[00:00:00] Speaker 02: The first case for argument today is Hervis Mbitté, I'm not sure I'm pronouncing that correctly, versus Garland. [00:00:10] Speaker 02: And I believe, let's see, I believe Mr. Mingus is first up. [00:00:17] Speaker 02: Please proceed. [00:00:22] Speaker 02: By the way, will you give us the correct pronunciation of your client's name, please? [00:00:26] Speaker 02: I apologize, my French is sort of kind of [00:00:29] Speaker 01: No worries, we had to ask him as well. [00:00:31] Speaker 01: The correct pronunciation is Mr. Mebe Tene. [00:00:35] Speaker 02: Mebe Tene, okay. [00:00:36] Speaker 02: Yes. [00:00:36] Speaker 02: Very well. [00:00:36] Speaker 02: We'll call him petitioner and we won't mess it up, okay? [00:00:39] Speaker 01: Sounds good. [00:00:41] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:00:44] Speaker 01: My name is Raquel Dominguez, and I, along with my co-councils Joseph Lee and Claire Kane, represent the petitioner, Mr. Ervis Mebe Tene. [00:00:53] Speaker 01: I'll aim to reserve three minutes for rebuttal. [00:00:56] Speaker 02: Keep your eye on the clock. [00:00:56] Speaker 02: We'll try to help you. [00:00:58] Speaker 01: Thank you. [00:01:00] Speaker 01: This case presents the rare instance where a foreign government has put in writing what persecution they intend to inflict, against who, and on what basis. [00:01:12] Speaker 01: The Cameroonian government has issued an arrest warrant. [00:01:15] Speaker 01: It names my client, Mr. Mebatene, and is for the crime of homosexuality. [00:01:22] Speaker 01: Any reasonable adjudicator would be compelled to conclude that the Cameroonian government is seeking to arrest Mr. Mabatene for his homosexuality. [00:01:32] Speaker 02: Counsel, let me just ask you this. [00:01:33] Speaker 02: I want to be sure we cabin this appropriately. [00:01:37] Speaker 02: My understanding of the petitioner's petition here is that the Al Harvey v. INS case says that it doesn't really matter whether there's been an adverse credibility determination [00:01:51] Speaker 02: In this case, the existence of the nationwide warrant for your client's arrest by virtue of the fact that he is homosexual is in and of itself enough to get him asylum. [00:02:03] Speaker 02: Is that your position? [00:02:04] Speaker 01: Yes, Your Honor. [00:02:05] Speaker 02: OK. [00:02:05] Speaker 02: And I'll harm you. [00:02:07] Speaker 02: As you know, the facts are a little bit different that involving Iraqi situation where people pretty clearly, according to the paperwork in the file, would have been executed. [00:02:18] Speaker 02: Right. [00:02:18] Speaker 02: Does the fact that your client [00:02:21] Speaker 02: is the subject of an arrest warrant for being homosexual, is that enough in and of itself [00:02:29] Speaker 02: to establish that he qualifies for the subjective intent, basically, element of this request? [00:02:40] Speaker 01: Yes, Your Honor. [00:02:41] Speaker 01: And there's a couple of reasons why. [00:02:43] Speaker 01: The first is that Ninth Circuit law is very clear that criminal prosecution on a protected basis is persecution. [00:02:51] Speaker 01: So whether you're facing execution in the case of Al Harvey or arrest and imprisonment in this case, that is persecution under a silent law. [00:02:59] Speaker 01: The second piece is the objective piece, which I know Your Honor was talking about the subjective, but to talk briefly about objective. [00:03:08] Speaker 01: Under asylum law, it's not that you have to have a 90% chance of persecution. [00:03:13] Speaker 01: It's that there has to be a reasonable possibility. [00:03:16] Speaker 01: And as all Harvey states, even a 10% chance can be a reasonable possibility. [00:03:21] Speaker 00: So that's kind of one of the questions I have about your argument. [00:03:24] Speaker 00: I looked in your brief to see where you cited Al Harvey, and you've cited one time on page 31, and you cited for the proposition that a 10 percent chance of persecution may establish well-founded fear. [00:03:37] Speaker 00: But there's no argument connected to that case citation to say that even though asylum fear of future persecution has both a subjective and an objective component, we can meet the subjective component just based on objective evidence. [00:03:51] Speaker 00: So I don't see that in your brief. [00:03:53] Speaker 00: It's certainly not in connection with the L. Harvey citation. [00:03:57] Speaker 01: Yes, and we should have been clear in our opening brief, Your Honor. [00:04:01] Speaker 01: We do state that it's just common sense that someone who faces arrest would be afraid of returning to the country. [00:04:09] Speaker 00: The other difficulty I have is we need to know what that means in Cameroon. [00:04:13] Speaker 00: I assume your answer to this is going to be yes, but I'd like to know what is in this record that's sufficient for us to determine or for the agencies to have determined [00:04:23] Speaker 00: what this arrest warrant means and what will happen. [00:04:27] Speaker 00: It's however many years old now, four or five years old. [00:04:32] Speaker 00: People have been going to his family and looking for him. [00:04:34] Speaker 00: What happens when a person is arrested on the charge of homosexuality in Cameron? [00:04:42] Speaker 01: There are country condition reports in the record that were before the IJ and the BIA that stated that the Cameroonian government regularly enforces... And what's the date of those country condition reports? [00:04:54] Speaker 01: The latest one is 2018. [00:04:55] Speaker 01: His hearing before the IJ was in 2019. [00:05:01] Speaker 01: And I hear, Your Honor, that [00:05:03] Speaker 01: I understand that these are a couple years old, five years old at this point. [00:05:07] Speaker 01: However, we believe that if the record is stale such that, Your Honors, don't feel like you can make a factual determination at this point, we'd urge that the case should be remanded back to the agency. [00:05:19] Speaker 00: Well, under INS v. Ventura, could we make that determination in any case? [00:05:24] Speaker 00: I mean, I'm pretty sure the Supreme Court has said that we do not have the power to make those determinations. [00:05:29] Speaker 00: That's before the agency. [00:05:32] Speaker 01: Your Honor, there are cases in which the Ninth Circuit has found an individual to be eligible, where the evidence is so compelling that any reasonable- And do they predate Ventura? [00:05:41] Speaker 00: Because in that case, the Supreme Court reversed the Ninth Circuit and said, this is a separation of powers issue. [00:05:49] Speaker 00: This is something that is left to the agency to do. [00:05:52] Speaker 00: We can't grant immigration relief. [00:05:54] Speaker 00: We could remand. [00:05:57] Speaker 01: I cannot, standing here before you, think off the top of my head of the name of a case that post-dates Ventura, but I can certainly look in the record and come back on reply with a case citation. [00:06:09] Speaker 01: Ventura was talking about how the court cannot perform a review that the IJ or BIA has not previously done. [00:06:17] Speaker 01: Here, all of this evidence was before the IJ and BIA. [00:06:21] Speaker 00: That raises another point. [00:06:23] Speaker 00: I went back and was reviewing your briefs again, and I don't see where this argument was pressed before the IJ or, more importantly, before the BIA. [00:06:35] Speaker 00: Understandably, the arguments were challenging the adverse credibility determination. [00:06:40] Speaker 00: And then there was an earlier remand, but specifically to consider cat relief. [00:06:45] Speaker 00: The order did not address asylum, and it does not appear there was any briefing or argument of the argument you're making now, which is that even though there's an adverse credibility determination which obviates the testimony for purposes of his subjective belief, there's another way to reach that. [00:07:02] Speaker 00: So, I don't think that's been presented to the agency, which is problematic. [00:07:08] Speaker 00: And I may be wrong. [00:07:09] Speaker 00: I'm more than willing to entertain that, possibly. [00:07:11] Speaker 00: So, if you can give me citations in the briefing before the BAA where that was argued, I'd be glad to hear that. [00:07:22] Speaker 01: I, once again, don't have those off the top of my head. [00:07:25] Speaker 01: I'm happy to provide them in reply, or I can grab the record now if you'd like me to look at this moment. [00:07:30] Speaker 00: No, go ahead with your argument. [00:07:31] Speaker 00: When you come back up on rebuttal, if you have a few minutes for that, maybe if you have citations, that would be helpful. [00:07:35] Speaker 00: Absolutely. [00:07:36] Speaker 00: Absolutely. [00:07:38] Speaker 02: Well, can I just follow up, my colleague? [00:07:43] Speaker 02: When this was remanded the first time, [00:07:48] Speaker 02: My understanding was the whole purpose of the remand was to address the legitimacy, if you will, of the nationwide arrest warrant. [00:07:57] Speaker 02: Is that correct? [00:07:59] Speaker 01: Yes, Your Honor. [00:08:00] Speaker 02: I'm sorry? [00:08:01] Speaker 01: I'm so sorry. [00:08:02] Speaker 01: Not the legitimacy of the nationwide arrest warrant, but remanded for the BIA to consider the fact that the warrant said on its face that it had been issued nationwide. [00:08:15] Speaker 02: And as my colleague pointed out, as far as I could tell, there was no argument made with respect to asylum. [00:08:21] Speaker 02: It all had to do with adverse credibility and withholding or cat. [00:08:27] Speaker 02: Is that right? [00:08:28] Speaker 02: Yes, Your Honor. [00:08:29] Speaker 02: So if that's the case, [00:08:32] Speaker 02: Is there a waiver of the claim for asylum or is the fact that the case that you decided the L Harvey case that was consistent throughout? [00:08:43] Speaker 02: So does that preserve the argument with respect to asylum? [00:08:47] Speaker 01: We believe it does, Your Honor. [00:08:49] Speaker 01: And although the framing of the issues might have been slightly different, counsel for my client has consistently pressed that there is an arrest warrant that's been issued for Mr. Mepetene. [00:09:01] Speaker 01: This warrant was given to the IJ, was given to the BIA. [00:09:06] Speaker 01: He consistently has said that he's afraid to return to Cameroon for fear that he'll be arrested. [00:09:13] Speaker 01: This is not a new concept that's being introduced. [00:09:16] Speaker 00: So the difficulty is that there's an adverse credibility determination, which raises the issue of whether that's supported by substantial evidence. [00:09:24] Speaker 00: But all the testimony about past persecution, the agency discounted because they didn't believe him. [00:09:32] Speaker 00: And they discounted the—and maybe incorrectly—the arrest warrant because of inconsistencies in his testimony about never having seen it, but yet it was submitted with his materials. [00:09:41] Speaker 00: So, it doesn't seem this point, which is a very specific argument that, gee, we don't have evidence for his subjective belief, but we can overcome that because objective evidence is so strong, which of course raises another issue of, is the objective evidence here to that level? [00:10:00] Speaker 00: But if the argument wasn't made, how is it not waived? [00:10:05] Speaker 01: I believe the argument was made, Your Honor, that the arrest warrant compels the conclusion that he is gay and that the adverse credibility determination is not supported by sufficient evidence in light of the arrest warrant. [00:10:20] Speaker 00: Sure. [00:10:20] Speaker 00: I agree with you that there was definitely challenges to the adverse credibility determination, including the IJ's conclusion that the petitioner was not actually, in fact, gay. [00:10:29] Speaker 00: And that's all been hotly disputed and contested. [00:10:33] Speaker 00: But this particular argument, which is [00:10:35] Speaker 00: It's a significant argument, and it may be there. [00:10:38] Speaker 00: Maybe you'll find it, but I don't think it was made before the BIA, and not before the IJ, but it would have been brought up to the BIA thing. [00:10:46] Speaker 02: My recollection— What happens—well, let me frame it this way. [00:10:51] Speaker 02: If I understand your position correctly, we have our case, of course, of Broomfield versus McKaysey says the prosecution for homosexuality amounts to persecution, period. [00:11:00] Speaker 02: End of story. [00:11:01] Speaker 02: Yes. [00:11:02] Speaker 02: So I gather your position is that the adverse credibility determination really doesn't matter. [00:11:08] Speaker 02: Yes, sir. [00:11:08] Speaker 02: By citing the Alhavi case, [00:11:11] Speaker 02: Broomfield, that's a separate issue. [00:11:14] Speaker 02: Even if there is grounds for adverse credibility, it's got to go back for the IJ to determine the reality of this warrant. [00:11:28] Speaker 02: And if that is found, that's enough. [00:11:30] Speaker 02: Is that your position? [00:11:31] Speaker 01: Yes, Your Honor. [00:11:32] Speaker 01: That's exactly the position. [00:11:33] Speaker 02: And other than the Al Harvey case, do you have any other cases that's kind of almost an outlier in a way? [00:11:40] Speaker 02: I get the point of it. [00:11:41] Speaker 02: But do you have any other cases that suggest that adverse credibility really isn't determinative in this asylum situation? [00:11:51] Speaker 01: We do not, Your Honor, but I think it's important to put in context here that the reason there aren't other Al Harvey cases is because often applicants for asylum come to the United States with only their testimony. [00:12:04] Speaker 01: It is so rare for a foreign government to put in writing exactly who they're going to persecute and on what protected ground. [00:12:13] Speaker 00: But there's the flip side to that argument as well because the fact that these determinations are being made based on the petitioner's testimony and very little other evidence means that these adverse credibility determinations are particularly important because people have good reasons for wanting to be here, but they may not be truthful in what they're saying in order to obtain relief and be able to stay. [00:12:37] Speaker 00: And so we put a lot of emphasis on an adverse credibility determination, which is why it's only reviewed for substantial evidence. [00:12:44] Speaker 01: Yes, Your Honor. [00:12:45] Speaker 01: And here, given the objective evidence, the corroborating evidence that the IJ and BIA did not discuss, we don't believe that there is sufficient evidence for an adverse credibility determination. [00:12:56] Speaker 02: Do you want to save the balance of your time? [00:12:57] Speaker 02: I have one quick question. [00:13:00] Speaker 03: Yes. [00:13:01] Speaker 03: What is your understanding of why there is both a subjective and objective component for the asylum test? [00:13:08] Speaker 01: It goes back to what I just mentioned about how most applicants for asylum have only their testimony. [00:13:14] Speaker 01: And for most applicants, it's fairly easy to satisfy the subjective component. [00:13:19] Speaker 01: It's the objective component that's normally a real struggle for applicants. [00:13:24] Speaker 01: Because once again, it's rare for a foreign government to issue an arrest warrant for a protected ground. [00:13:32] Speaker 02: OK. [00:13:32] Speaker 02: Save the balance of your time, then. [00:13:33] Speaker 02: Thank you. [00:13:33] Speaker 02: Very well. [00:13:35] Speaker 02: All right, let's hear from the government, Mr. Mack. [00:13:41] Speaker 04: Good morning and may it please the court, Greg Mack, for the Attorney General. [00:13:44] Speaker 04: Judge Fitzwater, to your question on the objective point, the regulations in the case law is pretty clear that there's both a subjective and an objective component with respect to the well-founded fear of persecution. [00:13:55] Speaker 04: So there's a subjective component asking whether the petitioner actually fears the potential harm, and then there's an objective component, whether it's reasonable for that person to have that fear. [00:14:04] Speaker 04: So those are both of the subjective. [00:14:05] Speaker 04: What do you do with Broomfield, though? [00:14:08] Speaker 02: That's a 2008 case that makes it clear that prosecution for homosexuality is per se, per se, persecution. [00:14:20] Speaker 02: Doesn't that get around the aspect of adverse credibility when you combine it with the aspect of Al Harvey, which basically says, hey, in this case, there's a warrant out there for this guy. [00:14:32] Speaker 02: Yes, Your Honor. [00:14:33] Speaker 02: And it says right on the warrant, [00:14:36] Speaker 02: you know he is wanted for homosexuality which is a criminal offense uh... in cameroon doesn't that [00:14:44] Speaker 02: undermine the government's position. [00:14:45] Speaker 02: I understand that normally adverse credibility plays a very significant role, but this seems to provide a limited avenue where, as opposing counsel pointed out, in this very rare situation where we have a foreign government that's openly admitting, we want to prosecute this guy because he is a homosexual. [00:15:05] Speaker 04: And gross indecency. [00:15:06] Speaker 04: I'm sorry? [00:15:07] Speaker 04: And gross indecency. [00:15:08] Speaker 04: And he was caught on two occasions in public having sex, so that's the gross indecency part of it. [00:15:17] Speaker 04: But I'll grant you that, Your Honor, with respect to Bromfield. [00:15:20] Speaker 04: It says what it says. [00:15:20] Speaker 04: There's no doubt about it. [00:15:22] Speaker 04: But let's investigate how Bromfield, I think, enters the case. [00:15:24] Speaker 04: I think that's a good question. [00:15:25] Speaker 04: With respect to Bonfield, I'm willing to be corrected by my opposing counsel. [00:15:30] Speaker 04: I don't believe Bonfield was cited to the immigration judge or to the board in this case. [00:15:34] Speaker 04: I don't know that it was raised. [00:15:35] Speaker 02: Was or was not? [00:15:35] Speaker 04: I don't believe it was. [00:15:37] Speaker 04: And I think the way it was introduced in this case, and again, I'm willing to be corrected on this. [00:15:41] Speaker 04: I think it comes up in the reply brief, Your Honors. [00:15:43] Speaker 04: So I don't think that Bonfield was ever before the agency. [00:15:46] Speaker 04: And it's true. [00:15:47] Speaker 04: It's a 2008 case. [00:15:49] Speaker 04: But Bonfield also says that the legal layer that the board made in that case [00:15:53] Speaker 04: was that it didn't consider government acquiescence on the cat claim. [00:15:56] Speaker 04: I don't think it really speaks to asylum. [00:15:58] Speaker 04: And I think, as Judge Beatty points out, Ventura and Gonzalez told this court not once, but twice, and not just twice, but in summary reversal, that you cannot get to the merits or the heart of an asylum claim if the agency makes an adverse credibility determination [00:16:14] Speaker 04: and does not address past persecution, well-founded fear, relocation at the agency level. [00:16:20] Speaker 04: All those questions have to go back. [00:16:21] Speaker 04: So if you agree with petitioners that adverse credibility is not sustainable under the very deferential substantial evidence standard, then you have to send the case back with respect to asylum. [00:16:33] Speaker 02: I guess that's my question. [00:16:36] Speaker 02: since they cited Al Harvey from the beginning. [00:16:39] Speaker 02: Maybe they didn't cite Broomfield, but that's the case law. [00:16:41] Speaker 02: It's out there. [00:16:44] Speaker 04: But I don't think they, excuse me, Your Honor, I don't think they cited it for the proposition you've made in your question. [00:16:48] Speaker 02: OK, but they cited the case. [00:16:49] Speaker 02: They cited the case. [00:16:51] Speaker 02: So it's not a surprise to the government. [00:16:53] Speaker 02: No, no, no. [00:16:54] Speaker 02: So isn't the correct answer to send it back with the idea that here's Broomfield, here's Al Harvey, [00:17:04] Speaker 02: even if you have an adverse credibility determination, you can still determine that the requirements for asylum are met. [00:17:11] Speaker 02: Is that correct or not? [00:17:12] Speaker 04: With respect to asylum. [00:17:14] Speaker 02: With respect to asylum. [00:17:16] Speaker 04: On cat, however, Your Honor. [00:17:17] Speaker 02: We can see that. [00:17:19] Speaker 04: I just wanted to make sure that was said. [00:17:21] Speaker 04: On cat, you have to find that the evidence compels a conclusion that harassment and criminalization of homosexuality. [00:17:27] Speaker 02: Let's assume that they lose on cat, but on asylum. [00:17:31] Speaker 04: Yes. [00:17:32] Speaker 02: isn't the correct answer to send this back so the IJ can consider Broomfield and Al Harvey and look at the facts of this warrant. [00:17:40] Speaker 04: If you find that the record compels reversal of the adverse credibility determination. [00:17:44] Speaker 02: But even putting aside adverse credibility, just on the basis that Al Harvey seems to suggest that adverse credibility is not determinative of whether there's persecution in this setting. [00:17:58] Speaker 04: right? [00:17:59] Speaker 04: Let me say this. [00:18:00] Speaker 04: I don't know that Al Harvey came into the case the way that you put in your question. [00:18:05] Speaker 04: Bromfield, I also don't believe, came into the case until the reply brief. [00:18:08] Speaker 04: So there's no, I don't know what air you would point to that the agent committed with respect to Al Harvey and Bromfield. [00:18:14] Speaker 02: Well, Bromfield's really clear that to prosecute somebody for being a homosexual is persecution for purpose of asylum, right? [00:18:22] Speaker 04: I think it says it with respect to torture. [00:18:24] Speaker 02: Okay, well, [00:18:25] Speaker 02: not not persecution. [00:18:26] Speaker 02: I understand torture is primarily a cat claim but the reality is if somebody has an objective and a subjective fear because you have this warrant out there that you're going to be persecuted for being who you are that that satisfies [00:18:43] Speaker 02: the requirements of asylum, arguably. [00:18:46] Speaker 02: I really admit torture's a slightly different concept, but it still fits into the issue of persecution, does it not? [00:18:54] Speaker 04: I'll respectfully disagree, because the arrest warrant says gross indecency and homosexuality, and he was caught twice in grossly indecent situations. [00:19:01] Speaker 02: What do you mean the same thing for purposes of Cameroon law? [00:19:04] Speaker 04: Do they not? [00:19:06] Speaker 04: likely. [00:19:07] Speaker 04: But I'll say this. [00:19:08] Speaker 04: I think if the court sends it back because of all Harvey and Bromfield, it's not because the agency aired with respect to those cases. [00:19:13] Speaker 04: It's because the agency should have another opportunity to look at the case with respect to [00:19:20] Speaker 04: Well, the attorney general probably wouldn't want me to have it sent back for that. [00:19:23] Speaker 02: He's a nice guy. [00:19:24] Speaker 04: Well, indeed, Your Honor. [00:19:26] Speaker 04: But I think also, again, you wouldn't be sending it back because the agency erred by disagreeing with Al Harvey on Bromfield. [00:19:34] Speaker 02: You would just say, on an open record, because of... So if we said, we may or may not have erred, but we want you to take another look at this, how would that be? [00:19:43] Speaker 04: I think your Article 3 judges and we would look at that and the Solicitor General would have to decide whether that was air, whether they wanted to file a rehearing petition. [00:19:50] Speaker 04: But as of today, I couldn't say that the Attorney General would agree with that because there was no air. [00:19:54] Speaker 04: I don't think Al Harvey came into the case the way that you raised in your question. [00:19:58] Speaker 04: Bromfield, I don't believe, and they can correct me if I'm incorrect, I think Bromfield came into the case in the reply brief, Your Honor. [00:20:08] Speaker 00: I still struggle with how Al Harby applies because the facts there were very different. [00:20:15] Speaker 00: It appears to almost be a one-off outlier case because the regulations require subjective and objective components for fear of future persecution. [00:20:25] Speaker 00: This is a case that obviates part of the regulation, but in that case, the petitioner was part of a group [00:20:33] Speaker 00: And all of the group together, there was evidence that they would be executed. [00:20:37] Speaker 00: The objective evidence was so strong, and there was objective evidence that this petitioner would be executed if he were returned to his country of origin. [00:20:45] Speaker 00: And his testimony wasn't credible. [00:20:48] Speaker 00: That was also a problem because he changed his testimony so many times. [00:20:51] Speaker 00: But in those facts, which was very powerful evidence involving multiple other petitioners who came in his same group, [00:20:57] Speaker 00: you would be executed if you went back. [00:21:00] Speaker 00: The court made an exception. [00:21:01] Speaker 00: How do we put this arrest warrant? [00:21:04] Speaker 00: Will you make that factual determination that this arrest warrant means that and we can obviate the subjective component of fear of future persecution? [00:21:11] Speaker 04: No, I don't think you can, Your Honor. [00:21:13] Speaker 04: I think we [00:21:15] Speaker 04: Immigration judges grant asylum and withholding removal to individuals. [00:21:19] Speaker 04: They don't grant asylum to documents or arrest warrants. [00:21:23] Speaker 04: We have to take the individual as a whole. [00:21:25] Speaker 04: And this individual is wrapped up in adverse credibility and not believability. [00:21:29] Speaker 04: So the immigration judge has to take a look at the person. [00:21:32] Speaker 04: This person comes with an arrest warrant, but comes with a story that is unbelievable. [00:21:36] Speaker 04: And the record does not compel the reversal of the adverse credibility determination. [00:21:40] Speaker 04: So when you look at granting asylum to an individual, [00:21:44] Speaker 04: This individual is wrapped up in adverse credibility. [00:21:46] Speaker 04: And with respect to asylum withholding, putting cat to the side for a moment, it's wrapped up with adverse credibility. [00:21:52] Speaker 04: So we can't believe this individual. [00:21:54] Speaker 04: And that's why Al Harp. [00:21:55] Speaker 02: How do you judge adverse credibility today in our circuit? [00:21:58] Speaker 02: We've got Kumar. [00:22:00] Speaker 02: And now we've got Kalulu. [00:22:02] Speaker 04: You have a lamb, en banc as well. [00:22:05] Speaker 02: And there is a request for an en banc. [00:22:06] Speaker 02: But as it stands right now, it's at the government's position that under either standard [00:22:12] Speaker 02: adverse credibility has been shown here by sufficient evidence. [00:22:15] Speaker 04: Absolutely, Your Honor. [00:22:16] Speaker 04: There are multiple inconsistencies. [00:22:18] Speaker 04: There are inconsistencies with respect to whether the baptism celebration that the beating or a conflagration happened during that celebration versus the day after. [00:22:28] Speaker 04: That's clearly two separate events, and Petitioner testified that it happened after the baptism celebration. [00:22:34] Speaker 04: There's also a question with respect to relocation. [00:22:37] Speaker 04: He's told the asylum officer that he moved to relocate with some friends. [00:22:42] Speaker 04: He denied that before the immigration judge. [00:22:45] Speaker 04: There's also a question with respect to the scope of injuries. [00:22:48] Speaker 04: He has an individual who put in a declaration or affidavit saying he was hit once and concussed. [00:22:53] Speaker 04: He said multiple times, I was hit repeatedly on my right side. [00:22:57] Speaker 04: There's a conflict there. [00:22:59] Speaker 04: So there's multiple inconsistencies. [00:23:00] Speaker 02: He said that he was hit in his body. [00:23:03] Speaker 02: That was the overall. [00:23:06] Speaker 02: I frankly don't find that inconsistent. [00:23:07] Speaker 02: He later on talked about his foot and his leg, I think. [00:23:11] Speaker 02: But he also said he was hit in his body. [00:23:14] Speaker 02: So what I struggle with is that I do find some inconsistencies, but some of what was found to be inconsistent is at least explicable in a way that's not contradictory. [00:23:26] Speaker 02: Would the government agree with that? [00:23:27] Speaker 04: No, I wouldn't, Your Honor. [00:23:28] Speaker 04: I think one out of ten immigration judges might agree with you, but that's not the standard. [00:23:32] Speaker 04: All it takes is one reasonable person to sustain this record, and the adverse credibility [00:23:37] Speaker 04: We have a very deferential standard of review, Your Honor. [00:23:39] Speaker 04: The record has to compel reversal. [00:23:41] Speaker 04: And we can talk about dividing and conquering each individual average credibility determination. [00:23:46] Speaker 04: But I think the court knows that's not the court's role. [00:23:48] Speaker 04: And we take the person as a whole. [00:23:50] Speaker 04: It's not just that one individual inconsistency that might have an explanation for it, which the immigration judge isn't required to accept. [00:23:57] Speaker 04: There's a host of inconsistencies here. [00:23:59] Speaker 04: So I think this case, and I'll admit, this is a tough case. [00:24:02] Speaker 04: I think it's a case where the irresistible force of adverse credibility hits the immovable object of the arrest warrant. [00:24:08] Speaker 04: And what do you do in that situation as a court? [00:24:11] Speaker 04: You lean into what the agency did, given the deferential standard of review. [00:24:14] Speaker 03: May I go back counsel to something you said early on? [00:24:18] Speaker 03: That is the role of the objective and subjective components. [00:24:21] Speaker 03: It almost sounds like what you're saying is the objective component is a cross-check against the subjective component, which tells me it's the subjective component that matters. [00:24:32] Speaker 03: The objective component is just the cross-check. [00:24:35] Speaker 03: Therefore, there shouldn't be a method by which the objective component trumps the subjective component. [00:24:42] Speaker 03: Is that essentially what you're saying? [00:24:43] Speaker 04: Correct, Your Honor. [00:24:44] Speaker 04: I think you've encapsulated very, very well there. [00:24:46] Speaker 04: Because the objective component is just asking whether your subjective belief is really true and reasonable. [00:24:51] Speaker 04: But the objective component is overridden when the subjective component is affected and infected by the adverse credibility term. [00:24:58] Speaker 02: But here, you have a warrant issued [00:25:03] Speaker 02: by the national police nationwide that says this individual is being arrested for being a homosexual. [00:25:11] Speaker 02: That's objective. [00:25:13] Speaker 02: It's real. [00:25:13] Speaker 02: It is. [00:25:14] Speaker 02: I gather the government concedes it's real, right? [00:25:16] Speaker 04: Well, that's one of the reasons why I sent it back to the board, because the board in the first round, if you recall, [00:25:22] Speaker 04: They said, well, he didn't say it was issued nationwide. [00:25:26] Speaker 04: And my view at that time before the remand was it really doesn't matter if they say or if he says whether it was issued. [00:25:32] Speaker 04: It's clear from the face of the arrest warrant that it had a distribution list nationwide. [00:25:36] Speaker 04: So that's why I personally had it sent back to the agency. [00:25:38] Speaker 04: You need to deal with it. [00:25:39] Speaker 02: I appreciate that you did that. [00:25:40] Speaker 02: But the reality is it was shown that it did have, right? [00:25:44] Speaker 02: That's correct, Your Honor. [00:25:45] Speaker 02: So there is a nationwide warrant for this man's arrest for being homosexual. [00:25:49] Speaker 02: We don't dispute that. [00:25:49] Speaker 02: That's objective. [00:25:50] Speaker 04: That's objective, but we have to separate asylum and cat. [00:25:54] Speaker 04: So asylum has the average credibility problem. [00:25:56] Speaker 04: Cat, as you know, if there's an average credibility problem, but the objective evidence, the country conditions compel reversal, then we have to deal with that. [00:26:03] Speaker 04: So the arrest warrant comes alive in the cat claim. [00:26:06] Speaker 04: But the board said, mere harassment and criminalization is not enough. [00:26:10] Speaker 04: If the court disagrees with that, you disagree with that. [00:26:12] Speaker 04: But the arrest warrant, excuse me, Your Honor. [00:26:14] Speaker 02: So it's the government's position that with respect to cat, he's toast. [00:26:20] Speaker 02: based on adverse credibility in adverse, I'm sorry, in asylum. [00:26:24] Speaker 02: Reversed, yes. [00:26:24] Speaker 02: In asylum. [00:26:27] Speaker 04: Kat, it's brought forward. [00:26:28] Speaker 04: You have full preliminary review with respect to the question on Kat. [00:26:32] Speaker 02: But in this case, if you've got somebody who is fearful, you have the initial interview and so on, but they're fearful that they're going to be arrested and beaten up or killed because they're homosexual, that doesn't qualify if you get this national arrest warrant. [00:26:46] Speaker 04: No, it doesn't because of the regulations say you have to show cat through specific intent to cause severe pain or mental suffering. [00:26:53] Speaker 02: And the board here said kind of that way, isn't it? [00:26:57] Speaker 04: Well, the board said criminalization harassment in this scenario isn't enough to demonstrate cat. [00:27:02] Speaker 02: His lover was killed. [00:27:05] Speaker 04: Indeed, his lover was killed. [00:27:06] Speaker 04: But each scenario in which he discusses his case, those were private individuals. [00:27:11] Speaker 04: And with respect to private individuals, you have to show government acquiescence. [00:27:14] Speaker 04: He shows no government interaction with him in any of these scenarios. [00:27:18] Speaker 02: That's a cat issue, right? [00:27:19] Speaker 02: Correct. [00:27:20] Speaker 02: So I'm getting back to asylum. [00:27:23] Speaker 02: And I'm just saying, you know, if he comes over the border and he says, boy, I don't want to go back because they're going to kill me because I'm homosexual, they'd say, well, you may have a legitimate fear here. [00:27:34] Speaker 02: And it would be further buttressed by the existence of the warrant. [00:27:38] Speaker 02: I admit that some of the timing was a little strange here. [00:27:41] Speaker 02: It wasn't all brought up at the same time. [00:27:43] Speaker 02: But that's what I'm struggling with is what do we do with this unusual case? [00:27:48] Speaker 02: I admit it's unusual. [00:27:49] Speaker 02: Absolutely. [00:27:50] Speaker 02: But you've got this warrant. [00:27:51] Speaker 02: And I don't see how that doesn't play into the objective element of asylum. [00:27:56] Speaker 04: And that's why I mentioned the irresistible force and the immovable object. [00:27:59] Speaker 04: And I think what you do in that scenario is you lean in what the agency did. [00:28:03] Speaker 04: And you have a standard of review that tells you you have to find that the record compels reversal of the agency. [00:28:08] Speaker 04: And the agency leaned into what I think the point that I'm making here is, sure, you have the arrest warrant. [00:28:14] Speaker 04: But why the prevarication? [00:28:16] Speaker 04: Why the lies? [00:28:17] Speaker 03: And we could send the signal that it's OK to lie as long as you've got some objective evidence. [00:28:22] Speaker 04: Correct. [00:28:23] Speaker 04: That's absolutely right, Your Honor. [00:28:25] Speaker 04: Agencies grant relief to individuals, not documents, and this individual is wrapped up in adverse credibility. [00:28:31] Speaker 04: If there's no further questions, we ask to deny the petition. [00:28:34] Speaker 04: Other questions? [00:28:35] Speaker 02: Thank you, Your Honor. [00:28:37] Speaker 02: Very well. [00:28:37] Speaker 02: So you're having a little rebuttal time, counsel. [00:28:42] Speaker 02: You see what you're up against. [00:28:44] Speaker 02: What do you think? [00:28:45] Speaker 01: Yes. [00:28:45] Speaker 01: I'll start by addressing some of the questions about the record that I'd said I'd bring back up on rebuttal. [00:28:51] Speaker 01: The first is that the argument about objective evidence being sufficient to establish eligibility for asylum was made before the BIA during the first round in 2020, and that's on the record page 161. [00:29:07] Speaker 01: And it states that even if the IJ discredited Mr. Mabatene's own testimony of past persecution, the arrest warrant explicitly invoking a sexual orientation combined with the extensive documentation of LGBT individuals' persecution justified a grant of asylum. [00:29:24] Speaker 01: The second point I'd like to note is that Bromfield was discussed in both the opening and reply briefs before this court, not just the reply, [00:29:34] Speaker 01: Third is that Al Harby was cited a number of times in our briefing. [00:29:39] Speaker 01: Your Honor mentioned the opening brief. [00:29:41] Speaker 01: It was also cited in the reply brief on page six. [00:29:46] Speaker 00: But as you know, it's not sufficient to make an argument for the first time on reply. [00:29:50] Speaker 00: I mean, it's not in your opening brief, this argument you're making now. [00:29:53] Speaker 00: So the government says something back, and then you come forward with a new argument. [00:29:57] Speaker 01: Your Honor, we believe it was made in our opening brief because we cited Al Harby. [00:30:02] Speaker 01: It wasn't a new case that we sprung on the government. [00:30:05] Speaker 00: Right, but not for that proposition. [00:30:07] Speaker 00: I mean, I went to your table of contents. [00:30:09] Speaker 00: I saw it's on one page. [00:30:10] Speaker 00: I wanted to see what you said about it, and it doesn't say anything about the subjective, subjective components. [00:30:15] Speaker 01: We did address the subjective and objective components, Your Honor, in stating that because it was so clear there was a likelihood [00:30:22] Speaker 01: he would reasonably have a subjective fear. [00:30:26] Speaker 01: And I'm almost out of time, and I just wanna highlight, we've been talking a lot about asylum and cat. [00:30:32] Speaker 01: There's a third claim here, and that's withholding of removal. [00:30:35] Speaker 01: Withholding of removal does not have a subjective component, as the Supreme Court found in INS v. Cardoza-Fonseca. [00:30:45] Speaker 01: And there, we're not talking about torture, we're just talking about persecution. [00:30:50] Speaker 01: And if there are no further questions, we'd urge the court to find him eligible or remand. [00:30:55] Speaker 02: Very good. [00:30:55] Speaker 02: Thank you both for your argument. [00:30:57] Speaker 02: We appreciate it very much. [00:30:58] Speaker 02: The case just argued is submitted.