[00:00:28] Speaker 05:
reserve two minutes for rebuttal.

[00:00:32] Speaker 05:
This court's decision and Wren B. Holder is well established precedent in this circuit.

[00:00:38] Speaker 05:
Wren interpreted the Real ID Act to require a certain procedural

[00:00:58] Speaker 05:
to obtain that cooperative evidence.

[00:01:01] Speaker 05:
Here, the IJ below followed none of the rent requirements.

[00:01:06] Speaker ?:
Instead, the IJ gave a general and boilerplate admonition during a master calendar hearing, and six months later,

[00:02:00] Speaker 05:
on corroboration.

[00:02:01] Speaker 05:
It included a citation to Wren v. Holder, and the opinion addresses both prongs of the Wren requirements.

[00:02:10] Speaker 05:
On notice, the BIA concluded that the IJ's master calendar hearing admonition was sufficient for notice under Wren.

[00:02:18] Speaker 05:
In odd opportunity, the BIA reasoned that because Mr. Canales-Caronia came to his merits hearing with a litany of documentary

[00:02:31] Speaker 05:
Accordingly, the BIA addressed the corroboration issue on its merits, and the issue is properly before this Court.

[00:02:43] Speaker ?:
Additionally, the due process error stemming from the Wren violation was necessarily prejudicial.

[00:02:50] Speaker 05:
Our briefing includes a citation to three cases, Lai, Batari, and Ajunzi, which find upon a finding of rent violation, automatic and inferred prejudice because of the inability for the applicant to create a full and complete record.

[00:03:09] Speaker 05:
Because the lack of a full and complete record necessarily

[00:03:38] Speaker 04:
But the, um, the IJ also decided on an alternative grant.

[00:03:43] Speaker 04:
I guess your co-counsel is arguing that, so even if we agree with you on REN, that doesn't mean that your client prevails, correct?

[00:03:52] Speaker 05:
Your Honor, I respectfully disagree.

[00:03:53] Speaker 05:
I think a finding of error under REN

[00:03:57] Speaker 05:
the proceedings.

[00:03:59] Speaker 05:
For example, the IJ's analysis of the particular social group aspect of the withholding claim would have been different had the IJ provided Mr. Canales and Canales-Cronia an opportunity to present the corroborative evidence in the form of an affidavit from the mother that would have affected the IJ's determination of the particular social

[00:04:31] Speaker 05:
and Mr. Canales currently has siblings murder as well as the reason for that.

[00:04:35] Speaker 05:
If Mr. Canales currently had been given an opportunity to present that affidavit, that would have affected the IJ's determination of the particular social group question.

[00:04:44] Speaker 05:
And your honor, I see my four minutes has elapsed.

[00:04:47] Speaker 05:
So if you have no other questions, I'd like to allow my co-counsel to speak.

[00:04:52] Speaker 05:
Thank you.

[00:05:02] Speaker 01:
May it please the court, certified law student Elena Carter, for Mr. Canales-Cardona.

[00:05:06] Speaker 01:
I will be addressing our arguments on withholding.

[00:05:09] Speaker 01:
The BIA characterized Mr. Canales-Cardona's argument regarding family as new on appeal, but the record compels the conclusion that he properly raised family as a potential particular social group to the IJ.

[00:05:22] Speaker 04:
I looked at all of the sites in your brief, and they have the word family, or there was a site due for a circuit case.

[00:05:28] Speaker 04:
There was no specific

[00:05:36] Speaker 04:
on that point do you lose?

[00:05:39] Speaker 01:
No, Your Honor, because the IJ's duty in this case was, and this is the IJ's own words here, was that he needs to look at the record and see if any particular social groups would conform to the facts.

[00:05:55] Speaker 04:
The IJ doesn't really have that duty, but here the IJ said he considered the particular social group of persons who

[00:06:04] Speaker 04:
traffickers want him to work for them, and then he held that that wasn't enough to state of a particular social group.

[00:06:12] Speaker 04:
Why doesn't that resolve this issue?

[00:06:17] Speaker 01:
Well, Your Honor, first of all, this holding that the group defined by gay resistance was not cognizable as a matter of law, there is no such categorical rule.

[00:06:28] Speaker 01:
The BIA, for instance, pointed to a case involving an applicant

[00:06:32] Speaker 01:
from Honduras for the general proposition

[00:06:49] Speaker 01:
different society, you have to actually make a case-by-case determination as to whether a proposed social group is recognized by the particular society in question.

[00:06:58] Speaker 04:
I didn't see any argument that Guadalupe was meaningfully different than Honduras.

[00:07:04] Speaker 01:
Did I miss that?

[00:07:05] Speaker 01:
So, again, that assessment involves looking at country conditions reports, expert witness testimony, press accounts, historical

[00:07:14] Speaker 01:
pattern, so, um, country conditions reports can be updated, can change, so.

[00:07:20] Speaker 01:
But was that case made to Mr. Canales Cardona, made that argument?

[00:07:26] Speaker 01:
Um, well, Mr. Canales Cardona didn't, did include evidence in the record pages 343 to 344, which is in the country conditions reports, that should have been sufficient to apprise the IJ of, of the,

[00:07:44] Speaker 01:
recognizable in that particular society and that evidence on the record speaks to resistors of gang recruitment being perceived as having betrayed the cartels, turning their back on the cartel, and therefore being singled out for that unique method of violence.

[00:08:01] Speaker 01:
However, I would like to jump back to the family-based group because

[00:08:10] Speaker 01:
that first circuit case, as you just mentioned, Gabriel Michael versus INS, holding that membership in a particular social group can be established based on the relationship with the family member, but he also explicitly raised the issue in many places throughout the record, and I see I'm now cutting into my rebuttal time if I could just briefly finish my point, Your Honor.

[00:08:30] Speaker 01:
Of course.

[00:08:31] Speaker 01:
I just want to draw your attention

[00:08:37] Speaker 01:
final example, I'd like to say that Mr. Canales Cardona's brother, Olvin, was threatened by Edgar Rivera on a soccer field, and Rivera told Olvin, your brother deserves the worst.

[00:08:46] Speaker 01:
And Olvin disappeared shortly thereafter.

[00:08:49] Speaker 01:
And that interaction suggests that the cartel was targeting Olvin, at least in part due to his relationship with his brother, less likely because years prior he had refused to work for the cartel.

[00:09:00] Speaker 01:
So that, I believe, undercuts the government's characterization of Mr. Canales Cardona and his siblings as merely random, similarly

[00:09:27] Speaker 06:
but changed the details, now claiming that he and his brothers had been, or siblings had been, and would be harmed because they refused to join a criminal gang.

[00:09:38] Speaker 06:
Because of that change and because that alleged motivation is not protected ground, the immigration judge properly denied on nexus and on corroboration.

[00:09:48] Speaker 06:
The petitioner doesn't really focus on those actual findings, instead presents his court with a variety of largely procedural complaints,

[00:10:00] Speaker 06:
Nexus is a spousal withholding of removal, and Petitioner does not meaningfully address it.

[00:10:06] Speaker 06:
The immigration judge found that Petitioner specifically testified that he believes he will be harmed because drug traffickers want him to work for him, and that's not protected ground.

[00:10:16] Speaker 06:
That's not the immigration judge guessing.

[00:10:19] Speaker 06:
That's explicitly what Petitioner testified when the immigration judge asked him very directly, okay, what is the motive?

[00:10:25] Speaker 06:
And Petitioner said, they're drug traffickers, and they want you to work for them.

[00:10:30] Speaker 06:
not family, not all the other particular social groups that Petitioner has dropped by the wayside as these proceedings has gone on.

[00:10:38] Speaker 06:
The immigration judge found the motivation wasn't exactly as Petitioner testified it was, a desire for him to work with them and a prior desire for the siblings to work with them.

[00:10:51] Speaker 06:
That's not protected grounds and Petitioner could have somehow changed or modified that

[00:11:06] Speaker 06:
Two of which now have been, again, discarded, and now presenting a fifth.

[00:11:11] Speaker 02:
Mr. Nsenga, could I interrupt you for a second?

[00:11:15] Speaker 02:
Would you direct yourself to the argument made by Mr. Hampton that, number one, Mr. Canales-Gardona was found to be credible?

[00:11:44] Speaker 02:
Do you agree with Mr. Absalom on that?

[00:12:18] Speaker 06:
equal adequate.

[00:12:19] Speaker 06:
And again, what petitioners repeatedly ignored is a specific testimony that the drug dealers wanted to harm him because he didn't want to work for him, not family.

[00:12:31] Speaker 02:
But I think the point is, did the immigration judge say the corroborative evidence ought to be pointed to the claim of a particular social group?

[00:12:42] Speaker 02:
Was he specific enough in asking for the corroborative evidence to meet the test?

[00:12:48] Speaker 02:
Well, that's where it's difficult.

[00:13:25] Speaker 06:
Which Petitioner denied, don't deny, Petitioner doesn't deny the common-sensical concept in this case where Petitioner was in removal proceedings for five years, submitted essentially the exact same claim, absent explaining motivation, goes to Guatemala voluntarily for three months, comes back, and now says he knows why.

[00:13:46] Speaker 06:
It's a completely reasonable request to say, well, okay, well, how did this change?

[00:14:08] Speaker 04:
Do you disagree with their argument that the requirements of Renby Holder were not met in the IJ's request for cooperation?

[00:15:07] Speaker 06:
drug dealers and have for since, well, 2006.

[00:15:11] Speaker 06:
So again, if Petitioner wanted to raise these claims, raise them to the Board and the Board would happily address them.

[00:15:18] Speaker 06:
But we can't now go second guessing the immigration judge, because note what Petitioner has argued today, the immigration judge committed there.

[00:15:28] Speaker 06:
Is the immigration judge committed there?

[00:15:30] Speaker 06:
Ask the Board to fix it.

[00:15:33] Speaker 06:
This discussion would be very different.

[00:15:39] Speaker 06:
It's a word lawyer's use to dismiss legal requirements.

[00:15:45] Speaker 06:
Congress mandates it, as the Supreme Court emphasized just recently.

[00:15:48] Speaker 06:
They found it's not jurisdictional, but it's mandatory.

[00:15:51] Speaker 06:
This is not a formalistic trick to harm anyone.

[00:15:54] Speaker 06:
This is simply saying the agency must be given the opportunity to pass on issues.

[00:15:59] Speaker 06:
You must present it.

[00:16:00] Speaker 06:
Petitioner, limit.

[00:16:02] Speaker 06:
Formalistic, technical, or otherwise, it's a legal mandate by Congress.

[00:16:07] Speaker 03:
Just a trance brief here.

[00:16:32] Speaker 06:
Remember context, Your Honor.

[00:16:34] Speaker 06:
This person attempted at a later hearing to apply the exact same asylum application that had already been denied just recently.

[00:16:42] Speaker 06:
The immigration judge said, you can't do that.

[00:16:45] Speaker 06:
I need a different application.

[00:16:46] Speaker 06:
You can't rely on the exact same application.

[00:16:50] Speaker 06:
And I need evidence on that.

[00:16:52] Speaker 06:
Then, Petitioner said, well, what he actually testified to was, I haven't spoken to my mother since I was in Guatemala.

[00:17:42] Speaker 06:
just press briefly the concept suggesting that red equals an automatic prejudices case it fundamentally ignores what occurred in here petitioners emphasizing corroboration for family

[00:18:30] Speaker 06:
Well, the petitioner has not addressed cap protection at all, and so we will leave that for the briefs and find that the court should deny, in part, and dismiss, in part, given petitioners' failure to raise essentially the vast majority of claims to the agency.

[00:18:50] Speaker 06:
Thank you, Your Honor.

[00:18:51] Speaker 04:
Thank you.

[00:18:52] Speaker 04:
You have a minute for rebuttal.

[00:19:00] Speaker 05:
Thank you, Your Honors.

[00:19:01] Speaker 05:
Just three quick points.

[00:19:03] Speaker ?:
First, exhaustion with respect to the corroboration issue.

[00:19:08] Speaker 05:
Government counsel is noticeably silent on the issue of the BIA addressing corroboration on its

[00:19:20] Speaker 05:
opportunity prong of Wren.

[00:19:22] Speaker 05:
While the BIA has addressed an issue on its merits, it's properly before this Court, regardless of what the content of the applicant's or the petitioner's briefing.

[00:19:33] Speaker 05:
The policy behind exhaustion is that we want to give the BIA an opportunity to pass on an issue before it comes to this Court, and that occurred below.

[00:19:42] Speaker 05:
Accordingly, exhaustion is not an issue, at least for the cooperation issue, issues properly before this Court.

[00:19:49] Speaker 05:
Second, the government says that the I.J.

[00:19:53] Speaker 05:
gave petitioner a notice that the I.J.

[00:19:56] Speaker 05:
required some sort of cooperation that is clearly deficient under Wren and illustrates the prejudice in this case.

[00:20:03] Speaker 05:
Had the I.J.

[00:20:04] Speaker 05:
informed Mr. Canales-Cardinia that, I see my time has lapsed maybe.

[00:20:46] Speaker 04:
Thank you.