[00:00:03] Speaker 01:
Good morning, Your Honor.

[00:00:05] Speaker 01:
May it please the Court.

[00:00:06] Speaker 01:
My name is Jiang Xinzhen.

[00:00:07] Speaker 01:
Together with Melina Torres and Evangeline Abreu, we represent a patent, David Lopez Alvarenga.

[00:00:13] Speaker 01:
I'm going to argue that substantial evidence does not support an adverse credibility finding.

[00:00:19] Speaker 01:
My co-counsel, Ms.

[00:00:20] Speaker 01:
Torres, is going to argue that

[00:00:21] Speaker 01:
the agency's denial of convention against torture is also erroneous.

[00:00:26] Speaker 01:
Each of us will speak for six minutes, and we would like to reserve three minutes for rebuttal.

[00:00:32] Speaker 01:
We are here today because a young man with limited resources and with limited English-speaking ability submitted his statements under severe restraints caused by detention, which led the IGH to believe there were inconsistencies.

[00:00:47] Speaker 01:
However, Ms.

[00:00:49] Speaker 01:
Lopez deserves fair consideration, not condemnation.

[00:00:53] Speaker 01:
We ask this court to reverse the BIA's decision because substantial evidence does not support an adverse credibility finding of Ms.

[00:01:01] Speaker 01:
Lopez.

[00:01:02] Speaker 01:
Instead, the records compel the conclusion to the contrary.

[00:01:07] Speaker 01:
We have already addressed the IJ's errors in our briefs, and I would like to focus on the following three points.

[00:01:14] Speaker 01:
To my first point,

[00:01:16] Speaker 01:
The IJs believe that it is impossible that Mr. Lopez did not know his teardrop tattoo was gun related.

[00:01:23] Speaker 01:
It's based on impermissible speculation and failed to consider Mr. Lopez's reasonable explanation, which means the IJ made two errors here.

[00:01:32] Speaker 01:
First, the IJ had accepted Mr. Lopez's testimony that he's not a gang member either in El Salvador or here in the US.

[00:01:41] Speaker 01:
Thus, the IJ could not have expected Mr. Lopez

[00:01:45] Speaker 01:
to know the meaning of the teardrop tattoo without pointing to the specific evidence in the record.

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Second, the IJ ignores Ms.

[00:01:54] Speaker 01:
Lopez's reasonable explanation with the meaning of the teardrop tattoo in his opinion.

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Mr. Lopez explained in the hearing that he got the tattoo because of his brother's passing away.

[00:02:07] Speaker 01:
According to the case, I, Jun Ju versus Holder, an I.J.

[00:02:11] Speaker 01:
must consider and address a long citizen's plausible and reasonable explanation for the basis of an adverse credibility finding.

[00:02:20] Speaker 01:
The I.J.

[00:02:21] Speaker 01:
here, in our case, made an error by failing to consider it.

[00:02:25] Speaker 03:
So Council, let me jump in right here, because I'm going to anticipate what government councils are going to say.

[00:02:30] Speaker 03:
They're going to say, you know what, your reading of the evidence could be right, but the IJ's reading also could be right.

[00:02:39] Speaker 03:
And if it's like this, 50-50, under the standard of review, the government wins.

[00:02:48] Speaker 03:
Tell me why, assuming that's the correct standard, why is it not 50-50 in this case?

[00:02:52] Speaker 03:
You have your version, they have their version, therefore they win.

[00:02:55] Speaker 03:
Why is that wrong?

[00:02:56] Speaker 01:
Well, Your Honor, I would like to point out that they are wrong, because first, this is not a question of fact.

[00:03:03] Speaker 01:
Actually, instead, this is a question of law.

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Thus, this court should review this issue de novo.

[00:03:10] Speaker 01:
Second, as I just pointed out in the case Ai Junji versus Holder, this court held it that the IJ must consider and address a non-citizen's plausible explanation.

[00:03:22] Speaker 01:
However, in Idris's opinion, he does not address Mr. Lopez's reasonable explanation for the teardrop tattoo.

[00:03:30] Speaker 03:
But we have more than a teardrop tattoo in this case.

[00:03:33] Speaker 03:
That's one.

[00:03:34] Speaker 03:
I think that's your best argument.

[00:03:35] Speaker 03:
There are some other ones that are more difficult, whether he was attacked one time or two times, or whether there was a gun, or there wasn't a gun, or the gun was pointed.

[00:03:43] Speaker 03:
And I know that's where they're going in this case.

[00:03:46] Speaker 03:
So tell me why, when they go there, they're wrong.

[00:03:49] Speaker 01:
Your Honor, that's my following argument.

[00:03:51] Speaker 01:
To my second point, the IG's finding of an inconsistency regarding the number of beatings Mr. Lopez endured is erroneous because his core testimony is consistent with his statement in the credit fair interview and the declaration.

[00:04:06] Speaker 01:
Whenever Mr. Lopez gave the statement on his own, he said he was beaten once, for example, in his crime of fear interview, in his court testimony, and even in his declaration.

[00:04:18] Speaker 01:
The only time he has to rely on someone else, which was in his asylum application, he said he was beaten twice, and he gave a very

[00:04:29] Speaker 02:
But he gave different dates.

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I mean, that was one of the things the IJ noticed.

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It wasn't just, I was once beaten twice.

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There were actually dates given, so there was an additional detail.

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So why isn't that something that the IJ can latch onto reasonably in sorting this out?

[00:04:45] Speaker 02:
Because the standard here is, would every reasonable adjudicator be compelled to resolve it the way you say?

[00:04:53] Speaker 01:
Your Honor.

[00:04:55] Speaker 01:
So Mr. Lopez, for the only time he gave, he was beaten twice.

[00:04:59] Speaker 01:
That was in his assignment application.

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And Mr. Lopez gave a reasonable explanation for that.

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The person who was helping me copy it into English misunderstood me and understood that I meant two times.

[00:05:13] Speaker 01:
And also there's a signature in the assignment application that Jose Delgadillo helped Mr. Lopez to fill in the assignment application.

[00:05:22] Speaker 01:
And at the same time,

[00:05:23] Speaker 01:
Your Honor, the declaration is really stating that all the beatings happen in one day, in one occasion.

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Because if a reasonable person would want to indicate that two incidents happen in two days, he must use the word one day, the other.

[00:05:38] Speaker 01:
However, in this declaration, it only uses the word one day, and then it says, beat me again at this time.

[00:05:45] Speaker 01:
This court, this declaration is really stating that he was beaten twice, beaten once, excuse me.

[00:05:51] Speaker 01:
We asked this court to read the declaration.

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It's consistent with his court testimony as the court did in the Harry Potter and Versus Holder.

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And the declaration, and don't worry about the time.

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You're not going to steal your partner's time.

[00:06:04] Speaker 03:
The declaration you're referring to is at 1093 to 1094?

[00:06:07] Speaker 03:
That is true, Your Honor.

[00:06:11] Speaker 03:
Do you want to have any more?

[00:06:12] Speaker 03:
I'll give you a little more time.

[00:06:13] Speaker 03:
Do you have any more points you want to wrap up with?

[00:06:15] Speaker 01:
Oh, yeah, Your Honor.

[00:06:20] Speaker 01:
Last but not least, even we assume that one or two of the cases the I.J.

[00:06:27] Speaker 01:
relied on were valid, we ask this court to remand this case as the court did in Kumar versus Garland, because we cannot tell whether the I.J.

[00:06:38] Speaker 01:
would have still found adverse credibility based on the one or two remaining bases.

[00:06:44] Speaker 01:
Thank you, Your Honor.

[00:06:45] Speaker 03:
Thank you very much, counsel.

[00:06:47] Speaker 03:
All right.

[00:06:48] Speaker 03:
We'll hear for the next and just to make things easier, we're going to give you six and then I'm going to give you guys three for rebuttal.

[00:06:55] Speaker 03:
Okay.

[00:06:55] Speaker 03:
So you can go and use it and government council.

[00:06:57] Speaker 03:
Don't worry.

[00:06:57] Speaker 03:
You'll, you'll have enough time.

[00:07:04] Speaker 00:
Good morning, your honors and may it please the court.

[00:07:05] Speaker 00:
My name is Melina Torres for the past decade.

[00:07:08] Speaker 00:
Mr. Lopez Alvarenga has faced the uncertainty of whether he will be able to remain under the protection of this country.

[00:07:13] Speaker 00:
What he does feel certain, however, is the fact that he will face torture from the Salvadorian government and gangs if he is denied the opportunity to remain.

[00:07:21] Speaker 00:
Your honors, this court does not allow a negative credibility determination to wash over a torture claim.

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especially when the agency has failed to consider relevant country conditions evidence from the record.

[00:07:31] Speaker 00:
While we point out several pieces of evidence that the immigration judge and agency failed to consider, today I will be focusing on three critical pieces of evidence.

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First, evidence of the death certificates of Mr. Lopez's friends.

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Second, relevant evidence of torture in the country conditions reports.

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And third, evidence that the passage of time does not undermine Mr. Lopez's likelihood of harm.

[00:07:52] Speaker 00:
First, the immigration judge failed to consider the death certificates of Mr. Lopez's friends.

[00:07:57] Speaker 00:
In his declaration, Mr. Lopez stated that four of his friends, whom are like brothers to him, were killed by the gangs.

[00:08:03] Speaker 00:
Mr. Lopez provided the death certificates of two of these friends, which indicate that they died of asphyxia by suffocation and beheading.

[00:08:10] Speaker 00:
Despite this critical piece of evidence that the gang members had harmed persons close to Mr. Lopez, neither the immigration judge nor the agency made any mention of the deaths and their decisions, and they made no question to develop the record further on the matter.

[00:08:23] Speaker 02:
Well, I mean, our case authority says that they do not have to exhaustively tick through every item of evidence, so that's one point.

[00:08:31] Speaker 02:
And then second, the IJ, clearly, you can carry over with respect to person-specific information and adverse credibility determination and say, you're still not believable even when we get to the torture claim.

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may not deal with the country conditions, but it may affect items of evidence like this.

[00:08:52] Speaker 02:
So why isn't that an adequate grounds for upholding the agency's analysis of this evidence that you're pointing to?

[00:09:02] Speaker 00:
Yes, Your Honor.

[00:09:02] Speaker 00:
To your first point, it is true that the immigration judge does not need to list, specifically list, every piece of evidence in the record.

[00:09:08] Speaker 00:
However, issues do arise when the immigration judge fails to consider highly probative or potentially dispositive evidence in the record.

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And this court has held in Navarrete Gonzales v. Garland that evidence of

[00:09:20] Speaker 00:
The petitioner's close friends and family members getting killed by the Salvadorian gang was highly probative evidence that the agency failed to consider.

[00:09:28] Speaker 00:
And while it is true that when it comes to adverse credibility, testimony or stuff that's related to the petitioner can also affect the torture claim, here we have more than just testimony from Mr. Lopez.

[00:09:39] Speaker 00:
We also have the death certificates, which is that objective evidence that goes beyond the testimony.

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That objective evidence itself

[00:09:47] Speaker 00:
is separate from the testimony that would affect his adverse credibility finding.

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And that is also what we're contending here.

[00:09:53] Speaker 00:
Your Honor, that the immigration judge failed to further probe into this record.

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This error is even more critical considering the immigration judge's obligation to develop the record for pro se respondent, a standard that this court established in Aguiman versus INS.

[00:10:08] Speaker 00:
The next critical evidence that the immigration judge failed to consider was relevant country conditions evidence of torture from the Salvadorian government and gangs.

[00:10:16] Speaker 00:
The immigration judge relied on evidence of deaths in prisons to establish a likelihood of torture from the government, but failed to mention other evidence of torture in his decision.

[00:10:25] Speaker 00:
For example, in Dr. McNamara's expert declaration, he specifically states, it would be extremely dangerous for individuals with criminal histories.

[00:10:33] Speaker 02:
What page are you on from the declaration?

[00:10:36] Speaker 00:
Oh, this is AR-208, Your Honor, Dr. McNamara's declaration.

[00:10:41] Speaker 00:
It would be extremely dangerous for individuals with criminal histories, former gang membership, and or tattoos to be deported back to the Salvador because each group would face a greater than 50% chance of torture under the current conditions.

[00:10:55] Speaker 00:
Mr. Lopez does not only fall into one group here, he falls into at least two because of his criminal convictions and tattoos.

[00:11:02] Speaker 00:
That statement that

[00:11:03] Speaker 00:
directly suggest that Mr. Lopez would be subject to more than a 50% chance of likelihood of torture is something that the government did not consider.

[00:11:11] Speaker 00:
I'm sorry, the immigration judge did not consider.

[00:11:13] Speaker 00:
The immigration judge states in AR 49 that Dr. McNamara's factual findings do not suggest it would be more likely than not for Mr. Lopez to be tortured.

[00:11:22] Speaker 00:
And Dr. McNamara's statement regarding Mr. Lopez's or individuals in Mr. Lopez's position, likelihood of torture is corroborated by other evidence in the record.

[00:11:33] Speaker 00:
The record is repeated with evidence of torture of individuals with deportees and criminal convictions.

[00:11:38] Speaker 00:
I would like to provide just a few.

[00:11:41] Speaker 00:
beginning in AR 640, there's case profiles of Mills and his age group getting tortured and even killed just for having tattoos and being suspected gang members.

[00:11:50] Speaker 02:
What's your response to the, I mean, it's a bit of a sort of gruesome math, but the IJ said, you know, if you look at the percentage of people who actually are getting killed in the Salvadoran prisons, it's, you know,

[00:12:05] Speaker 02:
It's not that high and nowhere near 50%, so therefore I can conclude it's not greater than 50% that he's gonna suffer that kind of mistreatment.

[00:12:14] Speaker 02:
Why is that wrong, in your view?

[00:12:18] Speaker 00:
Your Honor, that calculation of the number of deaths is not the definition of torture that we're bound by under the Convention Against Torture.

[00:12:26] Speaker 00:
Torture is defined as any act of severe pain or suffering.

[00:12:29] Speaker 00:
So using the number of deaths to calculate the likelihood of torture is not an accurate representation.

[00:12:32] Speaker 02:
But torture is an extreme concept.

[00:12:34] Speaker 02:
It's even more extreme than persecution.

[00:12:37] Speaker 02:
A beating in prison may not qualify as torture.

[00:12:43] Speaker 00:
Yes, you're right, Your Honor.

[00:12:45] Speaker 00:
However, the record does indicate that there are extreme instances of torture.

[00:12:49] Speaker 00:
And I see I'm running out of time, but I do want to provide some examples of extreme amounts of torture occurring in prisons.

[00:12:54] Speaker 00:
For example, AR 364 shows clear patterns of torture in prisons.

[00:12:58] Speaker 02:
What page?

[00:12:58] Speaker 00:
364.

[00:13:00] Speaker 00:
364.

[00:13:01] Speaker 00:
And 371, lethal prison conditions and food actions being cut.

[00:13:06] Speaker 02:
I just have one final question.

[00:13:07] Speaker 02:
Are you familiar with the Gutierrez case from last July under this court?

[00:13:14] Speaker 00:
I don't believe so, Your Honor.

[00:13:15] Speaker 00:
All right, thank you, Counselor.

[00:13:18] Speaker 03:
You'll have the three minutes for rebuttal.

[00:13:20] Speaker 00:
All right, thank you, Your Honor.

[00:13:34] Speaker 05:
Good morning, Your Honor.

[00:13:35] Speaker 05:
May it please the court, Dan Goldman on behalf of the Attorney General.

[00:13:38] Speaker 05:
The government asked this court to uphold the agency decision and deny the petition for review.

[00:13:42] Speaker 05:
There are two issues that, as was discussed, the adverse credibility finding, which is dispositive of the asylum and withholding claim, and then the merits of the cat claim, because the immigration judge presumes that Mr. Lopez Alvarenga is credible when he's evaluating the cat claim.

[00:13:56] Speaker 05:
In this case, substantial evidence more than supports

[00:13:59] Speaker 05:
the adverse credibility finding.

[00:14:01] Speaker 05:
There are multiple discrepancies.

[00:14:03] Speaker 05:
The discrepancies are irreconcilable.

[00:14:05] Speaker 05:
Number one, the number of beatings in this case.

[00:14:08] Speaker 05:
Number two, whether there was a gun involved in the beatings or the

[00:14:13] Speaker 05:
incidents with the gang.

[00:14:15] Speaker 05:
Number three, the level of harm, whether Mr. Lopez Alvarenga had to get medical treatment.

[00:14:20] Speaker 05:
And then number four, as was discussed substantially earlier, the implausibility of his statement that the tear drop tattoo that he got after he came to the United States, after he got involved with the criminal justice system in the United States, and with his background

[00:14:36] Speaker 05:
according to him, dealing with gangs, a cousin who was in a gang, the implausibility of suggesting that he had no idea that that could be interpreted as a gang tattoo.

[00:14:46] Speaker 05:
I would take issue with some petitioners' counsel suggested that the immigration judge used his own knowledge or somehow came up on his own with the idea that this is a gang-related tattoo.

[00:14:57] Speaker 05:
Not the case.

[00:14:58] Speaker 05:
In this situation, it was Mr. Lopez Alvarenga, I believe it's AR 149, who says, this is commonly seen as a gang-related tattoo.

[00:15:07] Speaker 05:
It's Mr. Lopez Alvarenga's own words that are used against him, not the immigration judge's speculation.

[00:15:13] Speaker 05:
The suggestion, it was raised again today, it was raised a couple days ago in the 28-J letter.

[00:15:20] Speaker 05:
with regard to the suggestion that the immigration judge somehow didn't consider Mr. Lopez Alvarenga's explanation.

[00:15:28] Speaker 05:
Again, not accurate in this case.

[00:15:30] Speaker 05:
It's right there in the record AR-62.

[00:15:32] Speaker 05:
The immigration judge specifically considers Mr. Lopez Alvarenga's explanation.

[00:15:39] Speaker 05:
He doesn't agree with it.

[00:15:40] Speaker 05:
He doesn't find it persuasive.

[00:15:42] Speaker 05:
But he specifically notes the explanation, that he got the tattoo in memory or in honor of his brother,

[00:15:50] Speaker 05:
The immigration judge says, no, given your background, your experience as a teen in your country that you testified to dealing with gangs, I do not find that explanation credible or plausible, which contributes to the adverse credibility finding here.

[00:16:06] Speaker 05:
Second, I wanted to address the discussion with regard to the declaration and what it says or doesn't say.

[00:16:13] Speaker 05:
The suggestion in the 28-J letter, the suggestion today, is that somehow Mr. Lopez-Alvarenga's declaration, when he says he was beaten again and then refers to this time, referring to the second incident, that no, it's not two incidents.

[00:16:29] Speaker 05:
The suggestion is, as the Petitioners' Council stated in their 28-J letter, that it was one extended beating.

[00:16:36] Speaker 05:
As your honor noted earlier, perhaps, perhaps that's one way to read what Mr. Lopez Alvarenga wrote and what he submitted to the immigration court with the assistance of counsel.

[00:16:48] Speaker 05:
government takes issue with their suggestion that a reasonable read would suggest that it was one extended beating.

[00:16:54] Speaker 05:
If nothing else, government urges the court to look at the exact words that he chose to use.

[00:16:59] Speaker 05:
He says he's on his way home from school when he has stopped and he has beaten.

[00:17:04] Speaker 05:
He's warned, don't go back to school.

[00:17:06] Speaker 05:
And then he says,

[00:17:07] Speaker 05:
I decided to go back to school.

[00:17:09] Speaker 05:
So on the way back to school, or he says there's a consequence to going back to school, he is beaten.

[00:17:15] Speaker 05:
So in order for petitioner's council's suggestion that this was one extended beating, in order for that to be the case, they had to beat him on the way home, wait for him, I suppose, then beat him on the way back, and we're gonna call that one extended beating.

[00:17:30] Speaker 05:
The government takes issue with that suggested interpretation.

[00:17:34] Speaker 05:
And if nothing else,

[00:17:35] Speaker 05:
As Your Honor noted, the standard review here is substantial evidence.

[00:17:37] Speaker 05:
The suggestion, well, maybe it could be this, maybe it could be that, maybe it could be the other thing, does not meet their burden under the substantial evidence standard of review.

[00:17:46] Speaker 05:
For those reasons, the government urges this court to uphold the adverse credibility finding, which is dispositive of the asylum and withholding claims.

[00:17:53] Speaker 02:
With regard to CAT, as the immigration judge noted, and it was discussed earlier, there is evidence of the bad conditions and the overcrowding and even... I want to ask you about one thing that you said, which is you said for purposes of the torture convention claim that the ALJ

[00:18:11] Speaker 02:
took the evidence as true.

[00:18:13] Speaker 02:
I read the ALJ as taking it as true in the alternative, because what it says on page 11 of the decision, it says,

[00:18:25] Speaker 02:
The respondent was beaten once by gangs in El Salvador.

[00:18:28] Speaker 02:
It was a brief beating of about 10 minutes with hands and fists.

[00:18:31] Speaker 02:
And that's if the respondent's testimony is to be believed.

[00:18:35] Speaker 02:
Again, the court did not find that the respondent, the court did find that the respondent was not a credible witness.

[00:18:42] Speaker 02:
However, even assuming the respondent's testimony is accurate and then goes on.

[00:18:47] Speaker 02:
So that seemed to me to be, on the one hand, I don't believe the stuff he claims about

[00:18:54] Speaker 02:
his own circumstances, so I stand on that.

[00:18:58] Speaker 02:
But even if it's true then, that's how I read it.

[00:19:00] Speaker 02:
Am I wrong?

[00:19:02] Speaker 05:
I would never say no to that, Your Honor.

[00:19:04] Speaker 02:
We make mistakes.

[00:19:07] Speaker 05:
That's why we have arguments.

[00:19:08] Speaker 05:
I guess a couple of points there, Your Honor.

[00:19:09] Speaker 05:
Number one, the government would not object to that interpretation.

[00:19:14] Speaker 05:
Our defense in our brief was based on a credible, presuming him credible, and even if he is determined

[00:19:22] Speaker 05:
to be not credible, he can still meet his burden before the immigration court with objective evidence that's not tainted by the adverse credibility finding.

[00:19:32] Speaker 02:
I can think of at least one case where we've held someone was a complete liar, but he still actually faced an objective risk of torture because he was a member of a group that was being persecuted by the government in power.

[00:19:42] Speaker 05:
Right, and so I think in either case, Your Honor,

[00:19:47] Speaker 05:
the court should deny the petition.

[00:19:49] Speaker 05:
If he was not credible, and we noted this in our brief, that the immigration judge, the board, could have rejected the cat claim.

[00:19:54] Speaker 02:
The credibility would just take out the individual circumstances.

[00:19:57] Speaker 02:
Then you have to deal with the general country conditions, and does that suggest he's going to end up in a situation where he'd be tortured?

[00:20:04] Speaker 05:
That's correct, Your Honor, but he still has to make an individualized, a particularized showing, and that's where his claim fails.

[00:20:10] Speaker 05:
Even setting aside the credibility finding, as the immigration judge explains,

[00:20:14] Speaker 05:
The immigration judge considers the expert declaration.

[00:20:17] Speaker 02:
The immigration judge considers the State Department report, the country conditions evidence, and recognizes there are tens of— Is it really true, as the ALGs seem to say, you know, in El Salvador, they only torture and kill 20 percent of the prisoners, and so that's not more than 50 percent, so back you go.

[00:20:37] Speaker 02:
Is that really what the standard is?

[00:20:40] Speaker 05:
The standard is more likely than not to try and answer your question directly.

[00:20:44] Speaker 02:
It's kind of a crude math, but is that really what the law is?

[00:20:48] Speaker 05:
The law is he has to prove more likely than not before the immigration court that he would be

[00:20:55] Speaker 05:
facing an individualized risk of torture before this court, he has to prove that the evidence compels reversal of the findings below.

[00:21:03] Speaker 04:
In this case... Well, I think, if I might interrupt, part of their major argument isn't that the evidence compels the different conclusion.

[00:21:13] Speaker 04:
Their argument is the IJ did not consider or discuss the relevant evidence.

[00:21:20] Speaker 04:
And in particular, the IJ does rely on the statistical evidence with respect to death in prison, but doesn't discuss torture, which is a major part of his claim.

[00:21:32] Speaker 04:
And there is evidence in the record that people who are suspected gang members are tortured in prison.

[00:21:39] Speaker 04:
So why shouldn't we send it back and let the ALJ sort that out?

[00:21:45] Speaker 05:
A couple of points in response, Your Honor.

[00:21:47] Speaker 05:
The court should not send this case back because the immigration judge did consider all the evidence.

[00:21:51] Speaker 05:
There's no indication in this case that the immigration judge stuck his head in the sand and said, I don't even think you're going to get arrested.

[00:21:59] Speaker 04:
The immigration judge recognized that Mr. He said that the immigration judge basically conceded that he could be arrested just based on his tattoo.

[00:22:08] Speaker 04:
And then he went on to say, well, people statistically aren't dying that much in prison, but I don't see a discussion of the torture claims.

[00:22:19] Speaker 05:
Your Honor, again, a couple of points there.

[00:22:22] Speaker 05:
The immigration judge recognized, number one,

[00:22:24] Speaker 05:
that the danger to Mr. Lopez Alvarenga comes from the tattoo that Mr. Lopez Alvarenga admits looks like a gang tattoo, would be seen as a gang-related tattoo, which he got after he came to the United States.

[00:22:37] Speaker 05:
The immigration judge also recognizes Mr. Lopez Alvarenga's criminal record in the United States could subject him to different treatment.

[00:22:46] Speaker 05:
bears noting that Mr. Lopez Alvarenga's claim gets stronger as he stays in the United States.

[00:22:52] Speaker 05:
When he came to the United States, according to him, he wasn't gang affiliated.

[00:22:56] Speaker 05:
He didn't have a gang, what looked like a gang tattoo.

[00:22:59] Speaker 05:
He didn't have a criminal record.

[00:23:01] Speaker 05:
This is not the case where an individual comes to the United States, has an encounter with law enforcement,

[00:23:07] Speaker 05:
and ICE then puts them into deportation or removal proceedings.

[00:23:11] Speaker 05:
Mr. Lopez Alvarenga was in removal proceedings, so at a time that he was asking to stay in the United States, he went out and committed crimes, as was fully detailed in our brief.

[00:23:21] Speaker 05:
He's got a pretty substantial criminal record.

[00:23:24] Speaker 04:
Right, I agree with you on that, but the question is, under the cat claim, is he going to suffer, is he likely to suffer torture in prison if he's arrested, either because of his criminal record or his tattoo?

[00:23:37] Speaker 05:
And I want to clarify, Your Honor, the government is not advocating that this court adopt a statistical analysis.

[00:23:43] Speaker 05:
We're not suggesting that an immigration judge should be required to say you've got a 16 percent likelihood based on this, 14 on this, 13 on this, and if my math is right, that adds up to

[00:23:53] Speaker 05:
something in the 30s or 40s, therefore you lose.

[00:23:55] Speaker 05:
Absolutely not what we're suggesting.

[00:23:57] Speaker 05:
What we are suggesting, what we argued in our brief, and what the immigration judge here did was looking at the numbers, and you look at those numbers, and it's staggering when you see numbers like 20, 40, 60, 70,000 people incarcerated under the state of emergency, the state of exception in El Salvador.

[00:24:20] Speaker 05:
And then you hear there is abuse, there is torture, there is death in the prisons.

[00:24:25] Speaker 05:
What the immigration judge here did and what the statistical, the numbers look suggests is even if there are, as was discussed, hundreds of cases, hundreds of cases, that is still a tiny fraction of that 50, 60, 70,000 people who are

[00:24:45] Speaker 05:
incarcerated.

[00:24:46] Speaker 05:
There's also evidence in the, the evidence in this case is not particularized as the immigration judge recognized.

[00:24:53] Speaker 05:
The declaration, the expert declaration that petitioners council was talking about is what they call the universal declaration.

[00:25:00] Speaker 05:
Yes, he offers an opinion, but the immigration judge makes it very clear that this declaration is not about Mr. Lopez Alvaringa's case.

[00:25:09] Speaker 05:
He says that it is not tailored to Mr. Lopez Alvarenga.

[00:25:13] Speaker 05:
That's why he did not meet his burden to show the required individualized risk.

[00:25:18] Speaker 05:
And the decision from the immigration judge in this case, upheld by the board, is consistent with this court's jurisprudence, both published and unpublished.

[00:25:26] Speaker 04:
But the IJ seemed to consider individualized risk in recognizing that his tattoo would subject him to arrest and his criminal record.

[00:25:37] Speaker 04:
I mean, that's the individualized portion of the case.

[00:25:40] Speaker 04:
I agree with you on the declaration.

[00:25:42] Speaker 04:
The declaration is not individualized.

[00:25:45] Speaker 05:
The immigration judge, I think, had to take that into account.

[00:25:48] Speaker 05:
And we would agree, Your Honor, the immigration judge did look at that.

[00:25:51] Speaker 05:
That undercuts the argument made from Petitioner's Council today that somehow the immigration judge

[00:25:56] Speaker 05:
didn't look at the evidence, didn't consider all the evidence that he was supposed to.

[00:25:59] Speaker 05:
There are decisions from this court, both unpublished and published.

[00:26:04] Speaker 05:
Gutierrez's decision was noted.

[00:26:05] Speaker 05:
There are other unpublished decisions where this court has said, for someone who is not gang affiliated, even if with a tattoo or with a criminal record, if the criminal record is not gang affiliated, and according to Mr. Lopez Alvarenga, it's not, and even with a tattoo,

[00:26:23] Speaker 05:
that might look like a gang tattoo, which he admits, even with those situations, the evidence doesn't support the finding of an individualized risk of torture.

[00:26:34] Speaker 05:
That's why his claim fails here.

[00:26:35] Speaker 05:
If there were evidence of a particularized risk of torture, he could have submitted it.

[00:26:41] Speaker 05:
The evidence that was recounted today is general.

[00:26:44] Speaker 05:
It's not particularized to Mr. Lopez Alvarenga.

[00:26:48] Speaker 05:
If he has that kind of evidence,

[00:26:50] Speaker 05:
There are options for him.

[00:26:51] Speaker 05:
He can file a motion to reopen with the board.

[00:26:53] Speaker 05:
It would be untimely at this point, but at least it would give him the opportunity to say, here's the missing piece.

[00:26:59] Speaker 05:
This is the convention against torture.

[00:27:02] Speaker 05:
Not trying to be facetious, but it's not the convention against overcrowded prisons or bad prison conditions or even abuse in prisons.

[00:27:10] Speaker 05:
he has to show, had to show before the immigration court, more likely than not that he would be tortured.

[00:27:16] Speaker 05:
He didn't do that, and he does not meet his burden before this court to show the evidence compels reversal.

[00:27:22] Speaker 05:
Subject to the court's questions, the government would ask this court to deny the petition.

[00:27:26] Speaker 03:
All right.

[00:27:26] Speaker 03:
Thank you, counsel.

[00:27:27] Speaker 05:
Thank you, Your Honor.

[00:27:41] Speaker 00:
Thank you, Your Honors.

[00:27:42] Speaker 00:
I'd like to focus on the point that counsel is still focusing on the number of deaths to calculate the number of torture and pointing out that there's hundreds out of thousand cases.

[00:27:51] Speaker 00:
The government is focusing on the number of deaths.

[00:27:53] Speaker 00:
As I mentioned earlier, this is not the standard for proving likelihood of torture under the Convention Against Torture.

[00:27:57] Speaker 02:
And the problem here is- ALJ relied on number of deaths because that was what the statistics that were in the evidence submitted.

[00:28:04] Speaker 02:
Were there comparable statistics in the evidence submitted on rates of torture?

[00:28:10] Speaker 00:
Not quite, Your Honor, but the problem here is that the immigration judge did not consider the evidence of torture in the record.

[00:28:15] Speaker 00:
The immigration judge just relied on the number of deaths rather than the overall evidence of torture.

[00:28:20] Speaker 00:
And as I mentioned, statistical evidence is not required for proving the likelihood of torture under a convention against torture.

[00:28:26] Speaker 00:
Well, it would certainly help.

[00:28:27] Speaker 00:
It's not required to prove that individualized risk.

[00:28:30] Speaker 00:
Here, there is that individualized risk because, as the expert declaration mentions, those individuals who have tattoos, criminal records, and deportees

[00:28:40] Speaker 00:
have that more than 50% likelihood of torture.

[00:28:43] Speaker 00:
And that is a direct statement from Dr. McNamara that the immigration judge did not consider.

[00:28:47] Speaker 00:
And also I would like to mention this court should review this under de novo because of the legal error here and the immigration judge's failure to consider the evidence of torture, not just substantial evidence.

[00:29:03] Speaker 00:
Also, I would just really like to emphasize that his credibility determination has, while it might have some bearing on his convention against torture claim, the objective evidence in the record still demonstrates that Mr. Lopez, because of his tattoos,

[00:29:19] Speaker 00:
His criminal record and his status as a deportee, as the decree 717 indicates in the record, he is almost certainly going to get detained upon arrival to El Salvador.

[00:29:29] Speaker 00:
And once detained, the evidence in the record demonstrates that there's lethal prison conditions.

[00:29:32] Speaker 00:
He would be subject to torture.

[00:29:34] Speaker 00:
We are not bound to prove that he would be certainly tortured.

[00:29:38] Speaker 00:
We're just bound to prove that he is more likely than not.

[00:29:41] Speaker 00:
And here, we find that the record does demonstrate that Mr. Lopez would more likely than not be found subject to torture in El Salvador.

[00:29:48] Speaker 00:
Thank you, Your Honors.

[00:29:51] Speaker 03:
All right, thank you.

[00:29:51] Speaker 03:
I especially want to thank Santa Clara Law School.

[00:29:54] Speaker 03:
Professor, thank you so much for making this happen.

[00:29:57] Speaker 03:
You two are welcome in our court any time.

[00:30:00] Speaker 03:
Very, very fine work.

[00:30:01] Speaker 03:
This matter is submitted.

[00:30:02] Speaker 03:
We'll move on to the next one.

[00:30:02] Speaker 03:
But thank you, everybody.