[00:00:05] Speaker 01:
May it please the Court. My name is Markandey Vigneshwaran, appearing on behalf of the petitioner. This case concerns a politically motivated abduction and violent intimidation complaint carried out against the petitioner and her family in Sri Lanka because of her father's support for opposition presidential candidate General Sarathwant Seva.

[00:00:28] Speaker 03:
Excuse me, I have a question.

[00:00:33] Speaker 03:
I was looking at the briefing in this case. I looked at the arguments, I guess. Here's my question. I don't want to talk about the past persecution arguments for now, and they may have merit, but I want to talk to you about the cat argument. How is it that, you know, it looks like there were two sentences devoted in the brief to that. Why wasn't that forfeited?

[00:01:01] Speaker 01:
You're honest. That's...

[00:01:03] Speaker 01:
mainly depend on the same argument I made regarding asylum and withholding.

[00:01:13] Speaker 03:
Right, but I guess what I'm saying is that in the opening brief at 18, there are literally two sentences that were written in terms of argument.

[00:01:24] Speaker 03:
Isn't that based upon our case law? Wouldn't we just indicate that this was that argument at least with regards to CAP, was forfeited.

[00:01:38] Speaker 01:
Your Honor, it's my intention to raise that argument in my brief, but the argument based on the asylum and withholding argument.

[00:01:48] Speaker 00:
But the standard is different, right, for asylum and CAP, so it wouldn't be the same argument as to both claims, correct?

[00:01:58] Speaker 01:
Yes. Yes.

[00:02:03] Speaker 01:
Okay, thank you.

[00:02:08] Speaker 01:
Principal issue before this court is whether the agency erred in concluding that the cumulative harm suffered by the petitioner did not rise to the level of persecution. I would like to address three points this morning. First, the agency failed to properly evaluate the cumulative severity and the political nature of the petitioner's past harm. Second, the agency improperly relied on distinguishable proceedings.

[00:02:38] Speaker 00:
May I ask you a question about your cumulative harm argument? You say that in your brief that there's substantial evidence to support a finding that cumulative harm suffered by the petitioner rises to the level of persecution. But isn't the standard here whether the evidence compels that conclusion?

[00:03:00] Speaker 01:
Yes.

[00:03:01] Speaker 01:
And, you know, there are many case laws under Ninth Circuit jurisdiction that require cumulative harm analysis, especially in Sarma v. Garland.

[00:03:22] Speaker 00:
In this case... So can I ask you, if the BIA stated the correct legal standard, discussed all the relevant facts in the record, claimed that they considered everything cumulatively, what more should they have said to satisfy that standard?

[00:03:42] Speaker 01:
They should have analyzed exactly all the facts. but they didn't give any detailed analysis, especially in this case, the fact pattern in Sharma and other cases, the agency quoted in its decision is different from this current case, Your Honor.

[00:04:11] Speaker 00:
But what more should they have said?

[00:04:15] Speaker 00:
They said they did it in the first sentence, considered in the aggregate.

[00:04:21] Speaker 00:
They said the petitioner did not seek hospital treatment because she did not sustain serious injuries, only minor bruising. Then unknown individuals threw rocks at the respondent's house, surveilled the family, made unfulfilled phone threats.

[00:04:35] Speaker 00:
What are the facts that you think they omitted erroneously?

[00:04:42] Speaker 01:
Just in this incident case, Your Honor, this was politically motivated abduction, kidnapping, overnight restraint, firearms pointed at the applicant's head, and continued intimidation campaign against the applicant's family.

[00:05:05] Speaker 03:
I guess my question then to you is this. Did the BIA cite any case analyzing, except for the standard, they cited a case establishing what the standard is for cumulative effects, but did they analyze that by listing out a case that establishes that particular harm that this particular petitioner face.

[00:05:43] Speaker 01:
My point is, Your Honor, a certain requirement in the decided cases in the past does not exist in this particular case. This particular case is different from the previous, you know, the facts. So here, actually, hospitalization is not required under – it's not necessary 100 percent for past persecution under the Ninth Circuit case.

[00:06:22] Speaker 01:
Thank you.

[00:06:24] Speaker 01:
And Yolanda, regarding the Future persecution, the government argues that the petitioner's fear is undermined because her parents remained in Sri Lanka after 2010 and because political condition changed. But this quote held in Shavo versus Mukesi that the continued presence of family members does not automatically defeat a well-founded fear, particularly where the applicant himself, herself in this case, was directly targeted.

[00:07:00] Speaker 01:
Here, the petitioner herself was abducted and threatened. Moreover, the petitioner testified that Rajapaksha's political structure associated with the earlier persecution had only recently returned to power at the time of the hearing.

[00:07:17] Speaker 01:
The immigration judge herself recognized that the political situation was evolving and uncertain in Sri Lanka. Most importantly, however, once the past persecution is established, the petitioners become entitled to regulatory presumption of future persecution under HCFR Section 2013-B1, Your Honor. So here, in the case law, Noru versus Gonzalez, the burden then shift to the government to demonstrate a fundamental change in circumstances sufficient to rebut their presumption.

[00:08:00] Speaker 00:
How should we think about the fact that the parents have lived in Sri Lanka safely since 2010? The father's no longer politically active, and that's the reason why the harm that occurred to her took place.

[00:08:15] Speaker 00:
The political opposition leader for whom the father worked is now allied with the regime and actually has held cabinet positions in that regime, and there's no evidence that anyone in Sri Lanka has been interested in the petitioner for a very long time.

[00:08:33] Speaker 00:
Should that factor into how we think about future persecutions?

[00:08:38] Speaker 01:
Your Honor, country condition analysis rested primarily in the temporary absence of recent harm to the family members other than the meaningful examination of whether the political actors connected to the original persecution no longer had posted a threat.

[00:08:54] Speaker 01:
Given the recent return, at the time of the hearing, the Rajapaksha regime came back to power.

[00:09:10] Speaker 00:
That's the son of the original leader, correct? And he has very friendly terms with the opposition political leader for whom the father worked, correct? That's what's in the record.

[00:09:23] Speaker 01:
No, the Rajapaksha's brother came to power, but he was not friendly with, he's not friendly with the respondent's father, sorry, petitioner's father.

[00:09:42] Speaker 00:
No, to the political opposition leader for whom the father worked. And it was that relationship, which is what caused the harm to the petitioner.

[00:09:51] Speaker 00:
That political opposition leader has been embraced by the regime, both the original one who put that leader in prison, as well as I believe his son is now the president, correct? Correct.

[00:10:10] Speaker 01:
No, that's not correct, Your Honor.

[00:10:15] Speaker 00:
Okay. I'm just going to look at the record here. It says in 2013, the then current president granted Fonseca, who was the opposition leader for whom Petitioner's father worked, a presidential pardon, and that no harm has come to Fonseca. And that in 2015, he became the field Marshall, which is the highest military rank in that president's, uh, regime. And then in 2018, he became the minister of regional development in that administration.

[00:10:50] Speaker 00:
And then when that president's, I guess, brother became the president as of 2019, there's no evidence that any of them are seeking revenge against Fonseca or his past supporters from the 2010 presidential election.

[00:11:06] Speaker 00:
which would include the petitioner and her family.

[00:11:10] Speaker 01:
As far as I know, Your Honor, the petitioner's father's opposition party became power just at the hearing, just before at the time of the hearing.

[00:11:27] Speaker 00:
So the father's party is now in power, so then why would he be persecuted if it's his own party that's in power?

[00:11:37] Speaker 01:
Not father's party was in power at the time of the hearing. The father's opposition party was in power.

[00:11:50] Speaker 04:
Did you want to reserve the remainder of your time, counsel?

[00:11:54] Speaker 01:
Yes.

[00:11:56] Speaker 04:
All right. We'll hear from the Attorney General.

[00:12:01] Speaker 02:
Your Honor and good morning. I'm Spencer Shukard for the United States. May it please the court. The government's position in this case boils down to essentially that the case can be decided in its favor based on two legal realities. The first being the highly deferential standard of review in this case. And the second being that death threats are not per se persecution.

[00:12:23] Speaker 04:
Let me let me push back and tell you where my concern is here. that there were, first of all, there were a lot more than death threats here. The petitioner and her mother were kidnapped. Everybody was found, the petitioner was found credible. They were kidnapped because of the dad's opposition.

[00:12:45] Speaker 04:
They put a gun to their head and said, if dad doesn't stop helping the mother, the opposition leader, everybody is going to be killed.

[00:13:01] Speaker 04:
And then they faced future threats. So first of all, have I accurately recited the evidence found to be credible?

[00:13:11] Speaker 02:
You have, Your Honor.

[00:13:12] Speaker 04:
All right. So here's my issue with what the agency did. That the agency used the right words. I will grant the government that. And the burden is very high on petitioner. And the agency said it looked at the harm in the aggregate and then cited some cases that they said supports the determination of the agency. But in my mind, none of the cases which are summarily cited by the BIA or the IJ, although we're looking at the BIA, have harm that is akin to the harm here.

[00:13:58] Speaker 04:
I mean, they talk about threats alone, but, I mean, this is somebody who is a high-ranking opposition leader whose relatives were kidnapped and threatened with death with a gun pointed to their head, and then...

[00:14:14] Speaker 04:
The house was surveilled, rocks were thrown, and the agency looks at these cases in a very summary way.

[00:14:24] Speaker 04:
Why is this enough here, given that, in my view, the cases aren't similar? Why shouldn't we send it back to the agency to do a more thorough job of looking at the the harm in the aggregate to see if it equals past persecution. And I apologize for my very long rambling question.

[00:14:47] Speaker 02:
I appreciate the question, Your Honor. I always like to know where the judges have problems. And in this case, I think I would echo a question that was asked of my colleague during his time, which was that I'm not sure what else there is to be said by the agency. You know, it found the facts. It found her credible. He said what happened to her, how she felt. She suffered injuries. She called them not a big deal. And what we have is case law that has facts within it. And I do want to kind of come back to whether or not comparing this to case law is actually a fruitful endeavor.

[00:15:17] Speaker 02:
But what we have, you know, if you take a step back more generally, is you have a detention, we'll call it, that's less than a day, right? It happens overnight. It's brief, relatively speaking, for cases that we know of.

[00:15:32] Speaker 04:
Although... Yes. I mean, it is brief, but it is two people being kidnapped, held away from their home, a gun taken out, and pointed to the head and said, your dad is a high-ranking leader of the opposition, and if he doesn't stop, you're all dead.

[00:15:57] Speaker 02:
Lanza, cited by the immigration judge, the petitioner in that case, there was a home invasion case. Gunman came in. Her babies are there.

[00:16:06] Speaker 02:
Forces her to sit in a chair, threatens her at gunpoint. It's a shorter detention. But the facts are similar. We're arguing over minutes or hours of how long this ordeal goes on.

[00:16:16] Speaker 04:
Was that cited by the BIA, that case?

[00:16:19] Speaker 02:
I don't know if Lance is in the board decision, but to your earlier point, I do think that the IJ's decision was within the scope here. I don't think the board supplanted. I think it supplemented.

[00:16:30] Speaker 02:
It's a fine line, but that's our argument.

[00:16:31] Speaker 04:
Although the BIA later said we do not address respondents' remaining arguments on appeal as we're really not dealing with what the IJ did other than we've discussed, right?

[00:16:47] Speaker 02:
Correct, right. So all the things that the IJ found regarding nexus, about the political opinion and those things, those are left for another day.

[00:16:54] Speaker 04:
Right, and this is not a Burbano case.

[00:16:57] Speaker 02:
Correct.

[00:16:59] Speaker 02:
Correct. What it said, it does say that it affirms what the IJ did. No clear error, so we know the findings are in there. The IJ had his reasoning, and the board, I think, is just adding to it. The board does cite Salwar Ososa.

[00:17:12] Speaker 02:
In that case, there's a man who's beaten and robbed at gunpoint. He gets death threats constantly. That's not persecution.

[00:17:20] Speaker 02:
You also have Hussein, right? He's shot at. Bullets are flying. He's in gun battles. He gets death threats, not persecution. Death threats don't start and end these things, even when they're serious. And I would insert, before I assert this, I want to make clear that the government does not dispute the petitioner went through a terrifying ordeal. She had a very frightening week back in August of 2009.

[00:17:46] Speaker 02:
And the agency's no persecution finding is not an expression that she's not deserving of sympathy.

[00:17:53] Speaker 02:
Well, let's talk about these death threats. Neither of them were delivered with the immediacy that you would want to see from a threat. And I know one of them was at gunpoint, pointed to her face, but consider that her description of the threat is, tell your father that if he does not stop supporting Seraph Fonseca, I will kill his family.

[00:18:14] Speaker 04:
Well, what her description is, First, they took us there. They tied us to a tree. So my mom started screaming, saying that we hadn't done anything wrong. Please let us go. So one of the people there, he had a gun in his pocket. He pointed the gun to my head. And so he said, if my dad doesn't stop helping Fonseca, our whole family can be killed.

[00:18:37] Speaker 02:
Right.

[00:18:38] Speaker 02:
The threat, as it's delivered, is undercutting its immediacy because, number one, it says, tell your father. Right. So implying someone's got to live to tell him something. Number two, it's conditioned on a future event. Tell your father he needs to stop doing what he's doing. Meaning, you know, we will see how this goes. And I can point out that her father did not stop.

[00:19:00] Speaker 02:
If that is any indication of how seriously he took it, her father continued to do it.

[00:19:05] Speaker 03:
Castle, I just have a real problem.

[00:19:09] Speaker 03:
how you're describing the series of facts in this clinical kind of way. Can you imagine what this person was facing at the moment? They're tied to a tree and being told that they are going to kill their father because of the political...

[00:19:32] Speaker 03:
actions and whatnot if they don't comply with the governing power. I mean, I just, the way in which you're describing it, I guess I take issue with because I don't think that is what happens in real life. That is not what a person experiences as these incredibly scary moments are happening to them at the moment. I guess I take issue with the way in which you're describing this sort of parsing out of, well, you know, it's a future threat, so she must have thought, oh, I must be able to live.

[00:20:08] Speaker 03:
I don't think that is how human nature works. I think how human nature works is that these are devastating, incredibly terrifying threats, that are being experienced. And the biggest problem I guess I have with what the VIA did is they listed out these series of cases and none of which on their own describe what happened here. They all sort of individually sort of talk about this is not acceptable.

[00:20:41] Speaker 03:
And I get that. I understand that that's what they did, but never sort of it's cumulative analysis. There's nothing in the VIA order that does that.

[00:20:53] Speaker 03:
analysis that is required, don't you think? Let me ask you this. Do you think that this is sufficient? Would it have been better for the VIA to describe how this is consistent with a particular case where all of these things might have happened?

[00:21:14] Speaker 02:
I think it might have forestalled this conversation, but I don't think the effect would have been any different if it had added, say, a parenthetical Well, we don't know that, right?

[00:21:25] Speaker 03:
We're guessing at this point, and our job is not to guess. We need to be able to review a record, and here there is a lack of a record in the order that was issued.

[00:21:37] Speaker 02:
I disagree. And I think that the agency understands case law and understands that the people, the court that sits in review of its decisions also understand case law. So when it cites a case for us after listing out a series of facts, I think it's entitled to understand that we all know what it means when it cites to the case, especially when the case is the correct case for the standard.

[00:21:58] Speaker 00:
But these cases that the BIA cited are all different, right? Hussein was not targeted individually, didn't receive personal threats.

[00:22:11] Speaker 00:
Gu was detained three days but didn't get any death threats. The police lost interest in him.

[00:22:16] Speaker 00:
And Lanza, I don't see, and maybe I missed it, but I don't see anything about a gun in, she was, you know, Three men did break into her house and threaten her.

[00:22:28] Speaker 00:
There also were no other threats while she remained in Argentina. So if we look at these cases, at least three out of the four that the BIA cited, and Salguero Sosa, they really just cited for the standard, right? I don't see them. Their parenthetical doesn't include any description of the facts of that case or the holding. It just states the standard that the BIA must apply cumulative effect review.

[00:22:54] Speaker 00:
So I guess, you know, what should we do with the fact that each of the cases, you could argue, are distinguishable, and it's not clear whether the agency considered each one in isolation or did the full impact cumulative review?

[00:23:11] Speaker 02:
I would say, Your Honor... that we can give the agency credit for understanding what these cases say. And you can each, you know, there's nothing, there's never going to be a perfect analog to any individual case, which is why I don't think this back and forth of comparing cases on like the continuum between goo and glow or between something like Lanza or Flores Molina is really all that fruitful in the sense is like, as long as death threats are not per se persecution, which we all agree they're not.

[00:23:46] Speaker 02:
There has to be a set of facts where death threats and other stuff is also not persecution. And that's why I think the important thing is to focus not on what you've done in other cases, but to focus on the facts of this case and understand that the agency did what it was supposed to do. It understood the task. It cited the standard. It did cumulative effect review.

[00:24:06] Speaker 04:
So, counsel, going a little bit to Judge Mendoza's point that I mean, first, I think that your argument in general has a lot of legs. But when I read what the BIA wrote where they describe the kidnapping and then they talk about after the kidnapping, the sentence next is she did not seek hospital treatment because she did not sustain serious injuries, only minor bruising, in a circumstance where the heart of what the claim is, is they kidnapped us and threatened to kill us because dad is one of the leaders of the opposition.

[00:24:58] Speaker 04:
And the next line is talking about, well, she only sustained minor bruising. and then has this list of cases, it's just hard for me to see here that the agency is truly parsing the harm in the aggregate despite the words that they're using when you have this horrible event and they talk about, well, let's move along, there was only minor bruising.

[00:25:26] Speaker 02:
I understand where you're coming from, Judge, but remember that agency has to act on the record that it has. Petitioner didn't testify. to any sort of lasting psychological harm. They didn't testify to anything. She herself called her injuries not a big deal. So all we know about what happened to her is that she's afraid to return, which is every asylum case. That's not unusual. The agency can't start inventing facts or putting itself in the position of the petitioner saying, that would frighten me. Because of course it would.

[00:25:56] Speaker 02:
That's built into this thing. She's been found credible. She has a subjectively genuine fear of returning because something terrible happened to her. That's very commonplace. But I don't think, and I want to, this kind of goes to what Judge Mendoza was saying earlier, too. I don't think it's fair.

[00:26:13] Speaker 02:
to look at what the agency wrote or what I'm saying in defense of the agency and call it too clinical and the task here under this court's law is to look at each fact in and by itself and aggregate it and decide whether that's enough of a quantum of harm that is a clinical task. We can dress it up with this is terrible and I'm sorry and of course those things are true but they don't aid in the actual analysis of what happened.

[00:26:41] Speaker 03:
Well, counsel, just to be clear, I think my job is not clinical. I think my job is to look at the overall case and look at the facts as they are. And part of what we do is certainly look at the specific instances of harm that occurred here. But we can't be so detached as apparently the VIA appears to be the way in which they cited this record. and taking and parsing out the different cases with specific facts and never analyzing them in the aggregate.

[00:27:18] Speaker 03:
They said those words, but they never did. So I guess I take your point, but I think that our job is to look at the entire record and look at it from the lens of humans, of how this is actually appearing and apparently the BIA must have looked at this, not from that, but instead from a very, again, I will repeat it, clinical and parsing out the different facts and not looking at it as a whole, which is what our case law says they need to do.

[00:27:54] Speaker 02:
I'm over time. May I respond?

[00:27:58] Speaker 04:
Yes.

[00:27:59] Speaker 04:
Take the time you need to respond to Judge Mendoza's question, please.

[00:28:03] Speaker 02:
I strongly disagree with that characterization. And again, I'll call it unfair. The board has a Herculean task in front of it. It has its 20-odd permanent members and a couple of temporaries with a million-plus case backlog. I don't know how it is supposed to list out facts in a way that satisfies someone's view of what a human would do.

[00:28:27] Speaker 02:
It has laws, it has regulations that it has to adhere to. Under this court's case law, it has to analyze the IJ's answer for clear error. It has to look at what he did under the legal standard de novo. It has to compile that in a way that is reviewable by your honors. If it doesn't do that in a way that's satisfying, that's fine, but I think the court needs to keep in mind that the standard of evidence here is substantial evidence and not substantial evidence for a human. I mean, I understand, and again, we all want to treat these people with sympathy, but I want to make sure that we're going to review this under the correct standard.

[00:29:03] Speaker 02:
There's been no allegation of legal error here.

[00:29:06] Speaker 00:
Can I ask?

[00:29:07] Speaker 03:
The moment that, I'm sorry, the moment that we stop being humans evaluating this is a moment that we lose our jobs. Let's give it to a computer to do that, if that's the approach that you advocate for. But that's not the approach I think our system is thought to be applying. I disagree with that completely. But that's all I'll say for now. Thank you.

[00:29:37] Speaker 00:
I have one question.

[00:29:40] Speaker 00:
The facts that the BIA cites look incomplete. There's no mention of the gunpoint threat during the kidnapping.

[00:29:49] Speaker 00:
There was a threat six days after the kidnapping. That doesn't appear to be mentioned.

[00:29:55] Speaker 00:
And the threats were credible enough that two Army officers provided security for the family. So how should we...

[00:30:04] Speaker 00:
Take into account that it looks like even the factual statement or recitation may not be complete here.

[00:30:13] Speaker 02:
Unfortunately, the room setup that I have here in this conference room doesn't allow me to look at my electronic copy of the record. But my recollection is that they mentioned a death threat. I don't recall if it was a gunpoint threat, but I do remember a death threat. And I believe they mentioned a telephonic threat. I don't know if they call it a death threat. But I think under my, and I have it as listed on page four of the record, but unfortunately I can't confirm that.

[00:30:37] Speaker 00:
You're right. They do say unfulfilled phone threats, but they don't mention the gunpoint.

[00:30:43] Speaker 02:
Okay.

[00:30:43] Speaker 00:
The gunpoint threat during the kidnapping.

[00:30:47] Speaker 02:
There may be, I know that they might have a recitation of facts perhaps above that when they're describing the petitioners. And again, I'm sorry, I can't be more clear of this, but I don't have that as missing.

[00:30:58] Speaker 02:
All right, apologies for that.

[00:30:59] Speaker 04:
Unless my colleagues have any further questions, we thank you for your argument. Petitioner, you have some time left for rebuttal if you want to use it.

[00:31:12] Speaker 01:
Your Honor, as I stated before, the BIA did not fully analyze the facts, the harm suffered by the petitioner in this case.

[00:31:25] Speaker 01:
The individual cases they cited They talk about particular harm, not the entire harm suffered by the petitioner at one point. The petitioner was a student at that time. He was studying here in the United States. She went back to Sri Lanka on vacation.

[00:31:44] Speaker 01:
A few days after she was harmed, she came back to USA and continued her studies, continued to maintain a fund status. And she graduated.

[00:32:00] Speaker 01:
She's found credible. So all the harm she suffered in Sri Lanka that cumulatively rise to the level of persecution required by the Ninth Circuit, Your Honor.

[00:32:13] Speaker 00:
And the BIA decision does not mention gunpoint at all. I just reviewed it. Correct?

[00:32:21] Speaker 01:
Yes. Yes, Your Honor. Yes.

[00:32:25] Speaker 04:
All right.

[00:32:25] Speaker 01:
And also, finally, I want to point out to the cat relief, Your Honor, in my brief, the opening brief, I've stated the petitioner certainly experienced harm in the past. by the government supporters in Sri Lanka that if the petitioner is forced to return to Sri Lanka, she would suffer torture.

[00:32:47] Speaker 01:
In fact, I point – I referred in that – in the argument by reference of what happened during the asylum argument, Your Honor. Those are the facts that turns applicable here.

[00:33:04] Speaker 04:
All right. We thank counsel for their arguments. The case just argued is submitted.