[00:00:01] Speaker 01:
Thank you, Your Honor.

[00:00:02] Speaker 01:
May it please the Court, my name is Andrew Hagood, and I represent Adrian Esteban Lopez.

[00:00:07] Speaker 01:
We'll be reserving five minutes for rebuttal, which will be handled by my co-counsel, Joshua Patton.

[00:00:13] Speaker 01:
This Court should vacate the agency's decision for two reasons.

[00:00:18] Speaker 01:
First, if returned to Mexico,

[00:00:20] Speaker 01:
Adrian will likely be tortured with the acquiescence of a Mexican public official.

[00:00:25] Speaker 01:
And second, the agency applied the wrong standard in evaluating Adrian's motion to reopen.

[00:00:33] Speaker 01:
Turning to the merits of the cat claim, the agency erred in several respects.

[00:00:37] Speaker 01:
First, they failed to aggregate all of the different sources of torture that Adrian faces.

[00:00:43] Speaker 01:
They did not address at all his claimed risk of torture from former gang associates.

[00:00:48] Speaker 01:
The only mention of those former gang associates was to note that he faced no harm while he was incarcerated in prison, but that does nothing to speak to the harm that he'll face if returned to Mexico.

[00:01:01] Speaker 02:
Mr. Lopez, didn't he return to Ensenada three to five times without any events?

[00:01:10] Speaker 01:
That's correct, Your Honor, but that occurred between 16 and 18 years ago, which does not speak to the current conditions in Ensenada.

[00:01:19] Speaker 02:
He was already tattooed when he went there, right?

[00:01:21] Speaker 02:
He was already a member of the gang.

[00:01:24] Speaker 01:
So that's exactly correct, Turner.

[00:01:27] Speaker 01:
He had some tattoos at the time, and he was a member of the gang.

[00:01:30] Speaker 01:
But that actually speaks to an important distinction of his case, which is that he's no longer a member of the gang.

[00:01:36] Speaker 01:
So the risks that he faces when he was a member of the gang versus no longer being a member of the gang are distinct risks.

[00:01:43] Speaker 01:
So that's a material difference in his circumstances from his previous visits to his current visits.

[00:01:48] Speaker 04:
Counsel, my notes show, and I need to get this clarified,

[00:01:51] Speaker 04:
that he was last there in 2005, I think, and that he was tattooed but only on his fingers at that time.

[00:01:57] Speaker 04:
Is that right?

[00:01:58] Speaker 01:
I believe that's correct, Your Honor.

[00:02:01] Speaker 04:
For me, maybe your co-counsel can help clarify.

[00:02:06] Speaker 04:
But for me, this is a very significant point.

[00:02:08] Speaker 04:
So I want to be very clear about that.

[00:02:10] Speaker 04:
My follow-up question, just so you can clarify later, is whether those, I think, so A, I think that tattoos at that time were just on his fingers.

[00:02:19] Speaker 04:
And B, it would be helpful for me to know if there were, I don't see any photos in the records.

[00:02:23] Speaker 04:
I'm not sure whether those were gang-related tattoos.

[00:02:27] Speaker 04:
I don't want to take up any more of your time on that now, but if you can clarify later, that would be helpful.

[00:02:32] Speaker 01:
Certainly, Your Honor.

[00:02:33] Speaker 01:
We will do that.

[00:02:37] Speaker 01:
The issue here is the same issue that this court addressed in Cole versus Holder.

[00:02:42] Speaker 01:
When the agency does not aggregate the separate torture risks from different claimed sources of torture, then remand is appropriate so that the agency can conduct that aggregation.

[00:02:54] Speaker 01:
Because they did not address the risk that he faces from his former gang associates at all, they cannot have aggregated that risk.

[00:03:02] Speaker 01:
Additionally, they do not thoroughly address the risk that he faces from police if returned to Mexico.

[00:03:07] Speaker 01:
Again, the IJ's order only speaks to the danger he faced when he was in Ensenada more than 15 years ago.

[00:03:14] Speaker 01:
The circumstances in Mexico have deteriorated greatly in that time, and the record is replete with evidence that there is significantly more corruption from the police

[00:03:24] Speaker 01:
significantly more participation and torture and arbitrary detention by those police today than there was 17 years ago.

[00:03:32] Speaker 01:
So the IG was ignoring that dispositive evidence and only citing the evidence that supported the position that he took.

[00:03:42] Speaker 01:
So the IG did state that whether specifically mentioned in the decision or not, all evidence has been considered.

[00:03:48] Speaker 01:
But again, in Cole versus Holder,

[00:03:50] Speaker 01:
This court said that those kinds of catch-all statements do not suffice when there's any evidence that the IJ has not considered all of the evidence before it.

[00:04:00] Speaker 01:
Here, that's exactly what happened.

[00:04:02] Speaker 01:
They did not consider those two categories of risk, and so remand is appropriate on that ground.

[00:04:08] Speaker 01:
Relatedly, the agency also did not consider his three separate theories of risk in the aggregate.

[00:04:15] Speaker 01:
So the IJ and BIA both cite matter of JFF for this premise that cat deferral of removal cannot be established by stringing together a series of suppositions.

[00:04:27] Speaker 02:
Mr. Lopez, what do we do with the statement by the IJ?

[00:04:31] Speaker 02:
quote, whether specifically mentioned in the decision or not, the court has considered all the evidence in reaching his decision.

[00:04:38] Speaker 02:
Isn't that the statement that he considered all the aggregate incidents you mentioned?

[00:04:47] Speaker 01:
So, Your Honor, he did make that statement.

[00:04:49] Speaker 01:
And this court has held that there are circumstances where that kind of a catch-all statement is sufficient.

[00:04:55] Speaker 01:
However, this court in Cole v. Holder explicitly stated

[00:04:59] Speaker 01:
that where there's any indication that the BIA did not consider all evidence before it, that kind of catch-all phrase cannot save the decision.

[00:05:07] Speaker 01:
So here, where he did not mention any of the record evidence, for example, the 340,000 dead at the hands of police and cartels, the 23,000 disappeared and likely a significantly higher number as Mexican authorities have acknowledged,

[00:05:23] Speaker 01:
There's significant record evidence that cuts against the IJ's decision that he does not mention at all.

[00:05:29] Speaker 01:
And much of this comes from the Department of State country conditions reports, which this court has held should have special weight in these cases.

[00:05:37] Speaker 01:
So he ignores all of that significant record evidence that cuts against his decision.

[00:05:43] Speaker 02:
He ignores it because he doesn't recite it.

[00:05:47] Speaker 01:
He does not recite it, he does not mention it whatsoever.

[00:05:50] Speaker 02:
And so your idea is that unless the IJ recites all the contrary evidence, he ignores it?

[00:05:58] Speaker 01:
It's not that he necessarily has to recite all of the contrary evidence, but there must be some indication in their decision that they did consider that evidence.

[00:06:06] Speaker 01:
And here, there's simply no indication whatsoever.

[00:06:09] Speaker 01:
So turning back to the issue with the matter of JFF citation,

[00:06:17] Speaker 01:
This court corrected that same error that the IJ and the BIA made in citing matter of JFF in the Velasquez-Samoja case.

[00:06:26] Speaker 01:
So there, the agency considered two separate theories of risks as a single chain of events.

[00:06:32] Speaker 01:
And this court remanded saying that matter of JFF is not appropriate where there is more than one claimed theory of risk of torture.

[00:06:40] Speaker 01:
Here, Adrian presents multiple claimed theory

[00:06:43] Speaker 01:
theories of risk of torture, and so a matter of JFF is not the appropriate standard here.

[00:06:49] Speaker 01:
Instead, the IJ and the agency need to evaluate whether those theories of torture considered in the aggregate together make it more likely than not that he would be tortured.

[00:06:59] Speaker 01:
They did not do that here.

[00:07:03] Speaker 01:
Finally, the agency erred in its acquiescence analysis.

[00:07:09] Speaker 01:
The agency acknowledged that his fears are reasonable, but concluded that there's no likelihood of acquiescence because of federal efforts to combat drug cartel finances and some citation that some high level cartel members have been convicted with long sentences.

[00:07:26] Speaker 01:
But this rests on the exact errors that this court corrected in Madrigal versus Holder, where it said that

[00:07:32] Speaker 01:
looking only at national efforts does not matter if public officials at the local and state level would acquiesce.

[00:07:41] Speaker 01:
That local and state level acquiescence is sufficient to satisfy the CAT requirement.

[00:07:46] Speaker 01:
So by ignoring the record evidence of local and state corruption, the IJ did not consider the complete acquiescence analysis.

[00:07:57] Speaker 01:
So for some specific examples of things that the IJ did not appropriately consider,

[00:08:02] Speaker 01:
They did not address the Adrian or Alejandro Lopez's testimony regarding localized corruption in Ensenada, and again, did not discuss at all the country conditions reports, which indicate that there is torture across Mexico by public officials.

[00:08:20] Speaker 04:
Council?

[00:08:21] Speaker 04:
Council, forgive me for interrupting.

[00:08:23] Speaker 04:
Are you going to, or maybe your co-counsel is going to talk about the standard of review argument?

[00:08:30] Speaker 01:
Yes, Your Honor.

[00:08:30] Speaker 01:
Which standard of review argument?

[00:08:32] Speaker 04:
In your opening, you said that the agency failed to aggregate the harms, and you've been talking about that, but you also thought that the agency applied the wrong standard of review?

[00:08:43] Speaker 01:
Yes.

[00:08:44] Speaker 01:
So moving to the second issue, which is what I was discussing there, the agency abused its discretion in denying the motion to reopen because it applied the wrong standard.

[00:08:55] Speaker 01:
So the agency applied the would likely change the result standard in reviewing the evidence that he submitted.

[00:09:03] Speaker 01:
And as the government conceded in its response brief, that is the incorrect standard.

[00:09:08] Speaker 01:
As this court held in Fonseca Fonseca, the correct standard is whether or not the evidence has a reasonable likelihood of supporting eligibility for requested relief, which is a much lower standard.

[00:09:20] Speaker 01:
Because the agency had that correct standard before it and failed to apply it,

[00:09:25] Speaker 01:
it needs to be remanded for the agency to apply the appropriate standard as the support held under Fonseca Fonseca.

[00:09:35] Speaker 04:
Why do we need to remand?

[00:09:38] Speaker 01:
You need to remand, Your Honor, because they applied the wrong legal standard, and they need to be able to apply the correct legal standard to those facts to determine whether a motion to reopen should be granted or not.

[00:09:52] Speaker 01:
For those reasons, we respectfully request that this court vacate the agency decision.

[00:09:56] Speaker 01:
Thank you.

[00:09:58] Speaker 04:
We'll hear from opposing counsel, please.

[00:10:02] Speaker 03:
Good morning, Your Honors.

[00:10:03] Speaker 03:
May it please the Court?

[00:10:04] Speaker 03:
My name is Sherry Glazer, and I represent the United States Attorney General in this matter.

[00:10:10] Speaker 03:
Just to start off with the argument regarding Cole that the immigration judge did not consider all the record evidence, I would point the Court specifically regarding the State Department reports to Page, I believe it's

[00:10:24] Speaker 03:
It's page 200.

[00:10:25] Speaker 03:
The immigration judge did in fact acknowledge the State Department reports.

[00:10:30] Speaker 03:
So the immigration judge, there's no evidence the immigration judge did not consider that.

[00:10:35] Speaker 03:
There's actually no evidence the immigration judge didn't consider anything given the statement that the court, whether mentioned or not, did in fact consider the record.

[00:10:43] Speaker 03:
This case is a very different case from Cole where there were two expert reports and I can't remember if it was the immigration judge or the board when analyzing

[00:10:51] Speaker 03:
the evidence only mentioned one report, did not mention a second report, and said that whichever report it was referring to, it wasn't clear, was not supported by record evidence.

[00:11:03] Speaker 03:
And the court said, well, you know, you only mentioned one report when there were two, didn't say anything about a second report.

[00:11:09] Speaker 03:
And in fact, the record evidence did not conflict with what the expert report said.

[00:11:14] Speaker 03:
So it was really obvious in that case that evidence was overlooked and not analyzed.

[00:11:18] Speaker 03:
We don't have that here.

[00:11:20] Speaker 03:
And I would point the court regarding his claim regarding gang members.

[00:11:25] Speaker 03:
The immigration judge did say that he wasn't threatened or harmed in prison after leaving the gang.

[00:11:30] Speaker 03:
And in fact, he was in prison with gang associates, never threatened, never harmed.

[00:11:34] Speaker 03:
This is all in 200- Could I interrupt you there?

[00:11:35] Speaker 04:
Could I interrupt you there?

[00:11:37] Speaker 04:
Sure.

[00:11:37] Speaker 04:
He's never been out on the street yet, has he?

[00:11:40] Speaker 04:
He went from prison to detention, is that right?

[00:11:42] Speaker 04:
That's correct.

[00:11:43] Speaker 04:
I think his testimony is he doesn't really know what's going to happen when he is

[00:11:48] Speaker 04:
He's informed the game that he's leaving and he doesn't know what happens once he gets out of prison and out of detention.

[00:11:58] Speaker 03:
That is correct.

[00:11:59] Speaker 03:
Oh, I'm sorry.

[00:12:02] Speaker 04:
No, no.

[00:12:02] Speaker 04:
I didn't mean to interrupt you.

[00:12:04] Speaker 04:
I've got a problem in this case with the IJ.

[00:12:06] Speaker 04:
I think you're right to indicate the evidence that was considered.

[00:12:10] Speaker 04:
And I think there are five different trips back to Ensenada.

[00:12:13] Speaker 04:
For me, it seems notable that the last one was 19 years ago.

[00:12:16] Speaker 04:
And I think if I'm reading the record correct, but I want to invite you to correct me if I'm wrong.

[00:12:22] Speaker 04:
But I think at the time he was last there, his tattoos were just on his fingers.

[00:12:27] Speaker 04:
And it's quite noticeable to me, material to me anyway, that he's now, according to his testimony, he says he's got tattoos all over his body, including on his head.

[00:12:39] Speaker 04:
It can't be covered up by just putting on a long sleeve shirt.

[00:12:42] Speaker 04:
I don't see that the IJ grappled with that, or the agency did.

[00:12:52] Speaker 03:
Well.

[00:12:57] Speaker 03:
Let me go back and look.

[00:12:58] Speaker 03:
But I would point out, I would point the Court to specifically pages 267 in his testimony.

[00:13:05] Speaker 03:
And let me make sure I get the other page right.

[00:13:09] Speaker 03:
It's 287 to 288, where he does discuss his tattoos, and you're correct, Your Honor, that per his testimony, when he took those trips back to Ensenada, that the only tattoos he had were on his hand.

[00:13:19] Speaker 03:
Per all that, when he wears a long sleeve shirt and long pants on those pages, it indicates the only tattoos you can in fact see are on his hand and on his head.

[00:13:27] Speaker 03:
And the tattoo on his hand is so small that you can only see it if he's approached very closely.

[00:13:32] Speaker 03:
And he did testify on 287 to 288 that he's grown his hair back and he said it has grown in patches.

[00:13:38] Speaker 03:
But when asked if you can see what the tattoos are on his head, he said, I don't think you can see it, but can easily tell I have full tattoos on my head.

[00:13:48] Speaker 03:
In other words, it's not

[00:13:49] Speaker 03:
It's not so obvious that he has these gang tattoos on his head to anybody because his hair covers up much of the tattoos.

[00:13:56] Speaker 03:
So you can see that he has tattoos, but him testifying that, you know, anybody who sees him on the street will be able to immediately see that he has these gang tattoos on his head is simply not supported by his testimony.

[00:14:08] Speaker 04:
I might read that testimony a little bit differently, but I think those are the pages for sure.

[00:14:13] Speaker 04:
He said something else, and I really am just trying to sift through this.

[00:14:17] Speaker 04:
He said something else about being aware that there are a couple of different programs, including Homeboys, where tattoos can be removed.

[00:14:25] Speaker 04:
And it seemed to me that the government's position would be significantly weakened if he had visible tattoos removed.

[00:14:33] Speaker 04:
And he's just looking for a deferral, just as a matter of satisfying my own curiosity.

[00:14:39] Speaker 04:
Have there been any instances that you know of where the government has granted deferrals so that people could get their tattoos removed?

[00:14:46] Speaker 04:
I'm not aware of any, no.

[00:14:48] Speaker 04:
All right.

[00:14:48] Speaker 04:
Thank you for your patience with my questions.

[00:14:51] Speaker 03:
Sure.

[00:14:54] Speaker 03:
quickly his argument regarding the case Velasquez-Semayoa and aggregating the claims.

[00:15:01] Speaker 03:
I would first point out in Velasquez-Semayoa, we really had two very, very distinct theories underlying the cat claim.

[00:15:08] Speaker 03:
We had one based on fear of the police targeting him because he's a gang member taking him into custody and torturing or killing him.

[00:15:15] Speaker 03:
And then the second one that a rival gang would target him once removed and would torture or kill him.

[00:15:21] Speaker 03:
Here, you know, I would point the court specifically to pages.

[00:15:25] Speaker 03:
It's 280 to 281 and 292.

[00:15:28] Speaker 03:
You know, he discusses gang members.

[00:15:30] Speaker 03:
He discusses having worked for Popeye.

[00:15:32] Speaker 03:
He discusses the police.

[00:15:34] Speaker 03:
But when his testimony on those pages is really analyzed, it

[00:15:38] Speaker 03:
all of his testimony comes back to the cartels and these individuals collaborating with the cartels and his fear of the cartels.

[00:15:46] Speaker 03:
But even on top of that, there's no evidence in this case that the immigration judge or the board addressed his claim as one single chain of events.

[00:15:53] Speaker 03:
Yes, the immigration judge in discussing the law cited JFF, but in the very next sentence it cited Velasquez, Semiola,

[00:16:00] Speaker 03:
for the fact that the immigration court has to in fact aggregate a claim.

[00:16:04] Speaker 03:
And I would point the court to pages 14 to 18 of the immigration judge's decision where the immigration judge, even though his claim really does come back to the cartels, did address everything that he presented and concluded that in the aggregate he did not meet his burden of proof.

[00:16:19] Speaker 03:
And then when we turn to the board's decision, the board adopted and affirmed the entirety of the immigration judge's decision.

[00:16:25] Speaker 03:
And yes, the board did cite JFF-2, but there's no evidence in the decision that the board said, as the board did in the decision at issue in Velasquez and Mayoa, that he presented one single claim

[00:16:38] Speaker 03:
one single chain of events.

[00:16:40] Speaker 03:
The board cited JFF, but in its own analysis just said his claim is based on speculation, and there's nothing in his appeal brief that would cause us to disturb the immigration judge's decision.

[00:16:51] Speaker 03:
And then the board cited to pages 14 to 18 of the immigration judge's decision where the immigration judge did consider everything that he presented and looked at the record evidence.

[00:17:02] Speaker 04:
Council, what's your position on whether the board applied the proper standard?

[00:17:09] Speaker 03:
in the motion to reopen?

[00:17:14] Speaker 03:
It's the government's contention that there was no error for a few reasons in that case.

[00:17:20] Speaker 03:
The first would be with regards to his claim based on tattoos, the board first denied that on a procedural ground.

[00:17:27] Speaker 03:
It said that that was not new evidence that the immigration judge and the board already adjudicated that claim that's separate from prime official eligibility.

[00:17:35] Speaker 03:
So the government's first argument would be that the court doesn't have to

[00:17:38] Speaker 03:
grapple with Fonseca Fonseca with regards to that claim.

[00:17:42] Speaker 03:
Mr. Lopez makes the argument that the board somehow misread his motion, but he made three specific arguments in his motion, and the first one, numbered one, was based on his tattoos, and he made no mention of his brother whatsoever.

[00:17:55] Speaker 03:
He only mentioned his brother in the second claim with regards to they look alike, and when he goes back, his fear that

[00:18:02] Speaker 03:
He will be tortured because people will think he's there to avenge his brother or he looks like his brother.

[00:18:06] Speaker 03:
And in any case, we have very different language in the board decision in this case than we did in the decision that was at issue in Fonseca, Fonseca.

[00:18:14] Speaker 03:
Here, all the board said was to obtain reopening.

[00:18:18] Speaker 03:
The movement must produce evidence that's material was previously unavailable and must demonstrate prima facie eligibility for relief such that reopening would likely change the result.

[00:18:29] Speaker 03:
And then when the board analyzed the prima facie, whether he met the prima facie showing all the board said was claims were speculative.

[00:18:37] Speaker 03:
You know, that's a natural progression of

[00:18:40] Speaker 03:
whenever somebody submits new evidence in a motion to reopen, if the person doesn't demonstrate prima facie eligibility and the board's not going to reopen because nothing is going to change, whereas in Fonseca, Fonseca, the board really did meld the prima facie standard with would likely change the result.

[00:18:58] Speaker 03:
with a prima facie analysis with the would likely change the result standard when it said that petitioner did not present evidence of exceptional and extremely unusual hardship and thus did not show prima facie eligibility concluding that he did not do that because he did not submit persuasive new or previously unavailable evidence that's sufficient to meet his heavy burden of showing that the result would change if the proceedings were reopened.

[00:19:22] Speaker 04:
Council, the problem I have, if I could interrupt, forgive me, but the problem I have is sort of a twofer.

[00:19:27] Speaker 04:
Because in the original decision, it seems to me that AJ did not recognize that his position was that although he had returned five times, he was last there 19 years ago, and he did not have these very visible tattoos, including the tattoos on his head.

[00:19:41] Speaker 04:
And then the point is on the motion to reopen, that's coupled with this new evidence of this very tragic

[00:19:46] Speaker 04:
fate that his brother met when his brother returned who was also a prior gang member and covered with tattoos.

[00:19:52] Speaker 04:
And the question is, of course, whether that new evidence that had been previously unavailable, and I think chronologically it adds up that it would have been previously unavailable, whether that merits reopening.

[00:20:03] Speaker 04:
I can't really see that the board grappled with that or recognized that.

[00:20:08] Speaker 03:
Yeah, I would agree.

[00:20:10] Speaker 03:
And it's because of the way that Mr. Lopez presented his motion.

[00:20:13] Speaker 03:
So he presented all of these facts about what happened to his brother.

[00:20:17] Speaker 03:
And again, I would point the court to, let me make sure I have the exact page.

[00:20:22] Speaker 03:
On 27, he split sort of his arguments into three numbers, and the first argument was that he has the appearance of the gang member with tattoos that will identify him as a gang member, but he didn't discuss his brother and what happened to his brother in that number one.

[00:20:39] Speaker 03:
He only discussed his brother and what happened to his brother in his number two argument, the fear that he resembles his brother and he'll be targeted

[00:20:49] Speaker 03:
because he'll be mistaken for him, or people will believe he's back in Mexico to avenge him.

[00:20:54] Speaker 03:
I understand he was pro se when he was before the board, but it was his burden to perfect what he wanted the board to analyze.

[00:21:03] Speaker 03:
All he had to say in that number one is, because of everything that's happened to my brother, I fear even more to go back because of my tattoos, and he never said that.

[00:21:12] Speaker 03:
The fact that he brought his brother into his argument number two, the board had

[00:21:17] Speaker 03:
It was logical for the board to think he discussed everything that happened to his brother just for that second argument.

[00:21:23] Speaker 03:
So you're correct.

[00:21:23] Speaker 03:
The board maybe didn't look into that, but it's because of the way he presented everything to the board and that he did not, now that he's trying to kind of morph what he argued to the board, but he did not tie everything that he said about his brother into that argument number one.

[00:21:37] Speaker 03:
He only tied it into argument number two.

[00:21:39] Speaker 02:
Miss Glazer, may I ask you a question?

[00:21:42] Speaker 02:
Was there any evidence that there was any attempt in the form of a ransom note or notification by the gang that the brother had been kidnapped and he should be ransomed?

[00:21:56] Speaker 03:
No.

[00:21:57] Speaker 03:
No, there was nothing like that in the motion.

[00:22:01] Speaker 02:
We don't know what happened to the brother.

[00:22:03] Speaker 03:
no we don't know and that's something that the board mention you know all of this information was provided about the brother that

[00:22:10] Speaker 03:
You know, there's information that this cartel was targeting him because he had lived in an area of Ensenada that had previously been controlled by a rival gang, which of course is not relevant to Mr. Lopez, because Mr. Lopez wasn't in Mexico from 2016 to 2022, and all of this other information, and then that a neighbor happened to see a car pull up to his house, a conversation occur, but we don't know what was said, and that the brother got in the van, and he hasn't

[00:22:35] Speaker 03:
no one's seen him since per the motion, but we don't know what the motivation was, we don't know why he was taken, don't know if he's still taken or maybe he's just afraid to return.

[00:22:45] Speaker 03:
We just don't know anything to then say that it shows that Mr. Lopez is in fact prima facie eligibility for deferral, even putting aside the fact that he didn't tie what happened with his brother in with his fear of returning due to his tattoos.

[00:23:02] Speaker 03:
Any further questions?

[00:23:04] Speaker 04:
No, it looks like we don't have any further questions.

[00:23:06] Speaker 04:
Council, thank you very much for your argument and advocacy.

[00:23:08] Speaker 04:
Thank you.

[00:23:09] Speaker 04:
You will hear from opposing counsel, please.

[00:23:23] Speaker 00:
Thank you, Judge.

[00:23:25] Speaker 00:
My name is Joshua Patton.

[00:23:26] Speaker 00:
I also represent Adrian Esteban Lopez.

[00:23:28] Speaker 00:
So to respond to one of your first questions as relates to tattoos,

[00:23:32] Speaker 00:
So on pages 117 and 118 of the record, Adrian's aunt testified that when he was in Mexico a few years ago, he had small tattoos on his hands.

[00:23:44] Speaker 00:
But now that's a completely different situation, because Adrian has tattoos up to his neck and up to his hairline that are easily recognizable.

[00:23:51] Speaker 00:
And then also, as my co-counsel stated previously,

[00:23:54] Speaker 00:
that when Adrian was in Ensenada at that time, he was a part of the gang.

[00:23:58] Speaker 00:
Now he is not.

[00:23:59] Speaker 00:
He would likely be targeted because he was a former gang member.

[00:24:02] Speaker 00:
And that specific harm also comes from gang members as well.

[00:24:06] Speaker 00:
And it's not just tied in with the cartel.

[00:24:08] Speaker 04:
Counsel, you said when he was there a few years ago, and you said at that time.

[00:24:12] Speaker 04:
And so this timing, at least for me, is important.

[00:24:15] Speaker 04:
I want to make sure I have it right.

[00:24:16] Speaker 04:
My understanding is that he has not been back to Ensenada since 2005.

[00:24:21] Speaker 04:
Is that correct?

[00:24:22] Speaker 00:
Yes, that's correct.

[00:24:23] Speaker 04:
OK.

[00:24:24] Speaker 04:
So when you just said at that time, when are you referring to?

[00:24:27] Speaker 00:
So I was referring to when he was in Ensenada in 2005.

[00:24:31] Speaker 00:
Oh, great.

[00:24:33] Speaker 04:
OK.

[00:24:33] Speaker 04:
Thank you for the clarification.

[00:24:35] Speaker 00:
Yes.

[00:24:36] Speaker 00:
And also, the government discussed that any evidence as it relates to gang affiliations, that it ties back to the cartel.

[00:24:42] Speaker 00:
But Adrian specifically testified on pages 315 and 316 of the record

[00:24:47] Speaker 00:
that gang associates who have been deported and live in his birth state in Baja, California, would try to force him or to support him to reengage.

[00:24:56] Speaker 00:
But when he does not decide to reengage, that is when he will be a target of torture from the former gang associates.

[00:25:02] Speaker 00:
And he talked to a local park shot caller, which was another gang that he was affiliated with.

[00:25:07] Speaker 00:
And he stated that while he disassociated himself while he was in prison, he did not face any harm.

[00:25:12] Speaker 00:
He would not face harm until he returned to the streets.

[00:25:16] Speaker 00:
of Baja California.

[00:25:18] Speaker 00:
And in addition, the government relied on the matter of JFF.

[00:25:22] Speaker 00:
This case is completely different.

[00:25:24] Speaker 00:
In the matter of JFF, there was one singular harm while we have here three different sources of harm and torture through the local police, the gangs, and the cartels.

[00:25:33] Speaker 00:
So the analysis that states that there cannot be a single hypothetical chain, that does not matter.

[00:25:37] Speaker 00:
The agency must aggregate all of the causes of harm and torture

[00:25:41] Speaker 00:
in this case, and that reaches over 51%.

[00:25:43] Speaker 02:
Mr. Patton, may I ask you a question?

[00:25:46] Speaker 02:
Is there any evidence in this case that Mr. Lopez could not relocate other than in Ensenada in Mexico?

[00:25:55] Speaker 02:
Is it unreasonable to suppose that he could live in Mexico City or in Oaxaca or someplace else?

[00:26:04] Speaker 00:
Um, so your honor, it is unreasonable to say that he could move to anywhere else in Mexico.

[00:26:08] Speaker 00:
So the board of immigration appeals and the government argue that Adrian should be able to move anywhere because there was no specific harm or evidence that somebody is targeting him.

[00:26:18] Speaker 00:
But it shows that the national government, even with their efforts to combat cartels or gangs, that there's no actual efficacy or actual impact with their efforts.

[00:26:26] Speaker 00:
So Adrian is likely to suffer harm wherever he goes in Mexico.

[00:26:29] Speaker 00:
Um, so specifically as it relates to his, um, tattoos,

[00:26:33] Speaker 00:
And also linking that with the country reports, local police and national police will target him because they suspect that he is somebody that's a part of drug trade, somebody that's a part of a cartel, a part of a gang.

[00:26:43] Speaker 00:
So that impact is going to be felt regardless of wherever Adrian is in Sonata or somewhere else in Mexico.

[00:26:49] Speaker 00:
It's not required for Adrian to show that relocation is impossible, but to show that there is a likelihood of harm wherever he's returned to.

[00:26:57] Speaker 02:
So your position is that the tattoos make him vulnerable anyplace in Mexico?

[00:27:06] Speaker 00:
Well, we're not saying that he, yes, we are arguing that his tattoos make him readily identified.

[00:27:10] Speaker 02:
What's the evidence of that?

[00:27:13] Speaker 00:
Well, the evidence is that the evidence is local and national government and the corruption within

[00:27:18] Speaker 00:
local police and gangs and cartels that have a presence throughout all of Mexico.

[00:27:22] Speaker 00:
So even though the harm is very solidified within Ensenada as relates to him in the local part gang and also the evidence related to his brother's kidnapping, there are disappearances throughout Mexico.

[00:27:33] Speaker 00:
There have been 300,000 disappearances since 2018.

[00:27:38] Speaker 00:
So this is

[00:27:39] Speaker 02:
What do we do with the evidence that the Mexican government since 2018 is attempting to limit the scope of these gangs?

[00:27:51] Speaker 00:
Yes.

[00:27:51] Speaker 00:
So there is evidence that the Mexican national government is attempting to target the finances of the cartels and the gangs, but that has not shown that there has been any actual impact with that.

[00:28:01] Speaker 00:
And that's the same thing that this court discussed in Madrigal versus Holder.

[00:28:04] Speaker 00:
in that when discussing the efforts of the national government, you must talk about the efficacy, whether it actually works.

[00:28:10] Speaker 00:
And there's record evidence that shows that the kingpin strategy of attacking the leader of a specific cartel or gang does not always work.

[00:28:18] Speaker 00:
There's still a mass group of criminal networks, and also that might also create division with other gangs and cartels that makes it tough for individuals like Adrian to come back to a safe place, even if you do target those efforts.

[00:28:30] Speaker 04:
Council, I'm looking at 138 and 139, and this is the

[00:28:35] Speaker 04:
Part of the transcript where he, the petitioner, testifies about his tattoos still being visible, even if the rest of his hair grow out, what I can't tell is, well, two things.

[00:28:45] Speaker 04:
Other than this testimony, is there any other evidence in the record?

[00:28:48] Speaker 04:
Do we have any photos that I missed?

[00:28:51] Speaker 00:
I don't believe we have any photos, Your Honor, no.

[00:28:55] Speaker 04:
I don't think so either.

[00:28:55] Speaker 04:
I couldn't find them, but I wanted to check.

[00:28:59] Speaker 04:
On the bottom of 57, well, it's sorry, it's ER 138.

[00:29:04] Speaker 04:
He says that they're still visible.

[00:29:06] Speaker 04:
On the top of 139, he says, right here in the front of my head, I have indiscernible gang.

[00:29:12] Speaker 04:
And then on my whole head, I have loco, indiscernible, spelled out in block letters.

[00:29:17] Speaker 04:
And he's previously said they're black letters in block print, and they're very solid.

[00:29:24] Speaker 04:
And he says they're from ear to ear.

[00:29:26] Speaker 04:
But there are a couple of places where it says indiscernible, indiscernible, indiscernible.

[00:29:31] Speaker 04:
The only gang-related word I can see where it says loco, and he's identified them as gang tattoos.

[00:29:37] Speaker 04:
But it's a little hard to know exactly what we're talking about.

[00:29:40] Speaker 04:
Yes.

[00:29:41] Speaker 04:
Do you have any other information from the record?

[00:29:45] Speaker 00:
So we don't have any other information from the record to show the visibility of his tattoos, but in speaking with Adrian recently, his tattoos are up to his neck.

[00:29:53] Speaker 00:
They wrap around his head and they may not say specifically, I know you mentioned it specifically says mention of loco, but there are indiscernible tattoos, but they are all the way up to his hairline and around his entire head.

[00:30:05] Speaker 04:
He doesn't say that they're indiscernible.

[00:30:08] Speaker 04:
In the transcript, he's speaking.

[00:30:10] Speaker 04:
It's just that the person transcribing couldn't apparently get what he said, except for the word loco.

[00:30:17] Speaker 04:
So I don't know what they say.

[00:30:18] Speaker 04:
And I think you've answered my question about the extent to which we have to go on here.

[00:30:23] Speaker 00:
Yes.

[00:30:23] Speaker 00:
And I want to make one more comment.

[00:30:25] Speaker 00:
So when I talk about the tattoos around his head, it says loco around this part of his head.

[00:30:30] Speaker 00:
So that's where the tattoos near his hairline are visible.

[00:30:33] Speaker 04:
All right.

[00:30:33] Speaker 04:
I think you're out of time.

[00:30:35] Speaker 04:
Are there any other questions?

[00:30:36] Speaker 04:
Yes.

[00:30:36] Speaker 04:
No, apparently not.

[00:30:37] Speaker 04:
Thank you both for your advocacy.

[00:30:39] Speaker 04:
We'll take that case under advisement and go to the next case on the calendar.