[00:00:00] Speaker 00: Good morning. [00:00:00] Speaker 00: Good morning. [00:00:02] Speaker 00: I'm Eric Martin for the appellant. [00:00:06] Speaker 00: We would like to reserve two minutes at the end for rebuttal and questions. [00:00:10] Speaker 00: May I please the court? [00:00:11] Speaker 00: The appellant is asking the court to reverse immigration court findings that resulted from mistakes in law and depart from precedent regulation and the INA. [00:00:24] Speaker 00: Regarding the one child policy claim, [00:00:27] Speaker 00: the immigration judge failed to find harm in a forced abortion, found punishment was actually grudging compliance, and ignored acts of overt defiance that were more than sufficient to qualify as resistance. [00:00:46] Speaker 00: Regarding the religious freedom claim, the immigration judge misapplied precedent regarding level of harm. [00:00:53] Speaker 00: The appellant signed a letter confessing to attending illegal meetings [00:00:57] Speaker 00: This indicates that he was prohibited from attending these meetings in the future. [00:01:02] Speaker 00: The immigration judge finds that he was not. [00:01:05] Speaker 01: Does it make a difference whether we apply substantial evidence or Genova review here? [00:01:11] Speaker 00: I think it does. [00:01:13] Speaker 00: I think that the record is clear and the judge found everything. [00:01:19] Speaker 01: Well, I guess what I'm saying is if we review it under substantial evidence, do you lose? [00:01:24] Speaker 01: If we review it under de novo review, are you more likely to win? [00:01:28] Speaker 00: I think the judge has made mistakes of law and I think it's better for our case to ... Well, de novo is always going to be better for you. [00:01:39] Speaker 01: You know that when you've lost. [00:01:41] Speaker 01: But if it's under substantial evidence, it would have to compel a different result, right, on the past persecution? [00:01:50] Speaker 00: I think it compels a different response because the mistakes are legal. [00:01:56] Speaker 00: If the judge has made a legal error, that should compel this court to ... So what's the legal error that compels a different result? [00:02:07] Speaker 00: For which claim, Your Honor? [00:02:08] Speaker 01: Well, I guess the past persecution on the religious. [00:02:14] Speaker 00: Right. [00:02:15] Speaker 00: So whether past persecution is found or not is a legal question. [00:02:20] Speaker 00: And so that's why we're presenting it as a legal question. [00:02:23] Speaker 03: Are there particular cases that you're relying on more than others to say that the evidence compels a conclusion that the religious persecution claim was past persecution? [00:02:37] Speaker 03: You know, what cases would you point us to to say this case maps onto those so that the evidence compels a conclusion that he was persecuted? [00:02:48] Speaker 00: I would point to the cases where the immigration judge has cited, because they all show a lower level of harm. [00:03:03] Speaker 00: You know, you can't say that, well, it doesn't show harm because there are all these cases that show less harm. [00:03:08] Speaker 00: There has to be a case that is above it on the level of harm. [00:03:12] Speaker 01: Well, you have Gu. [00:03:13] Speaker 01: You got Gao. [00:03:14] Speaker 01: You got all of those. [00:03:15] Speaker 01: And it seemed that the immigration judge found it closer to one than to other. [00:03:20] Speaker 01: And you're arguing, which case is closest for you, do you think? [00:03:24] Speaker 00: I think that, well, I like the dissent in goo. [00:03:31] Speaker 00: I did not like the finance goo. [00:03:32] Speaker 01: Well, that's called a dissent, though. [00:03:34] Speaker 00: Yeah, I understand that. [00:03:35] Speaker 00: So I think that it was close. [00:03:36] Speaker 00: I think that, huh, V Holder is a good case for us because it shows, I mean, it shows a much lower level of harm. [00:03:49] Speaker 00: than what we saw here. [00:03:51] Speaker 00: He wasn't even in town when his wife was taken. [00:03:55] Speaker 00: He came back and they imposed a fine on him that he didn't completely pay. [00:04:06] Speaker 00: So he was kind of doing this. [00:04:09] Speaker 00: That's the other claim. [00:04:12] Speaker 00: I apologize. [00:04:12] Speaker 03: Let me ask this. [00:04:13] Speaker 03: How important is it? [00:04:15] Speaker 03: There's a beating allegation here when he was detained. [00:04:19] Speaker 03: He was detained for about six days? [00:04:20] Speaker 03: For seven days. [00:04:22] Speaker 03: Seven days. [00:04:23] Speaker 03: Then there was having to check in with the police on a weekly basis and essentially recount what happened during that week. [00:04:31] Speaker 03: Did that have a factor in him not being able to practice his religion from having to check in with the police? [00:04:37] Speaker 03: And how much should that bear on our analysis of past persecution? [00:04:41] Speaker 00: I think it's an exercise of power on the part of the Chinese government and it's sending a message for him not to go to these [00:04:49] Speaker 00: meetings. [00:04:51] Speaker 00: He was also beaten. [00:04:53] Speaker 00: That's sending a clear message that he can't go to these meetings. [00:04:57] Speaker 01: Well, was he allowed to practice his religion after being detained and forced to sign the confession? [00:05:03] Speaker 01: Was he allowed to practice his religion after that? [00:05:06] Speaker 00: He wasn't because he was told that these meetings were illegal and the fact that they're illegal indicates that he shouldn't be going to them. [00:05:16] Speaker 00: If somebody tells you something is illegal, then you shouldn't be doing it. [00:05:20] Speaker 01: One thing I have a little problem with here, but it's not one that necessarily couldn't be overcome, but I have a problem with your client's son stayed back there, has been allowed to practice religion. [00:05:37] Speaker 01: I don't seem, even if we agree with you that there was past persecution, which then allows you the rebuttable presumption, I have a problem seeing how you're ever gonna win on that [00:05:50] Speaker 01: the situation with the son and the wife being back there, being allowed to practice religion, how are you ever going to win? [00:05:59] Speaker 00: Well, the son was attacked. [00:06:02] Speaker 00: The argument by the immigration judge is that it's OK to be attacked once every nine years. [00:06:08] Speaker 01: No, but now, on future persecution, how are you going to win on that? [00:06:12] Speaker 00: He's still in danger of being attacked in China right now, according to the country conditions reports. [00:06:22] Speaker 00: There are people in China that managed to go under the radar for a little while. [00:06:28] Speaker 00: Is there a 10% chance that he'll be attacked in the future? [00:06:32] Speaker 00: I mean, obviously our argument is yes, there is. [00:06:36] Speaker 01: Well, the IJ didn't say the magic word. [00:06:38] Speaker 01: The IJ sort of said, [00:06:41] Speaker 01: I don't find the likelihood of future persecution here, but the IJ didn't say, I'm evaluating that under the rebuttable presumption. [00:06:53] Speaker 01: Do you need to say those magic words? [00:06:58] Speaker 00: I don't think you need to say those magic words. [00:07:02] Speaker 00: I think that everybody is aware of them who's responding to the case. [00:07:06] Speaker 03: I think what Judge Callahan is getting at is, did the IJ consider the claim of future persecution in the alternative as if your client had a presumption that it was objectively reasonable, or did it just go from the standpoint of there was no past persecution, so there's no presumption of fear of future persecution? [00:07:26] Speaker 00: I would say that she went with the latter and that she's saying there was no past persecution and therefore she has to analyze it under a scheme of future persecution. [00:07:42] Speaker 01: Would you like to save the balance of your time for rebuttal? [00:07:44] Speaker 00: Yes, thank you so much. [00:07:46] Speaker 01: All right, thank you. [00:08:00] Speaker 01: Good morning. [00:08:02] Speaker 01: Good morning, Your Honor. [00:08:06] Speaker 02: May it please the court, Zachary Hubanks, on behalf of the respondent. [00:08:08] Speaker 01: Can you keep your voice, tell us who you are, who you're appearing for, and keep your voice up? [00:08:12] Speaker 01: You're a little soft-spoken, which is probably nice under many circumstances. [00:08:17] Speaker 01: But here, we all want to hear you. [00:08:19] Speaker 02: My apologies, Your Honor. [00:08:20] Speaker 02: May it please the court, Zachary Hubanks, on behalf of the respondent, the United States Attorney General. [00:08:24] Speaker 02: The petition for review in this case should be denied because nothing in the record compels reversal of the agency's determination [00:08:31] Speaker 02: that petitioner did not establish eligibility for asylum, withholding or removal, or torture convention protection based on either claim. [00:08:37] Speaker 02: Starting briefly with the forced abortion claim, petitioner did not demonstrate that he engaged in the over and persistent defiance required to establish that he engaged in other resistance of the forced, or excuse me, of the coercive population policy. [00:08:52] Speaker 02: Moreover, even assuming that he did, petitioner did not demonstrate that his fine and workplace demotion was sufficiently severe. [00:08:59] Speaker 02: to constitute persecution under this court's case law. [00:09:03] Speaker 02: Moving into his religion. [00:09:04] Speaker 01: I think his strongest claim is whether there was sufficient evidence for past persecution and if the court looked at different cases that sort of put the framework here and compared to other ones. [00:09:20] Speaker 01: And so I guess how do we, when you say does it compel, [00:09:26] Speaker 01: you are assuming a substantial evidence review. [00:09:30] Speaker 01: Is that correct? [00:09:31] Speaker 02: Yes, Your Honor. [00:09:31] Speaker 02: We argued that it was a substantial evidence review. [00:09:33] Speaker 02: Going back to Elias Zacharias, I don't believe Petitioner meaningfully disputed that it is substantial evidence. [00:09:40] Speaker 02: Even if it's not substantial evidence, just looking at this, this is a case where we are comparing the facts of this case to facts of other cases. [00:09:48] Speaker 02: It's a highly factual question, as opposed to a purely legal question of what does the statute mean. [00:09:54] Speaker 01: Would you agree though that our circuit precedent in this area is a little fuzzy on whether substantial evidence or de novo is appropriate? [00:10:06] Speaker 02: I recognize that there has been some murmurs in recent published and unpublished cases acknowledging this seeming intra-circuit split. [00:10:15] Speaker 02: My reading of the case law is, again, with Cower and Boer Sedano, it appeared to me the question of de novo review was whether certain acts as acts themselves would constitute persecution, whereas when we're doing a very factual circumstance, [00:10:29] Speaker 02: Like in this case where it's comparing petitioner's case to, is it more like Gouvi Gonzalez, Jean Guaouvi Ashcroft, or Jihui Guaouvi Sessions? [00:10:40] Speaker 02: That is essentially a factual or a very factual question, even if it is applying a legal standard. [00:10:45] Speaker 03: What if the facts are established and not in much dispute, and then the question is, do those established facts rise to the law of persecution? [00:10:55] Speaker 03: Is that a legal determination or an evidentiary one in your view? [00:11:01] Speaker 02: I do not wish to speak to anything binding, but looking at Wilkinson, which just came out from the Supreme Court in a different immigration context of whether that is a mixed question of fact or law, there the Supreme Court did say on a case where the facts aren't in dispute, it's going to be a highly deferential standard of review, whatever label it is given, and that's, I believe that's where this case would fall, of the facts are not meaningfully in dispute, it's whether it's [00:11:26] Speaker 02: more like cases where this court has found persecution, again, Jean-Guy V. Ashcroft, or is it more like the case the immigration judge principally relied on of Gu versus Gonzalez? [00:11:37] Speaker 02: And that's the government's position, is that this case is much closer to [00:11:42] Speaker 02: or at least comparable to Goo V. Gonzalez. [00:11:44] Speaker 03: Well, let me ask this. [00:11:45] Speaker 03: I was asking your colleague on the other side. [00:11:47] Speaker 03: So Goo, there was, I think, detention for three days. [00:11:51] Speaker 03: And here you have someone detained for six or seven days. [00:11:54] Speaker 03: They were beaten. [00:11:55] Speaker 03: There were sleep deprivation allegations. [00:11:59] Speaker 03: And then you have this surveillance after the fact, where you have to sign a confession saying these were illegal meetings. [00:12:07] Speaker 03: And you have to check in with the police weekly to report on what happened during that week. [00:12:11] Speaker 03: Why isn't that closer to the Guo case that where essentially it was having to sign and that you would never worship again? [00:12:20] Speaker 03: Why isn't that equivalent to Guo? [00:12:25] Speaker 02: Well, in Gu, specifically, the petitioner there did sign a confession, and he reported to police. [00:12:30] Speaker 02: I believe it was four or five weeks until they essentially gave up interest on him and no longer did. [00:12:34] Speaker 02: So again, it's a reasonable interpretation of these facts. [00:12:37] Speaker 02: The immigration judge was permitted to say seven days isn't significantly longer than three versus the first Guao or Guao case where the individual was detained twice, for instance. [00:12:49] Speaker 02: And as this court's case still holds in the more recent Zhihui Guao, [00:12:54] Speaker 02: that it is a critical point on whether or not the individual signs something either saying that he will no longer be a Christian or something of that effect because [00:13:02] Speaker 03: But I guess my question is, isn't it almost essentially the same thing where you're signing a confession that it's illegal to attend church meetings and now you have to check in with the police weekly to tell us what you're doing during the course of that week? [00:13:19] Speaker 03: Having been beaten for attending a church meeting, isn't that essentially the same thing as saying you may never practice your Christian faith again? [00:13:29] Speaker 03: What's the difference between those two scenarios? [00:13:34] Speaker 03: In practice, I guess. [00:13:35] Speaker 02: I can certainly see the logic of your question there, Your Honor, but again, this case is similar to Gu in that both individuals signed a statement admitting that they had done wrong, what they were doing was not legal in China, and then both individuals did testify that the reason they quit attending church services in China [00:13:51] Speaker 02: was out of, essentially, a fear of police reprisal. [00:13:54] Speaker 02: And this court found that distinct. [00:13:56] Speaker 02: And Jihei Guo, that's one reason this court said Gu and Zhang Guo are distinguishable. [00:14:02] Speaker 03: Is it significant, as you said, that in Gu, the police lost interest after four or five meetings, and they sort of let it go? [00:14:10] Speaker 03: Whereas here, I think the record has allegations that the police have continued to show interest in the client. [00:14:16] Speaker 03: They haven't said, they haven't dropped the matter, in other words. [00:14:19] Speaker 03: He's still subject to the possibility of surveillance from the police or interest in them. [00:14:24] Speaker 02: Well, looking at that, especially in the future forward-looking analysis on the well-founded fear portion, Your Honor, again, Gu had a similar allegation where the police were still interested in him after he arrived in the United States, and Petitioner has that as well. [00:14:37] Speaker 02: That's in the record. [00:14:38] Speaker 02: But again, to Judge Callahan's earlier point, [00:14:42] Speaker 02: Petitioner's son was involved in this same meeting where the individuals were arrested. [00:14:47] Speaker 02: His son had a very similar treatment. [00:14:49] Speaker 02: He was beaten, deprived of sleep, etc. [00:14:52] Speaker 02: And he has since returned to China where he still practices at a house church. [00:14:55] Speaker 03: And that may be a future issue, I think, but would you agree that the IJ did not analyze future persecution in the alternative as if the petitioner had had a rebuttable presumption? [00:15:09] Speaker 02: The immigration judge did not explicitly do that legal analysis, no, Your Honor. [00:15:13] Speaker 03: So in normally our cases, I think if that hasn't happened and if the panel finds that the evidence compels a finding of past persecution, we would send it back for the agency to reconsider the future persecution analysis with the presumption applied. [00:15:32] Speaker 02: That is my understanding, Your Honor. [00:15:33] Speaker 02: I'm not aware of a similar case where [00:15:35] Speaker 02: it essentially reads as if, because of the specific facts where the petitioner's son returned, it sounds something else. [00:15:46] Speaker 03: It sounds like the agency might have grounds to say, even with a rebuttal of presumption, but I mean, I guess we would be sort of jumping ahead, perhaps, to what the agency's own analysis should be. [00:15:58] Speaker 02: Right. [00:15:58] Speaker 02: I'm not prepared to say it would necessarily be futile, for instance. [00:16:03] Speaker 02: walking in this room, I was prepared to say if there was past persecution found, it would certainly, it would need to be remanded to do that proper analysis, even though as we've all acknowledged reading the record, we can guess what the agency may determine here. [00:16:21] Speaker 01: So you basically, it sounds like [00:16:27] Speaker 01: Your friend on the other side basically said everyone knows that you do the rebuttable presumption here. [00:16:34] Speaker 01: You know, I asked about the futility of just even assuming that it goes back. [00:16:39] Speaker 01: There's a lot of evidence that the son's been able to continue to be a Christian. [00:16:46] Speaker 01: And this was a long time ago that he's not going to be able to show future persecution. [00:16:52] Speaker 01: But the cases do say if the wrong lens was used, [00:16:57] Speaker 01: there that it's best to let it go back for the right lens and make that determination. [00:17:03] Speaker 01: So you're basically saying if the panel were to find it compels persecution, that it should go back for a determination of future persecution in the first instance under the proper standard. [00:17:18] Speaker 02: I believe so, Your Honor, just because the rebuttable presumption does require a preponderance of the evidence finding, and I don't read the immigration judge as making that specific finding. [00:17:27] Speaker 01: Well, it isn't there specifically, but it's pretty hard to see how a different result would come about. [00:17:35] Speaker 01: But on the other hand, the cases are kind of specific about that. [00:17:41] Speaker 02: Yes, Your Honor. [00:17:42] Speaker 02: I risk of leaning into chainery and saying something the agency didn't say, but I do agree that [00:17:47] Speaker 02: it appears relatively futile that he could withstand the rebuttable resumption, Your Honor. [00:17:55] Speaker 02: If there are no further questions, the government would submit on our brief. [00:17:59] Speaker 01: There do not appear to be additional questions. [00:18:02] Speaker 01: Thank you for your argument. [00:18:15] Speaker 00: Okay, so the issue is whether there was a rebuttal made to the presumption of past persecution. [00:18:25] Speaker 00: I think for the future persecution, it's in the record that appellant was also, even if you don't buy that what happened to him rises to the level of persecution. [00:18:39] Speaker 01: Well, basically what I heard your friend on the other side to say [00:18:44] Speaker 01: is he's got to win that it doesn't compel past persecution, otherwise he agrees with you that it should go back for the agency to determine in the first instance. [00:19:00] Speaker 01: I feel like your argument is to win or lose on the past persecution. [00:19:09] Speaker 00: I think that the immigration judge was citing cases that came in lower than the level of persecution in the present case and so the argument, I think her argument on past persecution fails and so we should find past persecution in this case. [00:19:28] Speaker 01: Okay. [00:19:30] Speaker 01: We don't have any additional questions. [00:19:31] Speaker 01: Thank you both for your argument. [00:19:33] Speaker 01: This matter will stand submitted.