[00:00:00] Speaker 03:
Okay, great.

[00:00:00] Speaker 03:
Then we are ready to hear argument whenever you gentlemen are ready to present it.

[00:00:05] Speaker 01:
Great.

[00:00:05] Speaker 01:
Good morning.

[00:00:06] Speaker 01:
May it please the court, counsel.

[00:00:07] Speaker 01:
My name is Robert Carpenter and I'm here for Ms.

[00:00:10] Speaker 01:
Guerrero and her minor writer daughter, Ruth.

[00:00:14] Speaker 01:
I'm going to jump right in and address the ability and willingness to protect because I believe this case turns on that question to a large extent.

[00:00:22] Speaker 01:
The agency, the IJ and the board both aired in assessing whether or not

[00:00:27] Speaker 01:
the Salvadoran authorities had the ability and willingness to protect the petitioners.

[00:00:32] Speaker 01:
They erred because they only looked toward whether or not the government was willing and not whether they were able.

[00:00:38] Speaker 01:
This was a fatal error in their analysis.

[00:00:41] Speaker 01:
And the quintessential reason why that's true from rating the opinions is because they ascribed the logic of because the gang members were worried about being reported to the police, the police must arrest gang members and therefore there's an ability to protect.

[00:00:57] Speaker 01:
plot argument that the willingness to perhaps protect doesn't equate to an ability.

[00:01:01] Speaker 01:
And the country condition evidence that was submitted shows a plethora of reasons why you shouldn't believe that that's true.

[00:01:08] Speaker 02:
Council, can you hear me?

[00:01:10] Speaker 02:
Yes.

[00:01:11] Speaker 02:
Okay.

[00:01:11] Speaker 02:
So on this point, your client testified that of instances where gang members were locked up, right?

[00:01:20] Speaker 02:
That is true.

[00:01:21] Speaker 02:
And the agency relied in part on the country report, which showed that 16,215 inmates, 16,250 individuals who are current or former gang members were incarcerated, were locked up, right?

[00:01:42] Speaker 02:
That's true.

[00:01:43] Speaker 02:
So why is that not germane to the question of willing and able?

[00:01:51] Speaker 02:
If you've if your client testified as to knowledge of people, gang members who were locked up and there were 16000 plus gang members who were jailed, why isn't that relevant?

[00:02:08] Speaker 01:
Well, I would concede that it is relevant to the question of willingness.

[00:02:11] Speaker 01:
But what 16,000 means in the context of a country that was completely overridden by the Maras is open to question.

[00:02:17] Speaker 01:
We don't know the answer to that.

[00:02:18] Speaker 01:
But what we do know is the same country condition report, Your Honor, outlined widespread corruption, weak rule of law, increased levels of impunity and abuse, a lack of respect for court orders, violence by gangs on a local setting to pick up families.

[00:02:33] Speaker 02:
Counsel, if it's open to question,

[00:02:37] Speaker 02:
on the record that we have here, how can we say that every reasonable adjudicator would have had to decide the way you are urging us to?

[00:02:49] Speaker 01:
Because I don't think that the fact they arrested people goes to ability.

[00:02:54] Speaker 01:
It only goes to willingness.

[00:02:55] Speaker 01:
And the case law is clear.

[00:02:57] Speaker 01:
It has to be both.

[00:02:59] Speaker 01:
JR versus Barr says that it's both.

[00:03:02] Speaker 03:
I have a related question.

[00:03:05] Speaker 03:
But I think we're having a little bit of a delay.

[00:03:07] Speaker 03:
Forgive me.

[00:03:08] Speaker 03:
I think you weren't done answering Judge Bennett's question.

[00:03:11] Speaker 03:
So please finish before I jump in.

[00:03:14] Speaker 01:
Sure, I meant to say that I agree that it goes to willingness, but not the ability.

[00:03:19] Speaker 01:
JR versus Barr says that we need both.

[00:03:21] Speaker 01:
We don't know that that was effectual in all of the country.

[00:03:24] Speaker 01:
Evidence, including the credited testimony, is that it was not effectual.

[00:03:28] Speaker 01:
So there is no testimony that says that it was effectual.

[00:03:31] Speaker 01:
There's simply testimony, and there's no testimony.

[00:03:35] Speaker 01:
There's country condition evidence that shows there was a willingness, but nothing to show that they had the ability.

[00:03:40] Speaker 03:
My somewhat related question is that we have authority that says that the BIA isn't required to mention every bit of evidence in the country conditions reports, of course.

[00:03:52] Speaker 03:
But in this particular case, we have a petitioner and her daughter who are specifically concerned about the danger to women and to young girls in El Salvador.

[00:04:03] Speaker 03:
And the country conditions do speak to that, but the BIA did not.

[00:04:07] Speaker 03:
Do we have any authority that indicates that the BIA errs by not addressing particularly relevant country conditions?

[00:04:19] Speaker 01:
Yes.

[00:04:20] Speaker 01:
The VITU decision says that if relevant and germane information isn't discussed,

[00:04:26] Speaker 01:
That's a matter for remand.

[00:04:28] Speaker 01:
So I'll agree with the fact that the government, the agency discussed the country condition reports, but only Cherry Picket didn't discuss any of the other relevant evidence that all militated towards a lack of an ability to control.

[00:04:42] Speaker 03:
Sir, I'm working really hard to try to hear you, but I'm not sure that I understood if you did provide any particular authority for that.

[00:04:52] Speaker 01:
I didn't hear it.

[00:04:54] Speaker 01:
So.

[00:04:55] Speaker 01:
And I apologize.

[00:04:56] Speaker 01:
Can you hear me better?

[00:04:57] Speaker 03:
Yes.

[00:04:58] Speaker 03:
If you can try to keep your voice up.

[00:04:59] Speaker 03:
I'm sorry.

[00:05:00] Speaker 03:
This is a little less than perfect.

[00:05:02] Speaker 03:
Usually we do quite well by video, but we're having a little bit of a, you're just a little bit muffled.

[00:05:06] Speaker 03:
So if you can tell me, do you have any authority for the proposition that the BIA burs if it doesn't particularly address country conditions reports that are relevant to the harm described?

[00:05:23] Speaker 01:
Sure, the most relevant decision would be the Madrigal versus older decision wherein the agency only addressed the willingness and not the ability to control the Zeta cartel in Mexico.

[00:05:33] Speaker 01:
That's probably the most relevant decision on your question.

[00:05:37] Speaker 03:
Okay, that's all the questions I had.

[00:05:39] Speaker 03:
Do you have questions, Judge Baird?

[00:05:40] Speaker 01:
No questions.

[00:05:42] Speaker 03:
No further questions.

[00:05:43] Speaker 03:
Is there more you would like to tell us or would you like to reserve your time?

[00:05:46] Speaker 01:
I'd like to reserve a minute if we could.

[00:05:48] Speaker 03:
Well, you certainly got plenty of time to reserve.

[00:05:50] Speaker 03:
So we'll we'll I'm just not sure if you are.

[00:05:54] Speaker 03:
Are you ready to stop now and hear it from opposing council?

[00:05:57] Speaker 01:
No, I do have a couple of other points ahead.

[00:06:00] Speaker 01:
Thank you.

[00:06:01] Speaker 01:
The 1st is on the question of whether or not there was an exit.

[00:06:04] Speaker 01:
The IJ seems to concede there was in footnote three of its opinion.

[00:06:09] Speaker 01:
And that's really problematic, not just for asylum, but also for withholding where the standard is for nexus is much lower.

[00:06:15] Speaker 01:
It's only a reason, not one central reason.

[00:06:17] Speaker 01:
So the IJ completely missed on explaining associated to the board why, you know, why family wasn't a reason when footnote three clearly indicates it likely was.

[00:06:27] Speaker 01:
And so that's deserving of a remand on its own.

[00:06:30] Speaker 01:
And I'll reserve the last minute.

[00:06:32] Speaker 03:
Okay.

[00:06:33] Speaker 03:
Thank you.

[00:06:34] Speaker 03:
We'll hear from opposing counsel, please.

[00:06:46] Speaker 00:
Thank you, Your Honors.

[00:06:46] Speaker 00:
May it please the Court, my name is Brandon Callahan on behalf of the Attorney General today.

[00:06:50] Speaker 00:
Your Honor, I would just like to start off by agreeing with my opposing counsel that I think this case really does turn on the question of whether or not substantial evidence supports the agency's finding that the Salvadoran government... Go a little bit slower, Mr. Callahan.

[00:07:01] Speaker 02:
You've got plenty of time.

[00:07:02] Speaker 00:
I apologize, Your Honor.

[00:07:05] Speaker 00:
The case really does turn on whether or not substantial evidence supports the agency's finding that the Salvadoran government was not and would not be both unwilling and unable to assist Ms.

[00:07:15] Speaker 00:
Guerrero Vialta and protect her from the gang members she fears.

[00:07:18] Speaker 00:
And on that point, I think the record contains significant evidence, both on a generalized national level and in a case-specific level.

[00:07:29] Speaker 00:
As Judge Bennett discussed a little bit, and the immigration judge pointed out, the record documents 16,000 gang-related arrests as of 2017.

[00:07:38] Speaker 03:
It doesn't.

[00:07:39] Speaker 03:
It documents the number of people in prison, I think.

[00:07:41] Speaker 00:
Excuse me, Your Honor.

[00:07:42] Speaker 03:
And that's quite different, because we don't know whether they joined gangs once they got to prison or not.

[00:07:46] Speaker 03:
And your point's well taken.

[00:07:47] Speaker 03:
16,000 sounds like a lot of people.

[00:07:49] Speaker 03:
But it is a different population.

[00:07:51] Speaker 03:
It's the prison population.

[00:07:52] Speaker 03:
It doesn't tell us anything about the people who are in gangs and not in prison.

[00:07:57] Speaker 00:
That's certainly true, Your Honor, yes, and I apologize for misspeaking.

[00:07:59] Speaker 00:
That's okay.

[00:08:00] Speaker 00:
It is documenting the number of inmates, but still 16,000 gang-related inmates as of 2016 is an appreciable demonstration of the government's willingness, certainly.

[00:08:13] Speaker 00:
there's an ability behind that number.

[00:08:15] Speaker 00:
The government has to be able to actually apprehend, try, and incarcerate these people, all parts of a question of ability.

[00:08:22] Speaker 03:
That's why it would be more helpful, and we can't get perfect records always, but that's why it would be more helpful if we knew how many of those folks were gang members before they went to prison, as opposed to joining gangs once they were there.

[00:08:35] Speaker 03:
But I digress.

[00:08:35] Speaker 03:
Go right ahead.

[00:08:36] Speaker 00:
Certainly, Your Honor.

[00:08:37] Speaker 00:
And I agree.

[00:08:38] Speaker 00:
There's more information that would be relevant here that we don't have.

[00:08:41] Speaker 00:
And I think that that point is really salient to the consideration of the case because of the standard of review here.

[00:08:46] Speaker 00:
There has to be enough evidence in the record to compel a reasonable fact finder that the government was or would be unable and unwilling.

[00:08:54] Speaker 00:
And I would argue that

[00:08:56] Speaker 00:
We don't have that here.

[00:08:57] Speaker 00:
What we have is a demonstration on a broad national level that the government has a willingness, certainly, and I would argue an ability.

[00:09:04] Speaker 00:
We also, I would like to just point out that the country conditions evidence on 296 through 298 of the record talks about the extraordinary measures, I believe is the term that the Salvadoran government uses, that they're undertaking to try to control gang crime and violence, both

[00:09:19] Speaker 00:
in the country nationally and, I think, importantly, to your honor's point, in the prison system.

[00:09:25] Speaker 00:
So, again, I think that demonstrates a willingness certainly and an ability at least to some extent to try to subdue the gang activity in the country.

[00:09:35] Speaker 00:
And I think here it's important to remember the court's guidance in Hussein versus Rosen that the national government, the Salvadoran government, is not required to prevent all risk of harm.

[00:09:46] Speaker 00:
And I believe the court's words in Hussain were that the government is not on it willing or unable when it, quote, demonstrates efforts to subdue said groups, which I think on a national level, we have evidence that they are working to subdue the group.

[00:09:59] Speaker 00:
But in addition to this national level evidence, we also have specific evidence that Your Honor has addressed with my opposing counsel a little bit.

[00:10:06] Speaker 00:
I think the first piece of evidence is,

[00:10:08] Speaker 00:
I believe Judge Bennett asked about this.

[00:10:10] Speaker 00:
The gang clearly does not want to interact with the police.

[00:10:12] Speaker 00:
The specific gang members that Ms.

[00:10:14] Speaker 00:
Guerrero-Vialta fears do not want to interact with the police.

[00:10:17] Speaker 00:
Two of the three threats she received were about avoiding interaction with the police.

[00:10:23] Speaker 00:
And I think that Ms.

[00:10:25] Speaker 00:
Guerrero's statement on 172 of the record that the gang members don't want to interact with the police because they know that they could be arrested, tried and incarcerated is really telling because these specific gang members in the area she lives

[00:10:39] Speaker 00:
have that fear by her own acknowledgment.

[00:10:41] Speaker 00:
So that demonstrates both that the gang believes that the police are willing and able and that the regular citizens who aren't gang members believe that the police have at least some willingness and ability to control the gang.

[00:10:53] Speaker 00:
I think that there's another discussion on page 166 and into 167 of the record

[00:10:59] Speaker 00:
where Miss Guerrero-Vialta is discussing the second threat she received when she was kind of passing gang members on the way out of a local festival, and they asked her if there were any police up ahead.

[00:11:09] Speaker 00:
And the threat was something like, if you're wrong, we're going to take it out on you.

[00:11:14] Speaker 00:
But in there, she was asked, why do the gang members not want to see the police at this festival?

[00:11:20] Speaker 00:
And she gave an explanation about how they carry guns.

[00:11:23] Speaker 00:
And if the police see them with the guns, the police will take the guns away from them.

[00:11:27] Speaker 00:
which again is demonstrating a willingness and an ability, in reference to these specific criminals, to control them and protect the general population.

[00:11:36] Speaker 00:
The last point I would like to make on the question of unwilling and unable, or I guess the case-specific evidence I would like to reference, is the fact that the gang member Cairo, who is, by Ms.

[00:11:49] Speaker 00:
Guerrero-Vialte's testimony, the leader of the gang, at least in her area, and I would point out the only gang member present at all three threats,

[00:11:57] Speaker 00:
was arrested and incarcerated.

[00:11:59] Speaker 00:
He got out after two months.

[00:12:01] Speaker 00:
He did, Your Honor.

[00:12:02] Speaker 00:
That is her testimony.

[00:12:03] Speaker 00:
But I think it's important to remember what we don't know about those proceedings.

[00:12:08] Speaker 00:
If we take what Miss Guerrero-Vialta testified to as correct information, then we know that he was arrested in relation to a murder.

[00:12:15] Speaker 00:
But we don't know anything about the charges.

[00:12:18] Speaker 00:
We don't know if he was charged with murder or some kind of aiding and abetting crime.

[00:12:22] Speaker 00:
We have no idea.

[00:12:23] Speaker 00:
We also don't know anything about the hearing that she says he participated in.

[00:12:29] Speaker 00:
And I think that we don't have really very much evidence about the result of that hearing.

[00:12:34] Speaker 00:
She says he had a hearing and he was released after two months.

[00:12:37] Speaker 00:
It's not clear, did that end in a conviction or an exoneration?

[00:12:41] Speaker 00:
It's very likely, or I guess just as likely, that he could have been convicted of some

[00:12:48] Speaker 00:
crime significantly less than murder and why does it matter I'm sorry whether he was convicted or not if he's back on the street and because I think and harm people I think the orderly operation of Salvadoran law and the court system demonstrates an ability but we don't know and that's my point is again you mean it may not signal corruption exactly your honor yes signal corruption

[00:13:07] Speaker 02:
I mean, I guess we also don't know, but correct me if I'm wrong.

[00:13:11] Speaker 02:
From her testimony, I thought it's conceivable, and I don't know anything about the bail structure, that he could have been released on bail.

[00:13:19] Speaker 02:
It wasn't clear to me whether this was the final determination or not.

[00:13:24] Speaker 00:
I would agree, Your Honor, there's a discussion in her testimony about him having a hearing to see if there was enough evidence or something like that.

[00:13:33] Speaker 00:
But there's nothing really very legal in that discussion about what exactly that hearing was.

[00:13:40] Speaker 00:
And I bring this up only to point out that it may demonstrate, it's just as likely to demonstrate an orderly operation of Salvadoran law.

[00:13:47] Speaker 00:
We can disagree about how effective those procedures may or may not be, but it's just as likely to demonstrate an orderly operation as it is to demonstrate an inability to control these gangs or to support any kind of argument about, you know, the inability of the government or any kind of fear of reprisal or anything like that.

[00:14:07] Speaker 03:
Council, could you turn to the question I have about

[00:14:10] Speaker 03:
I mentioned it.

[00:14:11] Speaker 03:
I asked it to opposing counsel.

[00:14:13] Speaker 03:
We don't require the BIA to list every factoid from a country condition report.

[00:14:19] Speaker 03:
But it does seem to me to be striking.

[00:14:21] Speaker 03:
This is a woman who's got a very young child, and the country conditions report lists particular harms that, and particularly, grave risk of sexual assault for young girls.

[00:14:31] Speaker 03:
And the BIA doesn't mention that at all.

[00:14:35] Speaker 03:
What should I make of that?

[00:14:37] Speaker 00:
Your Honor, I understand your point, absolutely, but there is case law of that.

[00:14:42] Speaker 00:
As you say, the Board doesn't have to write an exegesis on the record.

[00:14:47] Speaker 03:
What about the most pertinent part of the record?

[00:14:50] Speaker 03:
What about the most pertinent part of the country condition report?

[00:14:54] Speaker 00:
Yes, Your Honor.

[00:14:55] Speaker 03:
A very pertinent part.

[00:14:57] Speaker 03:
Do we have case law about that?

[00:14:58] Speaker 03:
Should we be concerned about that?

[00:15:00] Speaker 03:
What's your best shot?

[00:15:01] Speaker 00:
I think it's wise to be vigilant of that and to make sure that the board is considering all the relevant evidence.

[00:15:08] Speaker 00:
Here, you know, the board adopted and affirmed the IJ's discussion and the IJ explicitly discussed the country conditions at reports.

[00:15:15] Speaker 00:
which is a strong indication that the agency reviewed those reports.

[00:15:19] Speaker 00:
Now, I take Your Honor's point that certainly there's always, I think, more that could have been said, but this is not a case where we have an indication that the government overlooked relevant evidence.

[00:15:30] Speaker 00:
It's just a case of, as the Court has said, not writing an exegesis on

[00:15:34] Speaker 00:
every piece of evidence in the record.

[00:15:36] Speaker 00:
But I do take Your Honor's point that the evidence about women in El Salvador is relevant.

[00:15:42] Speaker 00:
I would point out that in Appellant's brief, they discuss some of the evidence surrounding the country conditions evidence about women in El Salvador.

[00:15:51] Speaker 00:
And with respect to my opposing counsel, I would take a little bit of issue with it because it's presented in their brief as if

[00:15:58] Speaker 00:
women are at particular risk of the police refusing to assist them.

[00:16:03] Speaker 00:
And that is not really, when you read deeper into the reports, what the reports talk about.

[00:16:09] Speaker 00:
Specifically, I'm looking at 348 of the record.

[00:16:13] Speaker 00:
I believe the title is something like Women in El Salvador.

[00:16:17] Speaker 00:
I'm sorry, I don't have the specific title on me.

[00:16:21] Speaker 00:
But it talks about, I believe the phrase it uses is that there are important measures being implemented to protect women in El Salvador.

[00:16:30] Speaker 00:
is obviously does acknowledge the difficulties for women in El Salvador.

[00:16:34] Speaker 00:
But again, going back to the standard of review, there has to be enough evidence for the court to find that any reasonable adjudicator would be compelled to find that the government was either unwilling or unable to assist her.

[00:16:45] Speaker 00:
And I think that it is certainly plausible that an adjudicator could find that the government was unwilling or unable.

[00:16:52] Speaker 00:
I apologize if I could just.

[00:16:53] Speaker 02:
Thank you.

[00:16:55] Speaker 00:
I think it's plausible, but I don't think it's compelled by the record here.

[00:16:58] Speaker 00:
And so I think keeping that standard of review in mind is very important.

[00:17:01] Speaker 00:
And unless your honors have any other questions, we would just ask that the court deny the petition.

[00:17:06] Speaker 03:
Thank you, counsel.

[00:17:07] Speaker 00:
Thank you.

[00:17:07] Speaker 03:
I hear from opposing counsel, who's saved a little rebuttal time.

[00:17:11] Speaker 01:
Yes.

[00:17:11] Speaker 01:
Thank you, your honor.

[00:17:14] Speaker 01:
I'd like to spend my time on discussing the fact that none of the record evidence, none of the country conditions that dealt with

[00:17:22] Speaker 01:
the Salvadoran government's inability to control the gangs was discussed, not any of it, and there was plenty in there to be discussed.

[00:17:30] Speaker 01:
So this isn't weighing evidence that was positive against weighing evidence that was negative.

[00:17:35] Speaker 01:
We have no discussion about the violence against women, and that was described as being perpetrated with impunity.

[00:17:41] Speaker 01:
There was no discussion of the gangs taking over public transit and requiring IDs.

[00:17:45] Speaker 01:
And there was no discussion of authorities saying that whole villages were closed down by the gangs with no ability to restore normal.

[00:17:52] Speaker 01:
That does not sound like an ability to control.

[00:17:55] Speaker 01:
And that's all that I have.

[00:17:56] Speaker 01:
And I appreciate your attention.

[00:17:57] Speaker 03:
Thank you.

[00:17:58] Speaker 03:
Judge Bennett, were you getting ready to ask a question?

[00:18:00] Speaker 03:
No.

[00:18:01] Speaker 03:
No.

[00:18:02] Speaker 03:
OK.

[00:18:02] Speaker 03:
All right.

[00:18:02] Speaker 03:
Well, it looks like we're ready to wrap up with this one.

[00:18:05] Speaker 03:
Thank you both so much for your advocacy.

[00:18:07] Speaker 03:
It was very helpful.

[00:18:09] Speaker 03:
We'll take this case under advisement and move on to the next case on the calendar.

[00:18:15] Speaker 03:
Thank you.

[00:18:15] Speaker 03:
Thank you.