[00:00:01] Speaker 04:
Good morning, Your Honors.

[00:00:03] Speaker 04:
My name is Estelle McKee with the Asylum and Convention Against Torture Appellate Clinic at Cornell Law School, Pro Bono Council for Ms.

[00:00:10] Speaker 04:
Pineda Escobar.

[00:00:11] Speaker 04:
I would like to reserve two minutes for rebuttal.

[00:00:15] Speaker 02:
All right, watch your clock, please.

[00:00:17] Speaker 04:
May it please the court, there are only two issues right now, and that is whether, for purposes of asylum and withholding of removal, the agency failed to consider highly probative evidence that the government of El Salvador was unwilling or unable to protect Ms.

[00:00:34] Speaker 04:
Pineda Escobar from her husband's violent physical and sexual abuse.

[00:00:39] Speaker 04:
And two, whether the agency made the same error as well as a legal error in applying the wrong legal standard when it denied convention against torture protection, finding that Ms.

[00:00:49] Speaker 04:
Pineda Escobar had not met the acquiescence requirement.

[00:00:54] Speaker 00:
But regardless of- Counsel, I just want to clarify.

[00:00:56] Speaker 00:
Are you then not arguing, are you arguing only for remand or are you not arguing that the government didn't meet its substantial evidence?

[00:01:04] Speaker 04:
So, oh, apologies, Your Honor.

[00:01:07] Speaker 04:
I wanted to clarify my question, but if you get it, then... We are arguing for remand, but it is not just on substantial evidence.

[00:01:17] Speaker 04:
The issue of whether the agency failed to consider highly probative evidence, that is a legal error that warrants de novo review.

[00:01:26] Speaker 04:
But if this court finds that the agency did consider highly probative evidence, then substantial evidence review would apply.

[00:01:34] Speaker 02:
Council, I don't understand why you're not asking us to just outright grant this petition.

[00:01:40] Speaker 02:
What remaining issues have to be determined on remand?

[00:01:45] Speaker 04:
Well, if this court is willing to outright grant the petition, then we do ask for that.

[00:01:51] Speaker 02:
I'm trying to figure out, in terms of there's only one

[00:01:57] Speaker 02:
and it's a legal determination whether or not the government was willing unable or unwilling to control these husband's violence against her and it seems very clear from the record that the government was willing but the government was unable and and that substantial evidence would not support a determination that the government was able

[00:02:24] Speaker 02:
But if we were to grant on that issue, what would we have?

[00:02:29] Speaker 02:
What's the remand for?

[00:02:32] Speaker 04:
Your Honor, I believe that the Board of Immigration Appeals only addressed acquiescence and inability and unwillingness and not the remaining grounds that the immigration judge denied on.

[00:02:50] Speaker 04:
And to the extent that means that the Board of Immigration Appeals found the remaining grounds not

[00:02:59] Speaker 04:
you know, not sustainable, then yes, Your Honor is right.

[00:03:02] Speaker 04:
Then in that case, this court could just outright grant.

[00:03:07] Speaker 04:
And our position is that regardless of which standard of review this court relies on, Ms.

[00:03:14] Speaker 04:
Pineda Escobar has established that the government of El Salvador is unwilling or unable to protect her from her husband.

[00:03:22] Speaker 02:
It seems to be willing.

[00:03:23] Speaker 02:
The country reports

[00:03:25] Speaker 02:
show that it's made some progress, that it's trying to, it's enacted certain laws that it would be willing to, but that it's just not been able to.

[00:03:39] Speaker 04:
Exactly so, Your Honor.

[00:03:41] Speaker 04:
At least to the extent we are talking about the federal government or the government as a whole, the Department of State report is very clear that it is ineffective and there is widespread domestic violence that the government simply cannot control.

[00:03:56] Speaker 04:
If we are talking about state actors at the local level, such as the local police, then there is a question as to whether they are unable or unwilling.

[00:04:08] Speaker 04:
Either way, Ms.

[00:04:10] Speaker 04:
Pineda-Escobar would have established this element of asylum.

[00:04:14] Speaker 02:
Well, it's an odd BIA decision because, so first of all, it seems to assume

[00:04:23] Speaker 02:
But it doesn't find that she belongs to a cognizable particular social group and that she's separate past persecution.

[00:04:33] Speaker 02:
But it doesn't make those findings.

[00:04:39] Speaker 04:
Yes, Your Honor, this is not unusual for the Board of Immigration and Appeals.

[00:04:43] Speaker 04:
They walk that line where they assume certain elements were met in order to deny on a single element, often nexus or government inability or unwillingness.

[00:04:57] Speaker 02:
But the IJ deemed her credible, so we take her testimony as true.

[00:05:06] Speaker 02:
unless it's undermined by other evidence in the record.

[00:05:12] Speaker 02:
What do we do with that?

[00:05:13] Speaker 04:
That's absolutely correct, Your Honor.

[00:05:16] Speaker 04:
And the sole indication in this case that the agency found that her evidence was undermined is when I believe it was the immigration judge said that her testimony was contradicted by the Department of State report.

[00:05:30] Speaker 04:
But as Your Honor already noted, the Department of State report is very clear that the laws of El Salvador are not enforced.

[00:05:39] Speaker 04:
which is consistent with her testimony and her belief that the police would not assist her, as well as the experience of her aunt that she testified about when her aunt contacted the police because of child abuse, a form of domestic violence in her own home.

[00:05:56] Speaker 04:
And the police did respond, but only to counsel her abuser.

[00:06:03] Speaker 04:
Therefore, in addition, the government failed to really address at all the futility of Ms.

[00:06:11] Speaker 04:
Pineda Escobar's, you know, had she contacted police.

[00:06:16] Speaker 04:
The closest police station, first of all, was two to three hours away.

[00:06:19] Speaker 04:
She had no phone.

[00:06:21] Speaker 04:
When she tried to ask her neighbor for help, since her neighbor did have a phone, her neighbor refused out of fear of Ms.

[00:06:28] Speaker 04:
Pineda Escobar's husband.

[00:06:30] Speaker 04:
These are facts very similar to what the board considered in its most recent pronouncement on governmental inability and unwillingness.

[00:06:39] Speaker 04:
That is matter of CGT.

[00:06:41] Speaker 04:
In that case, teenager.

[00:06:43] Speaker 03:
Can I just ask a question?

[00:06:44] Speaker 03:
If we agree with you about inability and unwillingness, so first for asylum and withholding, we think you can meet this unable or unwilling problem.

[00:06:54] Speaker 03:
Can we talk about the acquiescence for cat for a second?

[00:06:58] Speaker 03:
It seems like

[00:06:59] Speaker 03:
your arguments on CAT were that the BIA failed to consider local officials as being part of the government and also erred in concluding that the counseling didn't demonstrate acquiescence and wrongly relied on the idea that your client had it reported.

[00:07:19] Speaker 03:
So I think maybe you made those three arguments.

[00:07:23] Speaker 03:
But I'm not sure that you really argued that the record compels the conclusion

[00:07:28] Speaker 03:
that the acquiescence standard is satisfied.

[00:07:30] Speaker 03:
Like, if we don't think the exact legal arguments that you made are right, is there a general cat argument here?

[00:07:37] Speaker 03:
I don't really see it in your brief.

[00:07:40] Speaker 04:
Yes, Your Honor.

[00:07:41] Speaker 04:
So in this case, there is no evidence in the record that public officials in Ms.

[00:07:48] Speaker 04:
Pineda Escobar's local village will uphold their duty to protect her from future torture.

[00:07:55] Speaker 04:
In fact, all the evidence shows that they will not.

[00:07:59] Speaker 04:
Not just the Department of State evidence that Judge Wardlaw referred to, but also the fact that they failed to protect her aunt's children, her cousins, from abuse.

[00:08:15] Speaker 04:
her own husband's threats and willingness to kill her if she contacted anyone about the abuse.

[00:08:23] Speaker 03:
Now, in the cat context, I think we've held that inability to protect is not enough.

[00:08:29] Speaker 03:
There actually has to be like a willful unwillingness.

[00:08:33] Speaker 03:
And I'm not sure where we get that from this record.

[00:08:36] Speaker 03:
Like the counseling might not have worked, but how do we know

[00:08:39] Speaker 03:
that it doesn't demonstrate a willingness to try.

[00:08:42] Speaker 03:
I mean, what if they had counseled by saying, if you ever touch your kids again, we will kill you.

[00:08:47] Speaker 03:
Would that counseling have been an effort that might not work, but might have been enough to satisfy the cap standard?

[00:08:56] Speaker 04:
So, Your Honor, it would not satisfy the cat standard if all it did was open the door for the torturer to inflict torture.

[00:09:07] Speaker 04:
And based on the history in this case, that's what would have happened.

[00:09:13] Speaker 04:
That is why Ms.

[00:09:14] Speaker 04:
Pineda Escobar did not tell medical authorities, not because she feared police would

[00:09:21] Speaker 04:
obviously she wouldn't have been afraid if she thought the police could protect her.

[00:09:26] Speaker 04:
But because based on everything she knew, the police would not protect her whether they were certainly able.

[00:09:32] Speaker 04:
I mean, they they did come to the house, but the very fact that they did nothing despite laws that require them to intervene demonstrates that they were unwilling.

[00:09:45] Speaker 04:
They didn't issue a restraining order.

[00:09:47] Speaker 04:
They didn't arrest the husband.

[00:09:50] Speaker 04:
They didn't.

[00:09:51] Speaker 04:
put him in jail, they did nothing.

[00:09:53] Speaker 04:
So to that extent, that is what she saw and that is the sole evidence really of how police behave in her local area.

[00:10:02] Speaker 04:
And that was enough based on her credible testimony to establish governmental acquiescence, public official acquiescence, I should say.

[00:10:11] Speaker 03:
So your argument is that no warning, like what about my hypothetical?

[00:10:16] Speaker 03:
If they had said, if we ever hear again that you have hit your kids, we will kill you.

[00:10:21] Speaker 04:
with that warning why is that warning not sufficient well your honor it is if the police

[00:10:28] Speaker 04:
definitely, you know, the record shows that that is the way police dealt with torturers.

[00:10:34] Speaker 04:
Then maybe that record, maybe that would be sufficient because if it would actually stop tortures.

[00:10:44] Speaker 04:
But that is not what happened in this case.

[00:10:46] Speaker 04:
And in this case, there's no evidence that the police really did anything beyond counseling.

[00:10:51] Speaker 04:
It is similar to the police.

[00:10:53] Speaker 03:
Anything about the detail of the counseling or

[00:10:55] Speaker 03:
subsequent events about the ants?

[00:10:58] Speaker 04:
We do not, but based on this court's decision in Antonio versus Garland, where the police similarly engaged in half measures, that is not enough to show that police are willing and able.

[00:11:13] Speaker 03:
And I know that is- I'm reading you about asylum, so I'm just asking about the acquiescence standard.

[00:11:17] Speaker 03:
What case says that this isn't enough to get past the acquiescence standard for the government?

[00:11:23] Speaker 04:
The only case that is really on point similarly is matter of SA, and those are different facts in the sense that we don't have police actually, you know, the person testifying did not say that police came and counseled, but they are similar regarding the threat of future harm and future danger.

[00:11:45] Speaker 04:
And in this case, as far as the police go and their counseling,

[00:11:52] Speaker 04:
The standard here is not just that police will be willing, but that they will breach their responsibility because they are unable or unwilling.

[00:12:02] Speaker 04:
And in that sense, the convention against torture standard overlaps with the asylum standard.

[00:12:08] Speaker 03:
We have some language like that, but then we also have a lot of cases that say breaching because you're unable is not enough.

[00:12:14] Speaker 03:
you have to really breach because you're unwilling for Kat as I understand the case law.

[00:12:17] Speaker 03:
And I'm just not sure if you can meet that on the record here, or at least, I mean, I don't know if you can get a remand, even maybe you could make your best argument for a remand, but I'm not sure how it would compel the conclusion here.

[00:12:28] Speaker 04:
Yes, our main argument with the Convention Against Torture is that given the evidence in the record that the agency failed to consider, that is evidence of social norms in which domestic violence is largely accepted, evidence of social pressures against rape victims and domestic violence victims, that evidence

[00:12:51] Speaker 04:
taken together with the specific evidence of what Ms.

[00:12:56] Speaker 04:
Pineda Escobar testified as to what happened to her aunt demonstrates that police would likely be unwilling.

[00:13:03] Speaker 04:
And the issue here is that the agency didn't even consider evidence of social norms.

[00:13:09] Speaker 04:
It never discussed that highly probative evidence, which the law requires it to consider.

[00:13:14] Speaker 04:
nor did it discuss any of the other evidence about her husband's threats to kill her, futility.

[00:13:20] Speaker 02:
Council, did you want to save some time?

[00:13:21] Speaker 04:
Oh, yes, Your Honor.

[00:13:23] Speaker 02:
Okay.

[00:13:23] Speaker 02:
Thank you.

[00:13:24] Speaker 02:
All right.

[00:13:26] Speaker 02:
Mr. Stanton?

[00:13:30] Speaker 01:
Good morning, Your Honors.

[00:13:32] Speaker 01:
My name is Bo Stanton, and I'm here today on behalf of the respondent.

[00:13:35] Speaker 01:
Can everyone hear me okay?

[00:13:36] Speaker 02:
Yes, we can hear you.

[00:13:38] Speaker 02:
Thank you.

[00:13:38] Speaker 01:
Okay, great.

[00:13:39] Speaker 01:
Thanks so much.

[00:13:39] Speaker 01:
For the court to grant the petition for review in this case, the petitioner must meet a high threshold.

[00:13:46] Speaker 01:
She must show that the record compels the conclusion that any reasonable adjudicator would be compelled to conclude that the Salvadorian government is unable or unwilling to protect her from her abusive husband.

[00:14:01] Speaker 01:
The evidence in this case, the universe is relatively small.

[00:14:04] Speaker 01:
We have petitioners testimony in two country reports, one for 2014, another from 2015.

[00:14:11] Speaker 01:
This evidence, nothing in here compels the conclusion that the Salvadorian government is unable or was unable.

[00:14:19] Speaker 01:
to protect Petitioner from her abusive husband.

[00:14:22] Speaker 01:
First turning to Petitioner's testimony, the agency noted that Petitioner testified to an incident where her aunt called the police because her husband was beating their children.

[00:14:35] Speaker 01:
The police came out from one to two hours away.

[00:14:38] Speaker 01:
Petitioner testified that the police was about one to two hours away, and the police took that amount of time to come out.

[00:14:43] Speaker 01:
They counseled her uncle and then left.

[00:14:47] Speaker 01:
According to Petitioner, this was doing nothing.

[00:14:50] Speaker 01:
And it seems to be that she believes they were doing nothing because they didn't arrest him.

[00:14:55] Speaker 01:
An arrest doesn't mean, if there is a lack of an arrest, doesn't mean that there was nothing done.

[00:15:00] Speaker 01:
Here we have where the police came, counseled, and then there is no testimony.

[00:15:05] Speaker 01:
There's nothing in a personal declaration.

[00:15:06] Speaker 01:
There's nothing anywhere in this evidence that shows that those efforts by the police officers did nothing.

[00:15:13] Speaker 01:
To the contrary, we have no evidence that the uncle ever beat the children ever again.

[00:15:18] Speaker 01:
There's literally nothing in the record that shows that those police efforts were futile.

[00:15:24] Speaker 01:
And on top of that, if you look at this incident, this was not a domestic violence incident.

[00:15:29] Speaker 01:
This was a child abuse incident.

[00:15:31] Speaker 03:
I don't think you've argued that in your brief, have you?

[00:15:34] Speaker 03:
I was actually sort of surprised that you didn't say there's some difference between

[00:15:37] Speaker 03:
spousal abuse and child abuse, but I didn't see anything like that in your brief.

[00:15:41] Speaker 03:
Can you point me to it?

[00:15:43] Speaker 01:
I'm not sure if we directly said something on point about that, about the distinction between the two being two separate crimes, and I apologize if that was not brought up in the brief, but I'm happy to talk about that now if that's okay.

[00:16:01] Speaker 03:
I'm worried that you forfeited that argument at this point, so I'm not sure it's a good argument to be pursuing now, personally, but maybe my colleagues feel differently.

[00:16:08] Speaker 01:
Oh, yeah.

[00:16:09] Speaker 01:
No problem, Your Honor.

[00:16:10] Speaker 01:
It was just simply pointing out that this event is not the same.

[00:16:13] Speaker 02:
It would have been a good argument for the brief.

[00:16:17] Speaker 02:
The nature of the violence is different, but it would have been a good argument for the brief.

[00:16:26] Speaker 01:
Okay, well, I'll move on then.

[00:16:28] Speaker 02:
Perhaps it's an argument for remand as opposed to outright grant.

[00:16:34] Speaker 02:
But anyway, go on.

[00:16:36] Speaker 01:
Okay, sure, sure.

[00:16:39] Speaker 01:
Yes.

[00:16:39] Speaker 01:
Even setting aside the different natures of the crime and setting that aside.

[00:16:44] Speaker 01:
This is evidence, substantial evidence that the Salvadorian government on a local level was trying to assist individuals.

[00:16:53] Speaker 01:
There is no evidence in this record that local police would do nothing to help the commissioner on a local level.

[00:17:00] Speaker 01:
There's nothing.

[00:17:02] Speaker 01:
Did you have a question, Your Honor?

[00:17:03] Speaker 02:
I was just saying it's kind of a wash given what we're talking about is the crime of domestic violence specifically and that's what's referenced in the

[00:17:14] Speaker 02:
in the country reports.

[00:17:20] Speaker 02:
What do we do with the fact that Esquivar's testimony was deemed credible and nothing seemed to undermine that in the record?

[00:17:33] Speaker 02:
The fact that- The other elements that are required to satisfy, to get asylum or withholding.

[00:17:43] Speaker 01:
I'm sorry, what's the question, Your Honor?

[00:17:47] Speaker 02:
So, testimony's credible.

[00:17:48] Speaker 02:
There's nothing in the record that undermines it.

[00:17:52] Speaker 02:
The only issue that seems to come to us on asylum or withholding is the unable or unwilling to control issue.

[00:17:59] Speaker 02:
Suppose we were to determine that substantial evidence doesn't support the BIA's finding that the El Salvadorian government was unable

[00:18:11] Speaker 02:
was able to control the domestic violence.

[00:18:16] Speaker 02:
Do we get outright grant on those claims or what is there to remand for?

[00:18:21] Speaker 01:
So assuming that the court overturns the agency's unable and unwilling finding, remand is the appropriate action to take because the Board of Immigration Appeals only focused on the unable and unwilling prong, but if you go look at the immigration judge's decision,

[00:18:38] Speaker 01:
He, excuse me, she made the finding that the petitioner failed to show that she had been targeted on account of her membership in her proposed particular social group.

[00:18:49] Speaker 01:
So you have a lack of nexus finding that would have to be reconsidered by the agency on remand.

[00:18:56] Speaker 01:
And if you want to try to find that in the record, the page is, let me just double check for you.

[00:19:04] Speaker 01:
It's on page 48 of the record where the immigration judge makes that finding, and I don't believe remand is appropriate or necessary in this case because going back to the idea that we have this police response.

[00:19:22] Speaker 01:
We have no evidence that it failed.

[00:19:24] Speaker 01:
We have no evidence that local police would do nothing.

[00:19:27] Speaker 01:
on to help petitioner we have the opposite we have petitioner testified that when she went to the doctor she did not tell the doctor about the abuse because she was worried that her husband would find out because there is a legal requirement that anytime there is domestic violence abuse it's got to be reported to the authorities so her fear that the police would actually respond if the doctor reported her is evidence

[00:19:53] Speaker 00:
The problem with that is that we do have case law that says a police response that amounts to a slap on the wrist is not established that the government is willing and able to prevent persecution.

[00:20:06] Speaker 00:
And then it certainly seems plausible to me that she would be afraid of the scenario in which the husband finds out that there was some kind of report.

[00:20:19] Speaker 00:
but there's actually nothing done to prevent him from continuing to abuse her.

[00:20:25] Speaker 00:
So I'm not totally persuaded by the reasoning that just the fact that there would be a response means that response shows effectiveness.

[00:20:37] Speaker 00:
We don't know that the police response here was ineffective There's no evidence to show that this was response the fact that there was but there's a lot of country conditions evidence where it does say that essentially Although the government has made some efforts right that there's some willingness that it's largely ineffective in their statistics and then that i'm not persuaded by the agency's assertion that the country conditions evidence actually is

[00:21:04] Speaker 00:
undermines or conflicts with the petitioner's testimony that even though there's these laws that they're essentially not enforced.

[00:21:13] Speaker 01:
If you go look at the country conditions report when it discusses domestic violence against women in particular, it talks about how there's a law on the books that requires a prosecution of a rape case once it's been reported, even if the victim does not want to go forward with that case.

[00:21:30] Speaker 01:
you do not have that sort of language regarding child abuse in the country report.

[00:21:35] Speaker 01:
There is no language at all that if a police officer is called out to a child abuse event that they have to arrest that individual.

[00:21:42] Speaker 01:
There's nothing like that in the record.

[00:21:44] Speaker 01:
And so to say that that incident shows ineffectiveness and unwillingness or inability to do something, there's no evidence, certainly no compelling evidence for that.

[00:21:53] Speaker 01:
And speaking to your point about how the country report talks about these laws be a pass,

[00:21:58] Speaker 01:
talks about how the government has implemented programs to try to provide education.

[00:22:03] Speaker 01:
Then you talked about how there also talks about it being minimally effective.

[00:22:07] Speaker 01:
The country report is mixed on this.

[00:22:09] Speaker 01:
There isn't anything that is more compelling than the other.

[00:22:12] Speaker 01:
Well, you take this country report and you couple it with the petitioner's testimony where she testified that my aunt called the local police.

[00:22:21] Speaker 01:
and the local police responded.

[00:22:23] Speaker 01:
I'm afraid to tell the doctor about my domestic violence abuse because he's going to have to report it.

[00:22:28] Speaker 01:
The police are going to come and my husband may kill me.

[00:22:31] Speaker 01:
She also testified that her husband was afraid to have the police come because he knew that he would be arrested.

[00:22:39] Speaker 01:
When she testified, questioned, when she was questioned about what she was afraid of when going back to El Salvador, she said her husband.

[00:22:48] Speaker 01:
And she was asked, well,

[00:22:50] Speaker 01:
Why would the government be able to help you?

[00:22:53] Speaker 01:
Well, it's because he would hide from the government.

[00:22:56] Speaker 01:
Implicit in that testimony is that the government would do something against petitioner's husband.

[00:23:02] Speaker 01:
Otherwise, why would he have to hide from the police?

[00:23:06] Speaker 01:
So you have this evidence.

[00:23:08] Speaker 01:
from petitioners testimony.

[00:23:09] Speaker 01:
It talks about her fear of a response, his fear of a response.

[00:23:13] Speaker 01:
We have her testimony where her aunt actually did get a response.

[00:23:18] Speaker 01:
There's no evidence that it was ineffective.

[00:23:20] Speaker 01:
So you have a mixed country report that says that laws have been minimally effective, but it's required by law for rape to be investigated and prosecuted.

[00:23:29] Speaker 01:
Well, here you have petitioners as well on a local level.

[00:23:34] Speaker 01:
he's did respond and you look at the testimony at no point that she's excuse me

[00:23:41] Speaker 01:
Thank you.

[00:23:42] Speaker 01:
At no point in her testimony does she say the reason why she doesn't contact the police is because she believes the government is unable or unwilling.

[00:23:50] Speaker 01:
It all goes back to this fear of her husband hurting her.

[00:23:54] Speaker 01:
It is repeated throughout the record from 74 to 76, 112, 102.

[00:24:00] Speaker 01:
She makes it clear that it wasn't the government's inability to protect her.

[00:24:04] Speaker 01:
That wouldn't actually come out until redirect.

[00:24:07] Speaker 01:
So if you look at the testimony on direct examination, it's all fear of her husband.

[00:24:11] Speaker 01:
That's why she doesn't call the police.

[00:24:13] Speaker 01:
On cross examination, she's questioned about the country conditions report and asked if she knows about that there's laws on the books.

[00:24:21] Speaker 01:
No.

[00:24:22] Speaker 01:
Well, it would be on redirect where

[00:24:25] Speaker 01:
her counsel would ask a leading question, and he would use the country report that says, the country report say the laws are minimally effective.

[00:24:33] Speaker 01:
Is this the reason why you didn't go to the police?

[00:24:37] Speaker 01:
Yes.

[00:24:38] Speaker 01:
So it wasn't actually her testimony that said it was the government's inability that kept her from going to the government for help.

[00:24:45] Speaker 01:
That never came out.

[00:24:47] Speaker 01:
It wouldn't be until a leading question.

[00:24:49] Speaker 01:
And so if you go look at the testimony coupled with the country conditions report,

[00:24:54] Speaker 01:
It is substantial evidence in support of the agency's determination that the Salvadoran government isn't unable or unwilling.

[00:25:02] Speaker 01:
To the contrary, her testimony shows that the government does want to help.

[00:25:06] Speaker 01:
They have requirements where the doctor has to inform them of any domestic violence.

[00:25:11] Speaker 01:
So the government not only has programs and policies in place, she knows that they are executed and implemented to the point where she's afraid to report them.

[00:25:20] Speaker 01:
And so stepping back and looking at this,

[00:25:23] Speaker 01:
This case doesn't have the sort of evidence that other cases that this court have found, for example, in Davila.

[00:25:30] Speaker 01:
The petitioner relies on this case, says that her case is similar to this.

[00:25:33] Speaker 01:
Well, in that case, the petitioner did call the police and the police came down and her husband would go out to them, pay them off with a bribe.

[00:25:44] Speaker 01:
They went away without even talking to her or even looking at her.

[00:25:48] Speaker 01:
This is one major factual distinction between that case and this case.

[00:25:53] Speaker 01:
And that's how it is with all the cases that petitioner cites.

[00:25:55] Speaker 01:
There's all these major factual differences, whether it's reporting to the police, whether there's more country conditions evidence beyond country reports, like there's news articles that discuss other events and other cases.

[00:26:09] Speaker 01:
There simply is insufficient evidence

[00:26:12] Speaker 01:
for this court to find that any reasonable adjudicator would be compelled to find that the Salvadorian government is unable or unwilling to protect her.

[00:26:23] Speaker 01:
And there is there's just simply nothing.

[00:26:27] Speaker 01:
There's no case.

[00:26:28] Speaker 01:
Yes, Your Honor.

[00:26:30] Speaker 03:
Have the parties explored mediation in this case?

[00:26:34] Speaker 01:
Um, I

[00:26:37] Speaker 01:
I'm not sure, Your Honor.

[00:26:38] Speaker 01:
This case has been around for a few years, and I just picked it up this year, so I don't know if there was mediation efforts beforehand, and I apologize for not knowing that.

[00:26:49] Speaker 03:
Am I right that the petitioner doesn't fit with any of the enforcement priorities?

[00:26:54] Speaker 01:
Based on my recollection, it doesn't seem like she is an enforcement priority.

[00:27:03] Speaker 03:
Is that a reason that mediation might be fruitful in the future?

[00:27:07] Speaker 01:
Um, we don't believe mediation is necessary in this case because we do believe that substantial evidence supports the agency determination that petitioners on a title to asylum or withholding of removal due to a lack of evidence for the unable or willing prong.

[00:27:24] Speaker 01:
on top of that going to the cat claim as your honor was pointing out there is no evidence in the record that there is any government official locally nationally would acquiesce to the torture of petitioner in this case and she doesn't identify anything in her record as as well in the opening brief and so

[00:27:46] Speaker 01:
The board in this case, as well as immigration judge, did consider the record overall, did consider the country report in its totality.

[00:27:55] Speaker 01:
If you look at both decisions, they both acknowledge the shortcomings that are present in the country conditions evidence for the government's efforts.

[00:28:03] Speaker 01:
They recognize that site to it.

[00:28:06] Speaker 01:
And they looked at that set of facts.

[00:28:09] Speaker 01:
They compared the set of facts in the country report that talks about the government having laws that they're trying to implement.

[00:28:16] Speaker 01:
And then they looked at the petitioner's testimony and said, OK, on balance, which way do these scales tip?

[00:28:23] Speaker 01:
And ultimately, they concluded that petitioner's testimony, where she identifies a police response, identify police policies in place that she's afraid it will actually work.

[00:28:34] Speaker 01:
That coupled to the country conditions evidence talking about how the government is trying to make efforts and is trying to make progress for something to be minimally effective means it has to be effective.

[00:28:44] Speaker 01:
Some of the time.

[00:28:45] Speaker 01:
And so here we have an example of where the government has been effective.

[00:28:50] Speaker 01:
And so, on balance, the agency looked at the scales, looked at how the evidence weighed up and down on the scales, and ultimately decided that the scales tipped to where she failed to show that the government is unable or unwilling to protect her from her abuse.

[00:29:04] Speaker 02:
Thank you, Counsel.

[00:29:05] Speaker 02:
You're over your time.

[00:29:06] Speaker 02:
We appreciate it.

[00:29:07] Speaker 02:
Thank you very much.

[00:29:08] Speaker 01:
Thank you so much, Your Honor.

[00:29:10] Speaker 02:
Ms.

[00:29:11] Speaker 02:
McKee, you have a minute or so.

[00:29:14] Speaker 04:
Thank you, Your Honor.

[00:29:15] Speaker 04:
Just a few points.

[00:29:17] Speaker 04:
First off, the country report in this situation, in this case, is not mixed, as a respondent would characterize it.

[00:29:25] Speaker 04:
There is no evidence that in the report, no statement that any of the laws against domestic violence and rape were actually effective, or even partially effective.

[00:29:35] Speaker 04:
Second, the fact that the husband threatened to kill her and that he hid does not mean police were effective.

[00:29:47] Speaker 04:
He said he would be out of jail the next day, and this is consistent with Ms.

[00:29:50] Speaker 04:
Pineda Escobar's own testimony about what she saw in news reports.

[00:29:54] Speaker 04:
Abusers released the next day, and he would get her then.

[00:29:57] Speaker 04:
Further, as the board in matter of CGT noted,

[00:30:03] Speaker 04:
It looked at whether a victim would reasonably believe that police would not respond.

[00:30:09] Speaker 04:
And here, given how she saw police respond to her aunt, even if it was child abuse, even if it was a different form of domestic violence, she decided, as a reasonable person would, that she couldn't risk it because her husband would kill her if she tried to report and police just counseled.

[00:30:27] Speaker 04:
Thank you, Your Honors.

[00:30:29] Speaker 04:
We believe that, you know, based on the Board of Immigration Appeals' opinion, since the Board found error only with inability and unwillingness, a grant is warranted.

[00:30:38] Speaker 04:
But if the Court disagrees, we would say that a remand definitely is warranted in this case based on the Board's complete and the agency's complete disregard for a huge portion of the highly probative evidence.

[00:30:53] Speaker 02:
All right, thank you, counsel.

[00:30:54] Speaker 02:
I want to thank Cornell Law School's Clinic on Asylum and Convention Against Torture for taking on this matter pro bono.

[00:31:03] Speaker 02:
And we always appreciate pro bono counsel arguing on behalf of the petitioners in these cases.

[00:31:11] Speaker 02:
So Pineda versus Garland will be submitted.