[00:00:14] Speaker 00:
like to reserve five minutes for rebuttal.

[00:00:17] Speaker 00:
Mr. Duran's case should be remanded for three reasons.

[00:00:22] Speaker 00:
One, the removal order is invalid.

[00:00:25] Speaker 00:
Two, the motion to continue was denied on an erroneous legal basis.

[00:00:30] Speaker 00:
And three, the CAT analysis applied the wrong standard.

[00:00:34] Speaker 00:
And I'll start with the CAT analysis.

[00:00:37] Speaker 00:
Here, the BIA treated two

[00:00:42] Speaker 00:
Mr. Durand as that treated them individually in the analysis instead of aggregating.

[00:00:49] Speaker 00:
So first, the court looked at the risk he faced as a deportee.

[00:00:53] Speaker 00:
Mr. Durand has been in the United States since he was, I believe, three months old.

[00:00:59] Speaker 01:
Well, it's sort of unique facts because, you know, actually, probably he'd be a dreamer, but for the fact that he had that little attempted murder charge and went to prison.

[00:01:08] Speaker ?:
So he's not a dreamer.

[00:01:14] Speaker 01:
said he hasn't lived in Mexico, and that's not anyone's fault one way or the other, but he's not going to get the benefit of past persecution because as a three-month-old he wasn't persecuted.

[00:01:26] Speaker 01:
So he's got to tell us what, you know, how would you be persecuted.

[00:01:32] Speaker 00:
Correct.

[00:01:33] Speaker 00:
And there is country, excuse me, country conditions evidence that showed deport

[00:02:02] Speaker 03:
there to get cat relief?

[00:02:04] Speaker 03:
Is there anything that would not have that applicable to anyone who had those same two characteristics?

[00:02:12] Speaker 00:
Well, he, the length of time he's been in the U.S.

[00:02:16] Speaker 00:
is significant.

[00:02:17] Speaker 00:
His tattoos are very different.

[00:02:19] Speaker 00:
Not everybody has the same tattoos.

[00:02:21] Speaker 00:
And I think the fact that he is also bisexual increases the risk of harm.

[00:02:25] Speaker 00:
And the BIA didn't look at those two things together.

[00:02:28] Speaker 00:
But just- Now, the tattoos, I kind of

[00:02:32] Speaker 01:
a little skeptical of how they're being portrayed because, you know, Riverside isn't considered the pride of the United States and I looked at those tattoos a little more like gang tattoos.

[00:02:46] Speaker 01:
I don't think he was so happy he was from Riverside.

[00:02:50] Speaker 01:
It looks like he was from a Riverside gang.

[00:02:53] Speaker 00:
Well, I don't know then the record that that's been established

[00:03:00] Speaker 00:
But I think the point is that there's also evidence that people with tattoos are presumed to be forced to work for cartels and things like that.

[00:03:12] Speaker 00:
So I think it's not, is he a gang?

[00:03:15] Speaker 00:
Is he not a gang?

[00:03:16] Speaker 00:
He is vulnerable because he has these tattoos.

[00:03:18] Speaker 00:
He's going to be targeted.

[00:03:20] Speaker 00:
He's a deportee.

[00:03:26] Speaker 00:
in Mexico and that increases the risk and the board just looked at him being a deportee and said because he hasn't established he's at more risk as a deportee than anybody else in Mexico on that issue he doesn't meet his

[00:04:13] Speaker 04:
country condition reports, how he's actually going to be treated.

[00:04:19] Speaker 00:
Well, I think that's always an issue with cat analysis because it's forward-looking future.

[00:04:26] Speaker 00:
It is, in a way, you're talking about a hypothetical risk of torture, and is that risk over 51 percent?

[00:04:32] Speaker 04:
That's the backdrop of some kind of past persecution, even if it's not sufficient as a matter of law to establish past persecution.

[00:04:57] Speaker 00:
There are some places regarding the fact that he's bisexual where there's expanded protections, and I'll talk about that in a second, but I did want to address your first point of your question, is past torture is not a determinative factor.

[00:05:14] Speaker 00:
It's one of the many factors.

[00:05:16] Speaker 04:
I understand that, but what's unique about this case, and I can't remember too many other cases that have had on similar facts,

[00:05:51] Speaker 01:
And they know that he's got these Riverside tattoos.

[00:05:54] Speaker 01:
And they know that his claim of bisexuality.

[00:05:58] Speaker 01:
So I am not sure that that wasn't... You're saying it wasn't considered, but it doesn't seem to me that it wasn't considered.

[00:06:10] Speaker 00:
I think it was considered separately as opposed to together.

[00:06:15] Speaker 00:
So the individual characteristics

[00:06:23] Speaker 00:
considered together.

[00:06:24] Speaker 00:
So even if the court says, well, they did consider all these characteristics, they considered them in separate silos.

[00:06:32] Speaker 00:
So deportee was considered based on the risk compared to the rest of the Mexican population.

[00:06:37] Speaker 03:
Are there magic words?

[00:06:40] Speaker 00:
Well, there are.

[00:06:40] Speaker 03:
So in this regard, what are the magic words that weren't used?

[00:06:45] Speaker 00:
Well, the board said we agree that he did not meet his burden to show he's of

[00:07:02] Speaker 00:
location analysis that Mr. Duran showed he couldn't not relocate to one of these states where there's more protection.

[00:07:28] Speaker 00:
the board does talk about in the aggregate as in at the end they say even in the he didn't meet his burden even in the aggregate but if you're looking at the explicit language of the board and what the analysis that right what you just said seems like it's putting the caught a nail in the coffin but the but the the language in the board's decision shows it was actually contradictory to that so just I guess what I'm saying is just saying in the aggregate doesn't mean you actually did that analysis and I think the

[00:08:14] Speaker 00:
if the words are contradictory in the board decision where the board's two reasons for supporting the denial is one he didn't meet his burden on the issue of deportee based on the country condition evidence and two he didn't show he could not relocate to a state that's more friendly to LGBTQ individuals and so those that those two reasons that the board that those are the two rationales by the board in supporting the denial and those reasons

[00:08:48] Speaker 00:
to show relocations and impossibility.

[00:08:51] Speaker 01:
Okay, but the government does, they put, they say you can relocate and this is how and this is we believe you can relocate.

[00:09:01] Speaker 01:
If anyone chooses to do nothing about it, then that's the evidence that the court has.

[00:09:09] Speaker 01:
He didn't choose to do

[00:09:14] Speaker 01:
in every case that we look at, the way that it comes down is the government says, hey, you can, the country reports say you can relocate in these places.

[00:09:23] Speaker 01:
If he chose to stand on that, which he did, he wants to say that it was an, you know, that why can't the court just say the evidence I have in front of me

[00:09:39] Speaker 01:
those places, so I have to deal with the evidence that I have.

[00:09:43] Speaker 00:
Are we supposed to make up evidence for him?

[00:09:46] Speaker 00:
No, but the distinction is we're looking at what the board did and what the board said, and the board said not you can relocate, the board said you didn't prove that you can't relocate, and the court in, or this court in Xochitl Ximez Vibar, stated that that was an impermissible allocation

[00:10:46] Speaker 00:
that the increasing protections

[00:11:15] Speaker 04:
his challenge to the initial removal order when he failed to exhaust his administrative remedies on that issue.

[00:11:33] Speaker 00:
continuance for an attorney.

[00:11:36] Speaker 00:
But later when he had an attorney, he was represented.

[00:11:39] Speaker 00:
No one ever said let's revisit that.

[00:11:42] Speaker 00:
No, but the IJ misled the attorney in affirmatively stating that Mr. Duran admitted the allegations and conceded removability where he did

[00:12:06] Speaker 00:
The lawyer could have requested it, but the lawyer was relying on the judge, and I don't think that there was a, you know, you would automatically think the judge wasn't being truthful.

[00:12:15] Speaker 03:
But also on your first point, wasn't there a month gap there that he had to get a lawyer?

[00:12:23] Speaker 00:
I believe it was 19 business days.

[00:12:25] Speaker 00:
So he'd only asked for one continuance, and he was given 19 business days, and then

[00:12:40] Speaker 00:
And so because of this error, and then because of the information provided to the attorney, and then he represented himself at the board, he was never able to raise this.

[00:12:54] Speaker 00:
And I think that that's a unique situation where an exception should be made to the exhaustion.

[00:13:03] Speaker 04:
Well, his lawyer didn't raise the subject when he appeared at the second proceeding with counsel.

[00:13:05] Speaker 00:
I believe, I think the lawyer was misled by the judge.

[00:13:08] Speaker 00:
The judge said,

[00:13:11] Speaker 00:
and do a good job representing your client?

[00:13:14] Speaker 00:
No.

[00:13:14] Speaker 00:
I think the immigration judge said, let me bring you up to speed, and said he admitted and conceded.

[00:13:23] Speaker 00:
And in an immigration court, many people, especially when they're represented by attorneys, just admit and concede and then seek asylum.

[00:13:29] Speaker 00:
So I don't think it was something that would have really, frankly, prompted the attorney to say, I'm not sure that's the case.

[00:13:37] Speaker 00:
I'm going to double check and ask.

[00:13:38] Speaker 00:
And then also, I would add, he was detained

[00:13:52] Speaker 00:
to prove so I can't say whether or not there's a question that he was removable because the burden was not alleged as a charge of removability that there was no record to establish that

[00:14:30] Speaker 00:
Well, I think that the attorney could have more specifically set out other reasons.

[00:14:40] Speaker 00:
I mean, the attorney listed those reasons in the motion.

[00:14:44] Speaker 00:
The judge said, look, I didn't read your motion.

[00:14:46] Speaker 00:
The attorney.

[00:15:01] Speaker 01:
reasons had been better.

[00:15:04] Speaker 01:
You didn't call any witnesses at the hearing, even if the reasons were like it would be closer to witnesses, we could talk more.

[00:15:11] Speaker 01:
Didn't do it.

[00:15:12] Speaker 00:
So what it could have should have is your best argument, I guess.

[00:15:17] Speaker 00:
I think our best argument is this was legal error, that there are regulations that said if there's a motion to change venue and the motion change venue led witnesses, attorney, family members, that the court

[00:16:02] Speaker 03:
That's an AR-7.

[00:16:34] Speaker 00:
the board's rationale is the judge denied it on the proper basis that he didn't have jurisdiction over confinement and so the board chooses the wrong basis the board could have said he didn't raise the issues he didn't show prejudice or any of those things but the board just said the judge was correct in denying

[00:17:06] Speaker 00:
I think he argued, I agree with you, he argued in his appeal about the conditions of confinement, but the board didn't limit its review to the conditions of confinement, nor should it have.

[00:17:16] Speaker 00:
It reviewed whether or not the motion to change venue was denied on a proper basis, and the board concluded it was, and that's wrong because

[00:17:42] Speaker 01:
Government.

[00:17:49] Speaker 02:
Good morning.

[00:17:51] Speaker ?:
Good morning.

[00:17:53] Speaker 02:
Good morning, Your Honors.

[00:17:55] Speaker 02:
May it please the Court, Tim Remitz on behalf of the United States Attorney General, that the record is not compelled to the conclusion that the petitioner established a clear probability of torture in Mexico.

[00:18:29] Speaker 02:
If you properly found that even the aggregate.

[00:22:10] Speaker 02:
especially as a matter of entry into the law.

[00:23:08] Speaker 01:
questions.

[00:23:09] Speaker 01:
Thank you.

[00:23:11] Speaker 01:
I hope you feel better.

[00:23:11] Speaker 01:
Thank you.

[00:23:14] Speaker 01:
Much better.

[00:23:15] Speaker 01:
Okay.

[00:23:15] Speaker ?:
Good.

[00:23:16] Speaker 01:
Well, and thank you for not exposing us to germs.

[00:23:18] Speaker 01:
We appreciate that.

[00:23:20] Speaker 01:
I thought people might appreciate that.

[00:23:22] Speaker 01:
Yes, thank you.

[00:23:24] Speaker 01:
All right.

[00:23:25] Speaker 01:
I'll give you one minute for rebuttal.

[00:23:32] Speaker 00:
Thanks, Ernie.

[00:23:33] Speaker 00:
I'll just respond to three points.

[00:23:35] Speaker 00:
One, government council talks

[00:23:41] Speaker 00:
transgender women.

[00:23:42] Speaker 00:
The board's rationale in finding that he didn't face a risk of torture as being a bisexual was based on, like I said, the individual analysis, but also on relocation.

[00:23:54] Speaker 00:
The board didn't discuss, oh, the evidence only showed transgender women, so that is not within the scope.

[00:24:01] Speaker 00:
The second point is the

[00:24:20] Speaker 00:
And then finally, the arbitrary and capricious standard is also when the government does not follow the law or its own regulations, excuse me, the government, the BIA.

[00:24:34] Speaker 00:
And so the BIA here denied a change of venue because it didn't have jurisdiction to move a detention facility, that is not following the regs, which were

[00:25:03] Speaker 04:
narrow motion.

[00:25:45] Speaker 00:
Stupid didn't we?