[00:00:03] Speaker 03:
And we'll hear argument next in Diego Diego against Garland.

[00:00:36] Speaker 03:
And counsel, before you start, can we just make sure that, counsel, for the attorney general, you're able to hear us?

[00:00:43] Speaker 02:
I can hear you and see you all.

[00:00:44] Speaker 02:
Thank you.

[00:00:45] Speaker 02:
Thank you.

[00:00:46] Speaker 02:
All right.

[00:00:46] Speaker 02:
You may proceed.

[00:00:47] Speaker 02:
Good morning, Your Honor.

[00:00:48] Speaker 02:
I'd like to reserve three minutes for rebuttal.

[00:00:51] Speaker 02:
You may.

[00:00:51] Speaker 02:
May it please the court, my name is Sean Perdomo, and I represent the petitioner, Letty Diego Diego and her children.

[00:00:58] Speaker 02:
This court must remand Letty's case to the agency for the proper application of the Unable or Unwillingness Legal Standard.

[00:01:05] Speaker 02:
There are substantial facts compelling the conclusion that the Guatemalan government is unable to protect Leti, making any report to the police futile.

[00:01:15] Speaker 02:
As the record demonstrates, violence against women is pervasive, and the government's efforts to protect women have been ineffective.

[00:01:22] Speaker 02:
On page 219 of the record, Guatemala is reported to have the third highest femicide rate globally, with over 2,200 violent deaths of women between 2014 and 2016,

[00:01:34] Speaker 02:
yet only 59 perpetrators were imprisoned.

[00:01:37] Speaker 02:
While the respondents brief mentions there were 1,600 convictions,

[00:01:41] Speaker 02:
in 2017, it omits the concluding sentence in the UNHCR report on page 230, noting insufficient resources for victim protection, including funding for specialized shelters.

[00:01:54] Speaker 02:
On page 226 of that same report, violent deaths of women increased by 8 percent to 662, despite hiring more national civil police.

[00:02:06] Speaker 02:
The 2018 State Department report at page 366 noted that the laws are not enforced effectively.

[00:02:13] Speaker 02:
Letty's experience reflects indifference to her suffering.

[00:02:17] Speaker 02:
On page 89, Letty's father reluctantly took her in because he blamed her for cohabitating with her abuser, Francisco.

[00:02:25] Speaker 02:
Letty's father did not tell her to go to a shelter, and there is no evidence in the record showing that Huehue Tanango had any services for women.

[00:02:35] Speaker 02:
On pages 86 through 87 and 124, Letty testified police were 30 to 40 minutes away and she expressed doubts they would not assist her due to her status as the unwed mother of Francisco's two children.

[00:02:51] Speaker 02:
Her family's response reflects that the government's efforts to bring awareness to end violence against women have been ineffective.

[00:02:58] Speaker 02:
At pages 181,

[00:03:00] Speaker 02:
183 and 191, when Letty informed her father of the violence, he told her, quote, you had it coming.

[00:03:07] Speaker 02:
When she shared her suffering with Francisco's mother, the mother was happy to hear about it.

[00:03:13] Speaker 02:
Even Letty's own mother, aware of the violence, sent her money but never suggested going to the police.

[00:03:19] Speaker 02:
Despite this evidence, the immigration judge wrote a single sentence about a 24-hour service center for violence against women survivors

[00:03:27] Speaker 02:
as substantial evidence that Guatemala was both willing and able to protect Letty, and that was at page 41.

[00:03:34] Speaker 02:
The IJ failed to mention that those service centers were not in all departments of Guatemala, and that's at page 366 of the record.

[00:03:42] Speaker 02:
The record shows that Chimal Tanango, not Huehuey Tanango, where Letty lived, had those services, and that's at page 240.

[00:03:51] Speaker 02:
These are the arguments that I've prepared for the Substantial Evidence Standard of Review, should this court

[00:03:56] Speaker 02:
apply the unable or unwillingness standard.

[00:04:00] Speaker 02:
Petitioner is also asserting that there is legal error that requires remand because the immigration judge and the BIA applied the incorrect legal standards to determine whether or not Guatemala was able to protect letting.

[00:04:13] Speaker 03:
Maybe start with the immigration judge.

[00:04:19] Speaker 03:
Aside from, I understand your substantial evidence argument, but what would you point to to suggest that the immigration judge misunderstood the legal standard on Unable or Unwilling to Protect?

[00:04:34] Speaker 02:
applied a gap analysis, although the BIA specifically referenced the gap analysis.

[00:04:40] Speaker 02:
The immigration judge did not apply the futile or dangerous standard for determining whether a police report was required to demonstrate whether the government of Guatemala was able to protect her.

[00:04:51] Speaker 03:
But the IJ specifically said a report is not essential for establishing government or unwillingness or inability.

[00:04:58] Speaker 03:
An applicant could establish this in other ways, right?

[00:05:02] Speaker 03:
And then he went on to say that he didn't think he had done that on the record.

[00:05:06] Speaker 03:
But what's the legal error there?

[00:05:08] Speaker 02:
The legal error is that the judge, at page 41,

[00:05:12] Speaker 02:
use this rule, and that is that Guatemala's laws or customs need to deprive her of any meaningful recourse to governmental protection.

[00:05:20] Speaker 02:
That is quite a different standard from futile or dangerous.

[00:05:24] Speaker 02:
In the rule that the immigration judge is applying, he is requiring the petitioner to show that Guatemala deprives her either through creating laws or because of their customs, the ability to protect.

[00:05:37] Speaker 02:
And this was a reading of INRI SA, a Board of Immigration Appeals decision from 2000, where they discussed the futile or dangerous standard.

[00:05:46] Speaker 02:
And in that case, Morocco had laws that prevented women from reporting violence, but it was also part of the custom and the abuses that she suffered at the hands of her father that also showed that making a report to the police would have been futile in any case because of the customs.

[00:06:01] Speaker 02:
This is the standard that the immigration judge had applied.

[00:06:05] Speaker 00:
Is that a higher standard than if the gap thing did not exist?

[00:06:12] Speaker 00:
In other words, the case is Bringus Rodriguez versus Sessions?

[00:06:17] Speaker 02:
Yes, Your Honor.

[00:06:18] Speaker 02:
I believe it is a heightened standard, because Bringus Rodriguez at pages 1066 through 1067 discuss how, under the gap standard, how the gap in reporting could be overcome by other evidence.

[00:06:33] Speaker 02:
And among those, at number one, cited in 1066 at 1067, it states exactly the same rule that the immigration judge is applying.

[00:06:42] Speaker 02:
But in this instance, where there is a failure to make a police report, this is more appropriately analyzed under the Ornelas Chavez version of determining whether or not a report would have been futile or dangerous.

[00:06:56] Speaker 02:
The Board of Immigration Appeals, when it reviewed the immigration judge's decision, and it kind of helps to contextualize when the immigration judge's decision was made.

[00:07:03] Speaker 02:
It was made at the time when Matter of AB, precedent by the attorney general, set a heightened standard for the Unable or Unwillingness standard.

[00:07:13] Speaker 02:
Under Matter of AB, the government had to condone or be completely helpless in protecting victims.

[00:07:19] Speaker 02:
And that is a much heightened standard.

[00:07:21] Speaker 02:
And at that time, the immigration judge did reference that decision.

[00:07:24] Speaker 02:
Since then, it was vacated.

[00:07:26] Speaker 02:
By the time that it got to the Board of Immigration Appeals, the Board of Immigration Appeals had sided to another board precedent, a matter of CGT.

[00:07:35] Speaker 02:
Although it sided to a matter of CGT, it did not apply the futile or dangerous standards to determine whether or not the police report would have been determinative as to the government's ability to protect her.

[00:07:48] Speaker 02:
Matter CGT requires the board also to engage in a fact based inquiry.

[00:07:53] Speaker 02:
And I think this is where the analysis is lacking on the part of the agency under matter of CGT.

[00:07:59] Speaker 02:
The agency needs to consider three things.

[00:08:02] Speaker 02:
And those are the testimony corroborating evidence and country conditions.

[00:08:06] Speaker 02:
In this instance, only the country conditions were considered.

[00:08:09] Speaker 02:
None of the statements that were made by her family when she reported these incidents to him were taken into account.

[00:08:15] Speaker 03:
So do you dispute that reporting to the police is one, if you show that you reported to the police and they didn't do anything, that would be one way to establish that the government is unable or unwilling to protect you, right?

[00:08:28] Speaker 02:
Yes, your answer, but even if the police do something under JR versus bar and even at six circuit case Antonio versus bar 959 F dot 3d at seven seven eight and that's a 2026 circuit case even if there's some official responsiveness that does not completely Establish whether or not the government of Guatemala is able to help you fair enough but okay so so one way to show it would be you know, I reported it and

[00:08:53] Speaker 03:
the response was non-existent or deficient.

[00:08:56] Speaker 03:
And if you didn't report it, then you would need to show something else, right?

[00:09:00] Speaker 03:
That's correct, Your Honor.

[00:09:01] Speaker 03:
And isn't that all that the board said?

[00:09:03] Speaker 03:
I mean, they use the word gap, and we've said, don't use the word gap.

[00:09:08] Speaker 03:
But in substance, they said, well, we don't have a report, so we need to look for something else.

[00:09:13] Speaker 03:
We think that something else isn't there.

[00:09:15] Speaker 03:
And you think that something else is there,

[00:09:19] Speaker 03:
and they were wrong on the evidence.

[00:09:21] Speaker 03:
But in terms of the legal standard they applied, it seems like they did it right, didn't they?

[00:09:28] Speaker 02:
I don't believe that they did, Your Honor.

[00:09:30] Speaker 02:
They do apply the Unable or Winnerless standard.

[00:09:33] Speaker 02:
However, the importance of the police report, it was paramount to the immigration judge because

[00:09:38] Speaker 02:
he stated that it's unknown how the government would have reacted.

[00:09:41] Speaker 02:
That's not the proper standard.

[00:09:42] Speaker 02:
The proper standard is laid out in the board's own precedent in a matter of CGT.

[00:09:47] Speaker 02:
And that is that the testimony of the petitioner, as well as the corroborating evidence, need to be taken into consideration, which those two things were not.

[00:09:54] Speaker 02:
And if they were taken into account, it would have shown the customs in Guatemala and how there's a system of patriarchy and how women are viewed as property and how abuses still continue to this day.

[00:10:04] Speaker 02:
And the country conditions evidence

[00:10:05] Speaker 02:
It points out that 15 women are murdered a week as a result of violence.

[00:10:10] Speaker 02:
Had they considered the statements of her family, much like this court did in the case of Velasquez Gas Bar.

[00:10:17] Speaker 02:
In Velasquez Gas Bar, there were country conditions evidence and friends actually urged her to make a report and that was substantial evidence in that case.

[00:10:25] Speaker 02:
that Judge Callahan said was sufficient to show that the government was perhaps able to help.

[00:10:30] Speaker 02:
But in this instance, you have the opposite.

[00:10:32] Speaker 03:
What's your evidence that the board, or what would you point to to show that the board did not consider all of the evidence you say they needed to?

[00:10:41] Speaker 03:
Because they said

[00:10:42] Speaker 03:
The respondent's evidence does not otherwise establish the government was or would be unable or unwilling to protect the respondent.

[00:10:49] Speaker 03:
So normally we presume they've looked at the record.

[00:10:53] Speaker 03:
So why should we think that they were ignoring some of the evidence when they said that?

[00:10:58] Speaker 03:
Because part of the analysis regards customs and none of the customs are mentioned.

[00:11:03] Speaker 03:
They don't need to specifically mention all of the evidence, do they?

[00:11:07] Speaker 03:
Can't they just say, we've looked at the evidence, we don't think it supports the claim?

[00:11:11] Speaker 02:
On this record, it's silent whether it was considered or not.

[00:11:13] Speaker 02:
Although they said they considered it, it's unknown.

[00:11:16] Speaker 02:
and the country conditions evidence that were cited by the immigration judge were completely lacking.

[00:11:20] Speaker 02:
He cited one sentence from exhibit nine at page six to establish that there is a service center that's available that would be capable of helping her.

[00:11:28] Speaker 02:
And when you look at the entire 2018 report, it says itself that the government is ineffective at preventing these sorts of acts of abuse.

[00:11:37] Speaker 02:
So pointing to one sentence out of an entire State Department report and also all of the other news articles that are attached

[00:11:44] Speaker 02:
even statements that are made by the prosecutors in charge of these femicide units, I believe that there is overwhelming evidence showing that the government's unable to protect Leti, and that one sentence about a service center, which the only evidence we have in the record as to where that location is in Chamaltoango, not in Huehuetenango, where she lives.

[00:12:03] Speaker 03:
Okay, thank you.

[00:12:03] Speaker 03:
So we took you past your time, or I guess I took you past your time.

[00:12:08] Speaker 03:
We'll give you two minutes for rebuttal.

[00:12:10] Speaker 03:
Thank you, Your Honor.

[00:12:17] Speaker 01:
and we'll hear from the government.

[00:12:20] Speaker 01:
Good morning, Your Honor.

[00:12:21] Speaker 01:
Spencer Schuchard for the United States.

[00:12:23] Speaker 01:
May it please the court?

[00:12:24] Speaker 01:
The agency does not commit automatic reversible legal error when it uses or doesn't use certain magic words.

[00:12:31] Speaker 01:
In this case, we have petitioners identified gap in proof language or futility talked about here just in his argument.

[00:12:39] Speaker 01:
Bring us Rodriguez, the case the petitioner relies in in chief.

[00:12:43] Speaker 01:
disapproved of the gap in proof language because it created an appearance of a heightened standard for the Unable and Willing element.

[00:12:50] Speaker 01:
Specifically, it made it seem as though a police report was either required and if it wasn't filed, then the petitioner would have to justify having not filed it.

[00:13:00] Speaker 01:
Instead, the court clarified that the agency has to look at the evidence as a whole.

[00:13:05] Speaker 01:
What it didn't do was say that the agency couldn't look at police reports or invoke them in coming to this conclusion.

[00:13:11] Speaker 01:
It's quite the opposite.

[00:13:12] Speaker 01:
This is important evidence.

[00:13:14] Speaker 01:
So this gap in proof language survives, as does the futility and dangerousness sub-analysis that comes along with it.

[00:13:21] Speaker 01:
And we can see that in cases that post-8 bring us furutiyah from my brief.

[00:13:25] Speaker 01:
There are others.

[00:13:26] Speaker 01:
And it makes sense that the language would survive because anytime a party has an evidentiary burden, there is literally a gap in proof to fill with the proof of evidence.

[00:13:35] Speaker 01:
The district could do that to show unable and willingness by through her testimony or through her corroborating evidence, expert reports, country condition evidence.

[00:13:44] Speaker 01:
There's plenty of ways to fill the gap, but it does have to be filled.

[00:13:49] Speaker 01:
Even in Bringus, the court concluded that the petitioner's failure to file a report was justified, even though it didn't have to come to this conclusion, but it did conclude that her failure to file a report was justified, or his failure to file a report was justified, because it would have been futile.

[00:14:05] Speaker 01:
it would have been no recourse for him to go to the police.

[00:14:10] Speaker 01:
So it's not about magic words.

[00:14:12] Speaker 01:
It's about making sure the agency didn't ignore or overweight certain evidence.

[00:14:16] Speaker 01:
And the IJ followed, bring us in this case to a T, he acknowledged that Petitioner hadn't filed a police report.

[00:14:23] Speaker 01:
He also correctly acknowledged that she didn't have to under the law.

[00:14:27] Speaker 01:
But once he recognized that she had testified that she couldn't go to the police, in other words, that it would be futile,

[00:14:33] Speaker 01:
He needed to do something with that evidence.

[00:14:35] Speaker 01:
He was not at liberty to ignore it.

[00:14:37] Speaker 01:
And so what he did was he tested the reasonableness of the basis for her beliefs, her belief about how the law didn't protect people like her or her anecdotes about hearing something second or third hand about how some men had been released.

[00:14:49] Speaker 01:
He found that these weren't very rigorous beliefs.

[00:14:52] Speaker 01:
So, and then there's also her very candid and repeated testimony that she does not know

[00:14:56] Speaker 01:
what the police in her town or her area would do with contact.

[00:14:59] Speaker 01:
She was very clear about that despite repeated questioning from her attorney.

[00:15:03] Speaker 01:
So lacking anything that he could give much weight to about her belief in the effectiveness of police, the IJ turned to the only remaining evidence, which was the country condition evidence.

[00:15:12] Speaker 01:
And as I stated in the brief, it's a mixed bag.

[00:15:15] Speaker 01:
I know petitioner kind of

[00:15:17] Speaker 01:
added a bit more color to what was in the brief previously, but what it shows is that Guatemala has a problem with domestic violence and that it is doing things to try and correct that.

[00:15:26] Speaker 01:
And these aren't empty actions.

[00:15:28] Speaker 01:
These aren't just words.

[00:15:29] Speaker 01:
Guatemala has instituted some reforms with some teeth.

[00:15:33] Speaker 01:
The petitioner, as the IJ cited, is not entitled to live in a crime-free society, as none of us are.

[00:15:41] Speaker 01:
But in this case, 1,600 convictions, thousands of prosecutions, including police officers, those are real reforms.

[00:15:48] Speaker 01:
It's not a perfect society.

[00:15:50] Speaker 01:
But under the substantial evidence standard, the IJ did more than enough here.

[00:15:54] Speaker 01:
There's no evidence here compelling the conclusion that the IJ did anything wrong.

[00:15:59] Speaker 01:
And there's no evidence that he did anything other than a textbook application of Bringus in his progeny.

[00:16:04] Speaker 01:
There's no evidence that the IJ left on the table here.

[00:16:08] Speaker 01:
He was very carefully attended to everything that she brought to the table.

[00:16:14] Speaker 01:
And the board affirmed that.

[00:16:15] Speaker 01:
It brought all of that good language when it did her affirmance, as you pointed out, Judge.

[00:16:20] Speaker 01:
The board said that there was no error in the IJ's denial.

[00:16:22] Speaker 01:
He found no clear error in his findings.

[00:16:24] Speaker 01:
It cited to the entirety of the IJ's unabler and willing analysis.

[00:16:28] Speaker 01:
It explicitly affirmed the IJ's treatment of Petitioner's evidence because Petitioner

[00:16:33] Speaker 01:
was not asking for a review of the evidence.

[00:16:34] Speaker 01:
She had cited legal error.

[00:16:36] Speaker 01:
She said he had misapplied the dichotomy between enabler and willing.

[00:16:41] Speaker 01:
So it's asking the court to, or asking the board to review how the IJ applied the standard and it did that.

[00:16:46] Speaker 01:
So all of that comes in.

[00:16:49] Speaker 01:
So

[00:16:51] Speaker 01:
Having done that, having followed Bringus, having not used the magic words, but done the proper mechanism of the application, there's no legal error here and there's no failure of the IJ2 to look at any of the evidence.

[00:17:05] Speaker 01:
As you said, Judge, the agency is not required to inventory the evidence.

[00:17:08] Speaker 01:
It just has to act as though it has reviewed it.

[00:17:10] Speaker 01:
There's nothing in petitioners' specific affidavits that my friend was talking about that undercut anything that the IJ found.

[00:17:21] Speaker 01:
It's just sort of more color in terms of the sympatheticness of her circumstances, but it doesn't actually shed any more light on whether or not the government would be unable or unwilling to help her.

[00:17:30] Speaker 01:
She's very sympathetic.

[00:17:32] Speaker 01:
Her circumstances are sympathetic, but they're not meritorious in terms of filling that gap in proof that she needed to fill.

[00:17:42] Speaker 01:
I could go into more detail on things, but not hearing any questions, I prepared to rest on the briefs.

[00:17:48] Speaker 03:
It appears there are no further questions or no questions.

[00:17:52] Speaker 03:
Thank you.

[00:17:58] Speaker 02:
Your honor, I'd just like to make two points.

[00:18:01] Speaker 02:
So as to the ability, my friend mentioned that there were a hiring of national civil police, and that's in the country conditions evidence.

[00:18:08] Speaker 02:
They have 40,000 national civil police and they hired 4,000 the same year that there was an 8% increase in femicides.

[00:18:17] Speaker 02:
is clear based on the country conditions evidence that police personnel, staffing, police station and handcuffs don't solve the issues with domestic violence.

[00:18:25] Speaker 02:
What solves these issues are specialized training, which that country lacks.

[00:18:30] Speaker 02:
Even medical personnel, who in this country screen women for signs of domestic violence, don't do that in Guatemala because they don't have the specialized training to do so.

[00:18:40] Speaker 02:
This shows that structurally within Guatemala,

[00:18:43] Speaker 02:
There is a complete lack of training to detect these issues and also their customs.

[00:18:48] Speaker 02:
The reason why she didn't go to the police, although she stated she didn't know, which by the way, if you do report an act of domestic violence, you should expect that someone would get arrested.

[00:18:57] Speaker 02:
It shouldn't be an I don't know answer.

[00:18:59] Speaker 02:
That proves my point that the petitioner, she's unsure of the police response.

[00:19:05] Speaker 02:
And not only that, she didn't report it because she stated that she didn't know if the police would take it seriously since she was an unwed mother of children.

[00:19:14] Speaker 02:
From the beginning of Letty's story, when she was 17, she met Francisco and her parents urged her not to be around him.

[00:19:21] Speaker 02:
She decided to move in with him when she was 18 and have children with him.

[00:19:25] Speaker 02:
Throughout that time, her family blamed her

[00:19:28] Speaker 02:
for the abuses that she suffered and her father didn't want to take her back in.

[00:19:31] Speaker 02:
Had the immigration judge considered that evidence and the customs that are prevalent were pervasive in the country with regard to how women are viewed and treated, that would have been definitely a different conclusion.

[00:19:43] Speaker 02:
I think that is substantial evidence that would compel a different conclusion in this particular case.

[00:19:50] Speaker 02:
And those are the points that I'd like to make, Your Honors, and if you have any questions.

[00:19:54] Speaker 03:
Thank you very much.

[00:19:55] Speaker 03:
Thank you, Your Honor.

[00:19:56] Speaker 03:
We thank both counsel for their arguments and the case is submitted and we are adjourned.