[00:00:00] Speaker 03:
Solis versus Garwin, sorry, 23-2379.

[00:00:05] Speaker 04:
Good morning, Your Honors.

[00:00:06] Speaker 04:
May it please the court, my name is Caitlin DeWitt with Social Justice Collaborative, and I represent the petitioners in this matter, Mr. Hugo Martinez Solis and Ms.

[00:00:14] Speaker 04:
Diana Lopez-Rosinos, as well as their two children.

[00:00:17] Speaker 04:
I would like to reserve four minutes for a bottle.

[00:00:21] Speaker 04:
Hugo and Deanna both have independent claims to asylum, which were erroneously denied by the agency.

[00:00:26] Speaker 04:
However, today I'd like to focus on the errors committed in denying Deanna's asylum application specifically.

[00:00:33] Speaker 04:
The agency willfully ignored substantial evidence that Deanna suffered past persecution by cherry picking the record to say an indigenous girl growing up in a non-indigenous home didn't suffer for it.

[00:00:46] Speaker 04:
When Deanna was eight years old,

[00:00:49] Speaker 04:
A teenager tried to rape her, and when she was 10 years old, a classmate tried to drown her.

[00:00:54] Speaker 04:
because she has a darker skin color.

[00:00:57] Speaker 04:
Because substantial evidence does exist in this record that would compel any reasonable person to find Deanna has met her burden, this decision must be reversed.

[00:01:06] Speaker 01:
And how did the IJ and BIA characterize that assault?

[00:01:12] Speaker 01:
Because I thought they characterized it differently than what actually occurred.

[00:01:19] Speaker 04:
Your Honor, are you referring to the drowning or the attempted rape?

[00:01:23] Speaker 01:
The attempted rape.

[00:01:24] Speaker 04:
The attempted rape, they refer to it as a crime of opportunity, which I would ask, where in the law does it say a crime of opportunity cannot be predicated on a protected grounds per the asylum statute?

[00:01:36] Speaker 01:
Well, the crime of opportunity is the same where she, I believe, indicated that the perpetrator responded something to the effect of, I thought you were an Indian, or I forget the language.

[00:01:49] Speaker 04:
Exactly, so therein lies the nexus.

[00:01:51] Speaker 04:
So the board did find that attempted rape is, in fact, persecution through Kara V. Wilkinson.

[00:02:00] Speaker 04:
However, they don't find nexus.

[00:02:04] Speaker 04:
They say that her race or membership in a particular social group of Guatemalan women or girls was not even in part a motivation of her attacker.

[00:02:16] Speaker 04:
But as you just said, Judge,

[00:02:19] Speaker 04:
In her testimony, Deanna states he said that he thought that I was just an Indian, a bitch.

[00:02:25] Speaker 04:
Those were his direct words.

[00:02:28] Speaker 04:
He says, or he told Deanna's mother that he thought she was a domestic worker, that she didn't belong in that house.

[00:02:34] Speaker 01:
Well, let me stop you there.

[00:02:36] Speaker 01:
This notion of he thought that she was a domestic worker, why is that relevant in the context of the social class?

[00:02:47] Speaker 04:
Yes, Judge.

[00:02:48] Speaker 04:
Typically, or stereotypically rather, indigenous peoples in Guatemala are seen as a lower class.

[00:02:55] Speaker 04:
They're seen as the help, as domestic workers.

[00:02:58] Speaker 04:
He saw her as not belonging to that house, and it really doesn't matter because he tried to rape her because he saw her as less of a person, more of an object because of her race, and he said that out loud.

[00:03:12] Speaker 04:
You know, it was not his perception of her economic status or because he has an animus against domestic workers, it was because he associates those with an indigenous race.

[00:03:25] Speaker 03:
Additionally to the drowning.

[00:03:30] Speaker 03:
Can I ask if we agree with you about this asylum argument, how do you think it relates to CAT?

[00:03:38] Speaker 03:
Would we also need to remand a CAT or does this

[00:03:41] Speaker 03:
speak to whether this same argument relates to Kat as well as asylum.

[00:03:46] Speaker 04:
I don't know that this particular argument with Deanna and the harm she suffered as a child relates to the Kat claim so much.

[00:03:57] Speaker 04:
I think this is much more directed to her past persecution that she suffered which the government has not rebutted.

[00:04:05] Speaker 04:
Turning again to the attempted drowning, that is something that the board completely left out of its analysis.

[00:04:11] Speaker 04:
I mean, the IJ does discuss in her recitation of the facts that the drowning occurred, but in her actual analysis, her opinion,

[00:04:20] Speaker 04:
She doesn't mention the drowning at all, so there's no cumulative review there.

[00:04:27] Speaker 01:
But go back to the drowning, I guess, the attempt at drowning.

[00:04:31] Speaker 01:
It wasn't one of these just mean situations where someone just throws someone into a pool after they know that they can't swim.

[00:04:45] Speaker 01:
It's not just that.

[00:04:47] Speaker 01:
There was more here.

[00:04:48] Speaker 01:
Tell me why there was more, or if there was more.

[00:04:50] Speaker 04:
In this situation, again, the girl who pushed Deanna into the pool, who knew that she couldn't swim, as she pushed her, she said, this is for you to die, Indian.

[00:05:01] Speaker 04:
That is clear racial animus that this little girl, regardless of her age, incited and was intending to cause bodily harm.

[00:05:11] Speaker 04:
I think it's also worth mentioning that Diana was only 10 years old when the drowning happened.

[00:05:16] Speaker 04:
So if we view that from the perspective of a 10-year-old, as we must per Hernandez Ortiz versus Gonzalez, the degree of trauma is compounded, the same for the attempted rape.

[00:05:29] Speaker 04:
And we never get to nexus in the decisions because they find that this is a past persecution, but or rather that this isn't harm-risings level persecution.

[00:05:38] Speaker 04:
However, it clearly is under

[00:05:42] Speaker 04:
Lopez V. Ashcroft, Howard V. Wilkinson, attempted murder is persecution.

[00:05:50] Speaker 04:
We also argue that Diana was targeted with the attempted rape.

[00:05:54] Speaker 04:
She was targeted based on her membership of the particular social group of Guatemalan women or girls.

[00:06:00] Speaker 04:
Both Perdomo and Cower guide us here.

[00:06:02] Speaker 04:
Perdomo acknowledges that a PSG of Guatemalan women can be a particular social group, and then Cower speaks largely to the nexus between the PSG

[00:06:11] Speaker 04:
and the harm that Tiana suffered.

[00:06:14] Speaker 04:
It contains a lot of language about rape and attempted rape as a gender-based harm, inherently gender-based harm.

[00:06:20] Speaker 01:
Was there also a mischaracterization of the social group in this case by the board?

[00:06:26] Speaker 01:
In other words, I believe it was

[00:06:28] Speaker 01:
They might have defined it as, and I might not have this entirely right, but like watermelon women that are raised by Spanish speaking mothers or something like that.

[00:06:42] Speaker 01:
They defined it in this really sort of narrow, not how necessarily it was presented by the petitioner.

[00:06:51] Speaker 04:
Yes, Your Honor.

[00:06:53] Speaker 04:
I think you're referring to my next point, which was the pattern and practice doctrine analysis, which erroneously was included in the IJ's analysis on past persecution.

[00:07:05] Speaker 04:
But as we look to the regulation, this is a forward-looking, well-founded fear provision.

[00:07:13] Speaker 04:
But what needs to be sussed out here is how similarly situated do we have to show

[00:07:21] Speaker 04:
or to the petitioner, are we defining the group?

[00:07:25] Speaker 04:
The statute, or the regulation, excuse me, only says that there must be a pattern and practice of persecution of the group that similarly situates the applicant on account of those five protected grounds, the first of which is race.

[00:07:41] Speaker 04:
And so we argue that there is the pattern and practice

[00:07:47] Speaker 04:
of persecution against indigenous Mayans in Guatemala as well as women.

[00:07:52] Speaker 03:
So can I ask, it seems like the IJ did something odd with this and did narrow the group, but on page, so AR5, page three of the BIA opinion, it isn't clear to me that the BIA made the same error.

[00:08:06] Speaker 03:
It talks about indigenous Mayan people in Guatemala and says that there's not sufficiently systematic, sorry, I'm not reading the full sentence, but it seems like it looks at that full group and says there's not sufficiently systematic persecution for a pattern in practice.

[00:08:24] Speaker 03:
And I'm not sure that's wrong or making the same error you're talking about.

[00:08:28] Speaker 04:
I obviously would disagree with the board.

[00:08:30] Speaker 04:
I believe that there is a pattern and practice of persecution against indigenous Guatemalans.

[00:08:34] Speaker 04:
However, my main takeaway from the BIA decision in that section is that they say that she does not point to specific factual legal error in the IJ's decision.

[00:08:46] Speaker 04:
And I have a plethora of what Judge Mendoza was saying, the reducing the

[00:08:55] Speaker 04:
similarly situated group argument.

[00:08:58] Speaker 01:
But I think Judge Freeland's point is that maybe the IJ made that mistake, but perhaps the BIA did not.

[00:09:08] Speaker 03:
I mean, I think it is a fair point that when the BIA says that she raises no factual or legal error, your point is that's wrong because she did raise a legal error because she raises the point that they narrowed the group.

[00:09:21] Speaker 03:
But then it seems like they, so that might be wrong, but what do we do with, even if that's wrong because she did raise a legal error, they go on to analyze it in what seems sort of like the correct way.

[00:09:31] Speaker 03:
So I'm not sure what to do with that.

[00:09:33] Speaker 04:
I would also say, Your Honor, it's very conclusory.

[00:09:35] Speaker 04:
There's no reference to any of our country conditions or any arguments mentioned.

[00:09:41] Speaker 03:
Well, I guess that question is then, do you think you have sufficient evidence of a pattern and practice claim for this indigenous group?

[00:09:48] Speaker 03:
I mean, is it bad enough for this group that just being in that group is enough for getting asylum itself?

[00:09:53] Speaker 04:
of indigenous Guatemalans.

[00:09:55] Speaker 03:
I do believe so, Your Honor, but I would also point to- And what is the best record evidence then for that?

[00:10:01] Speaker 03:
What can you point us to that shows that basically anyone who's Mayan-Mong could come here and get asylum because it's so bad for that group?

[00:10:13] Speaker 04:
I don't know if I could specifically cite to you a country condition, but I would cite Mendoza-Pablo V. Holder, which explains just how incredibly

[00:10:22] Speaker 03:
Tragic life has been for indigenous Guatemalans I mean that maybe it may be that anyone could but that that would be that that Concept right that anyone in that group could come here because it's so bad for them.

[00:10:33] Speaker 03:
That's the that's the pattern of practice concept

[00:10:35] Speaker 04:
Correct, correct.

[00:10:36] Speaker 04:
I mean, but I primarily take issue that we're saying that just because she doesn't wear the typical dress, because she doesn't speak the language, because she's- Yeah, the IJ said some odd things for sure.

[00:10:46] Speaker 01:
I just don't know that the BIA- Oh, I think that's being charitable.

[00:10:49] Speaker 01:
I don't know if odd would be the word I would use.

[00:10:52] Speaker 03:
The IJ said some wrong things, I'll say, but I'm not sure the BIA did also.

[00:10:58] Speaker 04:
But Your Honor, I would just go back to the past persecution that she suffered.

[00:11:03] Speaker 04:
She suffered

[00:11:05] Speaker 04:
a, for lack of a better word, pattern and practice of her own.

[00:11:11] Speaker 03:
But I think that's your individual claim.

[00:11:13] Speaker 03:
That's a different claim, and I think you're making that claim, and you have made those arguments.

[00:11:17] Speaker 03:
I just am trying to figure out if you have this separate, forward-looking only pattern or practice claim that we should be worried about or not.

[00:11:26] Speaker 04:
I believe so, Your Honor.

[00:11:28] Speaker 04:
Also, just feel that the substantial ugliness in the record would compel a reversal is the stronger claim, but there is legal error on the side of the pattern of persecution doctrine analysis.

[00:11:43] Speaker 04:
If there are no other questions, I'll reserve their major in my time.

[00:11:46] Speaker 04:
Thank you.

[00:12:05] Speaker 02:
Good morning, Your Honors.

[00:12:06] Speaker 02:
May it please the court?

[00:12:07] Speaker 02:
My name is Taryn Arbiter on behalf of US Attorney General Merrick Garland.

[00:12:13] Speaker 02:
This court should deny the petition for review in this matter.

[00:12:16] Speaker 02:
Neither of the lead petitioners have shown that they suffered past persecution on a protected ground, nor have they established that they fear.

[00:12:24] Speaker 01:
Well, let me stop you there.

[00:12:25] Speaker 01:
In your brief, you referred to the attempted rape as an attempted molestation and an unsuccessful attempt to touch a girl inappropriately.

[00:12:34] Speaker 01:
But I want to read to you some of their testimony.

[00:12:37] Speaker 01:
The boy stripped her of her clothes, touched her breast, and wanted to take off her blouse.

[00:12:44] Speaker 01:
He pulled her skirt, unzipped her pants, and tried to reach into her intimate parts before she kicked him away and got free.

[00:12:55] Speaker 01:
That the IJ referred to these incidents as discrimination and teasing.

[00:13:01] Speaker 01:
If these incidents occurred in the United States, would we call them an attempted rape or would we call them discrimination and teasing?

[00:13:11] Speaker 02:
Thank you, your honor.

[00:13:12] Speaker 02:
So the claim did evolve a bit.

[00:13:14] Speaker 02:
As you noted, there were some different descriptions of what happened in her statement on page five, 30 of the record.

[00:13:20] Speaker 02:
She said the boy was trying to touch my breasts and wanted to take off my blouse.

[00:13:25] Speaker 02:
Um, later, um, in her testimony, she said, um, he pushed her to the ground and then she bit his hand and kicked him in his intimate parts.

[00:13:33] Speaker 02:
And, um, that was the end of the encounter.

[00:13:36] Speaker 02:
Then on cross examination,

[00:13:38] Speaker 02:
is when she said that he stripped her of her clothes and saw her intimate parts.

[00:13:44] Speaker 01:
So counsel, she elaborated on what was being said, and she was found to be credible, correct?

[00:13:49] Speaker 02:
She was found to be credible.

[00:13:51] Speaker 02:
I will say when she did go back on that again, when I was questioned by the IJ, she said she did have on her blouse and that he pulled it up.

[00:13:59] Speaker 02:
So in all these different characterizations of what happened, ultimately it was an attempted molestation by this boy who did- He said he wanted to make her hers or something to that effect.

[00:14:14] Speaker 01:
What does that mean other than sexually assaulting her and raping her?

[00:14:18] Speaker 01:
Does that mean something different?

[00:14:20] Speaker 01:
Making her hers?

[00:14:22] Speaker 02:
Your Honor, that statement, I will agree, does show intent in that case.

[00:14:28] Speaker 02:
But ultimately, this is- Does show intent for what?

[00:14:32] Speaker 02:
I do agree.

[00:14:33] Speaker 02:
It wasn't attempted.

[00:14:34] Speaker 02:
That would suggest it's an attempted rape.

[00:14:37] Speaker 01:
So we should treat it as an attempted rape, and not as they, IJ referred to it, as discrimination and teasing.

[00:14:46] Speaker 02:
I do not agree that this is merely discrimination and teasing.

[00:14:50] Speaker 02:
I completely agree with you there.

[00:14:52] Speaker 02:
What I will say, though, is that this is distinguishable from the attempted rape cases that this court has found to constitute past persecution.

[00:14:59] Speaker 02:
For example, in Carr, the woman was getting raped by a number of individuals in broad daylight.

[00:15:06] Speaker 02:
And the overall situations, the facts of this case just simply do not amount to past persecution.

[00:15:13] Speaker 02:
A boy tried to target her in her own home where he believed that she was vulnerable for some, you know, because she was a child and for, you know, he listed of various reasons, you know, domestic worker, potentially the fact that she was indigenous.

[00:15:29] Speaker 02:
And he attempted to touch her breasts and that's as far as the incident went.

[00:15:33] Speaker 02:
And in this situation, Your Honor, it just doesn't rise level.

[00:15:35] Speaker 03:
My understanding is the testimony was the mother came and said, why did you attempt to rape her?

[00:15:41] Speaker 03:
There's a lot of testimony of calling it an attempted rape.

[00:15:46] Speaker 03:
Your effort to fight that seems to be attacking her credibility and the credibility of the testimony, which the agency said she was credible.

[00:15:54] Speaker 03:
So I'm not finding this very persuasive.

[00:15:57] Speaker 03:
I think it would be helpful if you would treat it as an attempted rape, at least from my perspective, and make your other arguments, because this is not helpful.

[00:16:04] Speaker 02:
Your Honor, in that case, I will move on to Nexus then.

[00:16:07] Speaker 02:
And that is the other finding that we defended.

[00:16:10] Speaker 02:
Now, it is true that she said during her testimony that at some point he said that he thought she was indigenous.

[00:16:20] Speaker 02:
However, it is very clear from her testimony and her statement that this boy was interested in targeting a child that day and found her to be a vulnerable child.

[00:16:33] Speaker 02:
within, you know, for various reasons, determined that she was vulnerable to his attacks.

[00:16:38] Speaker 03:
But it seems like the reason for that was that she was indigenous.

[00:16:42] Speaker 03:
I mean, the reason he chose her was because she was indigenous.

[00:16:45] Speaker 03:
So I'm having a really hard time understanding how there isn't a nexus to that racial group.

[00:16:48] Speaker 02:
The reason that he chose her was because she was in the house, happened to be at the wrong place at the wrong time.

[00:16:54] Speaker 02:
It was a crime of opportunity as the agency.

[00:16:56] Speaker 02:
characterize this.

[00:16:58] Speaker 03:
I mean that seems to be just ignoring the fact that he says that you're an Indian or maybe the drowning is you're an Indian.

[00:17:05] Speaker 03:
I can't remember the exact words but he says something about you're not really her daughter because you don't look like her and you're and you're I thought she was indigenous.

[00:17:13] Speaker 02:
At some point, he said that he thought that she worked for someone in the neighborhood, that it was not her house, and that perhaps she was the daughter of an indigenous neighbor, as well as the fact that she might be a domestic worker.

[00:17:24] Speaker 02:
Where, in fact, his mother was the one that was a domestic worker in that house, and he, I don't believe, is indigenous, as far as her testimony goes.

[00:17:35] Speaker 02:
He looked at her, he saw a child, and he noticed a variety of traits and assumed that she may be indigenous.

[00:17:42] Speaker 01:
He saw an indigenous child.

[00:17:44] Speaker 01:
He's not an indigenous child, but he... And I guess I wanna delve a little into that concept of being a worker, because that is an interesting concept, and it's something that's sort of brushed away, and I'm not sure exactly that either council sort of addressed it.

[00:18:02] Speaker 01:
What is the view, or is there a specific view of folks who are domestic workers and are considered indigenous?

[00:18:12] Speaker 02:
That would have had to been developed in the country conditions evidence.

[00:18:16] Speaker 02:
And I don't have any that I'm aware of that petitioners pointed to to show that most domestic workers are indigenous people.

[00:18:22] Speaker 02:
And in fact, in this case, the domestic worker was presumably a Ladino individual.

[00:18:29] Speaker 02:
So I don't think that that- Wait, I'm not sure what you're talking about when you say that.

[00:18:32] Speaker 02:
What domestic worker are you talking about?

[00:18:34] Speaker 02:
His mother did laundry at her mother's house.

[00:18:37] Speaker 02:
So that's why he was in the house at the same time.

[00:18:39] Speaker 02:
So his family was actually a domestic worker for her family.

[00:18:42] Speaker 02:
And so, in this case, he was interested in finding some vulnerable individual.

[00:18:50] Speaker 02:
He listed a number of factors.

[00:18:52] Speaker 02:
Class, age, the fact that he didn't think she lived there, that she was alone, that she was a child, that he thought she was indigenous.

[00:18:59] Speaker 02:
He didn't really care which factor made her vulnerable, just the fact that she was vulnerable.

[00:19:04] Speaker 01:
As long as one of those factors is a protected group, why isn't that enough?

[00:19:09] Speaker 02:
Well, Your Honor, if you disagree with me on that, that, you know, he looked at the variety of factors, he didn't necessarily care which one made her vulnerable.

[00:19:17] Speaker 01:
Right, but I guess my question is different.

[00:19:18] Speaker 01:
If at least one of those factors is a protected group, why isn't that enough?

[00:19:23] Speaker 01:
For us to indicate there's a nexus.

[00:19:26] Speaker 02:
The agency had to make a factual finding that the persecutor had a specific motive, that it was a motive, even for withholding of removal.

[00:19:34] Speaker 02:
And the agency found that it was not a motive.

[00:19:37] Speaker 03:
It seems like it ignored the fact that he said this thing about her being indigenous.

[00:19:40] Speaker 02:
Well, it's possible that that was one reason.

[00:19:42] Speaker 02:
I mean, he presumed that she may be indigenous, but it's not clear that that particular factor was important to him more than any other factor that made her a vulnerable victim in that case.

[00:19:53] Speaker 01:
Are you also challenging the nexus on the pool, the drowning incident?

[00:19:56] Speaker 01:
No, Your Honor, we are not.

[00:19:58] Speaker 02:
However, I will say that with respect to this nexus issue, if the court doesn't buy that he didn't care which factors made her vulnerable,

[00:20:10] Speaker 02:
Remand in this case would be futile, because Mrs. Lopez has never stated that she fears this individual in the future.

[00:20:18] Speaker 02:
This happened when she was eight years old.

[00:20:20] Speaker 03:
Well, if she had passed persecution, she would get a presumption of future persecution.

[00:20:25] Speaker 02:
Even with a presumption of future persecution, there's nothing in the record to the point where it would rebut the idea that she is still scared of this individual.

[00:20:35] Speaker 03:
Well, it would be the government's burden to rebut it.

[00:20:36] Speaker 03:
So how would you rebut it?

[00:20:38] Speaker 02:
The fact that there is no evidence whatsoever in the record that she still fears this individual.

[00:20:43] Speaker 02:
I mean, she has not testified one bit that she even knows who this person is, has ever seen him again, has any fear of being raped by him.

[00:20:51] Speaker 01:
Counsel, I thought there was evidence, and correct me if I'm wrong, in her declaration about

[00:20:56] Speaker 01:
her continuing and ongoing psychological sort of feelings about how the attempted rape affected her.

[00:21:05] Speaker 01:
So this fear of this additional harm, not just by this individual, but perhaps by others.

[00:21:14] Speaker 02:
Well, Your Honor, that would be extremely speculative.

[00:21:17] Speaker 02:
She would have to show that she fears actual persecution.

[00:21:25] Speaker 02:
extreme mistreatment.

[00:21:27] Speaker 03:
There was an attempted murder and an attempted rape, both because she's indigenous.

[00:21:31] Speaker 03:
If she has that past persecution, then why wouldn't it be that she gets a presumption of future persecution that as an indigenous person going back, there are going to be more things.

[00:21:40] Speaker 03:
I mean, there's two different people.

[00:21:41] Speaker 03:
There are going to be more things that happen to her.

[00:21:43] Speaker 03:
What's wrong with that claim?

[00:21:44] Speaker 02:
Well, she is she's not made that these incidents occurred when she was eight years old and 10 years old, respectively, and now her claim today centers on this extortion that happened to her husband.

[00:21:54] Speaker 03:
I mean, you Okay, she might lose on that.

[00:21:57] Speaker 03:
So let's just put that aside for a moment.

[00:21:59] Speaker 03:
I'm asking about this.

[00:22:00] Speaker 03:
She has a

[00:22:01] Speaker 03:
past persecution based on being indigenous, she gets a presumption of future persecution.

[00:22:05] Speaker 03:
How is the government going to rebut and show that with the country conditions about other problems for indigenous people, how are you going to rebut that future persecution that we know so much that it can't even be remanded?

[00:22:16] Speaker 03:
It's so clear.

[00:22:18] Speaker 03:
How are you going to do that?

[00:22:19] Speaker 02:
Well, Your Honor, there would have to be some indication that she would fear this individual.

[00:22:26] Speaker 03:
I don't think it has to be this individual.

[00:22:28] Speaker 03:
What is your authority that says if there's past persecution by more than one person, you can't have a fear of future persecution from other people for the same basis of protected ground?

[00:22:41] Speaker 03:
Tell me a case that says that.

[00:22:43] Speaker 02:
Well, Your Honor, no.

[00:22:44] Speaker 02:
I don't think there's a case that says that.

[00:22:45] Speaker 02:
But I think that just the fact that her persecution occurred

[00:22:49] Speaker 02:
I know she's in her 30s now, decades ago, and she hasn't had a... Well, she's been here a while, right?

[00:22:55] Speaker 02:
How long has she been out of Guatemala?

[00:22:57] Speaker 02:
She... Let's see.

[00:22:59] Speaker 02:
I have her entry date somewhere, but I'm not 100% sure off the top of my head.

[00:23:04] Speaker 02:
I mean, I don't think she's been here... I believe she came in... Must have been most likely since... Hold on.

[00:23:26] Speaker 02:
2021, I believe.

[00:23:29] Speaker 02:
So, since 2021, which was, you know, three years ago.

[00:23:32] Speaker 00:
However, this... What is the relevance of the petitioner's response to the IJA when asked, what is it that you... There were direct questions, I think, when she testified with respect to what she fears the most, or what is she afraid of, that I think was going to this question that Judge Friedland asked, which is, what would the government point to to rebut the presumption of future persecution?

[00:23:59] Speaker 02:
Yes, you're right, Your Honor.

[00:24:00] Speaker 02:
When questioned about the, you know, this is in the context of the conversation about the gangs, and when asked if she feared anything else, she said no.

[00:24:09] Speaker 02:
And so in that, that would be, that is correct, that would be evidence to rebut the presumption.

[00:24:15] Speaker 02:
It's very clear from the record that her sole fear at this moment is extortion from the gangs.

[00:24:21] Speaker 02:
And these unfortunate things happened to her.

[00:24:25] Speaker 02:
You know, the government is very sensitive to the fact that this is an extremely unfortunate situation, that she was, you know, bullied by kids in school and, you know, an attempted molestation by this boy working at her house.

[00:24:38] Speaker 02:
But throughout the testimony, she clearly only fears gang extortion.

[00:24:45] Speaker 03:
Can you point to where in the record you think that's so clear?

[00:25:08] Speaker 02:
Okay, so she was asked, you know, if she had feelings that she was discriminating Guatemala as an adult.

[00:25:13] Speaker 02:
She did say yes on page 132.

[00:25:14] Speaker 02:
And I did not print out the page on the record where she did say, but here I will, I think it's cited in our brief.

[00:25:20] Speaker 00:
What I'm looking at is on ER 65, which is page 10 of the IJ's decision.

[00:25:27] Speaker 00:
It says, when asked on cross-examination who respondent fears if she returns to Guatemala, she indicated that she fears return to Guatemala from the people who are dedicated to extorting people.

[00:25:37] Speaker 00:
If they do not give them money, they kill you.

[00:25:39] Speaker 00:
She does not fear anyone else.

[00:25:41] Speaker 00:
Money is the only thing that they are interested in.

[00:25:43] Speaker 00:
I'm not sure if that's what I'm looking at.

[00:25:50] Speaker 00:
I'm not sure that it is.

[00:25:51] Speaker 02:
And I wish I had printed out that specific page in the record.

[00:25:54] Speaker 02:
But yes, the IJ decision does summarize the testimony that way.

[00:25:57] Speaker 00:
I think there's still a question about whether or not, when weighed against the government's burden to rebut the presumption, whether that

[00:26:06] Speaker 00:
would be sufficient.

[00:26:07] Speaker 00:
I'm not sure why that wouldn't still require a remand for determination in the first instance.

[00:26:13] Speaker 00:
I'm not sure it's so clear that we could know, but it seems to me that there's at least direct statements from the petitioner that her fear of future persecution relates to financial extortion.

[00:26:28] Speaker 02:
Yes, Your Honor.

[00:26:28] Speaker 02:
I mean, throughout her testimony, that was the thrust.

[00:26:31] Speaker 02:
And in addition to that, I will point out that the immigration judge found that the government was unable or unwilling to prevent attempted molestation of children.

[00:26:41] Speaker 02:
That that is another ground that the agency has made clear how they would rule on remand.

[00:26:48] Speaker 02:
And there's just simply no evidence provided by the petitioner and the record that

[00:26:55] Speaker 02:
that the government is interested in prosecuting these things.

[00:26:58] Speaker 02:
It was never reported to the police.

[00:27:00] Speaker 02:
Nobody's arguing here that she was unprotected by the government as a child subject to this attempted molestation.

[00:27:08] Speaker 02:
And I see my time has expired.

[00:27:11] Speaker 03:
Thank you.

[00:27:12] Speaker 03:
Thank you both sides for your arguments.

[00:27:14] Speaker 03:
This case is submitted.

[00:27:15] Speaker 01:
No, cancel.

[00:27:16] Speaker 03:
I'm sorry.

[00:27:16] Speaker 03:
Oh my goodness.

[00:27:17] Speaker 03:
I'm sorry.

[00:27:18] Speaker 03:
Please go ahead with your rebuttal.

[00:27:19] Speaker 03:
Thank you.

[00:27:20] Speaker 03:
Oh my goodness.

[00:27:21] Speaker 03:
Sorry about that.

[00:27:26] Speaker 04:
Your Honours, with regards to this notion that this happened a really long time ago, as you stated,

[00:27:34] Speaker 04:
If it's past persecution, she enjoys a rebuttable presumption.

[00:27:38] Speaker 04:
But then it's on the government to make that argument, to provide country conditions that say it's safe for indigenous people now, to make an argument to, I believe the cross-examination, and this was just a few moments long, there was no closing statement, there was no brief, there were no country conditions.

[00:27:54] Speaker 04:
The government had its chance to rebut that presumption, and they didn't do that.

[00:27:59] Speaker 04:
And I don't see how a remand for them

[00:28:02] Speaker 04:
to look at that again would be at all helpful or fair in this case.

[00:28:05] Speaker 03:
Well, sorry.

[00:28:08] Speaker 03:
When do you think the government should have tried to rebut it?

[00:28:10] Speaker 03:
Because the agency found that she didn't have past persecution, and then that's what I think you've been trying to challenge.

[00:28:16] Speaker 03:
Both before the BIA and before us, you're saying, wait a second, she does have past persecution.

[00:28:20] Speaker 03:
So when was the government supposed to do this?

[00:28:23] Speaker 03:
Certainly.

[00:28:23] Speaker 03:
Let me rephrase.

[00:28:24] Speaker 04:
The Department of Homeland Security at the trial stage should have made that argument.

[00:28:28] Speaker 04:
and no argument was made.

[00:28:29] Speaker 04:
At the trial stage before the IJ, you're saying?

[00:28:32] Speaker 04:
Correct, correct.

[00:28:33] Speaker 03:
Like in the alternative, assuming that, or when do you think that should have happened?

[00:28:38] Speaker 04:
It should have happened prior to the judge giving her oral decision that said there was no past persecution.

[00:28:45] Speaker 04:
We gave an oral argument that laid out the facts that said there was past persecution for the same reasons I'm telling you today.

[00:28:51] Speaker 04:
And the government made no response, did not have any sort of argument against that.

[00:28:56] Speaker 04:
They had a chance to do that.

[00:28:57] Speaker 01:
But why wouldn't they be allowed to, on remand, to make that, to state that position clearly?

[00:29:03] Speaker 04:
Because they had their chance to do that at the trial stage.

[00:29:07] Speaker 04:
That's, the fact finding has been completed in this case.

[00:29:13] Speaker 03:
Furthermore, as far as- Well, but that would be an argument about, I mean, they wouldn't, the fact-finding has been complete.

[00:29:19] Speaker 03:
I'm not sure what that means.

[00:29:20] Speaker 03:
They could make an argument based on the testimony that was already given, right?

[00:29:25] Speaker 04:
They can, Your Honor, but I just argue that that should have been done at the trial stage.

[00:29:32] Speaker 04:
Furthermore, as to whether the government was able and willing, again, that is and willing, a conjunction.

[00:29:41] Speaker 04:
I would like to point to the IJ decision, where she points out that this is AR66.

[00:29:50] Speaker 04:
She indicated that she never reported the attempted rape.

[00:29:55] Speaker 04:
While reporting is not required, especially given her young age at the time of the incident, it is a factor for the court to consider in its analysis.

[00:30:02] Speaker 04:
If the judge is correct, it's not a requirement, and she was eight years old.

[00:30:05] Speaker 04:
I just want to reiterate that.

[00:30:07] Speaker 04:
And further, there is country conditions evidence that shows that.

[00:30:11] Speaker 04:
These are, even rape laws or women's shelters have been shown as not effective.

[00:30:21] Speaker 04:
Finally, to the government's point, again, they repeated that she was bullied, and that's unfortunate.

[00:30:28] Speaker 04:
I want to reiterate part of Diana's declaration, which states, she wasn't just bullied, she was insulted, humiliated, and isolated at a very young age.

[00:30:41] Speaker 04:
On AR 532, I believe it says, I continue to suffer bullying from my classmates at school who insulted me practically every day for being indigenous, calling me Indian.

[00:30:53] Speaker 04:
You should go back to your village.

[00:30:55] Speaker 04:
You do not belong here, and other expletives.

[00:30:59] Speaker 04:
Your honors, my time has expired, but I would ask that you reverse this decision and grant this family refuge.

[00:31:05] Speaker 03:
Thank you very much.

[00:31:07] Speaker 03:
I'm really sorry about my mistake earlier about rebuttal, but thank you for giving the rebuttal.

[00:31:11] Speaker 03:
Thank you both sides for the helpful arguments.

[00:31:12] Speaker 03:
This case is submitted and we are adjourned.