[00:00:02] Speaker 01: All right, thank you. [00:00:03] Speaker 01: And we'll move on to the next case set for argument, which is Perdomo Gonzalez versus Garland, case number 23-1953. [00:00:09] Speaker 01: Ms. [00:00:10] Speaker 01: Kang. [00:00:10] Speaker 00: Yes, good morning, Your Honors. [00:00:15] Speaker 00: May it please the court? [00:00:16] Speaker 00: I'm Layla Kang of the Northwest Immigrant Rights Project, representing the four petitioners in this case. [00:00:23] Speaker 00: David Perdomo. [00:00:25] Speaker 00: Yes, I'm sorry. [00:00:26] Speaker 00: Is that better? [00:00:27] Speaker 00: Okay, great. [00:00:28] Speaker 00: I represent the four petitioners in this case, David Perdomo-Gonzalez, Nora del Carmen Cardona-Mendoza, and their two children, M.E. [00:00:37] Speaker 00: and D.E. [00:00:38] Speaker 00: I'd like to reserve three minutes of my time for rebuttal. [00:00:42] Speaker 00: This case presents a range of issues, but today I'd like to focus on two critical errors that highlight why the petition should be remanded. [00:00:52] Speaker 00: The first is the BIA's straightforward mischaracterization of the application submitted by the family members of the lead petitioner. [00:01:01] Speaker 00: And then the second issue that I'd like to address more substantively is the board's application of matter of WIC and HOB in this case. [00:01:11] Speaker 00: To start by touching upon the first one, the BIA was simply mistaken when it found that Ms. [00:01:18] Speaker 00: Cardona and the two children were seeking only derivative asylum. [00:01:23] Speaker 00: And in doing so, the BIA denied their applications without any consideration. [00:01:28] Speaker 01: And can I ask you about that, though? [00:01:30] Speaker 01: I mean, I think you're right as a technical matter. [00:01:33] Speaker 01: It's not derivative. [00:01:34] Speaker 01: But they weren't different in any way. [00:01:37] Speaker 01: So if they were denying if the IJ was denied, I mean, there weren't new different claims. [00:01:41] Speaker 01: They were all. [00:01:43] Speaker 01: I mean, we I just wonder if it's a different use of the term derivative. [00:01:48] Speaker 01: At the end of the day, if you were going to deny the original claim, then you would there is no way to find different. [00:01:55] Speaker 01: A different answer to the different applications was there. [00:01:59] Speaker 00: It's a few points in response to that, Your Honor. [00:02:01] Speaker 00: So the first thing is that the BIA itself didn't actually analyze the substance of the family member's applications to find that they were derivative. [00:02:10] Speaker 00: And so because this court can only review the grounds invoked by the agency, I don't think that that is an appropriate reason to affirm the BIA's decision here. [00:02:19] Speaker 00: But even looking to the actual applications themselves, the immigration, [00:02:25] Speaker 00: Judge's records show that there is no dispute that each family member presented an independent application. [00:02:31] Speaker 00: And the problem here specifically is that the immigration judge failed to develop the record to see if the family members did have a legal basis that was different. [00:02:42] Speaker 03: This is Judge Nelson's question, but in a slightly different form. [00:02:47] Speaker 03: Is the evidence different for the claims of the other family members or we do look at the same evidence? [00:02:54] Speaker 03: I think we look at the same evidence. [00:02:56] Speaker 00: I believe you would look at similar evidence, Your Honor. [00:02:59] Speaker 03: You say similar, in what ways would it be different? [00:03:01] Speaker 00: I believe that the family members could present different testimony, for example, as to the cognizability of a different particular social group. [00:03:11] Speaker 00: And the independent family member who didn't get to really testify on her own behalf, Ms. [00:03:20] Speaker 00: Cardona, she could also present additional evidence that wasn't presented here regarding the other elements. [00:03:27] Speaker 03: Did she seek to testify? [00:03:29] Speaker 00: I'm sorry? [00:03:29] Speaker 03: Was there any attempt by her to testify in front of the IJ? [00:03:32] Speaker 00: Yes, well, she did testify in front of the IJ, Your Honor. [00:03:35] Speaker 00: And when she came onto the stand, the immigration judge's first question to her was, have you heard your husband's testimony? [00:03:42] Speaker 00: And do you have anything to add or correct? [00:03:45] Speaker 00: And then after that, the immigration judge didn't really follow up with her substantively about her own case. [00:03:52] Speaker 03: And given the facts of this case and her own case, how would her case have been different? [00:03:56] Speaker 03: What evidence? [00:03:58] Speaker 03: would she have had that was different? [00:03:59] Speaker 03: What we have in the record is that the gang members approach her husband on several different occasions asking him to help to be a lookout. [00:04:09] Speaker 03: He refuses, refuses, refuses. [00:04:11] Speaker 03: on the last time they show guns and they threaten severe damage, even death, as to the family members. [00:04:20] Speaker 03: What else might she have said? [00:04:21] Speaker 03: I don't think there's anything else to be said. [00:04:23] Speaker 03: Do you have any notion as to that she would have additional evidence beyond that? [00:04:31] Speaker 00: I believe that she could have presented facts that speak to the element of the protected ground, and specifically of a family-based social group. [00:04:40] Speaker 04: In terms of the- Isn't the question not- or isn't this tied up with the other problem? [00:04:47] Speaker 04: That they were never told that they needed to have a particular social group, or they needed to have any- they were not- were they ever told that they needed a [00:05:00] Speaker 04: nexus to some protected ground? [00:05:05] Speaker 04: Even at that level, were they told that much? [00:05:08] Speaker 00: No, they were not, Your Honor. [00:05:10] Speaker 04: They weren't told specifically that since they didn't, and one possibility was a particular social group, they weren't told that. [00:05:18] Speaker 04: That's correct. [00:05:19] Speaker 04: And they weren't told what it meant. [00:05:21] Speaker 04: And if they, and if they had, and she was differently situated with regard to that question. [00:05:32] Speaker 00: Possibly that is correct your honor and that's she she was there was a reasonable possibility that she was differently situated as to that question and as your honor just pointed out the immigration judge never advised or never provided any information. [00:05:48] Speaker 00: that the asylum seekers were required to prove their eligibility by establishing connection between their fear of harm to a protected ground and instead they Because the the IJ helped them fashion a protected or particular social group now it ultimately wasn't [00:06:12] Speaker 01: basis for relief. [00:06:14] Speaker 01: But why isn't that enough to sort of walk them through? [00:06:20] Speaker 01: What did you want the IJ to say? [00:06:22] Speaker 00: Sure, Your Honor. [00:06:22] Speaker 00: The IJ could have elicited facts that go to a different particular social group for the family members. [00:06:30] Speaker 01: Okay. [00:06:31] Speaker 01: So that goes to your claim that the IJ actually had to do the work for them and find the social group. [00:06:40] Speaker 01: Where does our case law require that? [00:06:41] Speaker 01: That does not seem to be a requirement in our case law. [00:06:50] Speaker 00: So I believe that this court's case law does support that requirement. [00:06:56] Speaker 00: And in cases like Jacinto and Ajiman, this court has held that the immigration judge has a duty to develop the record and that this duty includes explaining what an applicant needs to prove and what evidence was relevant and by what means they can establish it. [00:07:13] Speaker 01: I give you that. [00:07:14] Speaker 01: scaled back significantly in subsequent cases. [00:07:18] Speaker 01: But even if you take that at face value, that does not support your argument, which is that the IJ had to help them come up with a protected, or excuse me, a particular social group that included family relations. [00:07:33] Speaker 00: Well, the IJ had a duty to fully develop the record, and even in the board's own... I give you that. [00:07:39] Speaker 01: But fully develop the record, I mean, what does that mean? [00:07:42] Speaker 01: That means they have to be given the opportunity to develop the record. [00:07:47] Speaker 01: But the IJ doesn't have to do the work for them. [00:07:50] Speaker 01: We've never imposed that upon them. [00:07:52] Speaker 00: Sure, but here the IJ did limit Ms. [00:07:55] Speaker 00: Candona's testimony. [00:07:56] Speaker 00: So because the immigration judge had to adjudicate each of the family members' educations. [00:08:01] Speaker 01: How did the IJ limit her testimony? [00:08:05] Speaker 00: By, well, when the immigration judge starts out by asking her an incredibly limited question, he limits the scope of that testimony, especially when it's a pro se. [00:08:16] Speaker 01: Did she say, he said, do you have anything to add to Mr. Padoma's testimony? [00:08:21] Speaker 00: Correct. [00:08:22] Speaker 00: And this court held in Lacina, Pangilinan, that simply asking if somebody has something to add or anything to add doesn't actually cure an immigration judge's failure to probe for the facts that are critical. [00:08:37] Speaker 01: And so in this case... What facts were critical? [00:08:42] Speaker 01: The facts that were critical have to do with whether her membership and her family relationship to Mr. Perdomo That's where I got I just disagree with you because if we went that route you would be imposing on every IJ the responsibility to be the advocate and attorney for the immigrant. [00:09:03] Speaker 01: That cannot be the case law. [00:09:04] Speaker 01: No one has ever said that. [00:09:06] Speaker 01: I think what you have, I mean it seems like you have a more narrow basis for your argument, but it cannot be that the IJ did not ask questions about a particular social group that never was presented to the IJ. [00:09:20] Speaker 00: Well, so here there could be a simple ruling that the immigration judge didn't really develop the claim as to the family members at all. [00:09:30] Speaker 04: Isn't that more of a legal question? [00:09:35] Speaker 04: I mean, it does bother me that he never told them that they had to have any nexus to any protected ground. [00:09:41] Speaker 04: or that one of the protected grounds is a particular social group? [00:09:48] Speaker 04: Or maybe he could have said in one possibility that there are various possibilities of what could be a particular social group. [00:09:57] Speaker 04: But ultimately, what more evidence would there be on the family issue? [00:10:02] Speaker 00: Yes, and I believe that goes to Judge Nelson's questions earlier as well. [00:10:08] Speaker 00: The facts are not in, those facts are not in the record because they were not elicited, but the immigration judge could have asked, for example, for information that's specific to Ms. [00:10:18] Speaker 00: Cardona, questions such as who do you believe will harm you? [00:10:22] Speaker 00: If you are not married to Mr. Perdomo, how likely is it that the gang members would target you and harm you? [00:10:29] Speaker 00: Have you had any interactions with the gang members other than through the threats that you received through your husband? [00:10:35] Speaker 00: How would the gang members know [00:10:37] Speaker 01: She wasn't denied the opportunity to make any of those statements. [00:10:40] Speaker 01: I mean, presumably if some of that would have existed, she would have responded to his first question differently and said, oh no, I do have something to add because the gang members came and saw me the next day. [00:10:52] Speaker 01: I mean, the IJ didn't prevent her from saying that. [00:10:58] Speaker 00: Sure, but that fact indicated that the immigration judge should have asked her about her own claim and about a potential family-based particular social group. [00:11:11] Speaker 00: On this record, as Judge Berzon has pointed out, the immigration judge never gave information as to what they needed to establish. [00:11:20] Speaker 00: So it was impossible for a pro se asylum seeker like Ms. [00:11:24] Speaker 00: Cardona to know that her relationship to her husband was even relevant. [00:11:30] Speaker 03: Let me ask you this. [00:11:31] Speaker 03: Let's assume that she would have proposed social groups. [00:11:37] Speaker 03: And in fact, on appeal to the BIA, several were, a whole bunch of them, 10 of them, I guess. [00:11:46] Speaker 03: Were any of those cognizable? [00:11:49] Speaker 03: I look at those and I say, I don't recognize any of those as particularized social groups that we've previously recognized. [00:11:59] Speaker 03: Do any of them satisfy the criteria that we have advanced? [00:12:04] Speaker 00: My understanding is that when she articulated certain other potential social groups with the assistance of counsel before the BIA, that it was to point out that there were other potential groups that the immigration judge should have explored for or probed for, rather than to actually conduct the cognizability analysis for each one of those. [00:12:27] Speaker 03: I've got a different question. [00:12:28] Speaker 03: As to any of those ten, [00:12:30] Speaker 03: Is there established case law that those constitute particular social groups? [00:12:36] Speaker 00: I believe that there are three that pertain to a family-based social group, and the family this court has recognized can be a viable particular social group. [00:12:49] Speaker 00: Now, no particular social group can be categorically viable because it's always an independent case-by-case analysis. [00:12:57] Speaker 03: Well, I know the case law, at least I think I know the case law, with respect to whether the family is a group, and it can be, but the only cases I'm aware of, it's sort of an extended family, it's not the nuclear family. [00:13:11] Speaker 03: Do you have a nuclear family that's an example of a family as a recognized group? [00:13:18] Speaker 00: I do not have that at hand, Your Honor, and I do believe that the BIA should have conducted an analysis that's specific to the facts of this case. [00:13:29] Speaker 00: And I see I only have two minutes left. [00:13:31] Speaker 00: I'm not sure. [00:13:31] Speaker 04: Yes? [00:13:32] Speaker 04: I gather that although Mr. Perdomo is still technically a petitioner here, you're not making any arguments on his behalf. [00:13:42] Speaker 00: Well, we do make arguments on his behalf in our briefing, and there were errors that were committed with respect to the BIA's denial of his applications. [00:13:55] Speaker 00: I think one that we highlighted is the fact that the BIA mistakenly found that he had waived an argument when he hadn't. [00:14:03] Speaker 00: And that merits a remand. [00:14:06] Speaker 00: And we did also challenge the other determinations of the BIA. [00:14:10] Speaker 00: But as to the development of the particular social group, we do believe that the error is primarily with respect to the immigration judge's failure to address any of the family member's applications. [00:14:23] Speaker 01: Okay. [00:14:24] Speaker 01: We'll give you time for rebuttal. [00:14:25] Speaker 00: Thank you. [00:14:35] Speaker 02: May it please the court, Timothy Hayes on behalf of the attorney general. [00:14:40] Speaker 02: I will jump right into the IJ's duty to develop the record. [00:14:45] Speaker 02: The IJ, well, the IJ himself used the plural in adjudicating the claims. [00:14:50] Speaker 02: It was clear to me in the record that the immigration judge did consider all of the claims. [00:14:55] Speaker 02: The issue here is three of the four claims were, in effect, derivative. [00:15:00] Speaker 02: And they may not be derivative in the technicals. [00:15:02] Speaker 04: Were derivative? [00:15:04] Speaker 02: Correct, Your Honor. [00:15:05] Speaker 02: And when I say derivative, I don't mean it in the technical sense that the other three family members did not file their own asylum applications or their own withholding applications. [00:15:14] Speaker 02: I mean in a sense of the fact pattern of the other three family members were all derivative of the lead respondent. [00:15:20] Speaker 04: Well, not respondent. [00:15:22] Speaker 04: Well, yes, but the IJ never told them that they needed a connection to a protected ground. [00:15:27] Speaker 04: He never told them about a particular social group. [00:15:33] Speaker 04: never told him that a family was possible. [00:15:37] Speaker 04: I don't know if he should have, but a particular social group. [00:15:39] Speaker 04: So they had no basis from anything they were told to differentiate themselves. [00:15:47] Speaker 04: But in fact, they perhaps could have been differentiated. [00:15:50] Speaker 02: Well, I don't think this fact pattern, I mean, there has to be something from his testimony that would infer that they could have independent claims, and there was nothing. [00:16:00] Speaker 04: Why not? [00:16:02] Speaker 04: Do you think that—because you think that the family is a social group for the wife and children was not a viable claim? [00:16:10] Speaker 02: It potentially could be. [00:16:11] Speaker 02: I'm not saying it is or is not. [00:16:13] Speaker 02: It potentially could be. [00:16:14] Speaker 02: But just the fact that you have a particular social group doesn't mean you have an objective basis for fear. [00:16:20] Speaker 02: And the denial here, too—the immigration judge made an explicit denial on Nexus. [00:16:26] Speaker 02: He said—he found in his decision— [00:16:30] Speaker 02: Well, the BIA said it was the non-citizen's burden to show nexus. [00:16:40] Speaker 02: They only checked on that box, membership in a particular social group. [00:16:44] Speaker 02: Well, I don't need to repeat all of it. [00:16:46] Speaker 02: But the other issue with this case is petitioners had some help. [00:16:51] Speaker 02: If you look through the record, Lutheran Community Services was helping them. [00:16:55] Speaker 02: They signed the asylum applications as preparer. [00:16:58] Speaker 02: I don't believe that they were totally clueless as to all of the elements of an asylum claim. [00:17:03] Speaker 01: Who came up with the particular social group that they were pushing of El Salvadorans who refused to collude with gangs? [00:17:11] Speaker 01: Did they come up with that or did the IJ help them? [00:17:13] Speaker 02: The immigration judge. [00:17:14] Speaker 02: The immigration judge listened to predominantly Mr. Perdomo's testimony. [00:17:18] Speaker 02: and inferred from his testimony that that was really the only basis. [00:17:22] Speaker 04: After the fact. [00:17:23] Speaker 02: Right. [00:17:23] Speaker 02: Correct, Your Honor. [00:17:24] Speaker 02: It was after the testimony was completed. [00:17:26] Speaker 04: That they needed any particular social group or any nexus at all. [00:17:30] Speaker 02: Well, right. [00:17:31] Speaker 02: I mean, I don't think there's any part on the record where the immigration judge is actually conducting a proceeding where they were told, these are the five protected grounds for asylum. [00:17:41] Speaker 02: I agree with that. [00:17:42] Speaker 02: But I part ways a little bit, because the asylum application itself does discuss this when you fill it out. [00:17:49] Speaker 02: And even if we have a language barrier, again, they had help. [00:17:52] Speaker 02: Lutheran Community Services were helping them with filling out that asylum application. [00:17:56] Speaker 04: And the immigration judge actually did the asylum application identify any [00:18:01] Speaker 04: You checked your grant? [00:18:03] Speaker 02: The asylum application has you check. [00:18:04] Speaker 02: So it goes in... As a particular... Right. [00:18:08] Speaker 02: So you don't necessarily... You know on the asylum application, actually, you could if you want, but the actual box does not actually make you write it down. [00:18:15] Speaker 02: Standard practice is an immigration judge, at least in counseled cases, prior to testimony being taken, they'll ask counsel if they haven't put in any briefing, what particular social group are you relying on? [00:18:26] Speaker 02: So I know when I'm listening to the testimony, what I'm looking for. [00:18:31] Speaker 04: And also, the BIA really did get this wrong in terms of the fact that there were separate applications. [00:18:39] Speaker 02: It depends on how you look at it. [00:18:41] Speaker 02: If you want to look at it in a very technical sense, yes. [00:18:44] Speaker 02: Again, it comes down to the word derivative in footnote 2. [00:18:46] Speaker 04: Well, it's not just that. [00:18:48] Speaker 04: They specifically said, for example, that they couldn't have a withholding claim, which is wrong. [00:18:54] Speaker 02: Well, you would need an independent basis. [00:18:57] Speaker 02: Withholding is not derivative. [00:18:58] Speaker 02: You would not have a withholding claim on harms that happen to a family member. [00:19:01] Speaker 02: They have to happen to you. [00:19:03] Speaker 02: And at AR 200, Mr. Perdomo was asked, did anyone in your family besides you receive threats? [00:19:09] Speaker 02: No. [00:19:10] Speaker 02: So there's no threat in the family. [00:19:11] Speaker 04: But they were wrong. [00:19:12] Speaker 04: They were just wrong. [00:19:13] Speaker 02: Indirectly, they did. [00:19:14] Speaker 02: Yes, they did. [00:19:15] Speaker 02: But they were never directly threatened. [00:19:17] Speaker 02: None of the family members had anyone come up to them. [00:19:20] Speaker 01: and in my opinion and but why does that i don't understand why that changes the analysis i mean to me the reason why i thought that they it didn't really matter whether i mean to to judge person's point that does seem like there are some misstatements i guess it depends on [00:19:37] Speaker 01: Right interpretation of the right I would concede. [00:19:40] Speaker 01: So but to a certain degree I guess I'm trying to figure out why it matters because he had already testified that the threat had been made not only against him but against the family. [00:19:52] Speaker 01: And she heard that. [00:19:54] Speaker 01: So if she had more to add, she could have added it. [00:19:57] Speaker 02: Right. [00:19:57] Speaker 02: I agree with your honor. [00:19:58] Speaker 02: I mean, I was just getting at the it's kind of a subsidiary point. [00:20:03] Speaker 02: It's a matter of a key point. [00:20:04] Speaker 02: There are some situations where someone would harm like your wife, not because they have any animosity against your wife, but they're trying to get you. [00:20:13] Speaker 02: So they know that you will have emotional or, you know, trauma from your wife being harmed. [00:20:18] Speaker 01: Or that you'll be more inclined to cooperate because it's not just harm to you, but it's harm to those, you know, your family. [00:20:25] Speaker 02: Correct. [00:20:26] Speaker 02: And the withholding provisions, both under a cat and the Act, they're designed to be very individual and independent. [00:20:32] Speaker 02: I mean, because they don't even provide family derivative benefits. [00:20:35] Speaker 02: Most of the time what happens it's happening to you the threat is directly to you or there's an escalation that's not present in the other application if I if you [00:20:47] Speaker 01: If you're a third party and you hear about a threat, the threat doesn't have to be made to you. [00:20:52] Speaker 01: If you hear that a threat, I mean, presumably, Perdomo, I think the evidence is there that he went and told his family, hey, we're all under threat here. [00:21:00] Speaker 01: That's why they left. [00:21:03] Speaker 01: So why is that any less of a threat to her, to the other family members? [00:21:09] Speaker 02: Well, I don't think it's any less of a threat, but when you look at the way his asylum application was adjudicated, I think we can all fairly agree that nearly all of the harm was to him. [00:21:20] Speaker 02: He was directly threatened. [00:21:21] Speaker 02: If that is not enough to form an objective basis, [00:21:24] Speaker 01: Well, maybe the better way to put it is they weren't differently threatened than he was. [00:21:29] Speaker 02: Correct. [00:21:30] Speaker 01: So if his threat doesn't rise to it, there's nothing additional about that. [00:21:33] Speaker 02: Right. [00:21:33] Speaker 02: I mean, to the extent I was suggesting that a threat never matters. [00:21:38] Speaker 04: That's true as to whether it rises to the level of persecution, but that's not our issue. [00:21:44] Speaker 04: But it's not true as to the particular social group question, because the wife and child might, I don't know if they do, [00:21:53] Speaker 04: have a separate claim for family, particular social groups, so it could rise to the level of a protected ground for them and not for him. [00:22:05] Speaker 02: I suppose in a scenario it could, but this record doesn't even plausibly support that. [00:22:10] Speaker 02: Most of the time when you see something like that, again, they're going after the family's lineage. [00:22:16] Speaker 02: It's usually gang members that are upset the family owns land, and they're going after everyone in the family that's tied to that land or something like that. [00:22:23] Speaker 02: We have no indication that they're actually [00:22:25] Speaker 02: interested in the family beyond having Mr. Perdomo and potentially his wife work as lookouts. [00:22:30] Speaker 02: They're not interested in the family per se. [00:22:32] Speaker 02: They're interested in the fact that they have the means of leaving the village and they can act as lookouts. [00:22:37] Speaker 03: It's hard for me to understand what you mean. [00:22:38] Speaker 03: They're not interested in the family per se. [00:22:41] Speaker 03: I mean, there is a threat to the male, Mr. Perdomo. [00:22:45] Speaker 02: Correct. [00:22:45] Speaker 03: There is then a threat to the family members when he does not cooperate. [00:22:49] Speaker 03: Correct. [00:22:50] Speaker 03: And I don't know that we need to have one of these [00:22:54] Speaker 03: sort of land disputes where it's an extended family. [00:22:56] Speaker 03: My issue with respect to the social group is why isn't this smaller family a family protected, could potentially be a family group? [00:23:08] Speaker 03: Why do you need a larger family? [00:23:10] Speaker 02: Well, they didn't, to the extent I suggested that size of family is [00:23:15] Speaker 03: Those are the cases of the larger family, I understand that. [00:23:18] Speaker 03: Right. [00:23:19] Speaker 03: But why does not that same rationale extend to a smaller family group, a nuclear family? [00:23:25] Speaker 02: I mean, in particular cases, a nuclear family could be a protected ground, but the persecutors' motive has to be centrally in a case of asylum. [00:23:34] Speaker 02: They have to be targeting them because of that ground, not for other reasons. [00:23:38] Speaker 02: I think we're getting a little... What's that mean? [00:23:40] Speaker 03: I mean, because of that ground. [00:23:42] Speaker 03: I mean, I'm threatening you, and the way I'm threatening you is if you don't do it, I'm going to kill your wife, or I'm going to kill your children. [00:23:49] Speaker 03: So why is that not, quote, because of that ground? [00:23:52] Speaker 02: Your motive for threatening me goes beyond [00:23:55] Speaker 02: I want to kill your family in that case. [00:23:59] Speaker 02: We particularly don't know why you're threatening me. [00:24:01] Speaker 02: It would be very odd for someone to come up. [00:24:03] Speaker 03: Different from the land. [00:24:04] Speaker 03: My motive is the land. [00:24:06] Speaker 03: Well, here the motive is I want you to spy for me. [00:24:09] Speaker 02: Then it would be a landowner issue, but I would agree in that case... We're not engaged yet. [00:24:14] Speaker 03: The motive may be I want your land. [00:24:17] Speaker 03: The motive may be I want you to be a lookout. [00:24:20] Speaker 03: But there is a motive. [00:24:22] Speaker 03: And once I've got my motive, I'm threatening family members because I wish to accomplish that objective. [00:24:30] Speaker 03: So why is a nuclear family different from an extended family when I'm threatening members of the family in order to achieve my objective? [00:24:39] Speaker 02: It isn't necessarily. [00:24:40] Speaker 02: I can't directly answer that question, because that wasn't even decided here. [00:24:45] Speaker 03: But it's relevant to the way I'm thinking about it for the moment. [00:24:47] Speaker 03: I'm trying to figure out if it's worth it to say, you know, there was an inadequate opportunity for these, I'll call them quasi pro se people, to develop a proposed protective social group. [00:25:03] Speaker 02: I think you would have to look at the record that was presented to the board, because this was raised in the board. [00:25:08] Speaker 02: and the inadequacies they pointed out. [00:25:10] Speaker 02: You have a burden to suggest that there's evidence that would give rise to a family-based claim and there isn't any evidence. [00:25:16] Speaker 02: I don't think on this record there's enough evidence. [00:25:18] Speaker 03: I've got a family with the evidence we have here in front of us and I've asked you why is that not qualified as a family-based claim and you say well I'm not so sure. [00:25:28] Speaker 03: That was your answer. [00:25:29] Speaker 02: Well the [00:25:33] Speaker 02: The board would have to reach the decision as to whether this family would qualify on these facts. [00:25:38] Speaker 02: And I'm not so sure that they would. [00:25:41] Speaker 03: Well, I'm not so sure either. [00:25:43] Speaker 03: And I don't. [00:25:44] Speaker 03: What do we do with that, given that there was no sort of invitation to develop that? [00:25:49] Speaker 03: And maybe there was enough opportunity. [00:25:52] Speaker 03: Maybe there wasn't. [00:25:54] Speaker 02: Well, I think on appeal when it was raised in their appellate brief, it could have been further developed. [00:25:59] Speaker 02: I mean, I think you have to raise how your social group would have tied what you were prevented from presenting before the immigration judge. [00:26:08] Speaker 02: And they weren't prevented from presenting any testimony before the immigration judge. [00:26:12] Speaker 02: The immigration judge did his job in this case. [00:26:15] Speaker 02: He gave them multiple continuances. [00:26:17] Speaker 02: He asked it open-ended questions. [00:26:19] Speaker 02: Direct testimony went on for quite a while. [00:26:22] Speaker 01: But isn't that ultimately what we're trying to decide is, did the IJ have any other obligations? [00:26:29] Speaker 01: And if so, what were they? [00:26:30] Speaker 01: It strikes me as a little bit extreme to say that the IJ had to tell them, hey, you might have, look, I've heard this evidence, by the way, you might actually have this new protected class. [00:26:42] Speaker 01: But maybe the IJ had to tell them something lesser than that of, hey, you do need to come up with a protected class and you've got to show some nexus. [00:26:52] Speaker 02: to that? [00:26:55] Speaker 02: I think that the facts have- Do cases support that? [00:26:59] Speaker 02: Not that I'm aware of. [00:27:00] Speaker 02: The only case that tends to go that way is the Quintero case out of the Fourth Circuit, but that case that- What about Jacinto? [00:27:10] Speaker 04: It remanded because they didn't tell, they didn't develop the question of what the motive was, which is pretty close to that. [00:27:21] Speaker 02: Well, I'm drawing a blank, so I'm sorry. [00:27:24] Speaker 02: I can't directly comment to that case. [00:27:28] Speaker 04: Why can't you? [00:27:29] Speaker 02: Because I'm not recalling it in my head right now. [00:27:32] Speaker 04: It's the main case in the Ninth Circuit. [00:27:35] Speaker 02: I know. [00:27:35] Speaker 02: I should know. [00:27:36] Speaker 02: I'm just thinking of the Quintero case that they raised in their brief. [00:27:40] Speaker 04: Well, I was just seeing to it. [00:27:42] Speaker 02: It does. [00:27:43] Speaker 02: You're right, it does. [00:27:44] Speaker 02: But in my opinion, it extends it. [00:27:46] Speaker 02: And it extends it in a way where, well, it doesn't extend that case. [00:27:51] Speaker 02: But the Fourth Circuit basically said you have to at least try to fashion a group for them. [00:28:00] Speaker 02: And I think that the immigration judge in this case did, based on their testimony. [00:28:04] Speaker 02: I don't think that the immigration judge has to lay out facts that would give rise to a viable claim in order to steer their testimony in a certain direction. [00:28:18] Speaker 02: And unless your honors have any further questions. [00:28:22] Speaker 01: Well, I wanted to go back because, I mean, we're focused on Jacinto or however you say that case. [00:28:30] Speaker 01: And then it was clarified in Hussain. [00:28:31] Speaker 01: And I guess that's my question is, did the IJ satisfy effectively Hussain? [00:28:43] Speaker 01: In Hussain, we said, Jacinto, which is the high watermark of the Ninth Circuit's due process, case law stands only for the proposition that an IJ must inform petitioners that they have a right to testify and must give them an opportunity to do so. [00:28:58] Speaker 01: Correct. [00:28:59] Speaker 01: So, I mean, as long as they were given an opportunity to develop their own story, [00:29:07] Speaker 01: That seems to be enough. [00:29:08] Speaker 01: Do you agree with that or do you think more is required? [00:29:12] Speaker 02: The only caveat I would add is to the extent that as they're telling their story and the story should be in particular with pro se petitioners in an open narrative format. [00:29:22] Speaker 02: to the extent the story is leading a certain way where the facts would reasonably infer a particular social group, I think it's reasonable to expect some sort of social group analysis. [00:29:35] Speaker 02: But the facts on the direct testimony have to sort of give way to that. [00:29:40] Speaker 04: And I don't think... Jacinto said, Jacinto said, because you don't remember it, says that it was important for Jacinto to establish that her persecution or her well-founded fear of persecution [00:29:49] Speaker 04: rest in one of these factors, race, religion, etc. [00:29:53] Speaker 04: However, this was not developed in the proceedings because the immigration judge never explained the requirement to her and never gave her an opportunity to testify fully on her own behalf. [00:30:06] Speaker 04: She was only permitted to testify through an examination conducted by the immigration judge. [00:30:12] Speaker 04: So why isn't that applicable here? [00:30:17] Speaker 02: Well, I wouldn't say it's inapplicable, but in this case, not only did she have assistance preparing her asylum application, but the immigration judge actually, taking her testimony in the narrative, he made a Nexus-based finding that the gang members here were motivated by their interest in continuing criminal activities free from police involvement. [00:30:39] Speaker 02: And then he said, even if a nexus were established to the particular social group that he proposed, the court would alternatively find that this particular social group is not connivable. [00:30:48] Speaker 02: So he made a nexus finding that it was general criminality. [00:30:52] Speaker 02: There was no viable PSG on these facts. [00:30:57] Speaker 02: If the facts suggested a viable PSG, then perhaps it would be different. [00:31:04] Speaker 02: And I was reading that up. [00:31:05] Speaker 03: Facts would be different. [00:31:07] Speaker 03: In our exchange, I asked you, well, is there a PSG here where it's a nuclear family as distinct from an extended family? [00:31:16] Speaker 03: And you said you weren't sure. [00:31:18] Speaker 02: Well, to Mr. Perdomo, no. [00:31:19] Speaker 02: Because we can say Mr. Perdomo was not targeted because of his family. [00:31:23] Speaker 02: He was the first one targeted. [00:31:25] Speaker 03: That gets us back to the question of the other three, the wife and the two children. [00:31:30] Speaker 02: Right. [00:31:30] Speaker 02: And then I think I believe I responded [00:31:33] Speaker 02: I can't really answer that because the board hasn't gone there, and it may or may not be. [00:31:38] Speaker 02: And that would be my answer again. [00:31:39] Speaker 03: Yeah, so we're not sure whether there's a PSG with respect to the family members. [00:31:44] Speaker 02: But I would submit on these facts, I don't think it's a viable claim. [00:31:47] Speaker 03: Well, I think you've just said two things. [00:31:50] Speaker 03: You've just said it's not a viable claim, and then you've also said you're not sure whether it's a viable claim. [00:31:54] Speaker 02: Well, I was particularly speaking to the nexus requirement. [00:31:58] Speaker 02: I mean, there's multiple requirements to an asylum claim. [00:32:00] Speaker 02: You have to have an objectively reasonable basis. [00:32:05] Speaker 02: but just on the Nexus component. [00:32:07] Speaker 02: But this wasn't rejected purely on Nexus either. [00:32:11] Speaker 02: The agency made a finding that the government was able and willing to control the gangs they fear, which is an independent basis. [00:32:18] Speaker 02: So even if all of the Nexus. [00:32:21] Speaker 03: I view that one as questionable, actually. [00:32:25] Speaker 03: And I think there's a reason why you haven't been emphasizing it up until this point. [00:32:28] Speaker 02: But that is an alternate basis for the agency's decision. [00:32:35] Speaker 02: that that basically goes down to censure i'm sorry i i'm apologize your honor i'm really over time so okay well we've taken over but thank you [00:32:58] Speaker 00: So I have a few points in response. [00:33:00] Speaker 00: The first is that any assistance that the petitioners received with respect to filling out the I-589, there's nothing in the record that shows that Lutheran Community Services did more than just basic transcription and translation. [00:33:15] Speaker 00: The record shows that a staff member of that organization was appearing as a friend of court for pro se asylum seekers, and the IJ made it clear that they're not providing any legal representation. [00:33:27] Speaker 00: And here, the application where the preparer is supposed to identify themselves, it doesn't have an attorney bar number, it doesn't have a signature. [00:33:38] Speaker 00: There's no evidence to show that they actually received legal advice, but also, that's not the reason the BIA found to say, well, they should have been expected to delineate their own particular social groups. [00:33:53] Speaker 00: Here, that's not the ground that was invoked. [00:33:57] Speaker 04: or unwilling issue? [00:33:59] Speaker 00: Yes, Your Honor. [00:34:00] Speaker 00: We do believe that the BIA erred on that issue and that the record compels a finding that the Salvadoran government was at least unable to control the gang members because the evidence that was provided before the agency and in the human rights report that the BIA took administrative notice of, the record [00:34:27] Speaker 00: did contain enough evidence to compel the conclusion that the Salvadoran government is unable to control the gangs that continue to operate in El Salvador, that despite law enforcement presence, major gangs still control access to territories, which was demonstrated by this case. [00:34:47] Speaker 01: The law that supports that? [00:34:50] Speaker 01: I mean, because these cases come up a lot from El Salvador. [00:34:53] Speaker 01: Have we held that in other cases, that the El Salvadoran government [00:34:56] Speaker 01: unable to control gang violence? [00:35:01] Speaker 00: Well, in J.R.V. [00:35:03] Speaker 00: Barr, Your Honor, this court did examine whether the petitioner established that the Salvadoran government was unwilling or unable to control, or rather unwilling and unable to control gang members. [00:35:17] Speaker 00: And in that case, this court held that some official responsiveness to complaints of violence could be relevant, but it doesn't equate to governmental ability and willingness. [00:35:27] Speaker 00: And in Madrigal v. Holder, this court also held that the board errs when it considers just the willingness of the government and not at the actual ability of the government to do so. [00:35:38] Speaker 01: But doesn't the fact that, I mean, the whole basis of the threat against Perdomo was that the gangs didn't want him cooperating [00:35:47] Speaker 01: with the government because the government was actually surveilling them. [00:35:53] Speaker 01: So doesn't that suggest that the government is taking action? [00:35:55] Speaker 01: I mean, isn't that the whole basis of the threats against Perdomo? [00:35:58] Speaker 00: Well, I do believe that statement by the gangs can be read in many different ways. [00:36:03] Speaker 00: So maybe the immigration judge could take that as circumstantial evidence. [00:36:08] Speaker 00: But it's also evidence of the fact that despite the police surveillance that may exist, that may or may not exist in Mr. Perdomo's community, the gangs were operating and they were free to threaten people as they come and go from work. [00:36:21] Speaker 00: And so I don't think that that alone compared to the other evidence in the record that is more compelling [00:36:28] Speaker 01: reviewing it for substantial evidence, right? [00:36:31] Speaker 00: Well, in this case, I believe there are two issues. [00:36:34] Speaker 00: I do believe. [00:36:35] Speaker 01: I'm just talking about this issue that we're talking about. [00:36:37] Speaker 00: Yes. [00:36:37] Speaker 00: Yes. [00:36:37] Speaker 00: Within this issue. [00:36:38] Speaker 01: We're reviewing for substantial evidence. [00:36:40] Speaker 00: Well, on this issue, I believe that we have argued that the board committed a legal error in examining just the willingness and not the ability. [00:36:51] Speaker 00: And then the other argument goes to substantial evidence. [00:36:55] Speaker 00: And we believe we've established both. [00:36:58] Speaker 01: OK. [00:36:59] Speaker 01: Thank you, thank you both for your arguments in this case. [00:37:02] Speaker 01: The case is now submitted.