[00:00:01] Speaker 04: We'll hear argument in our final case on calendar, case 25-284, Romero, Romero versus Bondy. [00:00:08] Speaker 04: I see we have one counsel appearing by video. [00:00:11] Speaker 04: Mr. Zanfardino, can you hear us all right? [00:00:13] Speaker 04: I can hear everyone, actually. [00:00:15] Speaker 04: Can everyone hear me? [00:00:17] Speaker 04: Thank you. [00:00:18] Speaker 04: And we'll ask you to mute again and just to stay on video. [00:00:21] Speaker 04: And we will hear first from Ms. [00:00:23] Speaker 04: Byer. [00:00:23] Speaker 04: Good morning. [00:00:24] Speaker 00: Good morning. [00:00:26] Speaker 00: Good morning, your honors. [00:00:27] Speaker 00: May it please the court. [00:00:28] Speaker 00: Jenna Byer from the Public Defender's Office on behalf of the petitioner, Nectali Romero Romero. [00:00:33] Speaker 00: I want to acknowledge Jessica Fuentes, Mr. Romero's life partner, Dolores Garcia, his mother, and his daughter, TR, who are all watching from Los Angeles this morning. [00:00:45] Speaker 00: I would like to reserve five minutes of my time for rebuttal. [00:00:50] Speaker 00: Your honors, at the heart of this appeal is whether our evidence meets the threshold screening standard to warrant reopening of Mr. Romero's torture claim. [00:01:00] Speaker 00: It clearly does. [00:01:03] Speaker 00: Since Mr. Romero's last evidentiary hearing in 2020, the Salvadoran government has implemented a state of exception, suspending constitutional rights and imprisoning tens of thousands of individuals suspected of gang affiliation. [00:01:18] Speaker 02: Council, I want to turn to, if you don't mind, I want to turn to your aggregation argument. [00:01:26] Speaker 02: And the argument being essentially that the IJ, although they address the risk of torture to Romero Romero regarding gangs and government, it did so in its analysis separate from the other analysis of aggregate [00:01:47] Speaker 02: risk based upon anti-vigil groups, etc. [00:01:52] Speaker 02: In other words, at the end of the order, it does discuss, the IJ does go on to say that even if we considered this in the aggregate, it's not enough. [00:02:05] Speaker 02: Is what the IJ said there sufficient as a reasoned opinion such that it can hold or not? [00:02:13] Speaker 02: And if not, I need you to explain to us why not. [00:02:16] Speaker 00: Certainly, Your Honor. [00:02:17] Speaker 00: Well, the original immigration judge's decision was in 2020 and based on the record in 2020. [00:02:24] Speaker 00: And what we have now is a situation where individuals who have tattoos, who are former gang members like Mr. Romero, who have criminal histories, who are deportees, they are targeted for torture not only by the Salvadoran government, [00:02:42] Speaker 00: but also by gang members within the prisons. [00:02:45] Speaker 00: And so the immigration judge's original decision, you know, it's, yes, I would say that it is wrong as a matter of law on the aggregation, but it's sort of washed over by these subsequent board decisions which fail to acknowledge the entirety of the record that Mr. Romero is exactly in the type of category of people [00:03:10] Speaker 00: who are subjected to pervasive conditions of torture. [00:03:15] Speaker 00: And the board does not consider the evidence that gang members within the prisons would target Mr. Romero for torture and so there's a separate error there in the aggregation of risk in the board's decision on reopening. [00:03:32] Speaker 04: What exactly in the decision on the motion to reopen do you contend was error because this is now [00:03:38] Speaker 04: been going on a while and was sent back and we have a decision that talks, walks through the expert opinions and reaches a conclusion essentially that it's speculative as to whether your client would face torture in the prisons. [00:03:56] Speaker 04: And so where do you want us to find the error here on this ruling? [00:04:02] Speaker 00: Yes, Judge Bress. [00:04:03] Speaker 00: So to start with, the board concedes that our evidence under the state of exception is new, that it demonstrates a significant change in conditions, and they say it directly relates to Mr. Romero's fear of torture. [00:04:18] Speaker 00: And so the narrow issue that we're looking at here, the only dispute is prima facie eligibility for relief. [00:04:26] Speaker 00: This court has held repeatedly [00:04:28] Speaker 00: that prima facie is a threshold screening standard, one need not conclusively establish eligibility for relief, and the evidence must be taken as true for purposes of prima facie review. [00:04:40] Speaker 00: The board failed to apply the prima facie analysis to this evidence for three reasons. [00:04:47] Speaker 00: First, the board's finding that torture is rare is entirely untethered from the record and the facts. [00:04:56] Speaker 00: Christosol, among other leading human rights organizations, have extensively documented the practice of collective torture upon arrival at the prisons. [00:05:07] Speaker 00: Individuals are forced to kneel on gravel until their knees bleed. [00:05:12] Speaker 00: Once they enter, beatings are daily fare. [00:05:16] Speaker 00: There's indiscriminate use of pepper spray. [00:05:18] Speaker 00: People are being forced to eat food off the floor with their mouths. [00:05:24] Speaker 01: Let me ask you. [00:05:26] Speaker 01: This may seem very callous, and perhaps it's because the law is callous. [00:05:31] Speaker 01: But the standard is more likely than not. [00:05:34] Speaker 01: It's 50%, 51%. [00:05:36] Speaker 01: So that reading these different horrible statements, and as you have just presented them, they are these things happen. [00:05:48] Speaker 01: They don't say they happen 50% of the time. [00:05:52] Speaker 01: And if the proof were to be something happens 40% of the time to people like Mr. Romero, that would fail the standard, even if it seems very callous. [00:06:07] Speaker 01: Am I right on the law? [00:06:09] Speaker 00: Judge Boggs, you're right. [00:06:10] Speaker 00: As a matter of someone applying for cat relief in immigration court, yes, they have to meet that likelihood standard of 50%. [00:06:20] Speaker 00: That is not the case in a motion to reopen. [00:06:23] Speaker 00: The standard for a motion to reopen is a reasonable possibility that if they were granted an evidentiary hearing, they could make out cat relief. [00:06:33] Speaker 00: And here the evidence is overwhelming that torture is widespread. [00:06:38] Speaker 00: It is pervasive. [00:06:41] Speaker 00: It is a policy and practice of the Salvadoran government. [00:06:45] Speaker 00: And on a motion to reopen, the statements supporting the motion must be taken as true. [00:06:51] Speaker 00: And the board clearly failed to apply that legal standard that this court has held in Judge Mendoza's decision in Cower, in Salim, in Bassin. [00:07:02] Speaker 00: All of these decisions say, [00:07:05] Speaker 00: The board is not conducting a credibility determination. [00:07:08] Speaker 00: It is not getting into the minutia. [00:07:11] Speaker 00: What we're looking at here is, as a whole, is there a reasonable possibility that this person could make out a claim for torture relief? [00:07:20] Speaker 00: That standard is clearly met in this case. [00:07:23] Speaker 00: And if Your Honor wants to talk about the quantitative evidence in the record, I'm happy to discuss that as well. [00:07:32] Speaker 00: The Department of State reports discusses how the number of prisoners more than doubled within the first few months of the state of exception. [00:07:42] Speaker 00: El Salvador now has the highest incarceration rate in the world. [00:07:49] Speaker 00: nearly double that of the United States with prisons that are 247% capacity. [00:07:57] Speaker 00: So there is mass overcrowding. [00:08:00] Speaker 00: There are hundreds of documented cases of torture. [00:08:04] Speaker 00: The number of deaths, even by the agency's own admission, went from 59 deaths in custody to [00:08:14] Speaker 00: 253 deaths in custody so a near tripling of the of the deaths that are in custody Is that an annual number or a total number? [00:08:24] Speaker 01: What's the time frame of those numbers? [00:08:27] Speaker 00: Absolutely your honor so that was At AR for [00:08:34] Speaker 00: From August of 2022 until July of 2023, and I'm sorry I misspoke on the second figure, the original number was 59 deaths in custody. [00:08:45] Speaker 00: The second number was 173 deaths in custody. [00:08:48] Speaker 00: So that's a near tripling. [00:08:50] Speaker 01: So it's an annual figure. [00:08:52] Speaker 01: It sounds like it's one year. [00:08:53] Speaker 00: Okay. [00:08:54] Speaker 00: Right. [00:08:54] Speaker 00: Absolutely. [00:08:55] Speaker 00: But what the board does not acknowledge and is willfully blind in its analysis is the repeated language from Christosol, from Human Rights Watch, from the Department of State itself, that torture is an institutionalized practice dictated from the highest levels of government. [00:09:16] Speaker 00: There is a recording of a high level government official, Carlos Marroquin, [00:09:21] Speaker 00: who tells gang members that he's speaking to, we are torturing people inside of the prisons. [00:09:28] Speaker 00: We are treating them as dogs. [00:09:31] Speaker 00: And so again, on a motion to reopen where we are not being held to the ultimate burden for cat, that is enough to warrant reopening of this case. [00:09:43] Speaker 00: I would point your honors to the second legal error in this case, which is that the board failed to give reasoned consideration to the expert statements about Mr. Romero's [00:09:53] Speaker 00: unique risk profile. [00:09:56] Speaker 00: Mr. Romero is not an average individual who would be swept up in the state of exception. [00:10:03] Speaker 00: There are two experts, Dr. Borman and Dr. Moody, both of whom provide individualized analysis in this case. [00:10:12] Speaker 00: Dr. Borman writes that Mr. Romero is a poster child for the type of person prioritized under the state of exception, and he's at high risk of torture because of his personal risk factors [00:10:24] Speaker 00: including his past gang membership, tattoos, criminal history, status as an Americanized deportee, and family network. [00:10:33] Speaker 00: And the first BIA decision, the board has already had two opportunities to give reasoned consideration to this evidence. [00:10:40] Speaker 00: In the first decision, they do not discuss these expert reports at all. [00:10:46] Speaker 01: Because Borman had an expert report prior at the first hearing, right, 2020. [00:10:54] Speaker 01: one can examine his two reports and see how similar they are. [00:10:58] Speaker 00: They're quite different, Your Honor, because the second report was after the state of exception, which is a permanent... I was not saying they were similar, but one can examine them for similarity or differences. [00:11:09] Speaker 00: Certainly your honor and in the fourth and the board's first decision They do not discuss or analyze much less except as true the experts statements leading to Respondent Attorney General's unopposed motion to remand from this court so that they could give Analysis and assessment to this expert evidence, but then on remand the board again is [00:11:36] Speaker 00: rejected the expert statements as quote-unquote cumulative of evidence that they had already found lacking. [00:11:45] Speaker 00: But if the expert statements were the same as country conditions, there would have been no need for expert statements. [00:11:53] Speaker 00: As this court held in Castillo versus Barr, expert opinions are in and of themselves separate evidence. [00:12:01] Speaker 00: And second of all, if the expert statements were cumulative of evidence they had already rejected, there would have been no need for the attorney general's remand in this case. [00:12:13] Speaker 00: Again, under this court's clear precedent in Bassin and Cower, statements supporting a motion to reopen must be taken as true. [00:12:21] Speaker 00: And here, the expert statements, coupled with the entirely consistent country reports, compel reopening. [00:12:28] Speaker 00: I see that I have three minutes remaining. [00:12:30] Speaker 00: I will reserve my time for rebuttal. [00:12:32] Speaker 04: OK. [00:12:32] Speaker 04: Thank you, Ms. [00:12:33] Speaker 04: Beier. [00:12:35] Speaker 04: We'll hear from the attorney general. [00:12:40] Speaker 03: Good morning. [00:12:41] Speaker 03: May I please call Richard Zampadino on behalf of the attorney general? [00:12:45] Speaker 03: The board did not abuse its discretion denying Petitioner's motion. [00:12:50] Speaker 03: The board did not act arbitrarily. [00:12:52] Speaker 03: It did not act capriciously when it determined that Petitioner had not demonstrated a reasonable likelihood of meeting the 51% threshold if this case were set back to square one. [00:13:04] Speaker 03: Dating back to Petitioner's first merits hearing before the immigration judge, Petitioner highlighted El Salvador Decree 717. [00:13:13] Speaker 03: That was enacted three years prior to the immigration judge's first decision in this case. [00:13:19] Speaker 03: It starts at page 2829 of the record. [00:13:22] Speaker 02: Counsel, if you don't mind, can you answer me this question? [00:13:28] Speaker 02: Why is it a reasoned decision by the immigration judge if they really, it doesn't appear like they really considered the aggregation argument, but just simply made a statement at the end of the order? [00:13:43] Speaker 02: that even in the aggregation, this would not be enough. [00:13:45] Speaker 02: Why is that? [00:13:47] Speaker 02: Why should we look at that as a reasoned decision just as a matter of law? [00:13:52] Speaker 02: Why is that sufficient? [00:13:56] Speaker 03: The immigration judge recognized the basis of the claim. [00:13:58] Speaker 03: The immigration judge gave an extemporaneous oral decision, which she attempted to marshal a great deal of evidence that was submitted to her to try and gather what was there. [00:14:08] Speaker 03: And also, I would point out in the second decision from the immigration judge, which supplemented the first, reiterated that she had evaluated the evidence and even cited to the various documentation submitted by Petitioner. [00:14:19] Speaker 03: She made clear that she understood in the aggregate that the burden of proof had just not been met. [00:14:26] Speaker 03: Again, the focus, I would point out to your honor, is there was a bit of a spectrum that went on here in terms of the claim, which may have been tactical, we're not sure, but early in the stages of the claim, Petitioner highlighted the discretionary waiver. [00:14:40] Speaker 03: And of course, [00:14:42] Speaker 03: included plenty of documentation and made arguments about the use and abuse of Decree 717, mentioned that government abuses were very well documented, but the immigration judge and the parties, as any review of the transcript will see, focused on the waiver a little bit more. [00:14:58] Speaker 03: So the immigration judge then, as essentially a catch-all, had reviewed the evidence, re-emphasized that in footnote two of her decision on motion for reconsideration. [00:15:09] Speaker 03: That's page 1941. [00:15:12] Speaker 03: in footnote two, emphasized that she had considered, once again, the arguments made contesting her denial of cat protection. [00:15:22] Speaker 03: The immigration judge continued to note that the evidence was, frankly, to use her word, nuanced, that there was some room there and she just did not find that the evidence in the aggregate or combined met the 51% burden. [00:15:40] Speaker 03: The petitioner's claim [00:15:42] Speaker 03: throughout from his own counsel was that quote, government abuses are very well documented. [00:15:50] Speaker 03: That's a page 2249 to 50. [00:15:52] Speaker 02: I mean, I take your point. [00:15:56] Speaker 02: I read the decisions and I think it's clear that the judge really thought carefully about the, well, it appears that they really delved into it and explained their decision as to the government abuse and coordination. [00:16:11] Speaker 02: I mean, I get that. [00:16:12] Speaker 02: But the problem I guess I'm having is the other, which is the aggregate that seems to be sort of an offhanded sort of comment at the end of the order saying, you know, oh yeah, in the aggregate, it's also not enough. [00:16:23] Speaker 02: And as a court of appeals, we have to evaluate if this is a reason consideration. [00:16:29] Speaker 02: And based on that, that's the trouble I'm having, I guess. [00:16:35] Speaker 03: So I think part of the thing to bear in mind, Your Honor, is, of course, this was an extemporaneous oral decision that has to occur at the end of a long hearing. [00:16:43] Speaker 03: Even if it is done in English, the immigration judge is trying to convey her view of the evidence. [00:16:49] Speaker 03: And holistically, what is recognized is that the immigration judge was just not able to find enough there there as she looked at the case to say, well, you've you've alleged a decree 717. [00:17:01] Speaker 03: The El Salvadoran government is targeting not just [00:17:05] Speaker 03: criminals, but suspected gang members. [00:17:08] Speaker 03: The El Salvador government is attempting to... El Salvador is a very violent place. [00:17:14] Speaker 03: The government is engaging in both the use and abuse, according to this report about 717. [00:17:24] Speaker 03: As a whole, I cannot see that your claim, says the immigration judge, meets the requisite burden. [00:17:32] Speaker 03: To the point of [00:17:34] Speaker 03: the understanding what the immigration judge was doing, we would also point out, again, at the second footnote of the second decision, and this case would be the second IJ decision in 1941, the immigration judge, again, realizes that Petitioner has once again said, I want another hearing, or at least you need to reconsider your denial. [00:17:57] Speaker 03: And the immigration judge points to various pieces of evidence, [00:18:01] Speaker 03: which were substantial, submitted at least the first go, to say, I don't see the claim here. [00:18:07] Speaker 03: And that includes, as the immigration judge mentioned, aggregate. [00:18:10] Speaker 03: Some of that is, of course, the immigration judge speaking [00:18:15] Speaker 03: and trying to make clear her view. [00:18:18] Speaker 02: Can you address the second, the other argument of counsel that goes really to Judge Boggs question about the level of proof that's required, indicating that it is a prima facie evidence that is required on motion to reopen. [00:18:37] Speaker 02: Could you address that point? [00:18:39] Speaker 03: Sure, Your Honor. [00:18:41] Speaker 03: So when the board's looking at this, [00:18:45] Speaker 03: I'm not trying to be flippant. [00:18:47] Speaker 03: I promise you I'm not. [00:18:48] Speaker 03: But the Supreme Court matters. [00:18:49] Speaker 03: And so the Supreme Court tells us that motions are disfavored. [00:18:54] Speaker 03: You look at them through a prism because you cannot have applicants having essentially just a low threshold that they can get whatever they want if they just alleged sufficient arguments, but that the reasonable likelihood, you have to bear in mind that it's to prove 51%. [00:19:12] Speaker 03: I would actually [00:19:14] Speaker 03: note this court's decision on Fonseca Fonseca, recall that the claim that was made out in Fonseca Fonseca was actually not asylum. [00:19:24] Speaker 03: It was not even CAD. [00:19:25] Speaker 03: It was for a form of relief called cancellation of removal. [00:19:29] Speaker 03: And the hook there for the applicant was to say, I'm going to show exceptional, extremely unusual hardship. [00:19:39] Speaker 03: For instance, asylum is 10%. [00:19:41] Speaker 03: Cat is 51%. [00:19:41] Speaker 03: Exceptional, extremely unusual hardship is far more amorphous. [00:19:46] Speaker 03: What does it mean? [00:19:46] Speaker 03: You know it when you see it. [00:19:47] Speaker 03: The board has issued, it used to be big three, now it's four decisions to sort of guide fact finders to help understand what does it mean to have exceptional, extremely unusual hardship. [00:19:58] Speaker 03: In this case, we have a far more exacting standard. [00:20:00] Speaker 03: So when you're showing that reasonable likelihood, in Fonseca, Fonseca, the court was saying, all right, well, [00:20:05] Speaker 03: He has to show exceptional, extremely unusual hardship. [00:20:08] Speaker 03: That's sort of like drawing a cloud. [00:20:11] Speaker 03: It could be all sorts of, it comes in many forms. [00:20:14] Speaker 03: Versus, you have to show reasonable likelihood that you were hit 51%. [00:20:21] Speaker 04: Ms. [00:20:22] Speaker 04: Byer would say, we did that. [00:20:23] Speaker 04: We brought forward expert declarations that, if credited, would show that. [00:20:29] Speaker 04: And that's why we need to have another round here. [00:20:32] Speaker 04: So how do you respond? [00:20:34] Speaker 03: Your honor, to that, I would point to the standard of review, which is abusive discretion, that the board heard, considered, understood the base of the claim. [00:20:44] Speaker 03: In fact, the agencies understood it since the first hearing, that petitioner fears action by the El Salvadoran government taken officially against him with the power of the government against him, constant torture. [00:20:59] Speaker 03: And the board took that into account. [00:21:02] Speaker 03: So under abuse discretion, as this court pointed out, and I'm sorry, forgive me for the pronunciation, Najmabadi, that the board did not merely react. [00:21:15] Speaker 03: The board could have said, well, you're someone who raped a 12-year-old girl. [00:21:19] Speaker 03: We're just not going to do it. [00:21:21] Speaker 03: But no, they didn't. [00:21:22] Speaker 03: They took into account and said, well, let's evaluate these claims. [00:21:25] Speaker 03: And your experts say this. [00:21:26] Speaker 03: And these are the documentation. [00:21:28] Speaker 03: We understand the claim. [00:21:29] Speaker 03: they gave it reasoned thought. [00:21:32] Speaker 03: We can, of course, differ. [00:21:34] Speaker 03: You say the ball was fair. [00:21:35] Speaker 03: I say the ball was foul. [00:21:36] Speaker 03: You say the batter checked his swing. [00:21:37] Speaker 03: I say he went around. [00:21:39] Speaker 03: That's not the standard under abuse and discretion. [00:21:43] Speaker 03: In fact, it's so important to bear in mind the standard of review, as well as what Petitioner was trying to prove, that this does come down to essentially [00:21:57] Speaker 03: Was the ball fair or foul? [00:21:58] Speaker 03: And the board gave reason consideration to that answer. [00:22:03] Speaker 03: For all of the thousands of pages submitted, potentially, petitioner could submit one page. [00:22:10] Speaker 03: If there was a single page that said, for people who have convictions of the nature of petitioner, they are put in a special room. [00:22:21] Speaker 03: President Bukele has assured everyone he's going to do the following things. [00:22:26] Speaker 03: petitioner would have framed that. [00:22:28] Speaker 03: He wouldn't need 2,000 pages. [00:22:29] Speaker 03: He could do it with one. [00:22:31] Speaker 03: But under petitioner's request of this court, petitioners requesting that this court essentially create a near endless cycle of motions, if all it takes is essentially putting out a claim and saying, that's good enough, I don't have to prove 51%. [00:22:48] Speaker 03: We agree you don't have to prove 51% at the motions level. [00:22:51] Speaker 03: But you do have to show reasonable likelihood. [00:22:53] Speaker 03: And the board [00:22:55] Speaker 03: recognizing and viewing the motion through the prism that the Supreme Court has said, that motions are disfavored. [00:23:01] Speaker 03: We have to be careful of an endless cycle of motion after motion. [00:23:04] Speaker 03: It's fair to say time will go on. [00:23:08] Speaker 03: Time is going to march forward. [00:23:10] Speaker 03: New events are always going to happen. [00:23:12] Speaker 03: Will President Bukele be reelected? [00:23:14] Speaker 03: Will a person with a harder line become elected? [00:23:18] Speaker 03: There will always be something else to happen. [00:23:20] Speaker 03: And under petitions reading, that's good enough for another motion. [00:23:24] Speaker 03: But that is at odds with the Supreme Court's caution, because the Supreme Court has said you have to be careful of move-ons who can be so creative and fertile enough to come up with reason after reason to have a new motion submitted. [00:23:36] Speaker 04: All right. [00:23:36] Speaker 04: No, I mean, I'm sympathetic to that. [00:23:37] Speaker 04: I think the petitioner would probably say, well, look, we're talking about a fairly significant development in El Salvador. [00:23:45] Speaker 04: It's not just kind of business as usual. [00:23:46] Speaker 03: It's something new. [00:23:50] Speaker 03: Petitioner might quarrel even more if Decree 717 didn't exist. [00:23:55] Speaker 03: If, for instance, things were idyllic, and then all of a sudden, there was a light switch, and now there's essentially the government action against suspected gang members. [00:24:09] Speaker 03: But this has been a spectrum. [00:24:11] Speaker 03: This has been a sliding scale from the beginning, where a petitioner has feared [00:24:17] Speaker 03: government action or deliver government action against gang members, suspected gang members, criminal deportees. [00:24:23] Speaker 03: In fact, at the record we cited starting around 2828, it points out where even the government was receiving criminal history information sharing, sometimes called CHIS, of deportees with criminal records. [00:24:36] Speaker 04: What is the government's position on the quality of the showing of [00:24:40] Speaker 04: Torture is it is it are we talking anecdotal evidence or are we talking broader policies that are that are more trending towards torture across the board? [00:24:52] Speaker 03: Well, it would have to be something specific to the to the applicant. [00:24:56] Speaker 03: Of course, you can add in there. [00:24:58] Speaker 03: You can add in say, well, I have enough anecdote that. [00:25:01] Speaker 03: Maybe if I can produce enough anecdote, it will be viewed as data, perhaps. [00:25:04] Speaker 03: But in this case, because it's being reviewed for abuse discretion, the board looked and said, we don't see enough there-there specific to your case. [00:25:13] Speaker 03: If there was something, again, specific about Petitioner, Petitioner would frame it. [00:25:18] Speaker 03: He would laminate that page. [00:25:20] Speaker 03: It would be right there. [00:25:22] Speaker 03: But instead, the point is that the agency gave it a fair shake. [00:25:29] Speaker 03: The agency took a look. [00:25:31] Speaker 03: reviewed the evidence, understood what the basis of the claim is. [00:25:36] Speaker 03: It did not merely react. [00:25:37] Speaker 03: It did not have a knee-jerk reaction based on petitioners' prior history. [00:25:42] Speaker 03: It took a look. [00:25:43] Speaker 03: And in this case, we think it's unwarranted what petitioner is doing, which is flat out asking this court not just to remand, but to direct the agency to take favorable discretion, to direct this agency to and order the agency to view his motion with favor, which is a discretionary item. [00:26:01] Speaker 03: The board actually gave this a fair shake and understood the basis of the claim. [00:26:09] Speaker 03: It just didn't work out for petitioner. [00:26:12] Speaker 03: And not having your motion granted does not mean the board abused its discretion. [00:26:18] Speaker 03: The board understood the claim. [00:26:19] Speaker 03: It just saw things a different way. [00:26:22] Speaker 03: And under abuse of discretion review, we might disagree. [00:26:25] Speaker 03: In fact, I would again cite, it's in our brief at page 30, but the Namabaji case, [00:26:31] Speaker 03: There was even a dissenter on that panel that might have viewed things differently. [00:26:35] Speaker 03: But the point is, is that the board thought it didn't just react. [00:26:42] Speaker 03: And I would, in my dwindling time, just quickly point out the facts of Najib Mubadi. [00:26:50] Speaker 03: That was an Iranian woman who had lived in the United States. [00:26:54] Speaker 03: By the time it was over, I think she was approaching 20 years, she sought asylum. [00:26:59] Speaker 03: said, look at the repressive regime of Iraq, of Iran against women. [00:27:04] Speaker 03: I'm sufficiently Westernized. [00:27:06] Speaker 03: She loses asylum, files a motion to reopen and says, 9-11, 2001 has taken place. [00:27:14] Speaker 03: Iran and the United States have a great deal of antipathy towards each other. [00:27:17] Speaker 03: I'm going to be viewed as Western. [00:27:19] Speaker 03: I'm going to be viewed as Westernized. [00:27:20] Speaker 03: I intend, by the way, in my affidavit, I say I'm going back and I'm going to be active on behalf of women and their negative treatment in Iran. [00:27:28] Speaker 03: and the board saw it a different way. [00:27:30] Speaker 03: And that was for asylum. [00:27:32] Speaker 03: That was for a 10% burden. [00:27:33] Speaker 03: That was not for a Catholic. [00:27:35] Speaker 03: We don't all have to agree for it to still be not an abuse of discretion. [00:27:41] Speaker 03: I see my time has just hit the zero. [00:27:45] Speaker 04: Great. [00:27:45] Speaker 04: Thank you very much. [00:27:46] Speaker 04: And we'll hear from petitioner. [00:27:52] Speaker 00: Your Honours, Mr. Romero has no desire for an endless cycle of litigation in his case. [00:27:57] Speaker 00: He's detained. [00:27:58] Speaker 00: He's separated from his family. [00:28:00] Speaker 00: What he is asking for is quite minimal, and that is a new hearing based on evidence that the agency has conceded is a significant change that is, quote, directly related to his fear [00:28:15] Speaker 00: of being tortured by a public actor due to his status as a former gang member. [00:28:22] Speaker 00: So my friend on the other side talks about this is not a significant change, it's a sliding scale. [00:28:28] Speaker 00: The board has already agreed with us that this is a fundamental change in circumstances and what we are asking for is the minimal remedy of a hearing. [00:28:39] Speaker 00: And I would just like to take a moment to touch on remedy here. [00:28:43] Speaker 01: Do you agree that that question that you just put of what he's asking for is an abuse of discretion standard? [00:28:52] Speaker 00: Your honor, the court reviews for abuse of discretion motions to reopen, but the misapplication of a legal standard of the prima facie standard in this case is an abuse of discretion. [00:29:04] Speaker 00: The board did not accept as true the statements supporting a motion to reopen, and it ignored the mountain of evidence [00:29:12] Speaker 00: that torture is a pervasive practice within Salvadoran prisons. [00:29:17] Speaker 00: And so we are asking for this court to remand with specific instructions to grant reopening. [00:29:23] Speaker 00: The court did this in Mohammed versus Gonzalez, a 2005 decision in which the board essentially had two opportunities to render a considered judgment. [00:29:35] Speaker 00: And here, the board has had both ample time and opportunity [00:29:40] Speaker 00: to apply the law correctly. [00:29:42] Speaker 00: It had 17 months to issue its first decision in this case, which attorney general found to be wanting, declined to defend that decision before this court. [00:29:53] Speaker 00: And then it had an additional seven months to produce this second decision. [00:29:58] Speaker 00: And so because the board has already had these two opportunities, [00:30:02] Speaker 00: We're asking for specific instructions to grant reopening. [00:30:06] Speaker 00: I would also point the court to the memorandum disposition in Rivera Trigueros, where the court did the same thing. [00:30:13] Speaker 00: They said that the evidence under the state of exception shows prima facie eligibility for CAT, and they granted with instructions to reopen, and that is what we're asking for in this case. [00:30:27] Speaker 00: Unless your honors have anything further, I'll rest. [00:30:31] Speaker 04: We thank both council for their presentations this morning. [00:30:33] Speaker 04: This matter is submitted. [00:30:35] Speaker 04: That concludes our calendar for the morning and we'll stand in recess until tomorrow.