[00:00:04] Speaker 05: There she is. [00:00:05] Speaker 05: The United States Court of Appeals for the Ninth Circuit is now in session. [00:00:09] Speaker 05: Please be seated. [00:00:12] Speaker 06: Good morning, everyone. [00:00:15] Speaker 06: We're proceeding in two sessions today. [00:00:18] Speaker 06: The first case we're going to take up is Zavala Molina versus Bondi. [00:00:26] Speaker 06: I'm gonna thank the University of San Diego Law School for its pro bono work on this matter. [00:00:32] Speaker 06: And counsel, you may proceed. [00:00:38] Speaker 02: Good morning, Your Honors, and may it please the court. [00:00:40] Speaker 02: My name is Grace Capinetto. [00:00:42] Speaker 02: I'm a certified law student, and I'm here today on behalf of the petitioner, Marta Alicia Zavala Molina. [00:00:49] Speaker 02: I'd like to respectfully request three minutes of rebuttal on behalf of my co-counsel, Christina Maraskis. [00:00:55] Speaker 02: All right. [00:00:56] Speaker 02: Thank you. [00:00:57] Speaker 02: You may proceed. [00:00:57] Speaker 02: Thank you, Your Honor. [00:01:00] Speaker 02: Ms. [00:01:00] Speaker 02: Zavala Molina was brutally raped and tortured with a knife for three hours on the edge of a cliff and was released on the sole condition that she not report her crime to the police. [00:01:12] Speaker 02: Ms. [00:01:12] Speaker 02: Zavala Molina came to the United States to escape the constant state of fear she was living in. [00:01:18] Speaker 02: and to flee from her persecutor and his credible death threats. [00:01:22] Speaker 02: Unfortunately, upon her arrival, she was failed by our immigration justice system when the immigration judge and the BIA made critical legal errors in her case. [00:01:32] Speaker 02: There are three distinct legal reasons this court should grant Ms. [00:01:36] Speaker 02: Evala Molina's petition for review and remand this case to the BIA with appropriate instructions. [00:01:42] Speaker 02: First, the BIA erred legally in finding that there was no nexus between the harm Ms. [00:01:48] Speaker 02: Zavala Molina suffered and her particular social groups. [00:01:52] Speaker 02: This court has long held that the nexus inquiry is a holistic one. [00:01:56] Speaker 02: Even if Ms. [00:01:57] Speaker 02: Zavala Molina's first attack was an isolated act of criminal violence, the second attack plainly was not. [00:02:04] Speaker 02: The second attack resulted directly from Ms. [00:02:07] Speaker 02: Zavala Molina's reporting to the police of her rape [00:02:10] Speaker 02: and her fight for justice in El Salvador. [00:02:13] Speaker 02: The second time Ms. [00:02:14] Speaker 02: Zavala-Malina encountered her attacker, he stated to her, quote, did you think that I was going to forget about you, end quote, at last I found you after eight years. [00:02:25] Speaker 03: Can I ask you a question? [00:02:28] Speaker 03: You are requesting an exception to Hunterov based on having incompetent counsel, having the IJ and counsel not [00:02:39] Speaker 03: adequately develop the record and to litigate substantially similar claims. [00:02:46] Speaker 03: And so I'm wondering if there's a tension there between saying council was incompetent, could not raise socially recognizable particular social groups, but then saying, but let's litigate the substantially same ones. [00:03:03] Speaker 03: Isn't that just always going to fail? [00:03:04] Speaker 03: And isn't there a tension both in [00:03:09] Speaker 03: the exception you're proposing and in sort of how you've argued this case, because your opening brief says this was an incompetent lawyer. [00:03:17] Speaker 03: None of these social groups are recognizable. [00:03:20] Speaker 03: And then in your reply brief, you say, but I'm also raising substantially the same particular social groups. [00:03:26] Speaker 03: I'm just wondering if all of your criticisms of the previous counsel in your opening brief also apply to your social groups in the reply brief. [00:03:35] Speaker 02: Yes, Your Honor. [00:03:36] Speaker 02: They apply equally to both the particular social groups raised before the immigration judge and those raised before the BIA. [00:03:43] Speaker 03: So both sets of PSGs are defective. [00:03:46] Speaker 03: That would mean yours are also defective. [00:03:49] Speaker 03: So then why would you be entitled to any relief? [00:03:52] Speaker 02: Your Honor, the particular social groups posed before the BIA are substantially similar to those posed below. [00:03:59] Speaker 02: Ms. [00:04:00] Speaker 02: Zavala-Molina's counsel was ineffective, we argue, throughout her whole proceeding. [00:04:06] Speaker 02: However, his ineffectiveness is glaring before the immigration judge specifically. [00:04:13] Speaker 02: The particular social groups that he posed before the BIA were substantially similar variations of those proposed before the immigration judge, and those groups were [00:04:30] Speaker 02: the young women who are particular victims of sexual crimes who further report their assailants to the authorities. [00:04:36] Speaker 02: That group is substantially similar to the three raised before the immigration judge, which were rape victims, Salvadorian women who have been subjected to forcible rape by a gang member and escaped, and individuals who filed a complaint with the authorities. [00:04:50] Speaker 02: Here, the argument that this court may [00:04:54] Speaker 02: choose to extend or an exception to the Hontra versus Barr case is an argument in the alternative. [00:05:01] Speaker 02: So if this court were to find that Ms. [00:05:03] Speaker 02: Zavala-Molina's particular social groups are not substantially similar, then we argue that the court has an opportunity to extend an exception to the Hontra case. [00:05:13] Speaker 02: However, this court does have a long-standing principle of accepting substantially similar particular social groups on appeal, for example, in the [00:05:23] Speaker 02: Acklesung versus Barr case, and more recently in an unpublished Ninth Circuit decision where the court rejected the government's argument that the applicant raised her first, or waived, excuse me, her first particular social group because she presented a new particular social group in her opening speech. [00:05:41] Speaker 03: I guess I'm still unclear because it seems like you're in a catch-22, right? [00:05:45] Speaker 03: If they're not substantially similar, then you haven't exhausted. [00:05:48] Speaker 03: If they are substantially similar, then they suffer from the same deficiencies of [00:05:53] Speaker 02: Circularity not socially distinct, so I guess I'm not clear on why you're not in a catch-22 here and how you Overcome that yes, your honor so the exhaustion issue is at the forefront of this particular argument as well however the Bia did address the merits of the particular social groups posed before it in a footnote and [00:06:14] Speaker 02: where it stated that each of the particular social groups posed before it were circularly defined. [00:06:21] Speaker 02: So the fact that the BIA did address the particular social groups posed before it rather than simply summarily discarding them because they were unexhausted opens the door here for those claims to have been exhausted. [00:06:36] Speaker 02: And this court in Soka Gonzalez versus INS found similarly when the BIA didn't officially address or direct an entire paragraph of its analysis towards a particular social group or an issue, the court still found that issue to have been exhausted because the BIA addressed it. [00:06:55] Speaker 06: Yes, counsel. [00:06:56] Speaker 06: So what is your best iteration of your particular social group? [00:07:03] Speaker 06: And why is it cognizable? [00:07:07] Speaker 02: Yes, Your Honor. [00:07:08] Speaker 02: So the best iteration of the particular social group here is the one posed before the BIA, which is young women who are particular victims of sexual crimes who further report their assailants to the authorities. [00:07:20] Speaker 02: The cognizability of that social group has yet to be addressed by the BIA, especially in light of this court's recent precedent in the Alamamba Yoso versus Bondi case. [00:07:30] Speaker 02: The court clearly addressed the merits of the particular social groups through a freestanding circularity analysis. [00:07:37] Speaker 02: However, that analysis is no longer valid before this court, as this court decided in the Alamambayoso case earlier this year. [00:07:45] Speaker 02: So the BIA has yet to have an opportunity to consider the merits of these particular social groups in line with current Ninth Circuit precedent. [00:07:54] Speaker 02: So on that basis, also, we argue that [00:07:58] Speaker 02: this court ought to remand the case to the BIA for that reason as well. [00:08:01] Speaker 02: What is the case you're relying on from earlier this year? [00:08:04] Speaker 02: Alamon Bellozzo versus Bondi. [00:08:06] Speaker 02: It was a case submitted in our 28-J letter to the court. [00:08:10] Speaker 02: The court in that case considered a identical argument here as the BIA and the immigration judge are making where the BIA and the immigration judge are stating that Ms. [00:08:23] Speaker 02: of all Molina's particular social groups are impermissibly circular. [00:08:27] Speaker 02: because they're defined by the harm that she experienced. [00:08:30] Speaker 02: However, the court noted explicitly in that decision that they deemed that analysis the freestanding circularity analysis. [00:08:38] Speaker 02: And they stated that that analysis has no foundation in BIA or circuit precedent. [00:08:44] Speaker 02: And they quoted the Diaz-Reynoso versus Bar case, where the court noted that simply because a particular social group [00:08:52] Speaker 02: mentions the harm that an individual suffered. [00:08:55] Speaker 02: It doesn't make that particular social group impermissibly circular. [00:08:59] Speaker 03: The immigration judge found your asylum application, your client's asylum application, untimely. [00:09:05] Speaker 03: So why doesn't that make your client statutorily ineligible for asylum, since you didn't argue changed country conditions or circumstances? [00:09:15] Speaker 02: The BIA didn't address the timeliness of Ms. [00:09:17] Speaker 02: Zavala-Molina's I-589 application. [00:09:22] Speaker 02: Therefore, that decision or that point of argument is not considered in the BIA's final decision here, which is what's before this court today. [00:09:31] Speaker 02: The timeliness of her application wasn't something that was raised in the BIA's decision. [00:09:38] Speaker 02: And she did submit her petition for review within 30 days of the BIA's final order here. [00:09:48] Speaker 02: So that petition itself is timely. [00:09:50] Speaker 02: That's the only order before this court that is in consideration here in regards to timeliness. [00:09:58] Speaker 03: But petitioner didn't challenge the timeliness finding of the IJ to the BIA. [00:10:06] Speaker 03: So why isn't that a waiver of any challenge to that finding? [00:10:12] Speaker 02: Yes, Your Honor. [00:10:13] Speaker 02: So although he didn't. [00:10:15] Speaker 02: Challenge the timeliness finding of the I-589 before the BIA the BIA still didn't factor that into their analysis So the BIA did not address at all the timeliness of her asylum application and in doing so in evaluating all of her claims before the before the immigration judge with regard to her asylum and her withholding of removal which are what she applied for through her I-589 and [00:10:39] Speaker 02: The BIA essentially adopted the reasoning that they were timely because it did address the merits of Her I-589 and her asylum and withholding of removal applications, but we have to look at our jurisdiction suespante right so if we find it was untimely then Regardless of whatever the BIA did if we think there's no jurisdiction, then we would have to just dismiss the petition correct [00:11:05] Speaker 02: That's true, Your Honor. [00:11:05] Speaker 02: If you find that there's no jurisdiction, regardless, before this court, then the court would, of course, have the authority to dismiss the claim. [00:11:13] Speaker 06: Is the statutory bar on asylum claims, if you wait more than a year, a jurisdictional bar? [00:11:20] Speaker 06: Or is it just a statutory claim rule? [00:11:26] Speaker 06: I believe, Your Honor, it's a statutory claim rule, so it's not necessarily... A claims processing rule, so it would not bar our jurisdiction. [00:11:33] Speaker 06: to review the BIA decision. [00:11:35] Speaker 02: That's true, Your Honor. [00:11:38] Speaker 02: It is a statutory bar here, so I correct myself, Your Honor. [00:11:44] Speaker 02: Thank you. [00:11:45] Speaker 02: There is no jurisdictional bar if the court finds the asylum application was untimely, both because it is a statutory bar, so it would prevent her from writing the claim in the first place. [00:11:55] Speaker 06: It's a claims processing rule as opposed to a jurisdictional rule on the BIA ruled on the merits. [00:12:00] Speaker 02: Yes, your honor. [00:12:00] Speaker 02: Thank you. [00:12:01] Speaker 02: And the court does have jurisdiction to review the BIA's final order, of course, under the 8 USC 1252 in this case. [00:12:12] Speaker 06: Judge Rosenthal, I think, is asking a question, but we can't hear her because she's mooted. [00:12:17] Speaker 06: And I also neglected to say thank her for sitting with us today. [00:12:23] Speaker 06: But you are unmoot, so we need to do something about that. [00:12:36] Speaker 05: Rosenthal you're muted. [00:12:37] Speaker 04: Try this now. [00:12:59] Speaker 04: Can you hear me now? [00:13:00] Speaker 06: Yes. [00:13:01] Speaker 04: Okay, very good. [00:13:02] Speaker 04: So sorry for the delay in that brief question, assuming that we have jurisdiction and that there's no time bar. [00:13:09] Speaker 04: The Nexus finding is what I want to draw your attention to. [00:13:15] Speaker 04: And I have two questions. [00:13:17] Speaker 04: What standard should we apply in reviewing the argument that the BIA erred when it found that the [00:13:24] Speaker 04: immigration judge did not err in determining the absence of nexus between the harm that your client fears and her particular social group. [00:13:37] Speaker 04: And relatedly, she was attacked for the second time by the same man who eight years earlier had attacked her. [00:13:45] Speaker 04: The BIA and the IJA found that that was an attack based on a personal vendetta. [00:13:54] Speaker 04: or personal motivation, not any membership in a particular social group. [00:13:59] Speaker 04: So I wondered if you could address both of those questions. [00:14:02] Speaker 02: Absolutely your honor, and I do notice that my time has elapsed may I may I briefly answer your questions. [00:14:08] Speaker 02: Yes, you may. [00:14:09] Speaker 02: Thank you. [00:14:09] Speaker 04: Thank you. [00:14:10] Speaker 02: Yes, so as regard to the or with regard to the standard of review here in general the court reviews factual findings which might include nexus issues for substantial evidence. [00:14:21] Speaker 02: However, Ms. [00:14:23] Speaker 02: Zavala Molina has been deemed credible and so therefore in that context this court has previously concluded that nexus issues are a [00:14:31] Speaker 02: questions of law entitled to de novo review. [00:14:34] Speaker 02: So in Ms. [00:14:35] Speaker 02: Evala Molina's case, the standard of review for this court is de novo. [00:14:39] Speaker 02: And with regard to your question regarding Ms. [00:14:42] Speaker 02: Evala Molina's [00:14:44] Speaker 02: attack or having potentially a personal vendetta. [00:14:47] Speaker 02: The court has repeatedly found that in cases where there might be a personal vendetta, a mixed motive analysis may still allow the court to find that the individual had been persecuted and that there was a nexus between that persecution and a protected ground. [00:15:04] Speaker 02: In this case, the government may cite to the Zatino case to point this court's attention or to attempt to convince this court that her attack was a personal vendetta or a isolated act of criminal violence. [00:15:17] Speaker 02: However, that case was much more clearly so, a personal vendetta and a isolated incident. [00:15:25] Speaker 02: In that case, there were an individual's family members were attacked by their neighbors in an attempt to steal their land. [00:15:32] Speaker 02: The individual wasn't present on that day. [00:15:34] Speaker 02: He was already in the United States. [00:15:36] Speaker 02: And the individual admitted that the only reason that they targeted his family was to steal the land. [00:15:43] Speaker 02: Here, Ms. [00:15:43] Speaker 02: Seval Molina's second attack was clearly motivated by a desire to persecute her because she had reported her crime to the police, which creates the nexus that this court should consider that the BIA erred in failing to recognize here. [00:15:57] Speaker 03: Thank you, Your Honor. [00:15:59] Speaker 03: site to the statute 8 USC section 1158 so exception 2 is authority to apply for asylum and B is the time limit and it says that the Subsection subject to sub paragraph D paragraph 1 shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within one year after the date of the aliens arrival in the United States and [00:16:24] Speaker 03: There is an exception for change circumstance that an application for asylum of an alien may be considered, where there are change circumstances that materially affect the alien's [00:16:34] Speaker 03: or applicants eligibility for asylum. [00:16:37] Speaker 03: And then section three says limitation on judicial review. [00:16:41] Speaker 03: Quote, no court shall have jurisdiction to review any determination of the attorney general under paragraph two. [00:16:48] Speaker 03: So that means there is no jurisdiction, there's no judicial review of the agency determination of timeliness based on this statute. [00:16:57] Speaker 03: And it does invoke jurisdiction, correct? [00:17:00] Speaker 03: That is what the statute says. [00:17:02] Speaker 02: That's true, Your Honor. [00:17:02] Speaker 02: It does invoke jurisdiction. [00:17:04] Speaker 03: Right. [00:17:04] Speaker 03: So if we have no jurisdiction to review the timeliness determination of the agency, then I guess I'm still unclear here if the IJ determined that there was a statutory bar here because a client applied outside the one-year limit, and we have no jurisdiction to review that determination under the statute. [00:17:28] Speaker 03: I guess I'm still [00:17:29] Speaker 06: We're going to have to talk about that further because we're reviewing the BIA decision. [00:17:33] Speaker 06: The BIA did not make a timeliness finding. [00:17:36] Speaker 06: That's correct, Your Honor. [00:17:38] Speaker 06: So that's the answer to the question. [00:17:41] Speaker 06: But I guess we can discuss it further. [00:17:43] Speaker 02: That's correct, Your Honor. [00:17:46] Speaker 02: Because the BIA did not rule in its final removal order on the issue of timeliness, as the statute mentioned, it's the agency's final order that is before the court. [00:17:57] Speaker 02: And so if the agency were to have [00:17:59] Speaker 02: ruled that her application was untimely, then that would potentially likely bar jurisdiction for this court. [00:18:06] Speaker 02: However, since the BIA failed to make that determination, that issue is not before the court today. [00:18:12] Speaker 03: OK. [00:18:12] Speaker 03: Thank you. [00:18:13] Speaker 02: Thank you, Your Honors. [00:18:36] Speaker 00: It may please the court. [00:18:37] Speaker 00: My name is Jonathan Robbins, and I'm here on behalf of the respondent, the Attorney General. [00:18:42] Speaker 00: Good morning to all of you. [00:18:44] Speaker 00: Good morning. [00:18:44] Speaker 00: It is a well-established understanding in the law that in order to establish refugee status, you have to show more than that you were harmed in your home country. [00:18:54] Speaker 00: You have to show that that harm was on account of a statutorily protected ground. [00:18:58] Speaker 00: And that rule in the law leads to cases like this, very unfortunate cases, where people undergo significant harms in their home country [00:19:05] Speaker 00: and yet they can't establish refugee status. [00:19:08] Speaker 00: And I certainly think that this is a case where an individual has undergone significant harm in their home country but still fails to meet the requirement. [00:19:16] Speaker 00: It's well established in the law that victims of a general ordinary types of crime don't implicate a nexus to a statutorily protected ground. [00:19:26] Speaker 00: And we see these cases very commonly in cases out of Central America where we know that the populace in those countries has... But for the second attack, the attacker was very specific. [00:19:35] Speaker 03: that he was attacking the petitioner because she had reported him to the police for the previous assault. [00:19:42] Speaker 03: So why isn't there a nexus here? [00:19:45] Speaker 03: It seems very... [00:19:49] Speaker 03: clear that it was on account of her reporting of the prior assault. [00:19:52] Speaker 00: Well, so to the extent that some of her groups had that specific characteristic in those groups, they were part of larger groups that were proposed that had other problematic aspects. [00:20:05] Speaker 00: But even if you were to just carve out that specific characteristic about reporting to police, [00:20:10] Speaker 00: Those are groups that have generally been rejected by the courts of appeals as not being sufficiently either particular or distinct. [00:20:17] Speaker 00: Now there's a distinction that's been made for people who testify in open court. [00:20:21] Speaker 03: But what about Nexus? [00:20:23] Speaker 03: I understand, but I thought you were raising a nexus point. [00:20:30] Speaker 03: And so I was just asking about the nexus. [00:20:32] Speaker 00: Well, I'm raising both. [00:20:32] Speaker 00: So here's what happens in these cases. [00:20:34] Speaker 00: Because the law is well established, that you can't establish a claim based on being a victim of somebody who's focused on general criminal intent, what ends up happening in these cases is the petitioners pick whatever characteristics or personal traits might be pertinent to them, and they try to craft artificial social groups. [00:20:53] Speaker 00: The petitioners have taken their former counsel to task. [00:20:57] Speaker 06: Let's talk about this petitioner. [00:20:59] Speaker 00: That's exactly what happened. [00:21:01] Speaker 06: I don't want to hear about what petitioners do, really. [00:21:04] Speaker 06: I want to focus on the one, the PSG that is being advanced today, that was advanced before the BIA. [00:21:17] Speaker 06: Particular victims of sexual crimes who further report their assailants to the authorities. [00:21:22] Speaker 06: Okay, this particular social group. [00:21:25] Speaker 06: First of all, nexus. [00:21:27] Speaker 06: What is your argument as to whether or not there's a nexus to that group? [00:21:33] Speaker 00: My answer would be that it is impossible for that group to have been the Nexus. [00:21:36] Speaker 00: Because the Supreme Court has told us that what Nexus is, is a motive requirement. [00:21:42] Speaker 00: The persecutor must be motivated by your membership in the... I'm sorry. [00:21:47] Speaker 00: Sorry. [00:21:48] Speaker 00: Give me a big sound. [00:21:51] Speaker 00: I'm sorry. [00:21:52] Speaker 00: Thank you. [00:21:53] Speaker 00: So the Supreme Court has told us that when we're talking about nexus, what we're talking about is a motive requirement. [00:21:58] Speaker 00: The persecutor has to know more than that that you're a member of the group. [00:22:02] Speaker 00: They have to care that you're a member of the group and they have to be seeking to harm you because of your membership in that group. [00:22:07] Speaker 00: The group you just described, the petitioner was not a member of until after she'd been harmed. [00:22:15] Speaker 00: In other words, she wasn't a member of the group at the time the perpetrator harmed her. [00:22:19] Speaker 00: She wasn't a victim of a rape until after the rape occurred. [00:22:23] Speaker 00: So it's not possible for that group to have been the motivation for the perpetrator of the harm. [00:22:27] Speaker 03: No, for the second assault though. [00:22:28] Speaker 00: Exactly. [00:22:28] Speaker 00: Okay, well then, as far as reporting, so then the question is, okay, so now the group is changing. [00:22:34] Speaker 00: Now you're, I guess, a member of a second group of people who report crimes. [00:22:37] Speaker 00: Putting aside that those claims have been rejected, similar claims about reporting crimes as being insufficiently particular and not socially distinct. [00:22:44] Speaker 06: Let's just focus on Nexus and then we'll get to cognizability. [00:22:48] Speaker 00: Okay. [00:22:49] Speaker 00: Well, what does it mean to report something to the police? [00:22:51] Speaker 00: Does it mean an anonymous tip? [00:22:53] Speaker 00: I mean, particularity requires that you have adequate benchmarks for the group. [00:22:57] Speaker 06: Oh, no, we're talking about nexus. [00:22:59] Speaker 00: Nexus. [00:22:59] Speaker 00: Motive. [00:23:00] Speaker 00: Okay. [00:23:01] Speaker 00: Well, okay. [00:23:01] Speaker 00: Is it possible that the perpetrator of the harm could have been motivated by this personal desire to not be reported to the police? [00:23:08] Speaker 00: Yes. [00:23:09] Speaker 00: But that's not a protected ground. [00:23:11] Speaker 04: Okay. [00:23:13] Speaker 04: Doesn't he threaten her the second time, at least in part because she is a member of the particular social group that was a victim of sexual crime and reported it to the authorities? [00:23:25] Speaker 04: He tells her that. [00:23:27] Speaker 00: He certainly didn't want her to report, but the notion that he's harming her because she's a victim of a crime and is reporting, I mean, I guess you could theoretically say that he's doing it for that, but that's a personal reason. [00:23:39] Speaker 00: He wants to avoid escape from the police. [00:23:41] Speaker 00: That's general criminal intent, right? [00:23:44] Speaker 00: And so general criminal intent has been found repeatedly not to implicate a nexus to a protected ground. [00:23:50] Speaker 04: If I can follow up with one more question, if both of us are correct, that is, it's a combination of his desire to intimidate her against reporting him, number one, and number two, a personal vendetta. [00:24:11] Speaker 04: How do we deal with this mixed motive? [00:24:14] Speaker 00: Respectfully, I don't think it's a mixed motive. [00:24:17] Speaker 00: Essentially, the claim here appears to be, okay, I've made you a member of this particular social group and now I'm harming you for some sort of retaliation for being in this social group. [00:24:27] Speaker 00: If that's the question that's being asked, it seems to me the question is then, why did this person make the person a member of this group to begin with? [00:24:34] Speaker 00: It's the answer to that question that is the actual motive for the perpetrator of the harm. [00:24:38] Speaker 00: So the petitioner is essentially saying, well, this person harmed me, and now he's made me a member of a group that he's trying to go against. [00:24:46] Speaker 00: Do you see what I'm saying? [00:24:47] Speaker 00: If a victim of sexual assault could establish a group membership based on the fact that they've been assaulted, then what would stop somebody saying, well, I'm in a group of people who've been persecuted? [00:24:59] Speaker 00: It would completely annihilate the entire social group requirement. [00:25:03] Speaker 04: But that's not what she said. [00:25:04] Speaker 04: She said, I'm a member of a particular social group that was assaulted and reported it to the police, and I'm now being targeted. [00:25:15] Speaker 00: because of that membership. [00:25:17] Speaker 00: Right. [00:25:17] Speaker 00: And what I'm saying is this. [00:25:18] Speaker 00: Let's say you take out the problematic part of the group and do her that benefit. [00:25:22] Speaker 00: Take out the part that defines it circularly by the fact that she's been harmed and leave only what's left, which is the reporting to the police. [00:25:30] Speaker 00: Yes, that is why he might be seeking to harm her, to dissuade her from reporting to police. [00:25:37] Speaker 00: The government doesn't dispute that. [00:25:38] Speaker 00: So if you want to call that a nexus, fine. [00:25:40] Speaker 00: But a nexus doesn't matter if it's not to a protective ground. [00:25:43] Speaker 00: And reporting to police is not a social group. [00:25:46] Speaker 06: Let's move on from Nexus and go to cognizability. [00:25:50] Speaker 00: Okay. [00:25:50] Speaker 06: So is there a case on point about reporting to the police? [00:25:55] Speaker 00: Well, we've cited to their the published case, of course, I think you're probably referencing is Henrique's rebus, which is the testifying and open court that the court didn't actually say that that was a social group, but it remanded the board to assess that. [00:26:09] Speaker 00: But there have been cases that have been rejected with respect to just simply reporting because reporting to the police in the Ninth Circuit, possibly. [00:26:18] Speaker 00: I would have to. [00:26:23] Speaker 00: I can file a 20-J. [00:26:24] Speaker 00: There are cases. [00:26:24] Speaker 00: There are certainly cases that have rejected groups of cooperating police. [00:26:27] Speaker 06: I'm wondering if we or the BIA has actually ruled on someone who's been assaulted because they actually went to the police and reported because [00:26:44] Speaker 06: You know, at some point that does distinguish them from the society at large that they actually contacted the police. [00:26:52] Speaker 00: Not necessarily, Your Honor. [00:26:54] Speaker 00: So there may be circumstances like when somebody testifies in open court and they may be readily identifiable as a snitch. [00:27:01] Speaker 00: Maybe that might be a situation where they're recognizable in society. [00:27:07] Speaker 00: But we don't really have any evidence in this case one way or the other because the petitioner didn't properly raise these claims. [00:27:12] Speaker 00: She raised a bunch of claims to the IJ. [00:27:14] Speaker 00: One of these had this reporting requirement. [00:27:16] Speaker 00: But then she raised completely different groups to the board. [00:27:19] Speaker 00: And the board was well within its purview to apply its precedent. [00:27:22] Speaker 06: The board had the further report group in front of it. [00:27:27] Speaker 06: It rolled on it. [00:27:28] Speaker 00: Fair enough, Your Honor, but that group is young women who are particular victims of sexual crimes in front of it. [00:27:33] Speaker 00: Well, that obviously is a group that fails on its face. [00:27:37] Speaker 00: The court has repeatedly rejected the term young as not being sufficiently particular. [00:27:40] Speaker 06: This group has the further reporting. [00:27:42] Speaker 06: And I'm just wondering, do we have any cases on this reporting aspect? [00:27:48] Speaker 00: Right, but that wasn't raised to the immigration judge. [00:27:52] Speaker 00: So the board didn't address that group because it hadn't properly been raised below. [00:27:56] Speaker 00: That's the problem. [00:27:58] Speaker 00: So the board didn't opine on whether society views this as a distinct group or not. [00:28:03] Speaker 00: You can tell right away it's a problematic group. [00:28:05] Speaker 00: It's not going to be sufficiently particular because Young doesn't create clear benchmarks for who's in the group. [00:28:10] Speaker 00: It's circularly defined by the fact of harm. [00:28:13] Speaker 00: And so even if you get to the issue of reporting, which the board didn't do here because it hadn't been properly raised, [00:28:18] Speaker 06: Well, they do rule in the altar. [00:28:20] Speaker 06: Even if the respondent had established a cognizable particular social group, we agree that there was no nexus. [00:28:28] Speaker 00: Right, but that's a different analysis. [00:28:30] Speaker 00: Cognizability and analysis are two separate things. [00:28:33] Speaker 00: But it didn't find that the group was cognizable. [00:28:36] Speaker 00: And look, this is important because one of the things that petitioners are trying to do is something we see often. [00:28:42] Speaker 00: And the reason the board issued its precedent in WIC is because there was an enormous administrative problem before the agency where people were altering the terms of their group on appeal. [00:28:52] Speaker 00: And this creates an enormous problem for the board because every time somebody does that, it's not a substantially similar group. [00:28:58] Speaker 00: Usually what it requires is for the board to remand. [00:29:01] Speaker 00: Because when you're looking at something like social distinction, for example, [00:29:05] Speaker 00: Social distinction is a factual inquiry. [00:29:07] Speaker 03: The overall inquiry... But how socially distinct is it to testify in court versus go to reporting to the police because not many people will be in the courtroom, right? [00:29:18] Speaker 03: So it's more word of mouth that so-and-so testified against X gang and that [00:29:24] Speaker 03: equally could apply to someone reporting to the police, right? [00:29:27] Speaker 03: You may be seen going to the police station, someone may see you at the police station making the report. [00:29:32] Speaker 03: It's really more the discussion outside in the community that someone has taken this action. [00:29:37] Speaker 03: So I guess I'm unclear on that perceived by society why it's really materially different making the report to the police versus testifying. [00:29:46] Speaker 00: Well, in the cases that I've seen where courts have rejected, it's more a basis of particularity, because cooperation with police means a whole different sort of things. [00:29:53] Speaker 00: Or does it mean reporting to the police? [00:29:55] Speaker 00: Does it mean making an anonymous tip? [00:29:57] Speaker 00: Does it mean being involved undercover in some way? [00:30:01] Speaker 03: But in this case, this person went to the police station, was taken to the hospital, had a forensic examination, was told to come back to the police station two or three times to do photo lineup identifications is clearly [00:30:16] Speaker 03: not an anonymous phone tip. [00:30:18] Speaker 00: Fair enough, Your Honor. [00:30:18] Speaker 03: And all of those, I think, could be equated to testifying in court. [00:30:22] Speaker 03: In fact, you know, maybe more because more people probably saw all of those interactions, right, of going to the forensic examination, going to the hospital. [00:30:34] Speaker 00: Well, Your Honor, I'll follow 28J with the cases where the court has rejected similar types of groups because it didn't implicate the testifying in open court. [00:30:42] Speaker 00: There are a number of them. [00:30:43] Speaker 00: But the board didn't reach any of this. [00:30:45] Speaker 00: We're talking about merits that the board didn't reach now. [00:30:48] Speaker 00: And the board didn't reach these merits because the petitioner didn't raise this group to the immigration judge first. [00:30:53] Speaker 00: You can raise a thousand iterations of a social group to the immigration judge if you want, and the immigration judge will have to address every one. [00:30:59] Speaker 00: But if you raise it on appeal first, the board is entitled to say you haven't properly raised this. [00:31:03] Speaker 00: The board is an adjudicating body, an appellate body. [00:31:07] Speaker 00: It doesn't make findings a fact for the first time on appeal. [00:31:10] Speaker 00: And the questions you're asking about social distinction require looking at facts. [00:31:13] Speaker 00: It requires looking at country conditions evidence. [00:31:15] Speaker 00: What does the country conditions evidence say about how society perceives this group? [00:31:18] Speaker 00: Are they even a member of the group? [00:31:20] Speaker 00: There's that factual question. [00:31:21] Speaker 00: These are all factual questions that the board can't consider in the first instance. [00:31:26] Speaker 00: Under its governing regulations, the board is prohibited from making findings of fact. [00:31:30] Speaker 00: So if the board allows people to alter their group on appeal, it's going to have to remand in countless cases for more fact-finding because the group has been altered. [00:31:38] Speaker 00: And that's why this court in Hontroff upheld the board's decision in WIC. [00:31:42] Speaker 00: The board wasn't breaking any new ground here. [00:31:44] Speaker 00: It's a commonly recognized principle that appellate bodies don't make findings a fact. [00:31:48] Speaker 00: That's supposed to be presented to the fact finder. [00:31:51] Speaker 00: And that didn't happen here. [00:31:52] Speaker 00: And so the board was well within its rights to say, we're not going to consider these new rules. [00:31:56] Speaker 03: So do you think that going to the police station filing report [00:32:01] Speaker 03: going to a forensic medical examiner, going to the hospital for treatment, coming back to the police station two or three times to do photo lineups. [00:32:09] Speaker 03: You're saying that is materially different and not socially distinct, but testifying in court is. [00:32:16] Speaker 00: I would say that that would depend on the evidence presented in the case. [00:32:19] Speaker 00: If there is evidence to show that society perceives that as a separate faction of society in some way, people who do that, then maybe that could meet the social distinction requirement. [00:32:28] Speaker 03: And those are the facts here, right? [00:32:30] Speaker 00: Well, we don't really know. [00:32:31] Speaker 00: That's the evidence of what happened here. [00:32:34] Speaker 00: But the evidence of what society perceives those people to be is different. [00:32:37] Speaker 00: That's the question, and that's the inquiry for social distinction. [00:32:40] Speaker 00: And that's what there's no evidence of. [00:32:42] Speaker 00: But again, we're talking about something the board did not address because it was not properly raised. [00:32:46] Speaker 00: So we're jumping the gun. [00:32:47] Speaker 00: If you were to disagree that the board was somehow, and say the board was in error for not upholding its precedent and saying we're not going to consider groups that were waived, [00:32:55] Speaker 00: Then it would have to go back and the board would have to address that and the merits in the first instance. [00:32:59] Speaker 00: But we're way ahead of that because the board didn't address it to begin with. [00:33:03] Speaker 00: So talking about the merits of it isn't really proper. [00:33:06] Speaker 00: We can only resolve the case on the basis that the board decided the case. [00:33:10] Speaker 00: And the board said, we're not reviewing this because it wasn't raised at the IJ. [00:33:13] Speaker 00: And on that point, the board was correct. [00:33:15] Speaker 00: And again, there's this notion that, you know, substantially similar cases, it's important to understand why most of these cases aren't substantially similar, because they require different types of inquiries into the questions that answer whether they're a social group. [00:33:30] Speaker 00: So you could have a group that say one of her groups was based on being Salvadoran women and one of them was based on being young Salvadoran women. [00:33:36] Speaker 00: They might seem substantially similar at first glance, but they're actually very different. [00:33:40] Speaker 00: Young, inserting the word young into the group, [00:33:43] Speaker 00: It's changing both the size of the group and that may affect how society perceives it. [00:33:48] Speaker 00: It also affects the particularity analysis because all of a sudden Young makes the benchmarks about who falls in the group unclear. [00:33:55] Speaker 00: What does Young mean? [00:33:56] Speaker 00: Does it mean a small child? [00:33:58] Speaker 00: Does it mean somebody who's 30? [00:33:59] Speaker 00: So you don't even know who's in the group when you add those types of terms. [00:34:03] Speaker 00: And so what groups that might seem at first glance to be substantially similar are not substantially similar with respect to the analysis that's applied in determining whether a group is cognizable. [00:34:12] Speaker 00: And that is why this court upheld the board's precedent decision in WIC saying we are going to allow the board to reject to consider these types of new altered groups on appeal because it's entitled to put a stop to that type of litigation where people are just constantly changing their claims [00:34:29] Speaker 00: as the case goes up. [00:34:33] Speaker 00: Oh, I see I'm over time. [00:34:35] Speaker 00: Did Your Honors have any questions that you wanted me to address? [00:34:38] Speaker 06: Does anyone have any questions? [00:34:39] Speaker 06: No, thank you. [00:34:40] Speaker 06: No, thank you. [00:34:41] Speaker 00: Thank you very much for your time, Your Honors. [00:34:42] Speaker 06: Thank you. [00:34:44] Speaker 06: All right, counsel, you have rebuttal time. [00:34:59] Speaker 01: Good morning, Your Honors. [00:35:00] Speaker 01: My name is Christina Moraskis. [00:35:02] Speaker 01: I'm a certified law student on behalf of the petitioner here today. [00:35:05] Speaker 01: I just have a couple points I would like to make on rebuttal. [00:35:08] Speaker 01: Regarding some of the questions that Judge Koh posed to my co-counsel, I would like to reiterate that the one-year bar for the asylum claim is not a jurisdictional issue here. [00:35:17] Speaker 01: It's barred under Chenery, the Chenery case. [00:35:21] Speaker 01: further that one-year bar issue only deals with asylum. [00:35:24] Speaker 01: It does not deal with the withholding of removal claim, as that is a mandatory form of relief if found that persecution is more likely than not. [00:35:35] Speaker 01: Further, the tension between Hontarov, the exception there, and the substantially similar PSGs [00:35:43] Speaker 01: The PSG that we would like to raise on appeal or that Ms. [00:35:46] Speaker 01: Svala-Molina raised before the BIA on appeal is procedurally barred due to the incompetence of her prior counsel. [00:35:53] Speaker 01: This led to PSGs being raised for the first time on appeal and his incompetence in this situation complicated this issue. [00:36:03] Speaker 03: So the second part of your Hontarov exception is that the immigration judge and incompetent counsel [00:36:09] Speaker 03: failed to fully develop the record. [00:36:12] Speaker 03: And in this case, the IJ actually had four hearings and actually told Ms. [00:36:17] Speaker 03: Savala-Molina how to get a lawyer, referred her to legal aid, gave her time to get a lawyer. [00:36:23] Speaker 03: And when the lawyer came, the IJ said, you know, you need to submit all this additional evidence to corroborate your case, told them to try to get police reports, hospital records, gave them another continuance, had a third hearing where [00:36:37] Speaker 03: The IJ told the lawyer that the PSG was likely not cognizable, told him go brief it, then had the fourth hearing. [00:36:46] Speaker 03: So tell me how that's a failure to adequately develop the record. [00:36:50] Speaker 01: Yes, Your Honor. [00:36:52] Speaker 01: Much of the time spent during those immigration hearings was between Ms. [00:36:55] Speaker 01: Volumelino's previous counsel, Friedman, and the immigration judge, Judge O'Connor, verbally sparring. [00:37:01] Speaker 01: They didn't necessarily create a colorable conversation for a PSG to be [00:37:07] Speaker 01: adequately developed. [00:37:08] Speaker 01: There was so much time back and forth disagreeing that, you know, in a productive environment for a productive conversation was not created between the two for a cognizable PSG to come into fruition. [00:37:23] Speaker 01: Her counsel Friedman would continually move on to PSGs and we also argue that Judge O'Connor did not under, he did not [00:37:33] Speaker 01: Under this this court's precedent did not scrupulously delve into any of the psg's Therefore we say that he did not adequately develop the record and miss of all Malina's plight was only hindered further by her incompetent counsel Friedman Further I would just like to make one last point that We do not we assume cognizability here of the psg's because the bia did in their decision on page four that [00:38:03] Speaker 01: Therefore, the cognizability issue of Ms. [00:38:05] Speaker 01: Zabala-Molina's CSDs is not here before the court today. [00:38:08] Speaker 01: Thank you for your time, Your Honors. [00:38:10] Speaker 06: Thank you very much, Council. [00:38:13] Speaker 06: Again, thank the University of San Diego Law School for representing Ms. [00:38:19] Speaker 06: Zabala-Molina Pro Bono and doing a great job of it. [00:38:22] Speaker 06: Thank you. [00:38:23] Speaker 06: And thank you to Council for an excellent argument. [00:38:26] Speaker 06: Zavala Molina versus Bondi will be submitted and this court will take a brief recess and then get reset for the following. [00:39:00] Speaker 05: This court stands in recess.