[00:00:00] Speaker 04:
Good morning.

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

[00:00:02] Speaker 00:
I'd like to reserve three minutes for rebuttal.

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

[00:00:05] Speaker 00:
May it please the court.

[00:00:07] Speaker 00:
My name is Sean Perdomo and I represent the petitioner, Candelaria de Los Angeles, Corpeno Romero and her son, Javi Alexander Cornejo Corpeno.

[00:00:17] Speaker 00:
This case is about a Salvadoran single mother protecting her then 14 year old child from MARA 18 gang members who killed the child's father, Carlos in 2010.

[00:00:28] Speaker 00:
The killers were identified, arrested, and imprisoned for eight years.

[00:00:33] Speaker 00:
Candelario was present at the police station during the early stages of the investigation and viewed the killers.

[00:00:40] Speaker 00:
Upon the killer's release, they stalked Javi, investigated his relationship to Carlos, and physically accosted Javi.

[00:00:48] Speaker 00:
The killers threatened to kill Javi's whole family if he did not join the gang.

[00:00:54] Speaker 00:
Javi was terrified and quit school.

[00:00:57] Speaker 00:
Javi joined Candelaria at her food stand when he saw the killers again.

[00:01:02] Speaker 00:
Javi pointed the killers out to Candelaria, and she recognized one of them from the police station eight years prior.

[00:01:10] Speaker 00:
Candelaria feared Javi and her family would be killed by the gang, and she eventually fled to the United States.

[00:01:17] Speaker 00:
The main issue in this case surrounds the agency's heavy reliance on the immigration judge's nexus finding

[00:01:23] Speaker 00:
that the gang members were only motivated to increase their ranks rather than any protected ground.

[00:01:29] Speaker 04:
So what's your best case to show that petitioners' experience rose to the level of persecution?

[00:01:35] Speaker 04:
And do you have a case where a single death threat and no surrounding instances of physical harm was sufficient?

[00:01:43] Speaker 00:
Your Honor, as to the first, past persecution,

[00:01:48] Speaker 00:
case that I would cite would be Hernandez Ortiz versus Gonzalez.

[00:01:52] Speaker 00:
And that one took into consideration the petitioner's age.

[00:01:57] Speaker 00:
In that instance, the children were aged seven and nine, and they were accosted by the Guatemalan military, who then tried to forcibly recruit the young petitioners.

[00:02:07] Speaker 00:
After applying for asylum, the agency considered the children's ages, but did not consider

[00:02:14] Speaker 00:
the effect that it would have and how that differentiated from an adult applicant.

[00:02:19] Speaker 00:
So your client was 14, right?

[00:02:21] Speaker 00:
Yes, he was.

[00:02:22] Speaker 00:
And he was at the hearing, correct?

[00:02:25] Speaker 00:
No, his testimony was submitted by declaration and it was accepted as true by the immigration judge.

[00:02:31] Speaker 04:
Okay, and the immigration judge knew he was 14 at the time, correct?

[00:02:35] Speaker 00:
Yes, Your Honor.

[00:02:37] Speaker 04:
Okay.

[00:02:37] Speaker 00:
But what was missing from the analysis, Your Honor, was that there was a psychological report that was submitted

[00:02:43] Speaker 00:
And it showed that he had a diagnosis of post-traumatic stress disorder as it relates to his experiences when his father had died in 2010.

[00:02:52] Speaker 00:
He was in the middle of playing with his father at the family home when he briefly left to go run an errand.

[00:02:59] Speaker 00:
When he was gone, his father was murdered.

[00:03:03] Speaker 00:
He wasn't told for several years by his mother that this had occurred.

[00:03:07] Speaker 00:
And that's when he learned about the backstory, about his father being targeted for extortion and then being murdered in 2010.

[00:03:14] Speaker 02:
Counsel, I found it significant in the record, and tell me if this is correct, that after Kundalari and Javi fled to, I think, a sister's house five hours away, armed men broke into their home to search for them.

[00:03:28] Speaker 02:
Is that true?

[00:03:30] Speaker 00:
Yes, that is correct, Your Honor.

[00:03:31] Speaker 00:
That is reflected in the record.

[00:03:33] Speaker 00:
And that underscores the fact

[00:03:36] Speaker 00:
relates to Nexus and that is that the persecutors in this instance, Mara 18, continued to search for this family even after they had left.

[00:03:46] Speaker 02:
Does it, I thought it also related to the past persecution claim because it reflects an imminence or immediacy of the threat that was, the death threat to Javi when they were accosting him on the school bus or off the school bus as well.

[00:04:05] Speaker 02:
What do you think?

[00:04:06] Speaker 00:
Yes, Your Honor.

[00:04:07] Speaker 00:
Although it was not cited in the briefs, Kaiser versus Ashcroft speaks to this point that what matters in a threats case is whether the persecutors have

[00:04:16] Speaker 00:
the will and the immediate ability to carry out the threat.

[00:04:20] Speaker 00:
Death threats alone, this court has already decided in Ayala versus Sessions, is enough to constitute persecution.

[00:04:28] Speaker 00:
However, when we look at Duran Rodriguez and the concurring opinion that was drafted by Judge Smith,

[00:04:34] Speaker 00:
It cites that death threats alone are sufficient.

[00:04:38] Speaker 00:
However, if there are threats made against family members or other persons closely related to the petitioner, that will also be considered, and that is a strong indicator that it is persecution.

[00:04:49] Speaker 02:
Is it relevant that one of the people involved in the death threat was involved in the murder of his father?

[00:04:54] Speaker 00:
Yes, that is very significant because that goes to nexus.

[00:04:59] Speaker 00:
And that shows that there's a clear link between the father's murder in 2010 to the persecution that then occurred in 2018 when he was forcibly recruited.

[00:05:09] Speaker 00:
When he was approached by the gang members, the gang members had mentioned his father specifically and they actually called him by his nickname.

[00:05:17] Speaker 04:
They said he was related to Chicarone or something.

[00:05:21] Speaker 00:
I think it was Chicharron.

[00:05:25] Speaker 03:
But the difficulty I think you have is that they didn't threaten him because of his father.

[00:05:32] Speaker 03:
They said, if you don't join us, we will harm you.

[00:05:36] Speaker 03:
They didn't say we're going to harm you because of your father.

[00:05:40] Speaker 03:
I mean, why isn't that enough for the IJ to reach the conclusion that there wasn't sufficient evidence to show nexus for asylum?

[00:05:51] Speaker 03:
I understand withholding a reason.

[00:05:55] Speaker 03:
Asylum is a central reason.

[00:05:57] Speaker 03:
Can you expand on that?

[00:05:59] Speaker 00:
Yes.

[00:06:00] Speaker 00:
I believe there's substantial evidence in the record that would compel the conclusion that Javi was targeted for one central reason based on his familial relation to his father.

[00:06:09] Speaker 00:
Because circumstantially, it shows that the gang members didn't just target him out of the blue.

[00:06:15] Speaker 00:
They had followed him on two separate occasions before physically accosting him on the third.

[00:06:20] Speaker 00:
During that time period, they conducted an investigation, and when they approached him, they identified him as the son of Carlos or Chicharron.

[00:06:28] Speaker 00:
And I think that that is evidence that shows that he was targeted for one central reason based on his familial relationship to Carlos.

[00:06:37] Speaker 02:
And if we agree with you as to the nexus error, what's the appropriate remedy in your view?

[00:06:43] Speaker 00:
The appropriate remedy for this instance would be to remand for the proper application of legal standards.

[00:06:49] Speaker 00:
It appears here that there was substantial evidence in the record and that the immigration judge or the agency rather ignored highly

[00:06:56] Speaker 00:
probative and dispositive evidence that would have showed nexus under both the one central reason standard for asylum and as well as the a reason standard for withholding of removal.

[00:07:11] Speaker 04:
You want to reserve the balance of your time?

[00:07:13] Speaker 00:
Yes, your honor.

[00:07:14] Speaker 04:
Thank you.

[00:07:15] Speaker 00:
Thank you.

[00:07:23] Speaker 04:
Good morning.

[00:07:24] Speaker 04:
You look to be the same person that appeared earlier this week.

[00:07:28] Speaker 01:
Good morning, yes, your honor.

[00:07:30] Speaker 01:
May it please the court, Zachary Hugh.

[00:07:31] Speaker 01:
Thanks for the respondent, the United States Attorney General.

[00:07:34] Speaker 01:
The petition for review should be denied.

[00:07:35] Speaker 01:
Nothing in the record compels reversal of the agency's decision denying asylum, withholding, and torture conviction protection.

[00:07:41] Speaker 04:
Well, what about as to the nexus?

[00:07:43] Speaker 04:
The agency found petitioner's family relationship to Carlos could not be one central reason for persecution because

[00:07:52] Speaker 04:
M-18 was only trying to expand their membership.

[00:07:56] Speaker 04:
How can that be correct when M-18 members had investigated Javi and told him they knew he was Carlos' son?

[00:08:05] Speaker 04:
At the very least, doesn't identifying him as Carlos' son show that the family was a reason Javi was targeted, sufficient for withholding?

[00:08:15] Speaker 01:
Your honor, even under the withholding a reason standard, that evidence compels the finding that these gang members knew who petitioner was and that they knew his relationship to his father.

[00:08:25] Speaker 01:
It doesn't compel a finding that the gang members were motivated even in part by that relationship.

[00:08:30] Speaker 01:
A fact finder could easily infer from that interaction that what the gang member was using his father's relationship for was to bring immediacy to their threats and use it as leverage when their ultimate goal here

[00:08:42] Speaker 01:
was their base criminality and their efforts to grow the size of their gang.

[00:08:49] Speaker 02:
I mean, you know, it's not a coincidence that one of the people that was identified as having murdered his father is involved in tracking him down.

[00:09:00] Speaker 02:
They mentioned Carlos's name.

[00:09:02] Speaker 02:
You think it's just a coincidence that they're trying to recruit someone who happens to also have been the victim's son?

[00:09:09] Speaker 01:
I think petitioners have to show that the evidence taken as a whole compels a finding that these gang members were motivated by that relationship.

[00:09:18] Speaker 01:
A reading of this record could show that these gangs, they recruit young men, adolescents of Javi's age, this happens to wide swaths of the Salvadoran community, and that these gang members specifically used Petitioner's family relationship to his deceased father as a way of bringing immediacy to their threats to add leverage to demonstrate effectively, we mean what we say, we are a part in criminals, as opposed to showing that they were motivated to target this individual because of that relationship itself.

[00:09:49] Speaker 01:
demonstration that that is what their motive was, as opposed to, as the agency found, base criminality, the desire to recruit and expand the reach.

[00:09:59] Speaker 04:
So what's your best case to show Javi's experience did not rise to the level of persecution?

[00:10:04] Speaker 04:
At age 14, he was stalked repeatedly, grabbed by a group of men who threatened to kill him, and one of those men had already killed his father.

[00:10:14] Speaker 04:
And it starts up, it seems like the stocking starts up, it looks like the guy went to prison in 2010 and the stocking starts around the summer of 2018, right?

[00:10:24] Speaker 04:
And then they've got the 18 and the 18 tattoo.

[00:10:29] Speaker 01:
Yeah, the record shows that they followed him three times on a school bus or a bus to school starting in the summer of 2018.

[00:10:38] Speaker 01:
um... as for cases if we start with just Sharma which this court kind of delineated factors to evaluate in the past persecution analysis fully we look

[00:10:48] Speaker 01:
Threats alone very rarely rise to the extreme level necessary to persecution.

[00:10:54] Speaker 01:
It's usually a requirement for either more persecutory harm or showing that the threats were so specific, menacing, to constitute actual harm and suffering.

[00:11:05] Speaker 01:
So Sharma and then Duran Rodriguez were an individual was threatened twice, once by armed men who the record showed that they were likely hit men for a cartel.

[00:11:15] Speaker 01:
that that did not compel a finding of past persecution.

[00:11:18] Speaker 02:
So what about Mushiri, which I think the BIA referenced in its decision, where we said, threats may be compelling evidence of past persecution, particularly when they are specific and menacing and are accompanied by violent confrontations, near confrontations, and vandalism.

[00:11:38] Speaker 02:
And the reason why I bring that up is I reference to your friend on the other side that armed men broke into the home just days after the threat occurred and they happened to not be there.

[00:11:51] Speaker 02:
Why isn't this threat specific and menacing and followed by a near confrontation enough to put it in the persecution realm?

[00:12:01] Speaker 01:
This goes back to the standard of review where a fact finder could find that

[00:12:07] Speaker 01:
This specific encounter, he was followed three times.

[00:12:10] Speaker 01:
The gang members had a relatively short interaction with him.

[00:12:13] Speaker 01:
They mentioned his father.

[00:12:14] Speaker 01:
They grabbed his hands, and he was able to quickly get away, at which point, or excuse me, before that, they said, we will kill you and your family if you do not join us.

[00:12:22] Speaker 01:
And then, yes, as Your Honor mentioned, there are references in the record to the home being attacked, presumably by the same or related individuals.

[00:12:31] Speaker 01:
But looking at this, the fact-finder doesn't have to say that this specific threats, when threats

[00:12:36] Speaker 01:
constitute persecution and only a small smattering of cases.

[00:12:40] Speaker 01:
And to compel persecution, there's often significant past harm, physical harm, lengthy detentions, et cetera.

[00:12:47] Speaker 01:
Even at worst, if the fact-finder could find its persecution, it's not necessarily compelled.

[00:12:52] Speaker 02:
What's unique about this case is one of the alleged persecutors murdered this boy's father.

[00:12:59] Speaker 02:
I agree with you.

[00:13:02] Speaker 02:
I think threats alone are an unusual kind of line of cases for persecution.

[00:13:07] Speaker 02:
Here you have someone whose father was murdered and then these immediate threats follow.

[00:13:13] Speaker 02:
Doesn't that put us in a different category or how should we analyze that portion of it?

[00:13:17] Speaker 01:
Just to clarify and make sure I understand your question, Your Honor, are you suggesting that the murder of his father should be effectively imputed as persecution onto Javi or the lead petitioner?

[00:13:26] Speaker 02:
No, but that it should be relevant, right?

[00:13:29] Speaker 02:
I mean, if part of the threat analysis is whether the people making the threats are willing and able to carry them out and one of the people that did it was actually convicted and served time for murder, shouldn't that have a bearing on the persecution analysis?

[00:13:45] Speaker 01:
It certainly could be analyzed as a

[00:13:47] Speaker 01:
When dealing with types of these claims of how effective or can these organizations fulfill their threats, are they empty threats or does the organization or individual have the will and ability to carry out?

[00:14:00] Speaker 01:
It can be analyzed, Your Honor, but this also ties back into nexus where we have to demonstrate that as well to require remand and looking at the father's murder, there's no connection to any protected ground whatsoever.

[00:14:12] Speaker 01:
And again, I would just know that the murder of the father can't be considered persecution of either person petitioner in this case because that incident had the individuals who murdered his father were not interested in harming psychologically, emotionally, either petitioner in this case, they had their own dispute with the father.

[00:14:30] Speaker 02:
How can that be if they threatened the boy having mentioned the father?

[00:14:34] Speaker 02:
They had no interest in harming the child by threatening him?

[00:14:39] Speaker 01:
To be clear, Your Honor, I was referring to when they murdered the father.

[00:14:43] Speaker 01:
That incident was not motivated by any desire to harm either petitioner in this case.

[00:14:48] Speaker 01:
And I would go back to what I said earlier about why they mentioned the father's name in that brief encounter.

[00:14:54] Speaker 01:
a reasonable fact finder can find that the gang members did not do that out of any animus or any desire to punish this one family as opposed to using this fact about the person to bring immediacy, leverage to their threats, which it goes back to Rodriguez Zuniga of what is the actual motivation here as opposed to what instrumentalities or what means does a criminal organization use to reach their end goal, be it pecuniary interest in Rodriguez Zuniga or here

[00:15:23] Speaker 01:
to increase the reach size and criminal impacts.

[00:15:28] Speaker 04:
Well, like hypothetically, if we found no past persecution but held that the agency erred in ruling out family relationship nexus, do we have to remand to the BIA if we found that?

[00:15:40] Speaker 01:
If this court found that the agency erred on the nexus on the family, we principally are relying on nexus for the well-founded fear analysis, Your Honor.

[00:15:54] Speaker 01:
remand would likely be required.

[00:15:57] Speaker 01:
This is principally a nexus case when we're looking at the forward-looking portions of the asylum and withholding claims, Your Honor.

[00:16:04] Speaker 04:
Okay.

[00:16:05] Speaker 04:
Also, hypothetically, if we find that Javi did suffer past persecution, do we remand for the agency to apply a presumption of future persecution for both Javi and Candelaria?

[00:16:16] Speaker 04:
Are they treated as a unit?

[00:16:20] Speaker 01:
As a first point, I do interpret the board's decision of including the nexus finding for both past and future persecution, so it would have to be both findings.

[00:16:30] Speaker 01:
And regarding whether they are a unit, well, they each have their own individual claim, Your Honor, so I'm not aware of a regulatory statutory authority of what this court specifically can do, but as a general immigration law principle, it seems at least theoretically possible that

[00:16:48] Speaker 01:
one of the two petitioners in this case, specifically the son, could have a claim and that the mother cannot derive from the son's claim.

[00:16:56] Speaker 02:
Don't we look at these claims in unison, though?

[00:16:59] Speaker 02:
I mean, you know, the mother's suffering harm as well by the threats to her son, and Javi's, the threat to him was not only about killing him, but about killing his mother, killing the family.

[00:17:10] Speaker 02:
I sort of look at it in unison.

[00:17:13] Speaker 02:
Why would we want to separate them out if we didn't find past persecution from the threat?

[00:17:19] Speaker 01:
Well, I was just trying to answer Judge Callahan's question on whether or not if this court did find that Javi, the minor positioner, experienced persecution, but the mother did not.

[00:17:28] Speaker 01:
But the way this case works, the claims are significantly tied up, but I would, I didn't see the amount of time, but briefly, I would note that Javi did experience all of the

[00:17:41] Speaker 01:
that's alleged, he was the one followed, he was the one threatened face-to-face, whilst the mother, her harm is a third-hand threat that her son received, Your Honor.

[00:17:51] Speaker 01:
If there are no further questions, I do see I'm out of time, and the government would rest on our briefs.

[00:17:58] Speaker 01:
Thank you, Your Honor.

[00:17:59] Speaker 04:
Thank you for your argument.

[00:18:06] Speaker 00:
Just picking up briefly where you left off.

[00:18:09] Speaker 00:
In Candelaria's declaration,

[00:18:11] Speaker 00:
Back in 2007, when Carlos had received his initial extortion threats, he was threatened and his family was threatened as well.

[00:18:22] Speaker 00:
And I think that's what ties all of this together.

[00:18:24] Speaker 00:
And what initially occurred before the immigration judge was that he melded the well-founded fear of persecution analysis with the Nexus analysis.

[00:18:35] Speaker 00:
Had he conducted the well-founded fear of persecution analysis and determined whether it was objectively reasonable for the petitioners to fear returning back to El Salvador, he would have weighed all of the facts that contributed to those fears to see if they were in fact reasonable.

[00:18:50] Speaker 00:
Among those were the initial threats that were received back in 2007, 2008 at the outset.

[00:18:57] Speaker 00:
Also, the murder of Carlos, which was not taken into account in the immigration judge's original decision.

[00:19:03] Speaker 00:
The Board of Immigration Appeals

[00:19:04] Speaker 00:
did not really weigh that fact in their decision at CAR 4 and 5.

[00:19:10] Speaker 00:
They mentioned that Carlos had, in fact, been murdered, but he had been punished.

[00:19:14] Speaker 00:
And the way that I read the BIA decision is that it somehow discounts that in its past persecution analysis.

[00:19:21] Speaker 00:
And that's how it finds that there was no past persecution.

[00:19:23] Speaker 03:
As to Nexus, what do you make of Javi's statement in his declaration that, I'm not really sure why they targeted me?

[00:19:33] Speaker 00:
He says, I'm not really sure why they targeted me, but he also- Then he says it could be my father, it could be recruitment.

[00:19:39] Speaker 00:
He doesn't know.

[00:19:41] Speaker 00:
That's correct, Your Honor.

[00:19:42] Speaker 00:
And at bottom, that would be a qualification for withholding of removal based on a reason.

[00:19:47] Speaker 00:
It doesn't have to be one central reason.

[00:19:49] Speaker 00:
So for at least for that form of relief, it qualifies.

[00:19:52] Speaker 00:
But it's also his speculation.

[00:19:54] Speaker 00:
And if you look at the evidence in its totality, you see that the gang at the outset had targeted Carlos.

[00:19:59] Speaker 00:
And then from there, they were released from prison

[00:20:02] Speaker 00:
Shortly thereafter, they identified his son and they targeted his son.

[00:20:06] Speaker 00:
And then after that, after they fled El Salvador, they also broke into the entire family's home in their absence, looking for them.

[00:20:14] Speaker 00:
So I think that this case shows that there's substantial evidence that shows that the family was in fact targeted and it was targeted based on what had occurred back in 2007, 2008, all the way through 2018 when the family had fled.

[00:20:28] Speaker 00:
And also, briefly, for Nexus, Garcia versus Wilkinson mentions Parada versus Sessions.

[00:20:37] Speaker 00:
And in those cases, it's very similar to this case for Nexus in that the harms preceded the threats.

[00:20:42] Speaker 00:
And I think that's what makes this case unique among the Central American asylum claims that are received by this court.

[00:20:49] Speaker 00:
Typically, extortion threats are received first.

[00:20:52] Speaker 00:
And at times, there's maybe some physical harm that occurs or something else, and then the family flees.

[00:20:58] Speaker 00:
But in this instance, the harm occurred at the very beginning, in 2010, when you look at the murder.

[00:21:04] Speaker 00:
And then after that, you get threats.

[00:21:06] Speaker 00:
So I think that's what makes this case very unique among the cases that this court reviews.

[00:21:12] Speaker 00:
And with that, it's submitted, unless you have any more questions.

[00:21:15] Speaker 04:
We don't appear to.

[00:21:16] Speaker 04:
Thank you both for your argument in this matter.

[00:21:18] Speaker 04:
This case will stand submitted.