[00:00:07] Speaker 00:
May it please the court.

[00:00:09] Speaker 00:
My name is Taufer Thompson, counsel for petitioner Edgar Petista.

[00:00:13] Speaker 02:
OK, it works now.

[00:00:16] Speaker 00:
Go right ahead.

[00:00:17] Speaker 00:
I would like to reserve two minutes for rebuttal.

[00:00:20] Speaker 00:
Your honors, the adverse credibility determination was reached in error.

[00:00:24] Speaker 00:
This case should be reversed and remanded so the Board of Immigration Appeals can review petitioner's claims in light of his credible testimony.

[00:00:31] Speaker 00:
The immigration judge's decision states four grounds for making the adverse credibility determination.

[00:00:37] Speaker 00:
finding Mr. Batista's testimony inconsistent, his story implausible, that his answers to the court's questions were vague and inconsistent, vague and non-responsive, and lastly, that his entire testimony was speculative.

[00:00:52] Speaker 00:
But each of these is wrong, and none of them are supported by substantial evidence.

[00:00:56] Speaker 00:
First, the immigration judge's decision quibbles over tiki-taka inconsistencies regarding the May 15 attack and the details surrounding certain phone calls that followed.

[00:01:06] Speaker 04:
Can I talk to you about one of the phone calls?

[00:01:09] Speaker 04:
There's a phone call in which there's an inconsistency that the IJ pointed out about whether the phone was handed to, you know the inconsistency I'm talking about, whether his mother told him something or whether the police officer took the phone and spoke to him directly.

[00:01:26] Speaker 04:
Could you go to that one?

[00:01:28] Speaker 00:
Yes, Your Honor.

[00:01:29] Speaker 00:
With respect to that inconsistency, it is slightly unclear the circumstances surrounding

[00:01:35] Speaker 00:
that particular phone call.

[00:01:37] Speaker 00:
However, Mr. Battista's testimony has been consistent across all parts of the underlying administrative proceedings about receiving a phone call

[00:01:47] Speaker 00:
from the commander of the Arapuado police, and that the commander threatened him that he would kill him if he returned.

[00:01:55] Speaker 02:
You're not answering the question the judge asked you.

[00:01:58] Speaker 02:
That is a different circumstance.

[00:02:01] Speaker 02:
Don't use adjectives like tiki-taki, right?

[00:02:05] Speaker 02:
Go to the facts.

[00:02:06] Speaker 02:
Answer the judge's question about the inconsistencies as to the mother and the telephone call, not the call from the policeman.

[00:02:16] Speaker 00:
My apologies, Your Honor.

[00:02:18] Speaker 00:
I misunderstood which one exactly we were talking about.

[00:02:21] Speaker 00:
With respect to the phone call with the policeman at Mr. Bautista's mother, there was an inconsistency alleged in the immigration judge's decision regarding whether the officer actually took the phone from his mother or whether she was relaying what the police told her when she called them.

[00:02:43] Speaker 00:
Right.

[00:02:45] Speaker 00:
He has never been inconsistent that what was communicated to him, one, was his mother spoke to the police.

[00:02:57] Speaker 00:
He was always consistent that his family was being surveilled or they believed they were being surveilled.

[00:03:06] Speaker 00:
Mr. Batista explained this inconsistency by saying he had been asked multiple different times about different parts of his testimony, and he may have been confused.

[00:03:17] Speaker 00:
Further, he also told the court that he has a speech impediment.

[00:03:20] Speaker 00:
He stutters.

[00:03:22] Speaker 00:
And that might have been the reason for that particular inconsistency.

[00:03:25] Speaker 04:
Was he speaking through an interpreter?

[00:03:27] Speaker 00:
He was, Your Honor.

[00:03:28] Speaker 04:
Okay.

[00:03:30] Speaker 04:
That's what I'm a little concerned about, because we're trying to figure out inconsistency between his testimony, which I understood to have been through an interpreter, and the

[00:03:39] Speaker 04:
written application, which is typed out very neatly and clearly not prepared by him.

[00:03:44] Speaker 00:
Correct.

[00:03:45] Speaker 00:
Yes, Your Honor.

[00:03:45] Speaker 00:
He gave, so in his reasonable fear interview that was, and so his reasonable fear interview was conducted over the phone with an interpreter.

[00:03:54] Speaker 04:
Over the phone with an interpreter.

[00:03:56] Speaker 04:
Yes, Your Honor.

[00:03:57] Speaker 00:
And the immigration officer is the one that type out the responses that we see in the reasonable fear interview.

[00:04:06] Speaker 00:
His I-589 application was also prepared by Mr. Battista as best he could, and then at the hearing was revised with his counsel's advice before the immigration judge.

[00:04:27] Speaker 00:
That said, the record shows that Mr. Bautista has been consistent about the most important facts that go to his torture and withholding claims.

[00:04:36] Speaker 00:
He's always said that his family has opposed the mayor's corruption.

[00:04:40] Speaker 00:
And his father is even going so far as to file a complaint in the state capital.

[00:04:46] Speaker 00:
He always says that he and his brother witnessed illegal activity on May 8.

[00:04:51] Speaker 00:
He's always said that Benjamin filmed that incident.

[00:04:54] Speaker 00:
He's always said the brothers were detained a week later by who they believe were Irriguado police.

[00:04:59] Speaker 00:
And he's always said that he feared that he would be killed at that time or thereafter.

[00:05:04] Speaker 00:
And furthermore, it's undisputed that his brother, Benjamin, has not been seen since May 15th of 2015.

[00:05:11] Speaker 04:
I have another question.

[00:05:13] Speaker 04:
Yes, Your Honor.

[00:05:14] Speaker 04:
Forgive me for interrupting so much, but you don't have a lot of time.

[00:05:18] Speaker 04:
You're explaining what's consistent.

[00:05:21] Speaker 04:
And of course, the IJs, we're looking at it from the other perspective, what's inconsistent, right, or what may be.

[00:05:26] Speaker 04:
And there's the inconsistency about his departure.

[00:05:34] Speaker 04:
And he says, and the typed version on the IE 599, he says very clearly that he hid in his aunt's house for that period of time, for some period of time.

[00:05:42] Speaker 04:
And then the question is, when did he arrive in Nogales?

[00:05:46] Speaker 04:
in July or in August, you know the inconsistency I'm referring to?

[00:05:49] Speaker 00:
Yes, Your Honor.

[00:05:50] Speaker 04:
So I can't figure out, you know, on the one hand, the August and the July are just, they're not written out words, they're just the numbers, seven and eight, right?

[00:05:58] Speaker 04:
Because I can imagine that could be a typo.

[00:06:00] Speaker 04:
But if that's the case, then I think there's an unaccounted for period of time of about a month, because he said he took the train to get to Nogales.

[00:06:12] Speaker 04:
So what do I do about that unaccounted for time?

[00:06:16] Speaker 00:
Well, Your Honor, I think we look to the immigration judge's decision.

[00:06:19] Speaker 00:
And she noted that this is a minor inconsistency.

[00:06:22] Speaker 00:
So the exact amount of time it took Mr. Bautista to reach Nogales, or reach the US from Nogales, is not material.

[00:06:34] Speaker 04:
Should I consider the discrepancy between July or August as his arrival date in Nogales?

[00:06:40] Speaker 04:
Or should I consider that the record shows that there's an unaccounted for period of time there?

[00:06:46] Speaker 00:
Your Honor, I think that you should consider the first proposition.

[00:06:52] Speaker 04:
Because the IJ did?

[00:06:53] Speaker 00:
Correct.

[00:06:54] Speaker 00:
Alright.

[00:06:58] Speaker 00:
So despite evidence about what has been consistent in the record, and that do go directly to Mr. Bautista's claims, I'd like to point the court's attention to some particular egregious errors with respect to the facts.

[00:07:11] Speaker 00:
For example, when discussing the May 15th attack, the decision identified material discrepancies regarding whether there were actual Uruguay police officers, whether the brothers were actually held at gunpoint or not, and whether Benjamin gave his phone to the police before or after he was beaten.

[00:07:28] Speaker 00:
However, these details are immaterial because in all versions of the attack, these men had guns and Mr. Batista has said that he feared for his life.

[00:07:38] Speaker 00:
Turning to the second point, the immigration judge found Mr. Batista's story implausible.

[00:07:44] Speaker 00:
But evidence in the record supports his recounting of the corruption he's witnessed in his hometown.

[00:07:49] Speaker 00:
For example, the decision improperly discounts country conditions evidence in the form of the 2018 Mexico Human Rights Report

[00:07:57] Speaker 00:
and seems to disregard other relevant evidence in the form of a 2016 article from the Mexico Enforcement Actions Packet.

[00:08:05] Speaker 00:
The decision reasoned that because the Human Rights Report doesn't specifically discuss the town of Irpado and detail the mayor of Irpado's corrupt activities, that there's no evidence that corroborates Mr. Batista's story.

[00:08:21] Speaker 00:
But this is incorrect.

[00:08:23] Speaker 00:
The Mexico Enforcement Packet first identifies that there is a large cartel presence in the state of Guanajuato in which the town of Irupuerto is located.

[00:08:35] Speaker 00:
Second, because the 2018 Human Rights Report actually describes the same symptoms of corruption present in the cartel controlled reasons that Mr. Batista has described, his testimony has been corroborated.

[00:08:51] Speaker 00:
Additionally,

[00:08:54] Speaker 00:
The evidence actually makes Mr. Batista's story more plausible, not less.

[00:09:02] Speaker 00:
That the mayor would bribe his residents with offers of housing, schooling, food, and then turn around in the same breath and threaten to jail them if they did not protest the Mexican Navy's attempts to locate El Morrow is consistent with the type of corruption that is outlined in the 2018 human rights report.

[00:09:23] Speaker 00:
that Mayor Ortiz could and would undertake these coercive tactics against his constituents to aid and abet El Mara in escaping from Irraparado is consistent with somebody who was a politician that has been compromised by the cartels.

[00:09:42] Speaker 00:
It also makes more sense for the immigration judge's decision also took issue with the mayor on the one hand attempting to shelter

[00:09:53] Speaker 00:
El Morrow and then ordering the police to search for him.

[00:09:57] Speaker 00:
This is also consistent with a person that is being bribed.

[00:10:09] Speaker 00:
So your honors, because the immigration judge's decision regarding the average credibility determination was reached in error, this court respectfully requests that this court reverse Aramaz so that Mr. Bautista's credible testimony can be evaluated by the BIA.

[00:10:26] Speaker 04:
Thank you, counsel.

[00:10:27] Speaker 04:
We'll hear from opposing counsel.

[00:10:28] Speaker 04:
You have used all your time.

[00:10:29] Speaker 04:
When you come back, we'll put a minute on the clock for rebuttal.

[00:10:31] Speaker 04:
Thank you very much.

[00:10:32] Speaker 04:
You bet.

[00:10:39] Speaker 01:
Good morning, Your Honors.

[00:10:39] Speaker 01:
May it please the court, Jesse Carlson, for the government?

[00:10:43] Speaker 01:
Your Honors, it's the government's position that even assuming a credibility determination had been made in petitioner's favor, which the board did not, the petitioner effectively raised all of his substantive claims by not raising them with the board in his briefing to the agency.

[00:11:00] Speaker 01:
So to the extent, you know, any of these claims are being addressed on their merits now, you know, that's certainly not appropriate based on the board's determination.

[00:11:13] Speaker 01:
So even if, you know, going to the credibility discussion that you just had, again, the board also did not address credibility in any great detail given the fact that petitioner only mentioned one inconsistency

[00:11:25] Speaker 01:
in the briefing to the board, and the board did talk about that and certainly did go ahead and make a determination regarding removability based on the IG's decision, but the board qualified and carved out the areas where Petitioner was deficient in his briefing.

[00:11:40] Speaker 01:
So it's the government's position that there is,

[00:11:46] Speaker 03:
There was a waiver effectively and that there is no need to address the merits At this time counsel there seem to be a couple of layers of your waiver argument if I'm if I'm following you One is that you think he didn't do he didn't call sufficient attention to seeking relief in the form of withholding of removal or Relief under the convention against torture is that that's part of it correct, okay?

[00:12:10] Speaker 03:
And then second that the challenge to the credibility finding was not developed sufficiently

[00:12:16] Speaker 01:
Correct.

[00:12:17] Speaker 03:
So let's separate those two questions.

[00:12:19] Speaker 03:
Sure.

[00:12:20] Speaker 03:
I had thought that in his brief to the BIA, while it is not fulsome exactly and standards in the Court of Appeals might lead us to treat issues as forfeited as well, that he did at least lead by saying he was seeking relief from of all forms of relief and just did not develop those as well as he should have.

[00:12:45] Speaker 01:
Your honor what petitioners council did before the board was tried to adopt statements that were made in the hearing before the IJ and tried to construe those statements as as being sufficient to challenge the merits of the withholding and protection under the commission of torture claims.

[00:13:01] Speaker 01:
However, even if you look at that specific area of the transcript.

[00:13:05] Speaker 01:
of the hearing and what counsel was referring to as a closing statement, which I think is somewhat subjective.

[00:13:11] Speaker 01:
But if you look at what reasonably might be construed in that manner, you will see that there was no substantive challenge or arguments made regarding withholding claims or CAT.

[00:13:21] Speaker 01:
There was no discussion about particular social groups, no discussion about torture.

[00:13:25] Speaker 03:
You know, really effectively that was- For CAT, he doesn't need a particular social group, right?

[00:13:29] Speaker 01:
Oh, correct.

[00:13:30] Speaker 01:
But specifically with regard to the cat claims, there was really no discussion on that as well.

[00:13:34] Speaker 01:
It was more of a credibility, more on credibility effect.

[00:13:37] Speaker 03:
Right.

[00:13:38] Speaker 03:
But given the content of the credibility, the content of his testimony, if it were to be deemed credible, the logic for people who know immigration law is not hard to follow towards either asylum he's not eligible for, but either towards withholding or convention against torture relief

[00:13:59] Speaker 03:
On the credibility finding, did he, before the board, at least assert that the IJ had been incorrect under the so-called totality of the circumstances?

[00:14:16] Speaker 01:
In the briefing before the board, credibility was discussed, and perhaps it could be construed in that manner.

[00:14:22] Speaker 01:
However, he focused on one inconsistency, which was regarding the sequence of events, and failed to mention, I think there were at least, I want to say eight or nine.

[00:14:31] Speaker 03:
Please don't hold me to that.

[00:14:33] Speaker 03:
There are a count of about 18.

[00:14:34] Speaker 01:
There were many.

[00:14:34] Speaker 01:
And he did not address any of the others.

[00:14:37] Speaker 01:
And so the board recognized that in its decision.

[00:14:40] Speaker 01:
laid out kind of the board essentially tracked the briefing I would I would assert that he provided to the board by saying you know in addressing each of kind of those areas the credibility and then the substantive Cat and withholding claims and so The board did its job to address those issues and then with regard to the government's briefing in this case We had made a couple of jurisdiction.

[00:15:00] Speaker 01:
We made a jurisdictional claim that was withdrawn as you're aware and then the additional discussion regarding exhaustion and waiver and so

[00:15:08] Speaker 01:
With regard to credibility, you know, we made a pretty broad statement on that, given the board's kind of lean treatment of that issue.

[00:15:16] Speaker 03:
On the question of credibility, one sort of category of criticisms of Mr. Bautista's testimony was that he was speculating.

[00:15:25] Speaker 03:
Now, as I understand it, an immigration judge is not allowed to speculate.

[00:15:30] Speaker 03:
We're not supposed to speculate.

[00:15:32] Speaker 03:
But at least in my experience as a trial judge, it's not at all unusual to see witnesses speculate if they are not warned away from doing so.

[00:15:43] Speaker 03:
They're trying to do their best to answer the question, even if it's a little bit of guesswork.

[00:15:49] Speaker 03:
Is that a reasonable way to see what's going on here?

[00:15:54] Speaker 01:
Your Honor, I think, you know, obviously, you know, these factual determinations are made by the, you know, the agency based on the totality of the circumstances.

[00:16:02] Speaker 01:
And I, in this case, you know, petitioner made many, many statements and there were many statements that were inconsistent with each other.

[00:16:11] Speaker 01:
So we're not, we're looking at volume, I think, and I assume that

[00:16:14] Speaker 03:
The agency was looking at the fact that there were many statements and that there were so many inconsistencies as opposed to just- I'm focusing less on the inconsistencies, and we can talk about those as well, but on this notion that, well, I find he's not credible because he's speculating.

[00:16:32] Speaker 01:
Well, you know, again, I think as far as speculation is concerned, you know, witnesses in this situation may do that, you know, given the fact that they're trying to tell the story.

[00:16:49] Speaker 01:
something that judges and agency would not like to see.

[00:16:51] Speaker 01:
Maybe I'm not understanding your question.

[00:16:56] Speaker 03:
My colleagues here have seen a lot more immigration cases than I have, but we do get them in the middle part of the country.

[00:17:05] Speaker 03:
Obviously there's a great deal of deference given to immigration judges on these issues, but it's not unlimited.

[00:17:12] Speaker 03:
And there can be instances where an immigration judge winds up picking on minor details, minor inconsistencies, and in a way that just does not seem fair to the person seeking immigration relief.

[00:17:30] Speaker 03:
They're unusual cases, and I'm struggling with whether this is one.

[00:17:37] Speaker 03:
We have the category of the speculation.

[00:17:40] Speaker 03:
That doesn't carry much weight with me.

[00:17:44] Speaker 03:
We have the notion that this is implausible.

[00:17:48] Speaker 03:
I'm not sure I understand what's so implausible about the idea that a small-town mayor has been corrupted by drug cartels and is And that the police are threatening and disappearing people Yes, your honor the I think I think again back to the issue of you know what the IJ was looking at this is a very thorough if you've seen I'm sure you've seen many IJ opinions all of you and

[00:18:12] Speaker 01:
on the bench and this one in fact was very thorough and actually very detailed compared to some others that I've seen personally.

[00:18:19] Speaker 04:
But part of the problem we've got is that it is thorough and detailed and in some cases demonstrably incorrect.

[00:18:26] Speaker 04:
There are places where the IJ is wrong about misstating or identifying places where the IJ says the record says X and the record actually says Y. So what do we do with that?

[00:18:38] Speaker 01:
Well, Your Honor, again, I think you just, you have to weigh that against the substantial evidence standard, which is a very high bar for petitioner in, you know, if there is a compelling reason to disagree with the agency here, I mean, that is certainly the standard that it would be weighed against, which is a very high bar.

[00:18:53] Speaker 01:
And so when you look at the totality of what the agency did here, but even more importantly,

[00:18:58] Speaker 01:
We have to look at what the board did here for this particular case.

[00:19:01] Speaker 01:
And in this case, because Petitioner did not adequately challenge those findings by the IJ, he effectively waived them.

[00:19:10] Speaker 01:
And that is what we're looking at as the government in this case and what we would request the court to look at.

[00:19:16] Speaker 01:
So even assuming there are parts of the IJ's decision that you may not agree with, you have to look at it collectively and as a whole.

[00:19:22] Speaker 01:
and whether it meets that substantial evidence standard.

[00:19:25] Speaker 04:
I'm going to interrupt if I can, because you only have a minute left.

[00:19:29] Speaker 04:
What do you think is the strongest support for the adverse credibility determination?

[00:19:35] Speaker 04:
We're looking to see if there's evidence that does support that finding.

[00:19:39] Speaker 04:
So what do you think are the strongest supports?

[00:19:42] Speaker 01:
Well, again, just to restate, we don't think that the court should get to that finding based on the board's decision.

[00:19:48] Speaker 01:
I appreciate that, counsel.

[00:19:48] Speaker 01:
But if the court were to go into that... Please get to it.

[00:19:50] Speaker 01:
Sure, if the court were to go in that direction.

[00:19:52] Speaker 01:
Certainly, you know, the sequence, there are lots of sequence and events that are contradictory to each other as far as dates and times.

[00:20:01] Speaker 01:
And, you know, I think most people kind of have a general sense of when they do things and, you know, there is some leeway for somebody to not remember everything correctly.

[00:20:09] Speaker 01:
But I think in this case, there are just so many situations where petitioner was unaware.

[00:20:13] Speaker 02:
Counsel, you're not answering the question the judge asked you.

[00:20:16] Speaker 02:
What is the inconsistency which you think is the strongest point?

[00:20:22] Speaker 01:
One single inconsistency?

[00:20:24] Speaker 01:
Yes.

[00:20:26] Speaker 01:
Well, with regard to that, I would say one single inconsistency would be with regard to the sequence of events with the incident with his brother, which seems to be the strongest issue.

[00:20:35] Speaker 02:
The intel of his brother?

[00:20:38] Speaker 01:
The incident that involved his brother, which is the only incident of alleged harm in this case.

[00:20:46] Speaker 03:
Namely, the disappearance of the brother nine years ago.

[00:20:49] Speaker 01:
what happened in that situation specifically.

[00:20:52] Speaker 02:
And what was the inconsistency?

[00:20:55] Speaker 01:
He talks about, you know, he had a hard time describing exactly what happened in that situation.

[00:21:00] Speaker 01:
And he talked about the sequence of events there as being different.

[00:21:04] Speaker 02:
May I ask you once again, what was the inconsistency?

[00:21:07] Speaker 02:
What was case A and what was case B?

[00:21:09] Speaker 01:
I'd have to look back specifically.

[00:21:11] Speaker 01:
I think one was when he talked to the police officer or what the police officer did to the brother and when with regard to a gun and whether it was pulled out or not.

[00:21:20] Speaker 01:
But I'd have to look back.

[00:21:20] Speaker 01:
But again, the government did not brief those particular issues because the government did not believe that this court should be addressing them.

[00:21:31] Speaker 01:
Do you have any other questions?

[00:21:32] Speaker 04:
Do not.

[00:21:33] Speaker 04:
No, thank you counsel.

[00:21:35] Speaker 01:
Okay.

[00:21:35] Speaker 00:
Thank you very much and the government respectfully requests that the court deny the petition We'll hear from opposing counsel for one minute, please Thank your honors the government said that the appellant That petitioners brief before the BIA was insufficient

[00:21:55] Speaker 00:
However, the immigration judges decision at page 49 states that the country condition reports confirms the human rights issues that exist in Mexico, the killings, the corruptions, the forced disappearances, and torture.

[00:22:08] Speaker 00:
which is sometimes in coordination with criminal organizations.

[00:22:12] Speaker 00:
But the court found that such evidence is not enough to overcome Mr. Bautista's incredible testimony.

[00:22:17] Speaker 00:
This shows that the erroneous adverse credibility determination was the sole basis for denying his cap protection claims.

[00:22:24] Speaker 00:
I'd like to leave the court with this quote from Kermalthus versus INS, where it recognized that it should not be comfortable with allowing a negative credibility determination in the asylum context to wash over a torture client.

[00:22:35] Speaker 00:
This caution was certainly proper in that case and applies with just as much force in Mr. Bautista's case.

[00:22:40] Speaker 00:
When Mr. Bautista's testimony is credited, as it should be, he's officially demonstrated he will be tortured, and the BIA's ruling should be reversed and remanded so that the BIA can consider the record in full.

[00:22:51] Speaker 00:
Thank you, Your Honors.

[00:22:52] Speaker 00:
Thank you both.

[00:22:53] Speaker 04:
We'll take that case under advisement and move on to the next case on the calendar, please.