[00:00:02] Speaker 01:
The next matter on for argument is Christian Ruiz versus Merrick Garland, case number 23-1095.

[00:00:10] Speaker 01:
Each side has 15 minutes, and both of the parties appear to be appearing remotely.

[00:00:20] Speaker 01:
All right, can you hear us okay?

[00:00:23] Speaker 01:
Yes, Your Honor.

[00:00:24] Speaker 01:
And can you see each other all right?

[00:00:27] Speaker 01:
Yes.

[00:00:28] Speaker 01:
All right.

[00:00:29] Speaker 01:
Then we're ready to begin.

[00:00:33] Speaker 03:
May it please the court.

[00:00:34] Speaker 03:
My name is Caroline Maderos and I'm representing the petitioner in this case, Christian Ruiz.

[00:00:40] Speaker 03:
I'd like to reserve three minutes for rebuttal.

[00:00:44] Speaker 03:
Mr. Ruiz is seeking review of the board of immigration appeals denial of his applications for asylum withholding of removal and protection under the convention against torture.

[00:00:57] Speaker 03:
There are four main issues I'd like to address today.

[00:01:00] Speaker 03:
One is this court's jurisdiction to review the agency's determination on asylum timeliness.

[00:01:07] Speaker 03:
Two, the BAA's denial of Mr. Ruiz's motion for administrative closure.

[00:01:12] Speaker 03:
Three, the agency's finding that Mr. Ruiz is not eligible for asylum and withholding of removal, and four, the agency's denial of cap protection.

[00:01:24] Speaker 03:
First, this court does have jurisdiction to review the agency's determination on the timeliness of Mr. Ruiz's asylum application.

[00:01:33] Speaker 03:
The government's reliance on Wilkinson v. Garland is misplaced.

[00:01:37] Speaker 03:
Wilkinson actually reaffirms that courts of appeal do have jurisdiction to review mixed questions of law and fact, even where provisions like 8 USC 1158A3 may limit judicial review.

[00:01:51] Speaker 01:
Well, let me ask you this.

[00:01:53] Speaker 01:
Does Mr. Ruiz assert that he presented facts and evidence concerning the delay in his application for asylum that the agency failed to consider, or were his facts and evidence on this issue accepted as uncontested?

[00:02:10] Speaker 03:
He presented facts.

[00:02:13] Speaker 03:
I mean, he did the best, honestly, he did the best that he could at the time he was detained in Tacoma, Washington.

[00:02:21] Speaker 03:
And through his testimony, he talked about his trauma as a child in Nicaragua, and that leading to that excusing his late filing of his asylum application.

[00:02:40] Speaker 01:
So, so the facts are not uncontested then?

[00:02:46] Speaker 01:
I believe they're not uncontested.

[00:02:47] Speaker 01:
They, sorry, they, they are uncontested.

[00:02:50] Speaker 01:
Well, okay, I'm confused.

[00:02:54] Speaker 01:
Okay, you're saying that he presented some, so, so what are the uncontested facts here?

[00:03:03] Speaker 03:
He was growing up in Nicaragua.

[00:03:07] Speaker 03:
He suffered cumulative harms.

[00:03:12] Speaker 03:
He

[00:03:13] Speaker 03:
his father at five years old was murdered.

[00:03:16] Speaker 03:
His mother was pursued by the Sandinistas for trying to investigate his father's murder.

[00:03:24] Speaker 03:
As a child, he was forced to join the Sandinista youth group and dig trenches.

[00:03:31] Speaker 03:
He witnessed dead bodies in the street and he talked about how these

[00:03:36] Speaker 03:
childhood traumas have been resurfacing lately.

[00:03:40] Speaker 03:
And that was the reason that he, you know, the reason that for his delay in the filing of asylum.

[00:03:51] Speaker 03:
I believe the court's precedents in Ramadan v. Gonzalez and Huseyev v. Mukasey established that the changed or extraordinary circumstances questioned under 8 USC 1158 A2D is a reviewable mixed question of law and fact.

[00:04:09] Speaker 03:
Wilkinson is consistent with this precedent and the question of whether Mr. Ruiz has demonstrated extraordinary circumstances to overcome the one-year bar is a mixed question that the court, this court has jurisdiction to review under 8 USC 1252 A2D.

[00:04:27] Speaker 00:
I mean, the question really, the holding of Wilkinson really doesn't affect Ramadan.

[00:04:34] Speaker 00:
The question really is, is the court's response to the government's textual argument in that case where the court lists a bunch of statutes that contains the phrase that was taken out of the statute at issue in Wilkinson, right?

[00:04:54] Speaker 00:
describes them as giving the AG discretion.

[00:04:58] Speaker 00:
So that's really what it comes down to, right, is that whether that comment alone under our standard in Miller vs. Gammie is enough to clearly abrogate the reasoning

[00:05:14] Speaker 00:
or the holding of Ramadan, which is the underpinning of Husayf.

[00:05:19] Speaker 00:
So I think that's the government's whole argument is based on essentially that one paragraph in Wilkinson.

[00:05:28] Speaker 00:
So as a three-judge panel, normally the rule is we're bound by our court's precedent.

[00:05:35] Speaker 00:
unless the Miller v. Gammie standard applies.

[00:05:39] Speaker 00:
So I think we need to focus our argument on that.

[00:05:42] Speaker 00:
Are there any cases applying Miller versus Gammie that you say weigh in favor of your position, which is that there was not sufficient abrogation?

[00:05:54] Speaker 03:
I'd have to research the issue further.

[00:05:56] Speaker 01:
Well, it's kind of important, and I'm going to mention a couple of cases that I've been on since, and maybe the government, since the government's making the argument of no jurisdiction.

[00:06:07] Speaker 01:
I was on a case called Zia, 112 Fed Forth, 1194, and we found jurisdiction there.

[00:06:15] Speaker 01:
Now, it wasn't the exact same, it was a discretionary call, but it wasn't

[00:06:20] Speaker 01:
the exact same thing as the asylum statute of limitations.

[00:06:24] Speaker 01:
I've been on another case since, which are all ahead of this case, Lopez B. Garland, and that's at 116 Fed 4th, 1032, and it cites Ramadan as still being good law.

[00:06:40] Speaker 01:
So it's, I guess,

[00:06:47] Speaker 01:
Those are the type of things I would have maybe expected you to pull up, because it maybe supports your position, but I'm going to ask the government to respond to.

[00:07:01] Speaker 03:
I just want to maybe also touch on the administrative closure issue next, that the BIA abused its discretion in denying Mr. Ruiz's motion for administrative closure.

[00:07:15] Speaker 03:
Mr. Ruiz sought closure to pursue an I-601A unlawful presence waiver based on an approved I-130 filed by his U.S.

[00:07:24] Speaker 03:
citizen wife, and the BIA erred in two key ways, I believe,

[00:07:29] Speaker 03:
It improperly considered DHS is untimely opposition to the motion.

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And even if DHS is opposition was considered the BA has authority to grant administrative closure.

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over DHS's objection under a matter of a vetician, and the BIA failed to properly weigh the a vetician factors, particularly Mr. Ruiz's likelihood of success on the 601A waiver.

[00:07:56] Speaker 03:
Administrative closure would allow Mr. Ruiz to pursue a- All right, but what's the standard of review on that?

[00:08:01] Speaker 01:
They did consider the light brief.

[00:08:05] Speaker 01:
So what's the standard of review?

[00:08:07] Speaker 01:
You're saying they erred in considering the light brief.

[00:08:09] Speaker 01:
So what's the standard of review?

[00:08:12] Speaker 03:
Abusive discretion.

[00:08:13] Speaker 01:
That's kind of an uphill battle.

[00:08:15] Speaker 01:
So push the rock uphill and tell me why we should find an abuse of discretion there.

[00:08:20] Speaker 03:
I mean, I think that the BIA did not properly weigh the avatition factors.

[00:08:28] Speaker 03:
They get the law wrong?

[00:08:30] Speaker 03:
I don't think that they accurately applied the facts of his case to a vetician.

[00:08:38] Speaker 00:
Well, under an abuse of discretion standard, we can't just disagree with their application of the law.

[00:08:44] Speaker 00:
We have to find an error of law or a gross abuse, right?

[00:08:50] Speaker 00:
So they're gross misapplication of some kind, arbitrary.

[00:08:53] Speaker 00:
So just disagreeing with their determination is not quite enough.

[00:08:58] Speaker 00:
And were they correct?

[00:08:59] Speaker 00:
that Ruiz could still seek his waiver even without the administrative closure.

[00:09:06] Speaker 03:
Yeah, I do see that there is a way, there is the I-212 waiver that they mentioned, but again, we're here with a final order of removal.

[00:09:18] Speaker 03:
And if they'd allowed for administrative closure, you avoid a final order of removal, and ultimately he could reinstate the appeal and terminate the proceedings.

[00:09:34] Speaker 03:
Moving on to issues with the agency's asylum and withholding eligibility analysis.

[00:09:41] Speaker 00:
Council, before you move on, I did want to go back a little bit to the government's alternative jurisdictional argument, which was that there are disputed facts regarding the extraordinary circumstances showing.

[00:09:56] Speaker 00:
And I understand that your position is that the facts are not disputed.

[00:10:03] Speaker 00:
If I understand the government's argument correctly is that the ultimate fact of whether his past experiences were the cause of his delay is in dispute.

[00:10:17] Speaker 00:
But are there, other than that ultimate fact, I would say, which is arguably a mixed question of law and fact, is there any other historic facts that are in dispute?

[00:10:33] Speaker 03:
Um, in my opinion, there's no other undisputed facts.

[00:10:39] Speaker 00:
Um, and the government, if I understand correctly, the agency's position was just that he did not do enough to substantiate his claim of that the delay was, um, caused by his prior trauma, that he didn't connect the dots essentially.

[00:10:56] Speaker 03:
Yes.

[00:10:57] Speaker 03:
Yes.

[00:11:00] Speaker 03:
Um,

[00:11:01] Speaker 03:
But just to briefly touch on some of the issues with asylum and withholding.

[00:11:08] Speaker 03:
The IJ and BIA failed to properly consider the cumulative effect of the harms.

[00:11:13] Speaker 03:
And this, again, is going into the reasons for his delay.

[00:11:17] Speaker 03:
Again, his father was murdered by the Sandinistas when he was five years old.

[00:11:22] Speaker 03:
He was forced to join a youth group, dig trenches, and witness dead bodies in the street.

[00:11:27] Speaker 03:
And the agency failed to properly assess these cumulative harms through the lens of a child, as required by this court's precedent in Hernandez Ortiz versus Gonzalez.

[00:11:38] Speaker 03:
Even absent past persecution, Mr. Ruiz established a well-founded fear of persecution.

[00:11:45] Speaker 03:
The agency's finding that he does not have a well-founded fear is not supported by the substantial evidence.

[00:11:52] Speaker 03:
There's country reports that show that Daniel Ortega, the same person who led the Sandinista revolution in 1979, has returned to power.

[00:12:00] Speaker 03:
And this regime has violently and brutally repressed dissent.

[00:12:04] Speaker 03:
With human rights organizations documenting increased political detentions and extrajudicial killings, he testified credibly that he would speak out against injustice if returned, and the agency failed to consider how the Ortega regime would likely perceive Mr. Ruiz as anti-Sandanista based on his family history and his potential for political activism.

[00:12:29] Speaker 03:
I realized my time is now limited, so I will reserve the rest for rebuttal.

[00:12:34] Speaker 01:
All right.

[00:12:36] Speaker 01:
There don't appear to be additional questions right now, so you can reserve that.

[00:12:39] Speaker 01:
Thank you.

[00:12:40] Speaker 01:
All right.

[00:12:41] Speaker 01:
We'll hear from the government.

[00:12:44] Speaker 02:
Good morning.

[00:12:45] Speaker 02:
Sarah Paglisi for the government.

[00:12:48] Speaker 02:
Sarah Paglisi for the government.

[00:12:49] Speaker 02:
May it please the court.

[00:12:50] Speaker 02:
I would just like to start, Judge Callahan, your question about the cases that you would like me to address.

[00:12:56] Speaker 02:
I'm not prepared to address them at this time, but I will file a response in the form of a 28-J or supplemental briefing.

[00:13:03] Speaker 01:
No, you don't need to do that because I'm on both the cases, so there's nothing you're going to tell me about it.

[00:13:09] Speaker 01:
But the issue is since we're finding jurisdiction in those cases and we're not overruling Ramadan, I guess the question for you would be

[00:13:21] Speaker 01:
So those are cases that I would be controlled by.

[00:13:26] Speaker 01:
Is it necessary to overrule Ramadan, that Wilkinson overrules Ramadan, is that necessary for us to find in order for your argument of no jurisdiction to succeed?

[00:13:43] Speaker 01:
i think it is and again this is something that i'd completely agree with you that you know better than i do with respect to these cases i don't know to the extent that those things were specifically argued in those cases and we're fully there are different areas of discretion that are being exercised but but but ramadan is cited as good law there and if they're post wilkinson so right question is obviously uh...

[00:14:12] Speaker 01:
To overrule Ramadan, either Wilkinson has to do it under Miller v. Gammie and all of that, or we're bound by our three judge panels.

[00:14:22] Speaker 01:
So if we feel that we're bound, do you lose here on the no jurisdiction?

[00:14:31] Speaker 01:
It doesn't mean you lose the case.

[00:14:33] Speaker 01:
It means that we go to the merits, that we exercise jurisdiction.

[00:14:37] Speaker 02:
Yeah, I do think we lose on that specific issue, yes.

[00:14:41] Speaker 02:
And I would just like to further explain our argument with respect to what is irreconcilable, very specifically.

[00:14:49] Speaker 02:
As Judge Sun pointed out, yes, our argument is really based on the paragraph in Wilkinson where the Supreme Court is projecting the government's textual argument.

[00:15:00] Speaker 02:
that essentially the lack of language, like the language that does exist in the asylum statute, to the satisfaction of the attorney general, that that denotes a discretionary determination.

[00:15:12] Speaker 00:
Counsel, on that point, I have, because your briefing just says that the Miller-Rigami standard has been satisfied, but do you have any cases in which we have found clear abrogation based on that type of

[00:15:27] Speaker 00:
brief passing statement and that court did not engage in the type of Statutory textual analysis that the three-judge panel did in Ramadan.

[00:15:38] Speaker 00:
So Do you have I mean I understand your argument that it seems that the court looked at that language and said that's discretionary but you know without

[00:15:49] Speaker 00:
Discussion or explanation.

[00:15:50] Speaker 00:
So to me the question sitting here is under the millivere gamut standard.

[00:15:56] Speaker 00:
Do we normally find Clear abrogation based on that type of passing statement and I I couldn't find one where we have so have you or

[00:16:08] Speaker 02:
Not the way you frame the question, but I would respectfully disagree that it's a passing statement in Wilkinson.

[00:16:15] Speaker 02:
It's critical to the court's determination that the lack of that language is probative in the statute at hand.

[00:16:23] Speaker 00:
And it's their interpretation.

[00:16:25] Speaker 00:
Sorry, I couldn't hear your first part of your answer.

[00:16:28] Speaker 00:
So in terms of cases applying Miller v. Gamme, you don't have one that's comparable.

[00:16:34] Speaker 02:
Again, the way you framed that question, if it's a statement that doesn't really get to the heart of the analysis that is irreconcilable, no.

[00:16:44] Speaker 02:
But I also, the extent to which Miller v. Gammie is a really substantive standard that I'm not sure that that's really well developed in the cases applying it, but again,

[00:16:59] Speaker 02:
Because I, as Judge Callahan has already indicated, I haven't fully addressed that standard sufficiently in the brief.

[00:17:06] Speaker 02:
I don't want to speak ahead of myself about it.

[00:17:09] Speaker 00:
The other concern I have is that Ramadan is now 22 years old and we've been implying it since.

[00:17:20] Speaker 00:
And in 2010,

[00:17:22] Speaker 00:
In Kukana versus Holder, the Supreme Court did essentially something very similar to what they did in Wilkinson, which is in deciding another issue, they described various provisions as giving the AG discretion, including section 1182, A3D little 3.

[00:17:41] Speaker 00:
And then they say, and that section contains the same to the satisfaction of language that's at issue here.

[00:17:52] Speaker 00:
in Kukana said that provision is discretionary.

[00:17:55] Speaker 00:
Basically, the government could have been making the same argument based on Kukana that it is making based on Wilkinson.

[00:18:05] Speaker 00:
And yet we've never treated Kukana as clearly abrogating Ramadan or Husqif.

[00:18:12] Speaker 00:
So ultimately, that's where I have some trouble saying, well, now after another 20 years, we're going to say,

[00:18:22] Speaker 02:
I understand that concern.

[00:18:26] Speaker 02:
I think at bottom is the government is trying to reconcile a lot of recent Supreme Court decisions that seem to say pretty forcefully what the statutory text means and doesn't mean and we're still

[00:18:40] Speaker 02:
in developing our litigation.

[00:18:42] Speaker 01:
Well, Wilkinson isn't terribly helpful in this.

[00:18:46] Speaker 01:
I was disappointed in the sense that, you know, while people think that we look, that we just want to decide more cases, if the Supreme Court had been more clear in Wilkinson rather than setting up this two-step process and just said

[00:19:04] Speaker 01:
hey, it's discretionary, you don't have jurisdiction, then we wouldn't even be talking about this in all of those cases.

[00:19:12] Speaker 01:
We would have less cases because the Supreme Court.

[00:19:17] Speaker 01:
But as you know, and we have students here in the courtroom, we can disagree with the Supreme Court all that we want, but we're bound by it.

[00:19:26] Speaker 01:
and so even if i wasn't sitting on the case and i would have decided it differently even perhaps uh... i don't get to do that here this is too you know anytime you have a two-prong step instead of just saying it's a discretionary item no no jurisdiction that would have been really easy here the two prongs the two-step process made it a little tougher

[00:19:52] Speaker 01:
Totally, yeah, I agree.

[00:19:54] Speaker 01:
Do you wanna talk about the agency, why the agency did not err in denying Mr. Ruiz's motion to administratively close his case?

[00:20:04] Speaker 02:
Yeah, sure, and yeah, I think just move on generally to the other issues considering the time constraints.

[00:20:10] Speaker 02:
Yeah, the agency did not abuse its discussion because its determination is fully consistent with the law about the, like,

[00:20:21] Speaker 02:
about whether administrative closure was necessary for the path to status that this applicant was seeking.

[00:20:28] Speaker 02:
As the petitioner has conceded, there is no error of law there.

[00:20:33] Speaker 02:
And I'd also just very quickly like to note that the applicant also has never articulated, either in briefing to this court or below, that the agency acted arbitrarily in accepting an untimely motion by DHS

[00:20:52] Speaker 02:
because of some sort of pattern of accepting DHS's untimely applications versus, or motions, excuse me, versus not accepting respondents' untimely applications.

[00:21:04] Speaker 02:
It's just that allegation of arbitrariness has not been supported by specific argument.

[00:21:11] Speaker 02:
And so again, the applicant hasn't shown that there's an abuse of discretion under that standard here.

[00:21:18] Speaker 00:
On your alternative, I'm going to send you back to your alternative jurisdictional argument, which is that his extraordinary circumstances exception claim depends on disputed facts, which we lack jurisdiction to consider.

[00:21:35] Speaker 00:
What I have trouble with is distinguishing this case from Hussieff itself, where the court said,

[00:21:43] Speaker 00:
You know, we have jurisdiction to resolve the extraordinary circumstances question, and essentially the agency, it seems to me, from reading Hoosiers very similarly said, yes, he claims all these terrible things happen, but he just failed to show how that caused, he just doesn't have enough evidence, or he just failed to show causation, essentially, for the delay.

[00:22:09] Speaker 00:
And I understand you to be arguing here that that

[00:22:13] Speaker 00:
finding of causation is the disputed question of fact.

[00:22:17] Speaker 00:
But in UCF, we did not treat that as a question of fact over which we lack jurisdiction.

[00:22:24] Speaker 02:
Thank you for that question.

[00:22:25] Speaker 02:
I did want to clarify that based on your questions to the petitioner.

[00:22:30] Speaker 02:
Also in dispute is essentially the applicant's state

[00:22:37] Speaker 02:
after he entered the United States and before he applied for asylum.

[00:22:41] Speaker 02:
Again, just not only the effects of the trauma with respect to how it directly impacted the delay, but just what those effects were.

[00:22:50] Speaker 02:
And as I understand your question, I think even still, if you're applying who's given away that that's still reviewable, we also have maybe alternative argument that even if

[00:23:01] Speaker 02:
The facts are not in dispute, sufficient to review that substantial evidence supports the agency's decision that there wasn't a connection between that past harm and the delay in this case.

[00:23:14] Speaker 00:
That you prevail in the merits.

[00:23:16] Speaker 00:
I understand.

[00:23:17] Speaker 00:
I guess I just want to make sure I understand your jurisdictional argument because that we do have to find jurisdiction first, affirmatively, right?

[00:23:27] Speaker 00:
And so there's, you know, there's

[00:23:30] Speaker 00:
I understand you're saying there's uncertainty.

[00:23:33] Speaker 00:
I read your brief as saying there's uncertainty about the extent or the impact of his past experiences on him, essentially mentally or psychologically.

[00:23:44] Speaker 00:
But I guess there's a difference in my mind between uncertainty or lack of evidence versus a genuine dispute of material fact.

[00:23:53] Speaker 00:
And is there anything in the record that suggests it's actually factually disputed?

[00:23:59] Speaker 02:
There is.

[00:24:00] Speaker 02:
The petitioner in his asylum application, there is a block left for an answer to a question asking the applicant to explain if there's been a delay in their asylum application.

[00:24:17] Speaker 02:
And the petitioner here stated that the delay was because he didn't understand immigration or asylum law, the immigration system.

[00:24:26] Speaker 02:
He did not present any explanation that his experiences and the trauma he experienced were the reason for his delay.

[00:24:35] Speaker 02:
The testimony itself that the petitioner references also is

[00:24:42] Speaker 02:
Contrary to the claim that they're making, the petitioner did not testify.

[00:24:48] Speaker 02:
It's inaccurate to reflect the testimony of him saying that his traumas affected the delay in filing.

[00:24:54] Speaker 02:
He never said that.

[00:24:56] Speaker 02:
He said that the trauma that he experienced with resurfacing, and it explained his alcohol abuse and his multiple DUIs that occurred between the time he entered the United States for the last time and his asylum proceedings.

[00:25:10] Speaker 02:
And so those facts really do show that this isn't a historical or accepted fact.

[00:25:16] Speaker 02:
And he really didn't make these arguments at the immigration judge level.

[00:25:20] Speaker 02:
His counsel even conceded that his application was untimely and did not even present any argument that there was an exception to that filing deadline that should be applied.

[00:25:35] Speaker 02:
And in that way, I think this case is more analogous to Gasparian in the sense that that connection is what's being disputed.

[00:25:44] Speaker 02:
And I do recognize that that sort of line between whether that's a review of the merits for a question of jurisdiction and whether the facts are disputed, it almost looks like the court was doing a peek into that evidence to find that the historic fact wasn't established.

[00:26:00] Speaker 02:
But I do think that the same analysis

[00:26:03] Speaker 02:
it would be appropriate in this case that those facts aren't supported or are disputed in the record and therefore there isn't jurisdiction even under HUCF.

[00:26:17] Speaker 02:
I see that I'm almost out of time, so I would like to address the merits of the withholding and cat claims very quickly.

[00:26:23] Speaker 02:
Substantial evidence also supports the agency's conclusions with respect to the merits of the applicant's withholding and cat claims.

[00:26:33] Speaker 02:
Substantial evidence supports both conclusions with respect to withholding, both the motive requirement and the

[00:26:44] Speaker 02:
reasons that DHS rebutted the presumption of future harm.

[00:26:49] Speaker 02:
And I think the most probative thing that has recently come up is the fact that relocation, the presumption of future persecution is a rebuttable presumption.

[00:27:03] Speaker 02:
And the proof of past successful relocation is significant and highly probative evidence that does and often can rebut that presumption.

[00:27:12] Speaker 02:
And that is what occurred here.

[00:27:14] Speaker 02:
And one last point is just I would like to remind the court of another Supreme Court decision, which is Garland versus Ming Dai, and that credible testimony is not necessarily persuasive testimony or testimony that's sufficient to meet the burden of proof.

[00:27:30] Speaker 02:
And that, again, the record supports the agency's conclusions in this case and under the court's

[00:27:36] Speaker 02:
substantial evidence, standard, or review, the petitioner hasn't pointed to any evidence that compels the contrary conclusion, even if she may have pointed to evidence that supports other conclusions.

[00:27:47] Speaker 01:
All right.

[00:27:47] Speaker 01:
Perfect timing.

[00:27:49] Speaker 01:
All right.

[00:27:51] Speaker 01:
There don't appear to be additional questions, so we'll go back to the appellant.

[00:27:56] Speaker 01:
You have a little less than three minutes for any rebuttal.

[00:28:00] Speaker 03:
Yeah, I would just say, in conclusion, I do believe that Ramadan and Hussie have continued to be good law in this circuit, even post Wilkinson.

[00:28:11] Speaker 03:
And, you know, this does present a mixed question of law and fact.

[00:28:16] Speaker 03:
Maybe it's primarily factual, but it still falls within the statutory definition of a question of law under 1252A2D.

[00:28:27] Speaker 03:
And this issue is reviewable by this court.

[00:28:32] Speaker 03:
I believe the court can apply the established facts in Mr. Ruiz's case to the statutory and regulatory standard

[00:28:40] Speaker 03:
that exists for exceptional circumstances, excusing a late filed asylum application.

[00:28:48] Speaker 03:
Again, the cumulative effects he suffered, he testified to suffering as a child.

[00:28:56] Speaker 03:
The cumulative harms that he suffered as a child directly relate to his failure to timely file for asylum.

[00:29:03] Speaker 03:
Yes, he entered in 2006 and didn't apply until 2019, but the long-term effects of childhood trauma on mental health should be considered.

[00:29:14] Speaker 03:
And I believe that he did testify that his childhood trauma... Well, weren't they considered?

[00:29:20] Speaker 01:
But the question is it didn't resolve favorably for you.

[00:29:24] Speaker 01:
So why does this compel a different result?

[00:29:28] Speaker 01:
And isn't that the standard you have to show if we get to the issue?

[00:29:32] Speaker 03:
Yeah, I mean, and I agree, I think, with my opposing counsel here.

[00:29:40] Speaker 03:
He did talk about his childhood traumas in the context of his alcohol abuse.

[00:29:46] Speaker 03:
That is true.

[00:29:48] Speaker 03:
But the court can make that connection and really understand that childhood traumas, as this court has... I agree the court can make that connection, but are we compelled to make that connection?

[00:30:02] Speaker 01:
that the IJ didn't find it your way, right?

[00:30:07] Speaker 03:
Yes, I believe that you are compelled to make that connection.

[00:30:11] Speaker 03:
And, you know, there are cases in this circuit, Hernandez versus, Hernandez or these versus Gonzalez that, you know, looking in the, in the context of past persecution, looking at a child's reaction to injuries,

[00:30:29] Speaker 03:
for their family from the lens of a child and looking at trauma as something that's long lasting that can resurface in later parts of one's life.

[00:30:42] Speaker 03:
So I do believe that the court has jurisdiction to review the timeliness of Ms.

[00:30:48] Speaker 03:
Ruiz's asylum application.

[00:30:49] Speaker 00:
Council on that.

[00:30:50] Speaker 00:
The sound was just a little bit fuzzy and I apologize if I missed your answer on this, but are you agreeing that Mr. Weas himself never specifically testified or stated that the reason for his delay was his past trauma or the effects thereof?

[00:31:09] Speaker 03:
I don't think he was ever specifically asked that question.

[00:31:12] Speaker 00:
And he didn't offer it?

[00:31:15] Speaker 00:
No, no.

[00:31:17] Speaker 00:
Okay, thank you.

[00:31:18] Speaker 01:
All right, your time's up.

[00:31:20] Speaker 01:
There don't appear to be additional questions, so this matter will be submitted.