[00:00:03] Speaker 01:
Sylvia Sparsa for the petitioner, Mr. Mejia Fuentes.

[00:00:07] Speaker 01:
Judge, the record compels the conclusion that the agency... Could you try to speak up a little, please?

[00:00:11] Speaker 01:
Yes, thank you.

[00:00:12] Speaker 04:
Closer to the microphone.

[00:00:13] Speaker 01:
Okay, sounds good.

[00:00:14] Speaker 01:
Thank you, Judge.

[00:00:15] Speaker 01:
The record compels the conclusion that the agency over relied on Mr. Mejia Fuentes' adverse determination to dismiss his cat claim.

[00:00:23] Speaker 01:
Nowhere does the IJ or the BIA decision address Mr. Mejia's cat claim under the correct standard.

[00:00:29] Speaker 01:
They only address his negative credibility, then conclude that he has not met his burden of proof.

[00:00:35] Speaker 01:
Under Camalthus, this is legal error, and this case should be remanded to apply the correct legal standard.

[00:00:40] Speaker 01:
The standards for Cat require the petitioner to demonstrate is it more likely than not that he would be tortured if he was removed to his proposed country of removal.

[00:00:49] Speaker 01:
And credible testimony, if it's credible, may be sufficient to meet that burden of proof.

[00:00:54] Speaker 01:
However, the agency must also assess all the relevant evidence of possibility of torture, and if he was even tortured.

[00:01:02] Speaker 04:
I want to tell you the three credibility areas that I'm most concerned about.

[00:01:07] Speaker 04:
I'm most concerned about his not remembering before the IJ that somebody put a gun to his head and told him he was going to die.

[00:01:16] Speaker 04:
I'm concerned about the medical report which even putting aside the questionable date says he was there for three days and he testified he was there for a week

[00:01:26] Speaker 04:
And then the third, Dr. Kirkland's affidavit, which said that the guy was in hiding for three years.

[00:01:34] Speaker 04:
And your client's testimony, he wasn't in hiding.

[00:01:36] Speaker 04:
He was around.

[00:01:37] Speaker 04:
Everybody knew where he was.

[00:01:38] Speaker 04:
So those are the three that I'm most concerned about, credibility-wise.

[00:01:42] Speaker 01:
All right.

[00:01:43] Speaker 01:
OK.

[00:01:43] Speaker 01:
And in regards to the first one, the reason for him, I'm sorry, a little nervous.

[00:01:53] Speaker 01:
Can you repeat the first one again?

[00:01:55] Speaker 04:
In his credible fear interview, he specifically said, knife, gun.

[00:02:00] Speaker 04:
They put a gun to my head and said, you're going to die.

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

[00:02:05] Speaker 04:
And in front of the IJ on several testimony opportunities, he said, knife, but he didn't remember whether it was a gun.

[00:02:15] Speaker 04:
The agency found that important

[00:02:18] Speaker 04:
And seems reasonable to me that somebody if they were supposedly threatened with a gun put it in next to their head said they're going to die that they would remember that correct judge So I'm just going to make it real easy.

[00:02:28] Speaker 01:
I'm going to I'm going to concede that this was This was an inconsistency right okay?

[00:02:35] Speaker 02:
Let's say you do that isn't this standard that we you have the burden of proof correct and the agency looks at the totality of the evidence and

[00:02:44] Speaker 02:
My colleague has pointed out three, at least from our perspective, very significant things that your client did or said that seem incredible.

[00:02:56] Speaker 02:
Isn't that enough to substantiate what the agency did here?

[00:03:02] Speaker 01:
Yes, under, okay, even if, even if he was found incredible, so even if there's substantial support to find a negative credibility determination, the problem here is that the agency, the immigration judge's decision or the Board of Immigration Appeals just washed over his cat claim.

[00:03:19] Speaker 01:
all they looked at.

[00:03:20] Speaker 02:
Wait a minute, that's a separate issue.

[00:03:22] Speaker 01:
That is a separate issue, but I mean, it's important to note, I agree, I would concede that with the border, with the border, he did say that there was a gun and a knife and when he testified on that one, that particular issue, I would say yes, I agree that there was an inconsistent statement.

[00:03:39] Speaker 02:
You concede that your client

[00:03:41] Speaker 02:
was not credible.

[00:03:42] Speaker 02:
Is that correct?

[00:03:43] Speaker 01:
Just on that particular issue.

[00:03:44] Speaker 01:
In terms of the medical record, he did say that he was in the hospital.

[00:03:47] Speaker 01:
The medical record said he was in the hospital for three days.

[00:03:49] Speaker 01:
And then he testified that he was in there for a week.

[00:03:51] Speaker 01:
He said he was getting treated for the stab wound on his right hand.

[00:03:55] Speaker 01:
And then he remained in the hospital because he was scared for trauma.

[00:03:58] Speaker 01:
That's what he said.

[00:03:59] Speaker 01:
It's not that inconsistent.

[00:04:00] Speaker 01:
I mean, a few days to a week.

[00:04:02] Speaker 04:
Council, medical records sworn to under oath

[00:04:06] Speaker 04:
And there was no evidence offered that they keep medical records differently in Guatemala.

[00:04:13] Speaker 04:
It said he was in the hospital three days.

[00:04:15] Speaker 04:
He said he was in the hospital seven days.

[00:04:17] Speaker 04:
Whatever he was there for, this certificate is contrary because it said he was discharged in three days, right?

[00:04:26] Speaker 01:
Yes Judge, but it was just a couple days difference, and I think under the trauma there is some case law that says that when you've suffered a traumatic event, such as an attempted rape, that this, that you know, a couple days... That's for the trier to assess.

[00:04:37] Speaker 03:
I mean, the standard is whether or not any fact finder would be compelled to conclude that it was wrong.

[00:04:46] Speaker 03:
If it's a judgment call, then the agency's judgment has to stand, and if they're weighing three and seven, we can't really overturn that, can we?

[00:04:53] Speaker 01:
No, Judge, I agree.

[00:04:54] Speaker 01:
I mean, I agree that the credibility determination, the adverse credibility determination is a little bit more difficult to defend.

[00:05:01] Speaker 01:
But I still think that even despite that, the agency didn't do its duty in adjudicating the cat claim.

[00:05:07] Speaker 03:
I'm not sure that that's correct, because it walks through all the various conflicts in the testimony.

[00:05:14] Speaker 03:
And then it has a concluding paragraph based on the inconsistencies cited by the immigration judge.

[00:05:19] Speaker 03:
We discern no clear error in the adverse credibility finding.

[00:05:23] Speaker 03:
So it's finished with credibility.

[00:05:24] Speaker 03:
But then it goes on and says, finally, we note the respondent also testified that other similarly situated family members, which include his mother, father, brother, and sister, remain unharmed.

[00:05:35] Speaker 03:
in Guatemala.

[00:05:37] Speaker 03:
So that has nothing to do with credibility.

[00:05:39] Speaker 03:
Now the agency is saying, even apart from credibility, they're pointing to facts that suggest that the likelihood of future harm is not that great because, look, the family members are there and nothing is happening to them.

[00:05:52] Speaker 03:
So that seems to me like the agency is going on and saying, once we set aside the non-credible testimony,

[00:06:00] Speaker 03:
Has he carried the burden and the answer is no.

[00:06:03] Speaker 03:
Why am I wrong in reading it that way?

[00:06:05] Speaker 01:
Well, Judge, I disagree because that citation is to matter of AEM and that board decision is only related to an asylum claim and that's the problem is that they didn't go through the CAT standard.

[00:06:16] Speaker 01:
They normally in an asylum claim or withholding claim you look to see first is he credible.

[00:06:22] Speaker 01:
If he's not credible it's over and that's what they did here.

[00:06:24] Speaker 03:
No, that's not true for asylum either.

[00:06:27] Speaker 03:
There are cases where someone can be found to be credible.

[00:06:31] Speaker 03:
did not be credible, but nonetheless other evidence would suggest that they do in fact present a danger.

[00:06:37] Speaker 03:
It's not common, but and we've said that you have to look at whether the other evidence.

[00:06:42] Speaker 03:
But the inquiry is similar in terms of assessing likelihood of future harms and the fact that other people who were similarly situated to you are not confronting harm suggests maybe you're not gonna, it's not more likely than not you'll face torture.

[00:06:58] Speaker 04:
but the agency decision doesn't mention any of the other documents as it relates to... Do we have any rule that says that we should reverse an agency decision because of a failure to mention a specific document if the agency says what Judge Collins quoted and then at the end in the BIA, as the respondent did not meet his burden of proof overall, we agree with the immigration judge's decision to deny the CAT request.

[00:07:27] Speaker 04:
Is there any case that says

[00:07:28] Speaker 04:
The failure to specifically say call out the country report is fatal in a case where somebody is found not credible, found they don't meet their burden of proof overall, and the agency says family members have lived there without any torture or harm?

[00:07:45] Speaker 01:
Well, the regulations require that the agency review all evidence of torture.

[00:07:50] Speaker 01:
So they have to review all the evidence.

[00:07:52] Speaker 01:
They didn't look at the country condition report.

[00:07:54] Speaker 04:
But my question was, is there a case that says,

[00:07:58] Speaker 04:
We need to grant the petition because the agency failed to mention particular evidence in its decision.

[00:08:05] Speaker 01:
Yes, Judge.

[00:08:06] Speaker 01:
I think Cole would support that finding in Aguilar Ramos versus Holder.

[00:08:11] Speaker 01:
There, the IJ or the BI did not consider the country condition report.

[00:08:15] Speaker 01:
And that was a reason to remand the case.

[00:08:17] Speaker 02:
But that was for a situation where it didn't consider it.

[00:08:20] Speaker 02:
What my colleague has pointed out here is that many times a petitioner will bring a series of documents or other evidence

[00:08:28] Speaker 02:
And he's asking, as indeed are we all, is there any case that says that considering a cat claim that the IJ or in this case the BIA has to mention each and every one of the documents or arguments presented?

[00:08:43] Speaker 02:
There is no such case, is there?

[00:08:45] Speaker 01:
There's no such case that mentions, but they have to consider all the documents.

[00:08:48] Speaker 01:
And they didn't consider the documents.

[00:08:49] Speaker 02:
Don't you have to show they didn't consider it?

[00:08:52] Speaker 01:
He didn't.

[00:08:53] Speaker 01:
They don't mention it in the IJ decision or the agency.

[00:08:56] Speaker 02:
You're kind of going around in circles.

[00:08:58] Speaker 02:
either they have to mention it, and there's no case that says they do, or they don't have to.

[00:09:04] Speaker 02:
It appears here that they said, you know, considering all the evidence, we rule against your petitioner here.

[00:09:12] Speaker 02:
But they don't have to name them all.

[00:09:14] Speaker 01:
I do seem to be saying they have to name them all.

[00:09:15] Speaker 01:
Right, but they can't rely solely, Judge, but they can't rely solely on the adverse credibility determination.

[00:09:19] Speaker 01:
Can I reserve the one minute I have to?

[00:09:21] Speaker 02:
Oh, yes, you can.

[00:09:22] Speaker 02:
Well, you can reserve what you got.

[00:09:23] Speaker 01:
Okay.

[00:09:24] Speaker 01:
Thank you, Judge.

[00:09:27] Speaker 02:
Very well, Mr. Hubanks, please.

[00:09:39] Speaker 00:
Thank you, Your Honor.

[00:09:40] Speaker 00:
May it please the Court, Zachary Hubanks for the Respondent of the United States Attorney General.

[00:09:44] Speaker 00:
The petition for review should be denied.

[00:09:46] Speaker 00:
Nothing in the record compels reversal of the agency's adverse credibility finding, and consequently nothing in the record compels reversal of the agency's ultimate determination to deny petitioners requests for torture convention protection.

[00:09:58] Speaker 00:
Here the agency properly relied on the Real ID Act standards, specifically petitioners inconsistent testimony regarding the key, excuse me, regarding the timing and the chronology of the key events that led him to leave Guatemala in the first instance.

[00:10:12] Speaker 00:
his non-responsive testimony to basic cross-examination, as well as inconsistency between his testimony and the evidence he submitted to support and bolster his claim.

[00:10:22] Speaker 00:
Looking through the inconsistencies, when petitioners asked simply when he left Guatemala, he provided three different answers.

[00:10:29] Speaker 00:
He starts by saying October, changes it to August.

[00:10:32] Speaker 00:
Eventually he said September, which I believe is the timeline he settled on for this court.

[00:10:38] Speaker 00:
Likewise, petitioner testifies that he was attacked by police officers and that he was stabbed in August of 2016.

[00:10:42] Speaker 00:
And this is what he told the asylum officer within about six weeks of entering the United States.

[00:10:49] Speaker 00:
However, when he's confronted with his own evidence suggesting that he would have been attacked in September, he immediately backtracks and tries to backfill his testimony.

[00:10:58] Speaker 04:
But didn't he offer?

[00:10:59] Speaker 04:
We've had cases that say just mixing up dates can be a trivial inconsistency, right?

[00:11:08] Speaker 04:
There are certainly cases that say that.

[00:11:10] Speaker 04:
And the petitioner offered what seemed to me at least a credible-ish explanation that when he sorted it out all in his head, he can tie it all back to the final day.

[00:11:22] Speaker 04:
I think he said it was a Sunday for passing his exams.

[00:11:26] Speaker 04:
And when he's rethinking about it, tying the events to finally being done with school, that's how he came up with the final timeline he gave.

[00:11:36] Speaker 04:
Isn't that?

[00:11:37] Speaker 04:
an explanation which should lead us to move on to other types of inconsistencies.

[00:11:44] Speaker 00:
I can certainly move on, but I think that is the type of explanation that it goes to the fact finder in this first instance to decide whether or not that does explain the apparent discrepancy in the record.

[00:11:55] Speaker 00:
And looking at what the agency decision here, it is evaluated in the totality of the circumstances.

[00:12:00] Speaker 00:
This wasn't a silver bullet.

[00:12:02] Speaker 00:
Oh, just because Petitioner mixed up these dates initially, that's why we're going to find him not credible.

[00:12:07] Speaker 02:
It matters for the totality the circumstances and whether or not that explanation carries water So under our case law If you have five points of evidence two of them are kind of weak, but three are the agency finds them significant under the totality of the evidence circumstances we shouldn't be bothered by the fact that some of the inconsistencies are rather minor and

[00:12:35] Speaker 02:
But as long as there is substantial evidence as to, in this case, like the gun to the head concept, that's enough under the totality of the circumstances.

[00:12:45] Speaker 02:
Is that correct?

[00:12:47] Speaker 00:
That is correct, specifically in this case, Your Honor.

[00:12:50] Speaker 00:
Again, looking at totality of circumstances, this court may choose to say, well, excuse me, this court's role is not to look through each inconsistency one by one and nitpick and decide whether each inconsistency

[00:13:01] Speaker 00:
would support the adverse really finding it's examining in the totality of the circumstances.

[00:13:05] Speaker 00:
So it is a requirement that the agency about a thousand here petitioner has to show that the record compels that the agency's conclusion was fall flawed and that it should be reversed on these credibility grounds.

[00:13:18] Speaker 00:
Perhaps the most striking other than the gun to the head example is petitioner initially testifies that he was first attacked by the police officers and that's where he was stabbed.

[00:13:27] Speaker 00:
And then he testifies again that the next attack occurred the following Sunday and involved Edwin in the car.

[00:13:34] Speaker 00:
However, later he states that after he was stabbed, the only interaction he had with Edwin was a simple phone call.

[00:13:41] Speaker 00:
And when confronted with this inconsistency, petitioner simply denied making his previous testimony, and then he denied ever being asked for the order of the attacks in the first instance.

[00:13:53] Speaker 03:
Moreover... Is that conflict you just referenced?

[00:13:57] Speaker 03:
In the BIA decision or just in the IJ decision?

[00:14:02] Speaker 00:
It's principally just in the immigration judge's decision.

[00:14:04] Speaker 00:
I would just note the way the board treated the immigration judge's decision, they didn't disavow any of the immigration.

[00:14:11] Speaker 04:
They said for example, right?

[00:14:14] Speaker 00:
Yes.

[00:14:14] Speaker 00:
The government's position is this should be read as one agency decision.

[00:14:17] Speaker 00:
The immigration judge's decision is informing the board's decision and

[00:14:22] Speaker 03:
Again, it should be read as one agency decision because the board didn't disavow this is a case where the board Narrowed down only these ones and not the ones were not mentioning because they sometimes do that right your honor That's what I'm trying to differentiate.

[00:14:35] Speaker 00:
It's not a case where the board said Okay, this immigration judge's finding was clearly erroneous, but we're going to uphold anyway here the board Upheld the entirety of the immigration judge's decision and then just listed out certain examples that it thought were important in its review without disavowing or

[00:14:52] Speaker 00:
Rejecting any of the immigration judges reasoning I Do just want to address petitioners General claim about the torture convention more broadly if the this court has no further questions on credibility

[00:15:09] Speaker 00:
Here without petitioners credibility, there's simply no other claim that would compel reversal.

[00:15:15] Speaker 00:
I'm looking at Camalthus.

[00:15:16] Speaker 00:
The issue in Camalthus was although the agency properly discounted that individual's testimony, there was this independent torture conviction claim

[00:15:26] Speaker 00:
Based off significant evidence of torture of Tamil males in Sri Lanka and petitioner was a Tamil male here petitioner doesn't point to any specific evidence aside from the testimony which the agency reasonably found was incredible to compel a finding that's more likely than not that he will be tortured by or with the consent or I remember his uncle was murdered and

[00:15:51] Speaker 00:
His uncle was murdered.

[00:15:52] Speaker 00:
We have the death certificate.

[00:15:54] Speaker 00:
We have the uncle's daughter wrote an affidavit.

[00:15:58] Speaker 04:
So that's certainly not nothing, right?

[00:16:01] Speaker 00:
It's not anything that would compel reversal, Your Honor.

[00:16:03] Speaker 00:
It's something that petitioner's family member was murdered.

[00:16:07] Speaker 00:
We have his daughter's statement suggesting that he was murdered, presumably involving with some racketeering or drug dealing in Guatemala.

[00:16:15] Speaker 00:
But that's realistically all we have that would

[00:16:18] Speaker 00:
It doesn't necessarily tie into, again, that petitioner can meet his overall burden to show that he will more likely than not be tortured by or with the consent or acquiescence of a public official.

[00:16:29] Speaker 00:
Having an uncle murdered, excuse me, it doesn't cross that threshold.

[00:16:34] Speaker 04:
I mean, it sounds like, though, your friend's point is the agency didn't specifically talk about all this evidence that we submitted aside from credibility.

[00:16:47] Speaker 04:
I mean, sort of as a hypothetical, which isn't the case here.

[00:16:51] Speaker 04:
If the agency had said, we only looked at credibility.

[00:16:55] Speaker 04:
He's not credible.

[00:16:56] Speaker 04:
Therefore, under the law, he can't get cat relief.

[00:16:59] Speaker 04:
I mean, that would be problematic, right?

[00:17:02] Speaker 00:
Well, Your Honor, to use your specific phrasing, if they said as a matter of law, that would certainly be problematic.

[00:17:07] Speaker 00:
Yes, Your Honor.

[00:17:08] Speaker 00:
And then again, it would just very much depend on each individual case will be different with what evidence is submitted.

[00:17:13] Speaker 00:
Because again, just looking at this case, we have Guatemalan country reports.

[00:17:16] Speaker 00:
And then several pieces of evidence that in significant ways contradict his own testimony.

[00:17:23] Speaker 00:
He wants to rely on this medical report.

[00:17:25] Speaker 00:
As your honors noted, it differs with his own testimony on how long he was treated.

[00:17:29] Speaker 00:
His expert report, his testimony contradicts his expert report on whether or not Edwin fled or hid after the arrest warrant was issued.

[00:17:38] Speaker 00:
And moreover, the expert report states that these instances

[00:17:43] Speaker 00:
the case.

[00:17:44] Speaker 00:
I think that's the case.

[00:17:45] Speaker 00:
I think that's the case.

[00:17:47] Speaker 00:
I think that's the case.

[00:17:49] Speaker 00:
I think that's the case.

[00:17:52] Speaker 00:
I think that's the case.

[00:17:53] Speaker 00:
I think that's the case.

[00:17:56] Speaker 00:
I think that's the case.

[00:17:59] Speaker 00:
I think that's the case.

[00:18:01] Speaker 00:
I think that's the case.

[00:18:04] Speaker 00:
I think that's the case.

[00:18:07] Speaker 00:
I think that's the case.

[00:18:09] Speaker 00:
I think that's the case.

[00:18:11] Speaker 00:
I think that's the case.

[00:18:12] Speaker 00:
by or with the consent or acquiescence of a public official, Your Honors.

[00:18:20] Speaker 00:
If there's no further questions, the government will simply state.

[00:18:22] Speaker 02:
I think not.

[00:18:24] Speaker 00:
I thank Your Honors.

[00:18:25] Speaker 00:
The government will request that the petition for review be denied for the reasons stated here in our brief.

[00:18:30] Speaker 00:
Thank you, Your Honors.

[00:18:31] Speaker 02:
Very well.

[00:18:31] Speaker 02:
Thank you.

[00:18:33] Speaker 02:
Ms.

[00:18:33] Speaker 02:
Esparza, you've got a little bit of time left.

[00:18:36] Speaker 01:
Thank you, Judge.

[00:18:37] Speaker 01:
Yes, I would just like to

[00:18:39] Speaker 01:
Repeat that even if it is found that petitioner was not credible, an adverse credibility determination does not by itself defeat a cat claim.

[00:18:47] Speaker 01:
And here the agency did not address the cat claim the way it was supposed to by addressing all of the evidence, the country conditions, even decide or make a finding if he was tortured.

[00:18:56] Speaker 01:
They didn't even address that issue.

[00:18:58] Speaker 01:
They just relied on his negative credibility determinations that he has admit his burden.

[00:19:02] Speaker 02:
When you've said that several times, the record seems to indicate to the contrary.

[00:19:06] Speaker 02:
Do you have anything you want to

[00:19:08] Speaker 02:
bring to our attention other than the credibility issue that you claim was the sum and substance of the BIA's decision on CAT.

[00:19:16] Speaker 01:
Yes, Judge.

[00:19:17] Speaker 01:
Also the comment that the government indicated that there was no objective statement, this is also incorrect because there is a statement by the respondents

[00:19:28] Speaker 01:
cousin, and that was an eyewitness account of her seeing her father be killed.

[00:19:32] Speaker 01:
And there's also a sworn arrest warrant.

[00:19:35] Speaker 01:
That's also there was no dispute about whether it was legitimate or not legitimate.

[00:19:39] Speaker 01:
So there are other independent documents in the record that show that the court, the agency, that immigration judge, or the BIA did not review.

[00:19:48] Speaker 02:
Your time is up.

[00:19:49] Speaker 02:
Let me ask my colleague whether either has additional questions.

[00:19:52] Speaker 02:
I think not.

[00:19:52] Speaker 02:
Thank you very much, Mrs. Sparsa.

[00:19:54] Speaker 02:
The case just argued.

[00:19:56] Speaker 02:
Fuentes versus Garland is submitted.