[00:00:00] Speaker 03:
Proceed.

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

[00:00:01] Speaker 00:
Good morning, your honors.

[00:00:02] Speaker 00:
May it please the court, Jana Walley from Public Council.

[00:00:05] Speaker 03:
Walley, I apologize.

[00:00:06] Speaker 03:
I said Waley.

[00:00:07] Speaker 00:
No problem.

[00:00:08] Speaker 00:
On behalf of petitioner Mr. GC who is observing this argument via live stream, I'd like to reserve three minutes of my time for rebuttal.

[00:00:15] Speaker 03:
Keep your eye on the clock.

[00:00:16] Speaker 03:
We'll try to help you.

[00:00:17] Speaker 00:
Okay, thank you.

[00:00:19] Speaker 00:
Mr. G.C.

[00:00:20] Speaker 00:
came to the United States when he was about 15 years old.

[00:00:23] Speaker 00:
His children and wife are U.S.

[00:00:25] Speaker 00:
citizens.

[00:00:26] Speaker 00:
The agency denied Mr.

[00:00:27] Speaker 00:
G.C.'

[00:00:28] Speaker 00:
's application for deferral of removal under the Convention Against Torture, and I'd like to focus on three major errors in that decision.

[00:00:35] Speaker 00:
First, the agency's finding that Mr. G.C.

[00:00:37] Speaker 00:
would not be tortured by the Salvadoran state.

[00:00:43] Speaker 00:
So I'd like to focus on three major errors.

[00:00:46] Speaker 00:
First, the agency's finding that Mr. GC would not be tortured by the Salvadoran state because he's not a gang member.

[00:00:53] Speaker 00:
Second, the agency's finding that the Salvadoran government would not acquiesce in Mr. GC's torture by gang members.

[00:01:01] Speaker 00:
And third, the agency's failure to aggregate Mr. GC's risk of torture from all sources and for all reasons.

[00:01:07] Speaker 00:
So turning to the first error,

[00:01:11] Speaker 00:
agency found that Mr. G.C.

[00:01:13] Speaker 00:
would not be tortured by the Salvadoran state because he's not a gang member.

[00:01:16] Speaker 00:
The board cited acknowledged country conditions evidence that shows that people who are U.S.

[00:01:25] Speaker 00:
deportees, have U.S.

[00:01:27] Speaker 00:
criminal convictions, and have tattoos are targeted by the Salvadoran government, but found that that did not amount to individualized evidence that Mr. G.C.

[00:01:36] Speaker 00:
would be tortured by the state.

[00:01:38] Speaker 03:
And that's very clear in our case law, is it not?

[00:01:41] Speaker 00:
It's very clear in our case law that, in this court's case law, that country conditions evidence alone can meet an applicant's burden under CAT.

[00:01:51] Speaker 00:
And that membership in a disfavored group that suffers widespread human rights abuses is strong evidence that a petitioner will be tortured.

[00:02:00] Speaker 03:
And I respect your good lawyer.

[00:02:02] Speaker 03:
You want to advocate for your client.

[00:02:04] Speaker 03:
But as you can appreciate, we get lots and lots of claims that sound very much like what you're talking about here.

[00:02:12] Speaker 03:
And the burden is on you to show that there was not substantial evidence before the IJ to determine that there is no individualized threat to your client.

[00:02:28] Speaker 03:
What's your best argument?

[00:02:30] Speaker 03:
aside from the country conditions, which, Frank, don't carry much water with most of us, what's your best argument that your client is individually threatened with no help, basically, from the state, indeed, acquiescence and torture?

[00:02:52] Speaker 00:
I don't think you can separate out the country conditions evidence in this case.

[00:02:55] Speaker 03:
So you're relying entirely on country conditions.

[00:02:57] Speaker 00:
We are not.

[00:02:58] Speaker 00:
So Mr. G.C.

[00:03:00] Speaker 00:
has these characteristics.

[00:03:01] Speaker 00:
That's not in dispute.

[00:03:02] Speaker 03:
I understand that.

[00:03:04] Speaker 03:
But it's all speculation, basically, right?

[00:03:08] Speaker 03:
Most of the time when we have cases that they could show government acquiescence, there's either been

[00:03:15] Speaker 03:
an unwillingness of the police or others to help them when they needed help before or to be directly involved in prior torture.

[00:03:22] Speaker 03:
There's nothing like that here.

[00:03:24] Speaker 03:
What can you point to that would show that the substantial evidence that the IJ claims is in fact insufficient and indeed bogus?

[00:03:35] Speaker 00:
So, um, yes, I think trying to think about how to answer your question.

[00:03:40] Speaker 00:
Um, we believe there are legal errors here that warrant reversal, but also that substantial evidence does show that Mr. G C would be tortured.

[00:03:48] Speaker 00:
So, um, the regulations and this court's case law require that all evidence be considered.

[00:03:53] Speaker 00:
Here, Mr. GC himself was held at gunpoint by gang members the last time he was in El Salvador.

[00:03:59] Speaker 00:
He was held at point blank range and believed he was about to be shot.

[00:04:04] Speaker 00:
He also, the gang subsequently followed him and threatened him where he was staying at his family's home to turn him over or pay them.

[00:04:13] Speaker 00:
He also has many family members who have been killed or targeted by gangs, including his friends.

[00:04:18] Speaker 03:
These are, and again, horrible situations.

[00:04:20] Speaker 03:
I get that.

[00:04:22] Speaker 03:
But these are criminal elements.

[00:04:24] Speaker 03:
This is not the government.

[00:04:26] Speaker 03:
You haven't proved that the government's directly involved in this.

[00:04:29] Speaker 03:
You're talking about criminal elements.

[00:04:30] Speaker 03:
We don't grant relief based upon somebody that's targeted for a criminal purpose.

[00:04:36] Speaker 03:
So what are you relying on here?

[00:04:40] Speaker 00:
So I think there's two parts in there.

[00:04:42] Speaker 00:
One is where we believe the agency was wrong in finding he's not a gang member.

[00:04:49] Speaker 00:
The evidence in the record shows, which includes country conditions evidence and Mr. GC's credible testimony, that the Salvadoran government, there's been a sea change in El Salvador.

[00:05:00] Speaker 00:
The Salvadoran government has imposed the state of exception in 2022, which it has used to suspend due process rights.

[00:05:08] Speaker 00:
It holds hearings en masse.

[00:05:09] Speaker 00:
It targets people.

[00:05:12] Speaker 00:
who are not gang members, and especially at heightened risk, including in Dr. McNamara's expert declaration talks about how people with these three characteristics I've mentioned, so people with tattoos, U.S.

[00:05:23] Speaker 00:
deportees, and people with U.S.

[00:05:24] Speaker 00:
criminal convictions are at heightened risk.

[00:05:26] Speaker 03:
So your argument is that everybody in the country that has those situations is eligible for CAP?

[00:05:33] Speaker 00:
The evidence does suggest that people with any one of those characteristics is that heightened risk how under the state of exception.

[00:05:40] Speaker 00:
However, here, Mr. GC has over three of those three overlapping characteristics that put him at risk.

[00:05:47] Speaker 00:
He has also been he has been misidentified as a gang member.

[00:05:51] Speaker 00:
the last time he was in El Salvador, and that is likely to happen again.

[00:05:54] Speaker 00:
And then I think also here, even if this court does not find that the evidence compels the conclusion, which we feel that it does, that he is entitled to cat relief, he has shown his eligibility

[00:06:08] Speaker 00:
The agency was still required to give reasoned consideration to the evidence in the record and failed to do so here.

[00:06:15] Speaker 00:
So that's a legal error that must be reversed.

[00:06:17] Speaker 04:
Can I ask a question?

[00:06:18] Speaker 04:
I heard you challenging that he, you know, the BIA found that he's not a gang member and he did not have gang-related tattoos.

[00:06:25] Speaker 04:
You're challenging that factual finding?

[00:06:27] Speaker 04:
You're saying he is a gang member?

[00:06:28] Speaker 00:
No, we are challenged.

[00:06:30] Speaker 00:
He is not a gang member.

[00:06:31] Speaker 00:
He has never been a gang member.

[00:06:32] Speaker 04:
He doesn't have gang related tattoos, right?

[00:06:34] Speaker 00:
Correct.

[00:06:36] Speaker 00:
He didn't get any of his tattoos because of any gang membership.

[00:06:39] Speaker 00:
Our contention is that the agency erred in saying that that would protect him.

[00:06:44] Speaker 00:
The fact that he's not actually a gang member would protect him from harm in El Salvador.

[00:06:47] Speaker 00:
The evidence overwhelmingly shows, including in the Department of State's human rights report,

[00:06:52] Speaker 00:
Talks about how people are targeted under the state of exception and tortured and intentionally I thought the whole point of the state of section is they're targeting gang members

[00:07:01] Speaker 00:
They're sweeping up a bunch of people who aren't gang members.

[00:07:03] Speaker 00:
So the state of exception is designed as a crackdown on gangs that happened.

[00:07:07] Speaker 00:
The Bukele administration actually had like an informal pact that's explained in both the Department of State report and Dr. McNamara's declaration and elsewhere that fell apart with the gangs and then they imposed the state of exception.

[00:07:21] Speaker 02:
Doesn't that cut against you because it suggests that the Salvadoran government can protect people in the

[00:07:29] Speaker 02:
situation your client's in, and what I hear you saying is, well, he's at risk of being misidentified and swept into the system, but that seems like a too general a proposition to carry the day here.

[00:07:46] Speaker 00:
Yeah, the evidence is quite, I think, overwhelming and does show this point, even though it seems, it's a very, it's an exceptional state, right?

[00:07:54] Speaker 00:
It's a state of exception.

[00:07:55] Speaker 00:
It's a very extreme situation.

[00:07:56] Speaker 00:
It is interesting in that way that the government does have this state of exception aimed at gang members.

[00:08:05] Speaker 00:
Um, that's kind of like what they say they're doing, but I think the record belies that they're actually, um, that's focused on gang members.

[00:08:13] Speaker 00:
Um, they, gang violence continues to run rampant in El Salvador.

[00:08:18] Speaker 00:
Disappearances are up.

[00:08:19] Speaker 04:
Although I think, I thought, I don't know if this is in the record, but I thought actually crime has gone down in El Salvador because of the state exception.

[00:08:26] Speaker 00:
The confirmed homicide rate has certainly gone down, and Dr. McNamara discusses that.

[00:08:31] Speaker 00:
One of the things he points out is that disappearances have actually increased.

[00:08:34] Speaker 00:
And I think, even though it was before the state of exception, I think one thing that kind of highlights why that might be happening is that the government entered into negotiations with the, which is still the current government, with the gangs in order to reduce the confirmed homicide rate to give a political benefit to the Bukele administration, even while gangs were continuing to authorize

[00:08:55] Speaker 04:
Murders in which a body would not be found and even there's a Department of State indictment against gang leaders in the record that talks about Like the US Department of State has has noted this Yeah I mean really this it does all seem kind of to count against you because it sounds like El Salvador is doing everything they can to protect its citizenry from non-gang from gang members and which includes your client so how is it how are they acquiescing to his torture and

[00:09:22] Speaker 00:
We don't believe it includes our client, the record shows that our client as with these characteristics that he has that he would be swept up under this state of exception I think Dr McNamara states that only 5% of the people of like the 70,000 at the time that this record was created people have been confirmed as gang members.

[00:09:39] Speaker 00:
And then once people are swept up by the government, they're imprisoned.

[00:09:43] Speaker 00:
He would be mixed with gang members.

[00:09:46] Speaker 00:
Prison is intentionally torturous.

[00:09:48] Speaker 00:
Bukele ordered mattresses removed.

[00:09:50] Speaker 00:
People have had to eat food off the floor.

[00:09:52] Speaker 04:
What about his specific characteristics and shows that he would be swept up accidentally?

[00:09:59] Speaker 00:
Um, I don't think it would be accidentally.

[00:10:00] Speaker 00:
I think the record shows that people are intentionally, um, targeted when they, uh, have tattoos, when they, um, us deportees and people with us.

[00:10:10] Speaker 04:
It's in the record that the government sweeps up people with non gang tattoos.

[00:10:15] Speaker 00:
Yes.

[00:10:16] Speaker 00:
And also I think, do you know where that is?

[00:10:17] Speaker 04:
Is that in the country report or.

[00:10:19] Speaker 00:
Um, I believe it is in the country report.

[00:10:21] Speaker 00:
It's in trying to collect sites.

[00:10:23] Speaker 00:
There are so many, um, I think at our, at our opening brief.

[00:10:27] Speaker 00:
Um, so yeah, the section talking about him being targeted, even though he's not a gang member is in our opening brief at 24 to 31.

[00:10:34] Speaker 00:
Um, him being a us deportee with us criminal convictions, he is also at much higher risk than other people in El Salvador with tattoos because, uh, the us government shares, uh, criminal conviction information with the Salvadoran government.

[00:10:48] Speaker 00:
And Dr. McNamara states that he'd almost be certainly to be detained at the airport upon removal.

[00:10:55] Speaker 03:
Council, let me ask you this.

[00:10:58] Speaker 03:
I personally have probably heard 10 substantially identical cases from El Salvador in the last two years.

[00:11:06] Speaker 03:
Have you got things other than CAT that you want to talk to us about?

[00:11:09] Speaker 03:
I think we have your position in mind on CAT.

[00:11:13] Speaker 03:
What's your next best argument for your client?

[00:11:16] Speaker 00:
Um, so I think I'd go to the other legal errors in this case.

[00:11:22] Speaker 03:
Um, so what's the most important one from your perspective?

[00:11:26] Speaker 00:
Okay.

[00:11:26] Speaker 00:
So I'm happy to, um, I think I'd go to the admission of the expert declaration.

[00:11:30] Speaker 00:
I'm also happy to talk about any ICI have limited time.

[00:11:34] Speaker 03:
Okay.

[00:11:34] Speaker 03:
The, the, the IJ clearly considered it, right?

[00:11:39] Speaker 00:
We don't believe the IJ gave it reason consideration.

[00:11:41] Speaker 00:
He did admit it as background country conditions evidence.

[00:11:47] Speaker 00:
He called it relevant and probative information and he did pull some facts from it in his decision, but he did not explain.

[00:11:53] Speaker 00:
So he both said it was probative and relevant and then he didn't explain how he reached an opposite conclusion from the report.

[00:12:02] Speaker 00:
We do believe, so expert evidence does, under Castillo v. Barr, this court has held that the agency should explain when it reaches a different conclusion than expert evidence why that didn't meet a petitioner's burden.

[00:12:15] Speaker 03:
What case here, you think that case says that?

[00:12:18] Speaker 00:
We do think that it supports that the board must explain why expert evidence is insufficient.

[00:12:24] Speaker 00:
The board also has a case, a matter of MA.

[00:12:27] Speaker 03:
This case, he didn't think he was an expert that qualified, but he did refer to his report.

[00:12:33] Speaker 03:
He did, if you will, include it in the analysis.

[00:12:38] Speaker 03:
That's pretty good for you that it got included.

[00:12:41] Speaker 03:
You're suggesting that unless the IJ referred to every portion

[00:12:45] Speaker 03:
of the report and disagreed with what he didn't agree with, it's faulty.

[00:12:51] Speaker 03:
Is that what you're saying?

[00:12:53] Speaker 00:
No, but the immigration judge doesn't have to explain or even, you know, reference every piece of evidence in the record, but this was highly, potentially just positive evidence, and for the judge to pull facts that supported his conclusion.

[00:13:07] Speaker 03:
Well, judges have to be the ultimate fact-finders.

[00:13:10] Speaker 03:
They can't rely just on an expert.

[00:13:13] Speaker 03:
That's not the role of the expert.

[00:13:14] Speaker 03:
They take the expert's information, weigh it in their consideration.

[00:13:18] Speaker 03:
That's all that's required at best, right?

[00:13:22] Speaker 00:
We believe that the, I say I'm running low on time, but we believe that the immigration judge's decision and the board's decision does not evidence reason consideration of this declaration.

[00:13:34] Speaker 03:
You want to save the balance of your time?

[00:13:36] Speaker 00:
Yes, thank you.

[00:13:39] Speaker 03:
Very well, let's hear from Ms.

[00:13:41] Speaker 03:
McKinney for the government.

[00:13:51] Speaker 01:
Good morning, and may it please the Court.

[00:13:53] Speaker 01:
My name is Katherine McKinney, and I represent the Attorney General Merrick Garland in this matter.

[00:13:59] Speaker 01:
Your Honors, this Court should deny the petition for review.

[00:14:02] Speaker 01:
Substantial record evidence supports the agency's determination that the petitioner's evidence fell short of establishing his eligibility for cat deferral, based on his fear of harm from gangs and from the Salvadoran government.

[00:14:15] Speaker 01:
The petitioner did not allege any past harm from Salvadoran public officials, and the threats and extortion he experienced from gangs in the past did not rise to the level of past torture.

[00:14:26] Speaker 01:
Nor has petitioner shown that he more likely than not faces torture upon return to his homeland from gangs or the Salvadoran government due to his status as a deportee with a criminal history.

[00:14:38] Speaker 01:
in tattoos.

[00:14:40] Speaker 01:
As the agency noted, the petitioner in this case has never been a gang member, does not have any gang-related tattoos or a gang-related criminal history.

[00:14:48] Speaker 01:
And these facts weigh against the likelihood that he would face torture in El Salvador were he to be returned.

[00:14:57] Speaker 01:
So the government's position is that substantial record evidence supports the immigration judge and the board's conclusion that he didn't meet his burden of proof.

[00:15:06] Speaker 04:
With respect to... Is there any evidence in the record that shows that El Salvador targets non-gang members with tattoos?

[00:15:15] Speaker 01:
I think that in Dr. McNamara's report, which was admitted as background evidence, not as an export report, there's some reference to individuals being swept up there.

[00:15:27] Speaker 01:
And I think the board, if we look at the board's decision in the record on page five,

[00:15:32] Speaker 01:
acknowledges that the petitioners submitted some country conditions evidence that some individuals were targeted even though they have non-gang related histories and individuals with non-gang related tattoos.

[00:15:44] Speaker 01:
And that's at page five of the board's decision.

[00:15:46] Speaker 01:
I'm sorry, page five of the record.

[00:15:48] Speaker 01:
So I think the board seems to acknowledge that there's some background evidence there, but the background evidence that some individuals without a gang-related history or gang-related tattoos have perhaps been swept up does not in and of itself meet the petitioner's burden in this case.

[00:16:04] Speaker 01:
That's what both the judge and the board found, and the record here before this court doesn't compel a contrary conclusion based on that background country conditions evidence.

[00:16:14] Speaker 04:
Turning to the did he say what who's getting swept up or is it just?

[00:16:18] Speaker 01:
generalized swept up I and again, there was a lot of background in which I I cannot say for certain that it was Specifically your honors question about individuals with tattoos that didn't happen to be gang related I can't speak specifically to that but the board seems to acknowledge that there was some background evidence that people without this history had been swept up but that that didn't meet his burden in this case of showing that

[00:16:43] Speaker 01:
and meeting his burden.

[00:16:47] Speaker 01:
So the record evidence supports the agency's determination that he didn't meet his burden of proof, and it doesn't compel a contrary conclusion.

[00:16:55] Speaker 01:
Turning to his second contention was that the agency's analysis here was not adequate on the cat deferral issue.

[00:17:04] Speaker 01:
And that refers to the aggregation requirement.

[00:17:08] Speaker 01:
This court has said that the agency has to consider

[00:17:11] Speaker 01:
potential sources of torture in the aggregate when a petitioner raises multiple theories.

[00:17:17] Speaker 01:
And in this case, we had multiple theories.

[00:17:19] Speaker 01:
And it's the government's response, as we noted in our brief, that here the agency said enough and that the language used here was similar to that used in Iraheta Martinez, and that's cited in the government's brief.

[00:17:33] Speaker 01:
And there, even though it wasn't a specific adoption of an immigration decision, citing Burbano, what the agency did was said that we, as the board, agree with the immigration judge.

[00:17:45] Speaker 01:
And they used strikingly similar language to that used in Arretheta, what's used here, where they say, we discern no error in the judge's determination that he didn't establish that he more likely than not would be tortured.

[00:17:58] Speaker 01:
And in the Arretheta decision, it was very similar.

[00:18:01] Speaker 01:
We discern no error.

[00:18:02] Speaker 01:
in the judge's finding that he has not shown he would more likely than not face torture and then as a near ahead to

[00:18:09] Speaker 01:
What the board is doing is responding to the arguments raised on appeal.

[00:18:12] Speaker 01:
The board's an appellate body.

[00:18:14] Speaker 01:
The board responds to the arguments raised on appeal.

[00:18:16] Speaker 01:
But they're still expressing their agreement with the immigration judge.

[00:18:21] Speaker 01:
And the immigration judge here explicitly conducted an aggregation analysis.

[00:18:25] Speaker 01:
So it's the government's argument that there's enough here and that it's closer to eraheta.

[00:18:30] Speaker 02:
And I know that in the reply- Is there anything in the record

[00:18:34] Speaker 02:
that might suggest that if an individual is mistakenly swept up because of these identifying characteristics that, you know, you're in this Kafkaesque limbo in prison or, and I've seen the photos from El Salvador, is there any suggestion in the record that there is a process where mistakes can be corrected, some kind of review or judicial tribunal?

[00:19:00] Speaker 01:
And I do believe that in Dr. McNamara's declaration, which was admitted as background evidence, I may not 100 percent, but I do believe that there was reference there to individuals who were eventually released and how long a period of time.

[00:19:13] Speaker 01:
So that would imply then that there was at least some process or that some individual who might be mistakenly

[00:19:19] Speaker 01:
swept up, but the agency, again, this court looks at the facts that the agency cited, and I know that in the immigration judge and the board's decision, their response to that argument was, we acknowledge some of this background country conditions evidence, but you haven't met your burden here in this case to show an individualized risk of torture, and that was the agency's response to that.

[00:19:43] Speaker 04:
So I think I found the McNamara decision part where he says that authorities are especially keen to arrest the supposedly suspected gang members, individuals who have tattoos, criminal history, and or are deportees from the United States, even where there's no evidence at all linking an individual to current gang membership.

[00:20:00] Speaker 04:
And it also says other individuals have been arrested during the state of emergency for simply having tattoos.

[00:20:05] Speaker 04:
So why is that not enough to show a particularized risk of being tortured or being swept up in this?

[00:20:14] Speaker 01:
So there may be background evidence in the record as the agency acknowledges of that, but an individual still has the burden of showing that they more likely than not face an individualized risk of torture in that case.

[00:20:32] Speaker 01:
So that wouldn't, or the agency found, and perhaps on a different set of facts, on a different record,

[00:20:37] Speaker 01:
a different fact pattern here, because here we also had the testimony that he was not, had no gang-related history, was not a gang member, no gang-related tattoos.

[00:20:46] Speaker 01:
Perhaps on a different record, the agency might find differently, but here the question is, does that evidence compel the conclusion?

[00:20:53] Speaker 01:
And it's the government's position that it does not.

[00:20:57] Speaker 01:
And I just wanted to make one more.

[00:20:58] Speaker 01:
Why?

[00:20:58] Speaker 04:
Just because it's speculative to say that he'd be swept up just because he has similar characteristics?

[00:21:03] Speaker 01:
And it is speculative to say that you would be swept up, and that actually leads directly to what I was about to get to.

[00:21:09] Speaker 01:
In the reply brief, the petitioner argues that it's inappropriate for the board to have said your evidence is speculative, citing the JFF case.

[00:21:19] Speaker 01:
A petitioner can't rely on speculative evidence to meet each item in the chain of events to meet your burden of proof.

[00:21:29] Speaker 01:
And the argument there from, I believe it's Velasquez-Semayoa, is that it's inappropriate when conducting an aggregate analysis to cite that

[00:21:38] Speaker 01:
a JFF case, at least that's what the court said in Velasquez.

[00:21:41] Speaker 01:
So it's the government's position that this case is closer to Erejeta and that in Velasquez the other panel of this court didn't say that the agency could never cite to JFF in a case when there's multiple theories.

[00:21:54] Speaker 01:
What they said was that in that case it was inadequate to show that the agency had engaged in a proper analysis and aggregated the risk.

[00:22:02] Speaker 01:
And it's apparent from that decision that it's

[00:22:05] Speaker 01:
that the court was not saying it's never appropriate to cite that because they're distinguishing another case from this court where a panel of this court

[00:22:13] Speaker 01:
did the same thing in Medina Rodriguez, and what the court in Belasquez said was, it's okay that the court in Medina sided to JFF and said that, because there, it was apparent that the appropriate aggregation occurred, because under one of the theories, we found no risk, and then we sided the hypothetical chain of events case law for the second, and then we know that the appropriate aggregation occurred, and it's the government's position here, we know the appropriate aggregation occurred,

[00:22:41] Speaker 01:
because the immigration judge was citing its agreement with the judge who conducted it and then addressing the arguments raised in the appeal.

[00:22:48] Speaker 01:
So that's why we think that's distinguishable.

[00:22:50] Speaker 01:
Sorry.

[00:22:50] Speaker 03:
Ultimately, it gets down to the difficult burden that the McNamara Declaration as background must compel a finding that there's no substantial evidence on the government's part.

[00:23:07] Speaker 03:
Speculative versus actual, that basically your position?

[00:23:11] Speaker 01:
I agree with that, that here it basically boils down to does the evidence, which includes all the background evidence in this case, and there was a lot.

[00:23:20] Speaker 01:
Does that evidence compel the conclusion that he met his burden of proof?

[00:23:24] Speaker 01:
And it's the government position that he didn't.

[00:23:26] Speaker 01:
And with respect to the treatment of the declaration in this case, it's the government's position that an immigration judge has broad discretion on admitting and considering evidence.

[00:23:36] Speaker 01:
And as we cited in our brief, the board has issued some guidance there in matter of MAMZ.

[00:23:41] Speaker 01:
And there, what the board said was that judges have discretion to admit and consider evidence, and that's what the judge did here.

[00:23:49] Speaker 01:
And there's no bright line rule that the opposing party should have the opportunity to cross-examine an expert before it's admitted, but certainly the practice manual generally indicates that that should happen.

[00:24:03] Speaker 01:
So it wasn't an abuse of discretion here for the judge to say, because that didn't happen in this case,

[00:24:08] Speaker 01:
the government didn't have an opportunity to cross-examine the expert.

[00:24:13] Speaker 01:
I'm not admitting it as expert testimony, but I'm still admitting it and I'm still considering it as background evidence.

[00:24:19] Speaker 01:
And then per matter of MAMZ, the weight to be afforded that evidence is again up to the

[00:24:26] Speaker 01:
immigration judge.

[00:24:28] Speaker 01:
And then turning as to whether or not the judge here clearly considered the report.

[00:24:33] Speaker 01:
He mentions the report, both at the beginning of decision and in his discussion of CAT.

[00:24:38] Speaker 01:
And he also says that I've considered all the evidence, whether or not I've explicitly discussed every single fact in that.

[00:24:46] Speaker 01:
And then the final point with respect to Dr. McNamara's opinion, there's a difference

[00:24:53] Speaker 01:
here, because here what the court is looking at is the agency's predictive findings.

[00:24:59] Speaker 01:
What is more likely than not to happen to this individual if they're returned to their homeland?

[00:25:03] Speaker 01:
And the board has said, in a matter of MAMZ, speaking specifically with regard to expert testimony, it's still up to the trier fact, the judge in this case, to make those fact findings.

[00:25:15] Speaker 01:
And the judge can weigh the evidence and doesn't have to accept

[00:25:19] Speaker 01:
the factual findings, the opinions of the expert, even when the evidence is admitted as expert testimony.

[00:25:25] Speaker 01:
And here, of course, it was admitted as background evidence.

[00:25:29] Speaker 01:
So if the court has no further questions, the government would rest on the brief.

[00:25:33] Speaker 03:
Very well.

[00:25:33] Speaker 03:
Thank you.

[00:25:34] Speaker 01:
Thank you.

[00:25:35] Speaker 03:
All right.

[00:25:38] Speaker 03:
Ms.

[00:25:38] Speaker 03:
Walley, we have some rebuttal time.

[00:25:44] Speaker 00:
Thank you, your honor.

[00:25:46] Speaker 00:
So going to the question about where the record supports that people would be swept up if they're not actually gang members, our brief does have more extensive sites, but I just wanted to provide the one from the United States Department of State's human rights report.

[00:26:01] Speaker 00:
I think it's in the record twice, but on 496, it talks about how security forces frequently arrest persons for game memberships based solely on anonymous denunciations, having tattoos, having any prior contact with the criminal justice system.

[00:26:17] Speaker 00:
Or even just a suspicious appearance, but so there are a lot of people being targeted, but I think mr. GC's characteristics It's well supported in the record and it compels the conclusion that with his characteristics He would be detained at the airport and then swept up under the state about my question that the air might be corrected there's some process for correction of the air by the El Salvador and authorities

[00:26:40] Speaker 00:
I might have missed that question.

[00:26:42] Speaker 02:
I'm sorry that there might actually for the for the accidental detainee there might be a way within the system for him to get released.

[00:26:50] Speaker 00:
Unfortunately the country conditions show that the government is I think there's a line I forget where it is that they're not even trying to distinguish actual gang membership or even figure out if a tattoo is a gang tattoo or not and due process people are being subjected to hearings like en masse with I think hundreds of people so the government's making no effort

[00:27:08] Speaker 00:
It kind of has this like broad policy that makes it look like it's taking these steps against gangs But I think the evidence shows that it's not trying to correct that error So I don't think the evidence supports that would happen.

[00:27:21] Speaker 03:
So bottom line your position is that the even if we take as true McNamara's statement that this is happening

[00:27:33] Speaker 03:
that that compels, it's a general statement, that that compels a decision that the BIA's findings with respect to your client have to be basically ignored.

[00:27:47] Speaker 03:
Is that correct?

[00:27:48] Speaker 00:
Yes, cases like this court and cases like Bromfield and Kamalthus has held that when a petitioner shows they have certain characteristics, that's strong evidence that they would be tortured if that group.

[00:27:59] Speaker 03:
Well, everybody in El Salvador that has your client's characteristics can get into the United States based on a cat claim, based on a Dr. McNamara declaration, is that right?

[00:28:10] Speaker 00:
No, Your Honor, we don't think so.

[00:28:11] Speaker 00:
We think the question of eligibility for cat is a separate question.

[00:28:14] Speaker 00:
And here, Mr. G.C.

[00:28:15] Speaker 00:
has been misidentified as a gang member in El Salvador in the past.

[00:28:19] Speaker 03:
I'm sorry.

[00:28:19] Speaker 03:
It's something with the identical position.

[00:28:21] Speaker 03:
To me, it's a startling position, because you can involve thousands and thousands of people, because a lot of people in El Salvador have tattoos.

[00:28:29] Speaker 03:
But you seem to be suggesting that everybody in the country could get cat benefits based on what you're saying.

[00:28:39] Speaker 03:
Is that right?

[00:28:40] Speaker 00:
We don't agree with that because Mr. G.C.

[00:28:41] Speaker 00:
has several characteristics.

[00:28:43] Speaker 00:
I think I mentioned this.

[00:28:44] Speaker 03:
The people who have the same characteristics.

[00:28:46] Speaker 03:
They can all get cat benefits.

[00:28:48] Speaker 00:
I think if they're being deported from El Salvador and they have U.S.

[00:28:51] Speaker 00:
criminal convictions, the evidence suggests that they are very likely to be detained and imprisoned by the Salvadoran government.

[00:28:58] Speaker 00:
Here, I think the court doesn't need to reach that.

[00:29:01] Speaker 00:
If the court I see is not convinced that the record compels a contrary conclusion, here the agency should have considered that evidence.

[00:29:10] Speaker 00:
The agency did not point to any evidence supporting its finding that people who aren't actually gang members would not be targeted.

[00:29:18] Speaker 03:
Okay, your time is up.

[00:29:19] Speaker 03:
Let me ask my colleagues whether either has a question.

[00:29:22] Speaker 03:
Thanks to you all for your argument.

[00:29:23] Speaker 03:
We appreciate it.

[00:29:24] Speaker 03:
The case of ECG versus Garland is submitted and the court stands adjourned for the day.