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

[00:00:02] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:06] Speaker 01:
Just watch the clock.

[00:00:07] Speaker 00:
Yes, Your Honor.

[00:00:09] Speaker 00:
May it please the court.

[00:00:11] Speaker 00:
My name is Sean Perdomo and I represent Mr. Eduardo Antonio Lopez Sanchez and his family on their petition for review.

[00:00:18] Speaker 00:
We are here today because Mr. Eduardo Antonio Lopez Sanchez fled a country where the Mara Salvatrucha operates as more than a criminal organization.

[00:00:28] Speaker 00:
It functions as a parallel state.

[00:00:30] Speaker 00:
In El Salvador, this gang holds power, not just through violence, but through a system of control that rivals the authority of the formal government.

[00:00:39] Speaker 00:
In many regions, the Mara Salvatrucha enforces its own laws, collects extortion under the guise of taxes, and punishes those who defy its will, as Mr. Lopez Sanchez did.

[00:00:50] Speaker 00:
When he refused to manipulate soccer matches in their favor, he challenged not just gang members,

[00:00:56] Speaker 00:
that an alternative regime that dictates life for thousands of Salvadorans.

[00:01:01] Speaker 00:
The Salvadoran government, either unable or unwilling to control the gang, stood by as they marked him and his family for death.

[00:01:10] Speaker 00:
The power of the Malar Salvatrucha is such that they have become an entrenched force in Salvadoran society, a shadow authority the people must obey for their survival.

[00:01:18] Speaker 00:
for Mr. Lopez Sanchez refusing their demands was seen as insubordination to this parallel state.

[00:01:25] Speaker 03:
Oh, actually, that's not what the agency found.

[00:01:31] Speaker 00:
Well, Your Honor, there are four issues that we take up.

[00:01:34] Speaker 03:
You've taken up issues.

[00:01:35] Speaker 03:
Let me start with this.

[00:01:37] Speaker 03:
You've acknowledged, I think, that the standard of review that applies is that, and I'll quote it from the

[00:01:45] Speaker 03:
opening brief, to reverse the BIA finding must find the evidence not only supports that conclusion but compels it.

[00:01:52] Speaker 03:
Is that the proper standard?

[00:01:54] Speaker 00:
Yes, Your Honor.

[00:01:55] Speaker 03:
Where in your argument you actually apply that standard?

[00:01:58] Speaker 03:
I didn't see anything.

[00:01:59] Speaker 00:
Well, it's applied for the NEXUS standard, Your Honor, and that's reviewed by this court for substantial evidence.

[00:02:04] Speaker 00:
And the substantial evidence in the record that supports a finding of NEXUS has to do with some of the statements that were not considered by the agency.

[00:02:13] Speaker 00:
And in those statements,

[00:02:15] Speaker 00:
There was a statement that the persecutors back in August of 2021, after the petitioner had refereed a soccer game, had stated that they hate soccer referees.

[00:02:29] Speaker 00:
And they targeted him based solely on the fact that he was a soccer referee who refused to obey the authority of the gang in a rig a match.

[00:02:38] Speaker 00:
I believe that that was substantial evidence to show that compels the conclusion that

[00:02:42] Speaker 00:
The petitioner was targeted based solely on his opposition to their gang authority, and he was targeted specifically because he was a soccer referee.

[00:02:50] Speaker 03:
Well, actually, the IJ's decision doesn't read like that.

[00:02:54] Speaker 03:
Indeed, the IJ, although your brief argues that it was never addressed, the IJ specifically says, no gang member made any statement indicating the interpreted lead respondent's calls in the soccer game as an offense or challenge to the gang itself or its authority.

[00:03:10] Speaker 03:
Well, what compelled a different conclusion?

[00:03:12] Speaker 00:
Well, what compels a different conclusion, Your Honor, is the country conditions evidence that was not considered by the agency.

[00:03:17] Speaker 03:
None of which relates to this particular person.

[00:03:20] Speaker 03:
Is his name ever popping up in any country reports?

[00:03:23] Speaker 00:
No, Your Honor.

[00:03:23] Speaker 03:
And I think that's- So you're telling me that the gang is powerful there, and I don't quarrel with that.

[00:03:28] Speaker 03:
But we're talking about individuals.

[00:03:30] Speaker 03:
And what evidence compels a conclusion contrary to the finding of the agency?

[00:03:35] Speaker 00:
Well, asylum and withholding of removal doesn't just protect individuals, it protects groups of people.

[00:03:40] Speaker 00:
And what he is asserting is that he belongs to a particular social group of people.

[00:03:44] Speaker 03:
And the IJ found that the threats to him were not motivated by a perception that he was challenging the gang's authority.

[00:03:55] Speaker 03:
What compels a different conclusion?

[00:03:58] Speaker 00:
Well, what compels a different conclusion is that the gang specifically targeted him.

[00:04:03] Speaker 03:
And although they may have targeted him because his calls cost them to lose a bet, the IJ found it to be a matter of personal animus.

[00:04:11] Speaker 03:
That's not the same as challenging the gang's authority.

[00:04:14] Speaker 03:
Your whole argument appears to hang on the premise that he was challenging the gang's authority.

[00:04:19] Speaker 03:
That's not what the IJ found.

[00:04:21] Speaker 03:
What evidence compels a different finding?

[00:04:23] Speaker 00:
Well, the statements that were made by the gang members that they hate soccer referees in the larger context.

[00:04:30] Speaker 03:
Did they kill or threaten every soccer referee only the ones that didn't make the calls they wanted?

[00:04:35] Speaker 00:
That's correct, Your Honor.

[00:04:36] Speaker 00:
And that's why this particular social group is particular, because it's defined by discrete boundaries.

[00:04:41] Speaker 00:
Not every soccer referee is targeted.

[00:04:43] Speaker 00:
Only those

[00:04:44] Speaker 00:
oppose the gang's authority.

[00:04:46] Speaker 03:
But you've got the same problem because there's nothing that links what he did to a challenge to the gang's authority according to the finding of the IJ and you haven't given me any reference to evidence that compels a different finding.

[00:05:01] Speaker 00:
Your Honor, I believe this also goes to the immutability of this particular social group.

[00:05:05] Speaker 03:
Stop.

[00:05:05] Speaker 03:
Right there.

[00:05:06] Speaker 03:
Because if you don't have a nexus, the immutability and the cognizability of the particular social group really doesn't matter.

[00:05:13] Speaker 03:
If you lose on nexus, that's it.

[00:05:15] Speaker 03:
So changing subjects to go to the particular social group is not going to get you over the problem of not being able to compel or produce evidence that compels a different finding.

[00:05:26] Speaker 00:
Your Honor, some of the substantial evidence that applies to the particular social group also shows why he was a soccer referee in the first place.

[00:05:33] Speaker 00:
When you look at the beliefs that he had and why he became a member of this association of soccer referees, it was to keep children out of the reach of gangs.

[00:05:42] Speaker 00:
That was not mentioned by the agency at all.

[00:05:44] Speaker 03:
But there's no evidence suggests the gang was targeting him because of that.

[00:05:49] Speaker 00:
Well, I believe that the reason why he's

[00:05:51] Speaker 00:
is a soccer referee is because he is known to be a fair and impartial person that is trying to help out his community and the children that live there.

[00:05:59] Speaker 03:
I get you want to shift the attention to him.

[00:06:02] Speaker 03:
But the question here is the motivation of the people who threatened him.

[00:06:06] Speaker 03:
And the finding of the IJ is it was based on personal animus.

[00:06:10] Speaker 03:
And you still, and I'll stop asking this question because I've kind of beaten a dead horse, you still haven't pointed to anything that compels a different finding.

[00:06:19] Speaker 00:
Well, Your Honor.

[00:06:20] Speaker 00:
Under the recent case of Corpino Romero this court has acknowledged the standard for nexus and that is is that if there is a but for cause for the persecutors targeting the petitioner here the but for causes his particular social group of soccer referees who refuse to obey the gang's authority.

[00:06:37] Speaker 00:
and that is not merely incidental or tangential, then you can satisfy the one central nexus standard for asylum and the withholding.

[00:06:45] Speaker 04:
Let me bring up a different, I think, difficulty with your position.

[00:06:48] Speaker 04:
And how is this proposed particular social group cognizable?

[00:06:54] Speaker 04:
What is it about referees that have been set apart in a socially distinct way in the community?

[00:07:00] Speaker 00:
Well, I believe you have to do the analysis, Your Honor.

[00:07:03] Speaker 00:
And under that analysis, if you look at the immutability factor,

[00:07:06] Speaker 00:
He is joined by a voluntary association of soccer referees.

[00:07:11] Speaker 00:
It's in the country conditions evidence, it's in the record, and it shows that he is a member.

[00:07:16] Speaker 04:
But that's an association.

[00:07:17] Speaker 04:
I mean, do you have authority for the proposition that some association is necessarily a PSG?

[00:07:25] Speaker 00:
Yes, Your Honor.

[00:07:26] Speaker 00:
And the case is Hernandez-Montiel versus INS, 225 F.3D, 1084, 1092 through 93.

[00:07:35] Speaker 00:
And that states that united by a voluntary association or by an innate characteristic that is so fundamental to the identities and consciences of its members, the members either cannot or should not be required to change.

[00:07:45] Speaker 04:
But why is that immutable?

[00:07:46] Speaker 04:
I mean, people ask me to referee my son's soccer games all the time.

[00:07:52] Speaker 04:
People can choose to be a referee or not.

[00:07:54] Speaker 04:
What makes that an immutable characteristic?

[00:07:57] Speaker 00:
Well, Your Honor, just like here in the United States, people become coaches because they want to be mentors for young juveniles.

[00:08:02] Speaker 00:
and they want to keep them out of a life of crime.

[00:08:04] Speaker 00:
There are many community service organizations that do this work.

[00:08:07] Speaker 04:
But that doesn't make it an immutable characteristic, something that the society has set apart.

[00:08:11] Speaker 04:
Or I guess to echo Judge Clifton's colloquy with you, why does the evidence compel the conclusion that this particular social group is socially distinct and immutable for purposes of asylum?

[00:08:27] Speaker 00:
Well, it's socially distinct because he belongs to this association of soccer referees.

[00:08:31] Speaker 00:
work with this organization to steer children out of a life of crime, which he's done.

[00:08:36] Speaker 00:
The gang recognizes this.

[00:08:37] Speaker 00:
That's why it is so important for the gang.

[00:08:39] Speaker 00:
to target referees so that they can diminish his standing in the community.

[00:08:44] Speaker 00:
Also, he was challenged in many different areas where he had refereed.

[00:08:49] Speaker 00:
He had traveled to many countries.

[00:08:50] Speaker 00:
His group was particular in the sense that he couldn't give up being a referee because there weren't enough referees to go around in the country of El Salvador.

[00:08:58] Speaker 00:
He traveled for two hours.

[00:09:00] Speaker 00:
He trained for over 10 years doing this.

[00:09:02] Speaker 00:
He received an association card.

[00:09:04] Speaker 00:
This is cases very much like Plancarte Sauceda,

[00:09:07] Speaker 00:
where he has special skills and training, and that is precisely why he was targeted by the gang.

[00:09:13] Speaker 00:
Just like the nurse in Plancarte Sauceda, who refused to work on behalf of the cartels, she was targeted because she... What evidence do you have to support that proposition?

[00:09:20] Speaker 03:
That's why he was targeted by the gang.

[00:09:22] Speaker 03:
The only evidence I've seen has to do with the threats because he made calls that particular gang members there didn't like.

[00:09:29] Speaker 03:
What evidence compels the conclusion that it has some broader social implications?

[00:09:33] Speaker 00:
Because the Mara Salvatrucha exerts control over the entire society.

[00:09:36] Speaker 00:
And like any other totalitarian regime, they try and control the media.

[00:09:39] Speaker 00:
They try and control sports.

[00:09:41] Speaker 00:
That's why you've seen journalists targeted.

[00:09:43] Speaker 00:
That's why now you're seeing a soccer referee targeted.

[00:09:46] Speaker 00:
And that is what gives the larger context as to why he was targeted by the gang.

[00:09:50] Speaker 00:
And I understand that the immigration judge decided something differently, but it was a rather short opinion.

[00:09:55] Speaker 00:
And she hinged it merely on personal animus without an explanation as to why.

[00:09:59] Speaker 00:
there was some sort of a disagreement, I guess, between the gang member and him that was on a personal level.

[00:10:04] Speaker 00:
They persecuted his family after he had fled to the United States, and two of his uncles were disappeared.

[00:10:09] Speaker 03:
Well, wait a minute.

[00:10:11] Speaker 03:
Persecuted his family, is there any evidence that his dependents involved in this case actually received any threats?

[00:10:20] Speaker 00:
They did not actually receive any threats.

[00:10:22] Speaker 03:
Is there any evidence that links the disappearance of, I think it was his wife's uncle or two uncles

[00:10:28] Speaker 03:
to the episode we're talking about here?

[00:10:30] Speaker 00:
Yes, Your Honor.

[00:10:31] Speaker 00:
There is documented evidence in the record.

[00:10:33] Speaker 00:
And it's letters from his family.

[00:10:35] Speaker 03:
Well, yes.

[00:10:36] Speaker 03:
But what demonstrates that, in fact, the motivation of the gang is what you're describing here?

[00:10:40] Speaker 03:
I didn't see any evidence that spoke to that.

[00:10:44] Speaker 03:
I'm sorry.

[00:10:44] Speaker 03:
I didn't understand the question, Your Honor.

[00:10:46] Speaker 03:
I don't quarrel with the proposition the uncles disappeared and taken by the gang.

[00:10:52] Speaker 03:
But that doesn't link it to this vendetta against soccer referees or against the alleged vendetta against the particular petitioner here.

[00:11:00] Speaker 03:
I saw no evidence that made that link.

[00:11:02] Speaker 00:
Thank you for clarifying, Your Honor.

[00:11:03] Speaker 00:
The petitioner's family also filed their own individual asylum applications in their particular social group as familial relations.

[00:11:10] Speaker 00:
So that is how that is relevant to their cases.

[00:11:13] Speaker 03:
My question didn't have to do with what they filed.

[00:11:15] Speaker 03:
My question had to do with what evidence links the disappearance of the uncles.

[00:11:20] Speaker 03:
to the episodes here.

[00:11:22] Speaker 00:
It is linked in the country.

[00:11:24] Speaker 00:
I'm sorry, in the record on review here.

[00:11:27] Speaker 03:
And is there anything in the record you can point me to?

[00:11:30] Speaker 00:
Yes.

[00:11:31] Speaker 00:
And that's at CAR 199.

[00:11:33] Speaker 00:
Two uncles, Efrain and Abraham, disappeared after gang members went looking for him.

[00:11:38] Speaker 00:
There's also documents.

[00:11:40] Speaker 00:
OK.

[00:11:40] Speaker 00:
Who is that from?

[00:11:42] Speaker 00:
That is from one of the letters of support that he received from his family members and neighbors.

[00:11:47] Speaker 03:
So that's the speculation by the family as to the causation.

[00:11:51] Speaker 03:
What evidence is there of the causation other than the speculation of petitioner and his family?

[00:11:56] Speaker 00:
I believe this court reviews the findings of fact that are made by the administrative agency and take those to be true unless there's an adverse credibility finding or unless they were given diminished weight by the immigration judge.

[00:12:06] Speaker 03:
Facts, yes.

[00:12:06] Speaker 03:
Speculation is the motivation, no.

[00:12:08] Speaker 03:
That's very different.

[00:12:10] Speaker 00:
Yes, your honor.

[00:12:11] Speaker 00:
But nonetheless, they weren't challenged by the immigration judge.

[00:12:13] Speaker 00:
They weren't challenged by the BIA.

[00:12:15] Speaker 00:
And nonetheless, on the record here, it was accepted as true.

[00:12:19] Speaker 04:
So as I understand it, the petitioners, each, both husband and wife, testified that the uncles were disappeared after gang members were searching for them?

[00:12:28] Speaker 04:
Is that?

[00:12:29] Speaker 00:
That's correct, your honor.

[00:12:30] Speaker 04:
And you're saying, so the IJ did not challenge that, and nor did the government?

[00:12:36] Speaker 00:
No, they did not challenge the actual underlying reasons, no.

[00:12:40] Speaker 01:
The IJ deemed that testimony credible, correct?

[00:12:44] Speaker 00:
Yes, Your Honor.

[00:12:47] Speaker 01:
I understand that you were hoping to reserve three minutes for rebuttal, so we'll go ahead and give that to you.

[00:12:52] Speaker 01:
We ask you a lot of questions.

[00:12:53] Speaker 00:
Great.

[00:12:54] Speaker 01:
Thank you, Your Honor.

[00:13:02] Speaker 02:
Good morning, Your Honors.

[00:13:04] Speaker 02:
May it please the court, Tatiana Pino for the Attorney General.

[00:13:08] Speaker 02:
The court can and should deny the asylum and withholding aspects of this petition for review because setting aside the cognizability of any particular social groups, substantial evidence supports the agency's dispositive finding that petitioners fail to demonstrate any degree of nexus to any protected ground.

[00:13:27] Speaker 02:
Thus, the court can and should deny the petition for review solely for lack of nexus.

[00:13:32] Speaker 02:
There is no record evidence that compels reversal of the agency's reasonable finding that the alleged persecutors in El Salvador were or would be motivated exclusively by purely personal animus and retribution, which are not protected grounds.

[00:13:46] Speaker 04:
Ms.

[00:13:46] Speaker 04:
Pinot, can I ask, what about the joint petition by the mother, by Anna and her son, Eduardo, and their particular social group of immediate family members of lead petitioner?

[00:14:00] Speaker 04:
Why isn't there evidence to support Nexus on that basis, in your view?

[00:14:08] Speaker 02:
Yes, so there there's no nexus on that basis because there's absolutely no evidence that anyone who threatened petition or anyone whom he fears holds any purely or excuse me holds any animus toward.

[00:14:24] Speaker 02:
Anna or Eduardo the son or any of his immediate relatives in fact but why I guess here's my question why would animus displace targeting the two of them because their family members to the to the father the animus is critical there has to be animus against the immediate family and in this

[00:14:43] Speaker 01:
Well, if the persecution would be based on family relationship, it would be animus towards the lead petitioner, but then targeting of his family members based on their family status.

[00:14:56] Speaker 01:
I mean, I don't think that they would need to show.

[00:14:58] Speaker 01:
I mean, that's kind of the whole point, that the gang would not be targeting them because of personal animus towards Anna and Eduardo, but based on their familial relationship.

[00:15:12] Speaker 02:
What's the question?

[00:15:14] Speaker 04:
In other words, if they have, if suppose the gang members have animus toward the father and they go and commit violence against the mother and son and the mother and son are claiming the protected social group of familial status, why would that not be the grounds for an asylum claim?

[00:15:32] Speaker 02:
I see.

[00:15:32] Speaker 02:
So this court's decision in Rodriguez Zuniga directly answers this question and that was briefed in respondents brief and that's because

[00:15:41] Speaker 02:
So under the facts here, the theory is the family would be targeted as means to leverage harm against the petitioner.

[00:15:53] Speaker 02:
In Rodriguez-Zuniga, this court has made clear that when the motivation is means to achieve a non-protected ground here, the retribution against the petitioner for personal reasons, that is not enough to establish nexus.

[00:16:10] Speaker 04:
But that was about a, remind me, was that about a robbery or a crime motivated?

[00:16:15] Speaker 04:
But here you have a different situation where if, let's say you're right and it's a means to harm lead petitioner or the father, if they're targeting the mother and son,

[00:16:29] Speaker 04:
because they are family relations, isn't that direct evidence of their PSG?

[00:16:35] Speaker 04:
Which is a protected ground.

[00:16:37] Speaker 04:
Let's assume it's cognizable for a moment.

[00:16:40] Speaker 04:
Why wouldn't that be evidence, direct evidence of nexus?

[00:16:44] Speaker 02:
Because, again, Rodriguez-Zuniga makes very clear there must be evidence of animus against the family.

[00:16:50] Speaker 02:
In Rodriguez-Zuniga, I believe it was petitioner's son who was threatened to obtain money from

[00:16:57] Speaker 02:
his mother, the lead petitioner.

[00:17:00] Speaker 02:
So very analogous facts.

[00:17:01] Speaker 02:
We have a relative who was threatened to achieve a non-protected ground, which is obtain money through that means.

[00:17:08] Speaker 02:
And so the court made very clear.

[00:17:11] Speaker 02:
There has to be some, and the court uses the word, actual motivation that intrinsically motivates the persecutor because there is animus

[00:17:21] Speaker 02:
toward the protected ground.

[00:17:23] Speaker 02:
A protected ground is not an actual motivation where, as here, the protected ground is simply an instrumentality.

[00:17:30] Speaker 02:
And the court uses that phrase, instrumentality, for the persecutor to accomplish his non-protected goals.

[00:17:35] Speaker 02:
Let me ask you this.

[00:17:36] Speaker 04:
Counsel just mentioned Corpino Romero, which I'm familiar with.

[00:17:41] Speaker 04:
There are situations where there could be dual motives.

[00:17:45] Speaker 04:
And our cases have frequently discussed the potential error of the agency decides that there's only one motive to the exclusion of another one.

[00:17:55] Speaker 04:
Even if one of the motives might have been something that's not protected, if there's another protected ground such as nexus to a family relationship, doesn't the agency have to consider evidence for both motives and see whether that supports an asylum or withholding claim?

[00:18:12] Speaker 02:
Yes, they do.

[00:18:13] Speaker 04:
And did the agency do so here?

[00:18:15] Speaker 02:
Yes, the agency did.

[00:18:18] Speaker 02:
And there's evidence of that because we see the immigration judge discussing the A central reasons asylum standard, as well as the lower standard by Borjas Romero, the A reason.

[00:18:29] Speaker 02:
lower NEXA standard for withholding or removal.

[00:18:32] Speaker 04:
Well, I know the agency cited the standard, but where did the agency analyze evidence that the mother and son were targeted on account of being immediate family members to the father?

[00:18:46] Speaker 02:
If I may grab the record, I'd love to point to you where that is.

[00:18:52] Speaker 02:
So let's look at the immigration judge's decision together.

[00:18:55] Speaker 02:
So everyone's on the same page here.

[00:18:58] Speaker 02:
OK.

[00:18:59] Speaker 02:
at page 47 and going into 48, the last sentence states,

[00:19:05] Speaker 02:
This is by the immigration judge.

[00:19:06] Speaker 02:
However, there is insufficient evidence that the gang members expressed any animus against respondents, Anna and Eduardo.

[00:19:15] Speaker 02:
That is an absolute statement as to no degree of animus whatsoever toward these.

[00:19:22] Speaker 01:
It makes me different to say that they express personal animus to the individuals as Anna and Eduardo.

[00:19:29] Speaker 01:
That seems to be contrary to the concept of family-based

[00:19:32] Speaker 01:
persecution.

[00:19:33] Speaker 01:
So I understand they would have to express some animus to this family, right?

[00:19:38] Speaker 01:
And it could be animus to the whole family that derives from or arises from personal animus towards one member, right?

[00:19:47] Speaker 01:
I mean, I think in a quintessential persecution case, you know, someone who maybe is a political activist and speaks out against the government and the government says we're going to

[00:19:58] Speaker 01:
persecute your entire family because of what this one person did.

[00:20:01] Speaker 01:
I think that would be quintessential family-based persecution even if there wasn't personal animus towards every individual in the family.

[00:20:11] Speaker 01:
It would be family.

[00:20:12] Speaker 01:
The whole point is that it's family-based persecution, isn't it?

[00:20:15] Speaker 02:
Well, the whole point is they're targeting the family to harm petitioner because they dislike petitioner for yearly personal reasons.

[00:20:25] Speaker 02:
So, yes, they are targeting the family.

[00:20:26] Speaker 02:
No dispute there.

[00:20:28] Speaker 02:
And by the way, this is just a fear of future harm.

[00:20:33] Speaker 02:
The theory is, yes,

[00:20:34] Speaker 02:
The fear is that the family would be targeted, but it links back to that non-protected reason.

[00:20:40] Speaker 01:
So that's a different argument.

[00:20:42] Speaker 01:
That to me is different from saying there needed to be a finding of personal animus towards Ana and Eduardo.

[00:20:50] Speaker 01:
is a different argument for me than the animus toward the reason for the family-based persecution itself has to be a protected basis, is what I'm hearing you say.

[00:21:01] Speaker 01:
It can't just be because I want to get a lot of money from this family, which is not a protected basis in asylum, but rather this family is being persecuted because of their political views or something else, and then it can extend to the whole family.

[00:21:17] Speaker 01:
I think those are two different arguments.

[00:21:19] Speaker 02:
Right.

[00:21:20] Speaker 02:
And the respondent's position comes straight from Rodriguez-Zuniga.

[00:21:24] Speaker 02:
And I encourage the court to also look especially closely at footnote two of that decision.

[00:21:29] Speaker 02:
And it discusses what it means to have intrinsic motivations versus incidental or instrumentality motives.

[00:21:39] Speaker 02:
There's a distinction there that the court makes very clear, goes to great lengths to explain.

[00:21:44] Speaker 02:
And then going back to Judge Sanchez's question about mixed motives.

[00:21:47] Speaker 02:
Again, Rodriguez Uniga deals exactly with this issue and explains that mixed motive cases are possible where persecutors are essentially motivated by a non-protected ground.

[00:21:58] Speaker 02:
so long as there is evidence of the family membership being an actual, additional, intrinsic motivation.

[00:22:08] Speaker 02:
But whereas, as in this case, the non-protected ground is the exclusive motivation, there cannot be a mixed motive.

[00:22:14] Speaker 04:
And you're saying the non-protected ground is the personal animus.

[00:22:17] Speaker 02:
That's right.

[00:22:18] Speaker 02:
It always relates to that.

[00:22:18] Speaker 04:
Let me ask you this.

[00:22:20] Speaker 04:
I'm sorry to interrupt.

[00:22:22] Speaker 04:
The uncle's kidnapping or disappearance as an evidence of nexus, as I understand it, the family had already left the country.

[00:22:32] Speaker 04:
And so there was no longer a motivation to try to leverage him for refereeing soccer games because he was no longer refereeing soccer games.

[00:22:41] Speaker 04:
But if gang members are kidnapping

[00:22:45] Speaker 04:
uncles because they were searching for this family and couldn't get that information, why is that not direct evidence of a family member, you know, immediate family member, something related to the PSG, and not this non-protected ground as the government suggests?

[00:23:03] Speaker 02:
Well, first let's be very clear.

[00:23:05] Speaker 02:
The record actually doesn't state, and I should say petitioner never put forth any evidence that these were the same gang members who targeted him.

[00:23:13] Speaker 04:
But petitioners did testify that there were people with tattoos and gang members that were the ones who did the kidnapping.

[00:23:21] Speaker 04:
And as we understand, the IJ credited their testimony.

[00:23:25] Speaker 04:
So there's nothing to go against that testimony, is there?

[00:23:29] Speaker 02:
No, but what I meant to say, perhaps, is they're not the same.

[00:23:33] Speaker 02:
These are not the same individuals.

[00:23:34] Speaker 02:
There's no evidence that these are the same individuals.

[00:23:36] Speaker 02:
So that's just my first point.

[00:23:38] Speaker 02:
My second point is that even assuming that these uncles

[00:23:43] Speaker 02:
were kidnapped and disappeared because they were seeking the whereabouts of the whole family or the immediate family plus petitioner.

[00:23:51] Speaker 02:
That is not sufficient to establish that, again, this was done out of animus toward Anna or Eduardo or the lead petitioner.

[00:24:01] Speaker 02:
It's the same problem that Ana Eduardo have.

[00:24:04] Speaker 02:
And I point the court to this court's decision, Duane Esquinto, which responded, cited in the brief, that concluded, that upheld the agency's denial of asylum and withholding because substantial evidence supported that the persecutors did not- Counsel, I don't, I'm sorry, I don't understand that.

[00:24:20] Speaker 04:
If family members are kidnapped because the family is being searched for,

[00:24:29] Speaker 04:
Well, how is that not, what else could it be other than animus toward the family?

[00:24:34] Speaker 02:
So perhaps we need to unpack the idea of animus, right?

[00:24:39] Speaker 02:
I think that's where we're getting stuck.

[00:24:41] Speaker 02:
So just to take a purely illustrative example, and an unfortunate one, but it's current actually, anti-Semitic people,

[00:24:51] Speaker 02:
have a hatred towards the Jewish population to the point that they don't want to see the Jewish population exist on the face of the earth.

[00:24:58] Speaker 02:
Okay, that is how extreme and the animus has to be.

[00:25:02] Speaker 02:
And so when you're applying that same degree of animus and hatred,

[00:25:07] Speaker 02:
in this context, you're looking for evidence where the gang absolutely despises and hates this particular family so much that they want to see them annihilated.

[00:25:18] Speaker 02:
That is what we're talking about.

[00:25:20] Speaker 02:
That is what it means to have the level of hatred required for asylum.

[00:25:24] Speaker 02:
That's what we look for in religious persecution cases, for example.

[00:25:28] Speaker 02:
And so there's no evidence of that here.

[00:25:31] Speaker 02:
There's no evidence, again, that these gang members knew

[00:25:34] Speaker 04:
an arduado existed that they were related to petitioners so it seems that the record does not have much to go based on

[00:25:46] Speaker 04:
But the concern that I have is the agency saying there's no evidence to nexus related to membership in the immediate family setting.

[00:25:56] Speaker 04:
Now, I think what you're discussing is if had the agency properly considered that evidence, you know, maybe it might not be enough or something, but it said there was no evidence of it.

[00:26:07] Speaker 04:
on the notion, I guess, about leveraging, refereeing, or animus.

[00:26:12] Speaker 04:
And that seems to me to be incorrect, as a matter of law, not as a matter of weighing evidence.

[00:26:19] Speaker 02:
So again, I understand the court's viewpoint for this issue.

[00:26:24] Speaker 02:
It's purely the fact that the mother or his wife and son may be targeted.

[00:26:31] Speaker 02:
You're asking whether that alone is enough for animus, right?

[00:26:37] Speaker 04:
Animus is the government's position.

[00:26:40] Speaker 04:
My view is if the family membership is a cognizable PSG and two uncles are kidnapped because they are looking for that family and can't find them, that seems to me to be threshold evidence that people were targeted because of membership in the PSG.

[00:27:01] Speaker 04:
Setting aside Animus or anything else.

[00:27:03] Speaker 02:
Sure.

[00:27:04] Speaker 02:
Rodriguez Uniga directly counters and goes against that notion you just described.

[00:27:11] Speaker 02:
And I point the court to page 1026 of that decision.

[00:27:14] Speaker 02:
And the court made clear, evidence that a gang targeted Petitioner's family is, and I quote, not necessarily evidence of the underlying motivation for doing so, end quote.

[00:27:27] Speaker 02:
Moreover, on page 1020 of the same decision, again,

[00:27:30] Speaker 02:
The court emphasizes simply because persecutors target a family member, quote, does not transform the persecutor's motivation from, and now I'm paraphrasing, wanting to achieve the non-protected goal to, quote, actual animus against the family.

[00:27:49] Speaker 02:
So evidence that family members are targeted is insufficient to show the motivation for targeting that family.

[00:27:58] Speaker 02:
And as Judge Clifton pointed out, the persecutor's motive, what was in their mind when they targeted these persons, that is the critical element for Nexus.

[00:28:09] Speaker 01:
I think possibly the difference here we're talking about is as a matter of law, it seems like the agency didn't even consider the

[00:28:15] Speaker 01:
So I read Rodriguez Zuniga saying this type of evidence doesn't necessarily compel a finding, but I think it's still something that the agency has to consider as a matter of law.

[00:28:27] Speaker 02:
So, okay, let's go back to the immigration judge's decision here.

[00:28:31] Speaker 02:
So let's see.

[00:28:33] Speaker 02:
So as already stated, the immigration judge made clear there's insufficient evidence that the gang members expressed any animus against respondents Anna and Eduardo.

[00:28:42] Speaker 02:
The lead respondent's fear of the gang members harming his immediate family shows only his belief, subjective belief, that the gang would harm respondents Anna and Eduardo as a means to leverage lead respondent into making calls in the gang's favor.

[00:28:56] Speaker 02:
I guess, Your Honor, what is it?

[00:28:57] Speaker 02:
I'm struggling to see what the court is seeing or lack or not seeing.

[00:29:02] Speaker 01:
Because I think the biggest concern is that there's some credited evidence that even after the lead petitioner ceased referring, they were searching for him and disappeared two of his family members.

[00:29:20] Speaker 01:
So that seems to be strong.

[00:29:24] Speaker 01:
at least, you know, arguable evidence of family-based animus that the agency seemed to not consider.

[00:29:33] Speaker 02:
I mean, it all relates back to why they want to target... We understand your argument on that point.

[00:29:40] Speaker 01:
Thank you.

[00:29:41] Speaker 02:
If there are no further questions, Your Honors.

[00:29:43] Speaker 02:
Thank you very much.

[00:29:52] Speaker 00:
Your Honors, just to correct some statements I made earlier.

[00:29:54] Speaker 00:
The correct citations earlier referenced were incorrect.

[00:29:57] Speaker 00:
So the CAR 199 should be corrected to CAR 149 and CAR 748.

[00:30:04] Speaker 00:
And that was testimony from Anna Yemilev regarding how she learned about her uncle's disappearances.

[00:30:12] Speaker 00:
She learned it from a neighbor.

[00:30:13] Speaker 00:
I mistakenly said that it was through a letter.

[00:30:15] Speaker 00:
It seems that the record is vague as to how she learned of that information, but just to make it very clear.

[00:30:21] Speaker 00:
There were a few things that were brought up.

[00:30:23] Speaker 00:
Rodriguez Uniga, the most recent case that was cited by the government, the non-protected goal there was to obtain extortion.

[00:30:32] Speaker 00:
Here, it doesn't involve extortion and it doesn't involve recruiting someone into being a part of the gang.

[00:30:38] Speaker 00:
This is very different.

[00:30:40] Speaker 00:
This is targeting a person who is a beacon in the community, someone who is seen as possessing those qualities that would steer children out of a life of crime.

[00:30:50] Speaker 00:
He's been doing this for

[00:30:52] Speaker 00:
at that point, about 11 years.

[00:30:54] Speaker 00:
And because he was doing that, he was targeted by the gang.

[00:30:57] Speaker 03:
What evidence is there to support the statement you just made?

[00:31:01] Speaker 00:
Thank you, Judge Clifton.

[00:31:01] Speaker 00:
I was just gonna get to that.

[00:31:02] Speaker 00:
So C. A. R.

[00:31:03] Speaker 00:
97 99.

[00:31:06] Speaker 00:
You see a statement there made in August 2021 at the Cowleys versus Presa game.

[00:31:11] Speaker 00:
He was told if you if you were ever to show up in one of these his soccer fields that he was not going to leave the field alive.

[00:31:19] Speaker 00:
He said it in the context of him being a soccer referee.

[00:31:22] Speaker 00:
He was targeted because of his calls on the field as a soccer referee.

[00:31:27] Speaker 00:
Now, it's very significant that he said a soccer field because this relates back to what he is doing.

[00:31:35] Speaker 00:
Also, he received threats.

[00:31:36] Speaker 03:
Let me focus here.

[00:31:39] Speaker 03:
Even if I would accept the proposition he was targeted because he was a soccer referee and not because he made calls that the gang members didn't like,

[00:31:48] Speaker 03:
What is it that makes the connection to the back story you've provided us that it's all because he's trying to encourage youth to get engaged in healthy activities and not get involved in gang activities?

[00:32:00] Speaker 03:
Is there anything at all that makes that leap?

[00:32:02] Speaker 00:
Well, Your Honor, those findings were not made by the immigration judge, and that's why we're here today in court, because the immigration judge didn't consider them even though they were in the evidence.

[00:32:10] Speaker 03:
The immigration judge said it was personal animus.

[00:32:12] Speaker 03:
That's correct.

[00:32:13] Speaker 03:
It's your burden to show us the evidence that compels a different conclusion.

[00:32:16] Speaker 03:
I mean, the starting point is that your client has conceded removability.

[00:32:22] Speaker 03:
So now the burden is on your client to establish an entitlement to your clients, plural, to establish an entitlement to asylum.

[00:32:30] Speaker 03:
That's correct.

[00:32:30] Speaker 03:
And so to tell me that the immigration judge didn't talk about a particular argument doesn't tell me evidence compels a different conclusion.

[00:32:39] Speaker 03:
And I haven't seen anything that makes the leap to supporting youth generally by being a soccer referee in order to encourage them not to join the gang.

[00:32:49] Speaker 03:
What evidence is there that makes that leap?

[00:32:51] Speaker 00:
There is evidence in the record at CAR 234 through 237 as to why the petitioner became a soccer referee.

[00:33:00] Speaker 03:
But the gang members don't know that.

[00:33:03] Speaker 03:
If they believe that anybody who was a referee opposed them, then all referees would be at risk.

[00:33:08] Speaker 03:
And there's no evidence of that.

[00:33:11] Speaker 03:
He says he's at risk because he made calls they didn't like, not because he's simply a soccer referee.

[00:33:18] Speaker 00:
He made the calls because they're consistent with his ideals and his values, and that's why he undertook becoming a soccer referee.

[00:33:23] Speaker 03:
How does that differentiate him from any other soccer referee?

[00:33:26] Speaker 00:
Well, there's no evidence in the record, Your Honor, as you're pointing out.

[00:33:29] Speaker 00:
as to what happened to other referees other than his friend Eusebio who was murdered five years prior.

[00:33:33] Speaker 03:
So how does that satisfy your burden to show us evidence compelling a different conclusion?

[00:33:37] Speaker 00:
Because there was a person that was similarly situated who was murdered for defying the gangs at a soccer match, his friend Eusebio, he testified to that.

[00:33:45] Speaker 00:
That is also reflected in the evidence that was submitted to the court and was not considered.

[00:33:49] Speaker 00:
So I think those findings themselves, that since they weren't made,

[00:33:53] Speaker 00:
That's why Nexus was not found in this case, and it was rather blamed on personal animus.

[00:33:57] Speaker 00:
And as it was mentioned in Corpino Romero, persecution is not mutually exclusive.

[00:34:03] Speaker 00:
He can be targeted because they disagreed with his calls on the field, but there was also another explanation as to why they were targeting him, and that's because he was a soccer referee.

[00:34:12] Speaker 00:
and because he held these ideals, and because he refused to go along with the gang's authority.

[00:34:16] Speaker 04:
Council, this is an unusual case.

[00:34:19] Speaker 04:
Assume that we don't agree with you that there's a legal basis for lead petitioners' petition, but that there may have been some problems with the Ana and Eduardo's petition.

[00:34:34] Speaker 04:
Where does that leave us?

[00:34:35] Speaker 04:
Does the failure of his petition affect their separate petition or no?

[00:34:40] Speaker 00:
Well, I believe that's where you see that there's a lot of flaws in the immigration judge's findings with regard to her cognizability of the particular social group analysis.

[00:34:48] Speaker 00:
As this court has pointed out several times, family-based persecution and personal animus are very hard to separate.

[00:34:56] Speaker 00:
She went through the three-prong analysis to determine whether it was not a cognizable particular social group.

[00:35:02] Speaker 00:
She decided that.

[00:35:16] Speaker 00:
We know who celebrities are and we know who their family members are.

[00:35:20] Speaker 00:
The family members themselves may not be famous and they may not be on the field attracting attention, but we certainly know who they are.

[00:35:26] Speaker 00:
The gang here was able to figure out who his family members were because they even murdered extended family members such as the two uncles.

[00:35:35] Speaker 00:
By not analyzing all of that evidence, the immigration judge made a very flawed cognizability finding with regard to the family-based particular social group that was forwarded by his family members.

[00:35:47] Speaker 00:
There were also other flaws in the particular social group analysis with regard to lead petitioners.

[00:35:54] Speaker 04:
I was going to ask.

[00:35:57] Speaker 04:
I don't understand social distinction to require a family-based particular social group to be some kind of celebrity status or well-known in the community in that sense.

[00:36:08] Speaker 04:
Is there any BIA or Ninth Circuit decision that would support that view of how to look at a family-based particular social group?

[00:36:17] Speaker 00:
Well, Your Honor, no.

[00:36:18] Speaker 00:
It's simply, are they set apart or seen as distinct by the society at large?

[00:36:23] Speaker 00:
And those factors, it does not say, as Judge Clifton asked earlier, whether or not their names are mentioned in country conditions reports.

[00:36:31] Speaker 00:
I've not seen a case in all my years of practice in asylum law where a specific family outside of a government official, or perhaps somebody that was notorious, was mentioned in a State Department country condition report.

[00:36:42] Speaker 00:
This soccer referee certainly was not named in a country condition report, and he's not that notorious, but he's notorious in his communities.

[00:36:48] Speaker 00:
He's known, he has no riot in his communities, he even travels two hours

[00:36:52] Speaker 00:
throughout El Salvador refereeing soccer games.

[00:36:55] Speaker 00:
That's how well known he is.

[00:36:56] Speaker 00:
So his family should benefit from that and they should be seen as socially distinct because they are set apart or different from any other family in El Salvador because of the virtue of his occupation.

[00:37:11] Speaker 01:
Thank you, counsel, for your helpful arguments.

[00:37:13] Speaker 01:
This matter is submitted.