[00:00:01] Speaker 01:
All right, Council, you will each have five minutes, and you'll keep track of your own time.

[00:00:06] Speaker 01:
Ms.

[00:00:06] Speaker 01:
Ayala?

[00:00:07] Speaker 03:
Okay.

[00:00:07] Speaker 03:
You mean 15?

[00:00:08] Speaker 01:
I'm sorry.

[00:00:09] Speaker 01:
I'm sorry.

[00:00:09] Speaker 01:
15 minutes.

[00:00:10] Speaker 01:
Okay.

[00:00:11] Speaker 01:
What did I say?

[00:00:11] Speaker 01:
Five.

[00:00:12] Speaker 01:
Five?

[00:00:13] Speaker 01:
Oh, that's... Sorry.

[00:00:14] Speaker 01:
That's okay.

[00:00:14] Speaker 01:
15 minutes.

[00:00:16] Speaker 01:
Okay.

[00:00:16] Speaker 01:
You may begin when you're ready.

[00:00:18] Speaker 03:
Yes, I'd like to reserve four minutes for rebuttal, if that's okay.

[00:00:22] Speaker 03:
May it please the Court, Shabana Ayala on behalf of Mr. Osvaldo Dominguez-Ojeda, the Petitioner.

[00:00:29] Speaker 03:
Today we ask the court to grant the petition for review and remand the case to the immigration judge to vacate the asylum officer's negative reasonable fear decision.

[00:00:39] Speaker 03:
Mr. Ojeda was severely harmed in Peru.

[00:00:46] Speaker 03:
He was thrown stones at him.

[00:00:48] Speaker 03:
He was rushed by a mob.

[00:00:50] Speaker 03:
He was hit in the back of his head.

[00:00:53] Speaker 03:
The mob kicked his dog.

[00:00:57] Speaker 03:
He was threatened with a funeral card put on his knees.

[00:01:00] Speaker 03:
And there was a fire started at his house.

[00:01:03] Speaker 03:
All of these cumulatively, the harm there could qualify as persecution.

[00:01:10] Speaker 03:
But the issue that he did not disclose in his initial reasonable fear interview was a rape.

[00:01:17] Speaker 03:
And it is material.

[00:01:19] Speaker 03:
because a rape would push the level of harm into the torture realm.

[00:01:26] Speaker 03:
And so because he didn't disclose the rape, the asylum officer didn't, it didn't find that there was acquiescence, but also there was, there wasn't enough harm.

[00:01:36] Speaker 03:
So.

[00:01:38] Speaker 04:
Counsel, I have one other question along the

[00:01:40] Speaker 04:
these lines.

[00:01:41] Speaker 04:
The IJ also refused to consider a country conditions report.

[00:01:45] Speaker 04:
How would that potentially have altered the analysis?

[00:01:50] Speaker 03:
Exactly, Your Honor.

[00:01:51] Speaker 03:
The country conditions report showed great civil unrest in Peru.

[00:01:57] Speaker 03:
Additionally, they're in the executive summary of that 2022 human rights report from the Department of State.

[00:02:04] Speaker 03:
It talks about

[00:02:05] Speaker 03:
corruption and a pervasive perception of impunity.

[00:02:10] Speaker 03:
And Mr. Dominguez-Ojeda specifically used those words, corruption.

[00:02:15] Speaker 03:
in his reasonable fear interview.

[00:02:17] Speaker 03:
So it would have changed the analysis regarding government acquiescence.

[00:02:24] Speaker 03:
So that is relevant.

[00:02:25] Speaker 03:
And I think the main issue in this case, the way that I see it, is the issue of the de novo review.

[00:02:32] Speaker 03:
De novo is not mentioned in the regulations.

[00:02:37] Speaker 03:
The regulations just merely say there is a review by the immigration judge, including and then it lists the government's documents

[00:02:45] Speaker 03:
But the de novo language comes from a memo from the chief immigration judge from 1999.

[00:02:53] Speaker 03:
And so I guess the issue is, is the review de novo?

[00:02:58] Speaker 03:
Because it's not described as such in the regulations.

[00:03:02] Speaker 03:
And then if it is a de novo review, can people present more evidence?

[00:03:07] Speaker 03:
And there is a conflict between Bartolome versus Sessions

[00:03:13] Speaker 03:
It's Alvarado Herrera versus Garland because in Bartolome versus Sessions, the Ninth Circuit did allow a motion to reopen to be considered by the court in remanded specifically finding that it was an abuse of discretion to deny a motion to reopen that was filed afterwards.

[00:03:32] Speaker 04:
Alvarado Herrera doesn't destroy that, does it?

[00:03:39] Speaker 04:
the immigration judge to accept additional evidence and testimony?

[00:03:44] Speaker 03:
It does, but it limits it, and it talks about the court serving as more like an appellate role rather than accepting new evidence.

[00:03:56] Speaker 03:
And the problem with that... I apologize for interrupting.

[00:04:00] Speaker 02:
No, it's okay.

[00:04:01] Speaker 02:
I want you to touch upon that issue in particular.

[00:04:04] Speaker 02:
So is it your understanding that the IJ didn't have

[00:04:09] Speaker 02:
the right to accept more evidence?

[00:04:12] Speaker 03:
That's what the IJA decided.

[00:04:14] Speaker 03:
I disagree that he did and should have accepted the evidence.

[00:04:21] Speaker 04:
So is your argument that he had to accept the evidence or that he had discretion and abused his discretion?

[00:04:28] Speaker 04:
Or didn't exercise it because he said he couldn't?

[00:04:32] Speaker 03:
My argument would be that he should, he must have accepted the evidence.

[00:04:37] Speaker 03:
There's some cases, which I'm going to be filing a 28-J letter about this, and it's regarding credibility, so it's not about this particular issue.

[00:04:45] Speaker 03:
But there's three cases in the Ninth Circuit which talk about the fact that a sexual assault that is disclosed later, that's not disclosed during a credible fear interview or asylum fear, should not be the basis for a negative credible fear finding.

[00:05:00] Speaker 04:
I guess I apologize to Judge Diabla for interrupting your interruption.

[00:05:07] Speaker 04:
I have trouble understanding why there is, in your view, a disconnect between the more recent case in Bartolome, which says, quote, although an IJ may allow an alien to submit evidence to support his or her claim, the IJ is not required to do so, and then it cites the regulations.

[00:05:28] Speaker 04:
And that seems to be what Alvarado Herrera says as well.

[00:05:32] Speaker 04:
So I don't understand your view that there's a conflict.

[00:05:37] Speaker 03:
Well, the judge interpreted Alvarado Herrera to mean that he could not accept.

[00:05:42] Speaker 04:
Right.

[00:05:43] Speaker 04:
But the two cases seem to say the same thing, that it's up to the IJ to exercise discretion.

[00:05:50] Speaker 04:
And I understood your argument to be that this IJ misunderstood that and thought that he was forbidden.

[00:05:57] Speaker 04:
Right.

[00:05:58] Speaker 04:
Okay.

[00:05:58] Speaker 04:
Yes.

[00:06:01] Speaker 04:
I'm sorry.

[00:06:02] Speaker 03:
I just wanted to talk about the importance of allowing people to submit additional evidence because the, for instance, in this case, the petitioner was pro se with the asylum office.

[00:06:17] Speaker 03:
When people get these reasonable fear interviews conducted, they're in the detention center.

[00:06:21] Speaker 03:
It's been a couple of days of entering the United States.

[00:06:26] Speaker 03:
It's by telephone.

[00:06:28] Speaker 03:
So the asylum officer is either in Virginia or Los Angeles, and that's just not a conducive environment for someone to disclose a sexual assault.

[00:06:41] Speaker 03:
And so when someone within then another only couple days is able to speak with an attorney and disclose that matter, that's something that I believe the judge should have considered.

[00:06:56] Speaker 01:
Ms.

[00:06:57] Speaker 01:
Ayala,

[00:06:57] Speaker 01:
I.J.

[00:06:58] Speaker 01:
had just said, I will not be considering this new evidence of the rape or the country conditions report.

[00:07:06] Speaker 01:
Would that have been enough under our case law that says that the I.J.

[00:07:13] Speaker 01:
in its discretion can decide not to accept new evidence, doesn't need to state a reason for that?

[00:07:19] Speaker 03:
Well, I think he would have needed to have an analysis of why

[00:07:25] Speaker 03:
why it's not an abuse of discretion to admit the new evidence.

[00:07:30] Speaker 01:
What legal authority do you have for that position that you're taking, that he would have had to explain why it's not an abuse of discretion for him not to consider the new evidence?

[00:07:43] Speaker 03:
Well, under Bartolome versus Sessions, the court did recognize, while the reasonable fear process is a streamlined process,

[00:07:55] Speaker 03:
It is, there are due process protections that are afforded to people in that process.

[00:08:05] Speaker 03:
And I think it would be superfluous if the judges don't take those.

[00:08:13] Speaker 01:
How do we know when NIJ is exercising his or her discretion in denying the consideration of new evidence?

[00:08:22] Speaker 03:
Well, they should state

[00:08:23] Speaker 03:
So in their decision.

[00:08:25] Speaker 01:
And I'm asking you, what's the case that tells us that that's the standard?

[00:08:29] Speaker 03:
I don't believe there is a case, Your Honor.

[00:08:38] Speaker 02:
So, Counsel, I know numerous times the IJ stated that he could not consider evidence that was not provided to the asylum officer.

[00:08:46] Speaker 02:
Is that correct?

[00:08:48] Speaker 03:
Yes.

[00:08:49] Speaker 03:
And I do want to also just note that the

[00:08:53] Speaker 03:
Petitioner was found to be credible by the asylum office and the IJ didn't disturb that credibility issue.

[00:09:00] Speaker 03:
So it's not a matter of him not believing what he was saying.

[00:09:05] Speaker 02:
Maybe I just didn't make my question as clear.

[00:09:08] Speaker 02:
So the IJ again stated numerous times, I can't consider evidence it wasn't before the asylum officer.

[00:09:14] Speaker 02:
Is it your position that that is an accurate statement?

[00:09:18] Speaker 03:
That's what the judge said, and I disagree with that, that he can accept evidence as part of his discretion.

[00:09:24] Speaker 03:
And I think in this situation, he should have given the serious.

[00:09:30] Speaker 03:
It's your position that he had to.

[00:09:33] Speaker 03:
Well, maybe I misstated my position.

[00:09:37] Speaker 03:
He should have.

[00:09:39] Speaker 03:
in terms of exercising his discretion, I think that it is an abuse of discretion and he should have.

[00:09:45] Speaker 04:
But we're one step before that.

[00:09:47] Speaker 04:
If he refused to exercise discretion believing that he had none, then we would have to allow that exercise.

[00:09:55] Speaker 04:
So it seems like premature to say what would or would not be an abuse if the person thought about it and weighed the options.

[00:10:06] Speaker 04:
Yes, I agree.

[00:10:09] Speaker 01:
Okay.

[00:10:10] Speaker 01:
Thank you.

[00:10:11] Speaker 01:
Would you like to reserve the balance of your time for rebuttal?

[00:10:13] Speaker 01:
Yes, I would.

[00:10:15] Speaker 01:
Mr. Robbins.

[00:10:30] Speaker 00:
May it please the court.

[00:10:31] Speaker 00:
Good morning to all of you.

[00:10:32] Speaker 00:
My name is Jonathan Robbins, and I'm here on behalf of the respondent, Mara Garland, the United States Attorney General.

[00:10:38] Speaker 00:
The key question before the court today is whether the record compels reversal of the agency's negative reasonable fear determination.

[00:10:45] Speaker 00:
And it seems like your honors want to know a little bit about whether the immigration judge thought he had the discretion to consider the new record.

[00:10:51] Speaker 04:
Well, to me, it's pretty clear that he thought he didn't.

[00:10:53] Speaker 04:
I mean, one quote is, I don't believe I can review something the asylum officer did not have the ability to even address.

[00:11:00] Speaker 04:
That's the first of several of these statements.

[00:11:04] Speaker 04:
And he just said, I can't think about that.

[00:11:07] Speaker 04:
And that's wrong, isn't it?

[00:11:09] Speaker 00:
It is wrong, and I agree with you the language does suggest that.

[00:11:12] Speaker 00:
But I do think it comes up in context where he does acknowledge that he does have the discretion.

[00:11:17] Speaker 04:
Well, he cites the right case, but he doesn't apply it.

[00:11:20] Speaker 04:
I mean, he cites the case, and then he says these things over and over and over again, saying, and I don't really see another way to read it except as saying,

[00:11:30] Speaker 04:
I'm not going to admit this, quote, because it doesn't appear that any of those documents were considered by the asylum officer.

[00:11:38] Speaker 04:
That's the only reason it's given over and over.

[00:11:40] Speaker 04:
I won't look at this because the asylum officer didn't.

[00:11:44] Speaker 00:
Well, Your Honor, he did cite the case, but he also cited the case that the proposition that the case stood for.

[00:11:50] Speaker 00:
He did acknowledge that he did have the power that he said he'd made but he'd not.

[00:11:54] Speaker 04:
When you read this, do you actually

[00:11:56] Speaker 04:
Do you think that he thought he was able to exercise his discretion to allow these documents if it seemed like the fair thing to do?

[00:12:04] Speaker 04:
Do you think that that's what this means?

[00:12:06] Speaker 00:
I do, because I think the immigration judge was inarticulately trying to make a distinction between taking evidence that hadn't been considered by the immigration judge and taking additional evidence of something that had been raised before the immigration judge.

[00:12:19] Speaker 00:
I admit it's inarticulate, and the use of a term fundamentally unfair confuses the issue.

[00:12:23] Speaker 04:
Well, yes, but these things are not, and he says in another place, quote, when I'm reviewing the asylum officer's decision, all I can do is review what the officer had when they made that decision, end quote.

[00:12:38] Speaker 04:
That's not an exercise of discretion, it seems to me.

[00:12:41] Speaker 00:
Well, Your Honor, even if you think that this is an error,

[00:12:45] Speaker 00:
There's several problems.

[00:12:46] Speaker 00:
First of all, it would be harmless error because the immigration judge didn't stop.

[00:12:49] Speaker 04:
How do we know that?

[00:12:50] Speaker 04:
How do we know that?

[00:12:51] Speaker 04:
Because if told that this is permissible to take these things in,

[00:12:57] Speaker 04:
How do we know what the decision would be?

[00:12:59] Speaker 04:
We were speculating.

[00:13:00] Speaker 00:
Because we're not speculating.

[00:13:02] Speaker 00:
It's in the record.

[00:13:02] Speaker 00:
The immigration judge didn't stop there.

[00:13:04] Speaker 00:
The immigration judge, after hearing him explain that he had been embarrassed to disclose the sexual assault, specifically explained that even if he were to consider the sexual assault, it wouldn't have made a difference in the case.

[00:13:16] Speaker 01:
But you know, isn't it, I'm troubled by your comment that it would be harmless error even if we assumed that he didn't exercise his discretion because

[00:13:25] Speaker 01:
If we were to determine that he did not exercise his discretion, which he, by through those statements that some of my colleagues have referenced, isn't that legal error and that alone then requires the IJA to consider the consideration of the new evidence and to actually exercise his discretion?

[00:13:46] Speaker 01:
I mean, that's legal error.

[00:13:47] Speaker 01:
We don't then move to whether or not it's harmless, do we?

[00:13:51] Speaker 01:
And if we do, what is your best case for us to undergo

[00:13:55] Speaker 01:
essentially what is a harmless error analysis as opposed to granting relief for the legal error.

[00:14:02] Speaker 00:
Well, the court doesn't send an error back and send a case back to resolve an error unless it can change the outcome of the case.

[00:14:08] Speaker 04:
Isn't it typical if an agency has discretion that it refuses to exercise, don't we ordinarily just send it back for the exercise of discretion without going any further?

[00:14:21] Speaker 00:
Well, it would if it would make a difference in the case, Your Honor, but my point is here, we have on the record the immigration judges.

[00:14:27] Speaker 01:
You're saying that, but I would like to know what case that is in this context where an IJ has failed to exercise the discretion, so simply doesn't understand that they have the ability to exercise discretion in reviewing new evidence.

[00:14:46] Speaker 01:
doesn't understand that, doesn't exercise their discretion.

[00:14:49] Speaker 01:
That's legal error at that point.

[00:14:51] Speaker 01:
What's your best authority?

[00:14:53] Speaker 01:
for us to then have to, that we would undergo essentially a harmless error analysis.

[00:14:59] Speaker 00:
There is no authority either way.

[00:15:00] Speaker 00:
The court has not addressed it in this context.

[00:15:02] Speaker 01:
The only case that... In fact, we have cases that do address the legal error issue.

[00:15:07] Speaker 01:
If there's a legal error, that is enough to grant relief, right?

[00:15:10] Speaker 00:
That's true, but this court's precedent has said that due process does not mandate a right to present evidence in these review hearings.

[00:15:17] Speaker 00:
Specifically in Alvarado Herrera, the court said, quote,

[00:15:20] Speaker 00:
Due process does not mandate the right to present new evidence to an appellate tribunal when a litigant has been afforded a reasonable opportunity to present evidence to the first instance decision.

[00:15:29] Speaker 04:
It doesn't require it, but it permits it if in the discretion that needs to be exercised while knowing you have it,

[00:15:37] Speaker 04:
And I also have a question about your assertion, even if we can reach it, that this is harmless error, because at AR-19, the judge says, I have no idea why you were raped or if you were raped, and all of that could have a basis to make you eligible for asylum or not.

[00:15:57] Speaker 04:
But, and then he goes on to say, but you didn't tell this to the asylum officer, and that's why

[00:16:03] Speaker 04:
all I can do is review what the officer had.

[00:16:06] Speaker 04:
So I don't know why that would necessarily be harmless, even under your analysis.

[00:16:12] Speaker 00:
Because the immigration judge was explaining that the petitioner was not denied the full hearing because of a failure to establish harm.

[00:16:23] Speaker 00:
The immigration judge is making the point, it doesn't matter.

[00:16:25] Speaker 00:
Yes, suffering a sexual harm may make it so that you've suffered harm rising to the level of persecution.

[00:16:31] Speaker 00:
But he wasn't denied relief on that basis.

[00:16:35] Speaker 00:
He was denied relief based on nexus and based on a government unwillingness or inability to control and for cat protection because of government acquiescence.

[00:16:42] Speaker 00:
And the evidence he sought to submit didn't touch that issue.

[00:16:45] Speaker 00:
And the immigration judge after the immigration judge pointed that out, he asked to hear from counsel.

[00:16:51] Speaker 00:
And counsel in the argument to the immigration judge didn't argue how the sexual assault would change the nexus analysis.

[00:16:58] Speaker 00:
and actually conceded the point on CAT and said, well, yes, it's true that the government wasn't aware of it, which is fatal to the CAT application because in order to demonstrate acquiescence, you have to show that the government was aware of the harm and breached a legal duty to intervene.

[00:17:13] Speaker 00:
So the immigration judge said, even if I consider this additional harm, that doesn't resolve the dispositive issues in the case.

[00:17:20] Speaker 00:
The asylum officer didn't deny a full hearing based on a failure to show the requisite harm.

[00:17:28] Speaker 00:
And even today, the petitioner has only argued that the sexual assault adds to the level of harm.

[00:17:33] Speaker 00:
That's not the basis why he was denied his claim.

[00:17:36] Speaker 00:
So it's true that I could certainly understand why somebody would be reluctant to disclose a sexual assault in an asylum review hearing.

[00:17:46] Speaker 00:
squander your opportunity to present evidence when you were supposed to.

[00:17:49] Speaker 00:
And you find yourself before an appellate tribunal.

[00:17:52] Speaker 00:
You have to do more than just explain why you didn't raise it.

[00:17:55] Speaker 00:
Maybe Petitioner has a compelling reason why he didn't raise it.

[00:17:57] Speaker 00:
You have to show that the evidence would make a difference.

[00:18:00] Speaker 00:
And if you don't show that the evidence would make a difference, no appellate fact finder is going to send a case back or consider new evidence.

[00:18:05] Speaker 00:
It doesn't change the outcome of the case.

[00:18:07] Speaker 00:
I mean, petitioner here has essentially conceded today that the only reason they wanted to introduce this evidence of the sexual assault was to show that there was more harm suffered.

[00:18:16] Speaker 00:
That doesn't resolve the nexus issue.

[00:18:18] Speaker 04:
It doesn't resolve the, you know... The cat claim doesn't require nexus, does it?

[00:18:23] Speaker 00:
No, but it does require acquiescence.

[00:18:25] Speaker 00:
And again, the petitioner conceded to the IJ that the government wasn't aware of the rape because he didn't report it.

[00:18:32] Speaker 00:
So how can you show acquiescence if you can't show that the government was aware of the problem and either turned a blind eye toward or consented or acquiesced to it?

[00:18:41] Speaker 00:
So the petitioner essentially conceded that the cat claim couldn't be met when given an opportunity to argue about why the immigration judge should consider this additional evidence of sexual assault.

[00:18:51] Speaker 01:
Let me ask you a question, and it's the same question I asked your friend on the other side.

[00:18:56] Speaker 01:
If the I.J.

[00:18:56] Speaker 01:
had simply said, I am not going to consider or I will not consider this additional evidence of the sexual assault, would that have been enough under our case law to defer to the judgment or the discretion of the I.J.

[00:19:12] Speaker 01:
to not consider the new evidence?

[00:19:14] Speaker 00:
Yes.

[00:19:14] Speaker 01:
Okay.

[00:19:15] Speaker 01:
So those are not the facts of this case.

[00:19:16] Speaker 01:
So we have additional statements.

[00:19:20] Speaker 01:
How are we to know when an IJ is actually exercising their discretion?

[00:19:25] Speaker 01:
And if we have a case like this where there are statements that are made that indicate otherwise, is that enough?

[00:19:32] Speaker 00:
Well, when you, okay, well, let's start with the authority, okay?

[00:19:35] Speaker 00:
There's no authority in the regulations, and the regulations are the only authority for the reasonable fear proceedings.

[00:19:41] Speaker 00:
There's nothing here that sets forth a standard for what the immigration judge has to do in considering whether to take new evidence.

[00:19:46] Speaker 00:
We're talking about something that has no

[00:19:48] Speaker 00:
judicially reviewable standard.

[00:19:51] Speaker 00:
It's not like, for example, a continuance in the regulation that says the IJ may grant continuance for good cause.

[00:19:56] Speaker 00:
So the regulation provides a standard that the court can look at.

[00:19:59] Speaker 00:
There's nothing like that here.

[00:20:00] Speaker 00:
The regulations don't speak to evidence, and it's really because it's not supposed to be an evidentiary hearing.

[00:20:06] Speaker 00:
I know that the courts have said that the IJs may do it, and sometimes the IJs do do it, usually not to consider something that wasn't raised before.

[00:20:12] Speaker 00:
It's usually to flesh out something that's already been raised and clarify a particular issue.

[00:20:18] Speaker 00:
When I read the context, I grant you that the IJ used language that made it seem like he didn't have discretion.

[00:20:24] Speaker 00:
But he also used language that acknowledged that he did have discretion.

[00:20:27] Speaker 00:
And when you read it in context, it looks like what the immigration judge was trying to make a distinction between was between evidence presented that should have been about something wholly new that wasn't raised,

[00:20:39] Speaker 00:
versus testimony that just simply clarifies something that was already raised beforehand.

[00:20:44] Speaker 00:
I'll grant you the IJU's language that made it very confusing using the fundamentally unfair language.

[00:20:49] Speaker 00:
I think the reason the immigration judge was talking about unfairly, as bizarre as this may sound, I think he was talking about saying it wouldn't be fair to overturn what an asylum officer did based on something that the asylum officer didn't have in front of him.

[00:21:02] Speaker 04:
So does due process require fairness to the

[00:21:05] Speaker 04:
asylum officer?

[00:21:06] Speaker 00:
Or does it require fairness to the person whose fate is at stake?

[00:21:11] Speaker 00:
It doesn't require that, Your Honor.

[00:21:13] Speaker 00:
I want to make that clear.

[00:21:13] Speaker 00:
That's why I said it was bizarre.

[00:21:15] Speaker 00:
But remember that these are oral proceedings.

[00:21:18] Speaker 00:
When the immigration judge was talking about this, they're not writing down a decision.

[00:21:21] Speaker 00:
They're just sort of having a discussion.

[00:21:22] Speaker 00:
And I think the point that the immigration judge was making is saying,

[00:21:25] Speaker 00:
What you're trying to present is something that should have been presented to the asylum officer.

[00:21:29] Speaker 00:
This isn't the taking of additional evidence on something that you've already talked about.

[00:21:33] Speaker 00:
And I think that's the distinction that the immigration judge was making.

[00:21:36] Speaker 00:
I grant you the language here makes it confusing.

[00:21:39] Speaker 00:
But given that the immigration judge said that after acknowledging that he already had the discretion, he didn't just cite the case, Your Honor.

[00:21:45] Speaker 00:
He cited the proposition the case stood for and used the language, I may but need not accept the evidence.

[00:21:51] Speaker 04:
So for the- That's in the written decision.

[00:21:53] Speaker 00:
What's that?

[00:21:53] Speaker 04:
That's in the written decision, but the transcript... It's also in the transcript, I believe, Your Honor.

[00:21:58] Speaker 04:
Well, it may be, but it just seems to me... Well, we've been over this, so...

[00:22:03] Speaker 00:
It says in the record on page 14, he talks about Alvarado Herrera and it says, it squarely addressed immigration judges can but do not have to consider new evidence or testimony in reasonable fear proceedings.

[00:22:15] Speaker 00:
So the immigration judge plainly acknowledged that the case law said he had discretion.

[00:22:19] Speaker 00:
So when you understand what he says after that, I don't think he's actually saying that he doesn't have discretion.

[00:22:25] Speaker 00:
I think what he's trying to make the distinction about the type of evidence that the petitioner was trying to present.

[00:22:30] Speaker 00:
that he was presenting something wholly new that hadn't been presented before the asylum officer versus when immigration judges usually take evidence in, I want to make this clear, a hearing that's not supposed to be an evidentiary hearing, when they do it, it's usually to clarify something that's already been raised to the asylum officer.

[00:22:47] Speaker 00:
And that's, I think, what the immigration judge was having trouble with here.

[00:22:50] Speaker 00:
And that's, I think, why he was refusing to take the additional evidence.

[00:22:53] Speaker 00:
Of course, he goes on to say that evidence doesn't matter anyway because even if I were to consider it, it doesn't resolve the key questions.

[00:23:01] Speaker 00:
Nexus, government willingness and inability to control, and acquiescence.

[00:23:05] Speaker 00:
Even if you credit the petitioner and add this harm and say that it's harm rising to the level of persecution, just being a victim of a sexual assault doesn't automatically make you a refugee or entitled to cat protection.

[00:23:16] Speaker 00:
There are elements that have to be met.

[00:23:17] Speaker 00:
And the petitioner, even today, has not argued that it changes those three key elements.

[00:23:23] Speaker 00:
That's critical.

[00:23:24] Speaker 00:
So why is an immigration judge going to consider new evidence that doesn't change the outcome of a case?

[00:23:29] Speaker 00:
You have to make a case, especially if you're before an appellate tribunal, who doesn't have to take that new evidence.

[00:23:35] Speaker 00:
And so for that reason, getting back to that harmless error, even if the court were to send it back for the IJ to exercise its discretion and say that he must accept this evidence of sexual assault, it doesn't change the outcome.

[00:23:48] Speaker 00:
So I see that I'm running low on time.

[00:23:50] Speaker 00:
I'm happy to answer any more questions before the court.

[00:23:53] Speaker 01:
No, thank you, counsel.

[00:23:55] Speaker 00:
OK.

[00:23:55] Speaker 00:
Thank you very much for your time, Your Honors.

[00:24:04] Speaker 03:
Thank you.

[00:24:04] Speaker 03:
I just would contest the characterization of our argument.

[00:24:11] Speaker 03:
that there's no acquiescence here of the government.

[00:24:15] Speaker 03:
First of all, I just wanted to say that there is, the purpose of the reasonable fear process is a screening process and it's to weed out frivolous cases.

[00:24:25] Speaker 03:
So the issues raised by the government, they're substantial enough and there wasn't a lot of evidence presented to the asylum office in order for them to adequately resolve the acquiescence issue.

[00:24:37] Speaker 03:
Under Ornelas Chavez,

[00:24:39] Speaker 03:
A CAT claimant is not required to report to the, even report to the authorities at all if doing so would be futile.

[00:24:49] Speaker 03:
Additionally, there's no actual knowledge of the specific torturous act that's necessary, just the general torturous activity and that's in Zang B. versus Ashcroft.

[00:25:00] Speaker 03:
So I do think there is a substantial,

[00:25:03] Speaker 03:
claim for acquiescence here.

[00:25:05] Speaker 03:
The petitioner does talk about that specifically in his interview with the asylum office.

[00:25:10] Speaker 03:
He talks about corruption.

[00:25:12] Speaker 03:
He talks about connection between Peru, Libre, and the government, that there is a connection between them that would endanger him and not be able to seek protection.

[00:25:25] Speaker 03:
So I don't think that this is a frivolous claim, and I ask that the court

[00:25:33] Speaker 03:
send this back for the IJ to vacate?

[00:25:37] Speaker 04:
I want to clarify one thing.

[00:25:40] Speaker 04:
This type of proceeding, if it had gone the other way, would not have been in itself the full-fledged asylum hearing.

[00:25:50] Speaker 04:
Am I right about that?

[00:25:51] Speaker 04:
It would just send it on?

[00:25:53] Speaker 04:
Exactly.

[00:25:54] Speaker 04:
Yeah.

[00:25:55] Speaker 04:
So the only issue before this IJ was whether there's enough

[00:26:00] Speaker 04:
to warrant a full hearing.

[00:26:03] Speaker 03:
Exactly.

[00:26:04] Speaker 04:
So it doesn't certainly guarantee that your client would prevail.

[00:26:07] Speaker 03:
Exactly, Your Honor.

[00:26:08] Speaker 03:
Okay.

[00:26:09] Speaker 03:
That's the exact procedural posture of the case.

[00:26:12] Speaker 03:
Additionally, under the regulation, in terms of I think this particular area, Jay is confused when he talks about fairness to the asylum office because I think fairness to the petitioner is what is primarily should be in front of his

[00:26:28] Speaker 03:
consideration, but the regulations talk about what is going to be considered by the IJ and that the regulations specifically say including.

[00:26:38] Speaker 03:
They don't say specifically that it would only be the officer's notes, the summary of facts, the materials that form the basis of the negative decision.

[00:26:47] Speaker 03:
It's including those documents.

[00:26:49] Speaker 03:
So when people are in these reasonable fear proceedings,

[00:26:55] Speaker 03:
They are often the first thing that happens is put under oath by the IJ to present evidence, or excuse me, testimony, which is considered as evidence.

[00:27:05] Speaker 03:
So I don't know if the court has any more questions.

[00:27:08] Speaker 01:
I don't think so.

[00:27:09] Speaker 01:
Thank you very much, counsel.

[00:27:11] Speaker 01:
I'd like to thank counsel for their argument today.

[00:27:13] Speaker 01:
That concludes our arguments for this morning.

[00:27:16] Speaker 01:
Thank you to our court staff.

[00:27:17] Speaker 01:
And we will stand in recess.