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Good morning and may it please the court.

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My name is Jessica Zhang and I'm appearing on behalf of the petitioner, Mr. Jose Enriquez.

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I would like to reserve three minutes of my time for rebuttal.

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In this case, the agency misapplied

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that the BIA should have applied in adjudicating Mr. Enriquez's motion to remand.

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I believe Your Honor may be referring especially to matter of Coelho which the BIA did cite in denying Mr. Enriquez's motion to remand here.

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of his underlying relief

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of that agency error?

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Because it's legal error, there is no requirement of prejudice finding, but Mr. Enriquez presented substantial evidence with his motion to remand that would show that he has a reasonable likelihood of prevailing on the merits of his cat claim.

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And as this court has made very clear multiple times, the BIA was supposed to analyze

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So similarly to the last case, the state of emergency started in March, 2022, which post dated Mr. Enrique's original merits here in which took place in 2021.

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And so a lot of the supplemental evidence is relating to the new country conditions in El Salvador.

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would face immediately upon arrival in the airport after deportation.

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Under a combination of Decree 717, which predated the state of exception, and then also the new policies under the state of exception, Mr. Enriquez would face immediate flagging because of the information sharing programs between DHS and Salvadoran authorities, and then would be arbitrarily and indefinitely detained and placed in prison.

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And under the state of exception,

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of his evidence.

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very clear that Mr. Enriquez would be very likely targeted for his criminal record and because he had been previously imprisoned in the United States based on the information sharing that happens between DHS and the Salvadoran authorities under the CHIDS program, the Criminal History Information Sharing Program, and that she had actually interviewed authorities in El Salvador who corroborated her opinion.

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She also cited

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She said that the gang members were the primary target.

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So there has to be, the IJ weighing this evidence didn't see evidence that criminal deportees who were not gang members were, more likely than not,

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in a logical consistency, just because the vast majority of individuals tortured in El Salvador are gang members does not mean that a minority group within El Salvador like the group that Mr. Enriquez is a part of individuals in that group would be more likely than

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and all individuals named Jose Enriquez, the vast majority of individuals who are targeted under that policy would indeed be gang members, but anybody named Jose Enriquez, like the petitioner, would themselves face a more likely than not chance of being tortured.

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That's the question is whether there's evidence that compels a conclusion that someone in the category of Enriquez

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separate answers to that.

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The first is that in the record, it is clear that the experts believe Mr. Enriquez would in fact be tortured for that reason and other reasons.

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The record at 654 and 659, Ms.

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Kennedy talks about how Salvadoran authorities, death squads, gangs would all target Mr. Enriquez because of his criminal history.

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And in fact, she specifies that

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the fact be viewed as abhorrent by death squads.

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At the record at 689 Dr Montgomery clarified that both police and gangs would also find this

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between DHS and El Salvador, immediately upon landing at the airport, Mr. Enriquez would be flagged under the state of exception because of his criminal history.

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My second point to Your Honor's question is that the agency also aired an applying Velasquez-Samaioa, and so actually the agency did not need to find that Mr. Enriquez was more likely than not to be tortured

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Mr. Enriquez would not only be targeted because of his criminal history and because of the type of conviction that he received in the United States, but also because of his status as a long-term U.S.

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resident.

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So the IJ did say he looked at all of the evidence relevant to the possibility of future torture, that he considered the totality of the evidence, that his decision was based on the totality of the record, and then the BIA confirmed that the record in the aggregate does not establish

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it's more likely that the respondent would be tortured upon his return to El Salvador.

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And our decisions like Benedicto and Eriheda, we seem to indicate that was enough.

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Why do you say that's not enough?

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Your Honor, this isn't enough here because both the immigration judge and the BIA cited specifically to matter of JFF, which Valeska Samaioa was clear is not the appropriate

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one claim that relies on a chain of events.

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And here Mr. Enriquez has presented multiple claims for why he would be tortured.

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And the immigration judge explicitly applied matter of JFF, citing it three different times in his opinion.

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And then the BIA, even though Velasquez-Semiola had already come out between the immigration judge's decision and the BIA's decision,

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And so while I agree with your honor that the EPIA does not need to speak magic words or, you know...

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the agency is evaluating a chain of events, each of those steps in the chain of events must be more likely than not to occur in order for the agency to find that that claim of torture is more likely than not to occur.

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But as Velasquez-Semayoa has made clear, that is an improper raising of the burden because when you aggregate multiple claims, each individual claim by itself does not need to exceed 50%.

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And so when you add those together.

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But the agencies here didn't analyze the alternative theories

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saying they conflated and rather they say we looked at the totality of the evidence.

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I disagree your honor because the EBI cited explicitly to matter of JFF and the citation to that case

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Good morning, Honors.

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Linda Doe for the respondent, the United States Attorney General.

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that the overall risk of torture was not more likely than not.

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In making this assessment, they looked to the fact that Petitioner was not tortured in the past.

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He had returned in 2002 and was not threatened and harmed.

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And Petitioner did not indicate that anyone was looking for him or that he's currently a subject of interest.

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that he feared that he would be extorted due to his long-time residence by gang members and corrupt officials.

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Can you address the motion to remand?

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It does seem like the BIA applied the wrong standard in evaluating the motion to remand.

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Well, Your Honor, I actually held that the new evidence did not show that it could change the outcome, noting that they suffer from the same

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likelihood that Enriquez would prevail on the merits.

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So it didn't address the, is there a reasonable likelihood that he would prevail.

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Well, in light of the fact that the board found that they could not change the outcome, that would be even lower standard than a reasonable possibility.

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And the board's decision said that, you know, because it suffered for the same, it didn't, petitioner didn't show that it could change the outcome.

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So the, I did not

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However, here the board at page 5 said, had it been considered by the immigration judge, might have changed the outcome of the case.

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Accordingly, there was no reasonable possibility or reasonable likelihood that the evidence would have changed the outcome.

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So as applied in this instance, the board implied even a lower standard than what would have been for a prior prima facie.

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Well, assuming we don't think it's a lower standard,

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Do you agree that the BIA at least

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should make a showing that he would have been statutorily eligible for it.

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We have an expert, Dr. McNamara, who said that a deportee with a criminal history would almost certainly be detained.

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Detained or arrested.

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But that does not constitute or necessarily fall within the purview of torture, Your Honors.

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Again, and also, as the Board noted, expert McNamara did not specify by how often

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non-gang-related persons were arrested, much less how often they were subject to torture.

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That's the burden that petitioner bears to show.

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It simply has not done so.

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Right.

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But we're not saying whether that evidence was enough.

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We're saying, had the BIA considered it under the correct standard, would it have reached a different result?

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Well, as the immigration previously held on the board before that,

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would not have changed the outcome because, as the agency previously held, petitioners did not submit sufficient evidence.

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It's not that he did not submit any, it's that he did not submit, or submitted little to no evidence, little or insufficient evidence to sustain his burden.

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that newspapers would publish or could publish the names of criminal aliens such as Petitioner.

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She didn't show by how often.

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She didn't explain.

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Oh, she further indicated that the officials did not record or track what happened to such individuals after their names

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not show that we're more likely to not be tortured, akin to her opining that potential would be immediately detained and subject to arrest or imprisonment.

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Dr. Montgomery indicated that Petitioner was not likely to be detained, that it is possible that his conviction record could be redacted.

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It was also possible that she further noted that the information sharing was primarily

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included ostracism, suspicion, harassment, likelihood of being accosted on the street and questioned, marginalization and discrimination, and possibly beaten.

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Majority of the types of mistreatment treatment listed, as the agency noted, does not fall within the purview of torture.

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To the extent that he could possibly be beaten does not establish that he was more likely than not to be beaten and tortured.

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Accordingly, while she

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close it cancels as well the difference was the evidence was different in kind because it was after the state of emergency decided to make a difference.

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In regards to the fact that most of the state of emergency most of the evidence pertains to gang-related deportees or the you know the country's efforts to curb gang-related crime and violence which is not applicable to the petitioner in this case.

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To set that Mr.

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gang-related persons, he did not specify how often that would occur, and he did not indicate that they were tortured.

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Accordingly, a petitioner has not cited to any specific case or incident in which a non-gang-related person with a criminal conviction akin to petitioner has been tortured.

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Accordingly, a petitioner has not sustained their burden of proof in regards to the motion tree open or in regards to the underlying CAC claim.

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in regards to the denial of readjustment of status and 212-H relief.

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Are there any further questions, Your Honors?

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Turning to Fonseca Fonseca, I agree with Your Honor that the reasonable likelihood standard is a very different one than the would-likely-change standard, and in fact, in Fonseca Fonseca, this court made clear that the would-likely-change standard is a higher burden than the reasonable likelihood standard, and for that

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In Mr. Enriquez's supplemental evidence, Professor McNamara testified explicitly about torture and said that individuals like Mr. Enriquez who have criminal convictions or

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that police were, quote, keen to arrest individuals like Mr. Enriquez who have criminal convictions and who are U.S.

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deportees in order to fulfill quotas that they now have under the state of emergency.

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And I want to emphasize again that under the Fonseca

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to decide whether to remand to fact finder to determine that aggregate risk.

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colleague mentioned individual testimony that Mr. Enriquez's experts have presented and concluded that individual pieces of

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We believe that remand is appropriate.