[00:00:04] Speaker 01:
Good morning.

[00:00:05] Speaker 01:
May it please the court, Harry Graver for petitioner.

[00:00:08] Speaker 01:
I'd like to reserve two minutes for rebuttal.

[00:00:10] Speaker 01:
I know that the briefing catalogs a lot of mistakes with the decisions below, so I thought what would be most helpful is just to flag at the start what I think are the clean legal errors that punctuate each element of both claims, and that together warrant a straightforward remand, at which point the BIA can fix the other mistakes that I think plagued its decision.

[00:00:31] Speaker 01:
So starting with the withholding claim,

[00:00:33] Speaker 01:
A withholding claim has two elements, two basic elements.

[00:00:36] Speaker 01:
You need a nexus, you need a protected ground.

[00:00:39] Speaker 01:
As for nexus, the BIA simply applied the wrong standard.

[00:00:42] Speaker 01:
They viewed this case through the wrong lens.

[00:00:44] Speaker 01:
Even the government agrees about that.

[00:00:47] Speaker 01:
It doesn't get much better when you look at the protected grounds.

[00:00:49] Speaker 01:
The protected grounds we offered two.

[00:00:51] Speaker 01:
The BIA simply missed one, forgot to mention one of them, and then with respect to the other,

[00:00:56] Speaker 01:
It casts it aside in sort of an itsy-dixit sentence, bereft of analysis.

[00:01:01] Speaker 04:
When you say the BIA, you're not talking about the BIA in 2022.

[00:01:05] Speaker 04:
You're talking about the BIA in 2016?

[00:01:06] Speaker 01:
So with the withholding claim.

[00:01:09] Speaker 01:
Correct.

[00:01:11] Speaker 04:
So could you speak a little bit about exhaustion?

[00:01:15] Speaker 04:
Because I'm not mistaken, the immigration judge, Burke, did reincorporate the denial of the withholding claim.

[00:01:23] Speaker 04:
Correct.

[00:01:23] Speaker 04:
But then your client didn't.

[00:01:26] Speaker 04:
file a brief to the BIA, so the BIA that we're reviewing has no ruling whatsoever on withholding.

[00:01:33] Speaker 01:
No, I don't think that's correct.

[00:01:34] Speaker 01:
I think that it relates to the scope of the remand.

[00:01:37] Speaker 01:
So what happened is that the BIA had already ruled with respect to the withholding claim.

[00:01:43] Speaker 01:
Because of the Zipper Clause inherent in the INA, that couldn't get up to this court until everything's dealt with below.

[00:01:48] Speaker 01:
The scope of the remand is the IJ made plain.

[00:01:51] Speaker 01:
related to the merits of the CAT claim.

[00:01:53] Speaker 01:
So what the IJ did formally is it assessed the CAT claim, affirmed on both scores, and then what the BIA did is affirm the order below in full.

[00:02:00] Speaker 01:
It says the order of the appeal is dismissed.

[00:02:02] Speaker 01:
That dealt with everything.

[00:02:03] Speaker 01:
So that's the formal disposition of the case.

[00:02:05] Speaker 01:
They didn't reinvent the wheel with respect to the analysis they already conducted as to withholding, because that wasn't part of the remand from this court.

[00:02:13] Speaker 01:
But then everything comes up under the zipper clause as one fell swoop altogether.

[00:02:17] Speaker 04:
And did your client make the categorical bar legal argument to the initial BIA?

[00:02:23] Speaker 04:
Was that the argument seeking to reverse the initial denial of withholding?

[00:02:28] Speaker 01:
So what we did is appeal the most recent BIA.

[00:02:34] Speaker 01:
No, I know.

[00:02:34] Speaker 04:
But you understand my question.

[00:02:36] Speaker 04:
You have the immigration judge, Clemente, who makes the ruling that you claim has that inherent original error.

[00:02:43] Speaker 04:
Was the appeal to the BIA, was the argument made there that you're making now?

[00:02:50] Speaker 04:
That there was an error in terms of relying on Night Circuit law and saying categorically there could be no PSG here?

[00:02:57] Speaker 01:
Right, so the general argument was made that the analysis below is incorrect.

[00:03:01] Speaker 01:
Okay.

[00:03:01] Speaker 01:
And as we flagged in that case in the reply,

[00:03:03] Speaker 01:
I think under this circuit's law, presenting that general argument puts the BIA on notice as respect to all of the errors inherent below.

[00:03:11] Speaker 04:
Okay.

[00:03:11] Speaker 04:
Thank you.

[00:03:12] Speaker 01:
So those are the issues, though, with respect to the withholding claim.

[00:03:14] Speaker 01:
If I can just flag the main mistakes with respect to the CAT claim, too.

[00:03:19] Speaker 01:
There, too, there's two basic elements.

[00:03:20] Speaker 01:
You know, likelihood of future torture and you need acquiescence.

[00:03:24] Speaker 01:
For each of those, we have basic legal mistakes.

[00:03:27] Speaker 01:
As for the likelihood of future torture, the agency below never properly conducted

[00:03:33] Speaker 01:
never properly conducted the aggregate harm analysis that is the bedrock of this prong.

[00:03:37] Speaker 01:
Nobody did it.

[00:03:38] Speaker 01:
And then as for acquiescence.

[00:03:39] Speaker 02:
On the aggregate issue, though, if the IJ determined that there is zero likelihood of future torture, then can't we read that to include essentially that they did consider that the IJ did consider the aggregate?

[00:03:53] Speaker 02:
I mean, the aggregate of zero is zero.

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

[00:03:56] Speaker 01:
So I think that that's not what the IJ found.

[00:03:59] Speaker 01:
That's not how I read the opinion.

[00:04:00] Speaker 01:
If you read the topic sentences when they're relating to each part,

[00:04:03] Speaker 01:
the gang on one hand, the government on the other, it's saying that on each instance independently, the likelihood is not sufficient.

[00:04:10] Speaker 01:
It hasn't cleared the 51% threshold.

[00:04:12] Speaker 01:
And in those instances, when there's something on both sides of the ledger, and this is exactly what the court did in Cole, where the agency forgets to combine the two.

[00:04:21] Speaker 01:
I'm not aware of any case from this court doing the work for the agency in the first instance.

[00:04:26] Speaker 01:
And in this instance here, there's evidence on both sides of the ledger.

[00:04:29] Speaker 01:
It's not zero on one side.

[00:04:31] Speaker 01:
There's evidence on both sides of the letter from the gang and also a bit from the police.

[00:04:35] Speaker 01:
And that careful calibration, whether the two of them clear 51%, is exactly the sort of fact-specific analysis that we trust an expert agency to make in the first instance.

[00:04:44] Speaker 01:
So I would do here exactly what this court did in Cole.

[00:04:47] Speaker 01:
And then, just on the acquiescence piece to round it out, I think what the agency did below is twofold, an error, twofold.

[00:04:54] Speaker 01:
One is that applied too narrow a definition of acquiescence, too narrow an understanding of acquiescence.

[00:05:00] Speaker 01:
and then ignored virtually all of the record evidence regarding local conditions.

[00:05:04] Speaker 01:
Those two are just clear legal errors that warrants a straightforward remand with respect to the cat claim.

[00:05:11] Speaker 01:
I'm happy to talk about each space in particular or anything that the court has attention to.

[00:05:15] Speaker 01:
But the one point I wanted to also flag at the start is that for all the procedural mistakes, for all the administrative law errors, the stakes here are incredibly high.

[00:05:24] Speaker 01:
Jose's newborn daughter is here.

[00:05:26] Speaker 01:
His entire extended family is here.

[00:05:28] Speaker 01:
And he is certain.

[00:05:28] Speaker 01:
He is certain.

[00:05:29] Speaker 01:
he will be killed if he is sent back to El Salvador.

[00:05:32] Speaker 01:
What the immigration laws demand is that before the federal government sends somebody to that fate, they provide a reasoned decision as to why.

[00:05:40] Speaker 04:
When you just assert that he's certain he'll be killed, how many times has he already interveningly been sent back by the United States and illegally reentered?

[00:05:49] Speaker 01:
Twice.

[00:05:50] Speaker 04:
And suffered no police or government public official harassment then?

[00:05:55] Speaker 01:
I mean, it hasn't been a daisy walk.

[00:05:57] Speaker 01:
Since he's been 13 years old,

[00:05:59] Speaker 01:
the gang has had this unrelenting pursuit of him.

[00:06:01] Speaker 01:
They've accosted him 50 times.

[00:06:03] Speaker 01:
They've beaten him 10 times.

[00:06:04] Speaker 01:
They tried to kill him three separate times.

[00:06:05] Speaker 04:
When you say unrelenting, I thought that the IJ discredited the cousin's statement and the friend's statement and said that that was unproven hearsay.

[00:06:12] Speaker 01:
It's not necessarily unproven hearsay.

[00:06:14] Speaker 01:
I don't think it is discredited.

[00:06:15] Speaker 01:
I think what's important is that no timers are an adverse credibility finding.

[00:06:19] Speaker 01:
It's correct that the IJ said it was hearsay, but I find that a little bit troubling.

[00:06:23] Speaker 01:
Just to be clear here, we have a sworn affidavit from Jose.

[00:06:26] Speaker 01:
He also accompanies that

[00:06:28] Speaker 01:
sorry, with a death certificate.

[00:06:30] Speaker 01:
So this is backed up.

[00:06:31] Speaker 01:
But the point here is that the record evidence uniformly points in one direction.

[00:06:35] Speaker 01:
So even if the more recent developments you cast aside a bit, this is year after year after year.

[00:06:41] Speaker 01:
There's nothing on the other side of the ledger, where the gang has had this unrelenting interest in him since he's been a teenager.

[00:06:46] Speaker 03:
Well, the recent activity isn't that relevant here?

[00:06:49] Speaker 03:
I mean, the country, if you read the reports, indicate things are changing.

[00:06:56] Speaker 01:
So recent activity is important.

[00:06:58] Speaker 01:
just for respect to the gang's intensity.

[00:07:00] Speaker 01:
I think that the scope and intensity of their interest has grown.

[00:07:03] Speaker 01:
It's extended to his family as well as him.

[00:07:06] Speaker 01:
The point on the country reports, I think, is very important in that the key error, I think, what happened below is, even if you put aside the staleness point, I think that's as positive on its own for what the Second Circuit said in Yang, what this court endorsed in Parata.

[00:07:19] Speaker 01:
But even putting that to the side, the key problem with the analysis below with respect to the country reports and acquiescence is that,

[00:07:26] Speaker 01:
the agency

[00:07:42] Speaker 01:
if there's acquiescence at any level of government.

[00:07:45] Speaker 04:
If local officials... I'm sure you want to reserve time, but I had one other question.

[00:07:51] Speaker 04:
And he's very fortunate to have you as counsel, so I'm going to assume you know the record as intensely as I expect you do.

[00:07:58] Speaker 04:
On page seven of that original IJ ruling, what, seven years, maybe more now, 10 years ago.

[00:08:04] Speaker 01:
Is this the oral ruling?

[00:08:05] Speaker 04:
No, the IJ's written ruling.

[00:08:07] Speaker 04:
I'm back on the withholding claim.

[00:08:10] Speaker 04:
The IJ, it is a bit of a meandering opinion, but at the end, he does return to, here's my oral summary.

[00:08:17] Speaker 04:
I don't think either of these elements are proven.

[00:08:21] Speaker 04:
Protected social groups, social distinctiveness, or a nexus, even if there were a group.

[00:08:27] Speaker 04:
Is that not a fact-finding as opposed to just purely looking at Ninth Circuit law?

[00:08:31] Speaker 01:
I don't think so.

[00:08:32] Speaker 01:
I think that there's two pieces of it, if I can just entangle it and then over-reserve the rest of my time.

[00:08:38] Speaker 01:
With respect to the particular social group, the analysis is exclusively legal error.

[00:08:44] Speaker 01:
With the IJ, the only thing the IJ does in this point is looks to cases this court has said with respect to similar groups, and it said, well, the Ninth Circuit's ruled that out.

[00:08:53] Speaker 01:
That's all they do.

[00:08:53] Speaker 01:
There's no specific fact finding there.

[00:08:55] Speaker 01:
That's a clear error because under this court's cases, you still need to perform a case-by-case analysis.

[00:09:01] Speaker 01:
Just because this court said this group doesn't count in 2004,

[00:09:04] Speaker 01:
It doesn't make it true in 2024.

[00:09:05] Speaker 01:
It doesn't make it true in 2044.

[00:09:07] Speaker 01:
It's not a point for time immemorial.

[00:09:09] Speaker 01:
You still need to look at the evidence before you.

[00:09:12] Speaker 01:
And then the point, too, is just the particular social group that we proffered is distinct from the generalized gang opposition.

[00:09:18] Speaker 01:
It's those that directly rebuffed the gangs' instructions.

[00:09:21] Speaker 01:
And this court has emphasized that subtle distinctions in a group can still make all the difference.

[00:09:25] Speaker 01:
And you need to engage with the record before you.

[00:09:28] Speaker 01:
On the randomness point, just as the last piece of this, on the randomness point,

[00:09:31] Speaker 01:
Say what you will about the rest of this case that strikes me as the most unjustifiable piece of this and it reflects the kind of blinker analysis again as I was touching on before.

[00:09:39] Speaker 01:
Here's the record evidence shows shows he's been targeted since he's 13 accosted for 50 times beaten 10 times shot at three times they went after his family.

[00:09:47] Speaker 01:
They started calling him personally to threaten him with death, and this has continued year after year.

[00:09:52] Speaker 03:
I mean, you have high- Council, what I'm going to do is I'm going to reserve two minutes additional time, and so why don't you have a seat, and then we'll let the government go.

[00:10:02] Speaker 01:
Appreciate it.

[00:10:02] Speaker 01:
Thank you, Your Honor.

[00:10:02] Speaker 03:
All right.

[00:10:03] Speaker 03:
Thank you.

[00:10:14] Speaker 03:
Good morning, Council.

[00:10:15] Speaker 00:
Good morning.

[00:10:20] Speaker 00:
Taryn Arbiter on behalf of the respondent.

[00:10:23] Speaker 00:
May it please the court.

[00:10:28] Speaker 00:
Petitioners claim in this case that he was retaliated against by gang for refusing to join them and that he had two unrelated encounters with police, simply not a situation for which our immigration laws allow relief.

[00:10:40] Speaker 00:
In addition, he had the burden of proof and persuasion in this case, and he simply didn't meet that burden.

[00:10:48] Speaker 03:
Let me ask you this as an initial, just clarification.

[00:10:52] Speaker 03:
I guess I want to know what the government's position is.

[00:10:54] Speaker 03:
What is before us?

[00:10:56] Speaker 03:
Is it the second order that's before us?

[00:10:57] Speaker 03:
What's before us?

[00:10:58] Speaker 00:
Yes, our position, Your Honor, is that the initial order of the board was a non-final order.

[00:11:05] Speaker 00:
At the point that this case was remanded, that became a non-final order.

[00:11:09] Speaker 00:
And so we do agree with the petitioner that the withholding claim is before the court.

[00:11:14] Speaker 02:
OK.

[00:11:14] Speaker 02:
So both the 2016 and the 2022 BIA orders?

[00:11:17] Speaker 02:
Yes, Your Honor.

[00:11:19] Speaker ?:
OK.

[00:11:19] Speaker 04:
Is it necessary on that point that the BIA said we deny in full and that I.J.

[00:11:25] Speaker 04:
Burke said, I'm resolving both issues on remand?

[00:11:29] Speaker 04:
In other words, if the I.J.

[00:11:31] Speaker 04:
had not reiterated and reincorporated the initial withholding, or would it still have sort of five years later still existed out there in the ether?

[00:11:43] Speaker 00:
Your honor, I'm not certain, but in this case, it doesn't matter.

[00:11:48] Speaker 00:
But because it is now in a non-final order, it's just part of the record in this case.

[00:11:55] Speaker 00:
And so we're willing to talk about this today.

[00:12:01] Speaker 00:
So turning to the first issue, Mr. Martinez gave the agency no evidence at all to support that his proposed particular social group was socially distinct.

[00:12:14] Speaker 02:
But didn't the IJA fail to make any individualized findings about the PSG and the social distinction?

[00:12:22] Speaker 00:
So as Judge Higginson observed on page seven of that initial IJ decision, IJ did say that, did make a finding on both particular social group and on Nexus and found that his particular social group was not supported in the record.

[00:12:43] Speaker 00:
And indeed that's true.

[00:12:45] Speaker 04:
Didn't parse down any of the three elements.

[00:12:48] Speaker 00:
That is true, Your Honor.

[00:12:49] Speaker 04:
Is that sufficient under Ninth Circuit law?

[00:12:54] Speaker 00:
In our view, yes.

[00:12:54] Speaker 00:
It would have been different if the petitioner had offered some sort of evidence about, you know, particularity or about social distinctions.

[00:13:03] Speaker 04:
But when you say in our view, do you have a Ninth Circuit case that says this is enough, you don't need to subdivide into the three elements?

[00:13:10] Speaker 00:
I don't necessarily have a case saying that, but common sense would say that the IJ can make findings on evidence that exists in the record, and there just simply was none in the record supporting that this particular social group was socially distinct.

[00:13:25] Speaker 00:
And we know that petitioners in these published cases have provided far more, perhaps expert testimony, country conditions reports, going to the social distinction of these groups, and so

[00:13:39] Speaker 00:
not only was the petitioner required to show some evidence, he was required to show more than what these petitioners in these other cases have shown.

[00:13:47] Speaker 00:
And that simply wasn't the case here.

[00:13:50] Speaker 00:
There's no indication.

[00:13:51] Speaker 00:
In the petitioner's brief, petitioner argues that the gang viewed him as part of a socially distinct group, and that's simply not the correct analysis.

[00:14:02] Speaker 00:
We need to know whether the society viewed him.

[00:14:04] Speaker 04:
I think Ninth Circuit law is that if you resist a gang enough that you testify against them, or maybe politically protest against them, that would qualify.

[00:14:12] Speaker 04:
And so, isn't it the obligation of the IJ to sort of parse, or is the government's position here, any time a male resists gang recruitment, that's the end of the story, because there is no PSG, regardless of fact inquiry.

[00:14:27] Speaker 00:
Your Honor, the burden here is high.

[00:14:29] Speaker 00:
And the burden of proof and persuasion is on the petitioner.

[00:14:32] Speaker 00:
And so he was required to show.

[00:14:34] Speaker 02:
I don't think you're answering the question that Judge Higginson's asking, though, which is, is it your position that you never have to make, the IJ never has to make an individualized finding with respect to the social distinctiveness when the claim is that the PSG is resisting gangs?

[00:14:52] Speaker 00:
Yeah, that is my question.

[00:14:54] Speaker 00:
Thank you, Your Honor.

[00:14:55] Speaker 00:
I would say in general that the immigration judge does, and certainly we'd prefer that that was the case here.

[00:15:00] Speaker 00:
However, there just wasn't anything for the immigration judge to find.

[00:15:05] Speaker 04:
Just to interrupt, that sounds more like a harmlessness argument.

[00:15:07] Speaker 04:
In other words, it was error.

[00:15:09] Speaker 04:
But you're saying there's nothing that could change.

[00:15:11] Speaker 04:
We have the full record.

[00:15:12] Speaker 04:
It's been a seven-year-long record.

[00:15:14] Speaker 04:
We had the remand record.

[00:15:16] Speaker 04:
And we can look at that.

[00:15:18] Speaker 04:
Is the government making that argument a futility?

[00:15:21] Speaker 04:
And if so, is there a Ninth Circuit law that supports that?

[00:15:25] Speaker 00:
Well, Your Honor, that would be a possible argument for us to make.

[00:15:28] Speaker 04:
Oh, don't say possible.

[00:15:29] Speaker 04:
Have you made it?

[00:15:30] Speaker 04:
Have you made it?

[00:15:31] Speaker 04:
And do you know of law that supports that?

[00:15:33] Speaker 00:
That's not exactly the argument.

[00:15:36] Speaker 04:
OK, thank you.

[00:15:37] Speaker 00:
What I'm trying to say is that in this case where there is no evidence whatsoever about social distinction, the immigration judge simply couldn't make a finding regarding that.

[00:15:46] Speaker 00:
And so observing that under common sense that if all these other claims have been denied with actual evidence showing social distinction, the possibility of social distinction, certainly when you show no evidence, you have not met your burden.

[00:16:02] Speaker 00:
And I would like to jump now to the cat claim.

[00:16:09] Speaker 00:
In this case, the petitioner also held the high burden of persuasion in this case to show that the specifics of what he suffered amounted to torture and was that public officials turned a willfully blind eye to his mistreatment.

[00:16:24] Speaker 00:
And he simply has not shown that evidence here.

[00:16:28] Speaker 00:
According to his own country reports, the government has declared a war on gangs.

[00:16:32] Speaker 00:
And in addition, even in his own case, he took this to the prosecutor twice, and they said that they were investigating the issue.

[00:16:42] Speaker 00:
And so, he has not shown government acquiescence to his fear of torture.

[00:16:49] Speaker 00:
And unless there's further questions, I will see you the rest of my time.

[00:16:54] Speaker 03:
Thank you.

[00:17:02] Speaker 01:
Thank you, Your Honors.

[00:17:04] Speaker 01:
Just two points quickly on rebuttal.

[00:17:05] Speaker 01:
The first is that the government's key mistake is all of its discussions of burdens, things like that.

[00:17:11] Speaker 01:
This is not a substantial evidence case.

[00:17:13] Speaker 01:
There's procedural defect after procedural defect.

[00:17:15] Speaker 01:
This is a reason decision-making case.

[00:17:17] Speaker 01:
It's different in kind.

[00:17:18] Speaker 01:
Number two, there's discussion about the particular social group, and I think that is just emblematic of the flawed reasoning below.

[00:17:24] Speaker 01:
Judge Higginson, you asked,

[00:17:25] Speaker 01:
You know, is there examples of, you know, botching the three-part test?

[00:17:28] Speaker 01:
There is.

[00:17:29] Speaker 01:
Judge, I joined the case.

[00:17:30] Speaker 01:
Delegate Leon Gomez, recently, where the agency made the same exact mistake with respect to a very similar group.

[00:17:37] Speaker 01:
It's those that witnessed gang murders.

[00:17:39] Speaker 01:
This court sent it back.

[00:17:40] Speaker 01:
The same disposition is appropriate here.

[00:17:42] Speaker 01:
There's also the question, too, Judge Hickinson, is there any Ninth Circuit law that supports, you know, this harmlessness idea?

[00:17:49] Speaker 01:
Zero.

[00:17:50] Speaker 01:
What this court said in Cole is that when you have a big legal mistake like this, you miss an argument, you botch the standard, as long as there is some evidence in the record, it's not harmlessness.

[00:17:59] Speaker 01:
And the government is completely wrong that there is no evidence here to support the particular social group.

[00:18:04] Speaker 01:
I want to point the court to three pieces of the record.

[00:18:07] Speaker 01:
One is petitioner's own experiences.

[00:18:09] Speaker 01:
He explained the gang never forgets those that directly rebuff its instructions.

[00:18:15] Speaker 01:
And they were true to its word year after year after year.

[00:18:18] Speaker 01:
The second part is that similarly situated people had the same experience.

[00:18:23] Speaker 01:
Petitioner flagged an example of a cousin of a local gang member who rebuffed the gang's orders, received violence, ultimately was killed.

[00:18:30] Speaker 01:
What this court has said is a hallmark of a particular social group is if you are subject to higher incidents of violence.

[00:18:35] Speaker 01:
That hallmark is present here.

[00:18:37] Speaker 01:
And the last part is that petitioner's stigma extended over to his family.

[00:18:41] Speaker 01:
They start going after his cousins, shooting at one, killing another, forcing a third to flee.

[00:18:46] Speaker 04:
So before your time rubs, assume all three facts in your favor.

[00:18:49] Speaker 04:
What's the Ninth Circuit case that would accept that as a cognizable and protectable PSG?

[00:18:56] Speaker 01:
So I would look to think you flagged it before with Henrique's rebus.

[00:18:59] Speaker 01:
And that's the key point is that I think what the court.

[00:19:01] Speaker 04:
That's the en banc decision.

[00:19:02] Speaker 04:
Correct.

[00:19:02] Speaker 04:
There I thought the court said no.

[00:19:05] Speaker 01:
Enrique Rivas was a remand with respect to the witnesses, and they endorsed that idea.

[00:19:08] Speaker 04:
But you have any Ninth Circuit case that's ever, on extreme violence, similar victims, family targeted, still recognize gang recruitment as a socially, those victims as a socially distinct group.

[00:19:21] Speaker 03:
In other words, isn't that the Achilles heel here, that there is no social group here?

[00:19:26] Speaker 01:
So I think that's the key point, is that I don't think this court has addressed that instance head on.

[00:19:32] Speaker 01:
But what the court explained in Henrique's rebus is that we're not just saying this kind of amorphous gang opposition, something like that.

[00:19:38] Speaker 01:
If you look at the court's analysis, they essentially created a spectrum, where you have this amorphous vague opposition on one hand, and then you have something that can be more concrete on the other.

[00:19:46] Speaker 01:
Did you witness the gang murders?

[00:19:47] Speaker 01:
Did you testify against somebody?

[00:19:49] Speaker 01:
And then there's a chasm in between.

[00:19:51] Speaker 01:
What does your conduct in relation to the gang do with respect to how your fellow citizens see you?

[00:19:57] Speaker 01:
And we're somewhere in between.

[00:19:58] Speaker 01:
We have somebody who's directly rebuffed the gang, rebuffed their instructions, turned down the request to commit crimes.

[00:20:03] Speaker 01:
That is the exact kind of fact-intensive analysis that we trust the agency to do in the first instance.

[00:20:08] Speaker 01:
So Judge Higgins, I don't have an immediate example.

[00:20:10] Speaker 04:
But in fact, I just have one clarification.

[00:20:13] Speaker 04:
When you say witness or testify, my memory is it's those two are one category under Ninth Circuit law.

[00:20:19] Speaker 04:
It is you have to be a witness who did testify.

[00:20:22] Speaker 04:
Am I right?

[00:20:23] Speaker 04:
And if so, we know factually that didn't happen here.

[00:20:26] Speaker 01:
So in Henrique's rebus, it was testifying.

[00:20:29] Speaker 01:
Yes.

[00:20:29] Speaker 01:
But in De Leon Gomez, I was just a witness to gang murder.

[00:20:32] Speaker 01:
You just saw a murder and that created a stigma with you in society.

[00:20:36] Speaker 01:
So it did not involve testimony.

[00:20:37] Speaker 04:
Okay.

[00:20:38] Speaker 01:
Interesting.

[00:20:39] Speaker 01:
But this is, this is, I think just the key point is that what this court has emphasized across its cases is a fact specific inquiry and small distinctions can make all the difference about how your fellow citizens see you.

[00:20:50] Speaker 01:
At minimum under Cole, there is some evidence in the record that analysis was never performed below.

[00:20:55] Speaker 01:
And again, and again, and again, this court has remanded on those circumstances.

[00:20:58] Speaker 01:
The same is true here.

[00:20:59] Speaker 03:
Let me see if there are any other questions.

[00:21:02] Speaker 03:
All right.

[00:21:03] Speaker 03:
Thank you, counsel.

[00:21:03] Speaker 03:
Thank you.

[00:21:06] Speaker 03:
This matter will stand as submitted Ayala versus Garland.