[00:00:07] Speaker 03: Good morning, everyone, and welcome to the Ninth Circuit and to Pasadena. [00:00:12] Speaker 03: We have one case on the calendar that has been submitted today. [00:00:15] Speaker 03: That's Arcola's versus Garland. [00:00:18] Speaker 03: Our first case for argument is Solomon versus Garland. [00:00:22] Speaker 03: You have 10 minutes per side. [00:00:24] Speaker 03: You can approach the podium when you're ready. [00:00:42] Speaker 03: You can begin. [00:00:42] Speaker 03: Thank you. [00:00:43] Speaker 04: Thank you, Your Honor. [00:00:44] Speaker 04: Good morning, Your Honors, and may it please the court. [00:00:46] Speaker 04: Rob Cirvilio for Petitioner Mr. Soliman, joined also at council table by Ms. [00:00:51] Speaker 04: Emily McCarrey. [00:00:52] Speaker 04: May I reserve two minutes for rebuttal? [00:00:53] Speaker 04: Sure. [00:00:54] Speaker 04: Thank you, Judge Thomas. [00:00:57] Speaker 04: The BIA's opinion below makes little sense, and Mr. Soliman deserves a new hearing. [00:01:05] Speaker 04: The BIA suddenly takes evidence that would have been considered critically important [00:01:11] Speaker 04: to the immigration courts on the 2018 record and says that it's cumulative and emblematic of general long standing conditions on the 2021 record. [00:01:21] Speaker 04: The BIA relies on legal reasoning that this court has had to correct the BIA on and say not to use repeatedly for decades to the point that it's become black letter law. [00:01:31] Speaker 04: The BIA failed to ask or answer the question that this court in Malte considers critical to the determination of changed country conditions. [00:01:43] Speaker 04: Your honors, the BIA simply abuses discretion. [00:01:46] Speaker 04: This court should grant Mr. Solomon's petition and remand with instructions to reopen. [00:01:51] Speaker 03: But tell me what newly submitted evidence was qualitatively different than the evidence submitted at Mr. Solomon's previous hearing. [00:02:00] Speaker 04: Yes, your honor. [00:02:01] Speaker 04: The primary evidence on which Mr. Solomon relies and the most powerful for demonstrating change circumstances is the attack on his family as they exited church on Coptic Christmas Day. [00:02:11] Speaker 04: in 2021, and the subsequent interactions with law enforcement. [00:02:14] Speaker 00: Well, that's attack on one family. [00:02:16] Speaker 00: That doesn't really speak to changed country conditions. [00:02:19] Speaker 00: You can at any time, even in peaceful times, find an attack on an individual family. [00:02:25] Speaker 00: So I don't think that really speaks to the issue of what you need to demonstrate to the VIA of changed country conditions. [00:02:33] Speaker 04: What does? [00:02:34] Speaker 04: Thank you for the question, Judge Clifton. [00:02:36] Speaker 04: In addition to that evidence as being material according to Malti and cases that follow, it's also reflective of general conditions for Coptic Christians in Egypt in general. [00:02:46] Speaker 00: Well, not necessarily, because according to the evidence that you submitted, and didn't seem to discuss in the opening brief, the 2020 report from the U.S. [00:02:56] Speaker 00: Commission on International Religious Freedom in 2020 religious freedom conditions in Egypt remained largely static, and it goes on from there. [00:03:06] Speaker 00: So how does that evidence demonstrate a conclusion the BIA would have to reach that, yes, there have been changed country conditions such that the limitations period should be waived? [00:03:18] Speaker 04: Thank you for the question, your honor. [00:03:19] Speaker 04: That is true. [00:03:20] Speaker 04: That is in the record in that exhibit. [00:03:22] Speaker 04: However, while that one sentence does not support Mr. Solomon's case, it's certainly not dispositive. [00:03:27] Speaker 00: And we see that in cases like... Well, there are other reports from other years that have exactly the same language, only it says 2019 instead of 2020. [00:03:34] Speaker 00: Why is the BIA forced to concede that the country conditions have changed so dramatically that the door should be reopened for a tardy motion to reopen? [00:03:45] Speaker 04: Well, Your Honor, when it comes to the generalized conditions for Coptic Christians in Egypt, the primary thing that was important on the 2018 record was whether or not the government authorities were unable or unwilling to prevent attacks by private actors against Coptic Christians. [00:04:00] Speaker 00: And back in the 2018- That's always been the case. [00:04:02] Speaker 00: Indeed, that's what the reports say. [00:04:04] Speaker 00: There have always been problems. [00:04:05] Speaker 00: There have been efforts. [00:04:07] Speaker 00: Sometimes the efforts are more successful, sometimes less successful. [00:04:11] Speaker 00: But I look at the reports and I don't see anything that tells me it is [00:04:15] Speaker 00: qualitatively different. [00:04:17] Speaker 04: What does? [00:04:19] Speaker 04: Well, Your Honor, in 2018, the government of Egypt was uniquely perceived as protecting the Coptic Christian minority, which is reflected in the opinions back on the 2018 record by the immigration courts and this court. [00:04:33] Speaker 04: So for example, President Al-Sisi was making a lot of big promises about how he was going to protect the cops. [00:04:39] Speaker 04: In fact, at the time, he was fairly successful. [00:04:41] Speaker 04: The year of Mr. Solomon's 2018 hearing, the evidence shows that there was a nearly year-long lull in major attacks on cops. [00:04:49] Speaker 04: In addition to that, you had [00:04:53] Speaker 04: President el-Sisi appointing the first two Christian governors in Egypt that had been, I think, over seven years. [00:05:00] Speaker 04: So at the time of Mr. Solomon's hearing, which is the guidepost, not necessarily what came before it, there was a uniquely favorable outlook for Coptic Christians on being able to exist in pluralistic Egypt. [00:05:12] Speaker 04: However, this soon faded, because only a few months later, there was a shooting on a bus of Coptic Christians [00:05:21] Speaker 04: that resulted in multiple deaths and many injuries, and commenters suggested that this showed the failure of President El-Sisi to protect the cops and signaled a resumption of sectarian violence against Copta Christians in Egypt. [00:05:32] Speaker 04: If we look at the evidence that follows through 2019 through 2020, there are countless incidences of surges and increases in attacks on Copta Christians by extremists that the government is unwilling or unable to control. [00:05:46] Speaker 00: What way did your client flee? [00:05:49] Speaker 04: Mr. Soliman originally fled persecution on behalf of his religion, specifically threats, harassment, and taunts, as well as an attempted kidnapping that the courts on the 2018 record. [00:06:01] Speaker 00: The question was when. [00:06:03] Speaker 04: Oh, when. [00:06:03] Speaker 04: Apologies, Your Honor. [00:06:04] Speaker 04: I believe it was in either spring or summer of 2018. [00:06:08] Speaker 00: So what you described is the good times. [00:06:11] Speaker 04: Correct. [00:06:12] Speaker 04: And that is why exactly, Your Honor, exactly, that is why the original immigration courts and this court affirming those immigration courts found that at the time, Mr. Solomon did not have a case for asylum. [00:06:24] Speaker 04: And the critical question that the BIA was supposed to answer in regards to this motion is whether the [00:06:35] Speaker 04: new evidence is qualitatively different in that Mr. Solomon did not have a case for asylum or relief removal in the past, but now does due to his new evidence. [00:06:45] Speaker 04: And your honor is exactly right that a lot of the types of things that are affecting Coptic Christians at the time of the, or prior to the hearing and when Mr. Solomon entered his motion, [00:06:55] Speaker 04: were in-kind, similar types of persecution. [00:06:58] Speaker 04: So there have always been attacks on Coptic Christians, mob attacks, unjust persecutions, et cetera. [00:07:05] Speaker 04: However, this court very clearly laid out in a recent case, Reyes-Carado v. Garland, 76 F. [00:07:10] Speaker 04: 4th, 1256, at 1265, that a petitioner, quote, fearing the same mistreatment he feared during the original proceedings is not disqualifying, ellipses, is not disqualifying, so long as the new circumstances [00:07:24] Speaker 04: take that fear across the threshold for a well-founded fear for future persecution. [00:07:30] Speaker 04: And that's what we have here. [00:07:31] Speaker 04: The immigration courts in the 2018 record were very clear about why they ruled the way they did. [00:07:36] Speaker 04: They said, Mr. Solomon's not entitled for relief from removal because he's not shown that himself or his family had suffered any actual physical harm or severe mental suffering [00:07:45] Speaker 04: as a result of an attack based on their religion. [00:07:48] Speaker 04: And also, Mr. Solomon was not able to demonstrate that the government of Egypt was unwilling or unable to protect him, in part because he didn't go to the police. [00:07:56] Speaker 04: Now things are changed. [00:07:57] Speaker 04: Now he does have an objectively reasonable fear. [00:08:00] Speaker 04: So for example, his elderly mother and young nieces are exiting church, copped a Christmas day. [00:08:06] Speaker 04: They are attacked by a mob of extremists who call them infidels, cuss at them, push them to the ground. [00:08:11] Speaker 04: His mother is physically injured. [00:08:12] Speaker 04: She has a note from her doctor saying she has PTSD. [00:08:15] Speaker 04: The family goes to the authorities. [00:08:17] Speaker 04: Now bear in mind, this is Alexandria. [00:08:19] Speaker 04: This is in some small village in southern Egypt. [00:08:21] Speaker 04: They go to the police and the police do nothing. [00:08:25] Speaker 04: They don't investigate. [00:08:27] Speaker 04: They don't ask any questions. [00:08:28] Speaker 04: They don't even enter a report. [00:08:30] Speaker 04: They don't even write out a report. [00:08:32] Speaker 04: Now, in contrast to the original proceedings where Mr. Solomon didn't even go to the police, so the court said, well, we don't know what they would have done, now we do. [00:08:40] Speaker 04: Now we know that things are so bad for Coptic Christians in Egypt, at least according to the reasonable perceptions of Mr. Solomon. [00:08:47] Speaker 04: I see I'm at eight minutes. [00:08:48] Speaker 04: May I? [00:08:48] Speaker 03: Would you like to reserve the remainder of your time? [00:08:49] Speaker 04: Yes, Your Honor. [00:08:50] Speaker 03: OK, thank you. [00:09:01] Speaker 02: Good morning, Your Honors. [00:09:02] Speaker 02: May it please the Court. [00:09:03] Speaker 02: My name is Rob Stahlser. [00:09:04] Speaker 02: I'm here on behalf of the AG. [00:09:06] Speaker 02: Your honors, the board's decision in this case was no abuse of discretion. [00:09:09] Speaker 02: The board stated the correct standard, that it would look for the qualitative difference between the early evidence from his old hearing and then the new evidence he brought with his motion. [00:09:19] Speaker 02: It considered the evidence he brought with his motion. [00:09:22] Speaker 02: We know because not only did they reference it in general, they also referenced it particularly. [00:09:27] Speaker 02: And then of course, they announced their decision in terms sufficient for us to understand what they meant. [00:09:32] Speaker 02: Therefore, there was no abuse of discretion. [00:09:33] Speaker 03: Why doesn't the attack on Mr. Solomon's family after he left Egypt constitute a qualitatively different condition? [00:09:42] Speaker 02: Because the same sorts of attacks were occurring previously. [00:09:46] Speaker 02: In his underlying claim, he had, I think in his affidavit, stated, talked about a friend of his who was killed during an attack on a Coptic church at a church that petitioner had previously attended. [00:09:57] Speaker 02: In other words, the same sorts of attacks were going on previously. [00:10:00] Speaker 02: That was the crux of his original claim, was that as a cop to Christian who goes to and from church. [00:10:05] Speaker 01: So can you speak to the case that your friend on the other side mentioned, which is a recent decision from our court, Reyes Coronado v. Garland? [00:10:12] Speaker 01: In that case, we found that changes regarding the agency's basis for denying relief are previously immaterial. [00:10:20] Speaker 01: Here, I think what he's arguing is that there was this additional evidence relating to his mother and niece that wasn't considered. [00:10:29] Speaker 01: speak to that case? [00:10:31] Speaker 01: Sure. [00:10:31] Speaker 02: In so far as that evidence was considered, I mean the board specifically references that evidence. [00:10:36] Speaker 02: So I think that they had it in mind when they were trying to decide whether there was a qualitative difference. [00:10:41] Speaker 02: When we say qualitative difference, I mean the instruction from Malty is to say is this evidence not just of conditions in the country that qualify you for asylum, but evidence of changed conditions, right? [00:10:51] Speaker 02: Because it's not just conditions that could possibly [00:10:54] Speaker 02: potentially make you eligible for asylum, it has to be changed conditions from the previous claim in order to qualify for reopening for an untimely petition. [00:11:03] Speaker 02: Because this petition was untimely, we have to focus on the changed conditions and whether they have qualitatively different under the multi-standard. [00:11:10] Speaker 02: That was, I think, Algonifer had said it has to be a not redundant and not a mere continuation. [00:11:16] Speaker 02: And that's why the board in this case, again, it looked to the general evidence that said, well, these attacks have been ongoing for a very long time. [00:11:22] Speaker 02: They looked at the letter from the pastor from his church, I don't think he was the pastor, I think he was the priest of the church, who said this threat has been ongoing since 2011, which again suggests this is just a continuation, not a new qualitatively different asylum claim than the claim that he previously had made. [00:11:38] Speaker 02: And because it wasn't a new claim, or at least qualitatively different from his old claim, he couldn't qualify for an exception to the time bar on his motion. [00:11:50] Speaker 00: In your brief, you distinguish Malti by noting or arguing that Soleiman did not offer evidence that he faced individually a ticket-arised threat, something that was discussed in Malti. [00:12:05] Speaker 00: But he has argued that his family members who were there were attacked. [00:12:10] Speaker 00: Doesn't that suggest some individualized risk? [00:12:13] Speaker 02: Judge Clifton, I don't know that it represents an individualized risk because that's the same risk, or at least not a materially changed risk, because that's the same risk that they faced previously during the time of his original claim. [00:12:25] Speaker 02: In other words, this isn't a case where the, in Malty, the family was particularly targeted. [00:12:29] Speaker 02: I mean, they went after the family, including in one case saying, and Malty too, we're coming for you too. [00:12:34] Speaker 02: We didn't get that here. [00:12:35] Speaker 02: There wasn't that escalation such that there was a qualitative difference. [00:12:38] Speaker 02: The family has been under threat going to and from this church, according to their priest, since 2011. [00:12:45] Speaker 02: And that's why I would just distinguish Malty in my brief, because it simply is a continuation of the previous conditions that weren't sufficient to qualify him for asylum. [00:13:00] Speaker 02: I am... [00:13:01] Speaker 02: I want to briefly to mention the equitable tolling argument that petitioners made in their brief and in their reply brief. [00:13:06] Speaker 02: I know that didn't come up. [00:13:08] Speaker 02: But I just wanted to remind the court that exhaustion is still mandatory, even though it's no longer jurisdictional. [00:13:14] Speaker 02: And also, in a case like this, I think in their reply brief, petitioners suggested that exhaustion could be forfeited or waived. [00:13:21] Speaker 02: In the case where Congress has created an exhaustion provision like this, a judge made exception [00:13:29] Speaker 02: can't apply against it. [00:13:30] Speaker 02: In other words, judge-made equitable doctrines are subject to judge-made exceptions. [00:13:34] Speaker 02: But when Congress says that this creates an exhaustion requirement like this, [00:13:39] Speaker 02: It can't be waived or forfeited later. [00:13:41] Speaker 02: In any case, we haven't waived or forfeited. [00:13:42] Speaker 02: Waiver, of course, requires an affirmative statement that we relinquish this right, which we haven't. [00:13:47] Speaker 02: And of course, forfeiture relies sitting on your rights, which we didn't either. [00:13:51] Speaker 02: I raised exhaustion as soon as petitioner made the argument for equitable tolling for the first time in front of this court. [00:13:57] Speaker 02: So I would just urge that the court not accept the equitable tolling arguments in the briefing. [00:14:03] Speaker 02: But if there are no other questions, I won't belabor them. [00:14:06] Speaker ?: OK. [00:14:06] Speaker 02: Thank you very much. [00:14:06] Speaker 02: Thank you very much for your time. [00:14:24] Speaker 03: Thank you. [00:14:25] Speaker 04: May I please the court? [00:14:27] Speaker 04: I'd like to focus on the interpretation of the BIA's opinion by my brother counsel. [00:14:33] Speaker 04: So brother counsel states they cited the correct standard. [00:14:36] Speaker 04: That is, yes, they did quote that the standard is whether the evidence is qualitatively different. [00:14:40] Speaker 04: Now the question is how do you answer that question? [00:14:43] Speaker 04: And we know how the BIA did, because in the very next paragraph, and this is page four of the record I'm quoting, they say, the evidence proffered with the motion reflects that in Egypt, Coptic Christians continue to face incidents of discrimination and violence, on occasion by state actors, but often by terrorists and other private individuals. [00:14:59] Speaker 04: While there have been government efforts to prevent and punish such attacks, such efforts are not always successful. [00:15:04] Speaker 04: Then on the next page, they talk about how the evidence is consistent with a finding of continuation. [00:15:09] Speaker 04: This is the exact reasoning that the score has set over and over again, from multi on, for decades, is not the right reasoning. [00:15:17] Speaker 04: And the reason for that is because you almost always have a petitioner who, when there's changed country circumstances, is talking about the same types of harm that they previously could have faced when they initially fled the country. [00:15:28] Speaker 04: But the key question is whether conditions have deteriorated for Coptic Christians and for Mr. Soleiman and his family specifically. [00:15:36] Speaker 04: And now Brother Council brings up the fact that one of Maltese friends died in a church bombing. [00:15:42] Speaker 04: Now, I would like to note for clarity that this was not Maltese Church. [00:15:45] Speaker 04: Maltese Church was the one that his family was attending in 2021 when they were attacked. [00:15:49] Speaker 04: Brother Council brings up the fact that there's a priest letter saying this church has been under threat of violence for 11 years, as long as they've been coming here. [00:15:57] Speaker 04: That supports Mr. Solomon's case. [00:16:00] Speaker 04: Years and years and years of threats finally materialized into violence. [00:16:05] Speaker 04: In this case, it's clear that Mr. Solomon now has crossed the threshold to where he has an objectively reasonable fear of future persecution if he returns to Egypt. [00:16:13] Speaker 04: This court should grant his petition and remand with instructions to reopen. [00:16:16] Speaker 04: Thank you. [00:16:16] Speaker 03: Thank you very much. [00:16:17] Speaker 03: We thank both counsel for their arguments this morning, and this case is submitted. [00:16:21] Speaker 03: Thank you.