[00:00:01] Speaker 04:
And I think, are we hearing first from Ms.

[00:00:03] Speaker 04:
Kastner?

[00:00:05] Speaker 01:
Yes, Your Honor, that's correct.

[00:00:06] Speaker 01:
I did want to ask if the timer should say 15 minutes, as that's what I read on the calendar.

[00:00:11] Speaker 01:
But if this court would like to set 10 minutes, I would be happy to open that as well.

[00:00:16] Speaker 04:
So the way we're going to set this up is you have 10 minutes for opening argument, and then five minutes was reserved for rebuttal.

[00:00:23] Speaker 04:
If you want us to put the full 15 on, now we can do that for you.

[00:00:30] Speaker 01:
Your Honours, we were planning on reserving three minutes for about all if that's possible.

[00:00:33] Speaker 04:
Three minutes?

[00:00:34] Speaker 04:
Okay.

[00:00:35] Speaker 04:
Let's go ahead and just put 15 on and then we'll just pay attention to that and we'll go from there.

[00:00:42] Speaker 01:
Thank you.

[00:00:44] Speaker 01:
Good morning, Your Honours, and may it please the court.

[00:00:47] Speaker 01:
My name is Alyssa Kastner and I'm appearing on behalf of the petitioner as a certified law student in the Asylum and Convention Against Torture Appellate Clinic at Cornell Law School.

[00:00:56] Speaker 01:
I would like to reserve, I've already reserved three minutes for rebuttal, and my supervisor, Estelle McKee, will be handling it.

[00:01:03] Speaker 01:
With the court's permission, we will refer to the petitioner by his initials, since this court allowed it in briefing and given today's argument to be made available to the public.

[00:01:12] Speaker 01:
Today we ask the court to remand based on errors in three of the agency's findings.

[00:01:16] Speaker 01:
First, that Mr. GC's conviction is a particularly serious crime that bars withholding of removal.

[00:01:22] Speaker 01:
Second, that he does not meet the substantive requirements of withholding of removal.

[00:01:26] Speaker 01:
And third, that he does not meet the requirements for protection under the Convention Against Torture.

[00:01:31] Speaker 01:
When determining whether a withholding applicant's conviction is particularly serious, the agency must consider all relevant, reliable evidence of the petitioner's mental health.

[00:01:41] Speaker 01:
Here, although the agency acknowledged that Mr. G.C.

[00:01:44] Speaker 01:
may have been suffering from PTSD at the time of the crime, its reasoning demonstrates that it did not actually consider whether he was.

[00:01:51] Speaker 01:
The only mental health symptom the agency took into account was hallucinations.

[00:01:56] Speaker 01:
But hallucinations are not a symptom of PTSD, and Mr. G.C.

[00:01:59] Speaker 01:
never asserted he was experiencing hallucinations at the time.

[00:02:03] Speaker 01:
Instead, he explained that he had blacked out and snapped in response to a trigger word, and he submitted a psychological report confirming that alterations in arousal and reactivity in response to triggers are symptoms of PTSD that he struggles with.

[00:02:17] Speaker 01:
Ms.

[00:02:17] Speaker 05:
Castro, can I ask, what should the IJ have done in your view to account for the different mental illnesses that are in the record?

[00:02:29] Speaker 01:
The IJ should have specifically concluded that Mr. GC's symptoms of PTSD did not impact his motive or intent.

[00:02:36] Speaker 01:
And in failing to do so, it demonstrated that it did not actually consider his PTSD at all.

[00:02:43] Speaker 01:
which constitutes an error of law.

[00:02:45] Speaker 05:
So let me ask because one might be able to read the record to say that the IJ was aware of the different mental symptoms and just chose to weigh the evidence differently that the PTSD symptoms were not

[00:02:59] Speaker 05:
mitigating enough factor to forego making the particularly serious crime determination.

[00:03:07] Speaker 05:
Why isn't that an appropriate reading of the record instead of what you seem to suggest is that it legally erred by excluding consideration of certain mental symptoms?

[00:03:18] Speaker 01:
Your Honor, in response to that question, I would like to pose a metaphor that might help illustrate the problem.

[00:03:24] Speaker 01:
The agency's reasoning is like saying, this child may be suffering from dyslexia, yet he's not suffering from blurred vision.

[00:03:32] Speaker 01:
Therefore, there are no disabilities impacting his ability to read.

[00:03:36] Speaker 01:
The problem is that the conclusion ignores the primary impact of dyslexia only because the child's not suffering from vision problems.

[00:03:44] Speaker 01:
Here, the agency ignored the impact of PTSD only because he was not suffering from hallucinations, which demonstrates that it did not properly consider his PTSD.

[00:03:53] Speaker 04:
I think the one problem with your analogy might be that I don't think that there was an affirmative statement, maybe I'm wrong, correct me if I'm wrong, that PTSD was not an issue.

[00:04:04] Speaker 04:
He just didn't say the magic words that you wanted the IJ to say.

[00:04:08] Speaker 04:
And we see this from time to time where we have to infer what the IJ might have looked at from what the IJ said.

[00:04:17] Speaker 04:
And I'm wondering why, given the deferential standard of review, it's not adequate

[00:04:24] Speaker 04:
for us to say to infer that the IJ did in fact look at the first at PTSD and just concluded that it wasn't an issue here.

[00:04:35] Speaker 04:
I think it would be different if the IJ had affirmatively said something to the opposite, but I don't think that happened here.

[00:04:44] Speaker 01:
Your Honor, the fact that the IJ concluded only based on hallucinations, that he was not suffering from any mental health mitigating the seriousness of his crime, shows that it didn't actually consider the PTSD.

[00:04:58] Speaker 01:
And I do understand what the Court is saying.

[00:05:01] Speaker 01:
However, I would like to note that

[00:05:04] Speaker 01:
The IJ on hallucinations specifically found that there was no hallucinations contributing to his actions.

[00:05:11] Speaker 01:
But for the PTSD, he never stated that there were no symptoms that contributed to his actions at the time.

[00:05:17] Speaker 01:
And that omission indicates that it did not actually properly consider his PTSD.

[00:05:22] Speaker 05:
What if the IJ had said, I'm aware that this person has PTSD and that that can result in these triggering episodes that may not be within their control, and I'm sympathetic to that.

[00:05:35] Speaker 05:
But nonetheless, because we have to determine based on dangerousness or the propensity for dangerousness, I don't find that to be mitigating enough to avoid making this determination.

[00:05:47] Speaker 05:
Would that change, you know, under this hypothetical record, would that change your analysis in your view?

[00:05:52] Speaker 01:
Yes, Your Honor, that would indicate that the agency had actually considered the symptoms at hand, but that's not what the IJ said here.

[00:06:00] Speaker 05:
Your thought is, because of the emphasis on hallucinations, that became the threshold issue to the exclusion of what PTS might do as a mechanism for causing this incident.

[00:06:13] Speaker 01:
Exactly, Your Honor, that's correct.

[00:06:16] Speaker 01:
And the agency also had no basis for limiting the reasoning to hallucinations in that way.

[00:06:22] Speaker 01:
This court has never found that hallucinations are required in the PSC determination.

[00:06:28] Speaker 01:
And in doing so here, the agency applied a requirement that does not exist.

[00:06:35] Speaker 01:
On withholding of removal, the agency committed two legal errors.

[00:06:38] Speaker 01:
First, the agency failed to consider the Mexican government's ability to protect Mr. G.C.

[00:06:43] Speaker 01:
and the agency failed to address regulatory factors governing reasonableness.

[00:06:48] Speaker 01:
Though the agency is required to consider both whether the government is unwilling and whether it is unable to protect a petitioner, but here the agency did not consider the ability element at all.

[00:06:58] Speaker 01:
In Madrigal, this court found that the agency had failed to consider ability, where it cited statistics on the Mexican government's national efforts to combat drug violence, but did not examine the efficacy of those efforts.

[00:07:09] Speaker 01:
The agency committed that exact same legal error here.

[00:07:12] Speaker 01:
It noted that the Mexican government had created a new National Guard and improved training of federal police, but it did not consider whether those efforts have been affected.

[00:07:21] Speaker 01:
The agency, in doing so, ignored evidence of local government failures that do speak to ability, namely that there are three facts that this court relied on in Madrigal that exist in this case that the agency ignored.

[00:07:35] Speaker 01:
First, that the national government's efforts have led to increased violence, so the opposite of ability.

[00:07:41] Speaker 01:
Second, that there is widespread corruption and collusion at the state and local levels, which the Department of State reports submitted here that the agency did not cite even includes the same language this court quoted in Madreville to find that there was a failure to consider ability.

[00:07:57] Speaker 01:
And finally, that victims are reluctant to go to authorities because they fear the cartels.

[00:08:02] Speaker 01:
Madrigal concerned the same government and the same cartels as this case does, and the conditions in Mexico have not changed since then.

[00:08:08] Speaker 01:
Record evidence demonstrates that.

[00:08:10] Speaker 01:
So because the agency committed the same exact error as it did there, the Court should reach the same conclusion here.

[00:08:21] Speaker 01:
Thank you, Jonas.

[00:08:22] Speaker 01:
On relocation, the agency failed to consider three regulatory factors governing reasonableness, social and cultural ties, geographic limitations, and other serious harm.

[00:08:32] Speaker 04:
Can I ask you just a second there, Council?

[00:08:36] Speaker 04:
Was this raised below before either the IJ or the BIA, these relocation points?

[00:08:45] Speaker 04:
Or is this a new argument?

[00:08:48] Speaker 01:
Your Honor, the specific argument was not raised below.

[00:08:51] Speaker 01:
However, Mr. OGC specifically challenged the relocation determination before the board on page 38 of the record, and the Ninth Circuit also has held that the petitioner is not required to raise the exact arguments below.

[00:09:05] Speaker 01:
It is only required to challenge the same issues.

[00:09:09] Speaker 01:
As such, the argument is exhausted.

[00:09:13] Speaker 03:
So, Council, what

[00:09:16] Speaker 03:
Yeah, that is our rule.

[00:09:20] Speaker 03:
It sounds like your position is that it kind of depends on what level you're taking issue to mean, like how generalized you get.

[00:09:28] Speaker 03:
I assume you would say that if they didn't raise asylum, but they raised withholding of removal, then the asylum would be unexhausted or waived.

[00:09:45] Speaker 03:
If somebody doesn't raise a legal argument like what you're making now, why does it make sense to have us consider that when the agency never got a chance to pass on it at all because it was never raised?

[00:10:00] Speaker 03:
In other words, it could be an issue, right?

[00:10:02] Speaker 03:
You could say, well, that's the issue that wasn't raised.

[00:10:05] Speaker 01:
Right.

[00:10:06] Speaker 01:
However, the BIA actually did discuss the reasonableness of relocation in its decision, which means that it was on notice that that was at issue.

[00:10:15] Speaker 01:
And therefore, the purpose of the exhaustion requirement, which is to put the BIA on notice, was met here.

[00:10:24] Speaker 03:
Right.

[00:10:25] Speaker 03:
It discussed relocation, but it didn't address the issue that you're raising now, the legal issue, because, as I understand it, the petitioner never presented that to the BIA as a deficiency in the IJ's analysis.

[00:10:41] Speaker 03:
So it feels a little bit unfair for us to now say, BIA, you screwed up, when the petitioner never told the BIA that this was a problem with the IJ's analysis.

[00:10:54] Speaker 01:
Yes, Your Honor, I understand.

[00:10:55] Speaker 01:
I do want to point out that the BIA did specifically cite to the word reasonableness and cited to the regulation, which is at heart of the statutory argument here.

[00:11:05] Speaker 01:
And also note that in Diaz Jimenez, this court discussed a decision in Moreno Moreno where a non-citizen tried to argue for the first time

[00:11:14] Speaker 01:
before the court, a statutory construction that grandchildren qualify as a child under 8 U.S.C.

[00:11:20] Speaker 01:
1101, and that the noncitizen had not made that construction before the board, but it had argued that grandchildren are qualifying relatives, and that is the same thing that happened here, Your Honor, the Mr. G.C.

[00:11:32] Speaker 03:
challenge.

[00:11:33] Speaker 03:
I think you have only a minute left.

[00:11:36] Speaker 03:
So your specific argument here is, and it kind of goes to a question I think Judge Sanchez asked in a different context, which is,

[00:11:42] Speaker 03:
Your argument is that the agency never explicitly addressed these regulatory factors, correct?

[00:11:49] Speaker 03:
It didn't explicitly address them.

[00:11:50] Speaker 03:
Of course, the response is there's no reason to think the agency didn't consider them.

[00:11:55] Speaker 03:
It doesn't have to explicitly address everything.

[00:11:58] Speaker 03:
But if petitioner had actually raised and said, you know, the IJ did not address these factors,

[00:12:05] Speaker 03:
then the BIA, you would expect, would have come back and said, we think that the IJ addressed them, but just not explicitly.

[00:12:13] Speaker 03:
So wouldn't it be helpful to have had it presented to the BIA?

[00:12:18] Speaker 03:
I mean, your whole point that the agency didn't address it seems to me to be pretty clearly because the agency would have addressed it if it had been raised before the BIA, I feel like.

[00:12:30] Speaker 01:
Yes, Your Honor, I do understand.

[00:12:31] Speaker 01:
Just being conscious of time, I want to very quickly address a couple of things on the Convention Against Torture point, but I do recognize this court's concern with the exhaustion point.

[00:12:42] Speaker 01:
On Convention Against Torture, the agency committed legal error in both its determination that Mr. GC is not likely to suffer future torture

[00:12:49] Speaker 01:
and that the government will not acquiesce to that torture, it narrowed its legal standard for the acquiescence determination by not considering public officials.

[00:12:58] Speaker 01:
And I would like to reserve the rest of my time for my focus.

[00:13:02] Speaker 05:
I did have a question about the CAT claim.

[00:13:04] Speaker 05:
One of the claims you raise is that the allegations of past torture need not be in the country to which the person would be removed.

[00:13:13] Speaker 05:
And I'm wondering if you can explain what authority you're relying on for that proposition.

[00:13:20] Speaker 01:
Yes, Your Honor.

[00:13:20] Speaker 01:
The regulations governing asylum and withholding do limit past persecution to harm suffered in the country of removal, specifically including that limiting language.

[00:13:29] Speaker 01:
But the regulations governing the Convention Against Torture do not include that limiting language.

[00:13:34] Speaker 01:
And that omission, we believe, is quite logical considering the purpose of the past torture analysis, which is, as this court stated in Nehru, because past conduct frequently tells us how much about how an individual

[00:13:47] Speaker 01:
will behave in the future and in reality where the past conduct occurs has no bearing on that consideration.

[00:13:53] Speaker 05:
But if we think of the torture analysis as you know by state actors or at the acquiescence of state actors doesn't that necessarily imply thinking about that occurring in the country to which someone might be removed?

[00:14:08] Speaker 05:
In other words, if someone were tortured in a completely unrelated place, why would that bear on the question that if you remove them to a different country, that they might suffer that same risk of torture again?

[00:14:18] Speaker 01:
Because the likelihood of future torture analysis and the government acquiescence analysis are two separate considerations.

[00:14:28] Speaker 01:
And the likelihood of future torture can be demonstrated without acquiescence.

[00:14:33] Speaker 01:
Although both need to be demonstrated, they are separate considerations.

[00:14:38] Speaker 04:
Okay.

[00:14:39] Speaker 04:
You will reserve the rest of your time and we'll give you another minute for rebuttal.

[00:14:43] Speaker 01:
Thank you, Your Honors.

[00:14:47] Speaker 04:
We'll hear from the government.

[00:14:52] Speaker 02:
Eric Anderson, representing the Attorney General in the case before the Court today.

[00:14:57] Speaker 02:
uh... just to take thirty seconds to make sure the government's position on aggravated felony is clear in this mr gc was not charged as being removable on the basis of an aggravated felony and therefore under this court's law an aggravated felony charge does not limit its jurisdiction uh... and although we think the agency's decision addressing asylum and withholding are fully dissent defensible and bible about i'm about to defend them in fact

[00:15:27] Speaker 02:
The fact that the crime is an aggravated felony means any remand to address asylum would be futile because we know the outcome.

[00:15:35] Speaker 02:
We know what the agency is required to do as for asylum.

[00:15:39] Speaker 02:
Turning then to the issues before the court, we have

[00:15:45] Speaker 02:
Abundant credible evidence that Mr. GC suffered extensive abuse at the hands of his father.

[00:15:52] Speaker 02:
And while regrettable, there's three important things about this that will keep coming up in different ways.

[00:15:58] Speaker 02:
He's been harmed by one person who has no connection to the Mexican government, and all of this harm occurred in the United States.

[00:16:06] Speaker 02:
And in one way or the other, these three things will

[00:16:09] Speaker 02:
support the agency's decision denying relief.

[00:16:13] Speaker 02:
So withholding of removal is, of course, denied on three bases, the particularly serious crime finding, the finding that he could relocate within Mexico, and the finding that he did not show the government was unable or willing to protect him.

[00:16:28] Speaker 02:
To start with particularly serious crime, I think, well,

[00:16:34] Speaker 02:
Mr. GC admits that most of the issues have been adequately addressed.

[00:16:37] Speaker 02:
The agency considered the nature of the offense, most of the circumstances, the sentence.

[00:16:42] Speaker 02:
The only issue he takes is over mental health.

[00:16:45] Speaker 02:
And the record is clear, the immigration judge was fully aware of the diagnoses.

[00:16:50] Speaker 02:
And when he addressed the issues that he considered as being presented in the case, he was addressing what the evidence showed.

[00:16:58] Speaker 02:
under this court's Benedicto decision, it's his burden to directly attribute his offense to a mental health issue that shows he is less dangerous.

[00:17:08] Speaker 02:
And in fact, I would just

[00:17:11] Speaker 05:
Well, Mr. Anderson, let me ask you this.

[00:17:14] Speaker 05:
Clearly, the IJ understood other mental illness issues were at play because they were addressed in different parts of the decision.

[00:17:23] Speaker 05:
But only PTSD and hallucinations are mentioned in this portion of the particularly serious crime analysis.

[00:17:31] Speaker 05:
Why don't those other, even if you're correct that the mental illness should relate more directly to the incident issue, why don't the other ones also relate insofar as emotional dysregulation, trigger to anger?

[00:17:48] Speaker 05:
Should we make something of the fact that they were not discussed in the particularly serious crime analysis portion of the decision?

[00:17:56] Speaker 02:
I don't think so, Your Honor, and that's because if we looked at Deanna Gulo's declaration, which is what our evidence is of his mental health issues, she talks about difficulties with responding to anger repeatedly in the PTSD section.

[00:18:10] Speaker 02:
This is where it comes up repeatedly.

[00:18:13] Speaker 02:
Just as hallucinations are tied to schizophrenia or issues related to schizophrenia, the anger issues are related to PTSD, and that was what the immigration judge was presented with, and that's what he addressed.

[00:18:26] Speaker 02:
And I'd contrast Mr. GC's situation with this court's decision in Gomez Sanchez.

[00:18:34] Speaker 02:
There's a footnote at the end of Gomez Sanchez.

[00:18:37] Speaker 02:
And my broad paraphrase says, look, if a victim of serial abuse lashes out and does severe harm against her abuser, this might very well be a factor that shows she is less dangerous to the world at large.

[00:18:52] Speaker 02:
That's not what happened here.

[00:18:53] Speaker 02:
Mr. GC did not lash out at the man who abused him over a long time.

[00:18:58] Speaker 02:
He lashed out at a different member of the community.

[00:19:01] Speaker 02:
Why?

[00:19:02] Speaker 02:
Because a trigger was directed at him.

[00:19:04] Speaker 02:
This shows that these triggers and the one in this case is not the only one.

[00:19:09] Speaker 02:
I know portions of GC's brief put together a lexicon of all the words his father directed at them.

[00:19:16] Speaker 02:
If any of those could trigger him to lash out against a member of the public, it shows he is more dangerous and not less dangerous.

[00:19:24] Speaker 02:
And I think the agency looked at all the evidence and drew and the appropriate factors.

[00:19:30] Speaker 02:
And having done that, this court should find no abuse of discretion there.

[00:19:35] Speaker 02:
Moving on to the merits of the withholding.

[00:19:38] Speaker 02:
I think the immigration judge did an admirable job on the relocation finding.

[00:19:43] Speaker 02:
The immigration judge said, look, who do we fear here?

[00:19:47] Speaker 02:
We fear the father and the Zetas.

[00:19:50] Speaker 02:
And we know the father is in Tijuana, and Mr. GC has no intent of going and looking him up.

[00:19:55] Speaker 02:
And we know the expert, Dr. Kirkland, said the Zetas are most active near the border.

[00:20:01] Speaker 02:
That means less active not near the border.

[00:20:04] Speaker 02:
We know that the Mexican government provides assistance to those returning, and we know that Mr. GC has at least a couple of familial sources of benefit.

[00:20:14] Speaker 02:
There's the grandmother.

[00:20:15] Speaker 02:
There's also the fact that his mother in the United States testified that if he is deported, she will return with him.

[00:20:23] Speaker 02:
The immigration judge looked at all this and considered some of the same facts and the factors that Mr. GC now argues are not

[00:20:32] Speaker 02:
We're not considered.

[00:20:34] Speaker 02:
I would note, so the immigration judge says something about not only could he safely relocate, but he is capable of moving around in Mexico.

[00:20:44] Speaker 02:
Mr. GC's brief, page 18 of his brief to the board, basically conceded, we're not contesting.

[00:20:50] Speaker 02:
He can move around within Mexico.

[00:20:52] Speaker 02:
And in fact, the board exited that in its decision.

[00:21:00] Speaker 02:
Pardon me, Your Honor, page four of the board's decision, page six of the AR.

[00:21:04] Speaker 02:
The respondent does not deny that he can move away from these locations.

[00:21:09] Speaker 02:
So when I raised exhaustion, it's against this backdrop.

[00:21:13] Speaker 02:
The immigration judge made the finding.

[00:21:14] Speaker 02:
He explicitly said he wasn't contesting the reasonableness aspect, and the board relied on that.

[00:21:22] Speaker 02:
And so, I mean, as I said, I think the immigration judge does address some of the most, or at least some of these factors and some of these facts.

[00:21:31] Speaker 02:
but we would rely on exhaustion to explain why they're not addressed further.

[00:21:36] Speaker 02:
So those are two reasons to deny withholding.

[00:21:39] Speaker 02:
If they don't carry the day, there's also the willing and able finding.

[00:21:42] Speaker 02:
We know that

[00:21:46] Speaker 02:
My job would be much easier if the immigration judge had not put the words not ineffective into quotation marks here, because I do not disagree at all that GC's expert, Dr. Kirkland, is nowhere recorded as saying not ineffective.

[00:22:04] Speaker 02:
As a procedural explanation, when the immigration judge who issued this decision, he heard Dr. Kirkland's testimony live in between the period

[00:22:16] Speaker 02:
of the hearing and the decision he would have access to audio recordings, but there was no transcript prepared until an appeal was taken to the board.

[00:22:27] Speaker 02:
That's just the agency's procedures.

[00:22:29] Speaker 02:
So the immigration judge, it wasn't as if he was flipping through the transcript too quickly.

[00:22:33] Speaker 02:
He had access to his memory, his notes, and the recordings.

[00:22:37] Speaker 02:
And I don't know what any of us would hear if the recording was played in front of us.

[00:22:43] Speaker 02:
Is it true that the words not ineffective are not in the transcript?

[00:22:46] Speaker 02:
Absolutely, and I'm stuck with them.

[00:22:48] Speaker 02:
But they're a fair summarization of Dr. Kirkland's testimony that the Mexican government has put forth great efforts and that it would be wrong to say they are inept or incapable of improving the situation.

[00:23:04] Speaker 02:
I would also draw the court eyesight in my brief AR 472 to 484 as other record documents.

[00:23:15] Speaker 02:
I believe it's a New York Times article about successes by the Mexican government in combating cartel violence.

[00:23:22] Speaker 05:
Let me pause you there.

[00:23:25] Speaker 05:
I think this is the portion, particularly with the cat claim that causes more concern for me.

[00:23:30] Speaker 05:
Our court often denies claims based on generalized risk of violence by cartels.

[00:23:39] Speaker 05:
But here we have something different, I believe.

[00:23:43] Speaker 05:
A particularized risk that's been specified that G.C.'

[00:23:46] Speaker 05:
's father is a member of Los Zetas.

[00:23:49] Speaker 05:
Recent threats to him.

[00:23:51] Speaker 05:
The ability of the Zetas to reach people throughout much of the country.

[00:23:55] Speaker 05:
And several cases, you know, Madrigal and now Zui Chua James or Jaimez that came out just a couple of years ago.

[00:24:06] Speaker 05:
that discuss country conditions of the government being unable to control ascetes.

[00:24:13] Speaker 05:
And I don't see that much difference between those cases and these circumstances.

[00:24:20] Speaker 05:
So why doesn't the CAT claim have traction in your view?

[00:24:27] Speaker 02:
Sure.

[00:24:27] Speaker 02:
I'll move on to CAT, which I can

[00:24:32] Speaker 05:
I mean, it dovetails into your discussion right now about what the government is able to do or were willing to do.

[00:24:38] Speaker 02:
Sure.

[00:24:38] Speaker 02:
So there, the standard is acquiescence.

[00:24:40] Speaker 02:
And we'll come back to what efforts the father is likely to make, whether what his intent is towards the child.

[00:24:48] Speaker 02:
But as to acquiescence,

[00:24:53] Speaker 02:
There are cases that talk about the difficulties in Mexico, and in every case this court has to assess is it more likely or not than there will be acquiescence.

[00:25:03] Speaker 02:
And while there are cases that say the government loses, there are cases like BR that says simply news reports and general accounts

[00:25:12] Speaker 02:
are insufficient to show the acquiescence.

[00:25:15] Speaker 05:
But that, we don't have that here.

[00:25:16] Speaker 05:
We have a State Department report from 2018.

[00:25:19] Speaker 05:
We have expert testimony that the IJ considered was credible.

[00:25:24] Speaker 05:
And you have specific allegations of threats to, you know, about GC or to his family, you know, by an individual who's a member of the Zetas.

[00:25:35] Speaker 05:
So it's, you know, I don't know that we're relying so much on news articles as much more particularized concrete evidence.

[00:25:44] Speaker 02:
Well, Your Honor, I don't think, I mean, so we, you know, we have this one man father who is connected to the network of Los Edas that cover, I gather, about half of the states in Mexico, not every state, but about half the states.

[00:26:03] Speaker 02:
And there is no evidence, well, I guess I'd back up.

[00:26:08] Speaker 02:
We know what the Zetas do.

[00:26:10] Speaker 02:
Dr. Kirkland started his testimony by talking about all the interests in, neither in his testimony nor in anywhere else in the record, is there evidence that the Zetas police their members' children or help their members kill their own children.

[00:26:23] Speaker 02:
There is no account like this, that this is what the Zetas are up to.

[00:26:29] Speaker 05:
Well, wasn't there an account that he threatened GC's grandmother by sending members connected to the crime group to beat her up or something?

[00:26:41] Speaker 05:
Wasn't that in the record?

[00:26:43] Speaker 02:
Well, it was two women allegedly were sent by him.

[00:26:47] Speaker 02:
The only motivation we have is that it was related to his anger that the mother still won't reunite with him, meaning the father.

[00:26:59] Speaker 02:
The immigration judge considered this fact.

[00:27:02] Speaker 02:
He acknowledged it.

[00:27:03] Speaker 02:
He talked about it.

[00:27:04] Speaker 02:
He noted that there was no evidence that this assault on the grandmother had been reported to police.

[00:27:12] Speaker 02:
At the acquiescence stage for cat issues, there has to be advanced knowledge and something more than the torture subsequently happening.

[00:27:24] Speaker 02:
At this point,

[00:27:27] Speaker 02:
with all the harm being inflicted on GC in the United States, there's been no opportunity for the Mexican law enforcement to be informed or to be put on advance notice.

[00:27:40] Speaker 02:
So we're not.

[00:27:40] Speaker 05:
I'm sorry to interrupt, but that also wasn't something that came up in Zohitua, Jemez.

[00:27:45] Speaker 05:
There was a cat claim there.

[00:27:47] Speaker 05:
Same with Madrigal.

[00:27:49] Speaker 05:
And it didn't necessarily involve advance reporting to the police in order to sustain a cat claim.

[00:27:55] Speaker 05:
And as long as you've got the government acquiescence because of their inability to control this very violent crime group, and coupled with these specific particularized threats, I think we have a bit of a different situation here.

[00:28:10] Speaker 05:
I'm not hearing something distinguishing this case from other published decisions, even recent ones, that have sustained cat claims on this basis.

[00:28:25] Speaker 02:
Well, Your Honor, I think that the evidence just has to be assessed in what is compelled in a particular case.

[00:28:36] Speaker 02:
Here we know Dr. Kirkland talked about the improvement in Mexican law enforcement and that this would be enough to support

[00:28:45] Speaker 02:
the inference drawn by the agency.

[00:28:47] Speaker 02:
Kat also requires some finding that it is more likely than not that the father is actually going to pursue the son from Tijuana.

[00:28:55] Speaker 02:
The immigration judge was well aware of all the past harm that the father has inflicted on this family.

[00:29:01] Speaker 02:
He explained his reasons for drawing the inference that it was not more likely than not that the father was going to

[00:29:09] Speaker 02:
torture, GC in the future.

[00:29:13] Speaker 02:
He talked about the passage of time, the fact that threats to kill in the past had been made and not fulfilled.

[00:29:22] Speaker 02:
the mother's testimony, which she immediately explained, but the mother testified that the father had said on the telephone that he wanted to help G.C.

[00:29:30] Speaker 02:
Of course, she moved on to say that she didn't believe this.

[00:29:34] Speaker 02:
But all of this is substantial evidence supporting the inference that the immigration judge did draw.

[00:29:40] Speaker 02:
And on that basis, we think

[00:29:43] Speaker 02:
The denial of withholding and cat are fully supported by the record.

[00:29:47] Speaker 02:
Unless the court has any other questions, I'd ask the court to deny the petition.

[00:29:52] Speaker 04:
Okay, thank you.

[00:29:54] Speaker 04:
We will give two minutes for rebuttal.

[00:29:58] Speaker 00:
Thank you, Your Honors.

[00:29:59] Speaker 00:
Estelle McKee for Petitioner GC.

[00:30:01] Speaker 00:
Just a few items to touch on.

[00:30:04] Speaker 00:
Regarding the particular serious crime determination, I would note that the agency considered a variety of GC's mental illnesses, including PTSD, with competence and credibility, as Your Honors noted.

[00:30:22] Speaker 00:
But the sole analysis that limited consideration of PTSD was the particularly serious crime, the analysis.

[00:30:32] Speaker 00:
And there must be, according to the Supreme Court, a rational connection between the facts and the finding.

[00:30:40] Speaker 00:
And the limiting word, yet, there were no hallucinations, that particular phrase indicates that the agency was not connecting the facts, since hallucination is not even a symptom of PTSD, with the final outcome that a particularly serious crime, that mental health did not affect the motivation or intent in this particularly serious crime.

[00:31:10] Speaker 00:
Further, the agency's citation of all the evidence together without pulling out Gullio's evidence, without pointing out to any testimony, is the equivalent of a catch-all phrase that is insufficient to support that decision.

[00:31:26] Speaker 00:
Further, regarding exhaustion, the BIA did find that the relocation was reasonable.

[00:31:33] Speaker 00:
It specifically found reasonableness, and it discussed extended family in Mexico.

[00:31:39] Speaker 00:
the grandmother, basically.

[00:31:41] Speaker 00:
And that discussion has to do with family ties, most likely, and therefore is actually an analysis of reasonableness.

[00:31:51] Speaker 00:
Lastly, regarding the likelihood of torture, depends on who the torturer is.

[00:31:55] Speaker 00:
If the torturer leaves the country, then the past torture is not relevant.

[00:32:00] Speaker 04:
OK.

[00:32:01] Speaker 00:
Thank you.

[00:32:02] Speaker 00:
Thank you.

[00:32:02] Speaker 04:
Thank you to all counsel for your arguments in this case.

[00:32:04] Speaker 04:
And Ms.

[00:32:05] Speaker 04:
Kastner, thank you for taking time out of your law school student studies to prepare for this case.

[00:32:13] Speaker 04:
You represented your client well.

[00:32:15] Speaker 04:
And with that, the case is now submitted.

[00:32:19] Speaker 04:
And we'll move on to our final argument set for argument today.