[00:00:02] Speaker 00:
Good morning.

[00:00:03] Speaker 00:
May it please the court, Eitan Pellet.

[00:00:05] Speaker 00:
I'm a certified law student on behalf of the petitioner, Mr. Jose Orlando Rosa.

[00:00:09] Speaker 00:
Before I begin, I'd like to reserve two minutes of our time for rebuttal, which my colleague, Mr. Chase Booth, will be handling.

[00:00:14] Speaker 00:
Thank you.

[00:00:15] Speaker 00:
Mr. Orlando Rosa respectfully requests that this court grant his petition and remand this case to the BIA because the BIA failed in four distinct ways.

[00:00:24] Speaker 00:
First, the BIA failed to adjudicate in the first instance Mr. Orlando Rosa's family basement.

[00:00:30] Speaker 00:
Second, with regard to withholding based claims that it did adjudicate, the BIA failed to engage in a cumulative analysis.

[00:00:37] Speaker 00:
Third, the BIA failed to engage in an objective assessment of the 2019 State Department country conditions report.

[00:00:44] Speaker 00:
And finally, the BIA failed in its cat analysis.

[00:00:48] Speaker 00:
Moving to my first point.

[00:00:50] Speaker 00:
In its relatively short three-page order, the board acknowledges but never adjudicates Mr. Orlando Rosa's family-based claim, which he clearly raised at every step of this case thus far.

[00:01:03] Speaker 00:
This court in Rios made clear that where an individual raises even a mixed motive claim, where the claims are related, in the Rios case, it was a religious-based claim and a family-based claim, where the board failed to adjudicate the family-based claim, this court remanded so that it could do so in the first instance.

[00:01:18] Speaker 01:
The question is, the family-based claim for withholding properly before us, if he did not raise it in the application for relief,

[00:01:29] Speaker 00:
Your Honor, what's more important here, our position is that it was raised and acknowledged in his briefs before both the IJ and the board, and indeed both the IJ and the board acknowledged it, at least acknowledged it, but what happened is that the board then failed to adjudicate it as this court has required.

[00:01:48] Speaker 00:
And opposing counsel points to one sentence on the fourth page of the record, the second page of the board's order, where it stated that it discerned no reason to disturb the IJ's finding with regard to the applicant's ability to establish probability of future harm on account of a protected ground.

[00:02:07] Speaker 00:
But that sentence leaves us guessing as to what it is adjudicating.

[00:02:11] Speaker 00:
And the board's decision structure

[00:02:14] Speaker 00:
indicates that that is the topic sentence of a paragraph that talks about political opinion, not a family-based one.

[00:02:19] Speaker 01:
I think your friend on the other side essentially argues that the board considered the groups in tandem, I think is their language.

[00:02:30] Speaker 01:
Is that not what happened here?

[00:02:32] Speaker 00:
Well, if that is what happened, it would still violate what this court held in Rios, where there needed to be an independent adjudication of each of the claims raised.

[00:02:44] Speaker 00:
In Rios, as I mentioned, there was a religious-based claim and a family-based claim.

[00:02:47] Speaker 00:
And indeed, in Rios, the petitioner's father had been killed outside the church, so the issues were related.

[00:02:53] Speaker 00:
But this court required an independent adjudication.

[00:02:55] Speaker 00:
Here, there was no independent adjudication of the family-based claim.

[00:02:58] Speaker 00:
In fact, nowhere in the board's opinion does it mention the fact that almost every single member of the petitioner's family have been killed.

[00:03:06] Speaker 03:
To what extent do we look to the IJ's decision in this case with respect to the family-based claim?

[00:03:13] Speaker 00:
In this case, this court shouldn't because the board never expressly adopted the IJ's opinion.

[00:03:19] Speaker 00:
And this court has held time and time again that it only looks to the IJ's opinion where there is express adoption.

[00:03:25] Speaker 00:
In Duran-Rodriguez and in Lin, which are the two cases that opposing counsel relied upon, there was an express adoption.

[00:03:31] Speaker 00:
also in Garcia and a number of others.

[00:03:34] Speaker 00:
And most importantly in the matter of Bourbono, which is the board's own opinion, it uses the language express adoption of the IJ's opinion.

[00:03:43] Speaker 00:
Because that language did not occur here, the board's opinion has to stand on its own.

[00:03:48] Speaker 00:
And with regard to the family place came, it did not because there was no adjudication there.

[00:03:53] Speaker 00:
And again, significantly, in fact, nowhere did the board mention the fact that in 2004, his sister was murdered, or the fact that in 2014, his brother was murdered.

[00:04:03] Speaker 00:
And these are individuals that are part of his family that are similarly situated that have been killed.

[00:04:08] Speaker 00:
And if the court has no further questions on the first issue, then I'll now move to our second issue, which is with regard to the board's failure to engage in a cumulative analysis with regard to the material facts of this case.

[00:04:18] Speaker 00:
This court in Sharma and in Salguero Sosa and a number of other cases has held that the board must engage in a cumulative analysis, must look to the cumulative effect of the incidents that impact the petitioner.

[00:04:31] Speaker 00:
The board failed to engage in that cumulative analysis with regard to the political-based claim, which goes directly to his likelihood of establishing future persecution.

[00:04:40] Speaker 00:
Nowhere does it mention and connect the fact that, for example, in 2004, the year that his sister was murdered, he received a written threat at his home address in the United States.

[00:04:49] Speaker 01:
Well, but if I understood the facts, I don't think he knew who that was from.

[00:04:56] Speaker 00:
Is that correct?

[00:04:57] Speaker 00:
Well, he mentions in the record that he is, and it is his words, that he is sure that the individuals that killed his family are the same ones that were threatening him.

[00:05:06] Speaker 00:
And that's especially true with regard to the phone calls that he received.

[00:05:09] Speaker 00:
For example.

[00:05:10] Speaker 01:
Do you think that the conditions in the country really sort of doomed those claims with regards to the cat and withholding?

[00:05:17] Speaker 01:
I mean, do we have a problem with the fact that the changed political system, where now the FMON are in charge?

[00:05:28] Speaker 00:
Well, a couple of points in response to that, Your Honor.

[00:05:30] Speaker 00:
First, we don't dispute the fact that the Civil War has ended in El Salvador, but that had no impact on the fact that his sister in 2004 was killed, his brother was killed in 2014, both of which are in the post-Civil War period.

[00:05:41] Speaker 00:
And the 2014 murder in particular was during the FMLN ruling.

[00:05:45] Speaker 00:
So again, that did not protect an individual that's similarly situated to Ms.

[00:05:49] Speaker 00:
Orlando Rosa.

[00:05:50] Speaker 00:
And so therefore, the conditions have not sufficiently changed.

[00:05:53] Speaker 03:
But doesn't that

[00:05:55] Speaker 03:
Doesn't it reflect, though, that there's less likelihood of chance that he'd be persecuted going back when you have members who were part of the opposition party who are now in control in the country?

[00:06:08] Speaker 00:
Well, Your Honor, that didn't protect either of his siblings.

[00:06:10] Speaker 00:
And it also has not mitigated these persecutors' interest in his life.

[00:06:13] Speaker 00:
He was threatened in 2014.

[00:06:14] Speaker 03:
Well, his siblings, what year were those siblings?

[00:06:18] Speaker 03:
I think you just said it, right?

[00:06:19] Speaker 00:
Yes, 2004 and 2014.

[00:06:23] Speaker 03:
doesn't the passage of time since then now make a difference?

[00:06:29] Speaker 00:
Well, the three years that passage in 2014 and 2017 didn't mitigate their interest because they again called him and threatened his life.

[00:06:35] Speaker 00:
And in that threat, they are the individuals that Mr. Orlando Rosa is, quote, sure are the same people that murdered his siblings.

[00:06:45] Speaker 03:
If he's sure, tell me why he's sure.

[00:06:48] Speaker 03:
And what proof do you have that they are the same?

[00:06:50] Speaker 00:
Well, in the record on page 106 and 110 and 113 are the places that he mentions it.

[00:06:57] Speaker 00:
And this is an individual that was found to be credible by the immigration judge.

[00:07:01] Speaker 00:
And so we have no reason to doubt his credibility.

[00:07:03] Speaker 00:
And his credibility is not an issue there.

[00:07:04] Speaker 00:
And in addition to him thinking so, he's basing that as also on the fact that his nieces told him that they're likely the same and his biological mother told him that they're the same people.

[00:07:14] Speaker 00:
And so there's no reason to doubt that they're not the same individuals, especially because in those phone calls where they threatened him, they mentioned the murders.

[00:07:22] Speaker 00:
They told him, you are next.

[00:07:23] Speaker 00:
You are next in the Rosa family to die, essentially.

[00:07:27] Speaker 04:
And so, Counselor, who is it that he believes are threatening him?

[00:07:31] Speaker 04:
What group?

[00:07:33] Speaker 00:
individuals that have identified him both as a member of the Rosa family and a former FMLN member that are holding essentially this grudge against him.

[00:07:43] Speaker 03:
Are they associated at all with any law enforcement officials or the government in any way?

[00:07:51] Speaker 00:
Well, with regard to the withholding, that's not necessary in this case.

[00:07:54] Speaker 00:
But with regard to the CAT claim, the acquiescence standard, we believe, is met here.

[00:07:59] Speaker 03:
What's your authority that it's not relevant to the withholding claim?

[00:08:03] Speaker 00:
You're right.

[00:08:04] Speaker 00:
I see that I'm coming a lot of time.

[00:08:05] Speaker 00:
May I quickly respond?

[00:08:06] Speaker 03:
I'll give you extra time.

[00:08:07] Speaker 03:
Go ahead.

[00:08:08] Speaker 03:
Well, I suppose I'll focus on the CAT claim in response to the- No, I understand on CAT, but on withholding, what's your authority?

[00:08:15] Speaker 00:
I don't know that this court has held that it must be a government actor that is persecuting them.

[00:08:20] Speaker 00:
Thank you so much.

[00:08:36] Speaker 03:
Council, is it Ms.

[00:08:38] Speaker 03:
Zyda?

[00:08:38] Speaker 03:
Zyda, can you pronounce her name?

[00:08:41] Speaker 05:
Zyden.

[00:08:43] Speaker 05:
May it please the court.

[00:08:44] Speaker 05:
My name is Christina Zyden and I represent the Attorney General.

[00:08:48] Speaker 05:
I want to say a quick thank you to the professors, the students, the panel, and the court staff for permitting my video appearance today at short notice after I had a temporary health scare on Thursday.

[00:09:00] Speaker 05:
I really appreciate it.

[00:09:02] Speaker 05:
And so turning to the facts of this case,

[00:09:06] Speaker 05:
We want to address the four concerns brought up by opposing counsel and also the motion for judicial notice.

[00:09:18] Speaker 05:
So starting with the motion for judicial notice, we would ask the court.

[00:09:23] Speaker 01:
We would ask the court.

[00:09:24] Speaker 01:
Counsel, could you please first address the concern that is raised that the BIA just didn't address the family-based claim

[00:09:35] Speaker 01:
Not only didn't address it in many ways, it misconstrued it.

[00:09:42] Speaker 01:
So could you please address that?

[00:09:44] Speaker 05:
Yeah, definitely, Your Honor.

[00:09:46] Speaker 05:
So with the family-based claim, our position is that the family-based claim was addressed, the board mentioned it, the board held broadly that Mr. Arosa had not shown a clear, had not shown a clear probability.

[00:10:02] Speaker 01:
Counsel, we can all talk in broad terms, but here wasn't the board specifically supposed to address

[00:10:09] Speaker 01:
the social group, first of all, characterize it correctly and second, address the merits and it didn't do that, did it?

[00:10:19] Speaker 05:
Well, we believe that it did address the merits and characterize it correctly because it wasn't truly a separate claim from the political opinion claim or at least from the former FMLN membership claim.

[00:10:32] Speaker 05:
The board did bring up the facts that the family membership claim was based on, namely,

[00:10:38] Speaker 01:
to the two instances where Mr. Rosa, the two years where he received... I guess if you can point me to where the BIA did that, because I understood that the BIA construed the claim as a family-based claim, whereas the claim that was being noticed was the family involved in the FMLN.

[00:11:02] Speaker 01:
So I think they're two distinct groups, aren't they?

[00:11:08] Speaker 05:
And so they aren't distinct groups in the sense that Mr. Rosa, at the same time that he's making this family-based claim, is also distinguishing himself from members of his family who are living in El Salvador unharmed.

[00:11:20] Speaker 01:
Well, but here's the problem, though, with that argument.

[00:11:23] Speaker 01:
And I thought about it, because I noticed it was in the briefing.

[00:11:27] Speaker 01:
But the problem is that the family who was not in the FMLN

[00:11:31] Speaker 01:
didn't die.

[00:11:32] Speaker 01:
The family that was in the FLN were targeted and in fact killed.

[00:11:38] Speaker 01:
In fact, I believe at least the father, the sister, maybe the uncle, that was an important distinction, don't you think?

[00:11:48] Speaker 05:
So the way that the, that is the distinction that Mr. Rosa is trying to make.

[00:11:55] Speaker 05:
But what the board stated is that the phone calls that Mr. Rosa received don't appear to be linked to, the phone calls that mentioned his family members who were killed, they don't appear, there's no evidence that they were linked to his political opinion, essentially.

[00:12:13] Speaker 03:
What about his family-based claim, though?

[00:12:18] Speaker 03:
because that's a separate claim on the political opinion.

[00:12:21] Speaker 03:
But what about the family?

[00:12:22] Speaker 03:
I don't think they commented on that at all, did they?

[00:12:27] Speaker 05:
Well, the board noted that he made a family-based claim, and they did cite the pages of the immigration judge decision that also adjudicated the family-based claim as well.

[00:12:41] Speaker 05:
And so we argue that that's sufficient for the board to have adjudicated this claim.

[00:12:46] Speaker 05:
And what's your best authority for that?

[00:12:50] Speaker 05:
And so this court has actually held that it can review the immigration judge decision even in the absence of a matter of Burbano's citation and adoption.

[00:13:02] Speaker 05:
The court has held that in, let's see,

[00:13:09] Speaker 05:
The court held that in Medina Lara versus Holder.

[00:13:12] Speaker 05:
That's 771 F3rd 1106.

[00:13:16] Speaker 05:
Whereas here the board incorporates the IJ's decision into its own without citing matter of Burbano, the court will review the IJ's decision to the extent incorporated.

[00:13:25] Speaker 03:
But, well, I guess I'm trying to figure out the board did not explicitly adopt the IJ's decision as its own, did it?

[00:13:37] Speaker 03:
And I'm really kind of trying to figure out there's a difference there between there's no reason to disturb IJ's finding.

[00:13:47] Speaker 05:
So the board did not adopt the immigration judge's decision as its own.

[00:13:52] Speaker 05:
No, that is correct.

[00:13:53] Speaker 05:
And however, this court has not held that that's necessary in order to review the portions of the IJ's decision on which the board relied.

[00:14:02] Speaker 05:
And the board on page four of the record repeatedly references the IJ's decision.

[00:14:14] Speaker 03:
repeatedly references it with respect to the political opinion.

[00:14:19] Speaker 05:
That is correct but the board also cites pages of the IJ's decision that go to the family membership adjudication.

[00:14:33] Speaker 05:
And the board also brings up threatening phone calls in 2014 and 2017 which the immigration judge considered as part of adjudicating the family-based claim.

[00:14:43] Speaker 03:
And what's your best argument why this case is distinguishable from Rios versus Lynch?

[00:14:50] Speaker 05:
So our best argument is that in Rios, that was a case where the board, or that was a case where this court held that the board misconstrued the family-based claim by really adjudicating a completely different particular social group.

[00:15:10] Speaker 05:
And this case, and I believe it had happened as well at the IJ level.

[00:15:15] Speaker 05:
And in this case, the IJ adjudicated the family-based claim very clearly.

[00:15:23] Speaker 05:
And as well, the board cited that adjudication.

[00:15:33] Speaker 05:
And going to the second argument that opposing counsel made about the immigration judge not cumulatively considering the claim with regard to the political opinion,

[00:15:48] Speaker 05:
One thing that opposing counsel pointed at is that opposing counsel argued that the 2019 report was not considered, but in fact the immigration judge, I don't believe the immigration judge specifically cited it, but there's no evidence that it was ignored.

[00:16:09] Speaker 05:
The immigration judge recited many facts that were consistent with the 2019 report.

[00:16:13] Speaker 05:
report, including that Freedom Fair elections had taken place in 2019 and that a former member of the FMLN became president.

[00:16:26] Speaker 05:
Alright, and so there's no evidence that the board ignored, that the immigration judge, excuse me, ignored the 2019 report.

[00:16:40] Speaker 03:
Can I ask you about the motion for judicial notice and what your position is?

[00:16:47] Speaker 05:
So our position on the motion for judicial notice is that, first of all, with regard to the Immigration Nationality Act 8 USC 1252B4A states that the court shall decide the petition only on the administrative record on which the order of removal is based.

[00:17:11] Speaker 05:
And so our position is that that controls and that the proper way for asserting changed country conditions is also addressed by the Immigration Nationality Act and should be done in the form of a motion to reopen.

[00:17:23] Speaker 05:
This court does have precedent on judicial notice and on taking judicial notice of changed country conditions, and that is before versus INS.

[00:17:33] Speaker 05:
And in that case, the court held that conditions were so troubling, so well publicized, so similar,

[00:17:38] Speaker 05:
to conditions that the non-citizen had fled from, that it would take judicial notice, and here that is not the case.

[00:17:46] Speaker 05:
The conditions that Mr. Rosa had fled from have not returned to El Salvador, essentially.

[00:17:53] Speaker 05:
The civil war has not returned.

[00:17:55] Speaker 05:
The FMLN and the government are not warring in the streets.

[00:17:59] Speaker 05:
And so he points at a couple of alleged political detentions in the 2022 State Department report.

[00:18:06] Speaker 03:
You're fading out a little bit.

[00:18:08] Speaker 03:
Can you speak brighter?

[00:18:11] Speaker 05:
I apologize.

[00:18:12] Speaker 05:
I'll speak up.

[00:18:13] Speaker 05:
And so the 2022 report, he refers to alleged political detentions in that report.

[00:18:20] Speaker 05:
But he hasn't shown that he's similarly situated to those individuals because the individuals mentioned are high profile members of the FMLN and are current members of the FMLN, whereas Mr. Rosa is a former member of the FMLN.

[00:18:36] Speaker 05:
If this court is inclined to see before as similar to this case though, we would ask as an alternative to remand that the court place this case in abeyance to permit Mr. Rosa to file a motion to reopen with the board and make his full case there.

[00:18:57] Speaker 03:
I see that my time is up and so I-

[00:19:03] Speaker 03:
the difference in holding it in abeyance versus a remand?

[00:19:08] Speaker 05:
Because we actually don't believe that Mr. Rosa has made his... We don't believe that he's made a full case for this court as to remand based on judicial notice.

[00:19:23] Speaker 05:
And so what we would... But at the same time,

[00:19:29] Speaker 05:
At the same time, we would not object to holding this in advance if the court is inclined to decide that this case is like before, potentially.

[00:19:39] Speaker 03:
Okay.

[00:19:42] Speaker 03:
Does anybody else have any questions?

[00:19:43] Speaker 03:
All right.

[00:19:44] Speaker 03:
Thank you very much.

[00:19:45] Speaker 05:
Thank you.

[00:20:00] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:20:02] Speaker 02:
My name is Chase Booth, and I'm a certified law student on behalf of the petitioner, Mr. Orlando Rosat.

[00:20:07] Speaker 02:
And today I have just a couple of points on rebuttal, Your Honors.

[00:20:10] Speaker 02:
The first is that, as stated here, the BIA just simply did not expressly adopt the IJ's opinion, nor invoke matter of burbano.

[00:20:18] Speaker 02:
And the case that the government relied upon just now an oral argument for the point that you can look to the IJ's decision, Medina Lara versus Holder, the language quoted there is exactly this.

[00:20:30] Speaker 02:
Whereas here, the board incorporated the IJ's decision without Burbano, this court will review the IJ's decision to the extent incorporated.

[00:20:38] Speaker 02:
Now, it's Mr. Arlano-Rosa's position that simply citing two portions of the IJ's decision is not enough to incorporate it into the BIA order.

[00:20:46] Speaker 02:
And the BIA order here, standing alone, just simply does not have a family-based adjudication to make when there's no mention at all of Mr. Rosa's murdered family members.

[00:20:56] Speaker 03:
So if that is the case,

[00:20:59] Speaker 03:
The BIA didn't fairly review this particular issue.

[00:21:09] Speaker 03:
Do we remand?

[00:21:10] Speaker 03:
Do we remand on an open record?

[00:21:12] Speaker 03:
Do we hold it in abeyance, as your friend across the aisle suggests?

[00:21:18] Speaker 02:
Your Honor, it would be ideal for the case to resolve as quickly as possible.

[00:21:22] Speaker 02:
And a remand, I think, is appropriate here for the BIA to just simply do its duty and adjudicate this family-based claim.

[00:21:28] Speaker 02:
Because I believe there's enough in the record here to warrant relief from removal on that.

[00:21:34] Speaker 03:
And can you respond to the question regarding the motion for judicial notice and why we should or should not grant that?

[00:21:45] Speaker 02:
Your Honor, this court should grant the motion for judicial notice because otherwise this case is ultimately frozen in time in 2019, and country conditions in El Salvador have changed sufficiently since the 2019 report.

[00:21:57] Speaker 03:
But what's your best authority for us to consider that at this point, since we're supposed to look at what was before the record, in the record at the time that the decision was made by the BIA?

[00:22:10] Speaker 02:
Your Honor, I don't with me currently have good authority for that, but I can provide supplemental briefing to that effect if the court would benefit from that in terms of its decision on the motion for judicial notice.

[00:22:22] Speaker 02:
But it's petitioner's position ultimately that even if the court were to deny that motion that there's enough information in the country conditions 2019 report to justify still withholding removal relief because country conditions on the floor are on the ground in El Salvador haven't changed sufficiently to protect

[00:22:40] Speaker 02:
individuals who are similarly situated to Mr. Orlando Rosa like his brother who was murdered in 2014.

[00:22:45] Speaker 02:
And law has not ultimately required petitioners to understand the exact motivations and identities of their persecutors before they're granted relief from withholding.

[00:22:54] Speaker 04:
Counsel, I just want to get some clarification from you with regard to the remand request.

[00:23:00] Speaker 04:
Are we talking open remand?

[00:23:01] Speaker 04:
Are we talking just remand to the BIA to determine your client's eligibility for family-based social group?

[00:23:09] Speaker 04:
What are you asking for?

[00:23:10] Speaker 02:
A remand on that point specifically would be great, Your Honor, on the family-based claim, but also there is, in our opinion, substantial evidence in the record to compel a different conclusion with respect to the other claims that the BIA did adjudicate, namely the former FMLN and imputed political opinion claims.

[00:23:27] Speaker 02:
So if the Court were willing to remand with appropriate instructions to grant relief there, Petitioner would be grateful as well.

[00:23:36] Speaker 03:
All right.

[00:23:37] Speaker 02:
Thank you very much.

[00:23:37] Speaker 03:
Thank you.

[00:23:42] Speaker 03:
First, I'd like to thank the University of San Diego School of Law for taking on this case.

[00:23:48] Speaker 03:
I really appreciate the universities and the law schools in particular for taking on these pro bono matters.

[00:23:57] Speaker 03:
And so Mr. Schlesinger, thank you for supervising Mr. Pellet and Mr. Booth here today.

[00:24:05] Speaker 03:
And Ms.

[00:24:07] Speaker 03:
Zaidat, am I pronouncing it correctly?

[00:24:11] Speaker 05:
Yes, your honor.

[00:24:13] Speaker 03:
I want to thank you for your presentation today, and I wish you good health So okay.

[00:24:18] Speaker 03:
Thank you very much the matter of Jose Orlando Rosa versus Merrick Garland is now submitted