but she did not, so there was a long history of abuse here, but the first time she went to the police was in 2014.

[00:17:47] Speaker 00:
And in 2014, the police documented that complaint of abuse, they informed her that there are legal, her legal right to protection from domestic violence, and on that occasion, they offered to arrest her husband, but she stated that she only wanted the restraining order, and she did not want to pursue any other action against him.

[00:18:03] Speaker 00:
That's reflected in the complaint itself at page 187, as well as her testimony.

[00:18:09] Speaker 00:
And then as a result of her complaint, the Guatemalan government appointed an attorney to represent her and assist her in obtaining her restraining order.

[00:18:17] Speaker 00:
The Guatemalan judge granted it.

[00:18:19] Speaker 00:
The restraining order prohibited her husband from intimidating and disturbing her and barred him from accessing her home.

[00:18:26] Speaker 02:
But it didn't really, I guess that's the problem because there's also record evidence is there not that he pursued her.

[00:18:34] Speaker 02:
and that the police did not protect her and then add to the fact that she made the request for protection and it wasn't forthcoming.

[00:18:44] Speaker 02:
Why isn't that enough?

[00:18:46] Speaker 00:
Petitioner argues that the restraining order was not effective because it did not guarantee her protection, as you said, and prevent her husband from contacting her.

[00:18:54] Speaker 00:
But in doing so, that improperly focuses on her husband's conduct rather than the government's response to her husband's conduct.

[00:19:01] Speaker 03:
I'd appreciate it if you could help me with this.

[00:19:04] Speaker 03:
The standard we're looking at here is whether the government of, in this case, Guatemala, was unwilling or unable to help her.

[00:19:12] Speaker 03:
It's clear that the IJ made an error in stating that she made no effort to contact the police.

[00:19:20] Speaker 03:
She misrepresented at one point what happened.

[00:19:24] Speaker 03:
One time she said she hadn't made any effort to contact the police.

[00:19:28] Speaker 03:
She said that to the IJ before the asylum officer.

[00:19:30] Speaker 03:
She said something different.

[00:19:32] Speaker 03:
So we've got a mess here.

[00:19:35] Speaker 03:
But I guess I'm questioning, is this harmless error?

[00:19:39] Speaker 03:
If it were sent back, what would happen?

[00:19:43] Speaker 03:
So, I mean, you can analogize it here.

[00:19:46] Speaker 03:
Somebody has a restraining order from Los Angeles, and they're up in Yolo County, and they go to the police, and they say, you know, my ex is threatening me.

[00:19:57] Speaker 03:
Nothing happens.

[00:19:58] Speaker 03:
The person's somewhere else.

[00:19:59] Speaker 03:
They can't do anything.

[00:20:00] Speaker 03:
I don't know what the situation is in this situation, but are there any cases you can cite to us that

[00:20:08] Speaker 03:
help us with this problem.

[00:20:10] Speaker 03:
We all see the government here did something, expressed a willingness to help.

[00:20:15] Speaker 03:
We got conflicting testimony on her part about what happened.

[00:20:20] Speaker 03:
The IJ didn't say, well, I don't believe her.

[00:20:22] Speaker 03:
He just said didn't happen.

[00:20:25] Speaker 03:
But does that make this a harmless error situation or are we compelled to send this back?

[00:20:30] Speaker 00:
I would just, again, note that the credible fear interview is just a threshold screening interview.

[00:20:35] Speaker 00:
But it's evidence.

[00:20:36] Speaker 00:
It's in the record.

[00:20:37] Speaker 00:
It is, Your Honor.

[00:20:38] Speaker 00:
But petitioners had the burden of proof to establish her eligibility for relief and protection.

[00:20:43] Speaker 00:
She had that opportunity to do so at her merits hearing.

[00:20:46] Speaker 00:
And it's harmless error, because if that was something that could have been brought out in her testimony at the merits hearing, it was her burden to clarify that issue.

[00:20:55] Speaker 00:
if there was an inconsistency.

[00:20:57] Speaker 00:
That's not on the immigration judge.

[00:20:58] Speaker 00:
That was her burden.

[00:20:59] Speaker 01:
Even though she's proceeding pro se.

[00:21:01] Speaker 00:
I believe she did have an attorney.

[00:21:03] Speaker 00:
Yeah, an attorney.

[00:21:03] Speaker 00:
Before the immigration issue.

[00:21:05] Speaker 00:
But not before the... Not at the... Not at the... Both year, because it is, like I said, a threshold screening interview.

[00:21:12] Speaker 02:
Ms.

[00:21:12] Speaker 02:
Rourke, could I turn, if we could, to the CAT claim?

[00:21:17] Speaker 02:
So, on the CAT claim, the IJ relies

[00:21:25] Speaker 02:
on generalized country conditions doesn't even, at least apparently, incorporate any of the analysis of the past persecution in terms of these other facts.

[00:21:36] Speaker 02:
That doesn't seem to factor into it, let alone this other question about acquiescence that we've just been discussing.

[00:21:44] Speaker 02:
Why is that not a reason to grant on the CAT claim?

[00:21:48] Speaker 00:
The state action required for cap protection is even more onerous than asylum and withholding or removal.

[00:21:54] Speaker 00:
Petitioner needed to show that she suffered or would suffer torture at the hands of a private actor by or with the acquiescence.

[00:22:01] Speaker 00:
Sure.

[00:22:02] Speaker 02:
Okay.

[00:22:02] Speaker 02:
But the, the IJ had to perform a particularized analysis of this and, and at least on my review, the IJ simply

[00:22:10] Speaker 02:
refers after crediting all this other evidence for purposes of the asylum claim, just refers to general country conditions.

[00:22:20] Speaker 02:
Is that enough?

[00:22:21] Speaker 00:
The immigration, I will admit that the immigration judge's decision is brief in terms of the cat claim.

[00:22:27] Speaker 00:
But as the agency noted, the country conditions evidence was too generalized to establish a particularized threat of torture for petitioner.

[00:22:35] Speaker 00:
And I think the immigration judge

[00:22:37] Speaker 00:
You know, she also found that there was not evidence establishing acquiescence.

[00:22:41] Speaker 00:
Granted, she didn't go fully into detail, but I think after doing the Unable and Unwilling Analysis, it more than covered the cat analysis because, like I said, the burden is higher for the state action.

[00:22:55] Speaker 01:
And on that front, it does seem to me

[00:22:57] Speaker 01:
Even looking at the evidence in the record in the light most favorable to the petitioner, I don't see any evidence of government acquiescence.

[00:23:08] Speaker 01:
I mean, what at Bo's she showed was she complained and they said, we can't help you right now.

[00:23:15] Speaker 01:
I think that doesn't meet the burden of acquiescence.

[00:23:18] Speaker 00:
Correct, Your Honor.

[00:23:19] Speaker 00:
There's no evidence that the Guatemalan government was aware that Petitioner was being abused, and thereafter breached their legal duty to intervene.

[00:23:27] Speaker 00:
On the occasions that Petitioner did ask for help, the police positively responded.

[00:23:31] Speaker 00:
And the police were not aware of her husband.

[00:23:34] Speaker 00:
Well, we disagree on this point.

[00:23:35] Speaker 00:
They were not aware of her husband's violations of the restraining order, because she never reported those violations.

[00:23:40] Speaker 00:
Well, no, she- Well, she never asked for enforcement of the restraining order.

[00:23:43] Speaker 01:
What she says is, I asked for the order to be renewed.

[00:23:46] Speaker 01:
I did not ask for enforcement.

[00:23:48] Speaker 01:
So they were aware of the violations.

[00:23:50] Speaker 00:
Like the immigration judge, I also misspoke.

[00:23:53] Speaker 01:
It happens to circuit judges, too.

[00:23:56] Speaker 00:
So she didn't ask for enforcement of the restraining order.

[00:23:59] Speaker 00:
And the fact that the restraining order didn't prevent her husband from contacting her is no moment, as it relates to acquiescence, absent evidence that the police were aware and failed to respond.

[00:24:10] Speaker 02:
If, assuming we find that the IJ heard with respect to the reporting on the asylum claim, don't we also have to send it back on that element of the CAT claim?

[00:24:25] Speaker 00:
For acquiescence, I would argue no, Your Honor.

[00:24:28] Speaker 02:
Because of the different standard.

[00:24:29] Speaker 00:
Because of the different standard.

[00:24:33] Speaker 00:
If there are no further questions, I could briefly sum up.

[00:24:36] Speaker 03:
Other question?

[00:24:36] Speaker 03:
Please do.

[00:24:37] Speaker 00:
If there are no further questions from the court, this court should look to its decisions in Velasquez-Gaspar, Castro-Perez, Díarez, and Morales-Avila as guidance in this case.

[00:24:48] Speaker 00:
The common thread between those cases is that a country's government is not unable and unwilling to control private criminal actors when it demonstrates efforts to subdue said individuals.

[00:24:57] Speaker 00:
The government here took efforts to subdue the risk of harm to Petitioner, and Petitioner's case suffers from the same deficiencies as these aforementioned cases.

[00:25:05] Speaker 00:
As such, the court should deny the petition for review and uphold the agency's denial of relief and protection.

[00:25:10] Speaker 00:
Thank you, Your Honor.

[00:25:11] Speaker 03:
Thank you, Rach.

[00:25:13] Speaker 03:
All right.

[00:25:15] Speaker 03:
Mr. Perez, for a rebuttal, please.

[00:25:28] Speaker 05:
May it please the court, Anand Perez from Ms.

[00:25:31] Speaker 05:
Casar Perez on rebuttal.

[00:25:33] Speaker 05:
Your Honor, the government claims two points that I would like to address.

[00:25:37] Speaker 05:
First, that the error was harmless, and second, that you only asked for renewal and not a reporting.

[00:25:44] Speaker 05:
This is both incorrect.

[00:25:45] Speaker 05:
Let me start off with the first point.

[00:25:47] Speaker 05:
The government tries to argue that what the immigration judge said was simply unartful, and it was a harmless error.

[00:25:54] Speaker 05:
I would like to read the May 9th hearing on page CAR 152, where the IJ specifically declares their line of reasoning for what they held.

[00:26:04] Speaker 05:
They state that, quote, the respondent never followed up with the police to notify them that her husband was threatening her.

[00:26:12] Speaker 05:
therefore not enabling the government officials any opportunity to try to protect her.

[00:26:17] Speaker 05:
They explicitly lay out the reasoning.

[00:26:20] Speaker 05:
Because they held that they responded never contacted police, they then held that she never gave the chance for the government officials to help her.

[00:26:29] Speaker 05:
And this is simply incorrect.

[00:26:31] Speaker 05:
Even the government itself concedes that Ms.

[00:26:33] Speaker 05:
Castro-Perez did indeed report.

[00:26:36] Speaker 03:
Furthermore, the government tries to claim- Council, what exactly did she report?

[00:26:40] Speaker 03:
There seems to be some

[00:26:41] Speaker 03:
discrepancy here.

[00:26:43] Speaker 03:
One was that she wanted a renewal of the injunction, if you will.

[00:26:50] Speaker 03:
You're saying that's not what happened.

[00:26:51] Speaker 03:
What does the record show she actually notified the police in the second city?

[00:26:57] Speaker 03:
What did she tell them?

[00:26:58] Speaker 05:
Yes, your honor.

[00:27:00] Speaker 05:
So I would like to point to two pieces, parts of the record.

[00:27:03] Speaker 05:
The first is on car 272.

[00:27:05] Speaker 05:
I will read out that quote.

[00:27:06] Speaker 05:
She said, quote, I told the police in San Marcos that my husband was looking for me and that he was violating the restraining order and then goes on to say, I also asked them to renew.

[00:27:18] Speaker 05:
So she did both.

[00:27:19] Speaker 05:
She first reported the violation in San Marcos and she asked them to renew.

[00:27:23] Speaker 05:
Second, on car 274, she is specifically asked, when did you report?

[00:27:29] Speaker 05:
And she says, the 12th or 13th of January, 2015, not the 2014 date that the government stated.

[00:27:36] Speaker 03:
So excuse me, this was stated before the IJ or was stated before the earlier officer?

[00:27:43] Speaker 05:
This is during the officer, during the CFI notes.

[00:27:45] Speaker 03:
So when she said before the IJ that she had not reported it, what do we do with that?

[00:27:53] Speaker 05:
When she states that she didn't report, if we parse through the language on 145, she specifically states that

[00:28:06] Speaker 05:
When she was asked, did you ever tell police that Inyo violated, she said, no, because I was afraid, referring to that initial point.

[00:28:13] Speaker 05:
When I was at work, I would not go out, again, referring to that initial point.

[00:28:16] Speaker 05:
And then she says, and then I went to my brother's house.

[00:28:18] Speaker 05:
That's a different piece of the chronology.

[00:28:20] Speaker 05:
And she states then, and after that, I went back to San Marcos.

[00:28:23] Speaker 05:
That's a different piece of chronology.

[00:28:25] Speaker 05:
What we're focusing on is when she went to San Marcos, that last half, she did report.

[00:28:29] Speaker 05:
That's in the record.

[00:28:30] Speaker 03:
OK, but she didn't tell the IJ that.

[00:28:33] Speaker 05:
That, yes, what I was referring to is during the CFI notes.

[00:28:38] Speaker 05:
That's correct, Your Honor.

[00:28:39] Speaker 03:
So basically, just make certain we all understand each other here.

[00:28:43] Speaker 03:
She testified to the IJ, who's the one that wrote the report.

[00:28:48] Speaker 03:
She said she went to a different town.

[00:28:49] Speaker 03:
She did not say that she reported anything to the police there, right?

[00:28:56] Speaker 05:
It is true that the specific quote is from the CFI, correct your honor.

[00:29:00] Speaker 03:
Okay, but answer my question.

[00:29:01] Speaker 03:
She did not tell him that she reported anything to the police in the second city, right?

[00:29:12] Speaker 05:
I believe that that's correct.

[00:29:16] Speaker 05:
I would like to point this court's attention to Antonio V. Garland, where this court has upheld a standard in Cole, which says that potentially dispositive evidence cannot simply be overlooked.

[00:29:29] Speaker 05:
It's fundamental to deciding a case.

[00:29:31] Speaker 05:
And Antonio V. Garland specifically noted

[00:29:33] Speaker 05:
had a similar issue, that something essential in the CFI was overlooked.

[00:29:38] Speaker 05:
And this court then held in Antonio V. Garland that overlooking such a dispositive evidence in the CFI notes was inadequate, and it had to be remanded so that the immigration judge.

[00:29:49] Speaker 03:
Let me ask you this.

[00:29:50] Speaker 03:
I mean, we've got two different situations here.

[00:29:52] Speaker 03:
We've got the earlier interview, where there was obviously different testimony.

[00:29:57] Speaker 03:
And then you have the IJ.

[00:29:59] Speaker 03:
Let's just say that there were, there wasn't, but let's just say there were 100 pages of testimony before the first officer.

[00:30:08] Speaker 03:
Is the IJ charged with knowing each and every aspect of the 100 page report and making his report?

[00:30:17] Speaker 05:
The immigration judge specifically cited that he had looked over the CFI in his decision.

[00:30:21] Speaker 03:
Okay, so he didn't look at it accurately.

[00:30:26] Speaker 03:
What do we do with that?

[00:30:27] Speaker 03:
I mean, she said to him,

[00:30:29] Speaker 03:
I didn't, you know, basically, I didn't report.

[00:30:31] Speaker 03:
He relied on that.

[00:30:34] Speaker 03:
Now, she said something else before.

[00:30:36] Speaker 03:
I just have a tough job, just like trial judges do.

[00:30:41] Speaker 03:
I'm just trying to decide, what do we do with that?

[00:30:44] Speaker 03:
This is not science or he'd had nothing against this woman, but what do we do with that?

[00:30:49] Speaker 03:
She said one thing one time, she said something at another time.

[00:30:52] Speaker 03:
Before him, she denied there was any problem.

[00:30:55] Speaker 03:
government did help, wasn't unwilling to help.

[00:30:59] Speaker 03:
So what do we do with that?

[00:31:00] Speaker 05:
Your Honor, per this Court's precedent, when something is so dispositive, so essential to the outcome of the case, and we have it in front of the record, and the IJ acknowledged that they had based their decision based also on that part of the record,

[00:31:15] Speaker 05:
It should be remanded with full instructions to consider that part of the record because that is the entire decision.

[00:31:22] Speaker 05:
It hinged on that one central point.

[00:31:24] Speaker 03:
Okay.

[00:31:25] Speaker 03:
Your time is up.

[00:31:25] Speaker 03:
Let me ask my colleagues whether either has additional questions.

[00:31:29] Speaker 03:
I think not.

[00:31:29] Speaker 03:
Thank you for your argument.

[00:31:31] Speaker 03:
We really appreciate it.

[00:31:32] Speaker 00:
Thank you very much.

[00:31:32] Speaker 03:
Good job to you both.

[00:31:35] Speaker 03:
The case just argued is submitted.