[00:00:05] Speaker 01:
All right, whenever you're ready.

[00:00:09] Speaker 03:
My name is Peter DeBrun, and I represent the petitioners in this case.

[00:00:17] Speaker 03:
The petitioners are natives and citizens of El Salvador.

[00:00:22] Speaker 03:
They honored about May 30, 2016.

[00:00:26] Speaker 03:
They were extorted by the MS gang, MS-18 gang.

[00:00:31] Speaker 03:
for $3,000.

[00:00:33] Speaker 03:
The gang members told Petitioner that the money would be paid or they would die.

[00:00:39] Speaker 03:
Thereafter, in June, the gang members

[00:00:46] Speaker 03:
check to see if they had the money and the petitioners told the gang they had no money and they weren't going to be able to get it.

[00:00:53] Speaker 03:
The gang members threatened to kill them if they didn't come up with the money.

[00:00:58] Speaker 03:
The petitioners who went to the United States illegally were apprehended and filed an asylum withholding removal convention against torture Article 3.

[00:01:12] Speaker 03:
The immigration judge denies it.

[00:01:17] Speaker 01:
Your time is going to run short very soon.

[00:01:19] Speaker 01:
Let me ask you this.

[00:01:20] Speaker 01:
Don't you have a nexus problem?

[00:01:22] Speaker 01:
So you do have a nexus problem, right?

[00:01:26] Speaker 01:
Is there any indication that the robber in this case was motivated by anything other than economic?

[00:01:35] Speaker 03:
Yes, their gender.

[00:01:37] Speaker 03:
In Central America, the gangs are not just gangs, they're insurgents and they're trying to take over the country and they get a list of victims.

[00:01:47] Speaker 03:
One of them that make the targets easier is that they're female.

[00:01:52] Speaker 03:
They don't fight back and they're weaker according to their standards.

[00:01:57] Speaker 01:
But didn't they also threaten the son?

[00:02:01] Speaker 03:
Yeah, they did.

[00:02:02] Speaker 03:
But that was kind of like an afterthought.

[00:02:06] Speaker 03:
I mean, the family runs together and the gangs target to get a victim list and they choose the easy targets.

[00:02:18] Speaker 04:
You know, I have to say I'm skeptical of both the asylum and the withholding because of the Nexus issue.

[00:02:27] Speaker 04:
Can you address the cat issue, that is to say where we get death threats

[00:02:33] Speaker 04:
uh... and we have death threats uh... that were carried out against the cousin we have death threats that were carried out against neighbors does that arise sufficiently to the level to amount to a cat violation well yes if you want to classify crimes by degree i mean uh... the court seemed to see to be saying that there are certain crimes and criminals that that don't

[00:03:03] Speaker 03:
amount to much compared to others.

[00:03:06] Speaker 03:
And they don't make it really clear what that distinction is.

[00:03:16] Speaker 00:
Do we know from the record, the petitioner's cousin and neighbor and son, why they were killed by gang members?

[00:03:24] Speaker 03:
No, not really, Your Honor.

[00:03:26] Speaker 03:
That was never brought out.

[00:03:28] Speaker 04:
You know, I thought there was testimony that they were threatened.

[00:03:31] Speaker 04:
They were told, give money or you'll be killed, and then they were killed.

[00:03:35] Speaker 04:
Isn't that in the record?

[00:03:38] Speaker 03:
I don't remember, Your Honor, but possibly it was.

[00:03:47] Speaker 01:
Anything further, counsel?

[00:03:48] Speaker 01:
Otherwise, you can come back on rebuttal.

[00:03:51] Speaker 01:
Okay, I'll come back on rebuttal.

[00:03:53] Speaker 01:
All right.

[00:03:54] Speaker 01:
Let's hear from the government.

[00:04:08] Speaker 02:
Good morning, Your Honors.

[00:04:10] Speaker 02:
May it please the court?

[00:04:11] Speaker 02:
Alana Yun for the Attorney General.

[00:04:13] Speaker 02:
Unless the court has, unless the court would like the government to address a particular issue, I'll start by responding to the current points that counsel made.

[00:04:22] Speaker 01:
We're interested in the cat claim, but you can pull the microphones a little bit closer so we can hear you better.

[00:04:27] Speaker 01:
Is that better?

[00:04:28] Speaker 01:
Is that better?

[00:04:29] Speaker 01:
Yes.

[00:04:30] Speaker 01:
Both of them are working, so if you pull them very closer, that will help your voice project.

[00:04:35] Speaker 02:
Is that better, Your Honor?

[00:04:36] Speaker 02:
Okay.

[00:04:36] Speaker 02:
About the cat issue, Your Honor, counsel is correct that there is no information in the record about why the cousin, why the neighbor, and why the gangs targeted those individuals.

[00:04:52] Speaker 02:
We actually do not know.

[00:04:54] Speaker 02:
That record does not reveal that it was because of extortion.

[00:04:57] Speaker 02:
We don't have that information.

[00:04:59] Speaker 04:
The best information... The record indicate that she testifies that her cousin ignored a death threat and then was killed.

[00:05:06] Speaker 04:
That the neighbor and son ignored death threats and were then killed.

[00:05:10] Speaker 04:
That's Isn't their testimony to that effect?

[00:05:14] Speaker 02:
No, your honor.

[00:05:14] Speaker 02:
The best that we have is a her Statement if you're talking about a statement.

[00:05:20] Speaker 04:
I'm sorry.

[00:05:20] Speaker 04:
Yes, there's testimony.

[00:05:22] Speaker 04:
Yeah They are 154

[00:05:30] Speaker 02:
Yes, the cousin was murdered because he ignored the death threats.

[00:05:32] Speaker 04:
Yes.

[00:05:33] Speaker 02:
My cousin once said the gang members were not going to harm him because the gangs was from his locality.

[00:05:38] Speaker 04:
The point the government is making is we don't know whether that was because of the extortion, but going to the cat issue... Well, the question is, but it's evidence then that death threats, if ignored, can result in death, and it happened to the cousin.

[00:05:52] Speaker 02:
Yes, Your Honor.

[00:05:53] Speaker 02:
Yes.

[00:05:53] Speaker 04:
And with the same with respect to the neighbor and the son.

[00:05:57] Speaker 02:
Yes, Your Honor.

[00:05:57] Speaker 02:
The writer is a daughter, Your Honor.

[00:06:03] Speaker 02:
But the issue when it comes to CAT is whether this petitioner, these petitioners establishes that they are more likely than not would suffer torture by a public official with the consent or acquiescence of a public official, Your Honor.

[00:06:18] Speaker 02:
The issue here is

[00:06:20] Speaker 02:
The immigration judge found that the petitioner's past experiences did not rise to the level of torture.

[00:06:27] Speaker 02:
Yes, she did experience death threats, but death threats, we do have law in the circuit that indicates that death threats do equal persecution.

[00:06:35] Speaker 02:
But torture is an extreme conduct.

[00:06:39] Speaker 04:
So is it not true that if the death threat is sufficiently, I don't know, I want to say believable, that that cannot be a cat claim?

[00:06:50] Speaker 02:
It could be a cat claim, but there's more than that to the cat claim.

[00:06:55] Speaker 02:
We have the issue of the death threats.

[00:06:58] Speaker 02:
If this court agrees that because of the death threats, petitioner has established that she more likely than not would be tortured, there's the other prong as well, the state action

[00:07:09] Speaker 02:
problems, Your Honor.

[00:07:10] Speaker 04:
I understand that, but I'm after the degree of threat at the moment, but it seems to me that in a certain circumstance, if the threat of death is sufficiently sort of real, believable, and so on, that that can be a CAD violation.

[00:07:22] Speaker 04:
That can be, Your Honor.

[00:07:24] Speaker 04:
So one of my problems is,

[00:07:26] Speaker 04:
that I'm looking at the IJ's decision.

[00:07:30] Speaker 04:
The IJ doesn't mention the death threats and then the death to the cousin, the death threat to the neighbor and child.

[00:07:38] Speaker 04:
The only thing the IJ says is, respondent's sister lives in El Salvador, has not been harmed, although her husband has recently been told he needs to pay rent to gang members.

[00:07:47] Speaker 04:
So in other words, we don't, the IJ doesn't even talk about the evidence in favor of Cat, and then when we get to the BIA, the BIA just says it's all speculative.

[00:08:00] Speaker 04:
So there's not even an acknowledgement of the death of the cousin and of the death of the neighbor and child after death threats are made.

[00:08:13] Speaker 04:
I'd like to hear from the agency once they recognize what's in the record in front of them.

[00:08:18] Speaker 02:
Well, Your Honor, in this case, the I.J.

[00:08:20] Speaker 02:
did recognize that the I.J.

[00:08:22] Speaker 02:
was performing an individualized assessment of the claim the petitioner provided.

[00:08:28] Speaker 04:
Well, but the I.J.

[00:08:29] Speaker 04:
doesn't mention that the cousin was killed, doesn't mention that the neighbor was killed.

[00:08:34] Speaker 04:
The I.J.

[00:08:35] Speaker 04:
only says, your sister's still alive and well.

[00:08:39] Speaker 02:
Yes, Your Honor, the IJ only mentions in, only says, only does not explicitly say those things in those pages, pages 43 and 44, but that didn't mean that the IJ didn't consider it.

[00:08:53] Speaker 04:
You're saying the IJ considered it even though the IJ didn't mention it?

[00:08:56] Speaker 02:
I'm saying the IJ considered all the evidence in the record because he indicated that he considered all evidence in the record, and yes, it

[00:09:03] Speaker 02:
The IK could have said, preferably the IJ could have said something about the cousin or the child or the neighbor, but the IJ did consider this evidence in the record.

[00:09:14] Speaker 04:
You know, typically when we've got something that's very specific like this, we require it actually to be mentioned so that we know that they have considered it.

[00:09:22] Speaker 02:
Yes, Your Honor.

[00:09:24] Speaker 02:
The I.J.

[00:09:25] Speaker 02:
in this case looked at the evidence that was provided for a petitioner, and that's... But the only thing the I.J.

[00:09:31] Speaker 04:
says is, well, your sister's alive and well, but of course the sister never received a death threat.

[00:09:36] Speaker 02:
No, Your Honor, but the I.J.

[00:09:38] Speaker 02:
did consider that petitioner's death threat did rise to the level of persecution, but there was no other evidence.

[00:09:44] Speaker 02:
The petitioner before this court doesn't point to any other evidence that compels reversal

[00:09:49] Speaker 04:
of the IJ's determination that she didn't establish- The question is, how real is the threat?

[00:09:55] Speaker 04:
I mean, if it's an idle threat, of course, it doesn't count at all.

[00:09:58] Speaker 04:
But if it's a real threat, like, hey, I really might get killed, I think it's relevant that my cousin was killed after a death threat and Chernoff was carried out, my neighbor was killed after a death threat, Chernoff was carried out, and there's not a hint of that in either the IJ's decision or the BIA decision.

[00:10:17] Speaker 04:
They don't even recognize, at least in terms of what they write, that that's in the record in front of them.

[00:10:23] Speaker 02:
Yes, Your Honor, but that's because there's no other information about those other death threats.

[00:10:29] Speaker 02:
The record doesn't even provide whether they were by the same gang members.

[00:10:33] Speaker 02:
We have no other information about why those individuals received those death threats.

[00:10:38] Speaker 02:
What we have here is the death threat to a petitioner if she did not pay, if she did not give the money.

[00:10:45] Speaker 04:
And the IJ property looked at the particularized evidence to this petitioner to determine whether she would more likely than not.

[00:11:00] Speaker 04:
If you don't pay, we'll kill you showing a gun.

[00:11:03] Speaker 04:
Yes, Your Honor.

[00:11:04] Speaker 04:
That's our evidence, yeah, yeah.

[00:11:05] Speaker 02:
Yes.

[00:11:06] Speaker 02:
And then if Your Honor disagrees with the torture determination, there is that independent state action determination that is dispositive of a petitioner's cat claim.

[00:11:15] Speaker 02:
Here we have the information where the petitioner did not

[00:11:20] Speaker 02:
report to the authority to show any awareness or any indication that the prior to this activity, the police were aware and could not provide, um, could consent to.

[00:11:32] Speaker 01:
There was evidence that, um, that the police was unresponsive, right?

[00:11:36] Speaker 01:
Non-responsive.

[00:11:37] Speaker 02:
There was, there is from her statements saying that they had called the police in terms of a robbery.

[00:11:43] Speaker 02:
and the police didn't come, but we have no other information about that incident.

[00:11:48] Speaker 01:
I think what's really troubling about the cat claim is that both the IJ and the BIA just handled the claim in a very conclusory fashion, basically citing to the standard country conditions without engaging in what would have been her best evidence.

[00:12:04] Speaker 01:
They neither, they didn't engage in anyone, neither rejected it nor accepted and analyzed in any way, so it's hard to know

[00:12:12] Speaker 01:
whether the IJ and the BIA really had they engaged, they could have defended their decision, but there's just a total absence of acknowledgement that she had this evidence in the record.

[00:12:26] Speaker 02:
May I respond, Your Honor?

[00:12:27] Speaker 02:
Please.

[00:12:28] Speaker 02:
The board and the immigration judge did assess the evidence that was provided by the petitioner.

[00:12:34] Speaker 02:
She asserted that she didn't contact the police.

[00:12:38] Speaker 02:
They looked at whether the police, whether the government could respond to, would respond to her if she had responded.

[00:12:45] Speaker 02:
That was part of the CAT state action determination.

[00:12:47] Speaker 01:
There wasn't a factual analysis.

[00:12:49] Speaker 01:
When they discussed the CAT claim, they didn't reference the facts and the evidence in the record.

[00:12:53] Speaker 01:
I don't know what they thought of the evidence because they didn't engage or discuss that in any way.

[00:12:59] Speaker 02:
They discussed the country condition evidence that was available, Your Honor, and indicated that Salvadorian law does prohibit torture and government entities are in charge of investigating complaints involving torture.

[00:13:10] Speaker 02:
Moreover, similarly, looking at the government-unable-unwilling part, they also considered the country condition evidence and determined that police and security forces... Well, here's what the BIA writes with respect to government reaction.

[00:13:26] Speaker 04:
Moreover,

[00:13:27] Speaker 04:
Although the respondent argues that country conditions evidence indicates the Salvadoran government does not enforce its laws, she has not presented sufficient particularized evidence to show any state actor would be willfully blind or feared torture.

[00:13:40] Speaker 04:
Well, that's the whole problem.

[00:13:42] Speaker 04:
There's no particularized evidence that the BIA is even considering.

[00:13:46] Speaker 04:
She did present particularized evidence as to what happened to her, and the BIA doesn't even recognize that evidence.

[00:13:53] Speaker 04:
It doesn't talk about it at all.

[00:13:56] Speaker 04:
To the extent the IJ talks about it, the IJ only says, your sister's still alive and well, even though the sister never received a death threat.

[00:14:06] Speaker 02:
Yes, Your Honor, but the scope of review before this court is the board's decision to the extent it relies on the reasoning in the IJ's decision.

[00:14:14] Speaker 04:
There is none in the IJ's decision with respect to the actual evidence of the killing of the cousin and the killing of the neighbor and child.

[00:14:22] Speaker 02:
But the immigration looked at the evidence presented about this petitioner and the country condition evidence that she presented before

[00:14:29] Speaker 02:
the immigration judge and determined that El Salvador, she didn't show that the El Salvadoran government would consent in or acquiesce in her torture.

[00:14:36] Speaker 02:
There is no individualized particular evidence of state action.

[00:14:43] Speaker 01:
All right.

[00:14:43] Speaker 01:
Thank you, counsel.

[00:14:51] Speaker 03:
One point, Your Honor.

[00:14:55] Speaker 03:
Petitioners testified that they didn't report the crimes, the threats to the police because they didn't trust the police.

[00:15:04] Speaker 03:
They thought that the police were in cahoots with the persecutors and the gang actually threatened them, told them, don't snitch or don't tell the police or we'll carry through with our threats.

[00:15:23] Speaker 01:
All right.

[00:15:24] Speaker 01:
Anything further, Council?

[00:15:26] Speaker 03:
No.

[00:15:28] Speaker 01:
Thank you, Mr. Brun.

[00:15:28] Speaker 01:
Thank you, Ms.

[00:15:29] Speaker 01:
DeJong.

[00:15:30] Speaker 01:
Thank you both for their argument today.

[00:15:31] Speaker 01:
The matter is submitted.

[00:15:33] Speaker 03:
Thank you.