[00:00:01] Speaker 02:
Good morning, Your Honors.

[00:00:02] Speaker 02:
If it please the Court, I would like to reserve two minutes for rebuttal.

[00:00:07] Speaker 02:
Petitioner William Cruz and his wife, Hilaria Garcia Cabrera, are in the first row.

[00:00:12] Speaker 02:
And I would like to address three issues with the Court.

[00:00:17] Speaker 02:
The first is particular social group.

[00:00:19] Speaker 02:
The second is nexus.

[00:00:21] Speaker 02:
And the third is the question of past persecution and well-funded future persecution.

[00:00:26] Speaker 02:
I would note that Mr. Cortez and his first wife are now divorced, and he and Ms.

[00:00:31] Speaker 02:
Garcia Cabrera are legally married.

[00:00:35] Speaker 02:
And this fact highlights the absurdity of the judge's conclusion that Mr. Cort- I'm sorry.

[00:00:40] Speaker 04:
I'm sorry.

[00:00:40] Speaker 04:
I missed what you said the second part.

[00:00:43] Speaker 04:
You said Mr. Cortez and his first wife are now divorced.

[00:00:48] Speaker 02:
And he and Ms.

[00:00:48] Speaker 02:
Garcia Cabrera- And then what?

[00:00:49] Speaker 04:
And just a minute.

[00:00:50] Speaker 04:
And then you said next what?

[00:00:52] Speaker 02:
He and Ms.

[00:00:53] Speaker 02:
Garcia Cabrera are now legally married.

[00:00:55] Speaker 04:
Okay.

[00:00:55] Speaker 04:
Thank you.

[00:00:56] Speaker 02:
And this fact highlights the absurdity of the judge's conclusion that Mr. Cortez could not possibly be considered part of Ms.

[00:01:05] Speaker 02:
Garcia Cabrera's family because he was legally married to someone else.

[00:01:10] Speaker 02:
The government even admits that in their brief on page seven.

[00:01:14] Speaker 02:
I don't want to belabor this point, but it demonstrates why the analysis isn't whether gang members are going down to the county recorder's office and verifying whether a couple is legally married or not.

[00:01:25] Speaker 02:
This is why that isn't what the courts have always held to be the analysis.

[00:01:31] Speaker 02:
The analysis is particularity and sociality.

[00:01:35] Speaker 01:
But I'm going to turn to- You think that it doesn't matter, the legal nature of the relationship is not dispositive?

[00:01:41] Speaker 01:
That's your position?

[00:01:42] Speaker 01:
Correct.

[00:01:42] Speaker 01:
Okay.

[00:01:42] Speaker 02:
Yeah.

[00:01:43] Speaker 02:
I mean, the legal nature of the relationship would be really important if it was a follow to join on the asylum application because we care, as the United States government, is she his lawful wife or not?

[00:01:56] Speaker 02:
But in terms of, are you being persecuted because you have a legal binding contract or you're just

[00:02:03] Speaker 02:
Biblically married.

[00:02:05] Speaker 02:
That's not relevant, really.

[00:02:08] Speaker 02:
The nexus seems to be the real crux of this question.

[00:02:12] Speaker 02:
And was Mr. Cortez threatened on account of his membership in his family group, or was it straight extortion?

[00:02:19] Speaker 02:
The government, in its counterstatement of the issue, states that Mr. Cortez did not show that his family membership had any nexus to his claim.

[00:02:26] Speaker 02:
But that is incorrect.

[00:02:28] Speaker 02:
The record reflects that Judge Little never reached that issue.

[00:02:32] Speaker 02:
It's on page 71 of her decision in the CAR.

[00:02:37] Speaker 02:
She found one social group was cognizable, former bus drivers, and that was the only group she analyzed whether there was a nexus or not.

[00:02:46] Speaker 02:
And I admit, former bus drivers is not my strongest argument.

[00:02:51] Speaker 02:
However, the judge never reached the question of whether there was a nexus between the familial group and his fear.

[00:02:58] Speaker 02:
She said former brass drivers or former professional drivers is immutable, and the court does find the respondent is a member of that group.

[00:03:05] Speaker 02:
However, in this case, the court does not find a nexus between that particular social group and the harm respondents suffered.

[00:03:12] Speaker 02:
In fact, the judge goes on to say that the nexus was to extort money from Mr. Cortez's father-in-law.

[00:03:19] Speaker 02:
She didn't make an ultimate conclusion about whether there was a nexus because she found he didn't belong to the social group.

[00:03:26] Speaker 02:
But she got very close.

[00:03:29] Speaker 01:
So you read that there is one sentence on,

[00:03:34] Speaker 01:
Excerpts of record 71, I think we're talking about the same one, right?

[00:03:38] Speaker 01:
So you read that to support you.

[00:03:40] Speaker 01:
Why wouldn't it be read as taking the point that the petitioner faces persecution due to extortion or desire to get money as opposed to any kind of particular social group?

[00:03:56] Speaker 02:
Right, and so then we look at extortion plus because there are sort of two lines of cases with this court, right?

[00:04:03] Speaker 02:
There's the Rodriguez-Zuniga and there's the Ayala B. Sessions.

[00:04:09] Speaker 02:
And so I submit this case follows the extortion plus line of cases.

[00:04:17] Speaker 02:
I know that the court held in Rodriguez-Zuniga

[00:04:22] Speaker 02:
just because a family member is threatened doesn't mean that their membership in that particular social group is the central reason for harm or a central reason for harm.

[00:04:32] Speaker 02:
But that's distinguishable in this case.

[00:04:35] Speaker 02:
And that's because Mr. Cortez had worked for his father-in-law previously and had no problems.

[00:04:42] Speaker 02:
It was only when he was part of the family group that he was extorted and threatened.

[00:04:48] Speaker 02:
Likewise,

[00:04:49] Speaker 02:
Mr. Cortez's brother-in-law, when he was a driver for his father, was also kidnapped.

[00:04:56] Speaker 02:
And we submitted the report from the kidnapping in that case as well.

[00:05:01] Speaker 02:
And so this case resembles more Ayala v. Sessions or the extortion plus land of cases like Borjas v. INS or Singh v. Ilchert.

[00:05:16] Speaker 02:
This circuit's precedence had said that asylum applicant doesn't have to show which motive was dominant.

[00:05:23] Speaker 02:
It just has to show that it was one central reason.

[00:05:27] Speaker 02:
And I think that the family membership is one central reason.

[00:05:33] Speaker 02:
He didn't have the problem when he wasn't in a relationship with his wife.

[00:05:40] Speaker 02:
And therefore, at least two motives.

[00:05:43] Speaker 03:
If we grant the relief you're seeking, does this go back to the BIA, or does it go back to the administrative judge?

[00:05:51] Speaker 02:
I think it should go back to the administrative judge.

[00:05:54] Speaker 03:
Start all over again.

[00:05:56] Speaker 02:
Well.

[00:05:57] Speaker 03:
Go it out.

[00:05:58] Speaker 02:
Yeah.

[00:05:59] Speaker 02:
I guess so.

[00:06:01] Speaker 02:
Yeah.

[00:06:04] Speaker 02:
I think so.

[00:06:06] Speaker 03:
I just wanted to say what your plan was for it.

[00:06:09] Speaker 02:
Right, because I don't think she reached the question.

[00:06:12] Speaker 02:
And so it has to go to the judge to make that decision before the board could rule on it.

[00:06:19] Speaker 01:
But did the BIA reach the question?

[00:06:22] Speaker 01:
In other words, did the BIA, I grant you that the IJ did not rule on nexus grounds on this particular claim we're talking about.

[00:06:30] Speaker 01:
But did the BIA effectively do so?

[00:06:32] Speaker 02:
Well, I don't think so, Your Honor.

[00:06:34] Speaker 02:
And the reason I don't think so is the BIA went along with the erroneous assumption that he couldn't possibly be married and therefore not be part of the particular social group.

[00:06:52] Speaker 02:
And so I think that's where they both sort of missed the mark on that.

[00:07:01] Speaker 02:
The BIA says, well, there was no social group, so therefore, you know, he's not established that there's a nexus.

[00:07:11] Speaker 04:
Let me ask another question along the same lines.

[00:07:15] Speaker 04:
You indicated that the petitioner and his, I guess, what was then his common law wife are now married, right, legally married.

[00:07:25] Speaker 04:
Now, if that changes, if that's an important

[00:07:32] Speaker 04:
fact in this case that would change the analysis.

[00:07:35] Speaker 04:
Shouldn't you ask the BIA to reopen or reconsider or something like that?

[00:07:39] Speaker 04:
We don't have that fact in our record.

[00:07:42] Speaker 02:
No, Your Honor, you don't, but I just I don't think that I don't think that's what matters.

[00:07:50] Speaker 04:
Well, one of the questions you're asking us to decide is that it doesn't it doesn't

[00:07:58] Speaker 04:
Legally, it doesn't make a difference whether the man and woman are legally married, right?

[00:08:05] Speaker 04:
Correct.

[00:08:06] Speaker 04:
Well, but if what you say is correct, then that issue is now moot because they're married, right?

[00:08:15] Speaker 02:
Yes.

[00:08:16] Speaker 04:
So you still want us to decide that issue?

[00:08:24] Speaker 02:
Well, Your Honor, it just seems so clear that

[00:08:29] Speaker 02:
The question is, does society in general view them as a couple?

[00:08:36] Speaker 04:
I know what the question is, but the question is, if your representation that they're now legally married is correct, then in this case, that's a moot question now.

[00:08:48] Speaker 04:
It doesn't make any difference, because they're legally married, right?

[00:08:54] Speaker 02:
Although, Your Honor, and the court's point is well taken, I just think that asylum is backward-looking.

[00:09:04] Speaker 02:
The judge did find that he had a well-founded fear of persecution, and the board misstated that fact.

[00:09:11] Speaker 02:
But generally, when we're looking at asylum law, we're looking at what happened.

[00:09:17] Speaker 02:
And so if we say, well, now sort of ex post facto, he's married, so then it's a moot question, but it's still, you know, why was he persecuted in the past or why?

[00:09:26] Speaker 02:
I suppose now why would he have a well-founded fear of future persecution?

[00:09:30] Speaker 02:
Yeah, I should reopen, I should move the court, the board to reopen and determine that this is a moot issue.

[00:09:37] Speaker 02:
But don't we still then end up at nexus in the extortion plus question?

[00:09:47] Speaker 01:
I would, I mean- We've kept you on the run a little bit, so we'll put two minutes on the clock for rebuttal.

[00:09:54] Speaker 02:
Thank you, Your Honor.

[00:09:55] Speaker 01:
Thank you.

[00:10:08] Speaker 00:
Good morning.

[00:10:08] Speaker 00:
May it please the court, this is Dana Camiller for the Attorney General.

[00:10:12] Speaker 00:
The only issue in this petition for review is whether substantial evidence supported the board's determination that he did not show any nexus to a protected ground.

[00:10:25] Speaker 00:
The board did not reach the issue of these particular social groups.

[00:10:29] Speaker 00:
Instead, they found that the sole motivation was money.

[00:10:33] Speaker 01:
I mean, they did.

[00:10:35] Speaker 01:
I read the board to have adopted the IJs

[00:10:39] Speaker 01:
ruling on the cognizability of the particular social group, no?

[00:10:44] Speaker 00:
That's not how we read it.

[00:10:45] Speaker 00:
The board pretty clearly goes on to discuss that even if he's a member of a cognizable particular social group.

[00:10:52] Speaker 01:
Well, no, I agree with that, but I understood you to be saying that was the only issue, but it does seem the BIA had two grounds.

[00:10:59] Speaker 00:
When we wrote our brief, I believe if you look at the last footnote, we discussed that we need not even reach the PSG because the nexus finding is so strong here and also that there were all these questions about perceived family and that petitioner had devoted much of her brief to a group that wasn't even presented.

[00:11:18] Speaker 01:
Well, so do you, I mean, are you supporting the IJ's reasoning here on the particular social group or do you agree it was wrong?

[00:11:26] Speaker 00:
I don't have an opinion on it because the nexus is so strong that it doesn't need to be reached.

[00:11:31] Speaker 01:
Well, I mean, the issue I think that your opposing counsel raises is that the IJ didn't make any nexus finding on this, and the BIA does seem to, but is the BIA accurately describing what the IJ said?

[00:11:44] Speaker 01:
I found that that part of the BIA decision somewhat confusing.

[00:11:47] Speaker 00:
The BIA, I think, was...

[00:11:51] Speaker 00:
cleaning up some of the immigration judge's decision, which it has the authority to do under Rodriguez Zuniga, and was simply reviewing the factual findings for clear error and then applying that to motive and finding that in this situation, it is simply extortion.

[00:12:12] Speaker 00:
Mr. Cortez was acting as a go-between.

[00:12:14] Speaker 00:
He was paying the rent money.

[00:12:16] Speaker 00:
And then he was approached to find out more information about his father-in-law's other businesses in order to extort more money.

[00:12:25] Speaker 00:
It is exactly the same situation as Rodriguez Zuniga.

[00:12:28] Speaker 00:
And the familial relationship or even the workplace relationship is just leverage.

[00:12:35] Speaker 00:
It's incidental.

[00:12:36] Speaker 00:
He's not being targeted because there's animus towards the family.

[00:12:40] Speaker 00:
or any other reason except for that the gangs want money and they want to extort money from his father-in-law's businesses.

[00:12:50] Speaker 04:
I think, you know, contrary to what you said, I think a strong case can be made that the BIA's nexus conclusion is mistaken.

[00:13:02] Speaker 04:
It's not very well founded.

[00:13:04] Speaker 04:
Now, if one follows along that path, then whether or not

[00:13:10] Speaker 04:
the petitioner's established membership in a social group is an important question, isn't it?

[00:13:21] Speaker 04:
I mean, right?

[00:13:21] Speaker 04:
Because the government's position is that he hasn't.

[00:13:26] Speaker 04:
Or maybe there isn't such a group.

[00:13:29] Speaker 04:
But what I'm getting at is, what shall we do about this latest revelation that that couple is now legally married?

[00:13:38] Speaker 04:
Does that make that issue moot?

[00:13:40] Speaker 00:
No, Your Honor.

[00:13:42] Speaker 00:
Nexus is an independent, dispositive finding.

[00:13:45] Speaker 04:
Well, I mean, suppose the panel says, no, Nexus is pretty weak.

[00:13:51] Speaker 04:
We have to decide this case on the particular social group.

[00:13:56] Speaker 04:
Then what do we do?

[00:13:58] Speaker 04:
Is it a live question or a moot question?

[00:14:01] Speaker 00:
well first of all that information is not in the record as your honor rightly pointed out and could have been filed in a motion to reconsider a motion to reopen I believe we did say in our brief so your position government position is that they should file a motion to reopen to establish that fact in the record they should but we also did say in our brief that if

[00:14:26] Speaker 00:
the panel doesn't agree with us on Nexus, which we think is completely indistinguishable from Rodriguez-Zuniga, then it should go back down.

[00:14:34] Speaker 00:
But here, again, there is nothing to distinguish this from Rodriguez-Zuniga.

[00:14:41] Speaker 00:
This is not extortion plus, this is extortion.

[00:14:45] Speaker 00:
They would have gone after him because of his proximity to his father-in-law, and that is simply, and their only motivation is money.

[00:14:54] Speaker 00:
it's it's not that they hate the family or that there's some sort of personal vendetta against the family it's that this family runs businesses and this is generalized crime in al-salvador and it's unfortunate but it simply has no nexus to any protected ground i mean the the other case that can be made when you say you know simple case of extortion

[00:15:19] Speaker 04:
Who was this?

[00:15:21] Speaker 04:
Was it Maricel or Trucha, whoever the gang was?

[00:15:25] Speaker 04:
I mean, they didn't just go out and randomly pick somebody out of the crowd.

[00:15:30] Speaker 04:
They picked this man because of his father-in-law, because of his relationship to the family.

[00:15:36] Speaker 04:
And that's the reason.

[00:15:37] Speaker 04:
And they said, your father-in-law owes us money, right?

[00:15:41] Speaker 04:
That's the reason they went after him.

[00:15:42] Speaker 04:
So you can't say,

[00:15:46] Speaker 04:
I mean, under this other theory that Nexus or particularly Social Group actually plays absolutely no part in this because it was just a pure case of extortion.

[00:16:04] Speaker 00:
Well, if I may, Your Honor.

[00:16:06] Speaker 04:
Well, I'd say there's another way to look at it.

[00:16:08] Speaker 00:
Well, in Rodriguez Uniga, the court, and that is a published decision, found that it really didn't matter.

[00:16:15] Speaker 00:
In that case, the gang members had gone and threatened the petitioner's son.

[00:16:21] Speaker 00:
And they said that it was really incidental that they could have gone to a longtime friend or someone that they had other caring relationship about.

[00:16:30] Speaker 00:
But at the end of the day, it's simply leverage to get money.

[00:16:35] Speaker 00:
And that is not part of a protected ground.

[00:16:38] Speaker 00:
And that's why we see this as a nexus case and believe that the petition should be denied.

[00:16:45] Speaker 01:
Do you understand the BIA to be making that finding independently or to be essentially plucking from the IJ's decision that one line we're taking and sort of repurposing it for this aspect of the case?

[00:16:57] Speaker 00:
Well, the board does review for clear error for the factual findings.

[00:17:01] Speaker 00:
But I believe in Omano Escobar, the board can look at motive de novo.

[00:17:09] Speaker 01:
But did it do that here?

[00:17:10] Speaker 00:
I think it properly looked at the immigration judge's factual findings and applied that to the motive standard, yes.

[00:17:22] Speaker 01:
So what factual finding are we talking about?

[00:17:23] Speaker 01:
The one on AR-71?

[00:17:30] Speaker 00:
Yes, that was part of it.

[00:17:31] Speaker 00:
And also, I mean, the IJA collectively, albeit not the most fulsome decision, noted that the motivation was primarily extortion and generalized crime.

[00:17:46] Speaker 01:
Where are you referring to in the IJ decision?

[00:17:48] Speaker 00:
Yeah, 71.

[00:17:49] Speaker 00:
Okay.

[00:17:49] Speaker 00:
No nexus between that particular social group and the harm.

[00:17:52] Speaker 00:
El Diablo was targeting respondent because he was accessible and had information about his father-in-law.

[00:17:58] Speaker 00:
His father-in-law is the father of his partner who had businesses and money and the intent of the gang was to extort money.

[00:18:06] Speaker 00:
That's a factual finding.

[00:18:07] Speaker 00:
Board took that and found that there's no nexus to any protected ground.

[00:18:17] Speaker 01:
Doesn't appear you there are more questions.

[00:18:20] Speaker 00:
Thank you very much.

[00:18:20] Speaker 01:
Thank you.

[00:18:21] Speaker 02:
Your honor, the board misstates the judge's conclusion.

[00:18:36] Speaker 02:
At page five, the board's decision says, is the immigration judge's factual findings

[00:18:43] Speaker 02:
support her ultimate legal determination that Respondent has not demonstrated that you would suffer on account.

[00:18:58] Speaker 02:
Oh, we agree with the immigration judge that Respondent does not have a well-founded fear of future persecution.

[00:19:03] Speaker 02:
However, on page 73, in the first paragraph, the judge said the court does find

[00:19:10] Speaker 02:
The respondent's fear is subjectively and objectively reasonable.

[00:19:14] Speaker 02:
The board misstated the fear or the judge's decision.

[00:19:20] Speaker 02:
But I think the other thing is in terms of extortion plus, right?

[00:19:25] Speaker 02:
That's where we are.

[00:19:26] Speaker 02:
Is this a nexus case?

[00:19:28] Speaker 02:
I think the board's decision is a bit sloppy.

[00:19:36] Speaker 02:
and therefore it could be remanded.

[00:19:41] Speaker 02:
But again, we've shown that when Mr. Cortez was working for his father-in-law when he wasn't in a romantic relationship with his now wife, there were no problems.

[00:19:56] Speaker 02:
Likewise, the brother-in-law

[00:19:58] Speaker 02:
had problems, it's extortion plus because it all relates back.

[00:20:02] Speaker 02:
And if we're going to say this is like Rodriguez-Zuniga, then he would be like the son in Rodriguez-Zuniga, Ms.

[00:20:08] Speaker 02:
Rodriguez-Zuniga's son in that if the child had filed an asylum application and say they're going to kill me because my mom is getting money from the bank, that would be, the kid would be inextricably tied to his mother with this immutable characteristic family.

[00:20:28] Speaker 02:
that's the extortion plus line of cases i believe unless anybody has any questions okay well thank you for your argument this morning we thank both counsel this matter is submitted thank you very much