[00:00:01] Speaker 00:
Good afternoon, everyone.

[00:00:09] Speaker 00:
Welcome to the Ninth Circuit.

[00:00:11] Speaker 00:
We'll be handling the calendar in the order that the cases are listed.

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One case on the calendar has already been submitted on the briefs and record.

[00:00:21] Speaker 00:
That is Castillo-Lopez versus Garland.

[00:00:24] Speaker 00:
So the first case up for argument is Rodas-Pedro versus Garland.

[00:00:29] Speaker 00:
When you're ready, counsel.

[00:00:34] Speaker 00:
Yes.

[00:00:43] Speaker 01:
Good afternoon, Your Honors, and may it please the court.

[00:00:46] Speaker 01:
My name is Roxana Muro, and I represent the petitioners in this case, Ms.

[00:00:50] Speaker 01:
Rodas and her minor daughter.

[00:00:52] Speaker 01:
Your Honors, I'm requesting that this court find that substantial evidence does not support the immigration judge and Board of Immigration Appeals adverse credibility determination.

[00:01:03] Speaker 01:
Just to recap a summary of the case, in this case, the respondent was 14 years old in 2008 when she was kidnapped by an older man, taken to Mexico, raped, held in captivity for about a month, was returned to Guatemala, and was forced to live with her abuser for approximately six years.

[00:01:25] Speaker 01:
Her mother did report the kidnapping in February of 2008.

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There's a first police report that corroborates that assertion.

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My client was able to escape to the United States six years later, made her way to the United States and filed for asylum.

[00:01:43] Speaker 01:
Her proceedings.

[00:01:44] Speaker 00:
Counsel, can you address the adverse credibility findings?

[00:01:46] Speaker 00:
Yes, you're right.

[00:01:47] Speaker 00:
One ground that the immigration judge relied on is demeanor.

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And as you know, it's...

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We review with great deference given to the immigration judge.

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And demeanor is one of those very difficult things where if you're not there, you don't really know it, right?

[00:02:05] Speaker 00:
He lent great significance to the fact that she

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lowered her voice at certain points when she wasn't certain.

[00:02:12] Speaker 00:
How do we judge that on a cold record like this?

[00:02:15] Speaker 01:
Yes, Your Honor, that's correct.

[00:02:16] Speaker 01:
The judge did note the hesitation of testimony, change in demeanor during cross and direct, and the fact that she would lower her voice when she was pressed with inconsistencies.

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But I'd like the court to take notation of the fact that in this case, there were serious fundamental issues throughout the

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immigration hearing, first of all, she was provided an interpreter.

[00:02:39] Speaker 01:
My client speaks Conjoval.

[00:02:41] Speaker 01:
Her interpreter spoke Conjoval, but it was an Akateko dialect.

[00:02:46] Speaker 01:
My client is from San Pedro, Soloma, so her dialect is from Soloma.

[00:02:53] Speaker 01:
There was a lot of issues with the interpretation.

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For example, on page 142, the interpreter indicates that there are different dialects of Conjubal that he had testified in about 60 proceedings, but that at one point he was disqualified when the respondent did not understand her.

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And there's exchanges throughout the record of proceedings that lend way to the assertion that my client was not provided a competent translator.

[00:03:19] Speaker 01:
She is not understanding that there are differences at the outset between the word young lady and daughter.

[00:03:26] Speaker 01:
The court was asking my client to please excuse the daughter from the respondents because she was a minor, and she didn't understand that word.

[00:03:34] Speaker 01:
There was a difference between young lady and daughter.

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So the record is played.

[00:03:37] Speaker 04:
There's two separate issues here.

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Maybe you can help me on them.

[00:03:42] Speaker 04:
It's one thing to say there were problems with the translation, and therefore the adverse credibility determination ought to be questioned.

[00:03:51] Speaker 04:
It's another thing to say that translator was not competent to translate.

[00:03:56] Speaker 01:
Right.

[00:03:56] Speaker 04:
And you're only making the first argument, not the second argument.

[00:04:00] Speaker 04:
Right.

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You didn't exhaust the second.

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You could have gone to the BIA and said, this is not an accurate translation.

[00:04:05] Speaker 01:
Right.

[00:04:06] Speaker 04:
So assuming that the translation is accurate,

[00:04:11] Speaker 04:
Why isn't the judge's adverse credibility determination supported at least in part by the demeanor?

[00:04:20] Speaker 01:
Because in this case, we also have to remember that this is a 25-year-old young woman who is testifying about rape and sexual violence and assaults that she suffered between the ages of 14 and 20 years old.

[00:04:34] Speaker 01:
I mean, these are very, very uncomfortable topics to talk about.

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She has a male immigration judge, a male attorney, a male interpreter.

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And so when she's being pressed at times, her voice is lowering, she's looking down, she's having a difficult time.

[00:04:49] Speaker 01:
But again, she's talking about very, very difficult events.

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At no point during the direct testimony does anyone seem to acknowledge the fact that she is talking about very difficult events.

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So I would also point out that these are very difficult topics to talk about.

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So if her voice is lowering,

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If her demeanor is changing, she's being asked to explain these alleged inconsistencies in the record, while at the same time, she just finished talking about rape and sexual violence that she suffered during a period of six years.

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And so the change in her demeanor here, I think, is attributable to the fact that she is a person who suffered as a child.

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And this court recognizes that.

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This court has recognized several times that victims of sexual violence oftentimes

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you know, forget details, they may become flustered, they are avoiding, you know, these intrusive thoughts that come back to them when they are talking about difficult topics.

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And so here, you know, the immigration judge points out to three inconsistencies.

[00:05:50] Speaker 01:
Well, first the hesitation and her change in her demeanor, and then these three inconsistencies that she's being pressed on.

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There's an issue regarding the sibling's asylum application, whether or not that was material to her claim.

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She has a brother and sister who filed for asylum.

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Allegedly, she doesn't know.

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When pressed by the government attorney, she states that she knows that her sister had an immigration court hearing, but she never states that she knew for sure that her sister had filed an asylum application.

[00:06:21] Speaker 01:
As far as the brother is concerned, she also states that the brother, it looks like she had just found out that he had filed for an asylum application.

[00:06:29] Speaker 01:
There are issues with, again, while this wasn't raised earlier, I know that in Rand versus Holder, the court does take note when an alleged inconsistency is pointed out regarding Rand's recitation of the Lord's Prayer.

[00:06:44] Speaker 01:
The court does note that there is a confusing exchange in the record of proceedings, and it's not clear whether or not Wren would have understood that he was being asked to recite just a prayer, or was he being asked to recite the Lord's Prayer?

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And it's not even clear that that word is something that you can translate in Wren's language.

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So I think that there are similarities here.

[00:07:06] Speaker 02:
I think there was one basis dealing with the fact that her mother

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I think made a second report to the police in December about

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It was later.

[00:07:18] Speaker 01:
Yes, there is a second police report.

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The first one is entirely consistent with her application, her declaration, and her testimony in court.

[00:07:29] Speaker 01:
The second police report indicates that Ms.

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Rodas had returned to the home and then went missing on November 7th of 2008.

[00:07:37] Speaker 01:
When she's asked why her mother would have reported that, she answers truthfully, I don't know.

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She's 15 years old at the time.

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She doesn't know why her mother reported her as missing.

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She's not the maker of the police report.

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She tries to guess and says maybe my mother was trying to get the police report to someone.

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So here it's possible that the mother was trying to get someone's attention.

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So either way, both police reports corroborate her assertion that she was forced to live with this man at the tender age of 14, 15 years old.

[00:08:10] Speaker 01:
In that case, I think that that difference in that police report, I think that she tried to give her best explanation, but it doesn't not affect the outcome of her proceedings.

[00:08:23] Speaker 01:
In fact, it actually corroborates that she wasn't home.

[00:08:27] Speaker 01:
Whether or not she went missing also, she's also 14, 15 years old, and she's not going to go walk away on her own with this older man.

[00:08:36] Speaker 01:
That, regardless, is persecution.

[00:08:39] Speaker 01:
The immigration judge also-

[00:08:40] Speaker 02:
Let me change the question just a little bit.

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Assume for a moment that we would agree with you that there are some deficiencies in the credibility determination.

[00:08:52] Speaker 02:
What should we do?

[00:08:54] Speaker 01:
I think in this case, you should remand the proceedings.

[00:08:57] Speaker 01:
There's been a lot that has happened.

[00:08:59] Speaker 01:
The immigration judge in this case finds that because matter of AB had been handed down during the time period that she was before the court, that he was not able to grant her any relief because matter of AB prohibited persecution from private actors.

[00:09:20] Speaker 01:
So initially, she submits based on matter of ARCG, which is withdrawn.

[00:09:24] Speaker 01:
But matter of ARCG has since been withdrawn.

[00:09:27] Speaker 01:
And this court has held in Diaz-Renosa versus Barr and other unpublished cases.

[00:09:32] Speaker 04:
Let me stop you there for a second.

[00:09:35] Speaker 04:
I want to ask the question Judge Piaz asked slightly differently.

[00:09:39] Speaker 04:
I read the IJ as saying, I don't find you credible.

[00:09:42] Speaker 04:
And that's what you've been spending your time on.

[00:09:44] Speaker 04:
Right.

[00:09:44] Speaker 04:
Then the IJ says, I'm looking at AR-116.

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Even giving respondent every benefit of the doubt, et cetera, et cetera, I don't think she's made out her case a burden of proof to establish eligibility for protection under the INA or the Convention Against Torture.

[00:10:05] Speaker 04:
And then he goes on at some length to explain why he doesn't, by her arguments, that that would be necessary to establish eligibility for that.

[00:10:17] Speaker 04:
Do you attack that finding in your brief?

[00:10:20] Speaker 01:
I do attack.

[00:10:21] Speaker 01:
I noted in my brief that the court does not actually address particular social groups.

[00:10:32] Speaker 04:
Here's my problem, so let me be more specific.

[00:10:35] Speaker 04:
He says all this stuff.

[00:10:37] Speaker 04:
The BIA says it cites matter of Burbano.

[00:10:42] Speaker 04:
Yes.

[00:10:42] Speaker 04:
And then it goes on to discuss at some length why it upholds the credibility determination.

[00:10:48] Speaker 04:
But if matter of Burbano is cited, you agree we review the whole decision by the IJ.

[00:10:54] Speaker 04:
Yes.

[00:10:54] Speaker 04:
So in order, even if your client is assumed credible, don't we also have to find that the IJ erred in finding her not eligible for relief under the INA or the CAT?

[00:11:08] Speaker 01:
Yes.

[00:11:09] Speaker 04:
OK, so tell me why you think the IJ erred there, because the IJ does a reasonably good job of explaining why he doesn't think there's sufficient evidence that the government would either acquiesce or consent or is unable to protect your client.

[00:11:30] Speaker 04:
So I'm trying to figure out why that decision isn't supported by substantial evidence.

[00:11:38] Speaker 01:
He finds that she failed to corroborate her assertion that the government is unable or unwilling to protect her in light of the evidence that the family did not report the crime.

[00:11:49] Speaker 04:
But what was the evidence that your client submitted that the government was unwilling or unable to protect her or would consent in her future to her child?

[00:11:58] Speaker 01:
And there's difficulty in that portion.

[00:12:01] Speaker 01:
And so in that case, I would just point out that, again, she's 14, 15 years old.

[00:12:06] Speaker 01:
She doesn't report the rape because she's a child.

[00:12:09] Speaker 04:
Look, I understand there's an excuse for her.

[00:12:12] Speaker 04:
It's her affirmative burden to establish either with respect to withholding or asylum that the government is unwilling or unable to protect.

[00:12:22] Speaker 04:
And with respect to CAT, that it would either consent or acquiesce.

[00:12:26] Speaker 04:
Because there's no argument here of government involvement.

[00:12:30] Speaker 04:
And the IJ says, you just haven't presented that evidence.

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My sense looking at the record is that that conclusion is arguably supported by the record.

[00:12:41] Speaker 04:
And so I'm trying to figure out what evidence your clients submitted to show the requisite government acquiescence, involvement, inability.

[00:12:50] Speaker 01:
There's a Department of State country condition report that she submits that does corroborate that many children are forced into early and forced marriages, particularly in rural areas.

[00:13:01] Speaker 01:
It's at page 24.

[00:13:02] Speaker 04:
That report shows a reasonable fear of persecution or a reasonable fear of even torture, perhaps.

[00:13:11] Speaker 04:
But what's the evidence of the government involvement or inability to protect people like this?

[00:13:17] Speaker 01:
That same report also discusses that domestic violence and rape is underreported, that it remains a serious problem, that femicide, that even though Guatemala appointed a special prosecutor, that femicide continues to be a problem, that the PNC is unable to prosecute cases at times.

[00:13:34] Speaker 01:
That's at page 292.

[00:13:36] Speaker 01:
So there is a showing here that she is unable to obtain the protection that she can from the government.

[00:13:43] Speaker 02:
I was going to say, counsel, counsel, I want to go back to the question I asked.

[00:13:47] Speaker 02:
Yeah.

[00:13:49] Speaker 02:
And that Judge Herr was just sort of modified there, which is appropriate.

[00:13:52] Speaker 02:
But when I looked at the IG's decision, I too noticed that he had cited matter of AB, which was the existing law at the time that he rendered his decision.

[00:14:05] Speaker 02:
In fact, it had come down not shortly before he rendered his decision in this case.

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And in the very end, before he starts talking about relief under CAT, he basically says, respondent failed to establish relief under matter of AB.

[00:14:23] Speaker 02:
And I went back and looked at AB, but I'd forgotten what AB was all about.

[00:14:26] Speaker 02:
But AB really emphasized that asylum for domestic violence was likely

[00:14:35] Speaker 02:
not available essentially is what it said because it involved private conduct that that the I think it was guatemala in that case as well could was not able to protect and right is that is that the way is that the that's what I understand that's what I when I saw this that's what kind of struck me after I looked

[00:14:58] Speaker 02:
at matter of AB, and then there was a matter of AB2, and then there was a matter of AB3, and we go back to, what was it, MC?

[00:15:08] Speaker 01:
MVG.

[00:15:08] Speaker 02:
Yeah, MVG.

[00:15:10] Speaker 01:
Yes.

[00:15:12] Speaker 02:
One thing that did catch my eye when we talk about Brabano is that given the way in which the IJ framed this case, that it should go back for a proper analysis under the correct law.

[00:15:27] Speaker 01:
And that's what I would request.

[00:15:29] Speaker 01:
I would request that if this court finds a substantial evidence does not support the credibility finding that then she would get a remand so that her case could be analyzed under the proper framework, which would be a matter of ARCG.

[00:15:40] Speaker 04:
But let me ask the question slightly differently.

[00:15:42] Speaker 04:
Let's assume that we found that the

[00:15:46] Speaker 04:
I take it your view is if we find that the credibility determination is supported, you don't win.

[00:15:53] Speaker 04:
You have to be able to upset the credibility determination.

[00:15:58] Speaker 04:
But if you do, you think we ought to send it back because you think the reliance on Matter of AB was a legal error?

[00:16:05] Speaker 01:
Well, the case law changed while she was on.

[00:16:08] Speaker 01:
And yes, I do think, yes.

[00:16:11] Speaker 04:
When did it change?

[00:16:11] Speaker 01:
That's what I'm trying to answer.

[00:16:13] Speaker 01:
A matter of ARCG gets restored in 2021 while it's on appeal before the court.

[00:16:18] Speaker 01:
So yes, before the judge and before the BIA.

[00:16:21] Speaker 04:
But before the BIA's decision?

[00:16:23] Speaker 01:
Before the BIA's decision, it was still a matter of AB.

[00:16:26] Speaker 01:
Correct.

[00:16:26] Speaker 01:
OK.

[00:16:27] Speaker 04:
That's what I was trying to figure.

[00:16:28] Speaker 00:
Yes.

[00:16:29] Speaker 00:
Your honor, I am.

[00:16:30] Speaker 00:
Thank you, counsel.

[00:16:30] Speaker 00:
I know our questioning took you over time, but I'll give you a minute to come back on rebuttal.

[00:16:44] Speaker 03:
Good afternoon.

[00:16:45] Speaker 03:
May it please the court, Aaron Nelson, for the respondent, the attorney general.

[00:16:50] Speaker 03:
Your honors, I would like to start with the issue of demeanor, because I think that this is a piece of the credibility finding that transcends the other issues.

[00:17:01] Speaker 03:
And as the panel noted,

[00:17:06] Speaker 03:
When opposing counsel was speaking, the immigration judge is best positioned to assess demeanor and other credibility cues.

[00:17:16] Speaker 00:
That is certainly true, counsel.

[00:17:17] Speaker 00:
But let me ask you this, because the basis for the demeanor analysis is that there was a change in her demeanor between direct and cross-examination.

[00:17:29] Speaker 00:
And when pressed with inconsistencies, her voice would lower.

[00:17:32] Speaker 00:
That's—we appreciate and recognize that's very difficult to review on a cold record.

[00:17:37] Speaker 00:
But this is a very sensitive topic, and I wonder if the IJ gave it too much weight, given the sensitivity of what she was being pressed to explain.

[00:17:48] Speaker 00:
How would you respond to that?

[00:17:51] Speaker 03:
I appreciate that concern, and I did hear opposing counsel mention that, that the demeanor can be explained by the fact that she was testifying to physical and sexual abuse.

[00:18:05] Speaker 03:
But a full reread of the transcript actually undercuts that assertion.

[00:18:11] Speaker 03:
It was on direct examination that her attorney asked her very pointed and very difficult questions, and as I reread the transcript, I was in a rather brusque manner about having been kidnapped, having been sexually assaulted.

[00:18:26] Speaker 03:
He asked her directly, was that your first sexual experience?

[00:18:31] Speaker 03:
And there is no notation in page after page of her voice lowering, of her obfuscating.

[00:18:38] Speaker 00:
Well, I don't know that it would necessarily be reflected.

[00:18:40] Speaker 00:
That's the problem.

[00:18:42] Speaker 03:
Well, it is reflected on cross-examination when she's actually not asked anything about sexual abuse or physical abuse.

[00:18:50] Speaker 03:
She's asked about the omission in her asylum application, for example, of the fact that two of her siblings also sought asylum.

[00:19:00] Speaker 03:
And she cannot answer in a straightforward manner, which is a marked contrast with her answers on direct examination.

[00:19:08] Speaker 04:
One of the things the IJ says is that she spoke hesitatingly on cross-examination and lowered her voice sometimes.

[00:19:20] Speaker 04:
But there's several occasions in the record

[00:19:23] Speaker 04:
were in direct examination, the IJ says, speak up.

[00:19:27] Speaker 04:
Speak more loudly.

[00:19:29] Speaker 04:
So I'm not sure that I find that this record seems to belie the notion that this only occurred when she was being asked tough questions.

[00:19:39] Speaker 03:
So that piece perhaps, it was noted that she spoke in a lower voice, but it doesn't explain why when she was asked about her sister Rosalia's asylum application and the fact that she did not check the box on her own application that a sibling was seeking relief, that she was asked a series of questions.

[00:20:02] Speaker 03:
And I would add sort of parenthetically,

[00:20:05] Speaker 03:
her attorney was dead set against her answering any question having to do with her sister's asylum application.

[00:20:12] Speaker 03:
He objects four or five times.

[00:20:14] Speaker 04:
I think you're on stronger ground in saying that her credibility could be called into question because she gave incorrect testimony about her sister's application or her brother's.

[00:20:27] Speaker 04:
But I'm having more difficulty figuring out from this record whether it supports the notion that

[00:20:34] Speaker 04:
Her credibility should be called into question because of the way she spoke, as opposed to the words she said.

[00:20:40] Speaker 04:
Because the record seems to be replete with notions where somebody's saying, I can't hear you.

[00:20:45] Speaker 04:
You're speaking too low.

[00:20:46] Speaker 04:
Speak more loudly.

[00:20:47] Speaker 04:
So it's not that inconsistency, which I think the IJ could rely on.

[00:20:54] Speaker 04:
Whether it's sufficient is a separate issue.

[00:20:56] Speaker 04:
But this demeanor notion is very hard in this transcript, even though I know it's hard for us in general, when I see the IJ continually saying to her, speak up.

[00:21:07] Speaker 04:
I can't hear you.

[00:21:08] Speaker 04:
You need to be louder.

[00:21:10] Speaker 04:
So the notion that she's only hesitating on cross is hard to get out of this transcript.

[00:21:15] Speaker 03:
So it's not just hesitation.

[00:21:16] Speaker 03:
She's asked in a series of questions about her sister's asylum application, whether she knows if her sister applied for asylum.

[00:21:26] Speaker 03:
There's a series of questions.

[00:21:27] Speaker 03:
And in the end, the immigration judge asks in a straightforward, calm way, did you hear and understand the question?

[00:21:33] Speaker 03:
And she says that she did.

[00:21:35] Speaker 03:
And then he says,

[00:21:37] Speaker 03:
then you should answer the question, you're just sitting there.

[00:21:39] Speaker 03:
So that's not an example of her speaking in a low voice.

[00:21:44] Speaker 00:
It could be that she hesitated more, longer pauses, and lowered her voice more so on cross-examination on direct.

[00:21:54] Speaker 00:
But given this record, that becomes a very thin read to kind of rest your argument on.

[00:22:02] Speaker 00:
Well, I would really appreciate that we weren't there, and we don't know, but the explanation isn't fulsome for us to really test whether that's a little too thin and therefore not supported by substantial evidence, or whether it, in fact, was supported by substantial evidence.

[00:22:17] Speaker 04:
Is it supported by substantial evidence with respect to the inconsistencies?

[00:22:21] Speaker 04:
Is that enough?

[00:22:22] Speaker 04:
In other words, she does.

[00:22:24] Speaker 04:
testify in a way that now we know is not accurate with respect to her sister and brother's applications.

[00:22:32] Speaker 04:
Is that enough to uphold the credibility determination?

[00:22:36] Speaker 03:
So we're shifting from the demeanor, actually.

[00:22:39] Speaker 04:
That's shifting from the demeanor to the actual content of the testimony.

[00:22:42] Speaker 03:
The actual content of the testimony.

[00:22:44] Speaker 03:
Indeed, and I would say that her inability to answer questions about her sister's application

[00:22:53] Speaker 03:
is supported by substantial evidence because... Well, I think it is, too.

[00:22:57] Speaker 04:
I guess I'm asking a different question, assuming that it is.

[00:23:00] Speaker 03:
I think that alone is enough to... Well, I don't know.

[00:23:03] Speaker 04:
We've abandoned the rule.

[00:23:05] Speaker 04:
The single factor.

[00:23:06] Speaker 04:
Single factor is enough, so I'm trying to figure out what the government's position is about whether that factor is so significant, since it really doesn't bear directly on her claim of persecution, or whether it's just a side factor that we ought not

[00:23:21] Speaker 04:
put that much weight on.

[00:23:22] Speaker 03:
I would say it's not a side factor and it's not immaterial and I say that it is something upon which that we can support the adverse credibility because we don't know what we don't know.

[00:23:35] Speaker 03:
Firstly, under penalty of perjury, she signed and affirmed that

[00:23:41] Speaker 03:
She knew the contents of the of her asylum application, which included not saying that she had siblings were also applying for asylum, but more importantly,

[00:23:53] Speaker 03:
When DHS counsel appeared for the hearing that day, she was prepared for a certain case, and then there were changes to the asylum application, which included that this sister, who was previously listed as residing in California, no longer resided in California, but resided back in Guatemala.

[00:24:13] Speaker 03:
So this foreclosed a potential line of inquiry that could have, we don't know what we don't know based on that.

[00:24:22] Speaker 03:
We do know based on her declaration that when she decided to leave Guatemala, she left with a group of people.

[00:24:28] Speaker 03:
And I believe she says it's a group of women.

[00:24:30] Speaker 03:
A potential area of examination would be, this includes your sister.

[00:24:35] Speaker 03:
The sister's asylum application also included a rider that was the sister's daughter.

[00:24:39] Speaker 03:
That asylum application was denied separately.

[00:24:43] Speaker 03:
There are, as I mentioned before, four or five instances where her attorney does not want her to answer any questions having to do with

[00:24:51] Speaker 03:
sisters having applied for and been denied.

[00:24:56] Speaker 03:
So it's not simply an oversight.

[00:24:58] Speaker 03:
It's not a tangential detail.

[00:25:00] Speaker 03:
It forecloses a potential line of inquiry that could have undercut in other ways.

[00:25:06] Speaker 03:
And because of that and because she bears the burden of presenting a case that is credible, I believe that alone is enough to withstand substantial evidence review.

[00:25:16] Speaker 04:
Can I take you to the issue that Judge, and now that I understand Judge Piaz's question better, let me see if I can ask them both at once.

[00:25:25] Speaker 04:
He can fix it if I'm wrong.

[00:25:28] Speaker 04:
I think everybody agrees that the IJ also said, even if you're credible, you don't get relief.

[00:25:35] Speaker 04:
The BIA then cited Bourbono.

[00:25:39] Speaker 04:
Was there a legal error in the I.J.'

[00:25:42] Speaker 04:
's analysis because he relied on A.B.

[00:25:45] Speaker 04:
in finding that she was not entitled to relief and the law has now changed?

[00:25:50] Speaker 03:
I don't believe there was a legal error.

[00:25:53] Speaker 03:
I'm not certain that that has been the mainstay of either petitioners briefed to the board or her opening.

[00:26:01] Speaker 03:
Well, I understand that.

[00:26:03] Speaker 04:
There may be an exhaustion issue, but

[00:26:06] Speaker 04:
You know, focus on the merits.

[00:26:09] Speaker 02:
Well, she couldn't have exhausted it because AB was the existing law at the time.

[00:26:14] Speaker 03:
I don't believe that this case, if we move from credibility and shift to nexus and unable and unwilling, it doesn't hang on whether or not AB was the law of the land.

[00:26:25] Speaker 02:
The way in which the IJ framed the issue for him, he emphasized private conduct.

[00:26:33] Speaker 02:
Private conduct that the government under AB really can't control, and they make a big deal about that in AB.

[00:26:43] Speaker 02:
You remember AB, don't you?

[00:26:44] Speaker 02:
Sure.

[00:26:44] Speaker 02:
We all do.

[00:26:45] Speaker 02:
There was all kinds of confusion when AB came down.

[00:26:48] Speaker 02:
AB 1, AB 2, AB 3.

[00:26:49] Speaker 03:
Change of administrations.

[00:26:50] Speaker 02:
Right, and the whole thing switched.

[00:26:51] Speaker 02:
Yes.

[00:26:52] Speaker 03:
Right.

[00:26:53] Speaker 03:
I would reiterate that I understand the citation to matter of AB, but

[00:26:59] Speaker 03:
The decision nonetheless holds based on, for example, the lack of a nexus.

[00:27:08] Speaker 03:
Simply because we're no longer in Matter of AB1 doesn't mean that she doesn't have to show a nexus between the harm that she experienced

[00:27:16] Speaker 03:
and a protected category.

[00:27:18] Speaker 03:
And the immigration judge, separate from the AB analysis, said that... Well, let me ask you this.

[00:27:25] Speaker 02:
Shouldn't the BIA, the agency, decide it without the burden of AB hanging over them or without EB hanging over the analysis?

[00:27:32] Speaker 03:
You know, I confess that I would have to look at the chronology of her submission in her appellate brief to the board and the date of the board's decision.

[00:27:40] Speaker 02:
Well, AB's not mentioned in her appellate brief to the board.

[00:27:44] Speaker 02:
It just isn't.

[00:27:46] Speaker 03:
And so if we were to say, OK, send it back based on the fact that matter of AB was in existence before the immigration judge, I think the decision holds nonetheless because there is simply no nexus.

[00:28:05] Speaker 03:
We have a private actor.

[00:28:07] Speaker 00:
Can I have you expand on that a little bit?

[00:28:10] Speaker 00:
Because you're saying that in the alternative,

[00:28:13] Speaker 00:
The IJA made a nexus finding, but I read the analysis and maybe he did make a nexus finding and I missed it.

[00:28:19] Speaker 00:
The focus really is, as Judge Pius said, really on the private conduct and how Tomas is really fearful of prosecution and just factually engaging with the fact that he's a private actor and there's no unwillingness to protect.

[00:28:36] Speaker 00:
So where is the nexus finding?

[00:28:39] Speaker 03:
I cite a page to the immigration judge's decision at 446, and I understand that Judge Hurwitz, you have a .

[00:28:47] Speaker 03:
.

[00:28:47] Speaker 03:
.

[00:28:47] Speaker 04:
Yeah, I'm looking at the E.R.

[00:28:49] Speaker 04:
Oh, E.R.

[00:28:50] Speaker 04:
Oh, yeah, C.A.R., the certified record, which .

[00:28:52] Speaker 00:
.

[00:28:52] Speaker 00:
.

[00:28:52] Speaker 00:
E.R.

[00:28:52] Speaker 00:
116?

[00:28:52] Speaker 00:
116.

[00:28:54] Speaker 03:
It must be 116.

[00:28:55] Speaker 03:
I have it at 446.

[00:28:56] Speaker 04:
Okay, so assuming that .

[00:28:58] Speaker 04:
.

[00:28:59] Speaker 04:
.

[00:28:59] Speaker 04:
tell me where, wherever you have it.

[00:29:01] Speaker 04:
It's only three pages after that.

[00:29:03] Speaker 04:
I can find it.

[00:29:04] Speaker 04:
Where the judge says .

[00:29:07] Speaker ?:
.

[00:29:07] Speaker ?:
.

[00:29:07] Speaker 04:
He says private actor.

[00:29:10] Speaker 04:
He says that rather clearly.

[00:29:12] Speaker 04:
And that's where AB comes into play.

[00:29:15] Speaker 04:
Tell me where he finds no nexus.

[00:29:17] Speaker 03:
So, the second paragraph, although respondents checked the box that she was basing her claim based on her race,

[00:29:27] Speaker 03:
and membership in a particular group.

[00:29:29] Speaker 03:
It's the court's judgment based upon the record that there is insufficient evidence to show that she was harmed or has a well-founded fear of harm based on her race.

[00:29:40] Speaker 04:
This is 117 in our record.

[00:29:42] Speaker 04:
So it must have been one page later in yours.

[00:29:44] Speaker 03:
So that would be true.

[00:29:46] Speaker 03:
And the board.

[00:29:47] Speaker 04:
But then he goes on to say, whether or not the group is cognizable, the court notes that it's a private act.

[00:29:53] Speaker 04:
So you think these are two independent

[00:29:57] Speaker 04:
findings by the IJ.

[00:29:59] Speaker 04:
First, there's no nexus to a PSG.

[00:30:01] Speaker 04:
And second, even if there was, it's a private actor.

[00:30:05] Speaker 03:
Precisely.

[00:30:06] Speaker 03:
And I would say that it's buttressed by the board's decision at three, where in discussing the fact that she's not eligible for humanitarian asylum, the board says she's not eligible for humanitarian asylum, as she did not establish past persecution on account of a protected ground.

[00:30:26] Speaker 03:
We would say that even if you find problems with the credibility finding, we can pivot to both unable unwilling and nexus and support the denial of relief.

[00:30:39] Speaker 04:
Because you think it's undeniable that the treatment that she had was persecution.

[00:30:45] Speaker 04:
So I mean, being being raped is persecution under any definition.

[00:30:50] Speaker 04:
So what you're saying is they must have found that the persecution was not on account of a protected ground.

[00:30:56] Speaker 03:
Precisely.

[00:30:57] Speaker 03:
You know, I would I would acknowledge that the facts in this case with respect to the physical and sexual abuse and violence that she experienced as alleged.

[00:31:06] Speaker 03:
They're difficult.

[00:31:07] Speaker 03:
They're horrific.

[00:31:08] Speaker 03:
They're repugnant.

[00:31:09] Speaker 04:
But then they amount to past persecution.

[00:31:12] Speaker 04:
So therefore the finding that she hasn't established past persecution must be because of the absence of a protected ground, not because she didn't show that she was mistreated.

[00:31:23] Speaker 03:
I would concede, yes.

[00:31:25] Speaker 04:
I think that's your argument, isn't it?

[00:31:28] Speaker 04:
You don't have to concede it.

[00:31:30] Speaker 03:
I think that's what you're telling us, right?

[00:31:32] Speaker 03:
Well, this case involves what we consider to be abhorrent, what we consider a layman's definition of persecution or torture.

[00:31:41] Speaker 03:
And what is persecution under the asylum law?

[00:31:44] Speaker 03:
And because, you know, as we say in our brief, it has to have the additional government actor aspect, and because it has to have the on-account-of aspect, her claim, unfortunately for her, her claim necessarily fails.

[00:32:02] Speaker 03:
So I see that I have 10 seconds left.

[00:32:04] Speaker 03:
Any?

[00:32:04] Speaker 00:
You're actually over time, but let me see if my colleagues have any additional items.

[00:32:07] Speaker 00:
Oh, I'm sorry.

[00:32:08] Speaker 04:
You need to give us back 10 seconds.

[00:32:11] Speaker 00:
Anything else?

[00:32:15] Speaker 02:
No, I don't.

[00:32:15] Speaker 00:
Thank you, counsel.

[00:32:16] Speaker 00:
OK, thank you.

[00:32:25] Speaker 04:
Counsel, it would be particularly helpful to me now, in light of this last exchange, if you address the nexus issue.

[00:32:32] Speaker 01:
Yes.

[00:32:33] Speaker 01:
Well, I don't believe that the immigration judge ever addresses whether.

[00:32:37] Speaker 04:
Well, he says, although respondent checked the box that she's basing her claim because of her race and membership in a PSG, it is the court's judgment, based on the record, that there's insufficient evidence that she was harmed or has a well-founded fund.

[00:32:52] Speaker 04:
He says funded.

[00:32:53] Speaker 04:
Well-founded fear of persecution, being persecuted because of her race.

[00:32:58] Speaker 04:
Right.

[00:32:58] Speaker 04:
So tell me.

[00:33:00] Speaker 04:
Why the finding of no nexus to a PSG?

[00:33:04] Speaker 01:
Well, that went to her ethnicity claim, where she indicates that she's afraid of being persecuted because she's a Mayan indigenous Guatemalan woman.

[00:33:12] Speaker 01:
But she also submitted that she was a Mayan indigenous Guatemalan woman unable to leave the relationship.

[00:33:18] Speaker 01:
So that particular social group that's mentioned in her attorney's pre-hearing statement and then India.

[00:33:26] Speaker 04:
Did you argue to the BIA at all?

[00:33:28] Speaker 04:
that the Nexus finding is unsupported?

[00:33:32] Speaker 01:
Her attorney, I think.

[00:33:33] Speaker 04:
Not you.

[00:33:34] Speaker 04:
Your side of the.

[00:33:37] Speaker 01:
Yes.

[00:33:37] Speaker 01:
I mean, I think her attorney mentions that his client deserved humanitarian asylum, presumably because she had suffered past persecution on account of a protected ground.

[00:33:47] Speaker 01:
So while he doesn't do it very eloquently, I think he tries when he discusses the humanitarian asylum.

[00:33:53] Speaker 00:
You're saying if we search for it, it's there somewhere in the BIA brief.

[00:33:57] Speaker 00:
Right.

[00:33:58] Speaker 00:
All right.

[00:33:59] Speaker 00:
Thank you.

[00:33:59] Speaker 00:
You're over time.

[00:34:00] Speaker 00:
Thank you.

[00:34:01] Speaker 01:
Do you have questions?

[00:34:02] Speaker 02:
No, I don't think so.

[00:34:03] Speaker 00:
Thank you very much to both sides for your argument today.

[00:34:06] Speaker 00:
It was very helpful.

[00:34:07] Speaker 00:
The matter is submitted.