[00:00:12] Speaker 03:
Good morning, and welcome to the Ninth Circuit. The first case we have on calendar today is Ayala Rougamas versus Blanche, and I believe the attorney for the government is appearing remotely. Ms. Jones, can you hear us? MS.

[00:00:30] Speaker 02:
Yes, I can.

[00:00:30] Speaker 03:
Great. Wonderful. Okay.

[00:00:35] Speaker 03:
And please watch the clock if you want to reserve time for rebuttal. MS.

[00:00:39] Speaker 01:
Yes, Your Honor.

[00:00:45] Speaker 01:
Good morning. May it please the court, Elizabeth P. Uribe for the petitioners. I would like to reserve three minutes for rebuttal, and I will be mindful of my time. There are two issues in this case. The first is whether the petitioner's right to due process was violated when the immigration judge stripped them of an opportunity to have a full and fair merits hearing on their relief applications for asylum withholding of removal and protection under the Convention Against Torture, and secondly, whether the judge erred in denying their relief applications.

[00:01:23] Speaker 01:
This petition should be granted because the petitioner's due process rights were violated when they were denied to have a full and fair hearing on their case. And it should also be granted because they have demonstrated eligibility for the relief sought.

[00:01:40] Speaker 01:
This case is about a nuclear family of four who traveled from El Salvador after Mr. Ayala's two cousins were murdered by members of the MS-13 gang, after the gangs repeated threats to force Mr. Ayala's seven-year-old son into the gang, after the gang physically assaulted Mr. Ayala, after the petitioners were continuously followed and harassed by members of the gangs, and after the gang members threatened to kill Mr. Ayala just as they had killed his two cousins.

[00:02:15] Speaker 01:
During a master calendar hearing, before the petitioners even filed their I-589 applications with the immigration judge, the judge informed the petitioners that she would remove their case from the court calendar if she found they were unable to establish a claim for relief.

[00:02:34] Speaker 01:
At the next master calendar hearing, the immigration judge received the petitioner's I-589 applications and after a cursory review in a crowded courtroom, determined she did not see how they could meet their burden. She proceeded to remove the case from the court calendar and stated she would issue a written decision. She issued the written decision and denied all claims for relief.

[00:03:00] Speaker 01:
The Fifth Amendment guarantees due process in deportation proceedings. And as such, a non-citizen facing removal is entitled to a full and fair hearing of his claim and a reasonable opportunity to present evidence on his behalf.

[00:03:15] Speaker 04:
Is there any statutory provision that requires a full evidentiary hearing?

[00:03:20] Speaker 01:
Thank you, Your Honor. The statutory and regulatory regime protects a non-citizen's right to present evidence If we turn to 8 USC section 212, 29, AB4, and 8 CFR 1240.1C, the language in this statute states that a non-citizen shall have a reasonable opportunity to examine and present evidence. The statute does not say may have an opportunity.

[00:03:52] Speaker 01:
So Here, there was a due process violation when the immigration judge prevented the petitioners from having a full and fair evidentiary hearing. And this rendered the proceedings so fundamentally unfair as they were stripped of an opportunity to present the case. This court requires petitioners to show prejudice, meaning that the outcome of the proceedings may have been affected by the violation.

[00:04:24] Speaker 01:
Petitioners are not required to show that the outcome was affected.

[00:04:29] Speaker 01:
This court has instructed the parties to discuss Golminar v. INS and Oshodi v. Holder and the decision's potential impact on this specific case.

[00:04:41] Speaker 01:
In both cases, this court found there was a violation of due process when the immigration judge limited and prevented the applicant's testimony during the merits hearing. Both Colmenar and Oshodi support petitioner's assertion they were denied due process when the judge denied them the opportunity to have a full hearing.

[00:05:03] Speaker 01:
Unlike the applicants in Colmenar and Oshodi, these petitioners did not get as far as even making it to a merits hearing.

[00:05:12] Speaker 01:
The immigration judge, during the master calendar hearing, again, this is a crowded courtroom, unilaterally decided to take the case off the docket and issued a written decision.

[00:05:24] Speaker 03:
Can you address the waiver argument?

[00:05:27] Speaker 03:
That is, you had waived the right to present testimony. I understand the IJ at first did say, I'm going to take this under submission. I don't think a prima facie case has been made. But then the IJ at the end, she does say, do you have any other information you'd like to present?

[00:05:43] Speaker 01:
Yes, Your Honor. She did ask if there was any other information, and there was supplementals that were submitted. The judge did not ask if there – do you wish to have a full merits hearing. She is specifically asking about evidence because at that time, she had already decided that she's taking the case off calendar and would be issuing a written decision. Essentially, it would not have made a difference, just as in Colmenard – Right during direct testimony, the immigration judge there cut off the attorney.

[00:06:18] Speaker 01:
And although there were efforts to continue, the attorney there said, you know, there's essentially no point in proceeding towards this hearing. I'm going to qualify my client for voluntary departure.

[00:06:30] Speaker 03:
In Komenar, we said the IJ was very hostile and wouldn't let the petitioner speak. Here, I mean, look at the IJ. IJ doesn't seem to be particularly hostile. I know the IJ said, well, taken her submission, but kind of had an open-ended question or opportunity to present evidence. I mean, it's kind of like an oral argument, I'm sure you've had it, where some judge says, you know what, I'm going to rule against you. Do you have anything else to add?

[00:07:00] Speaker 03:
And then a lawyer would try his or her best to say, no, no, I think you should rule the other way. So couldn't that statement by the IJ be read in that way to an opportunity to say to the IJ, I would like to present testimony. I believe live testimony would make a difference. You just can't rely on the written declarations.

[00:07:20] Speaker 01:
Right, and I believe that, you know, at that point, the standard is to have a merits calendar hearing. So, you know, the statute and already – says that the immigration judge, and even if we look at matter of FEFE, which was, you know, what this court has relied on in Goldmanod and Ashodi, states that, you know, oral testimony is required. So, you know, it really is for the judge to follow what the procedures are and schedule the merits hearings.

[00:07:53] Speaker 00:
In Montes Lopez, we held that deprivation or denial of the right to counsel contrary to statute meant that we should remand even if we didn't think there was a showing of prejudice, even if we thought that the error was likely harmless was our exact words. Do you think that case is analogous here?

[00:08:16] Speaker 01:
Yes, it is, Your Honor. And again— The judge has a duty to ensure that the record is developed. And again, I understand that she asked a question, is there anything else? And at the time, you know, I take it back that this, we're in a crowded courtroom.

[00:08:34] Speaker 01:
When we have asylum merits hearings, you know, those are confidential hearings that are closed. And you're generally... Presenting before the judge, obviously the government attorney, but there's not like an audience. So at the time, it was, I would say, an uncomfortable situation for petitioners. to be asked these cursory questions.

[00:09:03] Speaker 01:
Again, I take it back to the fact that it was evident that the judge's mind was already made up.

[00:09:10] Speaker 00:
The BIA did not rely on waiver to deny the appeal. Is that correct? That's correct. That's correct.

[00:09:18] Speaker 01:
And in matter of Fefe, which again, this court has... So the BIA found no prejudice, right?

[00:09:25] Speaker 01:
The BIA found that there was not a showing of prejudice.

[00:09:31] Speaker 04:
What purpose would be to remand to the BIA on the prejudice question in this case?

[00:09:36] Speaker 01:
Thank you, Your Honor.

[00:09:38] Speaker 01:
I would take it back that this court itself has held that a showing of prejudice is not required. Here the argument is that it was the judge's actions by themselves. It was the way that the judge acted that prejudiced the petitioners by stripping them of the opportunity. And I would relate this to Colmenar where the court – essentially said, if you look at Goldman Nahr's declaration on its face, it potentially would say this is insufficient for a grant of I-589.

[00:10:16] Speaker 01:
But if given an opportunity to testify, he would have been given an opportunity to explain how he reached the conclusions that were made in the declaration in the first place. And in this case, that is something that the petitioners were stripped of. So it's an example. They don't have to prove.

[00:10:37] Speaker 04:
I'm just having trouble. Like if the BIA found no prejudice, I still haven't heard what the prejudice is here. So why would we ever send it back?

[00:10:47] Speaker 01:
There is prejudice because they didn't have an opportunity to explain their declaration.

[00:10:53] Speaker 04:
But that's just the front end, on the front end right, right? That's the procedural rule that you're saying is violated, but you have to show prejudice. So what would he have explained that showed that he's entitled to relief?

[00:11:05] Speaker 01:
Oh, sure. Thank you, Your Honor. He would have had an opportunity to further discuss specifically how the gang members murdered his cousins, and how that related to him and the threats that he and his own family received.

[00:11:23] Speaker 04:
Are those things that were not in his declarations?

[00:11:27] Speaker 01:
Um, it was, there, there was, it was mentioned in the declaration, your honor. Um, I would say though, during testimony, he would have had an opportunity to further explain why he believed that that was significant and how it would make a difference in, in this case, in his case.

[00:11:44] Speaker 04:
And, uh, one last question. You pointed to the statute. It says you, you have a right to present evidence on the aliens on behalf. I mean, so, He did present – he was allowed to provide declarations and evidence and submit anything else he wanted, right?

[00:12:04] Speaker 01:
Yes, Your Honor.

[00:12:05] Speaker 04:
So what in the statute requires oral testimony?

[00:12:08] Speaker 01:
Well, Your Honor, the – in matter of FEFE, the board did turn to statutes and it used those statutes to – states that testimony should be required and has followed that testimony is a cornerstone of asylum proceedings. And again, this court has followed matter of FFA in the past, and we do respectfully request that this case be remanded to give the parties an opportunity to have a full and fair hearing.

[00:12:51] Speaker 01:
Thank you.

[00:12:53] Speaker 03:
Thank you.

[00:12:56] Speaker 03:
Ms. Jones, whenever you're ready.

[00:12:59] Speaker 02:
Hello, good afternoon. My name is Tracy Jones, and I'm appearing on behalf of the respondent, the acting U.S. Attorney General. The court here should deny the position for review because petitioners received a full and fair evidentiary hearing before the immigration judge, and the agency properly determined that they were not eligible for relief or protection, and the record does not compel a contrary conclusion.

[00:13:26] Speaker 02:
The due process violation that petitioner asserts in her opening brief that because of the immigration judge's failure to take testimony at the hearing is not availing.

[00:13:41] Speaker 02:
In matter of HAV, which abrogated matter of FIFI, which is one of the cases that the petitioner relies on in their opening brief, the board in that case indicated that if the factual allegations underlining a claim for asylum, withholding of removal and protection under the CAD, are viewed in light most favorable to the applicant and it does not establish prima facie eligibility, the immigration judge may pre-termite the applications without a full evidentiary hearing.

[00:14:16] Speaker 02:
And that's what the immigration judge appropriately did in this case. At the August 2nd, 2018 hearing, hearing, the immigration judge put the petitioners on notice that their applications should be full and complete because a decision may be rendered on the applications and the corroborating evidence if everything was taken as true.

[00:14:42] Speaker 02:
So the immigration judge put the petitioners on notice that this was her intent.

[00:14:49] Speaker 02:
At the hearing on October the 11th, the immigration judge once again reviewed the evidence that the petitioner had submitted with the application and the declarations and determined that the petitioners were unable to meet their burden of proof.

[00:15:07] Speaker 02:
Therefore, the immigration judge denied the applications for asylum and withholding. The actual issue was not rendered on October the 11th at that hearing. The immigration judge even went an additional step and allowed for the petitioner to submit any other evidence that would support their claims prior to rendering a decision in March of 2019.

[00:15:33] Speaker 02:
The petitioners has testified to the accuracy of the applications and indicated that everything in the applications were true and correct.

[00:15:43] Speaker 02:
Even though the petitioners took advantage of the immigration judge's offer to submit additional information, at no point in time did the petitioners indicated that they wanted to pro-offer to actual testimony.

[00:16:02] Speaker 02:
As the Petitioner's Council indicated, the statute does allow for the alien to have reasonable opportunity to examine the evidence against him or her, to present the evidence on their own behalf, and to cross-examine witnesses presented by the government. However, the statute does not indicate or require that oral testimony be taken at every evidentiary hearing when the immigration judge are taking the facts outlined in the applications and considering all the evidence in the most favorable light to the applicant if the applicant is still unable to make out a prima facie case of eligibility for relief or protection.

[00:16:51] Speaker 03:
The only... Sorry, if I can interrupt here. How should we read our en banc decision in Oshodi v. Holder where There is some language saying that full and fair opportunity to be heard includes the right to present his or her own testimony.

[00:17:11] Speaker 02:
Well, Your Honor, I think I think it was. discussed earlier and kind of hit on the head where in Oshodi and Komenar, in those cases, the petitioners wanted to, were in the process of testifying about their claims. And the immigration judge tried to limit that testimony. In Komenar, it was indicated that the the immigration judge wasn't acting as a neutral fact finder. And as you had mentioned earlier, the immigration judge appeared to be hostile.

[00:17:45] Speaker 02:
That wasn't the case here, Your Honor. In this case, the petitioners at no point in time indicated that they wished to offer oral testimony in support of their claims for asylum withholding of removal and protection under CAD. And in those cases, is factually distinguishable from this case here. In this case here, everything that the petitioners indicated or everything that the petitioners indicated in their applications were taken as true.

[00:18:19] Speaker 02:
And even then, they were still unable to meet their prima facie eligibility.

[00:18:24] Speaker 02:
Furthermore, the petitioners have not even identified anything and any evidence that was not considered or anything that would have Resulted in a different outcome. The petitioners haven't indicated that there was any claim or any point that was not considered by the immigration judge or the board for that matter.

[00:18:56] Speaker 02:
In their opening brief, the petitioners generally indicated that they would have testified more about the Salvadorian government's ability or willingness to control their alleged persecutors. Here today, opposing counsel indicated that they would have testified to the brother, to the cousin's killing and how it related to their claims. However, all this was considered by the immigration judge when the immigration judge denied their applications for relief and protection.

[00:19:29] Speaker 00:
Well, how do you consider testimony that wasn't taken?

[00:19:33] Speaker 02:
Well, not necessarily the testimony, Your Honor. The evidence that the petitioner has submitted in regards to these points that were indicated in the opening brief and today during argument that they would have been able to elaborate more on those certain points. The immigration judge may not have considered the testimony or the elaboration, but the immigration judge certainly considered those facts in determining that the petitioners did not meet their burdens of proof for eligibility for relief and protection.

[00:20:12] Speaker 02:
So therefore, the court's decisions in O'Shaughnessy and Komenar are factually distinguishable from here.

[00:20:23] Speaker 02:
Opposing counsel fails to address matter of HAV, which was a recent decision that aggregated matter of FIFI and determining that the agency has indicated that the immigration judge is allowed to pre-termite applications for relief and protection solely based on that application. and the corroborating evidence if everything is taken as true, which is what the agency did here.

[00:21:00] Speaker 02:
If the panel doesn't have any more questions in regards to the due process violation, I can move on to the underlining merits of the case.

[00:21:13] Speaker 02:
Well, first and foremost, the petitioner has not raised any challenges to the dispositive, unable, and unwilling finding Um, In their opening brief, because petitioners have waived this argument, the court should deny the petitioner review on this basis alone because this is dispositive of any asylum or withholding of removal claims. This court has held that a government's inability or refusal to protect against persecution is a core requirement for asylum and withholding and removal.

[00:21:48] Speaker 02:
And petitioners' inability... to demonstrate that this, or to raise any challenge to the finding that the Salvadorian government is unable or unwilling to protect them against their alleged persecutors is fatal to her claim, and the court should deny the petition for review on that basis alone. Even if the petitioners had raised a challenge to the unable or unwilling finding, the past harm that the petitioners alleged that they suffered did not rise to the level of persecution.

[00:22:31] Speaker 02:
The petitioners argued that they were threatened when they refused to allow their son to be recruited by the gang. The petitioner, the lead petitioner was beaten on a single a single incident, but never testified that he suffered any lasting injuries or injuries. provided any evidence that he suffered any lasting injuries or that medical treatment was required. This court has held that persecution is an extreme concept that means something considerably more than just discrimination and harassment.

[00:23:07] Speaker 02:
And therefore, the threats which this court has said that threats generally do not meet the muster of demonstrating persecution, the threats and the single beatings does not equate to persecution. So therefore, the court should uphold the agency's finding that the past harm that the petitioner suffered did not rise to the level of persecution.

[00:23:36] Speaker 02:
Moving on to the objective fear of future persecution, the petitioners argue that they are members of the particular social group identified as citizens of El Salvador who oppose and resist criminal organizations due to their moral or religious belief.

[00:23:54] Speaker 02:
The agency properly concluded that their PSG lacked particularity and also social distinction. The PSG had no defined clear boundaries.

[00:24:08] Speaker 02:
As some of the terms that was used to describe the PSG, such as oppose and resist, Both included large range of actions and the terms religious beliefs could include any religious background.

[00:24:27] Speaker 02:
So therefore, particularity encompasses concepts that a proposed group cannot be loosely defined and they must have clear defining attributes which petitioners proposed PSG failed to have.

[00:24:43] Speaker 02:
As far as for the lack of social distinction, petitioners pointed to no evidence that their proposed social group is perceived as a distinct segment of the Salvadorian government.

[00:24:56] Speaker 02:
The petitioners did not point to any evidence in the record that the Salvadorian society viewed or recognized this group as a distinct group.

[00:25:08] Speaker 02:
So therefore, without such evidence, the petitioners failed to meet social distinctions.

[00:25:13] Speaker 02:
Furthermore, there was no nexus determined. The agency probably concluded that because petitioners felt to show that they were actually targeted and harmed on account of their membership in this proposed social group, they failed to demonstrate the requisite nexus between the harm and a protected ground. This court is held for both asylum and withholding claims. A petitioner must prove a casual nexus between one of her statutorily protected characteristics and either her past harm or her objectively tenable fear of future harm.

[00:25:54] Speaker 02:
The petitioners have failed to do that here.

[00:25:58] Speaker 02:
Therefore, because the petitioners have failed to meet each step that is needed for asylum and withholding of removal, the agency properly determined that they were ineligible for relief.

[00:26:13] Speaker 02:
Petitioners also further failed to demonstrate their eligibility for cat protection, where they failed to demonstrate past torture The single beating, as was analyzed under asylum and withholding of removal, did not meet the mustard for persecution and therefore would definitely not meet the higher standard for torture. And the petitioners failed to demonstrate that relocation was not feasible or was unreasonable for because there was no evidence that it was a countrywide fear of their persecutors.

[00:26:58] Speaker 02:
Therefore, because the agency properly concluded that the petitioners did not meet their burden of proof to establish eligibility for relief or protection, and they have not identified any evidence in the record that would compel a contrary conclusion, this court should deny their petition for review, especially where the petitioners received a full and fair evidentiary hearing before the agency.

[00:27:24] Speaker 00:
Counsel, I want to return to the due process argument. I'm looking at 8 CFR section 1240.17 F, which describes the purpose and scope of a master calendar hearing. And nothing in there suggests to me that the purpose of a master calendar hearing can be to take testimony or ask the nothing gave the petitioners notice that they needed to be prepared to take a position on whether they were entitled to or needed an evidentiary hearing, but rather that it's supposed to be for the purpose of informing them they have the right to testify and to schedule one.

[00:28:09] Speaker 02:
Yes, and that is true, Your Honor, that the regulation does indicate that. However, At the August 2nd, 2018 hearing, the immigration judge put them on notice that an oral testimony may not be required and that the immigration judge may continue to review the applications and the evidence and make a decision based on that. In matter of HAVAV, the board has said that It is permissible for the immigration judge to do this.

[00:28:43] Speaker 02:
And this court should afford deference to the board's decision in matter of HAAV, in which the board specifically said that this was permissible.

[00:28:56] Speaker 00:
Well, we don't defer to the board's interpretation of the statute. Is that correct?

[00:29:01] UNKNOWN:
Yes.

[00:29:01] Speaker 02:
Yes.

[00:29:04] Speaker 00:
Thank you. Sorry, can you address Montez, our decision in Montez Lopez where we said if the agency does not follow its own statute and regulations procedurally that we don't engage in a, we would remand even if we think the error was harmless?

[00:29:23] Speaker 02:
Yes, Your Honor. In this case, there was no error. There was no error because the petitioners received, were able to present their case fully and fairly before the agency. It wasn't like as as I stated prior, Your Honor, the opposing positioners never at any point indicated that they wanted to offer testimony.

[00:29:44] Speaker 00:
I understand your your primary position is that there was no error, that there that the statutes and regulations were followed. If we were assumed for the moment, if we were to disagree, would Montez Lopez be controlling testimony?

[00:29:58] Speaker 02:
Well, Your Honor, if you were to agree with the petitioner's position and find that there was an error, then remand would be appropriate. However, there was no error in this case.

[00:30:13] UNKNOWN:
Okay.

[00:30:13] Speaker 00:
Thank you.

[00:30:14] Speaker 03:
Thank you.

[00:30:15] Speaker 02:
Okay. Thank you.

[00:30:26] Speaker 01:
Thank you.

[00:30:29] Speaker 01:
When the immigration judge prevented Oshodi from testifying to the contents of the written application, this court found there was a due process violation because there was a failure to present oral testimony. Testimonial evidence that has been recognized is central to the integrity of the asylum process. This court noted that the only recognized exception that an applicant for asylum should be fully examined is when both parties stipulate that the testimony would be consistent with the written statement and believable.

[00:31:06] Speaker 01:
And that was not what happened in this case. This is a case where the immigration judge in a master calendar hearing made the unilateral decision on how she was going to proceed with the cases in her courtroom. At the time that this matter was before the immigration judge, matter of FEFE and the rulings that have been made in this court plus the regulations is what the immigration judge is supposed to follow.

[00:31:39] Speaker 01:
And it was the immigration judge's actions that caused the petitioners to lose their opportunity to testify and to have an actual merits hearing.

[00:31:55] Speaker 04:
But Ashodi was based off of a credibility finding, right? I mean, what we talked about was the problem is that I.J. limited his testimony and then made a negative credibility finding where – so that makes sense there where if you can't – if the petitioner didn't have the opportunity to fully explain himself – and then you make a negative credibility, that seems like a due process violation. But here we never even got to the testimony part.

[00:32:23] Speaker 01:
There was not even testimony in this case, Your Honor. And even in Colemanard, you know, there was some testimony.

[00:32:31] Speaker 04:
I'm saying that it couldn't show to be read once you have testimony, then you have to be given full, you know, full, fair, full ability to present that testimony. But it doesn't say, I don't read it as saying that you have a right to give testimony.

[00:32:47] Speaker 01:
Well, I believe that if you look at not just Ashodi, but also looking at matter of FEFE, which is what this court turned to in that case, FEFE has been clear that oral testimony is a right and is a requirement for non-citizens in removal proceedings. And that really, again, is the issue and the argument here is that they were deprived of presenting their case, of having any testimony.

[00:33:18] Speaker 01:
The questions that were asked in that master were really just cursory. The judge looked at their applications right then and there and made a decision without any stipulation that the case would be taken off calendar and that she would issue. an oral decision. And again, Your Honors, I also want to note that the BIA's recent matter of HAAV decision should not apply in this case.

[00:33:52] Speaker 01:
This was not a case that was before the judge at the time when she made this decision.

[00:34:01] Speaker 01:
It should not be controlling to this courtroom. And I'd note that it is currently being litigated as well in a different circuit because of the language in the statute is contra to the BIA's prior holdings. And again, it comes down to the...

[00:34:27] Speaker 01:
shall have an opportunity versus may. And the argument here is that the petitioners, um, should have had the, an, an opportunity. It wasn't a decision for the immigration judge to decide whether, um, they should be afforded, um, an opportunity to have, uh, an actual merits hearing. Um, So at the very least, if this court were to have a finding that matter of HAAV should apply, the proper course of action would be to, at the very least, remand the case back to the agency to make that determination or allow for supplemental briefings to this court.

[00:35:18] Speaker 03:
Great. Thank you. Thank you both for your argument. The case is submitted.