[00:00:06] Speaker 02:
Good morning, everyone, and welcome.

[00:00:09] Speaker 02:
I'm Anthony Johnstone here from Missoula, Montana.

[00:00:12] Speaker 02:
I'm pleased to be joined today by my colleagues, Marsha Berzon from San Francisco and Andrew Horowitz from right here in Phoenix, Arizona.

[00:00:21] Speaker 02:
We have a couple of cases to submit this morning.

[00:00:25] Speaker 02:
First, number 221905, Pimentel versus Garland will be submitted on the briefs.

[00:00:33] Speaker 02:
And number 22, 271, Doner Alvarado versus Garland, also submitted on the briefs.

[00:00:40] Speaker 02:
Our first case for argument today is Estrada Hernandez versus Garland, number 22, 629, if counsel are ready.

[00:00:49] Speaker 02:
Mr. Favela.

[00:00:56] Speaker 00:
Good morning, Your Honors.

[00:00:58] Speaker 00:
My name is Marcos Favela.

[00:00:59] Speaker 00:
I'm here on behalf of the petitioner, Mr. Estrada Hernandez.

[00:01:03] Speaker 00:
First of all, thank you for having me here today.

[00:01:05] Speaker 00:
I appreciate the opportunity.

[00:01:08] Speaker 00:
I'd like to discuss what this case is about and direct the court to the relevant evidence that I believe is most important to consider.

[00:01:15] Speaker 00:
Here, the Board of Immigration Appeals held that Mr. Estara Hernandez presented no individualized evidence in support of a future harm if he were to return to Mexico.

[00:01:27] Speaker 00:
We believe that he did present individualized evidence.

[00:01:30] Speaker 01:
I'm having a little trouble hearing.

[00:01:31] Speaker 04:
Would you pull the microphone a little bit closer to you?

[00:01:37] Speaker 00:
Thank you, Your Honor.

[00:01:39] Speaker 00:
In this case, Mr. Estrada Hernandez did present individualized evidence that he would be harmed in the future if he were to return to Mexico.

[00:01:46] Speaker 00:
The Board of Immigration Appeals held that he presented no evidence at all in support of a future harm in Mexico.

[00:01:56] Speaker 00:
Because they stopped their analysis there at the individualized level of harm, they didn't consider the country-conditioned evidence

[00:02:02] Speaker 00:
in regards to the specific argument that we're presenting here to the court today, which I believe is the most relevant one.

[00:02:08] Speaker 04:
The country conditions evidence was considered when they considered the risk of group persecution, correct?

[00:02:16] Speaker 00:
Correct, Your Honor.

[00:02:16] Speaker 00:
There were a few arguments presented throughout this case, from the trial level to the various appellate levels.

[00:02:22] Speaker 00:
We believe that before this court, what is relevant is a disfavored analysis.

[00:02:26] Speaker 04:
Right.

[00:02:26] Speaker 04:
I want to ask you about that.

[00:02:29] Speaker 04:
They considered the country condition evidence, the BIA,

[00:02:33] Speaker 04:
in turning down the group persecution analysis.

[00:02:39] Speaker 04:
Does that consideration of that evidence carry over?

[00:02:43] Speaker 04:
They found it fairly weak, and I must admit looking at the country conditions report, it doesn't present a compelling case for persecution.

[00:02:55] Speaker 04:
They found it weak in the group persecution analysis.

[00:02:59] Speaker 04:
What does that mean with respect to the individualized persecution analysis?

[00:03:05] Speaker 00:
Your Honor, I would like to clarify, I believe, what the record states from the Board of Immigration Appeals.

[00:03:12] Speaker 00:
There was a disfavored group analysis, but there was also a separate analysis in regards to Respondent being a member of a group that has- Right, right.

[00:03:21] Speaker 04:
I understand.

[00:03:21] Speaker 04:
There's two ways to prove entitlement to asylum, as Judge Berzon pointed out.

[00:03:27] Speaker 04:
in the opinion you're relying on.

[00:03:30] Speaker 04:
As to one of them, the Board of Immigration Appeals did consider the country conditions report.

[00:03:36] Speaker 04:
As to another one, it did not because it found no individualized risk.

[00:03:40] Speaker 04:
You're arguing that you had some evidence of individualized risk, and I tend to agree with you.

[00:03:45] Speaker 04:
So my question is, does its analysis of the country conditions report, with respect to the other problem, carry over to this problem?

[00:03:54] Speaker 00:
Thank you.

[00:03:54] Speaker 00:
And I do understand the court's question a little better now.

[00:03:57] Speaker 00:
In regards to the respondent, he is asserting individualized risk of future harm.

[00:04:02] Speaker 00:
And part of that analysis, which he's not presenting today, is only individualized harm based on any particular social group.

[00:04:09] Speaker 00:
But here it's a disfavored particular social group, which addresses specifically his individualized harm.

[00:04:15] Speaker 01:
If I understand Judge Hurwitz's question, it's

[00:04:18] Speaker 01:
The country conditions report were discussed in a patterned practice discussion.

[00:04:26] Speaker 00:
Correct, Your Honor.

[00:04:27] Speaker 01:
But the conclusion was that it wasn't sufficiently pervasive to be a patterned practice.

[00:04:32] Speaker 00:
Correct, Your Honor.

[00:04:32] Speaker 01:
So it wouldn't necessarily carry over because that's not what it's used for with regard to the disfavored group.

[00:04:41] Speaker 00:
Correct, Your Honor.

[00:04:42] Speaker 00:
In that analysis, in the patterned practice analysis,

[00:04:46] Speaker 00:
the respondent or the petitioner here would be reliant solely on contribution evidence.

[00:04:49] Speaker 00:
Here there's a mixture of individualized evidence as well as contribution evidence, so it would be a different standard.

[00:04:56] Speaker 00:
It wouldn't be that we're looking for so much evidence as in the past pattern of practice that that's sufficient for a respondent petitioner to show his

[00:05:04] Speaker 00:
his burden, here there would be a lesser standard of contribution to evidence if he could also show individualized risk of harm.

[00:05:10] Speaker 04:
And what was your evidence of individualized harm?

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

[00:05:14] Speaker 01:
Individual evidence, is that?

[00:05:16] Speaker 00:
There are four different factors that we, or four different evidences that we'd like to bring up.

[00:05:21] Speaker 00:
First is the context of the assault on the petitioner, Mr. Serra Hernandez.

[00:05:27] Speaker 00:
While it was brought up by the board that he suffered an assault in the immigration judge's decision and the board of immigration appeals decision, there is no mention that it was on account of the fact that he was viewed as a gay Mexican person at the time a child, currently a man.

[00:05:45] Speaker 00:
They only mentioned the assault in passing and when they concluded

[00:05:50] Speaker 00:
They concluded that it wasn't relevant at all to the analysis.

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However, within the context, this court should consider that he was stripped, he was beaten, he was hit with cactus, and he was told specifically by two adults, it is because you, rather than use specific words, because he was gay.

[00:06:11] Speaker 01:
But the argument is that it was 35 years ago, and why does that mean he would be singled out?

[00:06:16] Speaker 00:
It was quite some time ago, but the board, the agency finds that there was no evidence.

[00:06:20] Speaker 00:
There was evidence.

[00:06:21] Speaker 00:
That may be not a loan enough to carry a verdict.

[00:06:24] Speaker 04:
So assume that that's some evidence, relative, perhaps weak because of its age.

[00:06:29] Speaker 04:
What other evidence was there of his individualized risk of harm?

[00:06:33] Speaker 00:
Yes, Your Honor, there's a few more.

[00:06:35] Speaker 00:
Um, things I'd like to bring up to the court.

[00:06:37] Speaker 00:
One is there was a transcript of the reasonable theory interview, the transcript of the reasonable theory interview.

[00:06:42] Speaker 00:
The petitioner stated that he, he was describing his feminine behavior, his social behavior, which supports the fact that if he were to return to Mexico, he would be viewed as a gay Mexican man.

[00:06:53] Speaker 04:
So you got those two things.

[00:06:55] Speaker 04:
I just tell me what, tell me what else there is and leave aside the country conditions report for a second.

[00:07:00] Speaker 00:
In addition, he is a HIV positive.

[00:07:03] Speaker 00:
gay Mexican man.

[00:07:04] Speaker 00:
That is something that is individualized to him as a member of the particular social group of gay Mexican men.

[00:07:11] Speaker 00:
He's also an HIV positive individual.

[00:07:14] Speaker 00:
That fact was not considered at all.

[00:07:16] Speaker 02:
But Mr. Fevella, did you present that as part of the particularized social group analysis at any part of your appeal?

[00:07:22] Speaker 00:
There were two in the appeal before this court?

[00:07:25] Speaker 02:
No, I'm sorry, before the BIA.

[00:07:27] Speaker 00:
Before the BAA, there was two different social groups.

[00:07:32] Speaker 00:
One of them is waived here today.

[00:07:33] Speaker 00:
It was previously waived, and that is the HIV-positive individuals.

[00:07:38] Speaker 00:
That fact should also be considered within the context of the gay Mexican man, particular social group, and it was not.

[00:07:44] Speaker 01:
If he's going to get medical care, somebody's going to know that he's gay likely.

[00:07:52] Speaker 00:
Yes, Your Honor, that's the argument that we would like the court to consider.

[00:07:56] Speaker 00:
And those are three of the relevant facts.

[00:07:58] Speaker 00:
There's one additional one.

[00:08:00] Speaker 00:
It's more of a mitigation fact.

[00:08:03] Speaker 00:
The agency brought up the fact that there is

[00:08:09] Speaker 00:
some time that the petitioner spent in Mexico.

[00:08:12] Speaker 00:
It's unclear specifically whether that was one, two, four years, but it was a limited time.

[00:08:18] Speaker 00:
The record does show that.

[00:08:19] Speaker 04:
I assume part of the problem in a case like this is that the petitioner was probably legally in the United States during some of that time period, but didn't want to say how long.

[00:08:29] Speaker 04:
Is that fair?

[00:08:30] Speaker 00:
Correct.

[00:08:30] Speaker 00:
Yes, the record does show that he was married here in the United States in 2004, and he built that relationship here in the United States.

[00:08:37] Speaker 00:
That's something that likely took a few years.

[00:08:39] Speaker 04:
Can I ask a question on a different point, and it may not be relevant to today's proceedings.

[00:08:45] Speaker 04:
Did the BIA ever get to the question of whether, even if a fear of persecution had been established, there was sufficient evidence that your client would be persecuted by or with the consent of the Mexican government?

[00:09:02] Speaker 04:
Is the country conditions report the only evidence on that point?

[00:09:06] Speaker 00:
Yes, Your Honor.

[00:09:06] Speaker 04:
They're only contribution evidence, but I don't believe we reached… And now in your view, did the BIA just not treat that part of the analysis?

[00:09:12] Speaker 00:
I'm sorry, can you repeat?

[00:09:13] Speaker 04:
In your view, did the BIA just not treat that portion of the analysis?

[00:09:17] Speaker 04:
Because if it had found there was insufficient evidence to show government acquiescence or participation, we'd be reviewing that for substantial evidence.

[00:09:27] Speaker 04:
So what's your view of the record here?

[00:09:29] Speaker 00:
Your Honor, I believe that the agency did not reach that point.

[00:09:32] Speaker 00:
They cut the decision short of the fact that there was no individualized evidence.

[00:09:36] Speaker 00:
They didn't discuss country-conditioned evidence.

[00:09:38] Speaker 00:
They didn't go that far.

[00:09:40] Speaker 00:
No, no.

[00:09:40] Speaker 04:
I'm not worried about what evidence they're considering.

[00:09:42] Speaker 04:
I'm worried about, I don't think the agency, let me just tell you, ever got to the issue of whether or not, even if you'd shown a reasonable fear or probability of persecution in Mexico if returned, that persecution would occur by or with

[00:09:58] Speaker 04:
the consent of the government.

[00:09:59] Speaker 04:
Do you agree?

[00:10:00] Speaker 04:
I agree, Your Honor.

[00:10:01] Speaker 04:
So if we were to grant the petition, that would be an issue for the agency to resolve, among others on remit.

[00:10:07] Speaker 00:
Yes, Your Honor.

[00:10:08] Speaker 00:
I believe there are quite a few issues for the agency to resolve because they cut their decision short at the individualized evidence factor.

[00:10:14] Speaker 02:
Mr. Favella, do you want to reserve any time for rebuttal?

[00:10:17] Speaker 00:
Yes, Your Honor.

[00:10:18] Speaker 00:
I'd like to reserve the remaining time.

[00:10:19] Speaker 00:
Thank you.

[00:10:19] Speaker 02:
Okay.

[00:10:19] Speaker 02:
We'll give you two.

[00:10:20] Speaker 02:
Thank you.

[00:10:25] Speaker 02:
Mr. Anderson.

[00:10:29] Speaker 03:
Good morning, your honor.

[00:10:30] Speaker 03:
I'm here to please the court, Eric Anderson, representing the attorney general.

[00:10:34] Speaker 03:
Mr. Estrada Hernandez is a citizen of Mexico who was ordered removed from the United States, removed from the United States, illegally returned and had his order reinstated.

[00:10:44] Speaker 03:
One consequence of this is that he is not eligible for asylum in the United States.

[00:10:50] Speaker 03:
He is eligible and he did apply for withholding of removal and protection under the cat treaty.

[00:10:56] Speaker 03:
which requires him to show that there is a clear probability, a more likely than not standard, that he would either be persecuted or tortured in Mexico.

[00:11:05] Speaker 03:
The immigration judge and board considered the evidence and the claims, found that he failed to make the required showing, and this court should deny the petition because the record does not compel the contrary.

[00:11:17] Speaker 04:
I must say, if we were reviewing a finding that was procedurally the way you represented, I would find it very hard to overturn it.

[00:11:28] Speaker 04:
My concern is, I think the one we explored with your colleague, when it got to the individualized risk, this favored group analysis, the board said there was no evidence of individualized risk.

[00:11:45] Speaker 04:
I think a fairer statement would be there was some, but it was not very compelling.

[00:11:51] Speaker 04:
What do we do with that?

[00:11:52] Speaker 04:
In other words, they never got to the second part of the analysis because they cut it off at the first.

[00:12:00] Speaker 03:
Respectfully, Your Honor, I think the full sentence shows that the board said that there was no evidence sufficient to meet the standard.

[00:12:07] Speaker 03:
So I'm looking at page two of the board's decision or page four of the administrative record.

[00:12:15] Speaker 03:
The last paragraph on that page, in two places, the board says, respondent has provided no evidence establishing that he is likely to be singled out for persecution.

[00:12:25] Speaker 03:
And then the next sentence ends, does not establish the requisite likelihood that he would be subject to an individualized threat of future persecution.

[00:12:34] Speaker 04:
The second one, I think, is closer to what you've described, but the first one is inaccurate, isn't it?

[00:12:43] Speaker 03:
I'm sorry, is the board inaccurate or am I inaccurate?

[00:12:46] Speaker 04:
The first sentence says he's presented no evidence that he would submit.

[00:12:50] Speaker 03:
That no evidence that it is more likely than not to happen, Your Honor.

[00:12:53] Speaker 01:
That's the second sentence.

[00:12:55] Speaker 01:
Read the first sentence again.

[00:12:56] Speaker 01:
But he doesn't have to have evidence that it's more likely than not to happen with the disfavored group analysis.

[00:13:03] Speaker 01:
With the disfavored group analysis, the disfavored group piece, which I gather you are not contesting, is that right?

[00:13:10] Speaker 01:
Correct, Your Honor.

[00:13:12] Speaker 01:
does a lot of the work.

[00:13:14] Speaker 01:
And the case law has kind of a sliding scale situation where the more disfavored, essentially, the less you have to show.

[00:13:24] Speaker 01:
But all you have to show is that there is some likelihood that you'll be singled out.

[00:13:28] Speaker 01:
You don't have to show that there is more likely than not just on that.

[00:13:34] Speaker 01:
It's the two together that do the work together.

[00:13:37] Speaker 03:
Right, Your Honor, absolutely.

[00:13:40] Speaker 03:
I'm the last person in the world to direct you to Whackery because you're more familiar with it than I, but Whackery repeats, this is a withholding case.

[00:13:49] Speaker 03:
He has to ultimately meet the more likely than not standard.

[00:13:53] Speaker 03:
In fact, it says several times, it is not often likely to happen that a withholding of removal case will be resolved favorably on the basis of a disfavored group claim.

[00:14:07] Speaker 04:
Well, that may be true.

[00:14:09] Speaker 04:
And I suspect it is true here.

[00:14:11] Speaker 04:
I think it's a case in which, at the end of the day, Petitioner is probably not going to be successful.

[00:14:17] Speaker 04:
The question is this.

[00:14:19] Speaker 04:
Judge Berzon asked, you can have a slight individualized risk and have great evidence on the disfavored group side and get asylum.

[00:14:30] Speaker 04:
Now, the difficulty here is the BIA, because it found no individualized risk,

[00:14:36] Speaker 04:
never moved to look at the disfavored group analysis.

[00:14:40] Speaker 04:
And therefore, for all we know, on this record, it doesn't appear to me to be compelling.

[00:14:46] Speaker 04:
But that's not our decision.

[00:14:47] Speaker 04:
It's the board's.

[00:14:49] Speaker 03:
I have two responses to that, Your Honor.

[00:14:51] Speaker 03:
First, there is no doubt the immigration judge and board both discussed this incident in which he was beaten at the age of 11 nearly 40 years ago.

[00:15:02] Speaker 03:
They were perfectly well aware that this occurred.

[00:15:05] Speaker 03:
The immigration judge addresses it on page four of his decision, AR 62.

[00:15:11] Speaker 03:
The board addresses it, again on the same page I already cited.

[00:15:15] Speaker 03:
They were perfectly well aware of this.

[00:15:17] Speaker 03:
They did not forget it in the next paragraph.

[00:15:20] Speaker 03:
The second thing is, of course, when you're treating the group as a disfavored group, you've already

[00:15:28] Speaker 03:
You've already resolved a certain level of country condition evidence, right?

[00:15:31] Speaker 03:
If there was no evidence that the group of gay Mexican men was a disfavored group in Mexico, you wouldn't even get to a disfavored group analysis.

[00:15:39] Speaker 03:
They've treated it as such for this.

[00:15:42] Speaker 04:
Where have they treated it as such?

[00:15:45] Speaker 04:
It's a two-step analysis, and as I understand it, if you find no individualized risk, you don't need to move on to whether or not it's a disfavored group, correct?

[00:15:55] Speaker 03:
That's right.

[00:15:59] Speaker 03:
It is, I agree, a sliding scale.

[00:16:01] Speaker 03:
If there is absolutely no individualized risk.

[00:16:04] Speaker 04:
There's nothing to put on one side of the scale it doesn't slide.

[00:16:06] Speaker 03:
Right.

[00:16:09] Speaker 03:
There is still a burden, a burden on the applicant to produce evidence of individualized risk.

[00:16:14] Speaker 03:
And we know Mr. Estrada Hernandez testified he has never been threatened on this basis, that he does not fear the Mexican government will harm him because of his

[00:16:26] Speaker 03:
status as a gay Mexican man or as an HIV positive individual.

[00:16:30] Speaker 03:
We know that this one incident occurred, that he then spent three more years in Mexico not being harmed.

[00:16:37] Speaker 01:
Well, we don't actually know that he spent three more years.

[00:16:39] Speaker 01:
Oh, I see, before he left.

[00:16:41] Speaker 03:
Yeah, before he came at the age of 14, Your Honor.

[00:16:44] Speaker 03:
And then there's the issue of the returns he's made after he came to the United States.

[00:16:48] Speaker 03:
We know he

[00:16:50] Speaker 03:
At his first departure, he had a burglary tools conviction.

[00:16:56] Speaker 03:
He voluntarily departed the United States.

[00:16:59] Speaker 03:
And I accept his testimony as credible that he returns soon thereafter.

[00:17:05] Speaker 03:
That's what the evidence is.

[00:17:06] Speaker 03:
He returns soon thereafter.

[00:17:08] Speaker 03:
Then in the year 2000, he had multiple returns in a short period of time.

[00:17:15] Speaker 01:
Now, isn't all this largely irrelevant because the question

[00:17:20] Speaker 01:
And first of all, on the second sentence that you relied on, they said that there is no evidence established that he is likely to be singled out for persecution, and we therefore discern no error

[00:17:39] Speaker 01:
in the immigration judge finding that the respondent's general claim based solely on the threat to the disfavorite group.

[00:17:45] Speaker 01:
So they were clearly treating this as having only a disfavorite group and no evidence.

[00:17:51] Speaker 01:
And so therefore, the kind of evidence you're pointing to might be relevant in the long run.

[00:18:00] Speaker 01:
But the problem here is that they began with the fact that they're only looking at the

[00:18:09] Speaker 01:
disfavored group language evidence because there's no interventionalized evidence.

[00:18:15] Speaker 01:
And that's inaccurate.

[00:18:16] Speaker 03:
Your Honor, it came three sentences after they were describing the incident that happened at the age of 11.

[00:18:22] Speaker 03:
OK.

[00:18:24] Speaker 03:
The board was aware of this evidence.

[00:18:28] Speaker 02:
Mr. Anderson, I guess you talked about what we know.

[00:18:32] Speaker 02:
We don't know that the board

[00:18:35] Speaker 02:
knew of all the other evidence, the contemporaneous evidence, the current evidence, that provides a much stronger link between this individual and the disfavored group in terms of his mannerisms.

[00:18:48] Speaker 02:
There's no discussion of that at all.

[00:18:50] Speaker 02:
Were there any obligation to discuss that as part of the individualized risk?

[00:18:54] Speaker 03:
I don't think so, Your Honor.

[00:18:55] Speaker 03:
I think that all may very well be true, but it doesn't show an individualized risk.

[00:19:03] Speaker 03:
It does not

[00:19:04] Speaker 03:
qualify as evidence of an individual risk of harm.

[00:19:08] Speaker 03:
It was the same of everyone who has the same mannerisms.

[00:19:13] Speaker 04:
But let me change the facts for you for a second.

[00:19:15] Speaker 04:
Let's assume, and we don't here, that we have overwhelming evidence that this is a disfavored group and the group is subject to persecution.

[00:19:26] Speaker 04:
If we had that, the board would have never gotten to that in this case because it would have found no individualized risk, correct?

[00:19:35] Speaker 03:
I'm sorry, Your Honor.

[00:19:36] Speaker 04:
Sure.

[00:19:37] Speaker 04:
It's a two-step analysis.

[00:19:38] Speaker 03:
Yes.

[00:19:39] Speaker 04:
Is there individualized risk?

[00:19:40] Speaker 04:
It's a sliding scale.

[00:19:42] Speaker 04:
No individualized risk.

[00:19:43] Speaker 04:
We don't worry about the weight of the evidence as to a disfavored group and whether a person is a member of it, et cetera.

[00:19:49] Speaker 04:
So I'm asking you to assume that there was overwhelming evidence that the groups that he claimed to belong to were a disfavored group and that they were subject to persecution in Mexico.

[00:20:00] Speaker 04:
Would then he have enough evidence to at least require the balancing?

[00:20:06] Speaker 03:
I can't speak for the board in our situation.

[00:20:11] Speaker 04:
Well, see, my problem is because they didn't balance at all and because we can't evaluate

[00:20:16] Speaker 04:
the other evidence because they never got to it.

[00:20:18] Speaker 04:
It's not our job.

[00:20:20] Speaker 04:
What we have here is them saying, I don't care how good your evidence about the disfavored group is, you don't enter that gateway because you haven't shown any individualized risk.

[00:20:31] Speaker 04:
That's what troubles me about the case procedurally.

[00:20:35] Speaker 03:
Yes, Your Honor, and just to respond to the question that's there.

[00:20:41] Speaker 03:
I think the board and the immigration judge were both aware of this.

[00:20:45] Speaker 01:
There's no indication they forgot in the meantime, unless the court has any other... Except that the incident has two pieces of relevance.

[00:20:56] Speaker 01:
One is that he was in fact harmed because he was gay, but underlying that is that he was recognizably gay, even at the age of 11.

[00:21:08] Speaker 01:
For that purpose, it has a different salience, and that wasn't considered either.

[00:21:14] Speaker 03:
I agree, Your Honor, that it's not explicitly addressed.

[00:21:17] Speaker 03:
If it didn't have that quality, it wouldn't have been relevant at all for withholding on the basis of a particular social group claim.

[00:21:25] Speaker 03:
So I think the board gave him that, that it was on the basis of a particular social group.

[00:21:31] Speaker 01:
But it didn't consider the, by saying it all happened 35 years ago,

[00:21:39] Speaker 01:
They were discounting as having any relevance to his present likelihood of risk, which presumably is what led to this notion that there was no evidence.

[00:21:51] Speaker 01:
But first of all, there was evidence that he'd been harmed 35 years ago.

[00:21:55] Speaker 01:
But second of all, that incident is evidence that he is likely to be obviously gay when he gets there, in addition to other evidence, because he said that he would and he wouldn't

[00:22:09] Speaker 01:
hang out in gay bars, and he had HIV, so medical people would know.

[00:22:14] Speaker 01:
And so there was a fair amount of evidence that he would be, he couldn't slip under the radar screen.

[00:22:19] Speaker 03:
And I would just say, Your Honor, that's evidence common to every member of his group.

[00:22:23] Speaker 01:
Well, no, it isn't evidence common to every member of the group.

[00:22:25] Speaker 01:
First of all, and second of all, so what?

[00:22:29] Speaker 03:
Well, then it's not individualized risk, Your Honor.

[00:22:34] Speaker 03:
And unless the Court has any other questions, I'm well over that.

[00:22:38] Speaker 02:
Any other questions?

[00:22:39] Speaker 02:
Thank you, Mr. Anderson.

[00:22:40] Speaker 02:
Thank you.

[00:22:43] Speaker 02:
Mr. Favella, you have two minutes.

[00:22:46] Speaker 00:
Your Honor, I don't have any additional arguments to present.

[00:22:49] Speaker 00:
I'm available for any questions if that may help the panel.

[00:22:53] Speaker 02:
Could you speak a little bit more about the cat claim and the level of evidence discussed there?

[00:23:00] Speaker 00:
Yes, Your Honor.

[00:23:02] Speaker 00:
In regards to the cat claim that Mr. Serra Hernandez is presenting, there is one significant difference in regards to contribution to evidence that was considered, particularly for HIV positive

[00:23:15] Speaker 00:
individuals in Mexico, that's not necessarily our argument that there is a lack of analysis to country condition evidence.

[00:23:22] Speaker 04:
But you're not basing it on that group.

[00:23:25] Speaker 00:
Correct.

[00:23:25] Speaker 00:
Well, correct, correct.

[00:23:28] Speaker 00:
Our argument is essentially overlapping with the withholding argument that there was no individualized consideration other than the HIV positive side.

[00:23:36] Speaker 04:
Well, let me ask you about the CAT claim because unlike the other claim,

[00:23:40] Speaker 04:
On this one, the board says, we discern no clear error in the immigration judge's determination that the respondent has not established that he will be more likely than not tortured in Mexico by or with the consent of the acquiescence, et cetera.

[00:23:54] Speaker 04:
The record doesn't compel a contrary conclusion, does it?

[00:23:58] Speaker 04:
You may have some evidence to the contrary.

[00:24:01] Speaker 04:
But if we were reviewing this under a substantial evidence standard, we would have to say the board's finding is supported by substantial evidence.

[00:24:10] Speaker 04:
You have a high burden, and they said you didn't meet it.

[00:24:13] Speaker 00:
I believe that, Your Honor, may be correct on that.

[00:24:16] Speaker 04:
On the cat claim?

[00:24:16] Speaker 00:
Yes, on the cat claim.

[00:24:18] Speaker 00:
There is one issue for the court's consideration, and that's that the board specifically stated the standard of review there being clear error.

[00:24:26] Speaker 04:
However... The board had the right standard of review, because the board was reviewing De Novo.

[00:24:32] Speaker 04:
The IJ may have reviewed

[00:24:34] Speaker 00:
Correct.

[00:24:34] Speaker 04:
Incorrectly, but the board looked at the record de novo.

[00:24:36] Speaker 04:
Doesn't that fix DIJ's error?

[00:24:38] Speaker 00:
They should look at it de novo.

[00:24:39] Speaker 00:
However, they're saying no clear error.

[00:24:42] Speaker 00:
They're articulating a different standard.

[00:24:43] Speaker 04:
Well, because they have a de novo standard of review, but they still review for clear error.

[00:24:48] Speaker 04:
Those are not inconsistent with each other.

[00:24:53] Speaker 01:
They review facts for clear error, right?

[00:24:55] Speaker 01:
Isn't that what they were doing?

[00:24:57] Speaker 01:
They always review facts.

[00:24:58] Speaker 00:
Correct.

[00:24:58] Speaker 00:
The facts are reviewed for clear error.

[00:25:00] Speaker 00:
the issue, the legal issue, is reviewed de novo.

[00:25:03] Speaker 00:
And if the court finds that they did review it de novo, then I don't have additional argument.

[00:25:08] Speaker 02:
Any other questions?

[00:25:10] Speaker 02:
No, I do.

[00:25:11] Speaker 00:
Thank you.

[00:25:11] Speaker 00:
Thank you.

[00:25:12] Speaker 00:
Thank you.

[00:25:13] Speaker 02:
Thank you, counsel.

[00:25:15] Speaker 02:
The case will be submitted.