[00:00:09] Speaker 04:
Good morning.

[00:00:10] Speaker 04:
We have three cases on calendar that are submitted on the briefs.

[00:00:16] Speaker 04:
Those are 22-700, Antonio Aguilar-Nepomuseno versus Pamela Bondi, 22-846, Melissa Martinez-Felix versus Pamela Bondi, and 23-1267, Emmanuel Martinez-Juarez,

[00:00:38] Speaker 04:
In accordance with the respective orders previously entered on the dockets of those three cases, those three cases are hereby submitted for decision on the briefs.

[00:00:47] Speaker 04:
We'll proceed to hear argument in the first case on calendar for argument this morning, which is 22-276, Marcos Fernando Duran Gonzalez versus Pamela Bondi.

[00:01:01] Speaker 04:
And we'll hear first from Ms.

[00:01:03] Speaker 04:
Bradley.

[00:01:03] Speaker 04:
You may proceed.

[00:01:06] Speaker 00:
Good morning.

[00:01:07] Speaker 00:
May it please the court?

[00:01:08] Speaker 00:
My name is Liz Bradley.

[00:01:09] Speaker 00:
I'm counsel for petitioner Mr. Marcos Daron Gonzalez.

[00:01:12] Speaker 00:
I'd like to reserve three minutes of my time for rebuttal and I will watch my clock.

[00:01:19] Speaker 00:
Mr. Daron was twice tortured in Mexico by two different cartels and for two different reasons.

[00:01:26] Speaker 00:
Now no one disputes that what happened to Mr. Daron rises to the level of torture.

[00:01:31] Speaker 00:
But in denying him deferral of removal under the convention against torture, the immigration agency violated its own rules.

[00:01:38] Speaker 00:
by ignoring the future risk posed by the second cartel that tortured him, and by refusing to consider his country condition evidence.

[00:01:45] Speaker 05:
Just so that I'm clear, I thought the agency found that the first event, not the second one, which it didn't treat, did not arise to the level of past torture.

[00:01:56] Speaker 05:
Am I wrong?

[00:01:57] Speaker 00:
The BIA presumed past torture.

[00:02:00] Speaker 00:
They found that the... It presumed.

[00:02:01] Speaker 00:
Yes.

[00:02:02] Speaker 05:
Right.

[00:02:02] Speaker 05:
But the IJ found that it didn't arise to the level of torture.

[00:02:07] Speaker 05:
Am I right?

[00:02:08] Speaker 00:
Correct, that was mainly on the finding that because he didn't report it, police were not aware.

[00:02:12] Speaker 00:
And if the police are not aware, they cannot acquiesce and therefore it's not torture under the definition.

[00:02:17] Speaker 00:
But the judge made no finding that the severity of the harm did not rise to the level of torture.

[00:02:21] Speaker 00:
It mainly was on the acquiescence piece, I believe.

[00:02:27] Speaker 00:
The CAT regulations require the agency to consider all evidence relevant to the possibility of future torture.

[00:02:33] Speaker 00:
And this court's precedent, like Yehada Aguilar, says that failure to consider and aggregate the risk of torture from alternative and distinct sources is a legal error.

[00:02:43] Speaker 04:
Now, Mr. Jerome.

[00:02:44] Speaker 04:
Would your point that the IJ overlooked the 2019, because the BIA order does mention the 2019 incident in the course of its, I think in its acquiescence discussion?

[00:02:58] Speaker 00:
There was mention of the 2019 torture, but there was no assessment of the future risk posed by the 2019 cartel that tortured him.

[00:03:06] Speaker 04:
In the IJ ruling?

[00:03:10] Speaker 00:
Yes, and the IJ ruling only assessed his future risk of torture based on his fear of being involved in drug trafficking that relates to the 2017 torture and based on age discrimination.

[00:03:19] Speaker 00:
The BIA similarly mischaracterized his future fear claim and says that, again, that he only fears torture because of

[00:03:27] Speaker 00:
refusing to evolve in drug trafficking and age discrimination.

[00:03:30] Speaker 00:
So neither the IJ or the BI ever actually assess the future risk posed by the 2019 cartel who pegged him as a rival, interrogated him as a rival, threatened to cut off his fingers and toes, beat him until he was nearly paralyzed and left him for dead.

[00:03:46] Speaker 05:
So I want to understand the nature of your argument.

[00:03:50] Speaker 05:
I think what you're saying is the IJ never considered the risk of future torture

[00:03:57] Speaker 05:
arising out of the 2019 incident, or are you saying that the BIA never considered it?

[00:04:04] Speaker 04:
Both.

[00:04:06] Speaker 04:
But that's what I'm having trouble with because in the BIA ruling, it's talking about the particularized threat of torture, which is future.

[00:04:16] Speaker 04:
And it does have the drug trafficking comment, but then it goes on to say,

[00:04:24] Speaker 04:
Further, the other incidents, including the 2015 and 2016 muggings and the 2019 kidnapping, were by unknown people and unconnected based on this record.

[00:04:34] Speaker 04:
The respondent, therefore, did not meet his burden to establish a particularized threat of torture.

[00:04:39] Speaker 04:
That would seem like it's taking the 2019 into account with respect to the risk of future torture.

[00:04:49] Speaker 00:
Our position is no, mainly because… Well, let's assume they did.

[00:04:51] Speaker 05:
If the IJ didn't…

[00:04:53] Speaker 05:
Could the BIA make that finding?

[00:04:56] Speaker 05:
In other words, I don't see the IJ treating the 2019 one separately.

[00:05:02] Speaker 05:
So I don't know how the BIA can make a determination that the 2019 one wasn't sufficient if the IJ never considered it.

[00:05:13] Speaker 00:
That's correct, Your Honor.

[00:05:14] Speaker 00:
Predictive findings of what's likely to happen in the future are findings of fact reserved solely for the immigration judge.

[00:05:20] Speaker 00:
So the extent that the BIA made a predictive finding in the absence of immigration judge's finding, that is impermissible fact finding precluded by the regulations.

[00:05:28] Speaker 00:
But similarly also, even in mentioning the 2019 torture as the BIA did, if they could make predictive findings,

[00:05:35] Speaker 00:
Comparing the 2019 kidnapping to those two other random muggings shows it misstates or mischaracterized the record.

[00:05:42] Speaker 00:
They never considered that this was a targeted kidnapping and torture based on him being a suspected rival.

[00:05:48] Speaker 00:
He was interrogated as a suspected rival.

[00:05:50] Speaker 00:
They also never considered that while he was recovering at his friend's house, the cartel who had his ID, who had his address to continue to surveil his wife's house.

[00:05:59] Speaker 00:
And under quote, mischaracterizing evidence or failing to mention

[00:06:03] Speaker 00:
potentially highly probative or potentially dispositive evidence indicates that the agency just did not consider the evidence before it.

[00:06:11] Speaker 05:
I want to turn to evidence of government consent or acquiescence.

[00:06:18] Speaker 05:
And I understand that there's a fight about what should have been admitted or wasn't admitted.

[00:06:24] Speaker 05:
What's your position on that?

[00:06:26] Speaker 00:
On the government acquiescence, there were two fatal flaws.

[00:06:29] Speaker 00:
First, as a legal basis, they construed acquiescence too narrowly, emphasizing the lack of a police report.

[00:06:37] Speaker 00:
The immigration judge actually, in finding no torture, said that because he didn't report his attacks, there was no police official who was aware of his harm, and thus he could not and did not... That's with respect to the 2017 incident, though, right?

[00:06:49] Speaker 05:
In other words, that's when the I.J.

[00:06:51] Speaker 05:
said there was no report.

[00:06:53] Speaker 05:
He's talking about the first incident, not the 2019 one that he didn't consider.

[00:06:59] Speaker 00:
It's unclear.

[00:07:00] Speaker 00:
I believe the judge really only considered generally acquiescence.

[00:07:03] Speaker 00:
He never reported either.

[00:07:04] Speaker 05:
Well, but the I.J.

[00:07:06] Speaker 05:
never looked at the second incident, did he?

[00:07:09] Speaker 00:
No, he never assessed the future.

[00:07:11] Speaker 05:
So his discussion must have been about the first incident, not filing a police report.

[00:07:17] Speaker 00:
I think that's a fair read into the record that the BIA seems to kind of lump the two together, just, well, he never filed a report, so there's no acquiescence.

[00:07:23] Speaker 00:
The BIA only gave two reasons, lack of a report and insufficient documentary evidence.

[00:07:28] Speaker 05:
I guess I've asked the question badly, so let me try this again.

[00:07:32] Speaker 05:
Yes.

[00:07:32] Speaker 05:
Had the country conditions evidence been admitted and the BIA and the IJ had found that it was insufficient to establish consent or acquiescence

[00:07:44] Speaker 05:
we'd have a very different case.

[00:07:46] Speaker 05:
So I'm trying to figure out what the effect of not admitting the country conditions evidence is.

[00:07:53] Speaker 00:
Well, here the immigration judge and the BI did not consider the country conditions evidence at all, which alone is a reversible error under Aguilar Ramos.

[00:08:01] Speaker 00:
Had they admitted the evidence, both DHS considered- Why is that?

[00:08:07] Speaker 04:
It was untimely.

[00:08:09] Speaker 00:
Sorry, Your Honor?

[00:08:10] Speaker 04:
Why is that?

[00:08:11] Speaker 04:
It was untimely.

[00:08:12] Speaker 00:
We don't know it was untimely.

[00:08:14] Speaker 00:
The immigration judge never made that finding.

[00:08:16] Speaker 00:
The BIA supplanted that filing in the absence of the immigration judge, never excluding the evidence.

[00:08:22] Speaker 00:
The immigration judge on this record just didn't see the evidence.

[00:08:25] Speaker 00:
He never acknowledged that it was submitted, never mentioned it once when he was marking the evidence.

[00:08:30] Speaker 00:
And when Mr. Jerome specifically asked, hey, did you receive my country conditions?

[00:08:34] Speaker 00:
Because I noticed you didn't mention them.

[00:08:36] Speaker 00:
The immigration judge just shut him down and said, I've already reviewed all of the evidence of the record.

[00:08:40] Speaker 02:
The IJ did consider

[00:08:43] Speaker 02:
if it was indeed late, submitted evidence other than the country conditions, correct?

[00:08:49] Speaker 00:
Yes, there were three other pieces of evidence submitted after that original April deadline, which attached to his first hearing that was canceled.

[00:08:56] Speaker 00:
Any explanation for that?

[00:08:58] Speaker 00:
No, there was no objection for untimeliness.

[00:09:00] Speaker 00:
There was no mention of untimeliness by DHS or the IJ.

[00:09:04] Speaker 05:
Did the IJ ever, I don't think so, I couldn't find it in this record, but I want to be sure, the IJ never

[00:09:11] Speaker 05:
said we're keeping the original day.

[00:09:13] Speaker 05:
He extended the hearing the hearing date twice and the original deadline was approximately a couple of weeks before the hearing date.

[00:09:22] Speaker 05:
He never then said it all has to still be in by the original time as opposed to two weeks before.

[00:09:29] Speaker 00:
No.

[00:09:29] Speaker 00:
There was no specific statement that the deadline was extended, but nor was there a specific statement that the deadline held despite the hearing being twice rescheduled due to COVID.

[00:09:41] Speaker 00:
Those are the three other pieces of evidence that were admitted without a beep of untimeliness or any kind of concern whatsoever.

[00:09:46] Speaker 05:
Given the BIA's finding, I guess we have to assume here that the IJ did exclude the country conditions evidence.

[00:09:55] Speaker 05:
If I were just reading the IJ's, this colloquy,

[00:09:58] Speaker 05:
I could have read it as him saying, yeah, yeah, I've considered everything.

[00:10:01] Speaker 05:
Don't worry.

[00:10:01] Speaker 05:
You don't have to remind me.

[00:10:03] Speaker 05:
But the BIA says, no, no, he excluded it as untimely.

[00:10:07] Speaker 05:
So I assume for purposes of today's proceeding, we have to assume it was excluded, don't we?

[00:10:14] Speaker 00:
I don't think that's an accurate.

[00:10:17] Speaker 00:
I would say that IJ omitted the evidence.

[00:10:19] Speaker 00:
And excluding the evidence would be an actual finding in a rule.

[00:10:22] Speaker 05:
That's what I'm trying to figure out.

[00:10:24] Speaker 05:
I mean, it was submitted.

[00:10:27] Speaker 05:
He said, I've considered all the evidence, even though he has this strange colloquy with your client.

[00:10:35] Speaker 05:
And if we only had that, I might be able to read it as I'm saying, yeah, yeah, yeah, I know you didn't mention it, but I've considered it.

[00:10:42] Speaker 05:
The difficulty is the BIA says, no, no, he properly excluded it.

[00:10:46] Speaker 05:
And so I think for purposes of this case, don't we have to assume that he excluded it?

[00:10:52] Speaker 00:
That's a BIA making a finding of fact that the... Well, they may be wrong.

[00:10:56] Speaker 05:
They may be wrong.

[00:10:57] Speaker 05:
But I'm not sure for purposes of this case we could conclude that he actually considered it, since the BIA found that he was proper in not considering.

[00:11:07] Speaker 00:
Correct.

[00:11:08] Speaker 00:
There's no question the immigration judge did not consider the omitted country condition evidence.

[00:11:13] Speaker 00:
But even if we think that April deadline held, the immigration judge cannot silently exclude evidence.

[00:11:19] Speaker 00:
Under Madrigal, if he was going to rule and exclude the evidence, he has an obligation to state that ruling and his reasoning for the ruling on the record to afford due process and to facilitate judicial review.

[00:11:31] Speaker 00:
So we're not sitting here questioning, did he admit it?

[00:11:34] Speaker 00:
Did he not admit it?

[00:11:35] Speaker 00:
Honestly, I believe the immigration judge just flat out did not see it, overlooked that it was there entirely.

[00:11:41] Speaker 00:
Missed it.

[00:11:50] Speaker 00:
If there are no other questions, I will reserve my time.

[00:11:52] Speaker 04:
All right.

[00:11:53] Speaker 04:
Thank you, Council.

[00:11:54] Speaker 04:
Thank you.

[00:11:54] Speaker 04:
We'll hear now from Ms.

[00:11:57] Speaker 04:
Thomas Doris on the video.

[00:12:03] Speaker 01:
Good morning, Honours.

[00:12:05] Speaker 01:
Can you hear me?

[00:12:06] Speaker ?:
Yes.

[00:12:07] Speaker 04:
All right.

[00:12:10] Speaker 01:
May it please the court, Nicole Thomas Doris for the government.

[00:12:16] Speaker 01:
As a threshold matter, the government would like to set forth something that hasn't been mentioned yet, is that the position of the government is that no matter the outcome as to the merits at this juncture on the first petition for review, these cases will ultimately have to be consolidated and the government will request that the court hold the decision

[00:12:45] Speaker 01:
on the first petition until the parties can brief the motion to reopen or the merits of the board's decision on the motion to reopen such that the decisions either way can be issued at the same time.

[00:13:01] Speaker 01:
That is the cleanest way for the case to proceed.

[00:13:04] Speaker 04:
If the government wants that kind of relief, the proper way to raise that is not by an oral motion in this case, but by some written document filed

[00:13:16] Speaker 04:
appropriately with the clerk, with an opportunity for the other side to respond in a timely manner.

[00:13:21] Speaker 04:
So why don't you move on to the merits of the case before us?

[00:13:24] Speaker 01:
I understand, Your Honor.

[00:13:25] Speaker 01:
And I was not trying to make the motion at this juncture, and there will be something moving on.

[00:13:32] Speaker 01:
So as to this first petition, the government's position is that ultimately, the petitioner did not demonstrate an ongoing risk of torture

[00:13:45] Speaker 04:
Well, part of the problem I have is I don't, you know, the BIA ruling clearly addresses the issue of future risk of torture.

[00:13:56] Speaker 04:
But I don't see where the IJ made any finding about that.

[00:14:02] Speaker 04:
Looking at the IJ's ruling, you know, it ends on page 12.

[00:14:06] Speaker 04:
It has a discussion which talks about a lot of different things.

[00:14:10] Speaker 04:
And the final sentence is, thus the court finds no evidence of past torture.

[00:14:14] Speaker 04:
And then you move on to the next page.

[00:14:17] Speaker 04:
And there's one paragraph that begins with, the respondent has not demonstrated a sufficient likelihood of future torture.

[00:14:27] Speaker 04:
But then the substantive analysis on the future torture issue is limited entirely to acquiescence.

[00:14:34] Speaker 04:
So I don't see where in the IJ's ruling there is even a finding

[00:14:39] Speaker 04:
about particularized risk of future torture in the IJ's ruling, and that's an issue of fact, and the BIA can't find facts, so something seems amiss here.

[00:14:52] Speaker 04:
What's your response?

[00:14:55] Speaker 01:
Oh, Your Honor, yes, the immigration judge could have been clearer, but we do have on page one of the federal... Whether he could have been clearer or not, is there any evidence that he considered the 2019 incident?

[00:15:10] Speaker 05:
In which the petitioner was plainly tortured.

[00:15:14] Speaker 05:
There isn't any doubt that what he suffered in the 2019 incident arises to the level of torture.

[00:15:20] Speaker 05:
And I just don't see a discussion of that at all.

[00:15:23] Speaker 01:
Well, we do have in the first whole paragraph on page 107 of the record, at the end, it does seem like the immigration judge is considering the totality of his claim stating

[00:15:37] Speaker 01:
on most occasions.

[00:15:39] Speaker 01:
And again, this has to do with, as I understand you're saying, the board did assume that torture, but he said on most occasions, the respondent was subsequently released and was not further harm.

[00:15:52] Speaker 05:
And that's what I don't understand what that means.

[00:15:56] Speaker 05:
In other words, he was tortured on that occasion.

[00:15:59] Speaker 05:
And therefore now the question is whether he faces a risk of future torture and

[00:16:05] Speaker 05:
And there's no discussion at all of the country conditions report, which was offered to show consent or acquiescence.

[00:16:13] Speaker 05:
So I'm having difficulty figuring out how I can find that the IJ actually made a finding of fact that there was no future risk of torture arising out of the 2019 incident.

[00:16:28] Speaker 01:
I think that that sentence, especially that I just pointed to where the judge is looking at the multiple occasions

[00:16:34] Speaker 01:
of his past or his claim.

[00:16:37] Speaker 01:
And then on the page prior, we do have, I know it is a statement of the law where the judge is talking or summarizes that an applicant must be subjected to a particularized threat of torture.

[00:16:51] Speaker 01:
And these are the pages that the board cited to in determining that this was, this finding was made and then of course affirming it.

[00:17:03] Speaker 04:
we come back to the fundamental issue, which is the discussion of the issue of future torture, which is confined to page 13 of the ruling only refers to drug trafficking.

[00:17:15] Speaker 04:
So therefore it doesn't discuss the 2019 incident and is then framed entirely in terms of acquiescence.

[00:17:23] Speaker 04:
So it doesn't even seem to consider the issue of future risk at all.

[00:17:28] Speaker 04:
So you have both,

[00:17:30] Speaker 04:
the absence of the future risk-finding and the failure to consider the 2019 with respect to that, even if it did.

[00:17:36] Speaker 01:
I understand, Your Honor.

[00:17:42] Speaker 01:
I think that we can take the immigration judge's decision as a whole, looking to the fact that his discussion of what happened in the past does inform a risk of future harm and

[00:17:58] Speaker 01:
Again, while it could have been more precise, we have the immigration judge discussing the entirety of his claim, making a determination that there's no likelihood or it's not more likely than not that he'll be tortured in the future.

[00:18:13] Speaker 05:
What do you think the language most occasions means?

[00:18:17] Speaker 05:
There only seem to be two occasions that are.

[00:18:20] Speaker 05:
Asserted as past torture says that mean that he was he was on one of the two something happened But not the second one.

[00:18:28] Speaker 05:
I just don't understand that reference Right your honor and of course, I'm looking at it as well and it doesn't say But you're saying what it demonstrates is that he considered Both incidents and I'm trying to figure out how the use of the word most when there's only two Suggest that he considered both of them

[00:18:50] Speaker 01:
Well, there was also the claims of the 2015 and 2016 muggings.

[00:18:56] Speaker 01:
And so I think it could be read that, reasonably read, that with the muggings, with the kidnapping with Mesa, his employer, he was released.

[00:19:12] Speaker 01:
And ultimately was not further harmed.

[00:19:17] Speaker 01:
That could be read to go to

[00:19:20] Speaker 01:
Really, all of the points.

[00:19:23] Speaker 05:
Let me ask you a question about the country conditions packet.

[00:19:28] Speaker 05:
As I understand it, at the beginning of the hearing, then the petitioner is proceeding pro se, correct?

[00:19:37] Speaker 05:
Yes, Your Honor.

[00:19:38] Speaker 05:
The IJ says, all right, I want to go through all the evidence.

[00:19:41] Speaker 05:
Is that everything?

[00:19:42] Speaker 05:
And the petitioner has submitted a country conditions report.

[00:19:46] Speaker 05:
It's there someplace.

[00:19:48] Speaker 05:
In other words, he's not in his pocket.

[00:19:50] Speaker 05:
He submitted it to the court.

[00:19:52] Speaker 05:
He just forgets to mention it when they go through the entire list.

[00:19:57] Speaker 05:
And then when he realizes it, he says to the IJ, gee, I think I forgot to mention the country conditions packet.

[00:20:03] Speaker 05:
And the IJ apparently, at least the BIA believes at that point, says, I'm not going to consider it.

[00:20:10] Speaker 05:
Put aside on timeliness for a second.

[00:20:14] Speaker 05:
With a pro se litigant who submitted it, and it's a country conditions report, how could the IJ at that point say, well, you didn't mention it when I went through the list the first time, so I'm not going to consider it?

[00:20:32] Speaker 01:
Your Honor, again, that is not what the board

[00:20:36] Speaker 05:
No, the board made a factual finding of its own, which is that the submission was untimely.

[00:20:42] Speaker 05:
And I have a problem with that.

[00:20:44] Speaker 05:
But I want to put aside untimeliness for a second.

[00:20:47] Speaker 05:
I just don't understand how an IJ with a pro se litigant

[00:20:51] Speaker 05:
who submitted evidence, but simply forgot to mention it when a list is being read to him, would then be able to say, well, you didn't mention it the first time through, so I'm not going to consider it.

[00:21:04] Speaker 05:
That just seems to me to be incredibly arbitrary.

[00:21:13] Speaker 01:
Again, Your Honor, the government's position is that the board, I'll have to push on this one point first.

[00:21:20] Speaker 01:
characterized it as an untimeliness finding.

[00:21:24] Speaker 01:
And the board... Not the IJ.

[00:21:26] Speaker 05:
The BIA characterized it as untimely.

[00:21:29] Speaker 05:
The IJ never mentioned untimeliness.

[00:21:32] Speaker 01:
Right.

[00:21:32] Speaker 01:
The board is now characterizing it that way.

[00:21:35] Speaker 01:
Again, reading that colloquy, the board is citing to the notice of appeal.

[00:21:40] Speaker 01:
The notice of appeal, again, pro se, characterizes it as the immigration judge saying that the documents were too late

[00:21:49] Speaker 01:
And then the board characterizes it that way.

[00:21:51] Speaker 05:
Well, you say that who characterized them as too late?

[00:21:54] Speaker 05:
The government, correct?

[00:21:57] Speaker 01:
I'm referring to the notice of appeal by the pro-state petitioner for the board saying that the immigration judge decided that my documents were too late.

[00:22:06] Speaker 05:
Right, but stop for a second.

[00:22:08] Speaker 05:
This is my problem.

[00:22:09] Speaker 05:
It seems to me what the immigration judge had said is, if you mentioned them when I went through the list the first time, that would have been fine.

[00:22:17] Speaker 05:
But you didn't mention them until later on in the hearing.

[00:22:21] Speaker 05:
And that's why they're too late.

[00:22:22] Speaker 05:
Not that they were submitted too late, but you didn't identify them for me as part of your evidence at the first occasion when I went through it.

[00:22:31] Speaker 05:
That's the way I read his ruling.

[00:22:33] Speaker 05:
So, and it seems to me if that's his ruling, that you identified them too late, it's got to be.

[00:22:39] Speaker 05:
Error does it, doesn't it?

[00:22:41] Speaker 05:
They were submitted.

[00:22:42] Speaker 05:
You have a pro se litigant who just hasn't remembered every piece of evidence as he submitted, but it's in front of the judge.

[00:22:49] Speaker 05:
It's not like it's in his pocket or in his briefcase.

[00:22:53] Speaker 01:
As we briefed, were this court to decide that it was an error to characterize that as excluding the documents as laid or to either the board's characterization or the actual exclusion

[00:23:08] Speaker 01:
then the government's position is that given the lack of ongoing particularized risk on the record, that even with those documents, we are not, remand would be, I'm sorry, remand to consider those documents would be futile.

[00:23:24] Speaker 04:
But that's where you get into trouble with the fact that you don't in fact have an IJ finding of no particularized future risk.

[00:23:32] Speaker 04:
So you've got, I understand that in theory that would have worked

[00:23:37] Speaker 04:
as an argument against a remand, the problem is that that's got a defect that, you know, of its own.

[00:23:46] Speaker 04:
But going back to Judge Hurwitz's issue, I mean, what it looks to me here is not that the IJ rejected them as untimely.

[00:23:56] Speaker 04:
There just seems to be no support for that in the record because he was taking stuff that was untimely, took several other things that were untimely.

[00:24:05] Speaker 04:
He drew a distinction somehow between the untimely ones he did accept and this one.

[00:24:13] Speaker 04:
And from all I can tell in the record, the only explanations are either he just overlooked it, which looks like an abuse of discretion, or he just said, you either mention it in the first list and there's no opportunity to correct and I'm not going to consider it, which would also sound like an abuse of discretion.

[00:24:32] Speaker 04:
Tell me why that analysis is wrong.

[00:24:39] Speaker 01:
Again, we have both the board or the ID decision and the board decision in conjunction with the appeal.

[00:24:48] Speaker 01:
And what ends, what we have the board doing is reading that colloquy.

[00:24:52] Speaker 01:
Again, as you point out, as the court has pointed out and the parties understand too, is that there isn't a full, I'm sorry, there isn't a section where the immigration judge is going into why certain documents have been

[00:25:09] Speaker 01:
admitted and particularly why the proceeding is going to now move on at that point.

[00:25:16] Speaker 01:
We only have that colloquy.

[00:25:19] Speaker 01:
But again, the board looks at that, characterizes it as too late.

[00:25:25] Speaker 01:
We also have a notice of appeal from the petitioner telling the board that IG decided they were too late and the board determining that the immigration judge did not hear in that regard.

[00:25:40] Speaker 01:
That's the record we have.

[00:25:43] Speaker 01:
The government's position is that that is reasonable given that we do have the deadline, the April deadline.

[00:25:50] Speaker 01:
Again, I could go, of course, I can't go through and tell you why I would think that certain exhibits that came after the deadline went in and others didn't.

[00:26:01] Speaker 01:
Again, the board characterized it as an untimeliness finding and by the immigration judge, the board did not engage in that fact finding.

[00:26:10] Speaker 01:
should the court find that characterization unreasonable, then the government's position is that while it could have been clearer, we do have the immigration judge looking to the entirety of petitioner's claim and determining that there was no particularized future risk of torture and the board affirming that.

[00:26:38] Speaker 01:
And we do have the evidence that he hasn't he has no evidence or he doesn't actually even know whether he's been targeted by anyone since he left Mexico.

[00:26:49] Speaker 01:
And given that strong evidence, the government's position is that that determination is reasonable.

[00:26:56] Speaker 01:
And with that, I see that my time is coming to a close.

[00:26:59] Speaker 01:
So without any questions, I will sit down.

[00:27:03] Speaker ?:
All right.

[00:27:03] Speaker 04:
Thank you, counsel.

[00:27:05] Speaker 01:
We'll hear about it.

[00:27:22] Speaker 04:
You may proceed.

[00:27:23] Speaker 00:
Thank you, Your Honors.

[00:27:25] Speaker 00:
I'll keep it brief.

[00:27:25] Speaker 00:
I think I just really have two points to make.

[00:27:28] Speaker 00:
Whether the country conditions were overlooked or excluded, that not only is an abuse of discretion under Encarnacion and Aguilar Ramos and Cole, it is a legal error.

[00:27:39] Speaker 00:
Failure to consider country conditions, particularly in a cat case, whether you failed to see them, whether you failed to give them reasoned consideration, is legal error that is per se reversible.

[00:27:52] Speaker 00:
On the particularized risk, Nourou says that evidence of past torture is the biggest indicator of a likelihood of future torture, absent any significantly changed circumstances.

[00:28:04] Speaker 00:
And we have none here.

[00:28:06] Speaker 00:
The fact that he wasn't in communication with his wife when he was indigent and pro se in immigration detention is not dispositive if there's any continued ongoing risk.

[00:28:16] Speaker 00:
After he was left for dead in the desert, he went to his friend's house and found out that the cartel who had his ID, who had his address, was continuing to surveil his wife's house, kept coming around asking for him by name.

[00:28:28] Speaker 00:
That is sufficient evidence for a particularized risk, ongoing risk of future torture.

[00:28:31] Speaker 00:
The lack of contact with his wife while in immigration detention is not dispositive.

[00:28:36] Speaker 03:
Are you looking for a grant in remand or just a grant?

[00:28:41] Speaker 00:
Is our position that the evidence would compel a grant of CAT in this case?

[00:28:46] Speaker 00:
However, given the lack of very specific findings that are usually required by the immigration judge, I do understand it would be more appropriate to remand.

[00:28:54] Speaker 05:
Does the evidence compel a finding of government consent or acquiescence?

[00:28:58] Speaker 05:
I understand there's support for an argument of consent or acquiescence in the country conditions report, but I'm not sure that the report compels that

[00:29:10] Speaker 00:
I would refer to the court to that, but I do believe that the, whether you look at the Department of Homeland Security's country conditions that were submitted, the State Department reports that shows there was substantial evidence of acquiescence.

[00:29:21] Speaker 00:
There was generalized widespread collusion, government collusion with cartels.

[00:29:25] Speaker 00:
This is evidence that Madrigal found compelling to show there was sufficient.

[00:29:29] Speaker 04:
to establish acquiescence.

[00:29:31] Speaker 04:
INS versus Ventura establishes an ordinary remand rule that normally we can't do the agency's work for it when it's messed up.

[00:29:39] Speaker 04:
We just send it back and say do it right.

[00:29:42] Speaker 00:
That's correct, Your Honor.

[00:29:44] Speaker 00:
That's why we, while I believe the evidence in this case clearly compels a specific finding,

[00:29:49] Speaker 00:
In the absence of those findings, in the case you just mentioned, and also in Ornelas Chavez, when the immigration agency just doesn't follow the rules, when they don't consider evidence before it, where they apply the wrong standards, it's not this court's job to then assess a cat claim in the first instance.

[00:30:07] Speaker 00:
Rather, the court generally will remand for the agency to do its job in the first instance.

[00:30:13] Speaker 00:
However, given the compelling nature of this case, giving the two past tortures and the agency's refusal to consider evidence properly submitted by a pro se respondent, if the court were to make an exception to that general rule, I think this is one of the cases that warrant it.

[00:30:33] Speaker 00:
For those reasons, we ask that the court grant the petitioner's application.

[00:30:37] Speaker 04:
Thank you, counsel.

[00:30:38] Speaker 04:
The case just argued will be submitted.