[00:00:00] Speaker 04: So let's see, we're starting off with Courtney Murphy, is that correct? [00:00:03] Speaker 00: Yes, your honor. [00:00:04] Speaker 04: And then you have it for 12 minutes and then Cesar Serrano for three minutes, is that right? [00:00:11] Speaker 04: Very well. [00:00:12] Speaker 04: What are you going to do in terms of, you're doing the rebuttal, right? [00:00:15] Speaker 04: Yes, your honor. [00:00:15] Speaker 04: Okay, very well. [00:00:16] Speaker 04: All right. [00:00:17] Speaker 04: You all set over there, counsel, for the government? [00:00:21] Speaker 04: Okay, very well. [00:00:22] Speaker 04: All right, Ms. [00:00:23] Speaker 04: Murphy, please proceed. [00:00:24] Speaker 00: Thank you, your honor. [00:00:25] Speaker 00: Good morning, may it please the court. [00:00:26] Speaker 00: I am Courtney Murphy. [00:00:28] Speaker 00: a certified law student representing petitioner Julius Joaquin Ohomole. [00:00:33] Speaker 00: And I see that the clock has been set to reflect my 12 minutes. [00:00:36] Speaker 00: Thank you. [00:00:37] Speaker 00: Your honors, this case turns on the BIA's abuse of discretion in denying Mr. Ohomole's motion to reconsider his cat claim. [00:00:46] Speaker 00: This court has made clear that a denial of reconsideration constitutes abuse of discretion when the BIA fails to correct material legal errors and here, [00:00:57] Speaker 00: The BIA failed to address three such errors in the immigration judge's denial of Mr. Ohamule's cat claim. [00:01:05] Speaker 00: First, the IJ failed to conduct the appropriate aggregate analysis required by Velasquez-Samoya by improperly merging Mr. Ohamule's two distinct theories of torture from multiple sources into one single hypothetical chain of events. [00:01:24] Speaker 00: Second, [00:01:24] Speaker 00: The IJ misapplied the court's precedent for what is required for a showing of particularized threat of torture and in doing so overlooked highly probative evidence pointing to Mr. Ohomole's particular risk as a member of two particular social groups that face widespread and targeted violence in Nigeria. [00:01:46] Speaker 00: And third, the IJ misapplied the court's precedent [00:01:49] Speaker 00: and the CAT regulations for showing government acquiescence, thus overlooking and mischaracterizing critical evidence of the Nigerian government's involvement in an acquiescence willful blindness to torture. [00:02:06] Speaker 04: Council, can we, at least for my purposes, I would appreciate your focusing on the last one. [00:02:11] Speaker 04: Let's just say, argue under that we agree with you about the first two, okay? [00:02:15] Speaker ?: Okay. [00:02:15] Speaker 04: But if the IJ erred there and you don't show on a cat claim that the government either conducts or acquiesced in torture, you lose, right? [00:02:28] Speaker 04: True. [00:02:29] Speaker 04: Okay. [00:02:29] Speaker 04: Please convince us why the petitioner in this case satisfied that burden. [00:02:38] Speaker 00: Absolutely. [00:02:38] Speaker 00: So the legal error that was committed by the IJ was that first, [00:02:44] Speaker 00: the agency overlooked and mischaracterized evidence of state acquiescence, Nigerian authorities not only tolerate but also facilitate violence against LGBTQIA persons and Christians. [00:02:57] Speaker 04: Forgive me. [00:02:58] Speaker 04: You're talking about from country conditions? [00:03:00] Speaker 04: That's what you're talking about? [00:03:01] Speaker 00: Yes. [00:03:01] Speaker 04: As opposed to anything that happened to him? [00:03:04] Speaker 00: As opposed to anything that happened to him, although if you're referring to any past harm that he may have experienced, yes. [00:03:12] Speaker 00: We actually disagree with how that is stated in the record. [00:03:17] Speaker 00: Mr. Ohomole on no less than four occasions during his hearing with the immigration judge said yes when asked if he had suffered harm in Nigeria. [00:03:27] Speaker 00: And there seemed to have been some. [00:03:30] Speaker 04: I understand that. [00:03:32] Speaker 04: What I'm looking for here, if you can help me, is something from him. [00:03:38] Speaker 04: wherein he testified or had other evidence that showed that the Nigerian government directly was involved in his torture or acquiescence, having occurred by private actors. [00:03:50] Speaker 04: What evidence was introduced to that effect? [00:03:53] Speaker 00: In the past or in the future? [00:03:54] Speaker 04: In the past. [00:03:55] Speaker 00: In the past. [00:03:56] Speaker 00: So the evidence that he was trying to relay about the harm he experienced as a nine-year-old boy in a federal government college when witnessing a fellow student who was exhibiting gay behavior [00:04:13] Speaker 00: was beaten mercilessly. [00:04:15] Speaker 04: And again, as a night... The other student was beaten mercilessly. [00:04:18] Speaker 00: The other student was beaten. [00:04:19] Speaker 04: Not him. [00:04:19] Speaker 00: Not him. [00:04:20] Speaker 00: But again, under the definition of torture for Kat, it's any severe pain or suffering, whether physical or mental. [00:04:30] Speaker 04: To the petitioner. [00:04:32] Speaker 04: But in this case, as I understand correctly, what you're talking about, the record shows that he observed that another person [00:04:41] Speaker 04: who exhibited gay behavior was tortured, but that he personally was not. [00:04:46] Speaker 04: Are you suggesting that having seen that satisfies the requirement that the government of Nigeria acquiesced in his torture? [00:04:59] Speaker 00: I would argue that, yes, the witnessing, especially of a nine-year-old child to this sort of behavior, directed at someone who shares characteristics which are fundamental to his own identity, could constitute that. [00:05:16] Speaker 00: I know that in the asylum context, age is taken into account when it comes to persecution. [00:05:21] Speaker 04: Do you have any case law that would substantiate your position? [00:05:25] Speaker 00: Not with respect to cat claims that I'm aware of, Your Honor, but I'd be happy to find supplemental briefing. [00:05:32] Speaker 00: We just wanted the court to be aware that he was trying to explain in his testimony. [00:05:37] Speaker 04: Let's assume for a moment that he had so testified. [00:05:40] Speaker 04: But if I understand your position correctly, you don't have any case law that would substantiate the fact that he observed that another nine-year-old was brutally beaten for gay behavior, but he himself didn't have that occur and that that constituted [00:05:55] Speaker 04: government acquiescence in or causing torture. [00:06:00] Speaker 00: I don't, but I would point out that past torture is not necessary to satisfy the cat burden and we could look towards the probability. [00:06:10] Speaker 04: It's a higher burden. [00:06:11] Speaker 00: It's a higher burden. [00:06:13] Speaker 00: But the record we feel is replete with evidence to meet that higher burden. [00:06:17] Speaker 00: And it simply was not pointed out by the immigration judge in her analysis. [00:06:23] Speaker 00: Again, in the record, I can direct the court to [00:06:29] Speaker 00: the IJ addresses the fact that, excuse me here, on page 176 of her opinion, she seems to dismiss that there's any government acquiescence because torture is prohibited by the Constitution. [00:06:43] Speaker 00: And of course, in Cole, the holder, that is not enough to dispel the notion that torture occurs. [00:06:49] Speaker 00: And then, yet, she seems to [00:06:53] Speaker 00: neglect that in the very next paragraph from where she would have gotten that on page 415 of the record that the committee charged with overseeing laws prohibiting torture is unable to carry out its work effectively due to lack of legal and operational independence. [00:07:09] Speaker 00: two pages later, that impunity exacerbated by corruption and a weak judiciary remain a significant problem in Nigeria. [00:07:18] Speaker 00: And then further, pages 418 through 419, prison guards reportedly extorted inmates, including for sex, which would constitute rape and torture. [00:07:30] Speaker 04: Let me just ask this. [00:07:33] Speaker 04: As you might imagine, [00:07:35] Speaker 04: in a court that gets lots of appeals in immigration cases. [00:07:40] Speaker 04: A lot of folks would like to use country reports, for example, in Mexico. [00:07:46] Speaker 04: We get lots and lots and lots of cases in Mexico that deal with LGBTQ issues, sexism issues, discrimination against people based on their native heritage and the like. [00:08:02] Speaker 04: We don't rule. [00:08:04] Speaker 04: in favor of the government acquiescence or actual torture unless it's focused on that person, generally speaking. [00:08:13] Speaker 04: The fact that in Nigeria there is discrimination against LGBTQ people is tragic. [00:08:21] Speaker 04: But you have to bring it down to the petitioner in this case. [00:08:24] Speaker 04: And what I'm struggling with is where is that done? [00:08:28] Speaker 04: I don't see that in the record. [00:08:29] Speaker 04: What am I missing? [00:08:31] Speaker 00: Well, I would point the court to Zoshua Haimez and Parado Decessions, where they explain that such widespread corruption of public officials is highly probative to the question of acquiescence. [00:08:45] Speaker 00: And I would also argue that, again, I think that really the first legal error that we wanted to discuss today, by virtue of the IJ's failing to conduct the appropriate aggregate analysis, I think what happened there was that [00:09:00] Speaker 00: The government acquiescence claim wasn't properly adjudicated in the first instance. [00:09:05] Speaker 00: And this is why we're requesting remand for the appropriate aggregate analysis to be conducted, taking account of particularized risk and acquiescence. [00:09:16] Speaker 03: And what do you make, though, of the fact the IJ stated, and I quote, assessed all factors regarding the likelihood of future torture to your client and considered them in the aggregate? [00:09:27] Speaker 03: Yes. [00:09:28] Speaker 03: That's what the I.J. [00:09:29] Speaker 00: said, right? [00:09:30] Speaker 00: It is what she said, Your Honor. [00:09:31] Speaker 00: However, if we look to page 176 of the record, this is where she commits the absolute incorrect analysis under Velasquez-Samoyoya. [00:09:42] Speaker 00: So in that case, when an applicant proffers multiple theories of torture, which is our case here, from various sources as well, [00:09:53] Speaker 00: The hypothetical chain of events analysis cited in the rule of JFF is of little practical help. [00:10:01] Speaker 00: And the IJ specifically does this incorrectly. [00:10:05] Speaker 00: She states on page 176, respondent's fear of future torture relies on a chain of suppositions. [00:10:11] Speaker 00: Respondent has not shown how the authorities would even know that he's in Nigeria, that he was bisexual, what his religion is. [00:10:19] Speaker 00: So combining those two. [00:10:21] Speaker 00: that they would seek him out and then torture him. [00:10:24] Speaker 00: Respondent must establish that each step in the hypothetical chain of events leading to his torture is more likely than not to occur. [00:10:32] Speaker 00: That is not the law. [00:10:34] Speaker 00: Under Velázquez-Sinayoya, when multiple theories are offered, each theory from each source needs to be independently assessed. [00:10:43] Speaker 00: And then, once that's done, they need to be aggregated to determine whether or not the applicant has met that burden of... [00:10:53] Speaker 03: wasn't that done here? [00:10:54] Speaker 03: I mean, they were considered individually, and then even in the aggregate, he doesn't meet the task. [00:10:59] Speaker 00: Well, unfortunately, because she merged those two on page 176, and she also does it throughout the rest of the opinion on the bottom of 175 and 176, she's consistently merging the two claims about his LGBTQIA status and his Christian [00:11:18] Speaker 00: Then not considering them in the aggregate? [00:11:22] Speaker 00: Unfortunately, no, because those are two distinct theories. [00:11:25] Speaker 00: And again, under Velasquez-Semayoya, they need to be assessed independently and from the sources that could inflict them. [00:11:34] Speaker 05: So is your claim to... Is it that... [00:11:39] Speaker 05: The IJ didn't use the word chains like plural or is it that the IJ needed to have two paragraphs? [00:11:45] Speaker 05: I'm trying to because in like a lot of these decisions, you know, they could always say more, they could have but I'm actually, I struggled a little bit as to this theory that the IJ, the IJ multiple times says that it considered this in the aggregate. [00:12:03] Speaker 05: I'm trying to figure out what the IJ could have [00:12:07] Speaker 05: Your theory, I guess, is that he would, that I.J. [00:12:09] Speaker 05: is saying, how much would he be persecuted or tortured, I guess tortured here, as a bisexual or gay Christian, like putting them together? [00:12:17] Speaker 00: Yes, exactly. [00:12:18] Speaker 05: But that's a little non-intuitive. [00:12:20] Speaker 05: Like when I think of, like I'm trying to, what is your risk of torture as a gay Christian, but only as a gay Christian? [00:12:28] Speaker 05: Not as a Christian, not as a gay person, right? [00:12:31] Speaker 05: Especially in Nigeria, where your risk of [00:12:34] Speaker 05: torture for each of those categories kind of comes from a different, I'm not aware of the, even the country conditions report saying anything about this is the risk of torture for gay Christians, like that particular group of, because it's a bit of a unicorn I'm assuming in Nigeria. [00:12:51] Speaker 05: So I struggle to think that what actually happened here was that the IJ was really focused on bisexual Christians or gay Christians, that that risk as opposed to [00:13:04] Speaker 05: an independent risk of torture, because he's bisexual, and an independent risk of torture. [00:13:11] Speaker 05: I understand that I.J. [00:13:14] Speaker 05: just said the word chain, but could use the same word. [00:13:18] Speaker 05: Earlier, I think, in your argument, you mentioned that he is gay and that he was Christian, but I didn't take it that you were necessarily merging those two things. [00:13:27] Speaker 00: Well, exactly. [00:13:28] Speaker 00: Thank you, Hunter. [00:13:29] Speaker 00: I see that my time is up. [00:13:31] Speaker 00: May I continue? [00:13:31] Speaker 04: Finish answering his question, and then we'll let you go. [00:13:34] Speaker 00: So I think the problem is that the IJ did merge those two together. [00:13:40] Speaker 00: She merged them in the quote that I read that, you know, they won't find out or how are they going to find out that he was bisexual, what his religion is. [00:13:48] Speaker 00: But again, Velasquez-Semayoya made it very clear that multiple theories need to be assessed independently and then aggregated, added together to see if that 50% threshold has been met. [00:14:01] Speaker 00: And that was not done. [00:14:02] Speaker 05: And so just... So it's not so much that you're resting on the word chain versus change. [00:14:07] Speaker 05: You think there should have been more discussion... Independent. [00:14:10] Speaker 05: ...that said, okay, this is his risk as a bisexual. [00:14:13] Speaker 05: This is a separate paragraph. [00:14:15] Speaker 05: This is his risk as a Christian. [00:14:17] Speaker 05: Yes. [00:14:17] Speaker 05: This is his risk as a person who's both bisexual and a Christian. [00:14:22] Speaker 00: And this is his risk from public mob, from police, from military, from Boko Haram. [00:14:28] Speaker 00: Yes. [00:14:29] Speaker 04: You just wanted more, okay. [00:14:31] Speaker 04: Other questions by my colleague? [00:14:32] Speaker 04: Thank you very much, Council. [00:14:33] Speaker 04: All right, well, let's hear from the government. [00:14:36] Speaker 04: Is that correct? [00:14:54] Speaker 01: Good morning, Your Honors, and may it please the court, Imran Zaidi for the respondent. [00:14:57] Speaker 01: This appeal concerns a motion to reopen and reconsider alleging a few different claims, but the primary challenge here relates to cat protection. [00:15:06] Speaker 01: And that's what I plan to focus on today, subject, of course, to this panel's questions. [00:15:10] Speaker 01: Now, the standard of review here is abuse of discretion, and the board here acted well within its broad discretion in denying reconsideration for cat protection, where there was no legal or factual error in the agency's prior decisions denying such protection. [00:15:27] Speaker 01: Instead, in both those decisions by the immigration judge [00:15:30] Speaker 01: and the board, the agency made this simple and correct conclusion that petitioners simply didn't meet the demanding standard that he faces the likelihood of torture in Nigeria by or with the government's acquiescence. [00:15:44] Speaker 01: Now, let me highlight just a few key aspects of the agency's decisions and, of course, along the way, I'm happy to answer any of this panel's questions. [00:15:51] Speaker 01: I think one of the sort of most important points here in Judge Smith, you were getting to it just now when answering, when asking my friend questions, [00:15:58] Speaker 01: is the particularized threat. [00:16:00] Speaker 01: It's black letter law, this court and others, that to establish eligibility for cat protection, you need to show a particularized threat of torture. [00:16:08] Speaker 01: It's very hard to do that when you don't allege any sort of claims or present any evidence that are specific to the applicant. [00:16:17] Speaker 01: And that was the case here. [00:16:18] Speaker 01: Petitioner did not allege that he himself was ever harmed or threatened in Nigeria before he left the country more than 20 years ago in 2003. [00:16:27] Speaker 01: He does not allege that he himself presented evidence suggesting that he himself has any ongoing threat that anyone's even aware of his presence in Nigeria. [00:16:36] Speaker 01: He instead relies generally on background evidence and country reports relating to the two groups upon which he claims he'll be targeted, one being Christian and the other being the LGBT community as a professed bisexual. [00:16:50] Speaker 01: It's very hard, based on country conditions evidence alone, to meet that demanding standard and to show a particularized threat, both saying that you'll face the likelihood of torture. [00:16:59] Speaker 01: And I think the cases that petitioners themselves rely on underscore this point. [00:17:04] Speaker 01: Now, you had asked, Judge Smith, you'd mentioned that this panel and this court see several cases arising from Mexico in particular. [00:17:14] Speaker 01: and petitioner brings up the case that they rely on in their briefing, Shochiwa Haimes, and there is another case, Amandano Hernandez, those both as examples of where perhaps based on background reports alone you might establish eligibility for cap protection, but those in fact underscore why the board here is right and the government's position, because those cases had substantial [00:17:35] Speaker 01: particularized evidence. [00:17:36] Speaker 01: So in Shochiwa Haimez, the petitioner herself had been raped multiple times as a child on account of her lesbian identity. [00:17:45] Speaker 01: And there was two separate theories. [00:17:46] Speaker 01: And there was particularized evidence based on both. [00:17:50] Speaker 01: One was targeted as a member of the LGBT community. [00:17:52] Speaker 01: She had been raped multiple times as a lesbian. [00:17:54] Speaker 01: Separately, she was targeted because she had reported a Los Zetas gang member to the police. [00:18:00] Speaker 01: And that gang member was then imprisoned. [00:18:02] Speaker 01: And as a result, the Los Cetas gang had targeted her at gunpoint with death threats. [00:18:07] Speaker 01: So you had two separate sources of particularized threats. [00:18:10] Speaker 01: And that's a large part of what the court relied on there in remanding for further analysis with respect to Kat. [00:18:15] Speaker 01: So you had not only particularized evidence, but substantial particularized evidence there. [00:18:21] Speaker 01: The other case was Amandana Hernandez, somewhat similar in the sense that there was two different theories of harm there. [00:18:26] Speaker 01: One was, again, based on lesbian LGBT community background. [00:18:29] Speaker 01: There, again, the petitioner had been raped, beaten, forced to perform oral sex, severely beaten. [00:18:35] Speaker 01: And the court made a finding, a specific finding of past torture there, and said, when you have that finding, it is a principal factor in the CAT analysis, and then turned to country conditions evidence and said that that also supported it. [00:18:48] Speaker 01: So these, again, are cases that we are not submitting to the court. [00:18:50] Speaker 01: These are the cases that petitioner is relied on to say that their evidence here is similar. [00:18:56] Speaker 01: But they don't have any type of particularized evidence. [00:18:59] Speaker 01: They just rely generally on country reports. [00:19:03] Speaker 01: I'll say that I think the balance of petitioner challenges here relate to sort of a weight of the evidence, the types of things I'm talking about, how much the evidence generally suggests that they will face the likelihood of torture. [00:19:15] Speaker 01: So I'll just address two of the sort of specific legal claims that petitioner raised here, one relating to the aggregate risk. [00:19:21] Speaker 01: Judge Gilman, as you pointed out, [00:19:23] Speaker 01: I don't know what you can say beyond having the agency decision maker and in this case both, not just the immigration judge, but both the immigration judge and the board identified both the separate harm, sources of harm as a Christian and as a member of the LGBT community. [00:19:39] Speaker 01: And then both decision makers said we have considered the aggregate risk and found that it does not meet the standard for cat protection. [00:19:48] Speaker 01: So I don't think there's much to the aggregate risk point here. [00:19:51] Speaker 05: Well, we could say, I mean, I think as I understand from my colloquy with her at the very end there, I guess if we're going to say something that they could win on, it would be sort of a tick off the factors type thing if you're here at the earlier argument that you have to go through in this case their risk as a Christian and then you go through their risk LGBTQ [00:20:16] Speaker 05: Then you explicitly have a third paragraph say that instead of kind of putting it all together here And then it's also and then saying you did the aggregate and I guess your view your argument is that we don't need to That that we that there's not that procedural requirement that the IJ necessarily Break it out that way so a couple responses at Judge Van Dyke. [00:20:38] Speaker 01: I think I [00:20:40] Speaker 01: I don't think Petitioner actually wants that here, and let me be clear about why. [00:20:44] Speaker 01: First, they didn't raise this sort of, there's two parts to the aggregate risk argument, as I understand what they're saying. [00:20:49] Speaker 01: One, in their opening brief, they describe just generally that the agency didn't consider the aggregate risk, and that's the point that I just raised with Judge Gilman and said the agency very explicitly did consider that. [00:20:59] Speaker 01: Then in the reply brief, Petitioner raises this point that [00:21:03] Speaker 01: In that sort of chain link analysis that the immigration judge lays out that petitioner or that the agency should have separately considered the two and then maybe had a separate paragraph that you're talking about. [00:21:15] Speaker 01: I think to actually properly aggregate, you consider the separate risks. [00:21:19] Speaker 01: You have to understand the sort of, you're going to quantify them, what they would add up to. [00:21:23] Speaker 01: But then you do consider them together. [00:21:25] Speaker 01: to be very clear, if you were to do the chain link analysis and the sort of black letter law there as a matter of JFF and this court's decisions in Andrade and Velasquez-Samoja, each of those links that you would be identified based on this, you would be targeted, you would be tortured, and that the government equity has in that torture, and that if any one of those links is 50% or less, then you don't meet the standard, you need those to be considered together for that math to work out in your favor. [00:21:52] Speaker 01: If you do two separate chains, [00:21:54] Speaker 01: and in each of those chains say that 50% are less. [00:21:56] Speaker 05: Yeah, so that's why I think what they're actually saying is, it's a funny, it is an odd, because it's not the normal argument we get on that, that you didn't aggregate, because they actually list them together, the IJ lists them together, usually the argument that they didn't aggregate is they didn't mention that they aggregated, the agency didn't, and the agency just had an analysis for different things but never sort of, [00:22:19] Speaker 05: mentioned them together at the end and said they were aggregating. [00:22:21] Speaker 05: That's our normal as I understand, you know, is what I've seen. [00:22:24] Speaker 05: And then the argument is they didn't aggregate and they didn't consider it an aggregate. [00:22:27] Speaker 05: Here, they list them together. [00:22:29] Speaker 05: So the argument has to be, well, you [00:22:32] Speaker 05: You aggregate it you put them together, but you what you did is you you know let's say there was a B and C were the three different things you could be you could be tortured on the basis of you considered why whether your risk of being tortured as an A plus B plus C like you all those things, but you didn't you didn't add. [00:22:51] Speaker 05: your risk of A alone, your risk of B alone, your risk of C alone, plus I suppose your risk of your A plus B, plus your B plus C, plus your A plus B plus C. It didn't add all of that together in order to figure out the aggregate risk. [00:23:05] Speaker 05: And that's their argument, which it isn't a bit of an odd argument because most cases don't, it's like they, it's saying they did, they're acknowledging in a sense that the judge did aggregate, but didn't aggregate [00:23:19] Speaker 05: It only considered when they were put together. [00:23:21] Speaker 05: It didn't take the individual risks and then add them together. [00:23:24] Speaker 05: That seems to be their argument. [00:23:27] Speaker 01: Judge Van Dyck, I'm not sure that's how I understood their argument at least, and I don't know that you would, I don't know that, I do know that you actually shouldn't consider the risk of both at the same time. [00:23:37] Speaker 01: For example, you raise it being a gay Christian. [00:23:41] Speaker 01: The math gets very complicated here because, and this is why I'm saying it really does need to be one chain to be in their interest and to do a proper aggregation because what it would be is would you face, would you be identified as someone who is gay or a Christian? [00:23:57] Speaker 01: Would you be then targeted as someone who's gay or a Christian? [00:24:01] Speaker 01: Would you be tortured as someone who's gay or a Christian? [00:24:04] Speaker 01: And then government acquiescence based on either of those factors. [00:24:08] Speaker 01: To do the chain link analysis, I think properly, and I think in a way that would help them the most, is one chain link. [00:24:15] Speaker 01: And at each of those clauses, you have targeted based on this or that. [00:24:20] Speaker 01: And what I understand their argument, their reply brief to be, [00:24:23] Speaker 01: is that they had put targeted based on Christian, comma, targeted based on being gay as a separate clause and that those should have been together. [00:24:32] Speaker 01: And that's what they said about in the government's response group. [00:24:34] Speaker 01: We said, or, as if we were sort of trying to rehabilitate that analysis. [00:24:39] Speaker 05: And to that I just say... I kind of understood it the other way, that they were saying that they needed, that that wasn't done, that instead they were only considered [00:24:48] Speaker 05: The petitioner here as a gay Christian that that was the one chain and they didn't combine the separate risk for me That's why I was asking earlier. [00:24:57] Speaker 05: It does seem odd that that that a judge would would be looking only at are there were they a gay Christian as opposed what are their risks as a Christian and what are their risks as a [00:25:07] Speaker 05: as a LGBTQ person. [00:25:08] Speaker 01: Well, let's take that argument of judgment, and again, I don't think, that's not how I was understanding it, but I think that's the argument that's most clearly refuted by the record, because that's the argument that if you just, that's the argument that when you look through the immigration judge analysis, it's very clear that the immigration judge focused on, in a separate paragraph, the evidence relating to Christians, and then later on- Yeah, there's just nothing in the record, there's nothing in the, of like, of this myopic focus on somebody's status as a gay Christian as one sort of unit without- [00:25:37] Speaker 05: That was what I was kind of getting at earlier. [00:25:38] Speaker 05: So it, I understood, I suppose that you could read this passage that they're pointing to on page 9 of the idea's opinion. [00:25:45] Speaker 05: Right. [00:25:45] Speaker 05: That way, but it seems to be a bit of an odd reading to, in context, let's say. [00:25:51] Speaker 01: Exactly. [00:25:51] Speaker 01: And I mean, I think it's not only odd in context, I think in just general when you have. [00:25:58] Speaker 05: So how do you read page 9, you know what I'm saying, on 176, which is where they say, [00:26:03] Speaker 05: Respondent has not shown how the authorities would even know that he's in Nigeria, comma, that he was bisexual, comma, what his religion is, comma, and that they would seek him out and torture him. [00:26:11] Speaker 05: So are you reading as kind of having an or between bisexual and religion there, or as an and that puts it together? [00:26:21] Speaker 01: That is exactly how I'm reading it. [00:26:23] Speaker 01: Let me pull it up. [00:26:24] Speaker 01: I think you might be talking about the PDF number potentially, not the record number because I don't have a 176. [00:26:30] Speaker 05: I'm on 176 of the AR 176 but maybe it's just a different page. [00:26:36] Speaker 05: Let me see here. [00:26:38] Speaker 01: Oh, what actually page number of the immigration judge's decision in its own numbering is it? [00:26:43] Speaker 05: This is I think the passage that the council was referring to and was referred to in the brief. [00:26:50] Speaker 01: know that he's in Nigeria, that he's bisexual, his religion. [00:26:52] Speaker 01: So it's exactly that line. [00:26:54] Speaker 01: Would even know that he's in Nigeria, that he was bisexual, comma, what his religion is. [00:26:59] Speaker 01: As I'm understanding Petitioner's argument, it's that those were improperly separated. [00:27:06] Speaker 05: No, I think they're not in their head, or they're shaking their heads. [00:27:09] Speaker 05: So I think they're saying that they were improperly merged, and that he was only looked at as a bisexual Christian, and not as a bisexual person, or as a Christian, and then aggregated. [00:27:19] Speaker 01: I mean, that's what they're saying now. [00:27:20] Speaker 01: That's the opposite of what they're saying in their opening brief. [00:27:22] Speaker 01: So I don't understand this, nor do I understand any of the immigration judge or board's analysis to have only looked at the risk of somebody who is both a gay and a Christian at the same time, both gay and a Christian at the same time. [00:27:33] Speaker 01: And again, I think that's refuted by everything else that the immigration judge and the board said in their actual analysis of the claim. [00:27:39] Speaker 01: which is to look at country conditions evidence for the Christian community separately and then for the LGBT community separately and then to aggregate that risk. [00:27:48] Speaker 05: One of the struggles I just have in these cases and this is not even necessarily limited to the immigration context but you know we have these tests that require you to look at the totality of the circumstances and so because we have these tests typically lower courts or agencies will do their analysis most of the time kind of individual issue by issue and then they'll say [00:28:09] Speaker 05: And I don't think the totality of the circumference is different. [00:28:12] Speaker 05: And sometimes we criticize them as, and it definitely, the opposing party almost always criticizes it, that's not enough. [00:28:18] Speaker 05: But what more can they do? [00:28:19] Speaker 05: Because I'm always trying to think, if I was in their situation, what more can you do to make it clear that you are adding the risk of this plus the risk of that? [00:28:32] Speaker 05: Because it does feel like you're asking them to [00:28:34] Speaker 05: at apples and oranges sometimes, and so how to show that work is a struggle with how do we evaluate whether they've shown their work. [00:28:42] Speaker 05: I mean, they usually say it like they did here, but the criticism is they didn't show their work. [00:28:49] Speaker 01: Your Honor, respectfully, I think they said it here and they showed their work. [00:28:52] Speaker 01: Again, I think what they're really focusing on now is that sort of chain link language and the board in this court has never required the board to do that. [00:29:00] Speaker 05: I mean, the real way to show their work would be to say there's a 13 percent chance of being [00:29:04] Speaker 05: tortured based on being a Christian and there's a 7% chance or 20% chance based on being gay and there's a 4% chance of being a gay Christian so we're going to add all those numbers together but I think a mathematician might tell you that you can't just add them to figure out what the aggregate risk is and that's less than 50% [00:29:26] Speaker 05: I mean, but that would feel very weird and artificial, isn't it? [00:29:29] Speaker 01: And I don't think it's ever been required, and I don't want to get into that, Matt, because it's actually not technically adding it, and we've resisted that before from this panel. [00:29:36] Speaker 01: If it's non-mutually exclusive risks, which it would be here, you actually add them, and then you subtract the risk of being both a gay and a Christian so that you're not double-counting anything. [00:29:46] Speaker 01: I don't ever expect to find that in a board decision or this court's decision, but let me quickly answer your question by just saying what... I don't think it's too hard to set a standard for what the board needs to do there, [00:29:56] Speaker 01: to have analyzed the risks of these two separate things, being Christian, being LGBT, and then truly totaling the risk. [00:30:02] Speaker 01: And what this court has said, because this has addressed this multiple times when you have multiple theories of harm, and it has said if you've analyzed the risks, the separate risks, and then consider them in the aggregate, in Android, this court specifically said the IJ considered it explicitly in the aggregate. [00:30:18] Speaker 01: The board did not there. [00:30:19] Speaker 01: And the court still, that's enough in that case because the idea said it, the board did not, but it is clear that they're considering the separate risks and then totaling them all together. [00:30:28] Speaker 01: Here you have both. [00:30:29] Speaker 03: I see you're over, but let me ask, I have one question on a slightly different topic on the LGBTQ, that Nigeria has laws prohibiting same sex marriage and displays of affection and, you know, association with LGBTQ groups as punishable up to 14 years of imprisonment. [00:30:50] Speaker 03: Right? [00:30:51] Speaker 03: And sometimes these prison conditions, the country conditions report say are life threatening. [00:30:57] Speaker 03: So why isn't that alone evidence that he would be tortured if returned to Nigeria? [00:31:02] Speaker 01: Your Honor, I think a law like that without question shows a country basically institutionalizing discrimination. [00:31:09] Speaker 01: There's no question. [00:31:12] Speaker 01: But then to link that [00:31:13] Speaker 01: to the prison conditions and then to say that those two things together show that this person will face the likelihood of torture is, I think, a jump way too far. [00:31:22] Speaker 01: I think that law, again, clearly discriminates against a population, but just criminalizing gay sex unions I don't think suggests or establishes or compels the conclusion, which is the question for this court, [00:31:34] Speaker 01: that petition would face a likelihood in Nigeria. [00:31:35] Speaker 03: If not just gay sex, you know, marriages, it's displays of affection and association. [00:31:42] Speaker 01: That's right, and support of marriage. [00:31:43] Speaker 01: There's no question, Your Honor, and this, I think, a bit gets back to the question in the call who's having with Judge Smith about when you're relying purely on country conditions evidence. [00:31:51] Speaker 01: There are awful things that countries and governments have participated in, but to show that somebody faces a likelihood of torture by or with the government's acquiescence based just on those country evidence is a very, very difficult thing to do. [00:32:03] Speaker 01: It has to be particularized. [00:32:04] Speaker 01: Yes. [00:32:05] Speaker 04: Other questions from my colleagues? [00:32:06] Speaker 04: Thank you very much. [00:32:07] Speaker 04: Thank you. [00:32:08] Speaker 04: All right. [00:32:09] Speaker 04: Mr. Serrano, please, your rebuttal. [00:32:19] Speaker 02: May it please the court, and good morning, Your Honors. [00:32:21] Speaker 02: My name is Cesar Serrano, and I'm the other certified law student appearing on behalf of Mr. Homolo. [00:32:26] Speaker 02: Your Honors, one thing is perfectly clear. [00:32:29] Speaker 02: The adjudication of Mr. Homolo's CAD claim contains legal error. [00:32:33] Speaker 04: Contains? [00:32:34] Speaker 02: Contains legal error. [00:32:35] Speaker 02: Okay. [00:32:35] Speaker 02: Neither the IJ nor the BIA independently assessed Mr. Ohomole's risk of torture from multiple sources based on his sexual orientation. [00:32:47] Speaker 02: They did not assess Mr. Ohomole's risk of torture based on his religious identity, and they certainly did not consider that risk collectively. [00:32:59] Speaker 04: Okay, let's assume you're 100% right. [00:33:02] Speaker 04: We still get back to the issue of government torture or acquiescence in torture. [00:33:09] Speaker 04: So those other two errors, if they are, are arguably harmless if your client has not proven government involvement with torture. [00:33:21] Speaker 04: Is there any particularized evidence that was presented? [00:33:25] Speaker 04: in this case that showed that the government of Nigeria has either tortured your client in the past or would do so in the future? [00:33:32] Speaker 02: Your Honor, my answer has two points. [00:33:34] Speaker 02: The first being that to clarify what we're looking for, we're not asking to relitigate the issues here. [00:33:39] Speaker 02: We're simply asking that this panel grant the petition and remand his CAC claim to the VA for reconsideration so that they can do the proper analysis. [00:33:49] Speaker 04: I understand that. [00:33:50] Speaker 04: But you get to do that if you can show that at least arguing though, [00:33:55] Speaker 04: If it were presented properly, you would have a chance of winning. [00:33:58] Speaker 04: But if you have not shown the third element, in this case, the governmental acquiescence, we don't send those cases back. [00:34:06] Speaker 04: So that's what I'm looking for. [00:34:07] Speaker 04: What can you give us that would give us some basis for returning that? [00:34:12] Speaker 02: Your Honor, and then, of course, the second point of that is first, there is government acquiescence in terms of the affirmative persecution by law. [00:34:22] Speaker 02: The panel mentioned the 2014 law that was passed by Nigeria. [00:34:25] Speaker 02: And so this actually indicates the government's position when it comes to LGBTQIA plus persons. [00:34:35] Speaker 02: There is evidence in the record that shows that people who are identified as gay have had to endure forms of lynchings or pillory with tires set on fire and burnt alive. [00:34:47] Speaker 04: With respect, you're talking about country conditions and as we have this colloquy, [00:34:52] Speaker 04: What you need to show is a particularized threat to your client. [00:34:57] Speaker 02: Yes, your honor. [00:34:58] Speaker 04: The laws are awful. [00:35:00] Speaker 04: What's happened is awful. [00:35:01] Speaker 04: But you have to show that your client was targeted. [00:35:05] Speaker 04: And I'm not seeing that in the record. [00:35:07] Speaker 04: What am I missing? [00:35:08] Speaker 02: Your honor, yes. [00:35:09] Speaker 02: So the first point brought up by my colleague was the consistent beating of a classmate merely perceived to be gay. [00:35:14] Speaker 02: The second part of that is that he also credibly recounted [00:35:18] Speaker 02: a time when he was at the meat market in a Muslim settlement and a Christian man was stabbed. [00:35:24] Speaker 02: And so these are things that... Not him, but somebody else. [00:35:27] Speaker 02: Yes, Your Honor. [00:35:28] Speaker 02: And that, for someone who is growing up in that environment, who identifies as LGBTQIA+, or as a Christian, is something that is pretty probative of whether or not they're going to face harm in the future as well. [00:35:41] Speaker 02: And as I mentioned, there is this widespread violence against LGBTQIA plus people. [00:35:47] Speaker 04: Your time is up. [00:35:47] Speaker 04: Let me ask my colleague whether either has additional questions. [00:35:51] Speaker 04: I think not. [00:35:51] Speaker 04: We thank the certified law students. [00:35:53] Speaker 04: We really, really appreciate your being here. [00:35:56] Speaker 04: We respect your work and respect what you're doing. [00:35:59] Speaker 04: We hope this hasn't been too grueling an experience for you. [00:36:01] Speaker 04: As you know, as lawyers, we can't tell you which result is going to be, but you've done an excellent job. [00:36:07] Speaker 04: We congratulate you and thank you for coming. [00:36:10] Speaker 04: The case just argued is submitted. [00:36:12] Speaker 04: It's a pleasure. [00:36:13] Speaker 04: Please bring them back again. [00:36:14] Speaker 04: The case just argued is submitted and the court stands adjourned for the day. [00:36:20] Speaker 02: All rise. [00:36:22] Speaker 02: This court for this session stands adjourned.