[00:00:03] Speaker 00: Good morning and may it please the court. [00:00:05] Speaker 00: Could you pull the microphone down so we can hear you there? [00:00:10] Speaker 00: Good morning and may it please the court. [00:00:11] Speaker 00: My name is Elizabeth Rodriguez for Petitioner and I would like to reserve two minutes for rebuttal. [00:00:18] Speaker 00: The first issue I wanted to focus on is whether there has been a [00:00:25] Speaker 00: fundamental change of law within the circuit for a defective NTH to serve as a due process violation to warrant reopening. [00:00:33] Speaker 00: We do argue that it does. [00:00:35] Speaker 00: Specifically in looking at, for example, Nice Chavez, it states that it should [00:00:41] Speaker 00: that the government should at least supply him or her with a single and reasonably comprehensive statement of the procedure against him. [00:00:49] Speaker 04: Counsel, how does your argument survive the decision in Bastid Hernandez? [00:01:01] Speaker 00: Well, Your Honor, I think that in looking back and these trials with us, which again is the Supreme Court case, [00:01:07] Speaker 00: I think it is very clear when it says that it is only one notice that has to be served and that there's really no way to cure that defect. [00:01:18] Speaker 00: Therefore, while it's unfortunate that we have gotten to this point, and we've gotten so far in litigation, I would say that the law demands still reopening under these. [00:01:30] Speaker 04: But we're bound by our own case law to the contrary, are we not? [00:01:35] Speaker 04: I'm sorry, Your Honor. [00:01:36] Speaker 04: Are we not bound by our decision in Bastid Hernandez, which was later than Niez Chavez, and decided the issue contrary to your position? [00:01:49] Speaker 00: It may be, Your Honor, but I would argue that this is not necessarily bound by this decision, and I would still refer back to Niez Chavez at this point. [00:02:05] Speaker 00: And if I could also reserve that I may have something else for you and on rebuttal So again even though it's unfortunate that we've gotten to this point I do believe that the the law still demands that the case should be reopened and [00:02:29] Speaker 00: essentially dismiss that there could be a proper proceeding started against this person. [00:02:36] Speaker 00: In fact, this issue, in fact, could have been done during the merits of the case back in, I believe it was 2018, but the government continued to deny that it had that responsibility through now years of litigation when really at that point it could have [00:02:57] Speaker 00: said, OK, yes, this is something that we need to cure from the get-go. [00:03:02] Speaker 00: As to another issue that I wanted to review is whether or not there was a correct legal standard used in this case for purposes of withholding. [00:03:19] Speaker 00: Although the decision for the immigration judge, which I think [00:03:25] Speaker 00: needs to be looked at since essentially the BIA affirmed the decision for this case. [00:03:32] Speaker 00: And although the immigration judge decision does cite at one point the correct standard, I think when looking at the factual analysis that the immigration judge does, it really focuses [00:03:50] Speaker 00: For example, on the reasoning as being general violence, rather than looking at the factual statements that were made, which in this case, there was a lot of reference to actual statements by the persecutors where they actually went after these people specifically for their kinship to the husband and his ex-employment. [00:04:16] Speaker 00: with illegitimate business that had connections with cartels and police corruption. [00:04:24] Speaker 00: So I think that is important to look at. [00:04:28] Speaker 01: Is there any case law to support the contention that ex-cartel workers are a recognized group? [00:04:38] Speaker 00: No, Your Honor. [00:04:39] Speaker 00: I don't think I know of any specific law that does. [00:04:42] Speaker 01: What would you argue by way of analogy? [00:04:45] Speaker 00: by way of analogy as whether or not there's a particular social group. [00:04:50] Speaker 00: I would say that the immigration judge reviewed, for example, kinship and then the ex-cartel members separately, but really it was something, especially when Joinder was not granted, that should have been looked at [00:05:08] Speaker 00: in connection to one to the other because it was obvious from the testimony that the respondents, excuse me, the whole basis of their claim was based on the husband and father's connection to this business. [00:05:29] Speaker 00: So that's the argument that I have. [00:05:34] Speaker 00: And I think those were actually my main points, Your Honor, is if there's any other questions, I'd be glad to try and respond those to you. [00:05:43] Speaker 03: You can reserve your time for rebuttal if you'd like. [00:05:45] Speaker 00: I can reserve my time. [00:05:46] Speaker 00: Yes, thank you. [00:05:48] Speaker 03: All right, Ms. [00:05:49] Speaker 03: Slack. [00:05:56] Speaker 02: May it please the court, Michelle Slack for the Attorney General. [00:06:00] Speaker 02: I will start where [00:06:02] Speaker 02: petitioner starts her argument about the defective notice to appear. [00:06:08] Speaker 02: That's settled law in this circuit and by and large in most circuits. [00:06:13] Speaker 02: that the issues with regard to a defective notice to appear are not jurisdictional. [00:06:19] Speaker 02: It's a claim processing rule, and therefore it can be waived. [00:06:23] Speaker 02: And when it wasn't raised before the close of proceedings, it was waived, much like many of the defenses one might see in federal rule of civil procedure 12b. [00:06:36] Speaker 02: They're waived if they're not raised before the close of proceedings. [00:06:42] Speaker 02: And Bastid Hernandez certainly closes that issue with respect to jurisdiction. [00:06:49] Speaker 02: The second point I'd like to address is this idea that [00:06:52] Speaker 02: the incorrect legal standard was used. [00:06:55] Speaker 02: First of all, as the board points out, when it used the immigration judge's analysis of withholding of removal, it was looking at two things [00:07:08] Speaker 02: the need for a grounds, here would be a particular social group that's cognizable, and the issue of past persecution. [00:07:18] Speaker 02: Because that's what the immigration judge denied withholding on. [00:07:21] Speaker 02: Those are identical standards for purposes of asylum and withholding. [00:07:27] Speaker 02: To the extent that the [00:07:30] Speaker 02: immigration judge also made a nexus finding, I would say that its nexus finding is really just there's no particular social group, so we can't have a nexus to any particular social group. [00:07:41] Speaker 02: But to the extent that this court disagrees and thinks that the immigration judge did make a nexus finding, it would be that if there's no A to the [00:07:59] Speaker 02: grounds, if there's not a reason, there certainly can't be one central reason. [00:08:05] Speaker 02: And so therefore, if you think about it like a Venn diagram, one central reason, the asylum standard, would be completely encapsulated by the withholding standard. [00:08:16] Speaker 04: Why wouldn't family be the appropriate social group? [00:08:19] Speaker 04: Because the petitioner here is claiming that problems arose because of her husband. [00:08:29] Speaker 02: You're correct, Your Honor. [00:08:31] Speaker 02: In some sense, this has, in its essence, a derivative claim. [00:08:38] Speaker 02: And Petitioner has repeatedly referred to these cases as derivative of the husband's case. [00:08:46] Speaker 02: The problem is that the husband's case is not in front of the court. [00:08:51] Speaker 02: Today, we are looking at the wife and the younger children, and there's a separate case in front of the court involving the adult son. [00:09:03] Speaker 02: So it's not actually, we're not looking at a derivative case here. [00:09:07] Speaker 02: but to address the issue of whether or not family is a particular social group. [00:09:13] Speaker 02: Yes, the courts have recognized and the board has recognized that a family can be a particular social group, but it has to be the outer limits of the family that you're talking about. [00:09:24] Speaker 02: have to be addressed. [00:09:26] Speaker 02: When this issue came up before the immigration judge, the immigration judge repeatedly asked counsel, warned counsel that articulation of a particular social group requires it be specific. [00:09:41] Speaker 02: Well, this is pretty specific. [00:09:43] Speaker 04: It's her husband. [00:09:44] Speaker 04: That isn't really very far out of the central meaning of a nuclear family. [00:09:53] Speaker 02: But Your Honor, at the time that it is offered to the immigration judge, it's not articulated as the family, the immediate family to the husband. [00:10:03] Speaker 02: It's not articulated that way. [00:10:05] Speaker 04: Let's assume that we disagree with you about that. [00:10:08] Speaker 04: Where does that leave us in terms of the decision that was made? [00:10:15] Speaker 02: I think it would then require a remand back to the agency, because the agency said it wasn't sufficiently articulated. [00:10:22] Speaker 02: for them to address the requirements of a particular social group, particularly particularity. [00:10:29] Speaker 02: It was difficult to determine social distinction, to determine the other components of a particular social group without having that [00:10:43] Speaker 02: articulation specifically to what family are we talking about. [00:10:48] Speaker 02: That was the basis of the agency's denial of the kinship, particular social group. [00:10:55] Speaker 04: And another question that I have for you, I may misunderstand this from what I've looked at, but it sounds as if the husband's claim was unsuccessful. [00:11:08] Speaker 04: Correct. [00:11:08] Speaker 04: And is that a final decision, or is that something we can think about at all? [00:11:15] Speaker 02: As the board points out in footnote four of its original decision, not the motion to reopen component of the decision, the final order of removal against the husband, it was final as of May 2018. [00:11:31] Speaker 02: And so therefore, even if this was a derivative claim, [00:11:34] Speaker 02: The petitioners here have already lost that claim. [00:11:37] Speaker 04: If it's not derivative, but it's based on family, but if his claim fails, even if it's not derivative, how do we analyze that? [00:11:49] Speaker 02: Well, as a non-derivative claim, because the agency said this isn't a recognizable, cognizable particular social group, they relied on the failure to articulate it. [00:12:03] Speaker 02: that the agency has not addressed in the first instance whether or not any particular more defined social group. [00:12:15] Speaker 04: Well, I guess what I'm having difficulty understanding is, regardless of this label as derivative, if the claim is I was persecuted because, and of course there's a negative finding on that, but the claim is I was persecuted because of my husband's relationship to this business and the cartels. [00:12:41] Speaker 04: Therefore, I win. [00:12:46] Speaker 04: If we know that his claim lost, sort of as a matter of law, how can her claim succeed? [00:12:59] Speaker 02: If there's evidence that the family's at a greater risk, perhaps, than him. [00:13:03] Speaker 02: But I think what you're getting at, Your Honor, is a remand might be futile. [00:13:08] Speaker 02: It might be that then they go ahead and they address whether or not this is a particular social group. [00:13:13] Speaker 02: And we'll just say for sake of argument, they recognize it, this particular immediate family. [00:13:17] Speaker 02: as a particular social group, that it might be futile because in the end, it wasn't even enough for the husband. [00:13:25] Speaker 02: And so then by virtue, it's most likely not enough for purposes of the rest of the family. [00:13:32] Speaker 02: But the board would probably have to address that if it is not considered by this court to be futile. [00:13:45] Speaker 02: If there's no further questions, I'll rest on my argument in the briefs. [00:13:51] Speaker 02: All right, thank you, counsel. [00:13:52] Speaker 02: Thank you very much. [00:14:02] Speaker 00: Yes, your honor. [00:14:04] Speaker 00: So the only thing really I wanted to raise is that a government counsel, when she said that the [00:14:15] Speaker 00: that we had waived, excuse me, the objection to the notice to appear, I would say that our argument is that the change of law happened, and then there was a raising of that at the merits hearing, which was less than 30 days than when Pereira came up. [00:14:37] Speaker 00: And from that onset of proceedings, I believe council, [00:14:41] Speaker 00: did object to the NTA from the get-go. [00:14:45] Speaker 00: Yes, it was for different reasons, but it was done. [00:14:48] Speaker 00: And again, within 30 days of Perera, which starting this whole litigation process, you know, the council did immediately object to the NTA. [00:14:58] Speaker 00: As far, oh. [00:15:03] Speaker 03: I want to follow up on a PSG issue. [00:15:06] Speaker 03: Yes. [00:15:08] Speaker 03: In front of the agency, [00:15:09] Speaker 03: Did your client ever articulate a family-based particular social group specifically in reference to the husband? [00:15:18] Speaker 00: I would say, I would have to say that at least from the record, I don't think that it was ever stated as being kinship to or actually articulate to where it was related to the actual ex-employment of the husband. [00:15:35] Speaker 00: It was articulated separately. [00:15:37] Speaker 00: However, I do believe since it is very obvious that this was a claim based on the husband, I would argue that it was something that should have been reviewed. [00:15:50] Speaker 01: Is there at any point any practical way to link up the husband's case and the petitioner's case? [00:15:59] Speaker 00: Well, I'm not sure if I understand the question, but I don't know if you're referring perhaps to a jointer. [00:16:07] Speaker 00: They did try to do that at the immigration judge level. [00:16:14] Speaker 00: However, that was denied, and that is part of our argument as well, that the immigration judge and the BIA did err in denying that jointer specifically when looking at the facts and that [00:16:28] Speaker 00: It was all based on the husband. [00:16:30] Speaker 00: And now we're looking at the husband has a separate claim. [00:16:33] Speaker 00: It's separate. [00:16:34] Speaker 00: He has lost. [00:16:35] Speaker 04: Which lost? [00:16:36] Speaker 04: So it would not have benefited your client to be tied to that proceeding, would it? [00:16:45] Speaker 04: I mean, where's the prejudice and where's the abuse of discretion? [00:16:49] Speaker 00: Well, just in the fact that the whole case was based on the husband, and I think they could have [00:16:55] Speaker 00: Yes, again, they could have benefited from each other's testimony. [00:16:58] Speaker 00: And when we are looking at in this particular case that the judge found my client not credible, I think that's where the real prejudice lies. [00:17:10] Speaker 03: Even though they weren't the cases weren't joined, was there something that would have prevented the husband and the wife from testifying in each other's cases? [00:17:20] Speaker 00: I believe that by the time the merits happened, the [00:17:25] Speaker 00: The husband case had already terminated, and there was already an order against him, and he might have already been outside of the country at that point. [00:17:34] Speaker 00: So I would say that was a factor. [00:17:37] Speaker 03: So he would have been able to present evidence through documentation, though, like a declaration or an F. David or something? [00:17:43] Speaker 00: Yes, he would have. [00:17:45] Speaker 00: And if nothing else, I would submit. [00:17:48] Speaker 00: Thank you. [00:17:49] Speaker 03: All right. [00:17:50] Speaker 03: Thank you, counsel, for your argument. [00:17:51] Speaker 03: The matter of Ruiz Guerrero versus Garland is submitted.