[00:00:03] Speaker 05:
Good morning.

[00:00:04] Speaker 01:
Morning.

[00:00:09] Speaker 01:
May it please the court, I'm going to reserve four minutes for rebuttal.

[00:00:13] Speaker 01:
I'd like to keep track of my own time.

[00:00:15] Speaker 01:
I'm here on behalf of Petitioner Ruel Ballesteros.

[00:00:26] Speaker 01:
This petition involves three legal errors.

[00:00:31] Speaker 01:
Those legal errors, individually,

[00:00:34] Speaker 01:
are reason to grant the petition a remand.

[00:00:37] Speaker 01:
Collectively, the legal errors show that the BIA and the IJ did not give the reason consideration that Ruel was due in his petition.

[00:00:48] Speaker 01:
The first is an error regarding CAT.

[00:00:52] Speaker 01:
The agency said in a summary way the legal standard, but did not explain why or connect that legal standard to any of the facts in the record.

[00:01:03] Speaker 05:
So you're talking about the cat here?

[00:01:05] Speaker 01:
Correct.

[00:01:05] Speaker 05:
All right.

[00:01:06] Speaker 05:
Well, let me ask you this.

[00:01:09] Speaker 05:
Obviously, arguably, you could say it was sort of boilerplate, but it doesn't exist in a vacuum because they've already gone through the analysis of past persecution, the likelihood of future persecution, all of those things.

[00:01:24] Speaker 05:
So what is the relief that your client was asking for asylum?

[00:01:33] Speaker 05:
right?

[00:01:34] Speaker 05:
And withholding?

[00:01:38] Speaker 05:
Correct.

[00:01:39] Speaker 05:
And then cat, right?

[00:01:40] Speaker 05:
So if you don't qualify for asylum and withholding, then there are certain circumstances where you could qualify for cat.

[00:01:50] Speaker 05:
But the analysis of those sort of flows over.

[00:01:53] Speaker 05:
So I don't see it as a complete vacuum there.

[00:01:56] Speaker 01:
Correct.

[00:01:57] Speaker 01:
And I understand that, Your Honor.

[00:01:58] Speaker 01:
But this Court has said that the claims are analytically separate.

[00:02:01] Speaker 01:
And I understand that

[00:02:03] Speaker 01:
you can refer potentially to factual findings that the IJ made or the BIA made regarding the asylum claims.

[00:02:09] Speaker 01:
However, that did not occur here.

[00:02:12] Speaker 01:
The case law says that the BIA must explain with clarity and particularity the reasons for denying CAT.

[00:02:21] Speaker 01:
In the TURS section describing cat relief, the BIA did not at all refer to any factual findings.

[00:02:28] Speaker 01:
They simply decided the legal standard.

[00:02:30] Speaker 00:
The same with the IJ.

[00:02:32] Speaker 02:
Well, that's what I was going to ask you, so thank you for getting back.

[00:02:36] Speaker 02:
I tend to agree with you that the BIA's description on its face is rather sparse.

[00:02:43] Speaker 02:
Why is the IJ's description, if we were only looking at that insufficient?

[00:02:48] Speaker 01:
I also believe that's insufficient.

[00:02:49] Speaker 01:
It, again, does not state any findings of fact that it made prior in its opinion.

[00:02:55] Speaker 01:
It simply recites the legal standard.

[00:02:58] Speaker 01:
And the BIA even referred to the IJ's page where it cited the legal standard.

[00:03:02] Speaker 01:
It did not refer to the IJ's factual findings.

[00:03:05] Speaker 02:
Well, that's my question.

[00:03:07] Speaker 02:
I understand your concern with the BIA's opinion.

[00:03:11] Speaker 02:
I'm just trying to, if we were merely, the IJ did make a lot of factual findings and apparently looked at all the evidence as close as I can tell because he said so and recounts all the evidence at great length that was submitted.

[00:03:27] Speaker 02:
So is it, is the problem here that the BIA didn't sufficiently recount what the IJ had found or is it a problem with the IJ's findings?

[00:03:37] Speaker 01:
a couple things that your honor i'd say first um... died it putting aside the are you know make with fear future proud prosecution with that the i a not address and i want to get back to that so much i want to give you know let me just say that i j's findings you said that they presumably considered everything in the record and i and that's kind of the second part of the cat claim is we believe that there is evidence in the record that die j did not consider for example died you cited two thousand ten uh...

[00:04:05] Speaker 01:
article that said that one of the perpetrators was a subject of a criminal complaint in the Philippines.

[00:04:14] Speaker 01:
Putting semantics aside, there's country conditions reports that said the Philippine government does not prosecute human traffickers, continue to prosecute human traffickers.

[00:04:23] Speaker 01:
So even if there was a subject of a criminal complaint, there's also highly probative evidence in the record that... My difficulty with that, and I want you to get to the other part, is that

[00:04:34] Speaker 02:
The I.J.

[00:04:35] Speaker 02:
is not recounted, is not required to recount every piece of evidence.

[00:04:39] Speaker 02:
He says he's considered the country condition reports.

[00:04:42] Speaker 02:
He just hasn't specified the part of the reports that you now emphasize.

[00:04:48] Speaker 02:
So, at least from my perspective, if we were looking only at the I.J.'

[00:04:51] Speaker 02:
's decision, I'd have a hard time with your cat claim.

[00:04:55] Speaker 02:
I understand your argument with the BIA's decision, and I think you've made it.

[00:04:58] Speaker 02:
But let me turn to the withholding in asylum.

[00:05:02] Speaker 02:
And here's a question that I need some help with.

[00:05:09] Speaker 02:
You didn't argue to the BIA that the IJ had erred in not finding past persecution.

[00:05:18] Speaker 02:
As I read, there's nothing in the brief to the BIA.

[00:05:21] Speaker 02:
It's all about a well-founded fear of future persecution.

[00:05:24] Speaker 02:
Am I right?

[00:05:25] Speaker 01:
I would disagree with that and also I'd point to the BIA's actual opinion.

[00:05:29] Speaker 02:
No, but I'm not asking you what the BIA said.

[00:05:31] Speaker 02:
I'm asking you whether you argued to the BIA in your briefing.

[00:05:36] Speaker 02:
At any point, I can't find it that the IJ had erred in not finding past persecution.

[00:05:44] Speaker 05:
Or that your client could relocate.

[00:05:46] Speaker 05:
I think neither of those things were argued.

[00:05:49] Speaker 01:
I believe that the brief below, they did argue that the past persecution finding was erroneous.

[00:05:56] Speaker 05:
The BIA?

[00:05:56] Speaker 05:
The BIA.

[00:05:58] Speaker 00:
Maybe when you sit down.

[00:05:59] Speaker 00:
Yeah, I can.

[00:06:00] Speaker 00:
It would be helpful if you could point to where you did that.

[00:06:02] Speaker 00:
For the past persecution, kind of.

[00:06:03] Speaker 00:
Yeah, or where the part of it.

[00:06:04] Speaker 00:
Correct.

[00:06:05] Speaker 01:
And I will say that they did not challenge the relocation finding.

[00:06:08] Speaker 01:
I don't believe that they argued in front to the BIA that the relocation.

[00:06:13] Speaker 02:
So let me then ask the question that follows.

[00:06:15] Speaker 02:
And my premise may be wrong.

[00:06:17] Speaker 02:
You may be able to point this out.

[00:06:19] Speaker 02:
If the past persecution finding, which you admit is not, a different finding is not compelled by the record.

[00:06:28] Speaker 02:
If the past persecution finding is correct and is upheld, it would then be your client's burden to show, even if he just otherwise established a fear of future persecution, the inability to relocate, right?

[00:06:43] Speaker 00:
So there's three, I think, outcomes.

[00:06:45] Speaker 01:
One is a finding of past persecution, which would push the burden.

[00:06:48] Speaker 02:
No, no, but my question was, let's assume there's no finding of past persecution.

[00:06:53] Speaker 02:
I understand if there's...

[00:06:54] Speaker 02:
If there is one, the burden may change.

[00:06:56] Speaker 01:
Correct.

[00:06:57] Speaker 01:
And so on the fear of future persecution, the burden, if it's government-sponsored, the burden is with the government.

[00:07:03] Speaker 01:
There's a presumption that the government... Right, right.

[00:07:05] Speaker 02:
Okay, so now we've gotten to the point.

[00:07:07] Speaker 02:
The IJ finds that these were private actors, not government-sponsored.

[00:07:13] Speaker 02:
The BIA affirms his findings with respect to relocation without

[00:07:19] Speaker 02:
We're not digging down deeply onto that.

[00:07:22] Speaker 02:
Is that enough to establish for us that the record would have to compel a different finding before we could find that these were government-sponsored actors?

[00:07:32] Speaker 01:
Well, I think the legal error that we're arguing is that rule raises the challenge of the factual finding that the

[00:07:41] Speaker 01:
persecution would not be sponsored by the government.

[00:07:43] Speaker 01:
Rule challenged that to the BIA.

[00:07:44] Speaker 01:
The BIA did not address that.

[00:07:46] Speaker 02:
But didn't address it, but it did affirm the relocation finding.

[00:07:50] Speaker 02:
It did say, and it seemed to be pretty clear that the burden was on your client to establish relocation.

[00:07:57] Speaker 04:
Is it implicitly addressing it?

[00:07:59] Speaker 01:
It would have to, the BIA would have to implicitly find that the burden was with rule and that he did not make it.

[00:08:06] Speaker 01:
But I think kind of throughout our briefing, here's the point.

[00:08:10] Speaker 01:
We're guessing what the BIA did here.

[00:08:13] Speaker 01:
The whole purpose of the law requiring the BIA to state its reasons with particularity and clarity is so that we can conduct a meaningful review here.

[00:08:24] Speaker 01:
We're playing a game, I think, of where is Waldo here?

[00:08:27] Speaker 01:
What did the BIA, what did they presume, what did they

[00:08:31] Speaker 01:
assume in coming to its conclusions.

[00:08:34] Speaker 02:
I'm looking at, I guess it's page two of the BND's decision.

[00:08:39] Speaker 02:
And it says, as the respondent has not shown past persecution, which is what I asked you to assume, he is not entitled to a rebuttable presumption of a well-founded fear of future persecution.

[00:08:50] Speaker 02:
And then it goes on to talk about the respondent has not demonstrated he is unable to relocate.

[00:08:55] Speaker 02:
It seems to be pretty clear that they expressly place the burden on your client, yes?

[00:09:01] Speaker 01:
So first, just because they did not find a past persecution doesn't foreclose the possibility of establishing a future... No, no, I agree.

[00:09:09] Speaker 02:
I agree, but isn't it pretty clear that they place the burden on your client?

[00:09:14] Speaker 02:
to establish the inability to relocate?

[00:09:17] Speaker 01:
By concluding that he did not meet his burden, or by concluding that, by uploading the IJ's findings, they must have assumed that the burden was Ruel's.

[00:09:28] Speaker 01:
Our challenge, again, is to the BIA's lack of considering Ruel's challenge to the government-sponsored finding.

[00:09:42] Speaker 01:
Hopefully that answers your questions on that.

[00:09:46] Speaker 01:
And speaking of the past persecution claim, we argue on appeal here that the BI did not consider the totality of the circumstances in everything that happened in the past.

[00:10:00] Speaker 01:
And that is evident by their statement that

[00:10:05] Speaker 01:
he only suffered past persecution from the threats from the US.

[00:10:09] Speaker 02:
And on that front, they didn't even address it.

[00:10:13] Speaker 02:
The BIA didn't say your client hadn't established a well-founded fear of future persecution because of threats or events.

[00:10:22] Speaker 02:
It found that he hadn't established it because he hadn't shown that he couldn't relocate.

[00:10:29] Speaker 01:
This is on the past persecution claim, not the future persecution claim.

[00:10:32] Speaker 02:
Okay, but on the past persecution, that's what I'm coming back to.

[00:10:36] Speaker 02:
You do agree that the IJ mentioned all those things.

[00:10:39] Speaker 02:
when he who is long recitation facts he says i've taken all these all this evidence into account right final has persecution i'd jay's conclusion was a little different than the p i a s dot right okay so you need your problem with the p i a s is that it's based on the notion that not all the events occurred in the in the philippines right and uh... it's a little it's a little different uh... arguing that

[00:11:05] Speaker 01:
that there is no requirement for some of the events that occur outside the United States.

[00:11:13] Speaker 01:
But the IJ found that all events together did not rise to the level of persecution.

[00:11:19] Speaker 01:
The BIA's finding was a little different.

[00:11:21] Speaker 01:
They held that just because the events that it looked at, the threats, occurred in the US, therefore that could not establish a finding of past persecution.

[00:11:30] Speaker 02:
The BIA is finding that you're attacking, you're not the IJ.

[00:11:33] Speaker 01:
Correct, correct, yeah.

[00:11:34] Speaker 01:
And so what we think is that the BIA should have looked at everything, including that all those events rose to the level of past persecution.

[00:11:42] Speaker 01:
And we cite some cases that say, like, each of the events that happened and occurred in the Philippines could... Can you just quickly run through the things that happened in the Philippines?

[00:11:50] Speaker 01:
Correct, yeah.

[00:11:51] Speaker 01:
So I think we lay them out in our reply brief near the end page

[00:11:59] Speaker 01:
14.

[00:12:02] Speaker 01:
So debt-based coercion, when he was first trafficked, they granted him visas and other documents that he took on debt.

[00:12:12] Speaker 01:
They threatened his family and his mother fled her home.

[00:12:18] Speaker 01:
And his property was taken in the Philippines.

[00:12:23] Speaker 02:
Do any of those events, I know you want to save some time for rebuttal,

[00:12:28] Speaker 02:
They may establish a well-founded fear of future persecution, but do any of those events amount to persecution themselves?

[00:12:36] Speaker 01:
There is caseload depending on the egregiousness of those events.

[00:12:41] Speaker 01:
I'm not sure if individually here each one would, but that's not what we're arguing.

[00:12:44] Speaker 01:
We're not arguing that the IGF

[00:12:51] Speaker 01:
uh... uh... there's this case uh... and it's not we looked for uh... more in analogies case uh... madrigal it's a two thousand thirteen uh... we sat in our briefs where it was an ex military member left the military was threatened mexico was threatened a bunch uh... came to the u.s.

[00:13:09] Speaker 01:
while his mom was still in family was still in mexico they received uh... a written note uh... that was threats and died he was in the u.s.

[00:13:18] Speaker 01:
at the time and i do look at uh...

[00:13:21] Speaker 01:
all the circumstances and said that that did not rise to the level of persecution and I believe this court reversed because they did not.

[00:13:31] Speaker 02:
Wasn't that a well-founded fear of future persecution case?

[00:13:35] Speaker 01:
I believe the discussion I'm referring to is what was with regard to past persecution.

[00:13:40] Speaker 02:
Take a look at it.

[00:13:41] Speaker 04:
So is your argument that all of this taken together establishes past persecution, or just that the BIA erred by not discussing it?

[00:13:47] Speaker 01:
Yeah, we're not challenging the IJ's determination that everything together did not rise to the level of past persecution.

[00:13:53] Speaker 01:
The BIA did not consider it in totality.

[00:13:56] Speaker 01:
And that is evident.

[00:13:57] Speaker 01:
That's the error.

[00:13:57] Speaker 01:
And that's the error, correct.

[00:13:58] Speaker 01:
Yeah, that's the legal error.

[00:13:59] Speaker 01:
And that has been found to be a legal error.

[00:14:01] Speaker 02:
So if the BIA had said, we affirm the IJ for the reasons he gave in his decision, you wouldn't have a problem as to past persecution,

[00:14:10] Speaker 01:
I would say that that would be affirming the I.J.'

[00:14:12] Speaker 01:
's conclusion that the events in totality did not rise to a level of persecution.

[00:14:18] Speaker 00:
Well, but that the I.J.

[00:14:18] Speaker 00:
did look at everything and said, I don't think any of this arises to... Correct.

[00:14:22] Speaker 00:
And I think that the BIA independently... Must use those words... Has to do that.

[00:14:27] Speaker 02:
Yes.

[00:14:27] Speaker 02:
Yeah.

[00:14:27] Speaker 02:
Okay.

[00:14:28] Speaker 00:
Yeah.

[00:14:28] Speaker 01:
Thank you.

[00:14:29] Speaker 01:
Okay.

[00:14:29] Speaker 01:
And I'd like to reserve the rest of my time, and I will try to find those... I'll give you two minutes.

[00:14:32] Speaker 01:
Okay.

[00:14:32] Speaker 01:
I'll try to find those citations for you.

[00:14:34] Speaker 01:
Okay.

[00:14:34] Speaker 01:
Thank you.

[00:14:34] Speaker 01:
Thank you.

[00:14:44] Speaker 03:
good morning your honor may it please the court dan goldman on behalf of the attorney general the government asks this court to uphold the agency decision and deny the petition for review there are three issues before this court three agency findings past persecution well-founded fear future persecution and cat with regard to past persecution

[00:15:02] Speaker 03:
The board made a very straightforward finding based on the law that the past persecution has to occur in the home country, in the Philippines in this case.

[00:15:10] Speaker 03:
It did not.

[00:15:11] Speaker 03:
Therefore, Mr. Ballesteros didn't establish past persecution.

[00:15:15] Speaker 03:
The evidence does not compel reversal of that.

[00:15:18] Speaker 03:
The government urges this court to uphold that finding.

[00:15:20] Speaker 03:
With regard to well-founded fear,

[00:15:24] Speaker 03:
Well-founded fear is a complicated analysis.

[00:15:28] Speaker 03:
Can an applicant establish a well-founded fear of future persecution on account of a protected ground?

[00:15:35] Speaker 03:
Even if a petitioner, even if Mr. Ballesteros could establish those things,

[00:15:40] Speaker 03:
The regulation in this court recognized that if the individual does not establish that he cannot relocate, he doesn't establish a well-founded fear.

[00:15:49] Speaker 03:
This court made that clear in Durand-Rodriguez.

[00:15:52] Speaker 03:
The regulation makes that clear.

[00:15:54] Speaker 03:
The predicate to that is a finding of no past persecution.

[00:15:58] Speaker 03:
We have that here.

[00:15:59] Speaker 03:
And a finding that the individual fears private actors.

[00:16:03] Speaker 02:
Could you stop there for a second?

[00:16:05] Speaker 02:
I know you want to get on to Kat, too.

[00:16:07] Speaker 02:
But as to that,

[00:16:09] Speaker 02:
I think the IJ made a finding of no private actors, no public actors, no government-sponsored actors.

[00:16:19] Speaker 02:
Did the BIA address that issue at all?

[00:16:22] Speaker 03:
I don't believe they say that expressly, Your Honor.

[00:16:26] Speaker 02:
And this is the argument your friend is making, so I want to hear what you have to say about it.

[00:16:30] Speaker 02:
He says, well, maybe the IJ was right.

[00:16:33] Speaker 02:
But the BIA has an independent duty to review it, and they never address that issue.

[00:16:41] Speaker 02:
And there's at least some evidence from which a contrary conclusion might be reached, although it doesn't seem to be very strong.

[00:16:48] Speaker 02:
Why is that enough?

[00:16:51] Speaker 03:
It's enough in this case, Your Honor, because the conclusion from the board affirming the immigration judge's relocation finding

[00:16:58] Speaker 03:
can't be reached unless they make that first, the first two predicate findings.

[00:17:02] Speaker 03:
No past persecution and fear of... So you think it's an implied... Absolutely, Your Honor.

[00:17:07] Speaker 03:
That's the government's position in this case.

[00:17:08] Speaker 03:
And would also highlight for the court, the arguments from Mr. Ballesteros have evolved.

[00:17:15] Speaker 03:
In the immigration court,

[00:17:17] Speaker 03:
before the board, as Your Honor was discussing earlier, he doesn't argue past persecution.

[00:17:24] Speaker 03:
And so he raises that argument now.

[00:17:27] Speaker 02:
We're not making an exhaustion argument.

[00:17:28] Speaker 03:
We're not, Your Honor.

[00:17:29] Speaker 02:
Because the board reaches it.

[00:17:31] Speaker 03:
Absolutely.

[00:17:31] Speaker 03:
Both the immigration judge and the board reach that, so it's considered exhausted.

[00:17:36] Speaker 03:
Simply pointing out, he didn't make that argument.

[00:17:37] Speaker 03:
He's making it in a lot more detail before this court.

[00:17:41] Speaker 02:
See, in my mind, that's why I wanted to ask the question, and I want your friend to try to be able to address it.

[00:17:46] Speaker 02:
it explains to me why the past persecution finding isn't all that detailed at the BIA level.

[00:17:54] Speaker 02:
It's really not contested.

[00:17:56] Speaker 02:
What they're worried about is, okay, given that, how do the burdens lie with respect to withholding?

[00:18:02] Speaker 03:
Absolutely, Your Honor.

[00:18:03] Speaker 03:
I think that's what there are a few

[00:18:06] Speaker 03:
main points in this case that's one of them because he didn't raise a past persecution argument either in his opening brief in his in the closing arguments in the immigration court he didn't raise it again to the board the immigration judge and the board

[00:18:21] Speaker 03:
Both recognize that what happened here happened in the United States.

[00:18:25] Speaker 03:
It did not happen in the Philippines.

[00:18:27] Speaker 03:
What happened in the Philippines was he was defrauded.

[00:18:30] Speaker 03:
That's part of why he got a T visa, was he was defrauded.

[00:18:34] Speaker 03:
One of the other ways to get a T visa is to show coercion or threats.

[00:18:38] Speaker 03:
There's no evidence that he was coerced or threatened in the Philippines.

[00:18:42] Speaker 03:
And if I could address briefly the argument made by counsel, he was talking about debt-based coercion.

[00:18:47] Speaker 03:
I believe it's in the reply brief at page 14.

[00:18:49] Speaker 03:
They rely on the Zhang case.

[00:18:52] Speaker 03:
Two points to make there.

[00:18:53] Speaker 03:
Number one, this is not a case of debt-based coercion, factually.

[00:18:57] Speaker 03:
Number two, the Zhang case is distinguished completely from this case.

[00:19:02] Speaker 03:
In the Zhang case,

[00:19:04] Speaker 03:
It's a Chinese population control, one baby case.

[00:19:07] Speaker 03:
The petitioner is one of three children.

[00:19:09] Speaker 03:
Her family, by having the second and third child, violate the Chinese population control policy.

[00:19:16] Speaker 03:
The family is fined.

[00:19:17] Speaker 03:
The father is forcibly sterilized.

[00:19:19] Speaker 03:
He's too weak to work.

[00:19:21] Speaker 03:
They can't pay the fine.

[00:19:23] Speaker 03:
They're evicted from their home, I believe, their property is confiscated, and the applicant, the petitioner before this court, was not allowed to go to school because of the fine.

[00:19:33] Speaker 03:
That's debt-based coercion, with all due respect to what Mr. Ballesteros

[00:19:38] Speaker 03:
to happen to him in this case, he wanted to come to the United States.

[00:19:41] Speaker 03:
He wanted to make a living, but that's not debt-based coercion.

[00:19:44] Speaker 03:
No one forced him to go through the agency.

[00:19:47] Speaker 03:
No one forced him to do any of that.

[00:19:50] Speaker 03:
In fact, it was a family member who recommended this agency.

[00:19:53] Speaker 03:
There was no debt-based coercion in this case.

[00:19:56] Speaker 02:
Can I ask you to turn to the cat coin?

[00:19:59] Speaker 03:
Yes, Your Honor.

[00:20:00] Speaker 02:
Let me tell you what bothers me about the government's position, and maybe you can address it.

[00:20:06] Speaker 02:
Your brief says the cat claim fails for the same reason that the other claims failed, which is to say the absence of a government actor.

[00:20:15] Speaker 02:
But we don't need a government actor in a cat-based claim.

[00:20:19] Speaker 02:
We just need an actor that the government is unwilling or unable to control.

[00:20:26] Speaker 02:
And the only basis that the BIA specified for turning down the withholding claim was the relocation issue.

[00:20:35] Speaker 02:
It never got to whether the threats were serious enough to establish a well-founded fear for future persecution.

[00:20:42] Speaker 02:
So what we have is a BIA decision based on inability to relocate, which is relevant but not dispositive of a cat claim.

[00:20:49] Speaker 02:
And a brief from you all that says the absence of a government actor is dispositive.

[00:20:55] Speaker 02:
And then a BIA decision, which I think we all can admit is rather

[00:20:59] Speaker 02:
Rather sparse.

[00:21:01] Speaker 02:
Given all that, why shouldn't we grant the petition as to the cat claim?

[00:21:06] Speaker 03:
A few points to make in response, Your Honor.

[00:21:07] Speaker 03:
Obviously, we'd rely on the arguments in our brief, but specifically in discussing the cat claim, what the board says is that Mr. Ballesteros has not shown that it is more likely than not he will be tortured.

[00:21:17] Speaker 03:
So that's part one of a cat analysis.

[00:21:20] Speaker 03:
By or at the instigation of or with the consent or acquiescence of the Philippine government.

[00:21:25] Speaker 02:
That's what the regulation says.

[00:21:26] Speaker 03:
Yes, Your Honor.

[00:21:27] Speaker 05:
But it's very conclusory.

[00:21:29] Speaker 03:
I would agree.

[00:21:31] Speaker 05:
Why shouldn't we remand it to get a specific statement of the reasons for that denial?

[00:21:37] Speaker 03:
Your Honor, if the Court believes that the Board needs to further explain based on the evidence that was not in dispute,

[00:21:46] Speaker 03:
remand is an option.

[00:21:47] Speaker 03:
The government doesn't believe that's necessary here, partly for some of the reasons that were discussed before, that a decision is not evaluated in a vacuum.

[00:21:56] Speaker 03:
What the board does here is to say, we agree.

[00:21:58] Speaker 03:
We affirm the immigration judge's decision.

[00:22:00] Speaker 03:
The immigration judge does a much longer

[00:22:04] Speaker 03:
explanation, discussion of the facts.

[00:22:06] Speaker 03:
The immigration judge specifically talks about the report that's in the record, I believe it's at 363, but it's in the record multiple times, talking about the neutralization of the trafficking ring in this case.

[00:22:18] Speaker 03:
The very individuals that Mr. Ballesteros was afraid of, the Philippine government, working with the United States government, neutralized that trafficking ring.

[00:22:29] Speaker 03:
Mr. Ballesteros would have this court look

[00:22:32] Speaker 03:
if not only, certainly more, at the country conditions report.

[00:22:35] Speaker 03:
Government doesn't dispute what's in those country conditions report.

[00:22:38] Speaker 03:
Trafficking is a problem.

[00:22:41] Speaker 03:
What we have in this case is the somewhat rare circumstance where the actual individuals that Mr. Ballesteros fears, there's evidence regarding them.

[00:22:51] Speaker 03:
In most cases, this court is not going to find that in a country condition.

[00:22:55] Speaker 02:
Yeah, but what you're saying, I think, is the record doesn't compel.

[00:22:58] Speaker 02:
That's part of it.

[00:23:01] Speaker 02:
I would agree with that.

[00:23:03] Speaker 02:
I'm not sure anybody could dispute that the record doesn't compel

[00:23:07] Speaker 02:
a finding that he's probably going to be tortured if sent to the Philippines.

[00:23:11] Speaker 02:
I've got a different question.

[00:23:12] Speaker 02:
My question is, how do I know what the BIA did?

[00:23:15] Speaker 02:
And we are reviewing the BIA's decision here, are we not?

[00:23:19] Speaker 02:
They didn't adopt the IJD.

[00:23:20] Speaker 03:
They did not adopt.

[00:23:21] Speaker 02:
So we're reviewing the BIA's decision.

[00:23:24] Speaker 03:
The BIA, and to the extent that they've agreed with the immigration judge, we believe the court can look to that to try and answer your question.

[00:23:32] Speaker 03:
the court needs some assurance that this case was not glossed over, that there was not a misunderstanding, that evidence wasn't missed.

[00:23:40] Speaker 03:
Looking at the case law that Mr. Balastero cites, he's citing cases where immigration judges or the board missed facts, missed evidence, misconstrued, misunderstood evidence.

[00:23:51] Speaker 03:
There's no indication, none in this case, that either the immigration judge or the board didn't know what was going on, didn't know what Mr.

[00:24:00] Speaker 05:
time, if you deny asylum and deny withholding, it's pretty automatic that you don't meet

[00:24:11] Speaker 05:
group of cases where people can get cat and not asylum and not withholding, right?

[00:24:16] Speaker 03:
Yes, Your Honor.

[00:24:17] Speaker 03:
As this Court noted, I don't have the exact site, but the Kamalphus case from years ago, the nexus requirement that exists for asylum, the applicant has to show that the fear of the past persecution or the fear of future persecution is on account of a protected ground.

[00:24:33] Speaker 03:
That nexus requirement does not apply to a cat claim.

[00:24:37] Speaker 03:
But in this case, some of the same reasons that applied to the asylum and withholding claim, the passage of time, which the immigration judge specifically noted, talked about how Mr. Ballesteros was threatened, his family received threats, but by the time he's in immigration court in 2020,

[00:24:59] Speaker 03:
It's been eight years since those threats were made to him or to his family.

[00:25:03] Speaker 03:
That passage of time undercuts the objective reasonableness of his fear, of the likelihood of torture.

[00:25:10] Speaker 03:
In addition, the immigration judge specifically discusses at page 66 of the record the news report that was mentioned earlier that says the Philippine government has neutralized the trafficking ring.

[00:25:21] Speaker 03:
The Philippine government has neutralized the very trafficking ring, the individuals

[00:25:26] Speaker 03:
that he fears.

[00:25:27] Speaker 03:
In order to meet the second prong for Cat, government acquiescence, consent, willful blindness,

[00:25:32] Speaker 03:
he would have to show that the Philippine government isn't going to do that.

[00:25:35] Speaker 03:
Well, in this case, this court has the benefit of very specific evidence that says the individuals that he fears have been investigated, prosecuted by the Philippine government.

[00:25:46] Speaker 03:
He can't meet that second prong of the cat requirements.

[00:25:51] Speaker 03:
All of that.

[00:25:52] Speaker 05:
The fact that they kind of tend to get less explanatory as you start with the asylum, then it gets a little less.

[00:25:59] Speaker 05:
Because he doesn't qualify our asylum, then he necessarily doesn't meet the higher burden of withholding, and then you get down to cat, and then it's very conclusionary here.

[00:26:11] Speaker 05:
If it looked more like the record would be a situation that would compel a finding of Kat, would this be too exclusionary?

[00:26:19] Speaker 03:
I think the government would believe that he would have a much stronger case if all of that evidence wasn't there.

[00:26:24] Speaker 03:
If I understand Your Honor's question.

[00:26:25] Speaker 05:
I guess that's what I'm saying.

[00:26:26] Speaker 03:
In this case, Your Honor, the evidence still has to compel reversal.

[00:26:30] Speaker 03:
As I noted at the outset to Your Honor's question, if the court believes that that further explanation by the board is necessary, remand is an option.

[00:26:38] Speaker 03:
If this case goes back on remand,

[00:26:41] Speaker 03:
cannot predict exactly what the board or the immigration judge would do, but the evidence doesn't change.

[00:26:46] Speaker 03:
The fact that at that point, it would be 10 years, give or take, from when the last threats were made.

[00:26:52] Speaker 02:
Does the evidence have to compel a contrary conclusion for us simply to say the board didn't sufficiently explain it?

[00:27:00] Speaker 02:
I think those are... Well, because then they wouldn't ever have to have an explanation if the evidence was sufficient.

[00:27:08] Speaker 03:
No, and I don't mean to suggest that, Your Honor.

[00:27:09] Speaker 03:
I'm simply saying that in this case, if this court says, well, there's not a big explanation here, which the government agrees with, but then we look to the overall decision and look to both the immigration judge's decision, which the board affirms, where the immigration judge discusses all of the evidence

[00:27:27] Speaker 03:
There's no indication that the immigration judge misconstrued the evidence, misunderstood the evidence, didn't know what this claim was about.

[00:27:34] Speaker 03:
And the same would apply to the board.

[00:27:37] Speaker 03:
In those situations, the government understands where this court has understandably raised those concerns.

[00:27:43] Speaker 03:
When an immigration judge gets a fact wrong that's relevant to the ultimate decision, that's a problem.

[00:27:49] Speaker 03:
didn't happen here.

[00:27:50] Speaker 03:
When the board doesn't understand a claim that's made on appeal, that's a problem.

[00:27:55] Speaker 03:
That didn't happen here.

[00:27:56] Speaker 03:
So with regard to the cat decision, this court could send it back.

[00:28:01] Speaker 03:
I'm stopping just short of making a futility argument.

[00:28:05] Speaker 02:
But you are.

[00:28:06] Speaker 02:
What you're saying is it's so unlikely of success on remand, given the record, that their sparse explanation was sufficient.

[00:28:18] Speaker 03:
That really is your argument, isn't it?

[00:28:20] Speaker 03:
I'll refer to your phrasing of that, Your Honor, but I'm not disagreeing with it.

[00:28:23] Speaker 04:
Right, but then ultimately that does get us to the point where the BIA just doesn't have to explain itself in these cases in terms of cat, because

[00:28:34] Speaker 04:
You know, in a lot of them, you're gonna be able to look at the record, or we could look at the record and say, look, it's futile, no reason to send it back.

[00:28:40] Speaker 04:
But that's not what I read our case law as saying.

[00:28:44] Speaker 04:
We've held that you can't have a boilerplate statement.

[00:28:47] Speaker 04:
So I guess I'm trying to figure out why is this case different than those cases where we said you can't just do boilerplate.

[00:28:56] Speaker 03:
A couple of points there, Your Honor.

[00:28:58] Speaker 03:
I think, for lack of a better term, it's a spectrum.

[00:29:01] Speaker 03:
If the immigration judge and the board say,

[00:29:04] Speaker 03:
I've looked at this case denied, cite the boilerplate, no discussion of evidence.

[00:29:08] Speaker 03:
That's going to be a problem.

[00:29:11] Speaker 03:
This case is different because you have an immigration judge who does, respectfully, a good job of discussing the relevant evidence, both for withholding and asylum, but also for cat.

[00:29:22] Speaker 03:
And that gets to Judge Callahan's question earlier, where there's a distinction between cat and asylum.

[00:29:27] Speaker 03:
The distinction is nexus.

[00:29:29] Speaker 03:
Nexus isn't an issue here.

[00:29:32] Speaker 03:
The immigration judge didn't deny, and there's no denial here of Catt based on the lack of a nexus.

[00:29:38] Speaker 03:
So if that had been a situation, that's also somewhere on that spectrum, all of which goes to this court's ability to look at a decision and say, what's the evidence?

[00:29:49] Speaker 03:
Did the immigration judge and the board understand the evidence, understand and appreciate the nature of the claim?

[00:29:54] Speaker 03:
Where this court has sent cases back is where there are

[00:29:58] Speaker 03:
bigger concerns where immigration judges and the board err.

[00:30:03] Speaker 03:
I see my time has expired if I could continue briefly, Your Honor.

[00:30:07] Speaker 03:
That's with regard to Cap.

[00:30:08] Speaker 03:
If I could have just even 30 seconds, I wanted to address a point on the asylum claim, Your Honor.

[00:30:14] Speaker 03:
The claim has evolved from Mr. Ballesteros before the agency, before the immigration judge, before the board.

[00:30:21] Speaker 03:
He argued that he feared private actors.

[00:30:24] Speaker 03:
His claim is changing somewhat before this court, understandably, because if he fears the government, if it's government-sponsored persecution, the burden shifts.

[00:30:34] Speaker 03:
The problem is he didn't argue that to the immigration judge on the board.

[00:30:37] Speaker 03:
He argued that he feared private actors, that the government of the Philippines was unable and unwilling

[00:30:43] Speaker 03:
to address.

[00:30:44] Speaker 03:
Throughout his brief to the board specifically, pages I believe 10, 11, 12, 16, he says, unable and willing, I'm afraid because the Philippine government will not help me.

[00:30:56] Speaker 03:
That's not a fear of government, direct government or government-sponsored persecution.

[00:31:01] Speaker 03:
It's a fear of private actors that the government is unable and unwilling to control.

[00:31:07] Speaker 03:
In this case,

[00:31:08] Speaker 03:
no past persecution, fear of private actors.

[00:31:11] Speaker 03:
He did not testify that he could not relocate.

[00:31:15] Speaker 03:
And as counsel for Mr. Ballesteros acknowledges, he didn't challenge the relocation finding when it came up on the board.

[00:31:22] Speaker 03:
For all of those reasons, Your Honor, the government asked this court to uphold the agency decisions.

[00:31:26] Speaker 05:
Thank you for your argument.

[00:31:27] Speaker 03:
Thank you, Your Honor.

[00:31:31] Speaker 05:
All right, you have two minutes for rebuttal.

[00:31:33] Speaker 01:
Thank you.

[00:31:34] Speaker 01:
So I looked through the brief below and I did not find a challenge expressed challenge.

[00:31:40] Speaker 01:
I would have maybe said differently to pass past persecution.

[00:31:44] Speaker 01:
The brief does mention throughout the brief the facts that potentially would have supported a past persecution.

[00:31:52] Speaker 01:
What we did cite in our apply is the places where rule challenge the

[00:31:56] Speaker 01:
factual finding of the IJ that the persecution was not government sponsored.

[00:32:05] Speaker 01:
He mentions in a couple different places there.

[00:32:08] Speaker 01:
I want to pick up on some things that my friend mentioned.

[00:32:12] Speaker 01:
One, he said that this is not government sponsored, but then he said

[00:32:16] Speaker 01:
this is a claim where potentially where the government is unable or unwilling.

[00:32:19] Speaker 01:
That's exactly what Cat requires.

[00:32:21] Speaker 01:
And he also completely or continually kept mentioning that this human trafficking ring was neutralized, and this doesn't really directly bear on our legal arguments, but I will note that throughout the brief he mentions that one of the

[00:32:36] Speaker 01:
perpetrators was passed away and the record is the citation to the record and that does not support that assertion and for CAT even though even if it was individual actors for CAT it only has to be the government has to be unable or unwilling to support relief not an action actual by the government and as for the point that the government kept making saying that the IJ did not misconstrue the factual record, the IJ did not

[00:33:06] Speaker 01:
I will submit that the IJ did not consider again that key point of evidence on the country conditions that the government of the Philippines does not continually prosecute human traffickers and it's not far-fetched to think that the government who are getting kickbacks from or bribes from these traffickers and one of the perpetrators was even working in government that they would turn a blind eye to potential

[00:33:35] Speaker 01:
persecution of individuals.

[00:33:38] Speaker 01:
So thank you, Your Honors.

[00:33:40] Speaker 05:
Thank you both for your argument.

[00:33:41] Speaker 05:
This matter will stand submitted.

[00:33:52] Speaker 05:
oh yes oh thank you Judge Hurwitz reminded me that we have a pro bono lawyer here and the court we we appreciate everyone that comes to argue and that includes the government but when you argue a pro bono case that we especially like to express our appreciation of that because it gives the court a better opportunity to have the matters briefed and

[00:34:19] Speaker 05:
and properly argued before the court so that we can make a fair decision for both sides.

[00:34:24] Speaker 05:
So thank you both for your argument here today.

[00:34:26] Speaker 05:
In particular, thanks for handling pro bono matters for the court.