[00:00:00] Speaker ?:
Good to see you.

[00:01:07] Speaker 01:
Good morning honorable judges if it may please the court my name is Martin Hirshland, and I have the privilege of representing Angelita Garcia who's here with us today in the courtroom I'm joined at council table by my colleague James Azadian And I would like to reserve five minutes for rebuttal all right watch your clock, please.

[00:01:34] Speaker 01:
Yes, ma'am

[00:01:35] Speaker 01:
Your honors, life has not been fair to Ms.

[00:01:38] Speaker 01:
Garcia.

[00:01:38] Speaker 01:
She has suffered lifelong PTSD and depression brought on as a result of an attempted rape when she was a little girl and years of abuse at the hands of her ex-husband.

[00:01:49] Speaker 01:
Ms.

[00:01:49] Speaker 01:
Garcia had lived in the United States for over 30 years without so much as a parking ticket until her landlord burst into her room, sprayed bleach in her eyes, and initiated the altercation which led to Ms.

[00:02:02] Speaker 01:
Garcia's placement in removal proceedings.

[00:02:05] Speaker 01:
And due to this court's recent en banc decision in USV Gomez holding that a conviction under California Penal Code 245A1 is not a crime of violence, the underlying removal case against Ms.

[00:02:18] Speaker 01:
Garcia is now entirely unsupported.

[00:02:21] Speaker 01:
Since the government's basis for removal,

[00:02:23] Speaker 01:
was predicated on finding that her conviction constituted a crime of violence.

[00:02:28] Speaker 00:
Counsel, can you speak to the court's holding in Sessions versus DiMaia because there the court held that the categorical approach as we did it in Gomez really doesn't have anything to do with the categorical approach as it's used in immigration cases.

[00:02:45] Speaker 00:
I mean, it says pretty squarely in that case that the analysis differs in immigration cases.

[00:02:51] Speaker 00:
I guess tell me why Gomez is relevant here despite that holding.

[00:02:56] Speaker 01:
Because, Your Honor, I would reference the case of Suate Orellana versus Garland, which was originally cited in connection with the exhaustion argument and actually supports our case on exhaustion.

[00:03:10] Speaker 01:
But going back to Your Honor's question,

[00:03:12] Speaker 01:
that case also held at page 630 that because significant legal developments had occurred since the BIA issued its original decision, remand is appropriate to allow the BIA to consider the impact of the new law.

[00:03:28] Speaker 01:
So we would ask the court

[00:03:30] Speaker 01:
In addition to the basis for remand that we identified in our briefing, we have a new basis for remand as a result of this USV Gomez case that was recently decided en banc by this court.

[00:03:44] Speaker 01:
And during the mayor's hearing before the agency, the one place where Ms.

[00:03:50] Speaker 01:
Garcia should have been guaranteed fairness, the IJ cut off Ms.

[00:03:54] Speaker 01:
Garcia's testimony and prevented Ms.

[00:03:56] Speaker 01:
Garcia's expert witness, Dr. Christmas, from testifying at all.

[00:04:00] Speaker 01:
With respect to due process, Your Honors, due process principles require that the IJ be a neutral judge and that Ms.

[00:04:08] Speaker 01:
Garcia be afforded a full and fair hearing and an opportunity to present evidence on her behalf.

[00:04:15] Speaker 01:
The due process principles prohibit an IJ from declining to hear relevant testimony

[00:04:21] Speaker 01:
because of a prejudgment about the probative value of that testimony.

[00:04:25] Speaker 01:
And that is exactly what happened here, Your Honors.

[00:04:27] Speaker 01:
The IJ originally allowed Dr. Christmas to testify by telephone.

[00:04:32] Speaker 01:
There was a motion to allow Dr. Christmas to testify that was granted.

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The IJ, in his opening remarks at the merits hearing, even referenced that him allowing Dr. Christmas to testify was a safeguard

[00:04:44] Speaker 01:
But during the hearing itself, the IJ abruptly reversed course and prevented Dr. Christmas from testifying at all.

[00:04:53] Speaker 01:
In addition to the IJ's prevention of Dr. Christmas' testimony, the IJ then gave diminished weight to the report of Dr. Christmas based on a predetermination about the probative value of that report.

[00:05:11] Speaker 01:
reference that the reason he was giving diminished weight to Dr. Christmas's report was because of the fact that Dr. Christmas was not treating Ms.

[00:05:20] Speaker 01:
Garcia at the time of the incident and also the fact that the substantial length of time had passed between the incident and Dr. Christmas's evaluation.

[00:05:31] Speaker 01:
But these concerns were not known to Ms.

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Garcia, were not made known to Ms.

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Garcia during the hearing itself.

[00:05:38] Speaker 01:
These concerns were not addressed by Dr. Christmas in her written report because she could not have anticipated that the IJ would have had those concerns.

[00:05:47] Speaker 01:
And Dr. Christmas was not allowed to address those concerns.

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She was not allowed to face cross-examination or examination by the IJ where the IJ could have addressed those points.

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and was not allowed to.

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have redirect examination where Miss Garcia could have potentially again address those points with Dr. Christmas.

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And I would point this court to the cases of Zolotukin and Lopez Umanzor, which we cited in our briefs.

[00:06:17] Speaker 01:
In Zolotukin, the IJ refused to allow telephonic testimony of the petitioner's expert and said that there was a written submission by the expert and that was fine.

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But what this court held in Zolotukin was that

[00:06:31] Speaker 01:
the expert's testimony would have been probative as to whether the IJ's interpretation of the written materials was correct and the denial of that expert testimony violated the petitioner's due process rights in that case.

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And also in Lopez-Umanzor, this court held that the IJ's prejudgment of testimony without allowing the

[00:06:59] Speaker 01:
oral testimony to address those concerns was a due process violation as well.

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Another due process violation in this case was the IJ's preventing Ms.

[00:07:13] Speaker 01:
Garcia herself from testifying in the portion of the hearing relating to the particularly serious crime determination about anything other than the conviction itself.

[00:07:26] Speaker 01:
And this is directly contrary to the obligation as set forth in Gomez v. Sessions, which held that

[00:07:37] Speaker 01:
the IJ is required to receive evidence and consider mental health treatment or mental health condition of the individual, regardless of whether that was brought forth in the underlying criminal conviction or not.

[00:07:54] Speaker 01:
And the reason why the IJ is required to consider that evidence is important, and that's because

[00:08:03] Speaker 01:
As the Gomez Sanchez case confirms, the thorough analysis of mental health issues is necessary due to the relevance of motivation and intent to the particularly serious crime determination.

[00:08:14] Speaker 01:
So the failure of the IJ to allow Dr. Christmas to testify, the failure of the IJ to allow Ms.

[00:08:22] Speaker 01:
Garcia to testify about anything other than the conviction itself was an error of law requiring remand under the

[00:08:32] Speaker 01:
PSC, particularly serious crime, rules as well as a due process violation because the testimony was not allowed to come in in the first instance.

[00:08:51] Speaker 01:
Turning briefly to the convention against torture argument that was brought forth, we identified several issues of law with the convention against torture analysis.

[00:09:02] Speaker 01:
The agency applied the wrong legal standard for acquiescence by focusing on color of law and ignoring willful blindness.

[00:09:10] Speaker 01:
The agency failed to aggregate the risks of torture.

[00:09:14] Speaker 01:
And the agency failed to consider all evidence relevant to the possibility of future torture.

[00:09:19] Speaker 01:
And let me provide the court with some concrete examples of that.

[00:09:22] Speaker 01:
Last point.

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The BIA said that

[00:09:28] Speaker 01:
It was that it was not error for the IJ to base his prediction that Miss Garcia would not face future torture in Mexico because she had family support available in Mexico to assist her.

[00:09:43] Speaker 01:
for obtaining necessary treatment for her mental health conditions.

[00:09:47] Speaker 01:
But Ms.

[00:09:48] Speaker 01:
Garcia herself testified before the IJ that she did not believe that her family would be able to support her in receiving mental health conditions.

[00:09:56] Speaker 01:
And this merits hearing occurred eight years ago, Your Honors.

[00:10:00] Speaker 01:
And since then, Ms.

[00:10:01] Speaker 01:
Garcia's parents in Mexico have unfortunately passed away.

[00:10:04] Speaker 01:
And her two siblings that were there are no longer there.

[00:10:07] Speaker 01:
So as it stands now, Ms.

[00:10:09] Speaker 01:
Garcia has no family in Mexico.

[00:10:12] Speaker 01:
Another factor that BIA cited was

[00:10:17] Speaker 01:
Ms.

[00:10:17] Speaker 01:
Garcia had only recently received mental health treatment, had never been institutionalized in the past, but we know that's also not true because Ms.

[00:10:26] Speaker 01:
Garcia herself testified that she had seen a psychiatrist around 2007.

[00:10:34] Speaker 01:
Both Dr. Christmas and Ms.

[00:10:36] Speaker 01:
Garcia testified, Dr. Christmas in her written report because Dr. Christmas was not allowed to testify at the hearing itself.

[00:10:44] Speaker 01:
that Miss Garcia was taking medications for anti-anxiety, and also Miss Garcia testified that she had sought group therapy for battered women as a result of her being admitted to a shelter for women who had experienced domestic violence.

[00:11:04] Speaker 01:
This record, dispositive and material record evidence was ignored by the agency, which would have directly borne on the issue of future torture.

[00:11:13] Speaker 01:
And, Your Honors, I see that I'm approaching five minutes.

[00:11:17] Speaker 01:
So unless the panel has any further questions, I would like to reserve the balance of my time for rebuttal.

[00:11:22] Speaker 03:
Why don't you reserve your time?

[00:11:24] Speaker 01:
Thank you.

[00:11:35] Speaker 03:
Yes.

[00:11:38] Speaker 02:
Good morning, Your Honors.

[00:11:39] Speaker 02:
May it please the Court, my name is Justin Markell, and I represent the Attorney General in this case.

[00:11:45] Speaker 02:
In light of the late hour of the filing, the 28-J letter, the Governor would respectfully request subliminal briefing on that issue to the extent the Court wishes to address it.

[00:11:54] Speaker 02:
Regarding the issues that were briefed in this case, we don't believe the agency abused its discretion in finding that Ms.

[00:12:01] Speaker 02:
Garcia's assault with a deadly weapon conviction constitute a particularly serious crime.

[00:12:07] Speaker 02:
The agency properly considered the nature of the conviction, the type of sentence imposed, and the circumstances underlining the conviction, including Ms.

[00:12:17] Speaker 02:
Garcia's mental health at the time of the crime.

[00:12:20] Speaker 02:
when ruling that Ms.

[00:12:21] Speaker 02:
Garcia's crime was a particularly serious crime.

[00:12:25] Speaker 02:
Further, contrary to Ms.

[00:12:27] Speaker 02:
Garcia's assertions, the immigration judge did not limit her ability to testify about her mental health at the time of her crime, her history of mental health treatment, or the medications that she was taking in the month around the time of her criminal act.

[00:12:44] Speaker 02:
Instead, the immigration judge simply asked Ms.

[00:12:47] Speaker 02:
Garcia's attorney not to question her about her experiences with her ex-husband, which she was having a very emotionally difficult time to talk about every time she was asked about it.

[00:12:59] Speaker 02:
And instead, the immigration judge allowed Patricia's counsel to continue to question her, and she did end up questioning her at length about

[00:13:07] Speaker 02:
her mental health, how she felt at the time of the crime.

[00:13:13] Speaker 02:
She talked about the medication she was taking at the time of the crime.

[00:13:17] Speaker 02:
She also talked about how long she had seen counseling, meaning she had testified that she started counseling in 2007, but she stopped going to counseling for the two years prior to the time of the conviction.

[00:13:34] Speaker 02:
And so at the time of the conviction, she was not seeing a psychiatrist or a psychologist.

[00:13:40] Speaker 02:
She was apparently still receiving medication from her primary care doctor for anxiety and sleeping.

[00:13:49] Speaker 02:
So the government firmly believes there was no limitation on her ability to fully present her case regarding her mental health at the time of the crime.

[00:13:59] Speaker 02:
Moreover, substantial evidence supports the agency's determination that Ms.

[00:14:03] Speaker 02:
Garcia failed to establish a more likely not chance of being tortured by or with the acquiescence of the Mexican government.

[00:14:11] Speaker 02:
Regarding her claim of being institutionalized and tortured, the agency reasonably found there was no clear probability of her being institutionalized because she has never been institutionalized before.

[00:14:23] Speaker 02:
At the time of the hearing, when the immigration judge adjudicated this case, she did have family in Mexico, and the court can't consider the fact that she no longer has family because the question before the court is whether or not the agency abused this discretion at the time or whether or not there was substantial evidence at the time the agency adjudicated the issue in this case.

[00:14:45] Speaker 03:
Right.

[00:14:46] Speaker 03:
Would her relief be for a motion to reopen?

[00:14:51] Speaker 02:
Yes, arguably to the extent that she believes those facts are determinative regarding her chances of being tortured in the future.

[00:14:59] Speaker 02:
Yes, the appropriate venue to file a motion to reopen is the immigration judge.

[00:15:03] Speaker 03:
Sorry?

[00:15:04] Speaker 03:
To send her back to Mexico without any support given that the IJ and the agency seem to have accepted that she does have mental health problems.

[00:15:17] Speaker 03:
It seems to me that could be a basis for reopening.

[00:15:21] Speaker 02:
It would be a question for the immigration judge to determine in light of the new evidence that petition would submit to the immigration judge.

[00:15:29] Speaker 02:
But at the time of this hearing, there's really very little information.

[00:15:32] Speaker 03:
I agree with you.

[00:15:33] Speaker 03:
The circumstances have changed.

[00:15:35] Speaker 02:
Yes, Your Honor.

[00:15:36] Speaker 02:
I understand.

[00:15:37] Speaker 02:
On that point, though, too, not only was the evidence weak at the time of her trial, but she never contested that determination in meeting the likelihood of being institutionalized.

[00:15:49] Speaker 02:
She didn't contest that to the board, and she didn't contest it before this court in any of her briefs.

[00:15:53] Speaker 02:
She now contested that oral argument, but her briefs didn't contest it.

[00:15:59] Speaker 03:
On her behalf, it's working pro bono for her.

[00:16:03] Speaker 03:
So we...

[00:16:05] Speaker 03:
now are having a higher quality of argument.

[00:16:07] Speaker 02:
I'm sorry, can you repeat the question, Your Honor?

[00:16:14] Speaker 03:
Oh, I'm just – it's not really a question.

[00:16:16] Speaker 03:
It's just a comment.

[00:16:17] Speaker 03:
She's now represented by a higher quality attorney.

[00:16:21] Speaker 02:
Well, she had an attorney the whole time throughout the removal proceedings.

[00:16:25] Speaker 03:
Realized that.

[00:16:27] Speaker 02:
Oh.

[00:16:27] Speaker 02:
Okay.

[00:16:30] Speaker 02:
I understand, Your Honor.

[00:16:33] Speaker 02:
Regarding her fear of torture from the criminal who attacked her as a child over 40 years ago, the agency also reasonably concluded that even assuming this individual would seek to harm Ms.

[00:16:45] Speaker 02:
Garcia in the future, the evidence didn't show that the government would acquiesce.

[00:16:51] Speaker 02:
Because when this individual harmed people in the past, he was criminally prosecuted and jailed.

[00:16:57] Speaker 02:
And once again, the immigration judge, once again, petitioner didn't challenge this finding before.

[00:17:02] Speaker 02:
either the board or the immigration judge, I mean, I'm sorry, before the board or this court in their briefs.

[00:17:12] Speaker 02:
If the court doesn't have any further questions, we're happy to rest on the briefs in this case, Your Honor.

[00:17:19] Speaker 03:
No.

[00:17:20] Speaker 03:
Okay, so thank you very much, counsel.

[00:17:23] Speaker 02:
Thank you, Your Honors.

[00:17:24] Speaker 02:
I appreciate it.

[00:17:34] Speaker 01:
to address a few points on rebuttal, Your Honors.

[00:17:38] Speaker 01:
The IJ, when he said to Ms.

[00:17:41] Speaker 01:
Garcia that she didn't need to testify any further regarding her

[00:17:46] Speaker 01:
fear of torture at the hands of her ex-husband, observed that she was becoming emotional recounting these past traumas, and said that he would give her declaration and evidence in the record full weight.

[00:17:59] Speaker 01:
But the IJ, nor the BIA, engaged in an analysis of the likelihood of potential torture from her ex-husband, despite the fact

[00:18:10] Speaker 01:
My friend on the other side argued that that has been waived, despite the fact that in her asylum application, which was part of the record, she expressed fear that her ex-husband's family would hurt her.

[00:18:20] Speaker 01:
That's at page 429.

[00:18:21] Speaker 01:
In her declaration to the IJ for the marriage hearing itself,

[00:18:28] Speaker 01:
spoke of that she was afraid of encountering her ex-husband and his family, and that's at page 864.

[00:18:34] Speaker 01:
During a hearing on December 6, 2016, before the agency, she said that she discussed in great length her fear of her ex-husband and his family, and that's at pages 175 to 176 and 213 to 214 of the record.

[00:18:52] Speaker 01:
Ms.

[00:18:52] Speaker 01:
Garcia's brief to the Board of Immigration Appeals, she also discussed the fear of her ex-husband and his family, and that's at page 40.

[00:18:59] Speaker 01:
So the fear of torture from her ex-husband and his family is everywhere in the record, except in the pages of the IJ's decision and the BIA's decision.

[00:19:09] Speaker 01:
With respect to Dr. Christmas, another point I wanted to make on that is after the IJ,

[00:19:16] Speaker 01:
expressed his skepticism about the probative value of Dr. Christmas's testimony at the October 2nd merits hearing.

[00:19:23] Speaker 01:
The IJ then reconvened for another hearing on October 5th without the party's presence to issue his decision.

[00:19:31] Speaker 01:
Had the IJ

[00:19:32] Speaker 01:
you know, had concerns about Dr. Christmas and her testimony and the probative value of that testimony, he could have easily had the parties come back on that subsequent hearing date and address those concerns.

[00:19:43] Speaker 01:
He did not and issued the decision essentially in absentia of Dr. Christmas's testimony.

[00:19:49] Speaker 01:
with respect to the fact that Miss Garcia had never been institutionalized in the United States.

[00:19:56] Speaker 01:
That's not the standard.

[00:19:58] Speaker 01:
What's required is that the agency consider all evidence relevant to the possibility of future torture.

[00:20:04] Speaker 01:
And what the record bears out in this case, Your Honors, is that when Miss Garcia was

[00:20:09] Speaker 01:
Here in the United States, living freely, she had her daughters, she had her grandchildren who are now 6 and 11 who need her.

[00:20:17] Speaker 01:
She needs them.

[00:20:19] Speaker 01:
She, you know, was not experiencing a deterioration of her mental health, but when she was

[00:20:24] Speaker 01:
ripped away from her family and placed in detention, her mental health deteriorated rapidly.

[00:20:30] Speaker 01:
She was engaging in acts of self-harm.

[00:20:34] Speaker 01:
She wasn't getting the medication or the treatment that she needed.

[00:20:40] Speaker 01:
Not unreasonable.

[00:20:41] Speaker 01:
In fact, it is highly probative to look at that and say, well, if she was ripped away from her family again and sent back to Mexico, where she would not have any support system that her mental health would deteriorate.

[00:20:54] Speaker 01:
Dr. Christmas in her report referenced the fact that she

[00:20:58] Speaker 01:
would come to the attention of authorities.

[00:21:00] Speaker 01:
She's also diabetic.

[00:21:02] Speaker 01:
That's in the report as well.

[00:21:04] Speaker 01:
She would not be able to get the insulin that she would need, might fall into a coma, diabetic coma.

[00:21:09] Speaker 01:
So we have a substantial body of dispositive record evidence that is extremely relevant to the Convention Against Torture claim, especially with regards to the possibility of future torture in Mexico that was ignored by the agency here.

[00:21:25] Speaker 01:
And one more point on the

[00:21:27] Speaker 01:
The waiver argument and the non-exhaustion argument, what Suate Oriana instructs is that a non-citizen need not raise a, quote, precise argument before the board in order to exhaust it.

[00:21:40] Speaker 01:
All that's required for a claim to be exhausted is that the board must have an opportunity to pass on the issue.

[00:21:46] Speaker 01:
And with that standard, because of the record evidence that put the board and the agency on notice of these challenges, and that's discussed further in our briefing, Your Honors, there was no waiver.

[00:21:59] Speaker 01:
There was no non-exhaustion here.

[00:22:01] Speaker 01:
And we respectfully request that this court remand back to the agency.

[00:22:06] Speaker 01:
And if this court has no further questions, I would rest my case there.

[00:22:10] Speaker 03:
Okay, thank you, counsel, and thank you for taking on this matter pro bono.

[00:22:15] Speaker 03:
The court appreciates it.

[00:22:17] Speaker 01:
It's been my pleasure, Your Honor.

[00:22:19] Speaker 03:
And Garcia V. Bondi will be submitted and will take up