[00:00:02] Speaker 03:
Good morning, Your Honors.

[00:00:03] Speaker 03:
May it please the court, Jenna Beyer from the San Francisco Public Defender's Office appearing on behalf of Petitioner.

[00:00:09] Speaker 03:
I'd like to reserve five minutes for rebuttal.

[00:00:11] Speaker 01:
Can I ask you something just right off the bat?

[00:00:13] Speaker 01:
I got to say, I was a little offended by the request to use a pseudonym on the very eve of oral argument.

[00:00:22] Speaker 01:
This case has been going on for a long time.

[00:00:25] Speaker 01:
You've known about the issue for a long time.

[00:00:28] Speaker 01:
and all you ended up doing was by basically re-arguing the same things you'd done before without giving the other side an opportunity to respond.

[00:00:36] Speaker 01:
Why was this filed so late?

[00:00:38] Speaker 03:
Your Honor, we did approach the opposing counsel regarding the motion to proceed under pseudonym, and they did not oppose.

[00:00:44] Speaker 01:
I understand that, but I'm talking about the timing.

[00:00:47] Speaker 03:
Certainly, Your Honor, this was something that we discussed with our client on close to the oral argument because the pleadings in this case are not made public.

[00:01:01] Speaker 03:
Unless someone is interested in seeing them, they can come to the court and request them specifically, whereas a memorandum disposition or a published opinion

[00:01:09] Speaker 03:
is very easily accessible by the public, and that is what raised concern for the petitioner.

[00:01:16] Speaker 01:
Again, and you know this well, the BIA's opinion is available, the IJ's opinion is available.

[00:01:24] Speaker 01:
If they go on Google or whatever, there are just all kinds of things out there other than the final disposition.

[00:01:31] Speaker 01:
I understand the general point, but I just thought, wow, these are professionals.

[00:01:36] Speaker 01:
Why are we getting at this at this late?

[00:01:39] Speaker 01:
time in the case.

[00:01:40] Speaker 01:
The issue's been there all along, right?

[00:01:43] Speaker 03:
Certainly, Your Honor, I apologize for that.

[00:01:45] Speaker 03:
It's not without precedent, however, to request proceeding under pseudonym this late.

[00:01:50] Speaker 03:
I would point, Your Honors, to BR versus Garland, another case argued by my colleagues at the Public Defender's Office in which the proceeding under pseudonym was requested after the opinion was published.

[00:02:03] Speaker 03:
And here we think that having the decision made available on the website

[00:02:09] Speaker 03:
whether it's published or in a memorandum disposition form, will put the petitioner at greater risk, both in Mexico and also in his circumstances in detention.

[00:02:19] Speaker 01:
Thanks for mentioning that.

[00:02:20] Speaker 01:
I apologize for starting right off this way, but it's kind of stuck in my craw a little bit, so I thought I would express that.

[00:02:27] Speaker 03:
I apologize, Your Honor.

[00:02:33] Speaker 03:
We are here because the IJ refused to accord potentially dispositive expert testimony.

[00:02:41] Speaker 03:
no weight in petitioner's convention against torture claim.

[00:02:47] Speaker 04:
If we decide based on that claim, should we or can we reach any of the other evidentiary issues?

[00:02:56] Speaker 04:
So on the expert opinion issue, can we get to any of the other issues if that's a basis for granting?

[00:03:05] Speaker 03:
If the court agrees with me that the IJ erroneously disregarded the expert testimony, no, I think the court need not reach the ultimate determination as to whether the petitioner is likely to suffer torture in Mexico.

[00:03:20] Speaker 04:
And then just to pull that piece apart as I take it and let me know whether I'm in the ballpark here.

[00:03:27] Speaker 04:
There are two different considerations.

[00:03:31] Speaker 04:
There's expert opinion testimony, which the judge discounted or recorded no weight to, and then there's also what we might call generalized country condition, factual evidence that they testified to.

[00:03:43] Speaker 04:
How do we parse those two with respect to, I mean, do we have to take the expert's testimony as a bunch and send them back for reconsideration of the whole testimony, or is the opinion a separate ground than the fact evidence?

[00:03:58] Speaker 03:
Your Honor, we think the IJ erred both in according no weight to the experts ultimate conclusions and also to considering record evidence, including the Department of State report, including petitioners credible testimony about his fear.

[00:04:13] Speaker 03:
And so we would ask this court to remand for full and fair consideration of all of the evidence as a whole and to accord the experts testimony full weight.

[00:04:23] Speaker 04:
both opinion and fact evidence because I think there's kind of separate lines of cases with respect to the opinion and the fact.

[00:04:32] Speaker 03:
Yes, that's right, Your Honor.

[00:04:33] Speaker 03:
The IJ in this case plainly stated that he was giving no weight to the expert's predictive testimony as to my client's likelihood of torture or death in Mexico and also

[00:04:49] Speaker 03:
He made factual conclusions that are directly at odds with the experts' testimony on the mechanics of cartel violence in Mexico.

[00:04:59] Speaker 00:
I've got two separate questions, so let me focus on the experts' testimony first.

[00:05:05] Speaker 00:
The IJ said, look, I think your facts are all right, but I don't buy your opinions, right?

[00:05:13] Speaker 03:
He asserts that he is accepting the factual.

[00:05:15] Speaker 00:
I'm accepting your facts, but I don't buy your opinions.

[00:05:21] Speaker 00:
You're not suggesting that a finder of fact must accept the opinions of an expert if he accepts his underlying facts, are you?

[00:05:31] Speaker 03:
No, Your Honor.

[00:05:32] Speaker 03:
This court in Velazquez-Samayoa pointed to multiple ways in which the agency could potentially... So, okay, good.

[00:05:39] Speaker 00:
So your point is not that he was required to accept the expert's opinion.

[00:05:43] Speaker 00:
You don't think he gave good enough reasons for not accepting, for rejecting it.

[00:05:49] Speaker 03:
That's exactly correct, Your Honor.

[00:05:50] Speaker 03:
In Velazquez-Samayoa, this court laid out several possibilities.

[00:05:54] Speaker 03:
So one would be

[00:05:56] Speaker 03:
the agency points to countervailing record evidence that directly contradicts.

[00:06:01] Speaker 00:
Now that's not good.

[00:06:03] Speaker 00:
Now you're really engaging on the point I wanted.

[00:06:05] Speaker 00:
The IJ doesn't say, well, I'm looking at the other evidence that contradicts your report, and therefore I don't accept your opinion.

[00:06:16] Speaker 00:
But it's plainly there.

[00:06:18] Speaker 00:
And so my question is, how specific does he have to be in rejecting the opinion?

[00:06:24] Speaker 00:
In other words, if he had done

[00:06:26] Speaker 00:
what your able opponent did here in her brief and said, here's all the reasons I reject this opinion.

[00:06:33] Speaker 00:
There's lots of contrary evidence, and it leads me to different conclusions.

[00:06:36] Speaker 00:
And nice thanks for your opinion, but I find as a preponderance of the evidence, the evidence weighs the other way.

[00:06:42] Speaker 00:
You wouldn't have a problem, would you?

[00:06:45] Speaker 03:
It depends on the specific reasons that the immigration judge gave.

[00:06:48] Speaker 00:
Well, how about the reasons cited by the government in its brief?

[00:06:52] Speaker 00:
Are they good enough?

[00:06:54] Speaker 03:
Certainly, if there's contradicting evidence, or you would expect for a premise that the expert relied upon to be corroborated by other evidence, and it was not, that would be sufficient to potentially accord reduced weight to an expert testimony.

[00:07:08] Speaker 03:
But that's not what happened here.

[00:07:10] Speaker 00:
OK, now I wanted to ask a different question, and it deals with this is a cat case.

[00:07:15] Speaker 00:
Correct.

[00:07:15] Speaker 00:
Put aside the waiver of inadmissibility for the moment.

[00:07:19] Speaker 00:
And so you have to establish a probability of torture by the government, or

[00:07:23] Speaker 00:
or with its acquiescence.

[00:07:26] Speaker 00:
I'm having trouble finding in the expert's testimony anything that, there's lots of stuff that establishes that the government may be corrupt, but I'm having difficulty finding in the expert's testimony, or in any testimony in the record, anything that establishes a probability that your client will be tortured with government consent or acquiescence.

[00:07:49] Speaker 00:
Can you help me out?

[00:07:50] Speaker 03:
Absolutely, Your Honor.

[00:07:52] Speaker 03:
Dr. Slack testifies that police are often directly involved in kidnapping and lynching on behalf of cartels.

[00:07:59] Speaker 00:
But why does that make it more probable than not that your client will be tortured?

[00:08:05] Speaker 03:
He testifies that the lynching of suspected pedophiles is commonplace, occurs quite frequently,

[00:08:13] Speaker 03:
and is well documented across multiple states in Mexico.

[00:08:17] Speaker 03:
And I would also point your honor to Dr. Slack's ultimate conclusion, which is that he is at extreme risk of egregious physical harm or death in Mexico.

[00:08:28] Speaker 03:
And that is grounded in his decades of research and experience on the patterns of violence against deportees in Mexico.

[00:08:36] Speaker 01:
Let me see if I can carve a little piece of this out.

[00:08:39] Speaker 01:
I gather you would not claim that if the expert's opinion went contrary to our case law, that the IJ would somehow be bound with that, right?

[00:08:49] Speaker 03:
Correct.

[00:08:49] Speaker 01:
For example, the Americanization issue.

[00:08:52] Speaker 01:
That wasn't talked about, but we've got several cases that say that's not a PSG.

[00:08:57] Speaker 01:
Delgado Ortiz said that Mexicans returning home from the United States was overly broad, does not qualify as a PSG.

[00:09:05] Speaker 01:
Romero's, Romero Munoz versus Lynch, we held that imputed wealthy Americans being a discrete class of persons that we recognize.

[00:09:17] Speaker 01:
From my perspective, the whole Americanization issue just kind of goes out the window.

[00:09:22] Speaker 01:
Whatever he thought about it, that's not a PSG.

[00:09:25] Speaker 01:
We've found that.

[00:09:26] Speaker 01:
So what we're dealing with then is the role of the expert, which my colleague has talked about.

[00:09:31] Speaker 01:
You're a wonderful lawyer.

[00:09:33] Speaker 01:
You know how it is.

[00:09:34] Speaker 01:
You go to a trial court, and then you say to the trial court, I'd like to bring in an expert to assume your job.

[00:09:43] Speaker 01:
I want this expert to come in and tell you what the facts are and what the law is, and you've got to accept it.

[00:09:48] Speaker 01:
The judge would say, are you kidding me?

[00:09:51] Speaker 01:
That's not the role of an expert.

[00:09:52] Speaker 01:
You have a specific thing that you can show your expert in that may help the court, but you're not the decider.

[00:10:00] Speaker 01:
I'm the decider.

[00:10:02] Speaker 01:
And that's really what happened here, right?

[00:10:04] Speaker 01:
The immigration judge said, hey, appreciate this information.

[00:10:10] Speaker 01:
As I look at this, you've given me no background to basically bring this down to a real term.

[00:10:19] Speaker 01:
You talk about the country-wide thing, but what about the issue that faces this particular petitioner?

[00:10:26] Speaker 01:
Why isn't it perfectly appropriate for the IJ to basically say, hey, thanks for your testimony.

[00:10:31] Speaker 01:
I'm the decider of the fact.

[00:10:34] Speaker 01:
I'm the decider of the law.

[00:10:36] Speaker 03:
I heard two parts to that question, Your Honor.

[00:10:39] Speaker 03:
The first regarding Americanized deportees.

[00:10:42] Speaker 03:
This is a cat claim, your honor, so there is no need for the petitioner to establish that he is a member of a particular social group.

[00:10:50] Speaker 03:
That just simply is not applicable.

[00:10:52] Speaker 03:
And the evidence demonstrates that those who are Americanized and have American cultural characteristics are more likely to be at risk of arrest, more likely to be at risk of kidnapping.

[00:11:05] Speaker 03:
So that's my point number one.

[00:11:08] Speaker 03:
My second point on whether the expert is

[00:11:12] Speaker 03:
essentially supplanting the trier of fact is that this court has given the agency multiple ways in which it is legitimate and valid to discount an expert's testimony.

[00:11:26] Speaker 03:
But the IJ did neither of those things here.

[00:11:29] Speaker 03:
The two ways that this court points out in Velasquez-Samojoa

[00:11:33] Speaker 03:
if there's contradictory evidence or if you would expect the testimony to be corroborated but was not.

[00:11:40] Speaker 03:
Here what we have is the IJ faulting the petitioner for an alleged failure to present statistical evidence.

[00:11:49] Speaker 03:
And these are statistics that simply do not exist.

[00:11:53] Speaker 03:
And so to require data that does not exist renders cat relief essentially illusory.

[00:11:59] Speaker 03:
We think this court should say so and remand.

[00:12:02] Speaker 01:
Do you want to save any of your time for rebuttal?

[00:12:05] Speaker 01:
I would.

[00:12:05] Speaker 01:
OK.

[00:12:06] Speaker 01:
Thank you.

[00:12:06] Speaker 01:
Very well.

[00:12:08] Speaker 01:
Let's hear from the government.

[00:12:26] Speaker 02:
It's been a long day.

[00:12:30] Speaker 02:
May I please court Alana Jung for the Attorney General.

[00:12:33] Speaker 02:
I'll turn right into the expert witness issue, because that is where the court's interest lies.

[00:12:38] Speaker 02:
I think it's important in this case to, there's a lot of nuance in this case, and I think it's important to look at the entirety of the IJ's decision.

[00:12:49] Speaker 02:
The IJ does, in the government's opinion, does a very good job of looking at all the evidence presented, and that includes the evidence presented by Professor Slack.

[00:13:01] Speaker 02:
If this court goes through each section of the IJ's decision, this court will see that the immigration judge did say, for example, Professor Slack opined that it would be extremely dangerous for the respondent to live in Jengapayo.

[00:13:17] Speaker 02:
Throughout his decision, the IJ made those determinations.

[00:13:20] Speaker 02:
Consider Professor Slack's testimony with regards to the factual background and with regards to the likelihood.

[00:13:29] Speaker 04:
Why shouldn't we take the IJ at face value, though, and saying that I'm according to expert testimony, opinion testimony, no wait?

[00:13:40] Speaker 04:
And here's why.

[00:13:40] Speaker 04:
I mean, how do we not credit that?

[00:13:47] Speaker 02:
this court should credit that.

[00:13:49] Speaker 02:
And I think that's important because that where the immigration judge made that determination and excuse me, I will read from this part of the immigration judge's decision.

[00:13:57] Speaker 04:
Can you just let us know, uh, give us a site so we can follow along or an AR one Oh six.

[00:14:03] Speaker ?:
Okay.

[00:14:06] Speaker 02:
The court accepts the factual information provided by Slack.

[00:14:11] Speaker 02:
However, the court does not afford any weight to the Slack's opinion as to the likelihood of torture of the respondent.

[00:14:18] Speaker 02:
And then the immigration judge goes on to explain why.

[00:14:22] Speaker 02:
But I'd like to point the court to the last sentence, that very last sentence.

[00:14:28] Speaker 02:
Thus, while the court accepts the factual information that Slack has provided based on his research,

[00:14:34] Speaker 02:
The probability assessment on issues such as the likelihood of harm or danger cannot be provided weight, as there is no statistical information to place such predictions in context.

[00:14:46] Speaker 00:
Well, and that's, you've focused on exactly the right sentence.

[00:14:50] Speaker 02:
That is, and that's where I think the, I think that's the distinction that makes all the difference, Your Honor.

[00:14:55] Speaker 00:
But let me just, let me just push back on you a little bit.

[00:14:58] Speaker 00:
Yes.

[00:14:58] Speaker 00:
I understand that a finder of fact is entitled to say, you're an expert,

[00:15:05] Speaker 00:
I agree all your predicate facts are correct.

[00:15:08] Speaker 00:
I disagree with your conclusions.

[00:15:11] Speaker 00:
The reason that the IJ here disagrees with the conclusions is that there's no statistical evidence to support his conclusion that it's more probable than not or that it's extremely likely.

[00:15:24] Speaker 00:
And the other side says there's a good reason for that.

[00:15:27] Speaker 00:
No such statistics exist.

[00:15:30] Speaker 00:
And so can you fault somebody for not having

[00:15:34] Speaker 00:
Statistics that don't exist?

[00:15:39] Speaker 02:
Yes and no, in a sense, your honor, because Professor Slack's research is based on ethnography.

[00:15:46] Speaker 02:
And so he did go out into fields, spend time with deportees.

[00:15:50] Speaker 02:
And he was asked by DHS Council, what statistics are you creating?

[00:15:55] Speaker 02:
And he answered, well, I created statistics about general information

[00:15:59] Speaker 02:
about experiences of deportees and then DHS council proceeds to ask well what about can you say the percentage of people with tattoos returning what their experiences are well it's hard it's a challenge what about your experience with like deportees what happens with them after they go to the shelter well it's hard because we can't follow up sometimes they

[00:16:19] Speaker 02:
they disappear, they go back to the U.S.

[00:16:21] Speaker 02:
So based on Professor Slack's own testimony, the immigration judge, that's where the immigration judge was hesitant in providing that information.

[00:16:30] Speaker 01:
Well, realistically, in a cat claim, isn't the very law that we're dealing with a probability analysis?

[00:16:37] Speaker 01:
I mean, the law says it's more likely than not.

[00:16:41] Speaker 01:
That's probability, is it not?

[00:16:43] Speaker 02:
It is probability, but it's probability, but it's also a qualitative analysis in this case because we have aggregation.

[00:16:49] Speaker 01:
So if the IJ decided to help decide the likelihood of torture, he was entitled to consider, if you will, mathematical calculation to help him determine that?

[00:17:07] Speaker 02:
Yes.

[00:17:07] Speaker 01:
What's wrong with that?

[00:17:09] Speaker 02:
There is nothing wrong with that, Your Honor.

[00:17:11] Speaker 02:
He is entitled, he could have done that.

[00:17:14] Speaker 02:
And I think what, because that information was not available, he relied on other information provided in the record.

[00:17:20] Speaker 04:
Okay, so what other information?

[00:17:22] Speaker 04:
Because I think our case law is relatively clear that setting aside according the expert no weight.

[00:17:31] Speaker 04:
What's the other information that came in to allow him to draw that conclusion?

[00:17:35] Speaker 04:
that it was not more likely than not, because it doesn't appear opposed.

[00:17:42] Speaker 04:
I don't see, where's the evidence on the other side of Professor Slack's expert opinion?

[00:17:49] Speaker 02:
The other, Your Honor, I don't mean to be in any way make a joke out of this, but the petitioner bore the burden of proof before the immigration judge, and he didn't provide

[00:18:02] Speaker 02:
specific persuasive and specific evidence to show that he more likely than not would be tortured?

[00:18:08] Speaker 04:
Well, not after the IJ says they're giving it no weight, but that's exactly the question.

[00:18:13] Speaker 04:
I think the argument here is the petitioner put forward evidence, qualitative evidence, that went to likelihood.

[00:18:26] Speaker 04:
What's the evidence that came in on the other side?

[00:18:29] Speaker 04:
So there's no weight on this side.

[00:18:33] Speaker 04:
What's the evidence that the IJ relied upon to reach the conclusion as to probability then?

[00:18:39] Speaker 02:
There is, the other evidence is petitioner's testimony, the statements, and the country condition evidence.

[00:18:45] Speaker 02:
If we parse out the various theories that petitioner put forth, and I think that's important here that we look at the sources of torture as this court has provided for aggregation analysis, the sources of torture and the theories of torture.

[00:18:58] Speaker 02:
And so what the immigration judge here did is looked at the theories of torture for

[00:19:03] Speaker 02:
for example, the tattoos, and indicated, well, this is speculative.

[00:19:08] Speaker 02:
So even though Professor Slack provided that, oh, he would be extreme, he could be in danger because of his tattoos,

[00:19:16] Speaker 02:
Petitioner did not provide other evidence establishing that each chain in the hypothetical chain of events would occur.

[00:19:24] Speaker 04:
Why wouldn't that then amplify the impact of the error if it were an error?

[00:19:31] Speaker 04:
Basically, I think you're saying that once Dr. Slack's testimony was out, the petitioner's case was zeroed out.

[00:19:38] Speaker 04:
We essentially have no evidence on his side.

[00:19:41] Speaker 04:
But I guess I'm so what's the evidence on the other side that I mean I get the burden of proof But but it seems even more serious if the IJ is lending no weight to petitioners central evidence What's the thing on the other side that says?

[00:19:58] Speaker 04:
Oh, he'll be okay

[00:19:59] Speaker 02:
But it's not the immigration, excuse me to push back, Your Honor, but it's not that the immigration judge completely disregarded Professor Slack's testimony.

[00:20:08] Speaker 02:
It's only in that particular area with the prediction of more likely or not in torture.

[00:20:12] Speaker 02:
The immigration looked at all the other aspects of petitioner's claim and took into account Professor Slack's testimony and all the other evidence and records.

[00:20:22] Speaker 00:
But he said no, Wade, and this is what

[00:20:25] Speaker 00:
I think we're all trying to deal with.

[00:20:28] Speaker 00:
The only thing that supports Petitioner's case in Professor Slack's testimony is his eventual opinion that all these facts lead me to think that it's more probable than not that he'll be tortured if he goes back to Mexico.

[00:20:42] Speaker 00:
I mean, all those other facts don't meet the Petitioner's burden of showing that it's more probable than not.

[00:20:50] Speaker 01:
And it is his burden.

[00:20:51] Speaker 00:
It is his burden.

[00:20:53] Speaker 00:
And so he seeks to meet that burden with the opinion of his expert, not just the facts, but with the opinion of his expert.

[00:21:02] Speaker 00:
And I could see an IJ saying, yeah, I have your opinion, but it's not persuasive for certain reasons, or I have your opinion, but other record evidence cuts the other way.

[00:21:14] Speaker 00:
But here, I think all the IJ said was, I give no weight to this opinion at all.

[00:21:21] Speaker 00:
that's essentially saying I'm rejecting the opinion, correct?

[00:21:26] Speaker 00:
He doesn't reject his facts, but he says, I give no weight to your opinion.

[00:21:30] Speaker 00:
That seems to me to be the rough equivalent of a rejection of an opinion.

[00:21:36] Speaker 00:
And our cases say in order to reject an expert's opinion, one must do certain things.

[00:21:41] Speaker 00:
So if I'm, you can push back on my premise, but answer my last question first.

[00:21:46] Speaker 00:
If I'm right about the premise,

[00:21:48] Speaker 00:
How did the IJ follow our instructions about how one proceeds to reject the expert opinion?

[00:21:55] Speaker 02:
Yes, Your Honor.

[00:21:56] Speaker 02:
Assuming that you're right on your premise, I do think the immigration judge provided a reason for why the immigration judge gave no weight to that part, that particular part of Professor Slack's testimony.

[00:22:08] Speaker 02:
And the reason why is that the foundation for the

[00:22:12] Speaker 02:
more likely than not, opinion by Dr. Slack was lacking.

[00:22:16] Speaker 02:
As I mentioned before, when Professor Slack was asked about, well what do you think?

[00:22:20] Speaker 00:
Because it had, because of the absence of statistics.

[00:22:22] Speaker 02:
It wasn't, it's not just the absence of specific, but he himself provided the limitations of his knowledge.

[00:22:27] Speaker 02:
Reading the exchange between DHS and Professor Slack, Professor Slack was quite honest about his process and whom he talked to and the limitations of his knowledge and what the foundation of his knowledge and his opinion about

[00:22:41] Speaker 02:
mis-petitioner's claim is.

[00:22:43] Speaker 01:
And we in our analysis would have to consider the colloquy between the professor, DHS, where he's basically saying, I can't, I have nothing to back that up, I have nothing to back that up.

[00:22:56] Speaker 01:
And the IJ ultimately concludes

[00:22:59] Speaker 01:
Hey, you know what?

[00:23:01] Speaker 01:
You're making a prognostication.

[00:23:03] Speaker 01:
It's a calculation.

[00:23:05] Speaker 01:
And without further evidence that he described as basically mathematical evidence, probability, he was not crediting it.

[00:23:14] Speaker 01:
Is that basically what happened from your perspective?

[00:23:16] Speaker 02:
Yes, it is, Your Honor.

[00:23:17] Speaker 02:
I also like to point out there is statistical evidence in the record.

[00:23:22] Speaker 02:
The 2020 Human Rights Report has a bunch of data.

[00:23:26] Speaker 02:
And I think the immigration judge was rightly given all the, there is a lot of country condition evidence in the record.

[00:23:31] Speaker 02:
And I think the immigration judge did a fine job of going through all the evidence in the record.

[00:23:36] Speaker 02:
And I think appropriately weighed Professor Slack's opinion.

[00:23:40] Speaker 00:
Well, see, my problem is he didn't weigh it at all.

[00:23:43] Speaker 00:
or at least my concern is.

[00:23:45] Speaker 00:
If he'd said, I have your opinion, Professor, it's a fine opinion, but I've looked at the country conditions evidence and

[00:23:52] Speaker 00:
If your opinion is contrary to the country conditions evidence and therefore I don't find that petitioner has carried his burden of establishing a probability of torture, I'd have very little difficulty with this case.

[00:24:05] Speaker 00:
What causes me the difficulty is I afford your opinion no weight, which, and this was my premise before, which I'd like you to attack if you can, which is that affording it no weight is really the equivalent of rejecting it.

[00:24:22] Speaker 02:
Your honor, affording it no weight means that the immigration judge considered what weight to give it and decided to give it no weight.

[00:24:30] Speaker 04:
Well, so I guess I don't see how that squares with Velasquez-Samoya then.

[00:24:36] Speaker 04:
I don't think he's, I don't read the IJ as setting up a

[00:24:44] Speaker 04:
Right, I mean, the weighing of saying there's conflicting evidence here.

[00:24:49] Speaker 04:
I think, I guess the concern is why isn't he making the same error the IJ made in Velasquez and Leyes?

[00:24:55] Speaker 04:
And well, there's not corroboration there.

[00:24:57] Speaker 04:
What else is a petitioner supposed to show other than the lynchings of similarly situated people are commonplace to establish torture on these grounds?

[00:25:11] Speaker 02:
This case is distinguishable from,

[00:25:14] Speaker 02:
To your point about Velasquez, Your Honor, this case is distinguishable because Velasquez focused on rejecting the board.

[00:25:21] Speaker 02:
The board in that case rejected the immigration judge, rejected the expert's opinion because the board wanted corroboration and said like, well, here we have this expert opinion, but we need corroborating evidence for this expert opinion.

[00:25:36] Speaker 02:
That's not what happened here, Your Honor.

[00:25:38] Speaker 04:
He doesn't even say that.

[00:25:39] Speaker 02:
No.

[00:25:40] Speaker 04:
There's no, there's no corroboration, but the IJ also doesn't say there's conflicting evidence.

[00:25:44] Speaker 02:
Well, here we're not, well, my point is Velazquez is not, this is not the factual scenario of Velazquez.

[00:25:50] Speaker 02:
In this case, we're not talking about corroboration.

[00:25:52] Speaker 02:
We're talking about foundation.

[00:25:53] Speaker 02:
We're talking about foundation for Professor Sack's opinion of why petitioner would more likely than not be tortured.

[00:25:59] Speaker 02:
And because of that, because of that,

[00:26:02] Speaker 02:
And that's the distinction, I think, that makes a difference from Velasquez.

[00:26:05] Speaker 02:
We're not talking about we want other evidence to corroborate Professor Slack's testimony.

[00:26:09] Speaker 02:
We want foundation for how Professor Slack reached his prediction.

[00:26:14] Speaker 02:
and that's the part where the immigration judge had issues with, based on Professor Slack's own testimony.

[00:26:19] Speaker 01:
There was also, in the country report, there was some statistical, if you will, evidence as well, as well as the colloquy back and forth between DHS and Dr. Slack, where there was, it was clear he didn't have much of a foundation.

[00:26:33] Speaker 01:
Now, the IJ may not have been as articulate as he should have been in saying how he waited, but instead of just saying he rejected it, which is not my view,

[00:26:43] Speaker 01:
He just took all of this into consideration and concluded that as to that part of his report, he gave it no weight.

[00:26:51] Speaker 02:
That's exactly it, Your Honor.

[00:26:52] Speaker 02:
And as the immigration judge, he's the trier of fact.

[00:26:55] Speaker 02:
And Professor Slack's opinion is just that.

[00:26:57] Speaker 02:
It's an opinion.

[00:26:58] Speaker 02:
It is evidence like all other evidence in the record.

[00:27:02] Speaker 02:
And the immigration judge has the trier of fact.

[00:27:04] Speaker 00:
Yeah, this is not a claim, as we had in a prior case, that the IJ overlooked important evidence and didn't deal with it.

[00:27:11] Speaker 00:
The question is whether he dealt with it appropriately.

[00:27:15] Speaker 02:
Yes, Your Honor.

[00:27:15] Speaker 02:
The government's position is that he did.

[00:27:19] Speaker 02:
unless the court has any other questions.

[00:27:21] Speaker 01:
Other questions?

[00:27:23] Speaker 01:
I think not.

[00:27:23] Speaker 01:
All right, and now for the finale, the wind-up.

[00:27:31] Speaker 03:
Your Honor, Dr. Slack did provide statistical context for his analysis.

[00:27:36] Speaker 03:
Since 2007, he's been conducting

[00:27:39] Speaker 03:
post-deportation surveys with thousands of individuals to identify patterns of individuals who are most vulnerable to cartel violence.

[00:27:48] Speaker 01:
Is that what your response to the colloquy between DHS and him where he basically was unable to provide any statistical backup?

[00:27:59] Speaker 03:
Dr. Slack goes to great pains to explain the inadequacy of data on criminal behavior in Mexico, and that is actually corroborated

[00:28:08] Speaker 03:
by the country conditions evidence.

[00:28:10] Speaker 03:
The Department of State report says that 94% of crimes are unreported in Mexico.

[00:28:17] Speaker 03:
The Congressional Research Service says that an estimated less than 10% of torture from security forces is reported.

[00:28:25] Speaker 04:
And that's in the country conditions reports in the record.

[00:28:29] Speaker 04:
Correct.

[00:28:30] Speaker 04:
Yes.

[00:28:32] Speaker 04:
Is there a distinction, taking your friend's position, is there a distinction between finding a lack of foundation going into the testimony and according the resulting testimony, no weight?

[00:28:46] Speaker 04:
Can't IJs make determinations like that, that I'm making a judgment that there's no foundation?

[00:28:51] Speaker 04:
Or is that the same as, is it infected with the same error under Velasquez-Somoyez of according at no weight?

[00:28:58] Speaker 03:
If the IJ were to find that this lacked foundation, then I believe the IJ should have said, this person is not qualified as an expert in violence against deportees in Mexico.

[00:29:08] Speaker 04:
The IJ finds the expert credible.

[00:29:10] Speaker 03:
Correct, credible.

[00:29:11] Speaker 03:
DHS does not dispute this expert's foundation at all.

[00:29:16] Speaker 00:
But the expert, nobody disputes the expert's foundation.

[00:29:19] Speaker 00:
Nobody disputes his expertise.

[00:29:21] Speaker 00:
But his ultimate opinion, that it's more probable than not,

[00:29:26] Speaker 00:
that your client will be tortured is entitled to be questioned by the IJ.

[00:29:33] Speaker 00:
And the IJ says, I don't know how you can conclude it's more probable than not because you got no.

[00:29:39] Speaker 00:
That's a statistical analysis, as Judge Smith says.

[00:29:43] Speaker 00:
And so I can't give that opinion any weight because you haven't given me a basis for crediting it.

[00:29:51] Speaker 00:
What's wrong with that?

[00:29:52] Speaker 03:
Well, as a factual matter, Your Honor, as I mentioned, he does provide statistical context for his predictions.

[00:29:58] Speaker 00:
Well, I read all this testimony.

[00:30:00] Speaker 00:
I mean, the truth is, he can't really testify whether it's more probable than not that your client will be tortured on return to Mexico.

[00:30:09] Speaker 00:
All he can do is opine whether it's more probable than not that somebody with your client's characteristics would be tortured.

[00:30:16] Speaker 00:
And I'm not even sure he says that.

[00:30:18] Speaker 00:
How does he say that?

[00:30:20] Speaker 00:
He just says people of this nature are of extreme risk of violence.

[00:30:27] Speaker 00:
I don't know whether extreme is more probable than not, less probable than not, very probable.

[00:30:32] Speaker 00:
Isn't that what the IJ was saying in the end?

[00:30:37] Speaker 03:
The IJ, it's hard to put myself in the position of the IJ, but he gave no weight to the expert conclusions, but I would also point out that the IJ gives no weight and comes to contrary findings of fact regarding the mechanics of cartel violence, how people come to the attention of the cartels, why the cartels might be interested in them, if they're a newcomer to a certain area.

[00:31:04] Speaker 03:
the prevalence of lynchings, as Your Honor pointed out.

[00:31:08] Speaker 03:
And the IJ completely disregards all of this factual background, which the IJ says that he accepts, and comes to conclusions that are directly contrary without pointing to any countervailing evidence.

[00:31:21] Speaker 03:
So it's essentially as though the entire opinion of the expert is ignored.

[00:31:25] Speaker 01:
Another question?

[00:31:26] Speaker 01:
We know we could talk a lot longer.

[00:31:28] Speaker 01:
We thank you both for your very helpful argument.

[00:31:30] Speaker 01:
The case just argued is submitted, and the court stands adjourned for the day.