[00:00:06] Speaker 01:
I appear for the petitioners in the Nadelic and Lapidat petitions for review, and I would like to reserve three minutes for rebuttal.

[00:00:17] Speaker 01:
Very well.

[00:00:20] Speaker 00:
So, since you want to do three minutes for rebuttal, let's get right into this.

[00:00:25] Speaker 00:
I understand that in, and you tell me, Nadelic

[00:00:35] Speaker 00:
I'm just this, I know Yahoo and I don't know how to say their names.

[00:00:38] Speaker 00:
So, Nadelica, it's my understanding you didn't raise a cat claim to the BIA, correct?

[00:00:46] Speaker 00:
And therefore there, it's abandoned here?

[00:00:49] Speaker 00:
That's correct.

[00:00:50] Speaker 00:
It's abandoned.

[00:00:50] Speaker 00:
And I also understand that as to Nadelica's claim and past persecution, there's nothing in the opening brief.

[00:01:00] Speaker 00:
So that's waived.

[00:01:04] Speaker 00:
We're really then talking about cellaroo.

[00:01:43] Speaker 03:
Mr. Selleroot, did he, is it my understanding that he, when he was about 11 years old, saw his witness, his mother, being beaten in front of him?

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

[00:02:00] Speaker 03:
Yes.

[00:02:01] Speaker ?:
Okay.

[00:02:02] Speaker 03:
And that was so devastating to him at that time, is that correct?

[00:02:05] Speaker 00:
That's correct.

[00:02:07] Speaker 00:
If that was, if that, excuse me, I don't mean to take away from

[00:02:31] Speaker 00:
only place we find that event is in the declaration.

[00:03:19] Speaker 00:
factor for either the incident in 1996 or 2000 before the BIA.

[00:03:28] Speaker 00:
I'm not sure that came up before the BIA.

[00:03:30] Speaker 00:
It wasn't mentioned regarding the 2000 incident.

[00:03:34] Speaker 00:
It was only stated the age regarding the 95 incident, but not argued that the IJ failed to consider the perception as a child.

[00:03:44] Speaker 00:
So the BIA didn't have that really focused in

[00:03:56] Speaker 00:
And so if they don't even raise it or really talk about it, how can I really focus in on that it is?

[00:04:02] Speaker 00:
And I have to.

[00:04:26] Speaker 03:
Let's just assume that putting that information in your petition

[00:04:57] Speaker 01:
testimony.

[00:04:59] Speaker 00:
And all of the affidavits and everything that was in front of her, right?

[00:05:03] Speaker 01:
Assuming that that broad statement of hers covers everything, including the exhibits.

[00:05:11] Speaker 02:
So what's your basis for claiming there's the BIA ignored the possibility of future persecution?

[00:05:23] Speaker 01:
the petitioners in both appeals urge this court to grant the petition for review because

[00:06:10] Speaker 00:
substantial evidence.

[00:06:12] Speaker 00:
So I read what they said about that.

[00:06:18] Speaker 00:
I can't really say there's no substantial evidence to sustain what they said because substantial evidence is hardly any evidence.

[00:06:28] Speaker 00:
And if you just read what they say,

[00:06:52] Speaker 00:
top of this BIA decision.

[00:06:55] Speaker 00:
I have to give them deference.

[00:06:59] Speaker 00:
I have to say it compels a conclusion opposite

[00:07:35] Speaker 03:
but is there any proof that the

[00:08:06] Speaker 01:
and these petitioners are looking at being returned to Romania imminently, not a generation or two later.

[00:08:18] Speaker 00:
If I assume a disfavored group?

[00:08:21] Speaker 00:
Yes.

[00:08:23] Speaker 00:
And at that point, does this record compel a conclusion that the petitioner has an individual risk of being singled out?

[00:08:32] Speaker ?:
I mean, he only suffered two

[00:08:38] Speaker 01:
10 years ago.

[00:08:41] Speaker 01:
So it depends on how the court views those those events.

[00:08:46] Speaker 01:
Were they isolated as the BIA claims or were they in fact very indicative of the underlying reality that they were based on ethnic, on the Roma

[00:09:40] Speaker 01:
of those events are related because they're not really persecution I mean they it's the fact that their discrimination I'll give it to you but that they are really persecution based on what we have determined our persecution you're unaware

[00:10:31] Speaker 00:
have to come up with a qualitative standard proof.

[00:10:35] Speaker 00:
So I looked at the times, what he suffered at those times.

[00:10:39] Speaker 00:
For instance, the last time the respondent spoke of any problems that he had in Romania, it was in 2012.

[00:10:47] Speaker 00:
Even though the police were involved, he was only given a ticket.

[00:11:05] Speaker 00:
He was stopped.

[00:11:47] Speaker 01:
as I ever laid against him so it's pure

[00:12:42] Speaker 01:
You said there were three grounds.

[00:12:44] Speaker 01:
The first was that the first ground is disfavored group.

[00:12:48] Speaker 01:
And I would argue that if you look at the very record of the EU, the EU says that the climate

[00:13:21] Speaker 01:
of individual targeting can be very limited on the part of Solaru and Nadelika in order to qualify.

[00:13:29] Speaker 01:
And you said when you started there were three grounds.

[00:13:31] Speaker 01:
Yeah, three submissions.

[00:13:34] Speaker 01:
The first submission was just to satisfy the court that there is this favored group status and that the second submission was that the

[00:14:15] Speaker 01:
prejudice that he suffers by virtue of being a Roma, he meets the standard of reasonable fear of future persecution.

[00:14:28] Speaker 00:
What authority do you have for the idea that we three can decide that being a Roma is a disfavored group?

[00:14:39] Speaker 00:
Because in my view,

[00:14:55] Speaker 00:
don't have any authority to suggest that I can decide this is disfavored group.

[00:15:00] Speaker 00:
If I want to have the BIA think about a disfavored group, I need to send that back to them, don't I?

[00:15:07] Speaker 00:
I can't do that myself.

[00:15:11] Speaker 00:
I would have to send it back on that issue, wouldn't I?

[00:15:15] Speaker 01:
So, Your Honor, I do want to say as a practitioner in this field, when I'm coming before the lower

[00:15:42] Speaker 00:
determines it, and we decide if they're wrong.

[00:15:45] Speaker 01:
So, Your Honor, I would say in this case that a remont to the BIA would be appropriate to determine, because the BIA never applied itself to whether they had disfavored group.

[00:15:57] Speaker 01:
The BIA simply said the judge in the court below had determined that there's no need to go into the disfavored group.

[00:16:05] Speaker 01:
And then they said, but even if it is a disfavored group, this is how we'll deal with it.

[00:16:09] Speaker 01:
But I think that

[00:16:27] Speaker 01:
to bring this about whether it's this court that doesn't necessarily

[00:17:42] Speaker 03:
Let me stop you here with regards to the lap at that.

[00:18:17] Speaker 03:
was rather vague as to the circumstances.

[00:18:47] Speaker 03:
and then called a gypsy.

[00:18:50] Speaker 03:
Well, we submit that the board did not have to specifically address it in their decision, but what the board did was refer to, cite to the portions of the immigration judge's oral decision, which does discuss the shooting.

[00:19:03] Speaker 03:
The IJ characterized it as a shooting, the shooting as, in 2007, he was physically harmed in a sense.

[00:19:21] Speaker 03:
That's a fair characterization of what the testimony was, where the petitioner or Mr. Lappadot admitted that he had been trespassing on someone else's property.

[00:19:30] Speaker 03:
He testified credibly, according to the IJ, that he was on public land, correct?

[00:19:38] Speaker 03:
I think there's some conflicting information in the record about public or private.

[00:19:43] Speaker 03:
But he testified credibly that that's what happened, correct?

[00:19:46] Speaker 03:
Correct.

[00:19:47] Speaker 03:
All right.

[00:19:47] Speaker 03:
And then he identified the individual who shot him, correct?

[00:20:36] Speaker 03:
be harmed, wasn't he?

[00:22:37] Speaker 03:
Is that correct?

[00:22:39] Speaker 03:
That's correct, and this is not to minimize the seriousness of this incident.

[00:22:45] Speaker 03:
It's obviously very... He was shot in the back, wasn't he?

[00:22:50] Speaker ?:
That is also not entirely clear.

[00:22:53] Speaker ?:
He spoke about it in his written testimony, in his declaration.

[00:22:57] Speaker ?:
He wasn't clear as to whether or how he was injured.

[00:23:21] Speaker 03:
and that there was shrapnel that was still

[00:23:51] Speaker 00:
That's what the immigration judge explicitly said that it was.

[00:24:23] Speaker 03:
11.

[00:24:24] Speaker 03:
That's correct.

[00:24:25] Speaker 03:
Okay, and then there was another incident in 2012 where his daughters were almost kidnapped, correct?

[00:24:32] Speaker 03:
Correct.

[00:24:33] Speaker 03:
And his mother sustained injuries and specifically she was cut in the back.

[00:24:41] Speaker 03:
Is that correct?

[00:24:43] Speaker 03:
I think it may have been hand injuries, but

[00:24:49] Speaker 03:
had the declarations by both daughters and by the petitioner.

[00:24:57] Speaker 03:
He, the petitioner in that case, she testified in that declaration that she was cut in the back, didn't she?

[00:25:43] Speaker 03:
And to be specific, the appendix situation, correct?

[00:25:49] Speaker 03:
With regard to the appendix situation, I think that Mr. Labadon's testimony was not entirely clear as to why he was not treated a certain way when he went.

[00:26:00] Speaker 03:
Well, he talked to people who had their appendix out, and having to wait two days with the pain of having their appendix out is quite excruciating, I imagine.

[00:26:09] Speaker 03:
So he had to wait two days because he wasn't getting health care for those two days, correct?

[00:26:14] Speaker 03:
correct i i i i believe uh... but that's a reading of of the record is that this was uh... speculation on the part of uh... as well all of us and that was not speculation according to the record he indicated that he has was beaten when he was trying to access the swimming pools that's correct and uh... and he can secure regular employment and go to his relatives and other uh... roma folks

[00:27:04] Speaker 03:
evidence that he sustained any serious

[00:28:23] Speaker 03:
the incidents according to Mr. Lappadott's testimony and his wife's testimony.

[00:28:28] Speaker 03:
This is just part of the recitation of the factual basis for their asylum claim.

[00:28:34] Speaker 03:
But the board goes on to defer to the immigration judge's analysis of whether these incidents constitute

[00:29:04] Speaker 03:
incident and again this was a cumulative

[00:30:00] Speaker 00:
official until now.

[00:30:03] Speaker 00:
There's, in 2011, he was kicked by a policeman.

[00:30:08] Speaker 00:
In 2012, there were victims of an attempted kidnapping and then a threatened rape of his daughters.

[00:30:16] Speaker 00:
And then in 2013, he left for France.

[00:30:20] Speaker 00:
And he stayed in France until 2015.

[00:30:23] Speaker 00:
And then, what is it, how does the fact

[00:30:40] Speaker 00:
future persecution.

[00:31:11] Speaker 03:
Well, I think it goes to the

[00:32:09] Speaker 03:
That's correct.

[00:32:54] Speaker 00:
and not even in the briefs here should I send this back

[00:33:31] Speaker 03:
that the agency completely dismissed the petitioner's arguments regarding this incident or otherwise mischaracterized the record.

[00:33:43] Speaker 03:
The record does reflect this was an isolated incident perpetrated by someone who the petitioner did not know.

[00:33:48] Speaker 03:
They did not know each other before it happened.

[00:33:51] Speaker 03:
There's ambiguities in the record.

[00:34:44] Speaker 03:
And now there's been some discussion about things not being.

[00:37:07] Speaker 03:
It's his burden to develop that argument and to provide an additional factual basis for why that incident contributes to his claim of past persecution.

[00:37:19] Speaker 03:
And he decided to rest on his declaration.

[00:37:22] Speaker 03:
The declaration was unspecific.

[00:37:24] Speaker 03:
He was cross-examined.

[00:37:26] Speaker 03:
That incident did not come up during cross-examination.

[00:37:30] Speaker 03:
There was redirect.

[00:37:31] Speaker 03:
The incident did not come up during redirect.

[00:37:40] Speaker 03:
regarding what happened to his mother were considered by the agency, and there really was no additional factual development of his argument that would necessitate a more extended discussion of that particular episode and how it bolstered his claim of persecution.

[00:37:58] Speaker 00:
Let me see if I could ask you the same question I asked him at the end.

[00:38:03] Speaker 00:
If I'm looking at a disfavored group and I have to determine if one is a disfavored

[00:38:14] Speaker 00:
of BIA determination.

[00:38:46] Speaker 03:
Maybe I mispronouncing the word

[00:39:22] Speaker 03:
I don't think

[00:41:36] Speaker 01:
He put his fear in the context that he could take the risk of returning for a limited period.

[00:42:13] Speaker 01:
whether it was a government official or not, and probably it was, because the police were ready to protect that individual.

[00:42:54] Speaker 01:
He was already out, he wasn't being shot because he was at respite.

[00:43:54] Speaker 03:
uh, Nadelica et al.

[00:44:23] Speaker 02:
this court for this session.