[00:00:19] Speaker 02:
Good morning.

[00:00:20] Speaker 02:
May he please the court?

[00:00:21] Speaker 02:
My name is Shannon Murphy, and I represent the petitioners, Miss Olga Garcia Demetrio and her three children.

[00:00:27] Speaker 02:
May I reserve two minutes for rebuttal, please?

[00:00:31] Speaker 02:
Just watch the clock.

[00:00:32] Speaker 02:
Thank you.

[00:00:35] Speaker 02:
Your Honor, this case concerns the depth of analysis that the board must engage in when considering whether a proposed particular social group is cognizable.

[00:00:44] Speaker 02:
In the instant case, petitioners are respectfully requesting that this court remand the petition for review so that the board may engage in a proper analysis as to whether petitioners propose particular social group, mothers of adolescent children living in Mexico,

[00:01:02] Speaker 02:
is cognizable under the Act.

[00:01:05] Speaker 02:
By way of background, briefly, Petitioner's case came forth after her husband disappeared in Mexico in October 23.

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Petitioner was left alone to raise her three children.

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She was lured to an encounter with criminal actors under the guise of receiving government assistance for single mothers.

[00:01:26] Speaker 02:
At that time, Petitioner then learned that the criminal actors intended to recruit her children to have them sell drugs and potentially be sold for rape.

[00:01:39] Speaker 02:
Petitioner's proposed particular social group, when she came to the United States to seek asylum, was mothers of adolescent children living in Mexico.

[00:01:49] Speaker 02:
But both the board and the immigration judge dismissed this particular social group, finding that it lacked immutability.

[00:01:56] Speaker 02:
Such a categorical dismissal, though, really undermines both the board's precedent and this court.

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This court has remanded petitions for review where the board failed to engage in a case-by-case specific analysis.

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Specifically, if we look to Plancarte Saucedo versus Garland, we can see that the board

[00:02:18] Speaker 02:
Only looked at the immutability element for a cognizant a particular social group of female nurses and failed to engage in the social distinction or particularity analysis and this court Emphasized that there must be a specific case-by-case determination Would you address whether you are relying on any arguments that you did not raise in your opening brief and if so How do we deal with that?

[00:02:46] Speaker 02:
Absolutely, Your Honor.

[00:02:47] Speaker 02:
Petitioners are relying on the opening brief to the extent that we are focusing on the cognizability of the first proposed particular social group and also as to whether or not the second proposed particular social group is cognizable and whether or not there is nexus.

[00:03:04] Speaker 02:
While there was a 28J submitted that also concerns the immutability of the age for the first particular social group, petitioners are prepared to respond to that as well.

[00:03:15] Speaker 00:
Thank you, Judge McEwen.

[00:03:16] Speaker 04:
Well, it's along the lines of Judge Fitzwater.

[00:03:19] Speaker 04:
Just to be clear, the cognizable social group that we're looking at here are mothers of adolescent children.

[00:03:27] Speaker 04:
Is that correct?

[00:03:28] Speaker 02:
Mothers of adolescent children living in Mexico.

[00:03:31] Speaker 04:
Living in Mexico.

[00:03:31] Speaker 04:
Yes.

[00:03:32] Speaker 04:
And the nexus would have to be that the adolescent children are being threatened.

[00:03:37] Speaker 02:
The nexus would have to be that the mother of these adolescent children is receiving threats and or harm because of her children's adolescent status.

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And so I will note that the board did not look to the nexus for this proposed particular social group.

[00:03:57] Speaker 04:
Because it didn't get any further than whether you recognize it or not.

[00:04:01] Speaker 02:
Correct, Your Honor.

[00:04:02] Speaker 02:
So the board specifically looked at whether or not this proposed particular social group had an immutable characteristic and rested on those grounds.

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And so in this case, it's appropriate, as petitioners would request, to be remanded.

[00:04:16] Speaker 04:
So I had a question.

[00:04:17] Speaker 04:
When I first read this, there was a certain intuitive aspect to say, well, age is not immutable, because today we are the age we are, and tomorrow will be a day older.

[00:04:27] Speaker 04:
We don't want to talk about the future.

[00:04:29] Speaker 04:
Another 10 years will be 10 years older.

[00:04:31] Speaker 04:
So it's not immutable.

[00:04:32] Speaker 04:
But then I read this BIA decision, SEG, from 2008 that talks about if you've been persecuted on an age-described social group, that it can be a social group.

[00:04:50] Speaker 04:
So how does that case figure into your definition of the particular social group?

[00:04:57] Speaker 02:
Absolutely, Your Honor.

[00:04:58] Speaker 02:
So, a matter of SCG is quite helpful in this case.

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A matter of SCG, of course, recognized that age, by its very definition, is mutable.

[00:05:07] Speaker 02:
It does change over time, as Judge McKeon just recognized.

[00:05:10] Speaker 02:
But that being said, what my opposing counsel has not really recognized in the brief is that on page 584 of that decision, the board went on to continue to say that there can be cases where age is a specific characteristic.

[00:05:26] Speaker 02:
when this court, if it remands for the board to look more in depth at the facts of the case, the board and the immigration judge can see within the record that there are multiple pieces of record evidence that reference the adolescent status of the child.

[00:05:43] Speaker 03:
So if I understand you correctly, you're saying that your argument is in SEG, the board said in that particular case, age was not an immutable characteristic,

[00:05:56] Speaker 03:
isn't categorically never immutable.

[00:06:01] Speaker 03:
Essentially on a case-by-case basis, age could be an immutable characteristic, which is consistent with BIA precedent, our own precedent, finding at least some age-based groups to be qualifying cognizable PSGs.

[00:06:19] Speaker 03:
Understand you correctly if you say if I understand you correctly you're arguing not that we should find Affirmatively that this psg is cognizable But rather to remand for the board to make the case-by-case Determination that it said it would do in seg

[00:06:37] Speaker 02:
Yes, Your Honor, that's correct.

[00:06:39] Speaker 02:
And specifically, I will just briefly point out to this Court that in the 28-J, there were multiple Ninth Circuit cases that were specifically referenced as rejecting particular social groups where the Board found no immutability based on age.

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But in those specific decisions, if we look at Mejia Lopez and Tejada Rada,

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Both of those cases, the board went on to engage in a social distinction analysis, which is missing here.

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And I think what's also important to note is that neither the board nor the immigration judge referenced matter of SEG in finding that this particular social group lacked immutability.

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Even if we look to the addendum of law that the immigration judge provided within the record, SEG does not appear.

[00:07:21] Speaker 04:
So what happens as a practical matter if

[00:07:26] Speaker 04:
You go through the process, and then it gets redefined that the child or children now are a little older.

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What happens if they age out?

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Does that mean that they're no longer protected?

[00:07:40] Speaker 02:
No, Your Honor.

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It does not mean that they are no longer protected.

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The question is, did they fall within the particular social group parameters at the time either the harm occurred or when the group was proposed and adjudicated?

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And if there are no further questions,

[00:07:55] Speaker 03:
Just so you will make sure you have time on rebuttal, but I think there's I guess my follow-up question there They would still have to meet all the other requirements for asylum or withholding including establishing their credible fear future persecution

[00:08:11] Speaker 02:
Yes, Your Honor.

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And as to the credible fear of future persecution, petitioner's position is that the board did not reach that element.

[00:08:19] Speaker 02:
While the board did cursory mention that they were affirming the IJ's denial of asylum and withholding, the specific pages that they reference to in petitioner's view are the summary of that petitioner did not satisfy those applications.

[00:08:35] Speaker 03:
So you essentially want to get past the first, at least have the first step.

[00:08:39] Speaker 02:
Absolutely your honor.

[00:08:40] Speaker 02:
We just want full consideration before the board.

[00:08:43] Speaker 01:
Thank you May it please the court Jeffrey Lee is appearing on behalf of the Attorney General

[00:08:58] Speaker 01:
In this case, the agency properly denied the petitioner's applications for asylum and withholding removal, where she failed to demonstrate that her particular social group of mothers of adolescent children living in Mexico was cognizable, and where she failed to demonstrate that the harm she suffered was on account of her membership in the proposed group of single women who have been targeted by criminals in Mexico.

[00:09:22] Speaker 01:
Turning first to the issue of the age-based group,

[00:09:26] Speaker 01:
The petitioner is asking for a remand for full consideration in matter of SEG, which if that is the court's position that it needs to be sent back, that is obviously what the court may do.

[00:09:36] Speaker 01:
But part of the reason why there was no discussion about matter of SEG is that the issue wasn't raised to the board.

[00:09:43] Speaker 01:
The petitioner's brief on appeal focused on motherhood being

[00:09:47] Speaker 01:
an immutable characteristic.

[00:09:49] Speaker 04:
Do you agree that motherhood is an immutable characteristic?

[00:09:53] Speaker 01:
I believe that there's cases out there that have held so, yes.

[00:09:56] Speaker 04:
So that alone would put you into a cognizable group, right?

[00:10:01] Speaker 01:
It depends.

[00:10:03] Speaker 01:
Well, it may satisfy the immutability.

[00:10:06] Speaker 01:
There may be other factors as far as particularity and social distinction.

[00:10:09] Speaker 01:
But I don't know of any case that has found motherhood itself to not be immutable.

[00:10:14] Speaker 01:
But even setting aside the issue of exhaustion, this court has repeatedly and recently considered age-based groups and found that being young or being a youth is not an immutable characteristic and has done so in several cases, either by citing directly to and relying on matter of SEG or in using language that essentially is the same as that in matter of SEG.

[00:10:37] Speaker 01:
Flores Cruz from 2009, which dealt with Honduran street children.

[00:10:41] Speaker 01:
The court in that case relied on Matter of SEG to find the group.

[00:10:45] Speaker 01:
It was not immutable because the children would age out of the group.

[00:10:50] Speaker 01:
Mejia Lopez from earlier this year.

[00:10:53] Speaker 03:
Are any of these cases published decisions?

[00:10:54] Speaker 01:
No, they are unpublished.

[00:10:55] Speaker 01:
And so they are not binding, but they are certainly persuasive in our opinion.

[00:10:59] Speaker 04:
But that, of course, is an issue that we have, is that we keep having all these

[00:11:04] Speaker 04:
I won't call them unpublished, non-dispositive dispositions.

[00:11:07] Speaker 01:
Absolutely.

[00:11:08] Speaker 04:
And you're left to try to sort through them.

[00:11:10] Speaker 01:
Yes.

[00:11:11] Speaker 01:
And that was something that I was engaging when I was briefing this, is that there wasn't really anything published on this.

[00:11:16] Speaker 03:
So what we're left with, and I just want to see if you know something different, we have Mohammed versus Gonzalez, our 2005 case, which recognized a cognizable PSG young girls in certain clan.

[00:11:30] Speaker 03:
That included

[00:11:31] Speaker 03:
an age component, is that correct?

[00:11:33] Speaker 01:
It did, Your Honor, and I believe that there was also, matter of kasinga was referenced by the petitioners in the briefing as well.

[00:11:38] Speaker 01:
Now those cases predate matter of SEG, and there's other cases, Tejada Ruada, Judge McKeown, was actually on the panel in that case, which held that young males actively opposed to gang membership or recruitment was not cognizable, because it was not immutable, and while there was no citation to matter of SEG in that case, the language that was actually used that,

[00:12:00] Speaker 01:
Youth was not entirely immutable by its very nature, a temporary state that is subject to change is the same language that was in matter of SEG.

[00:12:07] Speaker 03:
So, I mean, this court has... Matter of SEG does in fact say that age could be.

[00:12:13] Speaker 01:
Right.

[00:12:13] Speaker 01:
And, you know, that was the purpose of the footnote that I dropped in there about whether or not this kind of butts up against the circularity issue.

[00:12:20] Speaker 01:
Because it seems that in that language, in that decision, they are tying the immutability to the persecution.

[00:12:26] Speaker 01:
Whereas in Diaz-Reyonoso, the court was very clear that you can't actually, the immutable characteristic has to be independent of the persecution.

[00:12:34] Speaker 01:
It's also, I'm not aware of any other circumstance when the courts looked at immutability, where it has been so narrowly focused on A, the time period, and B, the harm.

[00:12:43] Speaker 01:
Rather, it's been whether the trait itself is changeable.

[00:12:46] Speaker 04:
Wouldn't it make sense, though I'm reading the BIA's decision, which says, we affirm the finding at the first social group.

[00:12:55] Speaker 04:
As the IJ found, the respondent's status as a mother will change as the children age.

[00:13:03] Speaker 04:
So wouldn't it make sense for us to remand this and let the BIA in the first instance take a crack at how

[00:13:13] Speaker 04:
SAG fits into situations like this.

[00:13:16] Speaker 01:
I mean, it certainly can do so, Your Honor, if the court feels that this case would benefit from further development of that issue, notwithstanding the fact that it was not exhausted.

[00:13:24] Speaker 04:
Well, the issue was exhausted, but you don't have to cite.

[00:13:27] Speaker 04:
The issue was exhausted, wasn't it?

[00:13:28] Speaker 04:
I mean, we're talking about age.

[00:13:30] Speaker 04:
You don't have to cite to a particular rule.

[00:13:33] Speaker 01:
The focus of the argument on appeal to the board was on the motherhood aspect, not the actual age aspect.

[00:13:38] Speaker 01:
So it wasn't mothers of adolescents.

[00:13:41] Speaker 01:
There was no reference to matter of SEG or any allegation that the immigration judge failed to apply the board's precedent in determining that because age is not immutable, the petitioners would age out of the group eventually.

[00:13:53] Speaker 04:
Well, but then when you look at the BIA decision, the BIA kind

[00:13:59] Speaker 04:
hits the nail on the head talking about adolescent children age changing as the children age.

[00:14:08] Speaker 04:
So whether it was precisely argued and certainly SEG wasn't cited, the BIA tried to engage it in a kind of superficial way, didn't it?

[00:14:20] Speaker 01:
I mean, the board absolutely addressed the issue.

[00:14:22] Speaker 01:
I mean, so in that sense, this court's jurisprudence on exhaustion is probably sufficient to find the issue raised.

[00:14:27] Speaker 01:
My only point was that the manner and the depth in which the board addresses an issue is completely commensurate with the way that it is actually raised in the briefing.

[00:14:36] Speaker 01:
So the reason why there's not much of an argument by the board on this is because there wasn't any argument presented.

[00:14:41] Speaker 01:
So the board's almost just summarily affirming the IJ's decision while actually including the language.

[00:14:45] Speaker 01:
So again, if the court is inclined to remand for further development of the matter of SEG issue, they certainly can do so.

[00:14:52] Speaker 01:
As to the second particular social group,

[00:14:55] Speaker 01:
that was based on being targeted for harm, the agency properly determined that the petitioner failed to demonstrate that the harm was actually on account of membership in that group.

[00:15:05] Speaker 01:
There was only one incident of harm in here, and the individuals who targeted her therefore could not have targeted her based on the actual language she's included in her particular social group.

[00:15:15] Speaker 01:
There's the case Chavez Segovia, which dealt with, I believe it was Salvadoran women who've been victimized by gangs, held that

[00:15:23] Speaker 01:
because there was only this one incident of harm, she could not have been targeted as somebody who had been victimized by gangs because that hadn't happened until after the incident had already occurred.

[00:15:35] Speaker 01:
If there are no further questions.

[00:15:50] Speaker 02:
Thank you.

[00:15:51] Speaker 02:
Two brief points on rebuttal.

[00:15:53] Speaker 02:
First, as Judge McEwen seemed to indicate, petitioners do take the position that in the brief before the board, the issue of age was addressed, and irrespective, the board did decide that issue

[00:16:06] Speaker 02:
on its merits, and so it's properly before this court.

[00:16:10] Speaker 02:
And second, the consideration of adolescence is quite distinctive from the consideration of young or youth.

[00:16:17] Speaker 02:
Adolescence is more often a general term that has an accepted definition.

[00:16:23] Speaker 02:
And specifically, if you look to the record evidence, there is discussion of adolescence and age range on page 275, 257, and 258 to 259.

[00:16:33] Speaker 02:
And for the reasons

[00:16:35] Speaker 03:
Just repeat those numbers.

[00:16:40] Speaker 02:
Yes, your honor 275 257 258 and 259 and For the reasons discussed petitioners respectfully request remand for consideration before the board.

[00:16:51] Speaker 02:
Thank you Thank you.

[00:16:54] Speaker 03:
Thank you counsel for your helpful arguments this matter is submitted