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May it please the court, Matthew G. Holt, for the petitioner, Jose Luis Cedillo Burgos.

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here to discuss how judicial misconduct undermined petitioners' due process rights as an asylum seeker and specifically to address the impact of the due process violations on this CAD claim.

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In this case, both Judge O'Connor, at the local level in San Diego I'm very familiar with, and the Board of Immigration Appeals failed to protect this applicant's due process rights.

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The hearing was combative, to say the least.

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It was prejudicial.

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was prejudicial, so we're familiar with your argument and what happened in the hearing.

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So let's just assume for this question that he was prevented from presenting more evidence.

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But we don't really know what that evidence would be, so it's hard to tell whether the cat claim could have come out differently.

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Can you explain how he would have presented more evidence to show an inability to relocate as one of the issues?

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Thank you, Your Honor.

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Internal relocation.

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they did what they were supposed to do.

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He's afraid of a police officer based on a personal grievance from 30 plus years ago but the threats to the family didn't start occurring and the three kidnappings and the one suspected murder because the person disappeared and was never returned even after the ransom was paid.

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All of this started to happen around 2009 which is when

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the the prejudice here is that the immigration judge had a duty to develop the record.

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He was so focused on saying that we don't need to know what the exact testimony of the other witnesses that your client was hoping to put forward because the fact that there was potentially some

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is enough on a due process violation to grant the petition?

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It is enough.

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It's not required to have all of the information that wasn't provided previously in order to make the determination here.

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The judge was so focused on figuring out was it written on the declaration from six

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allow the record to develop and that he failed to consider the country condition reports.

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When we talk about torture convention, when we talk about acquiescence by government officials of torture, when we talk about police officers acting under under color of law to persecute people individually for personal grievances, when we when we talk about these things we we have to look at the we have to look at the country

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conditions and neither did the Board of Immigration Appeals.

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If we look at the country conditions that were provided… Sorry, that seems like a different kind of argument, though.

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If you're saying that we could figure this out from looking at the record we have, that's a different argument than if there hadn't been discouragement of presenting other witnesses, we'd have different evidence.

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I think one demonstrates

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immigration judge was so... Why do we have to get to the country conditions evidence if we can determine that the failure to allow the testimony from I think what four, something like four other witnesses didn't develop and that alone

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Can I ask about the family theory?

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Is your theory that the targeting of the family all stems from the vendetta that Rocha has against her client, or is the family targeting from some other source?

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from the record it appears that Rosalina, Rosalina is vindictive against Mr. Sadio and as a result of Mr. Sadio not being

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he did testify, Mr. Cedillo did testify, and I think it was a statement against his own interest really, but I think it shows his credibility that other people in the town also do have problems.

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But in this case, it's Rosalino saying, if your brother comes back, I'm going to kill him.

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That's very clear, and it's

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that land for his safety.

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It's three kidnappings.

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It's one disappearance and this is there there is no other motive that that started this other than what happened here.

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So do you believe that the error was that the agency put the burden on your client to establish an ability to relocate and that that wasn't an error?

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So that for internal relocation at HCFR 1208-13B1, little i, big B, the second step of the increase, whether under all the circumstances it would be reasonable to expect the applicant to do so.

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Under all the circumstances it would be reasonable.

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Judge O'Connor did not consider all the circumstances when considering relocation.

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I'd like to leave the last minute and a half for rebuttal.

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Thank you very much.

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May it please the court, Jenny Lee, on behalf of the respondent, the Attorney General of the United States.

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As an initial matter, any discussion with regard to matter of LEA, the particular social group continues to discuss the matter of LEA.

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It's all irrelevant to his withholding claim because his withholding claim turns only on nexus.

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His fear was based on vengeance and vengeance is not a protected realm.

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So the only issue in this case is prejudice and the cat claim.

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But where is the prejudice?

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As Judge Friedman asked, how is he prejudiced?

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We don't even know what evidence he would have presented.

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Isn't that the point that because we don't know what evidence he would have presented that could have potentially affected the outcome of the cat claim that is the prejudice?

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something as to what that evidence would be.

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For example, in Hussein, a 2021 case, the petitioner in that case claimed that he would have provided more details if asked about his political or religious background, but he didn't point to any additional evidence he would have presented.

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And in that case, the court found that the petitioner cannot claim that he was prejudiced when he was, when the immigration judge's exact questioning could have elicited

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here he had four other witnesses present who were not allowed to testify and they were there ready.

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The judge would not let them even make a record of what they would have testified about.

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Doesn't that show the prejudice?

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beyond what her declaration stated and after an exchange between petitioners counsel and the immigration judge the petitioner proffer his witnesses so he said I'd just like to proffer their declarations or affidavits for their testimony so it was so there is no evidence here

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as to what his cat claim is, what his fear was, and his witness also testified fully as to what she thought, what harm would come to him.

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But his evidence did not bear fruit.

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And in Gomez-Oasco, a 2018 case from this court, the court found that there is no prejudice if the outcome would be the same even without the violation.

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that the four witnesses who didn't testify wouldn't have added anything.

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That is correct, Your Honor, because we have their affidavits.

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They were proffered.

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We have them.

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You can read them.

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They basically say... Your Honor, you're absolutely saying, I think, correct me if I'm wrong, that we should stand in the shoes of the fact-finder, and because we have the proffered declarations,

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we can consider that and make a determination as if we are deciding this issue in the first instance.

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Well, if we were to do a substantial evidence review, then obviously the court would not ask the court to do that.

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But however, we're asking the court to do a denover review as to the due process violation.

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And in order to do that, in order for the court to determine whether there is prejudice,

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immigration judge here make it clear that he would not allow people to testify about anything that wasn't included in their affidavits?

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There was a heated exchange between the petitioner's counsel and the immigration judge with regard to that.

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However, petitioner's witness was called and she did testify beyond what was in her declaration.

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So even though there was that exchange, it wasn't... But he didn't let him call the other witnesses.

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That was petitioner's counsel's decision not to call them.

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I thought the judge said that he didn't think the floor could testify beyond the affidavits.

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And after the exchange, the Petitioner's Council was the one that made the call.

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But why wasn't, I mean, if they weren't going to be allowed to testify beyond the affidavits, then there's nothing they can add sort of by definition.

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But if they were trying to add something to the affidavits with their testimony, then it seems like that does depend on the judge's ruling.

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Even though that is what Petitioner's Council, it sort of seems circular, your argument, which is that it was the council's choice not to put forward the witnesses, but the judge had already said, I'm not going to allow any testimony other than what's in the declaration.

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And then you're telling us, well, we should just look at the declaration, because those were proffered, and that's enough.

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But the question is whether or not the petitioner had an opportunity to

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by any restraint in their declaration, which is what the IJ did here.

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So it doesn't... I don't think you can make both arguments.

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I think I understand your question, Your Honor.

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But even though there was that exchange where Petitioner's Counsel thought that he would be limited, when he was questioning the witness, it was clear that she was going beyond the affidavit, and he was asking her questions about things that happened beyond her affidavit.

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So, um...

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the Petitioner's Council was present and it was aware that even though the immigration judge told him, like, you know, you need to keep everything, all the testimony within the affidavit, that it went beyond and he knew he could do that.

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But you're saying, so you're saying that the lawyer needed to not believe the judge's ruling.

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Like, we have to assume that the lawyer would have

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even though the judge said they couldn't?

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Well we know that based on the record because that's what happened.

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The witness testified beyond trafidavit even though

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Or is that just the judge's ruling?

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So I believe that was just the judge's ruling.

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However, if a person provides an affidavit and they testify beyond that, then their credibility can be called to question and the immigration judge... That's just a credibility finding.

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Yes, John.

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There's not a rule that precludes them from testifying to additional information.

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That is correct, Your Honor.

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There's no rule that precludes them, but it is, you know, it would go to the credibility, which would defeat the purpose of their testimony.

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Well, but isn't part of the argument here that they would have testified to more recent events that could be relevant to his risk of torture?

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Well, that's what his witness did testify to.

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so they could have testified to it and again when we have a due process prejudice claim petitioners council needs to bring or petitioner needs to present something as to what they would have presented we have the petitioner we have the witnesses and they never in

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claim they would have made had we not known.

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And you're asking us to conclude that none of that evidence would make any difference?

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I'm asking the court to conclude that because it's petition was burned to show that there was prejudice with his, I mean, and that, and he can't show with the evidence that's presented.

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How could he do that when the witnesses didn't get to testify?

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He could have done that through his testimony.

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He could have done that with his witness's testimony.

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It could have been presented in the witness's declarations.

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But it wasn't there.

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He could have presented affidavits afterwards saying this is what we would have testified to had the immigration judge not cut us off.

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But that was not there.

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I believe I've been- The last point is the only one that makes any sense to me.

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So you're saying he had an opportunity to submit affidavits.

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motion to reopen with an affidavit saying like we were we were we were prevented from presenting this evidence.

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He did not do that.

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Is there any case that says you can't bring a due process claim without filing a motion to reopen first?

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No your honor but I'm going I have very little time.

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Is that the that's the procedure that he would have had to do though is file a motion to reopen?

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That's what he could have done yes your honor but again when he filed his brief to the board he did not present what evidence

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I would like to briefly say that we can't infer prejudice in this case, unlike the case of Cano, Burrito, where the immigration judge basically told the pro se petitioner that you don't have an asylum claim.

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And it's not like the case of Colinar, where the immigration judge had prejudged the petitioner's asylum claim and was a partisan adjudicator and refused to let that petitioner testify.

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In those cases, prejudice was presumed because it was clear that the petitioners were not able to present their claim.

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Here, the petitioner was able to present the claim.

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It was not so fundamentally unfair that he was prevented

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he chose not to present all the witnesses.

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We have you over your time, so could you wrap up when you're ready?

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Yes, Your Honor.

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As the court in Rodriguez Suniga advised, it is worth taking a step back to consider the uncontested facts of this case.

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What is his cat claim?

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It stems from 1991 when he was in a soccer game and he knocked out

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in the 1990s.

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Petitioner was... I'm sorry, I think I need to cut you off because you're over your time.

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Thank you very much.

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Thank you, Your Honor.

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For those reasons, respond and ask that the petitioner for a reading be denied.

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Thank you.

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the attorney complied with the filing deadline.

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The practice manual requires 30 days if not detained, 15 days if detained.

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That's how long before hearing you're supposed to file things so that things don't go stale, so that there's not additional information or circumstances or events that have to somehow make their way into the end of the record.

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I've been practicing immigration law for 18 years.

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I've never done a deposition.

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Judge O'Connor wants depositions.

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He wants fully

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I want to point out the 9th Circuit 2002 Kano-Marita

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because failing to do so becomes an issue of life or death.

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The judge said that the government attorney in the hearing at page 185 said the respondent has a right to present his evidence.

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She's an immigration judge now too.

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The judge responded, she's just repeating multiple levels of hearsay.

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I don't know that the source of any of this is.

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Later he said, later he said that

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We have you over your time now, too, so I think you need to wrap up.

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All right.

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The case needs to be remanded because the IJ and the BIA failed to consider much less examined evidence.

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The IJ restricted testimony.

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Had the IJ been more focused on developing the record, not curbing the record, he would have read about the widespread police corruption in Guerrero and that the state's own attorney general at 437 of the record states of Guerrero doesn't have the capacity to confront

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to stop it, and here specifically the Mexican government, through a police officer named Rosalino, will abuse and persecute and harm Mr. Cedillo if he's forced to leave.