[00:00:00] Speaker 05:
Dominguez, Chi versus Bondi.

[00:00:09] Speaker 05:
And I understand you're splitting argument council for the petitioner.

[00:01:33] Speaker 01:
Good morning, may it please the court.

[00:01:35] Speaker 01:
My name is Jennifer Norris for Petitioner Jose Dominguez-Chich.

[00:01:39] Speaker 01:
My co-counsel Lavely Forbes and I will each take six minutes and we will aim to reserve three minutes for rebuttal.

[00:01:46] Speaker 01:
We will watch our own time.

[00:01:49] Speaker 01:
She will be addressing aggregation and I will be addressing acquiescence and ignoring expert testimony.

[00:01:58] Speaker 01:
Here the agency committed a host of legal errors in denying Mr. Dominguez Cheech cat protection.

[00:02:05] Speaker 01:
This court should remand for two reasons.

[00:02:09] Speaker 01:
First, the agency legally erred when it determined that there was no government acquiescence for torture merely because the government was taking steps at the national level to combat gangs without examining the efficacy of those efforts or whether local actors on the ground would acquiesce to torture by gangs.

[00:02:29] Speaker 01:
This approach is irreconcilable with this court's decisions, and so Chivahime's be barred and Madrigal be holder.

[00:02:37] Speaker 01:
And second, the agency legally erred by ignoring dispositive evidence from country conditions expert Dr. Kirkland.

[00:02:46] Speaker 01:
The BIA failed to mention or engage with Dr. Kirkland's expert opinion that Mr. Dominguez-Chich would likely end up killed like his brother if he were returned to his hometown in Guatemala.

[00:02:58] Speaker 01:
This is per se reversible legal error under Castillo v. Barr and Encarnacion v. Bondi.

[00:03:07] Speaker 01:
Turning to the acquiescence error.

[00:03:11] Speaker 03:
Why was his brother killed?

[00:03:14] Speaker 01:
His brother was killed, Your Honor, because the family refused to pay extortion fees to Barrio 18.

[00:03:22] Speaker 01:
And they did this in defiance of the gang.

[00:03:25] Speaker 01:
And so in retaliation, they killed the brother.

[00:03:29] Speaker 01:
So in addition to country conditions evidence here, demonstrating impunity for gang violence, there is also individualized evidence here that the police turned a blind eye to the gang violence that Mr. Dominguez-Chich's family faced.

[00:03:44] Speaker 03:
So despite widespread... The expert said that he would likely be killed because his brother was killed because of opposition to the gangs.

[00:04:01] Speaker 01:
That's correct, Your Honor, because they actually reported this crime to the police.

[00:04:06] Speaker 01:
And despite widespread mistrust of the police, and despite the family being indigenous, impoverished, and many reasons not to go to the police, they put their faith in the police here.

[00:04:16] Speaker 01:
And they reported this crime to the police.

[00:04:19] Speaker 01:
But the police failed to take a single step in the investigation.

[00:04:24] Speaker 01:
And we have declarations from numerous family members corroborating this.

[00:04:30] Speaker 01:
Mr. Dominguez-Cheech testified at AR-273.

[00:04:34] Speaker 01:
The police didn't do anything.

[00:04:36] Speaker 01:
They didn't offer any assistance to us.

[00:04:39] Speaker 01:
We have his nephew,

[00:04:41] Speaker 01:
saying at 1802 in the record, the authorities of the municipality do not ensure our safety despite the fact that we have already made them aware of our situation and the danger we run.

[00:04:53] Speaker 01:
And so under this court's standard, the acquiescence standard has been met because there are two elements, and that is notice to the authorities and breach of duty to intervene or protect.

[00:05:08] Speaker 01:
And here, Your Honor, we also submit that there was the agency applied legal error.

[00:05:13] Speaker 01:
It was legal error to only assess whether there were steps.

[00:05:19] Speaker 01:
at the national level without evaluating the efficacy of those efforts or whether national actors or local actors on the ground would acquiesce to torture.

[00:05:28] Speaker 01:
And there's a long line of cases from Brignis Rodriguez v. Sessions to Madrigal v. Holder where the court determined that the agency too narrowly focused on national efforts without considering actual conditions on the ground.

[00:05:43] Speaker 01:
And as in Brignis Rodriguez v. Sessions, this court that it held

[00:05:46] Speaker 01:
It is well recognized that a country's laws are not always reflective of actual country conditions.

[00:05:55] Speaker 01:
And this record is replete with evidence that despite national policies, rampant corruption of the police force remains a problem.

[00:06:06] Speaker 01:
There is impunity for gang violence.

[00:06:09] Speaker 01:
This is borne out by the experience of Mr. Dominguez-Chich's own family who reported the murder of Barrio 18 to the police and were completely ignored.

[00:06:20] Speaker 01:
And turning to the second error, Your Honor, the agency also legally erred by ignoring dispositive evidence from Dr. Kirkland.

[00:06:31] Speaker 01:
that he would likely be torched by the gangs and that the police were corrupt and would turn a blind eye to the claims.

[00:06:36] Speaker 05:
The petitioner raised the claims regarding Dr. Kirkland to the BIA?

[00:06:43] Speaker 01:
Yes, Your Honor, and that is at AR 38.

[00:06:47] Speaker 01:
So this claim was exhausted before the board and was raised precisely as an error under Castillo v. Bar.

[00:06:54] Speaker 01:
But the board failed to address this error, and indeed it failed to mention Dr. Kirkland at all.

[00:07:00] Speaker 01:
This is

[00:07:01] Speaker 01:
actually very suspicious given the fact that Dr. Kirkland was an expert certified as an expert in the country in Guatemala on the security situation and specifically organized crime.

[00:07:17] Speaker 01:
The gang claim is Mr. Dominguez-Chich's most acute claim for torture.

[00:07:21] Speaker 01:
And Dr. Kirkland was found credible.

[00:07:27] Speaker 01:
But yet, the BIA failed to mention Dr. Kirkland at all.

[00:07:31] Speaker 01:
And under Cascio v. Barr, this is legal error.

[00:07:35] Speaker 01:
But in addition, this court recently reiterated in Incarnacion v. Bondi where the court held that if the board fails to mention or engage with highly probative expert opinions stating that the petitioner would face torture upon removal, then this is a strong indication that the board did not fulfill its obligation to consider all evidence before it.

[00:07:58] Speaker 01:
And with that I would like to turn it over to my co-council to discuss aggregation and reserve the remaining time for rebuttal.

[00:08:04] Speaker 01:
Thank you.

[00:08:18] Speaker 02:
Good morning, and may it please the court, Laveley Forbes for petitioner.

[00:08:21] Speaker 02:
I will now address the argument that the agency erred in not evaluating his risk of torture from all sources.

[00:08:28] Speaker 02:
Specifically, there were two sources of torture that were completely ignored by the agency.

[00:08:34] Speaker 02:
First, the agency completely ignored his feared torture from police.

[00:08:39] Speaker 02:
In his pre-trial brief, Mr. Dominguez dedicated an entire section to his fear of the Guatemalan police.

[00:08:47] Speaker 02:
He indicated he was afraid of being tortured by the police because they were corrupt.

[00:08:51] Speaker 02:
They were perhaps colluding with Barrio 18 as evidenced by their non-action after they reported his brother's murder to the police and the subsequent threats they received from Barrio 18.

[00:09:04] Speaker 02:
And also because of his specific characteristics.

[00:09:07] Speaker 02:
In fact, he was coming to the country as a poor, unemployed, indigenous criminal deportee with a sex offence conviction with severe mental illness.

[00:09:17] Speaker 02:
Second, Mr. Dominguez, she's clearly argued that if he were to be detained that he would face torture from inmates in prison in addition to prison officials.

[00:09:27] Speaker 02:
However, this argument went also completely ignored by the agency.

[00:09:31] Speaker 02:
Only the risk of harm from prison officials was considered by the agency.

[00:09:38] Speaker 02:
The risk of harm from inmates in a detention context is very acute considering country conditions demonstrating that prisons in Guatemala are essentially run by the inmates who have a very hierarchical structure where they will extort and they will beat and they will control less powerful inmates for their own profit or to further the ends of organized crime.

[00:10:02] Speaker 02:
These prisons are filled with gang members including Barrio 18,

[00:10:06] Speaker 02:
who run these prisons.

[00:10:08] Speaker 02:
Now if Mr. Dominguez-Cheese were to end up in such a scenario where there are enemy gang members who have previously targeted his family, that is a very reasonable source of torture that he would be exposed to.

[00:10:22] Speaker 02:
In addition to Barrio 18, other gang members could extort him as he has no money he would not be able to pay, which would again open him up to torture.

[00:10:30] Speaker 02:
Additionally, given that he's being deported with a sex offence conviction, he could be tortured on that basis as well.

[00:10:37] Speaker 02:
In addition to his mental illness, which would bring attention to him if he were to hallucinate or to attempt suicide and could prompt more powerful inmates to take advantage of him and torture him in prison.

[00:10:48] Speaker 02:
The board incorrectly states that these sources of torture were considered.

[00:10:53] Speaker 02:
However, if you look at AR 99 to 100 and AR 102, this is plainly false.

[00:10:59] Speaker 02:
The immigration judge did not consider any of the arguments put forward as to why the police may torture him because of his problems with Barrio 18 or because of their corruption or because of any of his other demographics.

[00:11:17] Speaker 02:
The immigration judge also did not consider harm from inmates in prison.

[00:11:22] Speaker 02:
His entire section was analyzing only harm from prison officials, the conditions inside the detention centre.

[00:11:29] Speaker 02:
He denied solely based on that.

[00:11:32] Speaker 02:
The board does not state in any part of their decision where the immigration judge actually considered harm from inmates themselves.

[00:11:43] Speaker 02:
Failure to consider one or more sources of torture is per se reversible legal error under Vasquez Cruz VBAR.

[00:11:51] Speaker 02:
It's also a failure to aggregate under Velasquez Samayoya.

[00:11:54] Speaker 05:
So what do you make of the BIA saying that the IJ properly considered the aggregate risk of torture from the sources identified by the respondents?

[00:12:06] Speaker 05:
He says it more than once and he does, the BIA goes through all of these different sources and talks about aggregation of potential harm.

[00:12:19] Speaker 05:
I mean, what the bottom line agency is saying is that we don't think that there's a likelihood that he would be detained, whether in a prison or in a mental health institution.

[00:12:34] Speaker 02:
Well, torture from the police can occur in the community as well, so it would not require... I'm sorry, can you speak up a little?

[00:12:39] Speaker 02:
Yes, for sure.

[00:12:40] Speaker 02:
Torture from the police could occur in the community as well as the detention context, so he does not actually need to be detained for that source of torture to be acute and for it to be considered.

[00:12:50] Speaker 02:
here and you know the immigrant the board I I can only speculate what they were referring to and they say that the immigration judge considered this because if you look at the actual immigration judge judge decision the only mention of the police at all is actually

[00:13:07] Speaker 02:
a comment from the immigration judge saying that his mental illness didn't draw the attention of the police in the United States.

[00:13:15] Speaker 02:
That's not even in Guatemala.

[00:13:16] Speaker 02:
He doesn't say anything about what could happen if the police were to target him in Guatemala for

[00:13:23] Speaker 02:
any of the number of reasons that he has put forward.

[00:13:26] Speaker 05:
So on page 17 of the IJ's opinion, he lists all these sources of torture and then he says, however, where as here, the respondent has positive multiple theories for why he might be tortured.

[00:13:40] Speaker 05:
The relevant inquiry is whether the total probability that the applicant will be tortured, considering all potential sources.

[00:13:47] Speaker 05:
I mean, this decision is night and day better than

[00:13:52] Speaker 05:
the last decision we were just contemplating.

[00:13:55] Speaker 05:
I mean, this one expressly states the law and then follows it, and it goes on for pages on all the various potential sources and theories of torture.

[00:14:08] Speaker 02:
Yes, if you look at AR-99, the immigration judge lists out the sources of torture, and he characterizes them as four.

[00:14:18] Speaker 02:
He says psychiatric facility, penal facility, gang members, and harm due to indigenous ethnicity.

[00:14:24] Speaker 02:
He doesn't list police or military.

[00:14:26] Speaker 02:
He doesn't list, I'm sorry, what?

[00:14:28] Speaker 02:
He does not list police or military in there.

[00:14:32] Speaker 02:
So he lists out, he says, these are the four sources of torture.

[00:14:36] Speaker 02:
but doesn't mention the police or the military.

[00:14:38] Speaker 05:
He's saying places, psychiatric facility, a penal facility, gang members or criminals.

[00:14:48] Speaker 05:
You're saying that because he didn't say police torture,

[00:14:56] Speaker 02:
Yes, so he characterizes this claim as being about four sources of torture on AR99.

[00:15:02] Speaker 02:
He says, psychiatric facility, penal facility, from gang members in the community, or because he's indigenous.

[00:15:10] Speaker 02:
And yet he does not list the police or military.

[00:15:13] Speaker 02:
Whereas in the pretrial brief, there was an entire section dedicated to police and military.

[00:15:19] Speaker 02:
And there was ample country conditions to support that.

[00:15:22] Speaker 02:
But that is not included in that list of perceived sources of torture.

[00:15:28] Speaker 02:
And then it goes on for the rest of the decision.

[00:15:32] Speaker 02:
You can see that he's not addressed in any other parts.

[00:15:35] Speaker 02:
And I see I'm running out of time.

[00:15:40] Speaker 02:
Unless there are any further questions, I will reserve the rest of the time for rebuttal.

[00:15:43] Speaker 05:
I think your co-council preserves some time for rebuttal.

[00:15:48] Speaker 05:
All right.

[00:15:50] Speaker 05:
Thank you.

[00:16:05] Speaker 04:
May it please the court?

[00:16:06] Speaker 04:
Christopher Pryby for the Attorney General.

[00:16:09] Speaker 04:
For the reasons stated in the Attorney General's brief, the petition should be denied.

[00:16:16] Speaker 04:
I'd like to comment on a few points that were raised in the reply brief.

[00:16:23] Speaker 04:
One was that an improper acquiescence standard was applied.

[00:16:34] Speaker 04:
relying on Madrigal versus Holder.

[00:16:38] Speaker 04:
Although Madrigal does talk about the efficacy of efforts, that is not the holding of its discussion on acquiescence.

[00:16:51] Speaker 04:
Rather, the thrust of its discussion on acquiescence was that you

[00:16:56] Speaker 04:
can't look to just high-level government efforts, you also have to look at individual or lower-level government, the likelihood that they will acquiesce to torture.

[00:17:08] Speaker 04:
So any statement that you have to look at the efficacy of efforts in Madrigal is dictum.

[00:17:14] Speaker 04:
And it's confirmed by the cases, I believe all of these post-state Madrigal, Garcia Millian, Andrade Garcia, Delmseed Marroquin,

[00:17:25] Speaker 04:
some pansi salazar, which all say that its ineffectiveness is not sufficient evidence to compel a finding of acquiescence.

[00:17:40] Speaker 04:
Rather, the correct reading is to look at the individual circumstances, particularized circumstances of the petitioner, and then to determine

[00:17:52] Speaker 04:
whether there is an awareness?

[00:17:55] Speaker 05:
I think we have some cases that say that just because the country has laws outlawing persecution on these particular grounds doesn't necessarily mean that the police don't turn a blind eye.

[00:18:11] Speaker 05:
So I think that's what that line of cases is talking to, but I don't think that's the situation here.

[00:18:23] Speaker 05:
What is not the situation in particular that I mean, what is the evidence that the police in this case?

[00:18:31] Speaker 05:
I mean in this situation are Turning a blind eye.

[00:18:35] Speaker 05:
I mean is is it just is it the fact that they didn't find the murderer of his brother and

[00:18:42] Speaker 04:
I think that's the only evidence that the petitioner put forward.

[00:18:45] Speaker 04:
But then in their reply brief, in his reply brief, the petitioner also disclaims that that evidence is sufficient to show acquiescence.

[00:18:56] Speaker 04:
So I think the petitioner is relying primarily on generalized country condition evidence here.

[00:19:04] Speaker 03:
Would you comment briefly on the,

[00:19:08] Speaker 03:
what the expert would contribute and the contention that that testimony was improperly ignored.

[00:19:24] Speaker 04:
So aside from the exhaustion problem,

[00:19:30] Speaker 04:
The testimony that they pointed to, at least to the agency, was that he was saying that it's likely that a petitioner would be targeted and killed.

[00:19:41] Speaker 04:
I think that potentially mischaracterizes his testimony below, but perhaps that maybe it's a fair inference from the entirety of his materials.

[00:19:51] Speaker 04:
But that said, because

[00:19:54] Speaker 04:
Torture was not the dispositive issue, at least as to gangs outside of detention.

[00:20:03] Speaker 04:
Acquiescence was the dispositive issue.

[00:20:06] Speaker 04:
So remand just for consideration of his evidence on torture would be a futile and idle endeavor in this case.

[00:20:19] Speaker 04:
And then,

[00:20:28] Speaker 04:
Any further questions or further questions?

[00:20:32] Speaker 00:
So opposing counsel argued that the aggregation analysis was not sufficient because the IJ failed to include the police and the military.

[00:20:47] Speaker 00:
Can you address the agency's aggregation analysis?

[00:20:52] Speaker 04:
The agency properly considered all the different sources of potential torture.

[00:20:58] Speaker 04:
To the extent the military was raised, that has been either abandoned or forfeited because it wasn't pressed initially in this court.

[00:21:07] Speaker 04:
And the way the police was raised before the agency was in the context of detention, that the police would arrest him and then torture him in detention.

[00:21:19] Speaker 04:
So I'm sorry, Your Honor.

[00:21:22] Speaker 03:
That was my question, is that dependent on his being, doing something that would cause him to be detained?

[00:21:30] Speaker 04:
That seems to be the thrust of the argument and then the agency lays out all the different reasons that he won't decompensate the point of being institutionalized or won't take, won't recidivize, recidivate and won't otherwise come to the police's attention.

[00:21:48] Speaker 04:
Because there is no likelihood or very small likelihood of detention, and that's the underlying assumption to all these non-gang sources of torture, you don't need to go past the fact that it's unlikely he's going to be detained.

[00:22:04] Speaker 05:
Your friend on the other side argued that in the aggregation analysis, the IJ failed to consider meetings by the police.

[00:22:18] Speaker 04:
My reading of petitioner's arguments before the agency was that beatings from police would occur not out in the wild in the community, but only in the context of detention.

[00:22:32] Speaker 04:
Detention.

[00:22:33] Speaker 05:
Okay.

[00:22:34] Speaker 05:
He does consider facilitation, being in a penal institution.

[00:22:42] Speaker 05:
Correct.

[00:22:43] Speaker 04:
Or otherwise being arrested by the police because his symptoms are escalating or something to that effect.

[00:22:51] Speaker 05:
Was it wrong to exclude the testimony about his beating in the prison in the United States by inmates?

[00:23:01] Speaker 04:
Because it is unlikely or because the IJA properly found that it's unlikely that he will be detained in prison in Guatemala.

[00:23:09] Speaker 05:
So it all goes down to?

[00:23:11] Speaker 04:
detained yes your honor if your honors have no further questions attorney general requests you deny the petition to reveal thank you thank you counsel

[00:23:59] Speaker 01:
Thank you, Your Honours.

[00:24:00] Speaker 01:
Just a few points on rebuttal.

[00:24:03] Speaker 01:
First, the government wishes to frame this case as a matter of mere ineffectiveness of the police.

[00:24:10] Speaker 01:
That is not this record.

[00:24:12] Speaker 01:
They cite Garcia Emilian, beholder.

[00:24:16] Speaker 01:
to say that this is just chalked up to ineffectiveness.

[00:24:19] Speaker 01:
But contrary to the arguments made by the government, the record shows an affirmative failure by the police to investigate the murder of Mr. Dominguez-Chich's brother, despite notice and a legal duty to act.

[00:24:33] Speaker 01:
And in Garcia Millian, the holder, and other cases cited by the government, the police didn't know the identity of the assailants.

[00:24:45] Speaker 01:
Here in the record, it was very clear that the assailants were Barrio 18.

[00:24:49] Speaker 01:
They had been extorting and harassing the family for years.

[00:24:53] Speaker 01:
Barrio 18 controlled the neighborhood in which they lived.

[00:24:57] Speaker 01:
This was not a great mystery of who the assailants were.

[00:25:01] Speaker 01:
This was not a crime that only could be solved by a team from CSI.

[00:25:06] Speaker 01:
It was the police either being fearful of the gangs or colluding with the gangs.

[00:25:11] Speaker 03:
But why is he in any different position than anybody else?

[00:25:16] Speaker 01:
With respect to the gangs when he goes back Because your honor he and his family have defied barrio 18 and they have knowledge of that they have Dr. Kirkland explicitly testified that they have the gangs have memory about these incidents and if he returns like he testified at AR 405 to 407 he'll likely end up like his brother and

[00:25:46] Speaker 01:
Second, Your Honor.

[00:25:48] Speaker 01:
Is that torture with government acquiescence?

[00:25:52] Speaker 01:
Yes, Your Honor, because the police have failed to protect the family and they have failed to investigate even this murder here by the brother.

[00:26:04] Speaker 01:
And second, Your Honor, as to aggregation,

[00:26:10] Speaker 01:
The IJ held that there was a theoretical possibility that Mr. Dominguez-Chich could be detained.

[00:26:16] Speaker 01:
And under Velasquez-Samayoya, it was incumbent upon the agency to analyze his risk of torture within prison.

[00:26:25] Speaker 01:
But even if this court believes that the agency conducted a proper aggregation analysis, remand is still required here because of two blatant legal errors, and that is applying the wrong

[00:26:39] Speaker 01:
acquiescence standard, and ignoring dispositive expert testimony from Dr. Kirkland.

[00:26:46] Speaker 01:
And unless there are any further questions from the court, we would request that you grant the petition for review.

[00:26:53] Speaker 05:
Okay.

[00:26:54] Speaker 05:
This case will be submitted.

[00:26:56] Speaker 05:
And once again, I want to thank Immigrant Defenders Law Center for pro bono representation in this case.

[00:27:04] Speaker 03:
You were not appointed by this court, as I understand it.

[00:27:07] Speaker 01:
That's correct.

[00:27:07] Speaker 01:
He wasn't accepted in the pro bono program, but we represented him pro bono.

[00:27:12] Speaker 05:
Well, thank you very much for helping us out on this case.

[00:27:17] Speaker 05:
And this session of the court is adjourned for today.