[00:00:00] Speaker 04:
Good morning, and welcome to the Ninth Circuit.

[00:00:03] Speaker 04:
Judge Thomas and I would like once again to welcome Judge Rosenthal from the United States District Court for the Southern District of Texas.

[00:00:10] Speaker 04:
We really appreciate your willingness to help us with our work.

[00:00:13] Speaker 04:
Thank you.

[00:00:13] Speaker 04:
It's a pleasure.

[00:00:16] Speaker 04:
We'll hear argument first this morning in Lopez Rivas against Garland.

[00:00:20] Speaker 04:
Counsel, you may proceed.

[00:00:28] Speaker 01:
May it please this court?

[00:00:29] Speaker 01:
My name is Jose Marin.

[00:00:31] Speaker 01:
I'm appearing on behalf of Francisco Antonio Lopez-Rivas, Esmeralda Alessandra Olano-Portillo, Alessandra Elizabeth Lopez-Olano, Andrea Celesta Lopez-Olano, and Josue Isaias Lopez-Olano, the petitioners.

[00:00:46] Speaker 01:
Would this court care for a brief recitation of the facts?

[00:00:51] Speaker 04:
I think we're generally familiar with the facts, so you can just go ahead with your argument.

[00:00:55] Speaker 01:
Yes, your honor.

[00:00:55] Speaker 01:
We received an order from this court informing the parties to be ready to discuss two specific cases.

[00:01:03] Speaker 01:
Um, Gonzalez, Laura V. Garland and Manzano V. Garland, Alfaro Manzano, Alfaro Manzano V. Garland.

[00:01:14] Speaker 01:
I'd like to start with, um, Gonzalez, Laura V. Garland.

[00:01:18] Speaker 01:
In that case, um, the petitioner,

[00:01:22] Speaker 01:
that responded below was an individual who on appeal at the VIA became eligible for voluntary departure.

[00:01:33] Speaker 01:
The reason why he became eligible for voluntary departure is because the notice to appear that he was issued was missing the notice to appear, was missing the date time and place of the initial hearing.

[00:01:45] Speaker 01:
As you may know, the Supreme Court during this time

[00:01:49] Speaker 01:
issues several decisions, including Parrivy Sessions and Nick V. Garland, or Nick, and it's Chavez V. Garland.

[00:01:58] Speaker 01:
Subsequent to that, this court issued decision in, I believe it's Pozo Sanchez V. Garland, where this court said that when an individual, a respondent, does not receive a notice to appear with that specific information, that does not trigger this top-time rule for purposes of voluntary departure.

[00:02:19] Speaker 04:
So just to clarify, are you seeking voluntary departure at this point?

[00:02:23] Speaker 01:
No, Your Honor.

[00:02:24] Speaker 01:
But this court indicated that the court wanted to discuss that case.

[00:02:28] Speaker 01:
And I just wanted to explain a little bit more before I go into how it applies to my client's case.

[00:02:32] Speaker 01:
That's OK.

[00:02:35] Speaker 01:
In this case, a court issued a ruling saying that even a person that, when there's a change of law, a respondent does not have to

[00:02:48] Speaker 01:
necessarily request a relief at the immigration court level.

[00:02:52] Speaker 01:
That at any time after that, even if it's during appeal, the respondent is able, petition in this case, is able to file a petition or a motion to reopen or a motion to remand to seek voluntary departure.

[00:03:08] Speaker 01:
In our case, it's exactly the same situation.

[00:03:12] Speaker 01:
And I think we briefed a little bit about that on the opening brief.

[00:03:16] Speaker 01:
The respondent in our case, petitioner, was served a notice to appear that was missing that information.

[00:03:22] Speaker 01:
And after the briefing was completed at the BIA, this court issued, decided, Pozo Sanchez v. Garland.

[00:03:33] Speaker 01:
And for that matter, my client does qualify for voluntary departure.

[00:03:36] Speaker 01:
We have not filed any type of motion at this point to reopen the matter before the BIA.

[00:03:44] Speaker 01:
simply because we decided that it was best to argue all the issues before this court, before we did that.

[00:03:50] Speaker 04:
But if you're not seeking voluntary departure, why is any of this relevant?

[00:03:54] Speaker 04:
Because my client might in the future.

[00:03:56] Speaker 04:
At any point... I guess when I said, are you seeking it, I mean, are you asking us to... What are you asking us to do with respect to voluntary departure?

[00:04:06] Speaker 01:
I believe that what I'm looking for is for this court to remand the case so they can consider the other issue with the nexus issue and the alternative to allow the respondent to seek voluntary departure if the BIA finds that there is no nexus.

[00:04:22] Speaker 04:
So you are seeking voluntary departure.

[00:04:25] Speaker 04:
Yes, Your Honor, and the alternative.

[00:04:27] Speaker 04:
OK, so then my question is, in your brief, I did not understand that from your brief.

[00:04:35] Speaker 04:
Your brief mentions voluntary departure only in the context of a due process claim.

[00:04:42] Speaker 04:
So I understood your argument to be that there was a due process violation and that the IJ didn't tell you about voluntary departure.

[00:04:50] Speaker 04:
Is that a fair characterization of the argument?

[00:04:52] Speaker 01:
That is, Your Honor.

[00:04:53] Speaker 01:
That is.

[00:04:54] Speaker 01:
And my apologies if it was not clear.

[00:04:56] Speaker 01:
I am only bringing that issue to tell you that the case before us or before you is the same, exactly the same as the other one.

[00:05:04] Speaker 01:
But the other issue that I had with the proceedings before in the immigration court is that the IJ failed to inform the respondent in that case that they may qualify for voluntary departure.

[00:05:16] Speaker 01:
And I do understand that it might have been an impossible task for the IJ at that point, because at that point, this court had not decided that case.

[00:05:24] Speaker 01:
But at the same time, the law is the law.

[00:05:27] Speaker 01:
And if there was a change in law, then my client should be able to request voluntary departure.

[00:05:32] Speaker 01:
And unfortunately, I did not get the case when it was at the BIA.

[00:05:35] Speaker 01:
My client came to me once the BIA had issued the final decision.

[00:05:40] Speaker 01:
And so I raised that issue that had he been advised of that, he could have possibly applied for voluntary departure.

[00:05:47] Speaker 01:
I am imposing some sort of duty on the IJ, on the immigration judge, because at that point when they were deciding that case, I believe Pereira was around.

[00:05:57] Speaker 04:
Well, that is what Gonzalez-Larez says.

[00:06:00] Speaker 04:
I think that you didn't have to exhaust this before the board.

[00:06:04] Speaker 04:
But my concern is that case does not say that you don't have to raise the issue to this court.

[00:06:11] Speaker 04:
And it's not clear to me that you did that until just now.

[00:06:16] Speaker 04:
Do you have a response to that?

[00:06:18] Speaker 01:
Absolutely correct, Your Honor.

[00:06:20] Speaker 01:
The issue presented in the opening brief was that the IJ failed to inform the respondent

[00:06:25] Speaker 01:
ability or the apparent eligibility for voluntary departure.

[00:06:29] Speaker 03:
Right, but the IJ at that point, well, your clients were not eligible for voluntary departure under the law that existed at that point, correct?

[00:06:41] Speaker 01:
Your Honor, if I may be a little bold here, was he not?

[00:06:44] Speaker 01:
The law was always the same.

[00:06:46] Speaker 01:
The NTA was not an NTA at that point.

[00:06:48] Speaker 01:
No, no, no.

[00:06:48] Speaker 03:
But I mean, there was no court case that supported you.

[00:06:53] Speaker 03:
The IJs had been applying that law consistently and basically saying, if you're not eligible, I don't have to advise you.

[00:07:02] Speaker 03:
Why is that a due process violation?

[00:07:04] Speaker 01:
Because the regulations specifically state that the IJ is supposed to advise a respondent of the apparent... Potential.

[00:07:12] Speaker 03:
Potential.

[00:07:12] Speaker 03:
But we also have case laws that says if you're not eligible, you don't have to advise.

[00:07:16] Speaker 01:
Correct, Your Honor.

[00:07:17] Speaker 01:
And this is where I am conflicted because some of us were already taking the position that the NTA did not trigger this top-time rule when Perera was decided.

[00:07:27] Speaker 01:
And so if anybody knows the law best, it's supposed to be the immigration judges.

[00:07:32] Speaker 01:
And I do believe that the judge could have at least alerted the respondent or at least read the law in a way that was favorable to the respondent in the sense that he might have qualified voluntary departure.

[00:07:45] Speaker 01:
Now, the respondent in that case did not have to apply for voluntary departure, but at least a notice from the IJ would have been adequate or proper in that situation.

[00:07:53] Speaker 03:
So the cases that you cite don't deal with due process.

[00:07:59] Speaker 03:
They just say you're required to advise the respondent of potential eligibility for voluntary departure.

[00:08:08] Speaker 03:
Do you have any due process cases?

[00:08:11] Speaker 03:
Your argument is it's a due process error not to advise.

[00:08:17] Speaker 03:
Do you have any cases that support that?

[00:08:18] Speaker 01:
No, Your Honor, all I can say is that the Supreme Court has told us before that, you know, respondents don't have the same due process that we have except the one that Congress provides.

[00:08:28] Speaker 01:
And the INA specifically says that immigration judge shall conduct proceedings.

[00:08:34] Speaker 01:
And the INA specifically says also that the agency will issue regulations to enforce those provisions.

[00:08:43] Speaker 01:
And one of the regulations is to advise the respondent of potential eligibility.

[00:08:48] Speaker 01:
And I think that's a due process claim.

[00:08:51] Speaker 00:
Whether it's a due process claim or a regulatory violation claim, are you asking us to remand to the agency so that your clients can be advised of their ability to seek voluntary departure if they so choose?

[00:09:05] Speaker 01:
Absolutely, Your Honor.

[00:09:05] Speaker 01:
That's what I'm asking for.

[00:09:07] Speaker 00:
A minute ago, you said your clients

[00:09:11] Speaker 00:
I heard two conflicting things.

[00:09:12] Speaker 00:
I heard first that your clients were not going to seek voluntary departure, and then your argument that remand in order that they could be advised of their opportunity was appropriate.

[00:09:24] Speaker 00:
Where are we?

[00:09:25] Speaker 01:
I understand, Your Honor, and I apologize again for the confusion, the conflict, and the position that I'm providing, but my view is that the respondent at the petition in this case can seek alternative relief.

[00:09:38] Speaker 01:
And I do believe that the main claim that we have before you for my client is the asylum relief as opposed to the voluntary departure.

[00:09:46] Speaker 01:
Voluntary departure is always the last alternative for my clients.

[00:09:49] Speaker 01:
It's always the last alternative because they fear for their safety going back and sometimes just the law is now on their side and we have to really consider voluntary departure as an alternative for them.

[00:10:01] Speaker 00:
What's the relevance of the fact that your clients have legal status in Mexico?

[00:10:06] Speaker 01:
Your Honor, my clients do not feel safe in Mexico, and the IJs are capable of providing or granting asylum even if somebody has resettled permanently in a different country.

[00:10:17] Speaker 01:
And in the record, it reflects some of that information.

[00:10:22] Speaker 01:
They were being discriminated because they're Central Americans, and that's also extremely compelling in my opinion.

[00:10:31] Speaker 01:
asking them to live in a place where they're going to be discriminated for the rest of the time that they're there.

[00:10:36] Speaker 01:
And in addition to that, the respondent did provide credibly, the IG found all the testimony to be credible, that there are gangs that have infiltrated the Mexican territory.

[00:10:46] Speaker 01:
And that's incredibly sad as well.

[00:10:49] Speaker 01:
And he specifically mentioned that they did not feel safe because of the gang's presence in Mexico.

[00:10:56] Speaker 03:
Do you want to get to the merits?

[00:10:58] Speaker 01:
Yes, Your Honor, I just wanted to touch on the mixed motives case.

[00:11:01] Speaker 01:
I did read the case and thank you for alerting me to it.

[00:11:04] Speaker 01:
I do believe that this case is a little bit different.

[00:11:07] Speaker 01:
In that case, there are two tests that were provided.

[00:11:10] Speaker 01:
One is basically a but for cost test with a minor or tangential reason.

[00:11:16] Speaker 01:
and the other one is a sufficiency test.

[00:11:19] Speaker 01:
And this case is a bit difficult because my client expressed that he was targeted because he was a taxi driver, correct?

[00:11:30] Speaker 01:
But then they were imposing additional things to do, carry contraband, weapons and drugs, because he was a Christian.

[00:11:41] Speaker 01:
It's very difficult for me to apply their test because in the initial test, in the Buffett-Coss test, we're talking about a bucket, the analogy the court provided, where like a persecutor may have multiple reasons for hating somebody, and it's just a little drop that causes the bucket to overflow.

[00:11:59] Speaker 01:
And I think that's maybe what the court was alluding to, that perhaps the Christianity aspect of it was just a little drop.

[00:12:06] Speaker 01:
But that doesn't really apply to this case because it is possible

[00:12:10] Speaker 01:
that my client was persecuted for being a taxi driver, but in addition to that, he was persecuted differently from other taxi drivers.

[00:12:19] Speaker 01:
They wanted him to transport drugs specifically because of his Christianity.

[00:12:23] Speaker 01:
And so in this situation, the court has said that the reason doesn't have to be dominant.

[00:12:30] Speaker 01:
And I am almost daring to say that the Christianity was not necessarily dominant, but it was a very, very strong reason.

[00:12:37] Speaker 01:
And we know it because they persecuted him differently than the rest of them.

[00:12:42] Speaker 01:
It wasn't just a taxi driver that was being extorted.

[00:12:46] Speaker 01:
It was a taxi driver that was a Christian that was being extorted and asked to transport drugs and weapons.

[00:12:53] Speaker 01:
And that is very dangerous.

[00:12:55] Speaker 01:
People die doing those sort of things, especially when you're transporting such weapons that the government of El Salvador may find to be

[00:13:05] Speaker 01:
extremely dangerous, they may die in the interception, and that's speculation I know, but also opposing gangs can also intercept him with those weapons, and that is very, very serious.

[00:13:19] Speaker 01:
And so to say that he was persecuted like any other taxi driver and that the Christianity was not a factor is not proper.

[00:13:29] Speaker 01:
The gangs specifically targeted him for those two reasons, and it's kind of hard to sort of separate and know

[00:13:36] Speaker 01:
what was the main reason.

[00:13:37] Speaker 01:
This court has never required a 51 percent or more to know what was the reason behind it, but we know that he was targeted and persecuted differently than other taxi drivers that were not Christians.

[00:13:49] Speaker 04:
You're down to under two minutes.

[00:13:51] Speaker 04:
Do you want to reserve some time?

[00:13:52] Speaker 01:
Yes, Your Honor.

[00:13:53] Speaker 01:
Thank you very much.

[00:13:55] Speaker 04:
We'll hear from the Attorney General.

[00:14:07] Speaker 02:
and may it please the court.

[00:14:08] Speaker 02:
My name is Robert Coleman.

[00:14:10] Speaker 02:
I represent the Attorney General.

[00:14:12] Speaker 03:
Would you mind moving your mic up a little bit?

[00:14:14] Speaker 03:
Thank you.

[00:14:14] Speaker 02:
Yes, absolutely.

[00:14:16] Speaker 02:
Is that better?

[00:14:19] Speaker 02:
The only issue pertaining to Lopez's religious persecution claim that is properly before the court is the narrow argument that he raised to the board pertaining to that issue, which was simply that the immigration judge impermissibly relied on the high percentage of evangelical Christians residing in El Salvador to find no nexus.

[00:14:40] Speaker 02:
The board justifiably rejected that argument as the immigration judge relied on two other factors.

[00:14:47] Speaker 02:
Lopez does not challenge the board's reasoning on that point, nor does he argue in his opening brief that the board erred by not addressing any additional argument pertaining to his religious persecution claim.

[00:14:58] Speaker 02:
So any argument as to any other aspect of that claim is simply not properly before the court.

[00:15:07] Speaker 02:
However, even if it were properly before the court, the evidence simply does not support Lopez's claim here.

[00:15:15] Speaker 02:
That can be seen most clearly when comparing the Manzano case that was referenced by this court in the focus order and referenced briefly during an opening argument and the facts of this case.

[00:15:27] Speaker 02:
In Manzano, the petitioner there was publicly preaching in the street.

[00:15:31] Speaker 02:
The gang members approached him, referenced his public preaching, referenced his religious adherence and mocked him for it.

[00:15:37] Speaker 02:
threatened him with harm if he continued preaching.

[00:15:40] Speaker 02:
He did continue preaching and they did try to harm him.

[00:15:43] Speaker 02:
Here we simply don't have any connection to Lopez's Christianity here.

[00:15:49] Speaker 02:
El Conejo simply wanted to evade the police and targeted him because he was clean cut, but there is no evidence that he cared about his religion specifically.

[00:16:00] Speaker 02:
As to the issue of voluntary departure, if I may,

[00:16:06] Speaker 02:
That argument is unexhausted, as respondent argued in our brief.

[00:16:12] Speaker 02:
This case is different than in Gonzalez-Lara.

[00:16:15] Speaker 02:
In Gonzalez-Lara, the respondent also argued that the argument for voluntary departure was unexhausted.

[00:16:22] Speaker 02:
But in that case, the petitioner had filed a motion to remand with the board based on Pozo Sanchez, the change in law, and the potential availability of voluntary departure

[00:16:36] Speaker 02:
relief in that case.

[00:16:37] Speaker 02:
Here, Lopez simply did not do that, despite the fact that the Pozo Sanchez case came out in 2021, and the board's decision here didn't issue until 2023.

[00:16:48] Speaker 02:
So he could have filed such a motion.

[00:16:50] Speaker 02:
Without having done that, any argument as to voluntary departure is unexhausted, and he moreover doesn't provide a prima facie case of evidence to support such a claim.

[00:17:03] Speaker 03:
So you would agree that before the IJ, the voluntary departure request would have been futile.

[00:17:11] Speaker 02:
Correct.

[00:17:13] Speaker 03:
And generally we don't require exhaustion on futility, if there is futility.

[00:17:19] Speaker 03:
So your argument is only that he didn't raise it to the board.

[00:17:23] Speaker 02:
Correct.

[00:17:23] Speaker 02:
And that's what this court.

[00:17:24] Speaker 03:
Do you have a case that says that?

[00:17:26] Speaker 03:
In other contexts, we've just remanded so that the board can, when there's a change in law, that the board can consider it in the first instance.

[00:17:33] Speaker 02:
The case I have is Gonzalez-Lara.

[00:17:35] Speaker 02:
In that case, this court said that the proper procedure in just such an instance is to file a motion to remand with the board when the change in law happens during the pendency of an appeal with the board.

[00:17:45] Speaker 02:
And we have the same facts here.

[00:17:48] Speaker 02:
The only difference is that here,

[00:17:49] Speaker 02:
He didn't file such a motion to remand it.

[00:17:51] Speaker 02:
He should have.

[00:17:52] Speaker 03:
And you agree that now they would be eligible for voluntary departure?

[00:17:57] Speaker 02:
No, not necessarily.

[00:17:59] Speaker 03:
Well, I mean, that's statutorily eligible now.

[00:18:02] Speaker 03:
That would have been great.

[00:18:03] Speaker 02:
Perhaps not.

[00:18:04] Speaker 02:
There are several criteria that need to be met.

[00:18:08] Speaker 03:
Why don't you think they met the criteria?

[00:18:12] Speaker 03:
Or meet the criteria?

[00:18:13] Speaker 02:
They haven't provided prima facie evidence to show that they do meet the criteria.

[00:18:18] Speaker 02:
There are four criteria.

[00:18:19] Speaker 02:
the NTA issue only goes to presence.

[00:18:22] Speaker 02:
That's only one of the issues.

[00:18:23] Speaker 02:
But as this court found in Gonzalez Lara, because in Gonzalez Lara, the court did not remand.

[00:18:29] Speaker 02:
The court found that the error was harmless because in Gonzalez Lara, the petitioner didn't establish prima facie eligibility for

[00:18:38] Speaker 02:
voluntary departure.

[00:18:39] Speaker 02:
The same goes here.

[00:18:40] Speaker 02:
In the opening brief, which is the first time voluntary departure has been mentioned, there are three conclusory sentences as to the remaining three factors that just say there's no evidence undermining our claim.

[00:18:53] Speaker 02:
That isn't prima facie evidence.

[00:18:54] Speaker 03:
Well, here the IJ found them credible, right?

[00:18:58] Speaker 03:
Correct.

[00:19:00] Speaker 03:
But there was no development of... I understand that, but I'm just saying, do you have anything today to say that they wouldn't qualify for voluntary departure, except to say the evidence isn't in the record?

[00:19:12] Speaker 02:
No, the evidence just isn't in the record because of the failure to exhaust.

[00:19:18] Speaker 00:
So if failure to exhaust is excused because it would have been futile at the time, doesn't that simply support a remand?

[00:19:28] Speaker 02:
It does in the abstract.

[00:19:30] Speaker 02:
The problem is that here the petitioner did not obey the proper procedures as expressed in Gonzalez-Lara, where the court said that you need to file.

[00:19:41] Speaker 02:
It's not that they needed to pursue a futile claim.

[00:19:45] Speaker 02:
That certainly isn't required.

[00:19:47] Speaker 02:
But when there's a change in law that happens during the pendency of an appeal at the board, and here there was a two-year lag between

[00:19:54] Speaker 02:
then a motion to remand needs to be filed.

[00:19:57] Speaker 02:
And raising it for the first time here and throwing in three conclusory sentences, basically relying on the fact that there's been no development of the record, simply isn't sufficient.

[00:20:07] Speaker 00:
So your argument is essentially a waiver.

[00:20:10] Speaker 02:
Yes, it's a waiver, failure to exhaust, and lack of pre-infancy evidence.

[00:20:18] Speaker 02:
The court has no further questions.

[00:20:21] Speaker 02:
respond to respectfully request that the court deny the petition for review.

[00:20:25] Speaker 02:
Thank you.

[00:20:25] Speaker 02:
Thank you.

[00:20:36] Speaker 01:
I'd just like to read the quote from the case regarding exhaustion.

[00:20:41] Speaker 01:
We have also recognized that a petitioner does not need to exhaust a claim by applying for a form of relief where the application will be futile.

[00:20:49] Speaker 01:
And this court cited Vasquez Rodriguez v. Garland.

[00:20:53] Speaker 01:
Where the agency's position appears already set and recourse to administrative remedies is very likely, futile exhaustion is not required.

[00:21:01] Speaker 01:
In this case, the respondent entered United States on January 21, 2017.

[00:21:05] Speaker 01:
The NTA did not have that time and place.

[00:21:08] Speaker 01:
Ferreira was decided in 2018.

[00:21:10] Speaker 01:
The mayor's hearing was on March 25th, 2019.

[00:21:13] Speaker 01:
The respondent filed their appeal on May 9, 2019.

[00:21:17] Speaker 01:
Briefing was to be completed on February 16, 2021.

[00:21:23] Speaker 01:
Postal Sanchez was decided on July 7, 2021, well after the briefing was completed.

[00:21:29] Speaker 01:
The BIA issued a decision on May 1st, 2023.

[00:21:33] Speaker 01:
So that shows that it would have been futile.

[00:21:35] Speaker 01:
And this court has never, ever required anyone to pursue anything that's futile.

[00:21:40] Speaker 01:
And what the defendant, the respondent has argued before this court is just simply to reverse its own decision and require a petitioner to file a motion to remand or to reopen, which is not in conformity with current law.

[00:21:56] Speaker 01:
Thank you.

[00:21:57] Speaker 04:
Thank you.

[00:21:58] Speaker 04:
Thank both counsel for the arguments.

[00:22:00] Speaker 04:
And the case is submitted.