[00:00:00] Speaker 00: You may proceed. [00:00:02] Speaker 00: Good morning, Your Honours. [00:00:04] Speaker 00: May it please the Court. [00:00:05] Speaker 00: My name is Ivo Genchev and I'm here for petitioner Gina Prado Aquino and her daughter Sara. [00:00:13] Speaker 00: Before I start, I would like to reserve three minutes for rebuttal. [00:00:18] Speaker 00: We are here today to challenge the Board of Immigration Appeals' affirmance without opinion of the immigration judge's decision in this particular case. [00:00:28] Speaker 00: The board's affirmance without opinion failed to address key issues raised in the appeal. [00:00:35] Speaker 00: By affirming the IJ decisions, the decision of the immigration judge became the final ruling of the board without its deficiencies. [00:00:46] Speaker 00: Under the regulations, the Board may affirm a decision without an opinion if the decision is based on firing of fact or conclusion of law that is supported by the record and is not erroneous. [00:01:01] Speaker 00: Here the immigration judge's decision fails to address significant testimony evidence and the board's silence on these issues has led to a grave injustice for petitioner, hence facing removal from the United States to Honduras. [00:01:21] Speaker 00: The testimonial evidence that a petitioner gave was ignored by the immigration judge and the board despite the relevance of that evidence. [00:01:35] Speaker 00: As such, the decision of the immigration judge is clearly erroneous. [00:01:42] Speaker 00: I would like to point a few instances [00:01:48] Speaker 00: of the immigration judge's decision that he considers that there is no past persecution, that there is no protected ground, and that there is no nexus. [00:02:02] Speaker 00: The immigration judge in his legal analysis never addressed three key points in this case. [00:02:14] Speaker 00: He never analyzed the shooting at the house of petitioner. [00:02:21] Speaker 00: That's number one. [00:02:22] Speaker 00: Number two, he never analyzed the robbery that happened at the house of petitioner. [00:02:29] Speaker 00: and the shooting when the gang members were leaving the house. [00:02:34] Speaker 00: And the main one, and the crucial one in my opinion, is when petitioner was tried to be silenced by being rollovered by a car. [00:02:46] Speaker 02: What is the evidence on record that these incidents that occurred were motivated by your clients' political views? [00:02:59] Speaker 00: your honor I believe the client never pay the money to the gangs there were three gangs that were extorting there were two gangs that were extorting petitioner the third gang never extorted and never asked for money the first the gang that [00:03:22] Speaker 00: Los Cholos, they were the gang that fire shots in front of the house and in front of the cyber cafe, like the business owned by the family. [00:03:35] Speaker 00: The second one, Los Pelones, which were the, I guess, the worst one in the case, they kill [00:03:43] Speaker 00: Five members of her family, they killed the uncle, they killed three cousins and they disappeared. [00:03:49] Speaker 00: A fourth one and until today nobody knows where he is. [00:03:54] Speaker 00: All that happened 15 or 20 times per testimony. [00:04:00] Speaker 00: which means uh... uh... and petitioner when she was asked by the immigration judge if she ever paid she said i never paid any money she even went after the incident at her house to report that to the police do you have a question about how to read the i.j.' [00:04:17] Speaker 04: 's decision because the discussion of nexus occurs under a heading that says well-founded fear of future persecution [00:04:28] Speaker 04: But the discussion of nexus refers to the lack of nexus in her past experiences. [00:04:40] Speaker 04: Do you construe this decision as [00:04:43] Speaker 04: essentially finding no nexus, both as to the past and as to the future? [00:04:50] Speaker 04: How do you read it? [00:04:51] Speaker 00: The way I read it, Your Honor, is I believe there is past persecution. [00:04:56] Speaker 00: If there is past persecution, there is presumption for future persecution, and the nexus element is [00:05:05] Speaker 00: during the testimony, the Respondent Petitioner testified that the last gang that she had an encounter... I understand. [00:05:15] Speaker 04: I'm not asking you what you think the Board should have done. [00:05:19] Speaker 04: I'm asking you what you think the Board did do. [00:05:23] Speaker 04: Did it make a finding in this discussion that there was no nexus as to her past experiences? [00:05:32] Speaker 00: Yes, they did. [00:05:35] Speaker 03: But I think- Did you- I think the government argues that you've waived any challenge to the Nexus. [00:05:44] Speaker 03: You point us to where in your briefs you've developed a challenge to the Nexus claim as opposed to the persecution claim? [00:05:53] Speaker 00: Your Honor, I think the Nexus claim stems from the facts of the case. [00:06:00] Speaker 00: The last gang that actually [00:06:06] Speaker 00: gave the notice, the note, that they left a note, and they told her that she has to stop being involved with the National Party. [00:06:17] Speaker 00: That the party is something that they don't agree with. [00:06:22] Speaker 00: In her testimony, she testified. [00:06:26] Speaker 00: She was uncertain, but she didn't say, I didn't know. [00:06:29] Speaker 00: She said, the card that hit me [00:06:32] Speaker 00: she thought were part of that gun, Los Grios. [00:06:38] Speaker 00: And president of this court and BIA, when you're intentionally trying to hit somebody with a car, with a vehicle, it's past persecution. [00:06:52] Speaker 00: And in this case, it's exactly what happened. [00:06:56] Speaker 00: But the immigration judge, in his analysis, he never [00:07:01] Speaker 00: analyze that material, very substantial evidence and fact, which I think if he has done so, he can find nexus and he would rule as we see it. [00:07:19] Speaker 03: What's the connection between the note and the incident with the car? [00:07:25] Speaker 03: What's the best connection you draw between those two? [00:07:29] Speaker 00: The best connection for me is that, first, Los Grios never ask for money. [00:07:34] Speaker 00: And that's what a petitioner said, compared to the other two gangs. [00:07:41] Speaker 00: Second, allegedly, they left the note [00:07:50] Speaker 00: to her house and the third one is [00:07:55] Speaker 00: When she was asked in her testimony to explain if being a member of the National Party did that in certain way harm her, she said, yes. [00:08:12] Speaker 00: The neighborhood, they didn't like her. [00:08:15] Speaker 00: They didn't talk to her. [00:08:16] Speaker 00: In her written declaration, there is a half-page statement saying that she was really active [00:08:24] Speaker 00: In that national party, they used to have meetings at the husband's uncle house. [00:08:31] Speaker 04: Did you want to save some time for rebuttal? [00:08:33] Speaker 00: Yes, Your Honor. [00:08:35] Speaker 04: Thank you. [00:08:36] Speaker 04: Thank you. [00:08:37] Speaker 04: I will hear now from Mr. Kemp. [00:08:43] Speaker 01: Good morning, Your Honor, and may it please the Court, David Kim, for the Attorney General. [00:08:47] Speaker 01: At the outset, I'd like to address the due process claim that was just raised. [00:08:50] Speaker 01: Now, Petitions Council notes that the board's opinion was affirmed without opinion. [00:08:56] Speaker 01: Now, it's also the law that the board can do this, that it has authority to do this, and so that's not the issue here. [00:09:02] Speaker 01: It seems that their claim is that the underlying IJ's opinion was not based on facts reported by the record. [00:09:08] Speaker 01: And he points out a number of incidents, the shooting, the robbery at the house, and the swerving car. [00:09:13] Speaker 01: But those facts were actually recounted pretty specifically in the factual summary of the iDate session. [00:09:19] Speaker 04: The note obviously has a nexus on its face to political opinion. [00:09:24] Speaker 04: So how do you see that portion of it interacting with the no-nexus finding as to the other portions? [00:09:35] Speaker 01: Well, with regards to the note, it's an anonymous note, and simply there weren't enough details in her testimony for us to glean any idea of what the motive might have been. [00:09:43] Speaker 01: Now we do know from the face of the note that it had something to do with her affiliation to the party, but really all the note said was that your party is [00:09:52] Speaker 01: is excrement. [00:09:53] Speaker 01: It's shit. [00:09:54] Speaker 01: And beyond that, it didn't really go into detail about her involvement with the party. [00:09:57] Speaker 01: And so it could have been a prank. [00:09:59] Speaker 01: It could have been, perhaps, someone from the rival opposing party, perhaps. [00:10:05] Speaker 04: What did the agency say about it? [00:10:08] Speaker 04: What did the agency say about it? [00:10:09] Speaker 04: We can only consider what the agency did with it. [00:10:12] Speaker 04: What did it do with the note, and how does that fit with the rest of its analysis? [00:10:17] Speaker 01: Well, the agency found that the note wasn't sufficient to actually allow the petitioner to sustain her burden for Nexus. [00:10:25] Speaker 01: And to go to your question as to whether, to the panel's question about whether that goes to past persecution or will find a fear of persecution, the government will argue that it goes to both because [00:10:34] Speaker 01: both claims would be founded on the same body of evidence. [00:10:37] Speaker 01: And so, yes, the next claim might have been considered within the four corners of perhaps the well-funded fear section, but that doesn't preclude from actually applying to the past persecution finding as well. [00:10:50] Speaker 01: And so it kind of cuts across the board, would be our position. [00:10:53] Speaker 03: And what's the, I guess, the authority you'd point to that would allow us to mix and match the IJ's discussion of one element of the claim with another for purposes of the nexus? [00:11:09] Speaker 03: Are we saying that it's harmless, that we have cases that say [00:11:16] Speaker 03: The idea would likely to be reach the reach the same conclusion again. [00:11:19] Speaker 03: Is it just a generous reading of it. [00:11:22] Speaker 03: How do you want us to [00:11:24] Speaker 03: read that misplacement of the nexus determination? [00:11:28] Speaker 01: Well, it's what I just mentioned about how the claim is basically rests on the same body of evidence. [00:11:34] Speaker 01: And so as far as we know, her fear of these gangs, I mean, that's the basis for her past persecution claim, but it's also the basis for why she feels returning to Honduras. [00:11:44] Speaker 01: And so it's basically that logic, that reasoning that leads us to say that even though it was in the well-founded fear section, it could still go to the past persecution [00:11:53] Speaker 02: Do you have any cases where we've done that, where we've read IJ opinions in that way? [00:11:59] Speaker 02: Because I mean, here it just doesn't, it only seems to address future persecution on its face. [00:12:04] Speaker 01: Off the top of my head, Your Honor, I can't provide you any citations. [00:12:07] Speaker 01: We'd be happy to follow up, of course. [00:12:09] Speaker 01: But even if the panel were to find that doesn't actually go to the past persecution finding, that's not a problem for the government because there is the separate issue of [00:12:17] Speaker 01: the severity of past harm, and that by itself is dispositive. [00:12:21] Speaker 01: And so, so long as the court agrees with the government that she didn't meet her burden there, the court, the government would prevail. [00:12:27] Speaker 04: Well, but, you know, that's a little bit tougher because she says she was robbed on multiple occasions, she was [00:12:34] Speaker 04: grazed in an attempt to hit her with a car, and that gets into the whole, what's the standard of review for rise to the level of persecution, which we have an internal circuit split on that issue. [00:12:48] Speaker 04: That seems a lot more difficult of an issue. [00:12:53] Speaker 01: Before I pivot to the standard review question, I would like to touch on perhaps the merits of the severity of harm question. [00:13:01] Speaker 01: And so I think the courts, the rubric of the court laid out in Sharma is helpful here. [00:13:05] Speaker 01: And now this is not an exhaustive list, but the court did run through seven factors. [00:13:09] Speaker 01: that the court could rely on in assessing these sorts of claims. [00:13:12] Speaker 01: And the first one, and perhaps the most significant one, is physical violence. [00:13:16] Speaker 01: And now she's pretty clearly said that there was no physical harm suffered other than some scratches from when she jumped out of the way of the swerving car. [00:13:24] Speaker 01: And so this is a case that [00:13:27] Speaker 01: where no physical violence was present whatsoever. [00:13:30] Speaker 01: But if we were to go into some other factors, including length and quality of detention, or harm to family members or close friends, there really isn't much there. [00:13:38] Speaker 01: Now, she did mention that she had an uncle and three cousins who were killed. [00:13:43] Speaker 01: But that seems to all be related to the uncle's operation of a taxi business and didn't have really anything to do with her or the cyber cafe business that she ran with her husband. [00:13:54] Speaker 01: Now to pivot to the standard review question, I've read your concurrence and fawn, Mr. Collins, and I understand what you mean by perhaps Google applying some sort of gloss on U.S. [00:14:05] Speaker 01: bank. [00:14:07] Speaker 01: But in Wilkinson, the Supreme Court was quite clear that when you have [00:14:11] Speaker 01: a primarily factual mixed question, and the court didn't break things down into the legal and factual components. [00:14:17] Speaker 01: It just said, if you have a mixed question that's primarily factual, then a differential standard should be applied. [00:14:23] Speaker 01: Now, I think it's significant that the court said that, because in that case, which is a cancellation case, so a different context, the courts actually don't have jurisdiction over those factual elements, and so all the court [00:14:34] Speaker 01: all the Supreme Court really was concerned about was what standards should be applied to those left legal elements. [00:14:39] Speaker 01: And yet, even in that case, the Supreme Court went on to say that because of those factual elements over which there is no judicial review, even to the legal elements, a more deferential standard should be applied. [00:14:53] Speaker 01: Now, in the asylum context, [00:14:55] Speaker 01: All of that is fair game. [00:14:56] Speaker 01: All of that comes into play when it comes to the standard of review, the legal and the factual elements. [00:15:01] Speaker 01: And those two categories are, we would say, inextricably intertwined. [00:15:05] Speaker 01: They're very much bound up with each other. [00:15:06] Speaker 01: And so if there was no real cause to find that something like the NOVA review should be applied in the cancellation context, I think that logic is even stronger in the asylum context, where the factual questions loom even larger, possibly. [00:15:21] Speaker 03: How would you draw that line, I guess, on this record, though, where we're trying to establish whether the behavior is persecution? [00:15:29] Speaker 03: So, factor law. [00:15:31] Speaker 01: Right, so, I mean, we take this as a standard case where you have a number of incidents, right, and these incidents have to be sort of weighed for their salience, for their relative weight to each other, and they also- There's no real dispute in the record about the incidents. [00:15:47] Speaker 01: Oh, no, right, about what actually happened. [00:15:49] Speaker 01: I mean, we're not doubting our credibility, but still, I mean, in terms of how much weight they should be accorded, that's a factual determination. [00:15:57] Speaker 01: They also have to be considering the aggregate or the composite. [00:15:59] Speaker 01: And that's something that the fact finder would be better equipped to do than this court. [00:16:04] Speaker 04: You can make the example of this case a little starker, because I think to some extent the impression of it is affected by the fact that [00:16:15] Speaker 04: you know, the nexus showing as to the earlier mistreatment is relatively weak and it's just a question of whether or not the agency relied on nexuses to pass persecution. [00:16:26] Speaker 04: But suppose that all of that she went through had been explicitly [00:16:32] Speaker 04: based on, say, her race or her religion. [00:16:37] Speaker 04: And she's being repeatedly robbed. [00:16:39] Speaker 04: She's being extorted. [00:16:41] Speaker 04: It gets so bad she has to shut down the business. [00:16:44] Speaker 04: They try and run her over with a car. [00:16:46] Speaker 04: We're really going to say that that's not persecution? [00:16:50] Speaker 04: It seems hard to say. [00:16:54] Speaker 01: So this is actually discussed in the government's brief, but we did provide a number of case citations where perhaps more extreme conduct was still not found to rise to the level of persecution. [00:17:03] Speaker 01: So just to point out a few, you have the case of Goo where there was detention, there was a beating, there was interrogation, and yet there was no past persecution there. [00:17:14] Speaker 01: There's a case of Kumar where the police entered the petitioner's home. [00:17:17] Speaker 01: punched her in the face and stomach. [00:17:19] Speaker 01: There were bruises, verbal abuse. [00:17:20] Speaker 01: There was even detention. [00:17:22] Speaker 01: But even in that case, there was no past persecution found. [00:17:25] Speaker 01: And so, yes, there were a string of robberies and threats in this case, but they also be directed at the cybercafe where she worked. [00:17:31] Speaker 01: And really, I mean, this is critical. [00:17:33] Speaker 01: This is a critical point that she did not suffer any physical violence other than the scratches. [00:17:37] Speaker 01: And that really is the first fact that this court often does look at when determining the past persecution inquiry. [00:17:43] Speaker 01: And so, [00:17:43] Speaker 01: We're not trying to downplay her discount, the fact that there was a swerving car that might have been directed at her. [00:17:49] Speaker 01: Rector's not entirely clear on that, and that there were some shootings, but the shootings were outside the home, they were outside the business, and so it's not even clear that she was a target at all. [00:17:58] Speaker 01: And so, considering the aggregate, and also considering individually, there just isn't enough there for her to sustain her burden as to severity of past harm. [00:18:12] Speaker 01: And so if there are no other questions, I'll pull the rest out of the brief. [00:18:15] Speaker 01: Thank you so much. [00:18:16] Speaker 04: Thank you, counsel. [00:18:17] Speaker 04: So we'll hear a bottle now from Mr. Gensche. [00:18:29] Speaker 00: Just a few quick points, Your Honor. [00:18:35] Speaker 00: My colleague here stated that shooting at the house, because it's outside, doesn't raise to the level of persecution. [00:18:45] Speaker 00: I disagree with that. [00:18:47] Speaker 00: The shooting was towards the house. [00:18:50] Speaker 00: Also, he is mentioning that if there is no physical harm, it's kind of difficult to prove past persecution, which is not true, because considering all the evidence, as Your Honour stated, like in the span of [00:19:12] Speaker 00: 3 or 4 years she was constantly under pressure by the gangs but she never gave, she never did what probably 90% of Hondurians do and they start paying tax just not to get killed. [00:19:27] Speaker 00: Moreover, if I remember correctly, there is a case where one is forced to leave their own country because their life is in danger. [00:19:39] Speaker 00: That's considered persecution. [00:19:42] Speaker 00: I think the case is Fonseca. [00:19:46] Speaker 00: I don't remember the name now. [00:19:49] Speaker 00: a petitioner never paid any of the money asked, and she actually filed a police report. [00:19:57] Speaker 00: She was proactive. [00:19:59] Speaker 00: So reading all that and looking at the whole events that happened, [00:20:07] Speaker 00: I believe and I have experience doing immigration law, there is past persecution in this case. [00:20:15] Speaker 00: Thank you. [00:20:16] Speaker 00: All right. [00:20:17] Speaker 00: Thank you, counsel. [00:20:18] Speaker 04: The case just argued will be submitted.