[00:00:00] Speaker 03:
Good morning, Your Honors.

[00:00:03] Speaker 03:
Thank you, and may it please the Court, Amy Hutchinson on behalf of the Petitioner.

[00:00:07] Speaker 03:
This case presents a challenge to the agency's conclusion that Petitioner is not more likely than not to be tortured if removed to Mexico, as well as to the immigration judge's denials of his motions for subpoena and a continuance.

[00:00:23] Speaker 03:
Assuming arguendo that petitioner cannot show that the agency overlooked relevant evidence, so moving directly to the subpoena and the continuance, the question is whether in denying petitioner's motion for subpoena and alternative motion for continuance, the IJ abused his discretion and or violated petitioner's due process rights and that petitioner was prejudiced.

[00:00:49] Speaker 03:
To reiterate, Petitioner filed an unopposed motion to continue on July 7th, 2016, at which time he was detained.

[00:00:56] Speaker 03:
That was his first motion to continue.

[00:00:58] Speaker 03:
The second motion to continue was filed on September 20th, 2017, mere days before his individual hearing, but based on a recent development in his case, which did require continuance.

[00:01:11] Speaker 03:
The third continuance was filed April 25th, 2018.

[00:01:15] Speaker 03:
Regarding the 2017 continuance,

[00:01:19] Speaker 03:
On June 6, 2017, Petitioner filed a witness list naming himself, his wife, and a government detective named Detective Carrera, who had agreed to testify.

[00:01:29] Speaker 03:
On August 1, he filed a motion for subpoena for two additional agents who he wished to testify on his behalf.

[00:01:36] Speaker 03:
On August 21, the IJ denied the motions for subpoenas with no explanation whatsoever.

[00:01:41] Speaker 03:
Then, days before the individual hearing, Detective Carrera notified Petitioner's counsel that he could no longer testify.

[00:01:48] Speaker 03:
Based on that development, Petitioner requested a continuance to submit formal requests pursuant to United States XREL-2E.

[00:01:58] Speaker 03:
That motion was granted, this is the second continuance, and formal requests were made in February of 2018 and when Council did not get a response again in April of 2018.

[00:02:08] Speaker 03:
As Petitioner's Council explained in her motion before the immigration judge,

[00:02:14] Speaker 03:
The government normally at that time responded to TUI requests and did at least give a declaration.

[00:02:18] Speaker 03:
In this case, they did not.

[00:02:21] Speaker 03:
So on April 25th, 2018, roughly three weeks before the individual hearing, petitioner filed the third overall motion to continue as an alternative, along with a second motion for subpoena, which included all three agents.

[00:02:35] Speaker 03:
The original included just the two.

[00:02:38] Speaker 03:
petitioner and the alternative motion to continue was filed so that petitioners council could continue to try and follow up with the government and get a response to the TUI request.

[00:02:48] Speaker 00:
The IJ denied.

[00:02:49] Speaker 00:
Well, apparently the IJ, and I'm trying to be discreet in the way that I say this because I'm aware that cooperation isn't always looked upon.

[00:03:03] Speaker 00:
in a positive way in certain circles.

[00:03:05] Speaker 00:
But it appears that the IJ's findings that your client had worked with a certain agency and that the Sinaloa cartel was threatening to him, apparently that was accepted by the IJ.

[00:03:20] Speaker 00:
Why was it unreasonable for the IJ to find that the requested subpoenas were not essential?

[00:03:26] Speaker 00:
Because apparently

[00:03:27] Speaker 00:
The way I sort of see this case, and I'm not speaking for my colleagues and we don't conference before we come to oral argument, but certain things don't really appear to be in dispute with the IJ or the BIA about your client's contentions, about your client's relationships and work that your client

[00:03:54] Speaker 00:
you know, from a very young age was selling drugs and things that occurred and that he received a certain benefit at some point on a case that was five and a half years and got down to less than a year or whatever.

[00:04:10] Speaker 00:
So that all appears to be there so, but it moves on from there that the Sinaloa Cartel, that there was evidence that,

[00:04:22] Speaker 00:
has a horizontal organization and that one subgroup is not fully cognizant of what is going on in other subgroups.

[00:04:30] Speaker 00:
So that it was horizontal as opposed to vertical.

[00:04:34] Speaker 00:
And so the IJ based on that found that your client could safely relocate to an area in Mexico where the cartel was not dominant.

[00:04:44] Speaker 00:
I don't see in the record any opposition from your part that

[00:04:52] Speaker 00:
that it wasn't a horizontal occupation.

[00:04:57] Speaker 00:
So I kind of look at this in the way that the IJ was there.

[00:05:01] Speaker 00:
They see the witnesses.

[00:05:02] Speaker 00:
Like when you're a trial judge, you see people.

[00:05:05] Speaker 00:
And if the IJ had decided that he couldn't be safe, and I were reviewing that, I would probably have to defer to that.

[00:05:13] Speaker 00:
And then based on hearing the same thing, that he could relocate

[00:05:18] Speaker 00:
I kind of see this as a standard of review issue, because I'm not actually hearing those witnesses.

[00:05:24] Speaker 00:
So I could support either decision, and I might have decided it differently, but why isn't that the case here?

[00:05:32] Speaker 03:
So I think we're talking potentially about two different things, or rather molding some of the issues together.

[00:05:37] Speaker 03:
The way I had viewed the cases

[00:05:40] Speaker 03:
If we're just looking at the decision itself, whether or not he's more likely than not to be tortured in Mexico, and we're assuming that there was no evidence that was excluded, we're just looking at the evidence in the record, the argument on petitioner's behalf would be that the IJ did, yes, make those findings that it was horizontal, relying on the country conditions in the record, and the things that he cites in the record do say what he says.

[00:06:05] Speaker 03:
But there are certain pieces of evidence that are potentially dispositive or at least, if not dispositive, very probative and very relevant that our view is that he did not look at.

[00:06:16] Speaker 03:
And some of the evidence that he didn't cite is on the very same page as what he did.

[00:06:21] Speaker 03:
So, for example, if you would like some examples.

[00:06:24] Speaker 03:
The immigration judge cited that, yes, it's horizontal, and so some subgroups of the Sinaloa Cartel might not know what's happening in the others.

[00:06:33] Speaker 03:
But the record also shows that the Sinaloa, oh, and I'm sorry, and that the Sinaloa Cartel is predominantly in the Pacific Coast and only in 17 states.

[00:06:44] Speaker 03:
The record also shows that the Sinaloa Cartel, yes, a horizontal structure, but it's allied factions frequently working together

[00:06:53] Speaker 03:
They're just in control of different aspects of the drug production.

[00:06:56] Speaker 03:
That's at 362, saying that it is multiple leaders.

[00:07:02] Speaker 03:
So the senior lower cartel is more like a federation with multiple leaders who form something analogous to a board of directors.

[00:07:08] Speaker 03:
That's at 367.

[00:07:09] Speaker 02:
Sorry, can I interrupt?

[00:07:11] Speaker 02:
Because I just want to clarify what's going on here.

[00:07:13] Speaker 02:
So we have two issues in this case, as I understand it.

[00:07:15] Speaker 02:
One is about whether the expert could testify.

[00:07:19] Speaker 02:
The other is just you're flat out

[00:07:22] Speaker 02:
challenge to the cat determination.

[00:07:23] Speaker 02:
It sounds like what you're talking about now is just your flat out challenge to the cat determination.

[00:07:29] Speaker 03:
Yes, and I think that might have been my confusion to your question, Judge Callahan.

[00:07:32] Speaker 03:
It seemed like we were maybe combining the challenge to the cat determination and then previously had been talking about whether or not evidence was excluded and whether or not the continuance or the subpoena was necessary.

[00:07:45] Speaker 02:
The continuances and the subpoena.

[00:07:46] Speaker 02:
So let's just start with that.

[00:07:47] Speaker 02:
Let's separate for a second.

[00:07:49] Speaker 02:
So the subpoena continuance issue.

[00:07:52] Speaker 02:
Do you have any argument that the experts would have testified to this relocation question that Judge Callahan was asking?

[00:08:00] Speaker 03:
So this is I think the key question here is how do we define what evidence is essential and can we now with the benefit of hindsight look back and say well they definitely would have testified that because we know that that's what was missing.

[00:08:13] Speaker 03:
I think that's a hard call to make.

[00:08:15] Speaker 03:
But to a point made in a previous oral argument this morning you know we can't predict what the judge is ultimately going to decide.

[00:08:22] Speaker 03:
The role of a subpoena is to get evidence that we can't otherwise get that we believe is necessary.

[00:08:28] Speaker 03:
And of course, it's not we think it's necessary isn't the bottom line.

[00:08:32] Speaker 03:
It's whether the judge thinks it's necessary or essential.

[00:08:36] Speaker 02:
So just to follow up on that, though, we would have to say it was an abuse of discretion to deny the continuance or the subpoenas.

[00:08:44] Speaker 02:
And if you weren't saying to the judge, these experts are going to testify about relocation.

[00:08:49] Speaker 02:
I'm having trouble figuring out how it was an abuse of discretion.

[00:08:52] Speaker 03:
So I think the other follow-up question is not just whether it's essential, but how much explanation does a respondent, or sorry, the petitioner need to put in a motion for a subpoena?

[00:09:02] Speaker 04:
What he did put is that... He did say that respondent expects that the agents will testify that these TCOs have similarly known reputations for violent responses against individuals who are perceived to represent a threat to the organization who have otherwise harmed the organization.

[00:09:18] Speaker 04:
And also that they were going to elicit testimony by the proper identification of the specific organized crime groups called into question and some of the specific facts for this claim may be difficult to corroborate.

[00:09:36] Speaker 04:
So it seems to me the problem is that that discussion in the text of the motion

[00:09:43] Speaker 04:
certainly gives rise to the notion that they would have been testifying about these groups and how they're organized and so on.

[00:09:50] Speaker 04:
The actual request for a leave is more limited, and it's from that that the IJ and the government seem to say that they weren't going to testify to anything about the nature of the groups.

[00:10:04] Speaker 04:
So does that matter?

[00:10:06] Speaker 04:
There are two different pieces to this.

[00:10:12] Speaker 03:
Yes, so in filing a motion for subpoena, a respondent in removal proceedings does need to say what evidence they hope to elicit.

[00:10:20] Speaker 03:
Now, it's not clear how specific they need to be.

[00:10:24] Speaker 03:
My argument, though, is that the petitioner did identify that the purpose of the testimony was in part to discuss the nature and extent of their work as an informant, including the extent of his exposure.

[00:10:36] Speaker 03:
We did not write in the motion for a subpoena, I will ask specifically, will they face, will he face harm everywhere in Mexico?

[00:10:43] Speaker 03:
But I don't know that that's what the standard is.

[00:10:45] Speaker 03:
I don't think that was required.

[00:10:46] Speaker 03:
I think we needed to put the court on notice of what we hope to gain.

[00:10:49] Speaker 03:
And again, we don't know in advance what the judge is going to decide.

[00:10:55] Speaker 03:
But now that we do know that it all came down to this issue of relocation, I think it's very reasonable to think that a question would have been asked and that would have changed the outcome of the proceedings.

[00:11:08] Speaker 04:
Because the relocation question, as the IJ analyzed it, turned on the understanding of how this group operated.

[00:11:14] Speaker 04:
That is my understanding correct.

[00:11:16] Speaker 04:
And the motion, at least in part, seems to suggest that that's what they're going to testify to.

[00:11:25] Speaker 03:
I agree.

[00:11:28] Speaker 04:
And not specifically whether they were horizontal or vertical or anything like that.

[00:11:33] Speaker 03:
No, it was more the identification of the groups.

[00:11:36] Speaker 04:
But there are requests for relief.

[00:11:37] Speaker 04:
This is what I wonder about.

[00:11:39] Speaker 04:
The request for relief is that the court grant a request to subpoena which orders these agents to provide a factual description of the following, 1, 2, 3, 4, 5, and that doesn't really include this question of how these groups operate.

[00:11:53] Speaker 03:
That's correct.

[00:11:54] Speaker 03:
I think it would have to be, and I don't know that the question is exactly how they operate, but whether or not they operate everywhere and whether or not they're somewhere in Mexico that respond, or sorry, excuse me, petitioner could safely relocate.

[00:12:06] Speaker 03:
I think it is reasonable to think that in testifying about the extent of petitioners work as an informant,

[00:12:12] Speaker 03:
and the extent of his exposure, there would be discussion about whether it's safe to go anywhere, particularly after the petitioner testified that one of the agents told him, do not go back to Mexico under any circumstances.

[00:12:26] Speaker 02:
Once the IJ was thinking about this relocation issue and seems to think that it was okay to deny the continuances because everything in the declaration would have been taken as true and that wasn't about relocation,

[00:12:42] Speaker 02:
Did you have an opportunity to say to the BIA, wait a second, the expert would have said X about relocation?

[00:12:49] Speaker 02:
Because I didn't see anything that was submitted to say that this was missed, but maybe I missed it.

[00:12:54] Speaker 03:
I do believe that in the BIA brief, and I have it here, this is going to be at AR 30.

[00:13:01] Speaker 03:
He does, excuse me, the petitioner does say, I'm sorry, let me find it here.

[00:13:08] Speaker 04:
This is the brief to the BIA?

[00:13:09] Speaker 03:
This is the brief to the BIA, yes.

[00:13:11] Speaker 03:
So page 31 of the administrative record, what he says is, I'm looking at the IJ's order, blah, blah, that's the, Mr. Medina Mendoza requests the BIA remand with instructions for the IJ to issue subpoenas, including testimony why the requested witnesses advise Mr. Medina not to travel to Mexico, which I do believe covers kind of this, I mean, that covers internal relocation.

[00:13:35] Speaker 02:
But you never said,

[00:13:36] Speaker 02:
like we want reopening because there's this extra evidence that our expert I'm not exactly sure what the procedures would be between the BIA between the IJ and the BIA for you because I've not done that level but it seems like

[00:13:50] Speaker 02:
there was never a showing that the expert actually would have testified to something that speaks to the gap in what the agency thinks was missing, the gap in your case.

[00:14:00] Speaker 02:
And I'm struggling to see how we can say, oh, yes, there was an error here that was harmful when we don't know that actually any more evidence would have been given.

[00:14:10] Speaker 03:
And I think that's the crux of the issue is we don't know because the evidence didn't get in.

[00:14:14] Speaker 03:
And we could never get any evidence from the government without the subpoena.

[00:14:18] Speaker 04:
I guess what we're asking is because you have filed a motion to reopen or a motion for remand with a declaration from... The problem is these people weren't talking to you, I see it.

[00:14:27] Speaker 03:
Yes.

[00:14:28] Speaker 04:
Since they weren't talking to you, you couldn't make any representations about what they would say.

[00:14:32] Speaker 04:
That's correct.

[00:14:34] Speaker 03:
And just to be clear, the appeal to... That's why you needed a subpoena.

[00:14:37] Speaker 03:
Okay.

[00:14:37] Speaker 03:
The appeal to the BIA was requesting remand so that the subpoenas could be issued.

[00:14:43] Speaker 02:
Okay, and so now we just went down the subpoena and continuance route.

[00:14:49] Speaker 02:
The other thing that you seemed to be talking about earlier, though, was your direct challenge just to the cat determination on the current record.

[00:14:57] Speaker 02:
And you think we can say the record compels the conclusion that he can't relocate?

[00:15:03] Speaker 03:
I think it's a harder sell, but I do think that there's evidence in the record that would be very, very probative

[00:15:09] Speaker 03:
that speaks to the exact opposite of what the IJ said.

[00:15:12] Speaker 03:
Specifically, the IJ says, well, it's hierarchical, so they don't necessarily communicate with one another.

[00:15:18] Speaker 03:
Other evidence in the record says, yes, it's hierarchical, but these are interconnected units, and they all answer to the same person, and they have this essentially country-wide surveillance network.

[00:15:31] Speaker 04:
And also, there's evidence in the record that they have international people in various places where they're not

[00:15:39] Speaker 04:
I mean, the evidence about that they have 17 states is that they control the 17 states.

[00:15:46] Speaker 04:
It isn't that they're not physically, nobody from them ever goes to the other states.

[00:15:52] Speaker 04:
I agree.

[00:15:53] Speaker 00:
Would your argument be stronger if your client had not engaged in being a drug dealer for the same people that he's claiming are going to do him in?

[00:16:07] Speaker 00:
You know, as opposed to, say,

[00:16:10] Speaker 00:
a person that just witnessed a crime by the cartel and had never been engaged in that.

[00:16:17] Speaker 00:
I can't help but think that that might have weighed a bit on the, you know, he's gotten some benefit already by virtue for, we could say double agentine.

[00:16:30] Speaker 03:
My off the cuff response would be that I think it would be weaker because if, and just to paraphrase what you said,

[00:16:37] Speaker 03:
You're saying that if there wasn't a prior connection with the cartel?

[00:16:42] Speaker 00:
Well, I don't think he's the same as someone that has never worked for the cartel and is just a person that's living in Mexico, sees a crime, and then that type of thing.

[00:16:53] Speaker 00:
I mean, he's a bit tarnished by everything he did by the cartel.

[00:16:59] Speaker 00:
Then he informed.

[00:17:01] Speaker 00:
Then he got benefit.

[00:17:04] Speaker 00:
Anyway, we've gone two minutes over.

[00:17:07] Speaker 00:
So you basically don't have any time, but I'm going to give you a minute for rebuttal.

[00:17:11] Speaker 00:
Okay.

[00:17:12] Speaker 00:
Thank you.

[00:17:12] Speaker 00:
Thank you.

[00:17:19] Speaker 00:
Good morning.

[00:17:20] Speaker 01:
Good morning.

[00:17:21] Speaker 01:
May it please the court.

[00:17:23] Speaker 01:
Katie Rose Talley on behalf of the respondent.

[00:17:26] Speaker 01:
There are two primary claims at issue today.

[00:17:28] Speaker 01:
The courts already discussed them both.

[00:17:29] Speaker 01:
That's the denial of the deferral under CAT and then the

[00:17:33] Speaker 01:
due process claim with respect to the two procedural motions that were denied.

[00:17:38] Speaker 01:
And I want to go ahead and start with the second request for subpoena and third request for continuance because that's where the petitioner focused today.

[00:17:46] Speaker 01:
And as the court noted, the IJ is not legally permitted under the regulations to issue a subpoena unless he first determines that the proposed evidence outlined in the subpoenas is going to be essential.

[00:18:02] Speaker 01:
Here, the I.J.

[00:18:03] Speaker 01:
correctly determines that this evidence was cumulative, not essential, and the record bears that out because the I.J.

[00:18:10] Speaker 01:
found for the petitioner on all facts that the petitioner told the I.J.

[00:18:15] Speaker 01:
and the subpoenas he sought to prove through the law enforcement officer's testimony.

[00:18:26] Speaker 04:
a fair statement with regard to the specific request for relief, probably, but not with respect to the motion that preceded it.

[00:18:38] Speaker 04:
What they expect the agents to testify to was broader and would seem to encompass some of the issues that turned out to be dispositive.

[00:18:49] Speaker 01:
Your Honor, I have two thoughts on that question.

[00:18:51] Speaker 01:
So first, if you look at the motion, I think it's page

[00:18:55] Speaker 01:
667 of the record, it does state that he also expects to prove that the cartel has a reputation for violent responses against those who harm the cartel.

[00:19:05] Speaker 01:
That is distinct from saying, I'm going to offer evidence about the structure and geographic scope of the cartel and its reach throughout the entire country.

[00:19:15] Speaker 01:
So even taking the motion on its face, I don't think that it fairly puts the IJ on notice that he intended to offer evidence about the cartel's geographic reach, dominance, scope, and structure.

[00:19:27] Speaker 01:
And for context, we can look to the witness that the petitioner did disclose to testify on this point.

[00:19:35] Speaker 01:
If you look at page 249 of the record in his witness list, the petitioner originally gave the IJ, he disclosed an expert witness, Sylvia Longmire, who he said was an expert on the Sinaloa cartel and who would testify specifically as to the cartel's operations throughout Mexico.

[00:19:52] Speaker 01:
In fact, the sole basis for the first motion for a continuance was that Ms.

[00:19:56] Speaker 01:
Longmire was not going to be able to make the original hearing date.

[00:19:59] Speaker 01:
And so that was the basis on which he got a continuance of over a year to present her testimony.

[00:20:05] Speaker 01:
He ultimately didn't offer that expert witness to testify about the cartel's operations.

[00:20:10] Speaker 01:
And now he can't remedy that after the fact by trying to turn and convert these three law enforcement officers into testimony about something he never put the IJ on notice.

[00:20:21] Speaker 01:
And further to that point, I think it might be helpful to think about

[00:20:26] Speaker 01:
an alternate universe in which the IJ grants the subpoenas.

[00:20:30] Speaker 01:
What would that actually get the petitioner?

[00:20:32] Speaker 01:
If you look at all three subpoenas, and they're at pages 621, 623, 625 of the record, they all say that they can be satisfied in lieu of testimony with a simple written declaration as to five facts.

[00:20:46] Speaker 01:
Those facts go to the nature, extent, and duration of the petitioner's cooperation with the DEA, his role in the investigations and to the cartel,

[00:20:55] Speaker 01:
and whether his informant identity became known to anyone in a cartel.

[00:21:00] Speaker 01:
Those facts were all found in favor of him by the IJ.

[00:21:04] Speaker 01:
So had the IJ granted these subpoenas and he had gotten written declarations from the three law enforcement officers that have facts as to all five of those points, it wouldn't change the bottom line here because those facts were already found in favor of him by the IJ.

[00:21:20] Speaker 02:
So turning to the cat, the direct challenge to the cat issue.

[00:21:26] Speaker 02:
I guess I'm a little bit confused about why the government is not worried that he is.

[00:21:31] Speaker 02:
I mean, despite all this, and maybe the continuances could be denied, but it seems pretty likely that he is going to be tortured in Mexico, right?

[00:21:40] Speaker 02:
I guess I'm a little confused why the government wants to send an informant who has helped the government to probably be killed by the cartel.

[00:21:49] Speaker 01:
Your Honor, we're not disagreeing with the IJ's determination that if Petitioner was relocated,

[00:21:55] Speaker 01:
to the portion of the country that is controlled by the Sinaloa cartel members that the particular subgroup of the cartel that is targeting him could potentially reach and harm him there.

[00:22:05] Speaker 01:
We're not disputing that determination by the IJ, but we do think that the IJ was correct and that substantial evidence in the record supports his determination, including, I might add, evidence he cites that was submitted by the petitioner as well as the petitioner's own testimony.

[00:22:20] Speaker 01:
That shows both the cartel's geographic reach is limited

[00:22:24] Speaker 01:
and that the specific subgroup targeting him would not necessarily be able to make incursions into territory that is controlled in these other half of the Mexican states by... Those words about incursions and control, all they have to do is go there.

[00:22:41] Speaker 04:
I mean, they're not controlling the place, but they can go there, and they apparently do go there.

[00:22:47] Speaker 04:
I mean, I think the record demonstrates that they don't necessarily stay in the 17 states they control.

[00:22:52] Speaker 04:
So the evidence as to the organization and control history of this group doesn't seem terribly probative of whether they can go from one place in Mexico to another place in Mexico if they're really after this guy.

[00:23:14] Speaker 04:
Your Honor, I think there are a couple of points that are... And you think they would be really after this guy.

[00:23:19] Speaker 01:
Your Honor, there are a couple of points that I think are particularly salient here.

[00:23:23] Speaker 01:
The IJ found based on record evidence, including petitioner's own testimony, that it is not the entire, that there was not evidence that the entire Sinaloa Cartel was aware of this informant and was targeting him.

[00:23:33] Speaker 01:
In fact, it was one specific subgroup on which he informed whose drugs were lost in a bus that he assisted with who was targeting him.

[00:23:41] Speaker 01:
That was the subgroup that captured us.

[00:23:42] Speaker 04:
But I thought that wasn't the only problem.

[00:23:44] Speaker 04:
The problem was what he had done to help the American government to put Mexican drug dealers

[00:23:53] Speaker 04:
in prison.

[00:23:55] Speaker 04:
It wasn't just the specific thing he had done that led to that problem.

[00:24:00] Speaker 01:
But the evidence in the record, including in Petitioner's own testimony, was that the specific subgroup was after him, the one that lost drugs in the bust where the informant identity was released.

[00:24:12] Speaker 01:
That subgroup was the one that kidnapped his father, that made demands that he return to Mexico, ultimately releasing him without that demand being satisfied.

[00:24:20] Speaker 04:
This is a rather dramatic record as to

[00:24:23] Speaker 04:
what happened, particularly the kidnapping of the father and all of that.

[00:24:27] Speaker 01:
I can appreciate that, Your Honor, but I think if we go back to the record, again, the standard here is that if you look at the record as a whole, it must compel any or all reasonable fact-finders to find for the petitioner or that the IJ erred.

[00:24:41] Speaker 01:
That's not true here.

[00:24:42] Speaker 01:
The record, there's certainly evidence in the record that supports the IJ's determination.

[00:24:45] Speaker 00:
So I think your brief states there is, quote-unquote, affirmative evidence that Medina can safely relocate

[00:24:51] Speaker 00:
quote, to areas outside of the Sinaloa cartel's zone of dominance, unquote.

[00:24:58] Speaker 00:
So what's the affirmative evidence?

[00:25:00] Speaker 00:
Or is there actually affirmative evidence that he can safely relocate?

[00:25:04] Speaker 00:
Or is the agency's finding based on a lack of evidence that he cannot safely relocate?

[00:25:10] Speaker 01:
We do think there is affirmative evidence that relocation is possible, Your Honor.

[00:25:13] Speaker 01:
And it comes from these twin specific factual findings that were made by the IJ.

[00:25:18] Speaker 01:
First, that the cartel's scope

[00:25:21] Speaker 01:
is confined predominantly in the 17 states on the Pacific coast, and that its rivals are the ones who control the other states.

[00:25:29] Speaker 01:
And if you look at page 867 of the record, it states that while there have been some brief bloody incursions by these rival sides trying to encroach on each other's territory,

[00:25:40] Speaker 01:
that the dominance of the rivals in these other states do not allow for easy travel or easy access to these other states in Mexico.

[00:25:50] Speaker 04:
And your honor pointed out... Where is the evidence that it doesn't allow for easy travel?

[00:25:54] Speaker 04:
I understand that they don't control the drug trafficking, but what affirmative evidence is there that members of the Sinaloa Cartel can't go to these other places and shoot somebody?

[00:26:07] Speaker 01:
Well, two responses to that, Your Honor.

[00:26:09] Speaker 01:
First, we think that the burden of proof to show likelihood of torture remained on Petitioner.

[00:26:14] Speaker 01:
So if Petitioner thought it was possible for the specific subgroup of the Sinaloa Cartel targeting him to freely travel among states that are controlled by the cartel's enemies, the burden was on him to produce that evidence.

[00:26:25] Speaker 01:
But if you look at page, I think 867 of the record is helpful for this.

[00:26:28] Speaker 01:
I'm sorry?

[00:26:29] Speaker 01:
867 of the record is helpful for this because it talks about, to the extent that there were incursions, that there were bloody skirmishes.

[00:26:37] Speaker 01:
attempting to encroach on each other's territory.

[00:26:39] Speaker 04:
That doesn't suggest that the Sinaloa Cartel may freely walk into... I assume that's about control of the drug traffic in those areas.

[00:26:46] Speaker 04:
That's what they're trying to control.

[00:26:47] Speaker 04:
That's not particularly pertinent here.

[00:26:52] Speaker 01:
Well, and Your Honor also noted that the Sinaloa Cartel has presence internationally in a variety of countries.

[00:26:57] Speaker 01:
That it, you know, including in the United States, the record supports that.

[00:27:01] Speaker 01:
And yet, when petitioner was asked, you know, the Sinaloa Cartel has presence in the United States.

[00:27:06] Speaker 01:
they know you're in Arizona, correct?

[00:27:07] Speaker 01:
They haven't been able to find you, correct?

[00:27:10] Speaker 01:
His answers to those questions were yes.

[00:27:13] Speaker 01:
If you look at pages 213 through 214 of the record, I think also 198 through 207 through 209 shows that, sorry, 217 through 218 shows that even though they knew he was in Arizona, they had presence in the US, they were not able to locate him.

[00:27:33] Speaker 01:
So I think that's an additional testimony from petitioner himself supporting that he has not shown the specific subgroup of the cartel that is targeting him would be able to locate and harm him in states in Mexico that are controlled by that cartel's rivals.

[00:27:49] Speaker 00:
Where is the petitioner now?

[00:27:52] Speaker 01:
A petitioner is not in ICE custody.

[00:27:54] Speaker 00:
That he's what?

[00:27:55] Speaker 01:
He is not in ICE custody.

[00:27:57] Speaker 00:
No, but he's not in Mexico?

[00:28:00] Speaker 01:
I'm not sure.

[00:28:02] Speaker 01:
We don't know.

[00:28:03] Speaker 01:
Yeah, I do not know, Your Honor, whether he is still in the United States or not.

[00:28:07] Speaker 01:
I just know that he's not in our custody.

[00:28:09] Speaker 00:
Okay.

[00:28:12] Speaker 00:
So I'm curious again to just go over about the continuous that was given for a year to get an expert and what was that specific about and then they never called an expert.

[00:28:25] Speaker 01:
That's right, Your Honor.

[00:28:26] Speaker 01:
So the petitioner early on in the case disclosed a witness list that had an expert witness, Ms.

[00:28:31] Speaker 01:
Longmire, who was going to testify as to the operations of the cartel in the country.

[00:28:35] Speaker 01:
The first motion for a continuance, which we did not oppose, stated the only basis for the continuance was that Ms.

[00:28:42] Speaker 01:
Longmire was not going to be able to make the original hearing date to testify.

[00:28:46] Speaker 01:
The IJA granted over a year-long continuance to make sure that they could secure her testimony.

[00:28:51] Speaker 01:
But ultimately, they did not present that testimony.

[00:28:54] Speaker 01:
about the cartel's operations in Mexico.

[00:28:56] Speaker 01:
They did not offer Ms.

[00:28:56] Speaker 01:
Longmire as a witness.

[00:28:58] Speaker 01:
Instead, what you are now hearing in an argument raised for the first time before this court that these law enforcement officers who were going to testify about his cooperation and informant activities would have potentially testified about the cartel's operations and geographic scope in Mexico.

[00:29:18] Speaker 01:
That's certainly not in the subpoenas.

[00:29:19] Speaker 01:
And to Judge Friedland's question earlier to petition his counsel,

[00:29:23] Speaker 01:
This was not even an argument that was properly raised before the board, so it's completely unexhausted and barred by the statutory exhaustion bar.

[00:29:29] Speaker 01:
The closest I think you could say that petitioner gets before the board is in the brief at page 33 of the record where petitioner says that respondent likely would have inquired if these officers had testified about the control, the cartel's operations.

[00:29:47] Speaker 01:
But what the respondent might have asked these

[00:29:50] Speaker 01:
these officers had they testified, which they wouldn't have had to under the subpoenas, is not the same as arguing to the board that they had information relevant to the cartel's operations and geographic scope in Mexico.

[00:30:02] Speaker 04:
One question is that the, this is a cat claim.

[00:30:08] Speaker 04:
The relocation issue is part of the petitioner's obligation to demonstrate that he was more likely or not to be.

[00:30:19] Speaker 04:
tortured while in Mexico, but it's only part of it, right?

[00:30:22] Speaker 04:
It's not independently required.

[00:30:25] Speaker 04:
So what's supposed to happen, as I understand it, is they're supposed to take all of his evidence together.

[00:30:34] Speaker 04:
What happened here is that, as I understand it, the IJ basically recognized that there was very good reason for him to fear that these people would like him

[00:30:49] Speaker 04:
did if he got to Mexico, but so he relied pretty much only on the relocation question.

[00:31:03] Speaker 04:
Can he do that?

[00:31:04] Speaker 04:
When there was such strong, I mean, this is an unusually strong case of somebody who cooperated with the federal government a lot and had

[00:31:18] Speaker 04:
true reason to think that there were bad people after him.

[00:31:22] Speaker 04:
And the I.J.

[00:31:23] Speaker 04:
didn't really doubt any of that.

[00:31:24] Speaker 04:
He just thought they weren't going to be able to manage it.

[00:31:28] Speaker 01:
That's right, Your Honor.

[00:31:29] Speaker 01:
And I want to point out that the I.J.

[00:31:31] Speaker 01:
did expressly state that he has considered the totality of the testimony and the other... Well, that's what I'm asking.

[00:31:36] Speaker 04:
But he really didn't.

[00:31:37] Speaker 04:
He really only relied on... He didn't, anywhere in his reasoning, say, you know, that

[00:31:47] Speaker 04:
Even despite the fact that there are very strong reasons to think that there are bad people who would like this guy dead and who have some presence in Mexico, the likelihood that he's being able to relocate is strong enough to counteract that.

[00:32:07] Speaker 01:
He did say that, Your Honor.

[00:32:08] Speaker 01:
We would point specifically to page 67 and 68 of the record.

[00:32:11] Speaker 01:
Those pages of the IJ's opinions are key for this point.

[00:32:15] Speaker 01:
And as this court stated in Cruz versus Bondi, in Sanfonsi's Salazar versus Garland, and recently just last year in Edgar GC versus Bondi, this court does not stand in the shoes of the IJ and reweigh record evidence.

[00:32:30] Speaker 01:
If there's evidence that cuts both ways, even if this court, you know, if it were reviewing it de novo in the first instance, would find the weight, you know, more favorable.

[00:32:38] Speaker 04:
So where on the record did you say this is?

[00:32:42] Speaker 01:
In the IJ's opinion?

[00:32:43] Speaker 04:
Yes.

[00:32:43] Speaker 01:
pages 67 through 68 of the record, you see the IJ recognizing that the, explaining that he's considered the totality of the testimony and other record evidence.

[00:32:53] Speaker 01:
He recognizes and acknowledges the petitioner's fear and that had he relocated to areas where this particular subgroup of the cartel were dominant and active,

[00:33:05] Speaker 01:
there maybe there would be a concern, but that relocation to these other states where the subgroup might not be able or would not be able to easily reach and harm him supported a finding that relocation was possible and that he had not met his burden of showing a more likely than not risk of torture.

[00:33:23] Speaker 02:
Some of it's at the bottom of 66, I think.

[00:33:26] Speaker 02:
Can I ask a question about this exhaustion issue?

[00:33:28] Speaker 02:
So I was asking questions that kind of go to exhaustion.

[00:33:31] Speaker 02:
But I don't see anything in the government's brief saying that this is not exhausted.

[00:33:35] Speaker 02:
And I think exhaustion is claims processing, right?

[00:33:38] Speaker 02:
So I don't know that we would reach exhaustion on our own.

[00:33:41] Speaker 02:
Or can you point me to something in your brief that makes an exhaustion argument?

[00:33:43] Speaker 01:
We do make exhaustion arguments.

[00:33:45] Speaker 01:
Several points in the brief.

[00:33:46] Speaker 01:
I know they're in some of the footnotes throughout our brief.

[00:33:49] Speaker 02:
OK, maybe I missed it because they're in footnotes.

[00:33:51] Speaker 02:
Do you remember?

[00:33:51] Speaker 02:
You think they're in footnotes in the brief?

[00:33:54] Speaker 01:
There were some footnotes in our brief.

[00:33:57] Speaker 01:
Our brief is DOC at 43, I believe.

[00:33:59] Speaker 01:
Oh, you're talking, wait, to us?

[00:34:01] Speaker 01:
I'm looking at your brief to us.

[00:34:02] Speaker 01:
Is that what you're talking about?

[00:34:04] Speaker 01:
Yes, Your Honor.

[00:34:06] Speaker 01:
I don't have the specific footnotes at the top of mind, but I know we've argued throughout that there were several points that were not exhausted or were waived or forfeited.

[00:34:15] Speaker 01:
The arguments about the CRS report and the kidnapping, for instance, were waived.

[00:34:21] Speaker 01:
We also specifically argue that

[00:34:23] Speaker 01:
that he did not present.

[00:34:25] Speaker 02:
Okay, I see a waiver footnote about asylum.

[00:34:29] Speaker 02:
Okay, I'm asking about, so the exhaustion argument that you made a bit earlier, sort of following up on my questions, was about whether the idea that the experts would have testified about relocation, whether that was exhausted to the board.

[00:34:42] Speaker 02:
And you're saying somewhere in your brief there's something that says- We do say that he did not raise this argument to the board.

[00:34:49] Speaker 02:
Okay, I'll look again.

[00:34:50] Speaker 01:
I apologize, Your Honor, for not having that particular page come to mind.

[00:34:52] Speaker 01:
But I believe we did say that he did not raise either to the IJ or to the board the argument now that he's saying that these agents could offer testimony for which he was originally going to offer the expert witness.

[00:35:06] Speaker 04:
The IJ also said that they may harm him if he returns to the Mexicali region.

[00:35:12] Speaker 04:
But in fact, the father's kidnapping was like 800 miles from the Mexicali region.

[00:35:17] Speaker 01:
That's right, Your Honor.

[00:35:18] Speaker 01:
We don't read that as the IJ saying the only region in Mexico.

[00:35:20] Speaker 04:
Well, he also earlier said, he did seem confused about this because he also earlier said something about he was from Mexicali and whatever the name of the other place is, as if they were one place, but they're only 800 miles apart.

[00:35:33] Speaker 01:
He does acknowledge that the petitioner, I believe, was originally from Mexicali.

[00:35:37] Speaker 01:
Of course, the Sinaloa Cartel is headquartered in Culiacan.

[00:35:41] Speaker 01:
And the IJ more generally recognized the fear that if he had been relocated to a state in which, one of the Pacific Coast states in which the cartel, the Sinaloa cartel has control, that the specific subgroup of the cartel who was after him might be able to harm him in those states, including Mexicali, not limited to Mexicali.

[00:36:02] Speaker 04:
We know that this group of people involved with Mexicali were able to harm his father 800 miles away.

[00:36:11] Speaker 01:
In the cartel stronghold in Culiacan.

[00:36:14] Speaker 01:
Yes, but that is still within the area, the states of Mexico in which the Sinaloa Cartel is.

[00:36:19] Speaker 04:
Yes, but that seems inconsistent with this notion that there were little groups in these various areas that didn't talk to each other.

[00:36:25] Speaker 01:
Well, there were also, there was also, this goes to a question, this, Your Honor, I think ultimately shows that the record has evidence that could potentially be read to support both sides, but there's certainly evidence to support the IGES conclusion.

[00:36:37] Speaker 01:
If you look, for instance, at petitioner's own testimony,

[00:36:39] Speaker 01:
where he states that the cartel subgroup who captured his father eventually releases his father because they were afraid when a different member of another subgroup of the Sinaloa Cartel reached out and started making inquiries on his father's behalf.

[00:36:57] Speaker 01:
And that member of the cartel who inquired on behalf of his father was totally unaware of the petitioner's informant identity.

[00:37:05] Speaker 01:
We say that at page 221 of the record.

[00:37:07] Speaker 01:
And this subgroup of the cartel,

[00:37:09] Speaker 01:
apparently feared this other subgroup of the cartel enough to release his father unharmed, all without petition or ever returning to Mexico.

[00:37:17] Speaker 01:
And since his father's kidnapping in early 2015, the testimony was that there had been no harm done to his family.

[00:37:23] Speaker 01:
And that's page 177 of the record.

[00:37:25] Speaker 01:
So this idea that this specific subgroup.

[00:37:27] Speaker 00:
So unless the court has additional questions, we've taken you substantially over, so.

[00:37:32] Speaker 01:
Yes, Your Honor.

[00:37:34] Speaker 00:
I think that we understand your position.

[00:37:36] Speaker 00:
Thank you.

[00:37:37] Speaker 01:
Thank you.

[00:37:38] Speaker 00:
And I'll give the petitioner two minutes for rebuttal.

[00:37:45] Speaker 03:
Thank you.

[00:37:46] Speaker 03:
I don't think I'll need two minutes.

[00:37:47] Speaker 03:
Just very briefly to answer your question, he is in the United States.

[00:37:51] Speaker 03:
And then the point I wanted to make is, I believe it was you, Judge Berzon, was asking, well, doesn't it seem like the IJ did just rely on the relocation?

[00:38:00] Speaker 03:
And I do believe that that's the case.

[00:38:02] Speaker 03:
And as we know from several cases, evidence regarding whether an individual can relocate is relevant, but it's not dispositive.

[00:38:10] Speaker 03:
From Barajas Romero, the mere possibility of internal relocation is not fatal to eligibility for CAD.

[00:38:16] Speaker 03:
And our view is that that's really all he considered.

[00:38:19] Speaker 03:
Yes, he meets all of these other criteria, but because he could relocate.

[00:38:22] Speaker 00:
But can't you also believe that someone would be tortured, but they wouldn't be tortured at a certain location?

[00:38:29] Speaker 00:
I mean, those aren't mutually exclusive, right?

[00:38:31] Speaker 00:
No, absolutely.

[00:38:31] Speaker 03:
That's correct.

[00:38:34] Speaker 03:
Nothing further.

[00:38:35] Speaker 03:
Thank you.

[00:38:35] Speaker 00:
All right.

[00:38:36] Speaker 00:
Thank you both for your argument.

[00:38:37] Speaker 00:
This matter will stand submitted.