[00:00:00] Speaker 00:
Thank you and good morning. May it please the court. My name is Sarah Perez on behalf of the petitioner. I will be reserving two minutes for rebuttal.

[00:00:09] Speaker 00:
I would first like to begin with the arguments set forth by the respondent regarding the forfeiture of the arguments. Citing the federal rule 28A8A and Ninth Circuit Rule 28-2.8, I would first note that the language of those statutes in the rule although are mandatory in nature, stating that the argument must contain and Ninth Circuit rule requires every assertion in briefs to have citations to the record.

[00:00:45] Speaker 00:
An exception does exist to that rule, and that exception is what's related to undisputed facts.

[00:00:53] Speaker 00:
The statute of facts in this case and the statement of the case do contain citations to the record.

[00:01:00] Speaker 00:
That includes citations to the testimony, which is undisputedly credible. There are no credibility issues in this case. So the totality of the petitioner's testimony and his declaration as submitted in support of his claims are thus undisputed facts.

[00:01:17] Speaker 03:
Counsel, can I ask you to address an issue that is of concern to me? And I will be posing this question to government counsel. And that was the BIA's way of analyzing information.

[00:01:29] Speaker 03:
past persecution.

[00:01:31] Speaker 03:
In the BIA's decision at AR4, it cites to Sharma v. Garland and says that the harm to his family members cannot be considered harm to him.

[00:01:42] Speaker 03:
And that seems inconsistent to me with many of our circuit precedent. And in fact, Sharma v. Garland, the very case that the government cites, actually says something different. It says, although harm to a petitioner's close relatives, friends, or associates does may contribute to a successful showing of past persecution, it must be part of a pattern of persecution closely tied to the petitioner himself. So did the BIA err in its analysis of past persecution by failing to consider the harm to his sister Olivia and her family, his nephew Heriberto and his godson?

[00:02:20] Speaker 00:
I believe that the BIA erred on that point, and I believe that the IJ initiated part of that error by not looking at a totality of the circumstances. If you look at the underlying decision by the immigration judge, he narrows down the petitioner's political opinion. So he articulates a certain political opinion.

[00:02:38] Speaker 01:
Counsel, did you make the argument on the point that Judge Sanchez just raised? Did you make that in your opening brief?

[00:02:46] Speaker 00:
I believe I did address the fact that there were several instances that extended beyond just harm to the petitioner himself.

[00:02:53] Speaker 01:
But did you make the discreet argument that the BIA failed to adequately assess the past persecution issue, used the wrong legal standard? Did you make that argument?

[00:03:07] Speaker 00:
If not worded exactly, I believe that the argument was made in terms of – arguing that a totality of the circumstances and all of the cumulative harms, and that extended not only to the petitioner himself, but also to his nephew, to the godson, to the sister, the various different human rights reports that were made.

[00:03:27] Speaker 00:
So I do believe it was addressed sufficiently that the court would be able to discern that error.

[00:03:33] Speaker 00:
And I believe that the court is correct with regards to the fact that harm to family members can, in certain cases, and the Ninth Circuit case law is pretty on point with that, be imputed to a petitioner, notwithstanding the fact that he himself didn't suffer that particular harm.

[00:03:52] Speaker 00:
With regard to the other point that I was making with regards to the political opinion, again, I think some of these errors stem from the initial analysis of that political opinion and how it was very narrowly construed by the immigration judge.

[00:04:07] Speaker 00:
Part of the narrow construction, he says that the political opinion is with regard to the time that he served as a councilman and sought to expose corruption. That's where it was limited to. That was not the political opinion that was articulated by the petitioner in the case. He actually articulated that political opinion much more broadly stating, if I could just, it was, excuse me.

[00:04:40] Speaker 00:
He had articulated as opposing corruption that exists within the state government, which is associated with the CJNG.

[00:04:48] Speaker 00:
And so it wasn't limited to the time that he was in a political post. That was from 2012 to 2015.

[00:04:55] Speaker 03:
Would you address whether you forfeited that argument?

[00:04:58] Speaker 00:
I don't believe that I forfeited the argument regarding the narrow PSGs.

[00:05:04] Speaker 00:
I would say that to some extent that some of the PSGs that the judge did not find were not argued perhaps as well as they could be, but I wouldn't necessarily concede. I would admit that strategically more emphasis was placed on the arguments relating to the court and the board's conclusion as to the accepted PSG and to the political opinion. that the past and feared harm did not rise to the level of persecution. I think that was more of the emphasis in the brief, but that is not necessarily a concession or a forfeiture as to the remaining PSGs.

[00:05:38] Speaker 00:
However strategic that was, that emphasis was properly placed, as I argued in my brief, that the court and the board must look to the totality of the circumstances and consider the cumulative effects of the several instances.

[00:05:48] Speaker 03:
You know, I mean, and we'll I guess touch upon forfeiture in a moment, but the BIA also seemed to not have addressed one of the arguments that was raised before the BIA, which was reasonable fear of future persecution on account of political opinion and sexuality. The BIA talked about it in the context of past harm, but I did not see the BIA addressing it separately on a fear of future persecution. Is that your sense of the BIA's decision as well?

[00:06:22] Speaker 00:
Yes, I believe that the BIA essentially focused on the fact, and I think they looked at it in the same way that the immigration judge looked at the case, with a very narrow reading with regards to things that had happened in the past. So there were certain threats that were made to him with regards to his sexuality, and that was kind of the end of the conclusion with that regard. In terms of the political opinion, again,

[00:06:45] Speaker 01:
Counsel, once again, did you make this argument in your brief that the agency failed to address fear of future persecution?

[00:06:55] Speaker 00:
I did argue in my brief that, again, that the circumstances extended beyond the time that the petitioner was in political office and that the – circumstances surrounding all of the events really do lean closer to a closer point in time when the petitioner does come to the United States.

[00:07:16] Speaker 03:
I mean, in page 10 of your opening brief, you talk about petitioners' actual or imputed opposition to the pre-party, the state police and the cartel constitute a political opinion, and was a central reason for the persecution he suffered or will suffer in the future. And then in the next page, you talk about proposed several particular groups that And you talk about gay men in Mexico and that petitioner expressed fearing future persecution as a gay Mexican. So I do think you are touching upon that on both ends of past and future.

[00:07:51] Speaker 01:
Counsel, did you cite any cases that talk about future persecution and what has to be shown for that?

[00:07:58] Speaker 00:
With regards to a well-founded fear, I would need to look at my brief, but I am hitting the two-minute mark. And I apologize if I could just please reserve my time. All right. Thank you, counsel. Thank you.

[00:08:18] Speaker 01:
Good morning, counsel.

[00:08:18] Speaker 02:
Good morning. May it please the court. Devin Froseth for the acting U.S. Attorney General, Todd Blanch. I'll start first with forfeiture, and then I want to address the two questions that Judge Sanchez asked to opposing counsel. On forfeiture, I don't think this case is very close.

[00:08:33] Speaker 02:
The government explained in length in its response brief that the petitioner did not meaningfully develop its arguments. And really, the only way for the court to address the merits of the petition for review is to comb through the record by itself, and to manufacture the petitioner's argument for him. I'll also point out that after the government argued at length, the petitioner didn't even file a reply brief. And I think there are a few cases, even in the immigration context recently in this circuit, that discuss the role that reply briefs play in forfeiture.

[00:09:04] Speaker 03:
But there's no requirement to file a reply brief.

[00:09:06] Speaker 02:
That's correct, Your Honor.

[00:09:07] Speaker 03:
Right. Why don't we start with the political opinion, the mentions of political opinion in his sexuality.

[00:09:18] Speaker 03:
I take your point, there's not a certain case being cited about fear of future persecution. I think Judge Rawlinson makes a good point with that. But the brief talks about his sexuality and political opinion throughout. There's a reference to it on page 5, that he's a gay Mexican and others suspect him of that and that he's suffered persecution because of it. On page 10, the fear of of his sexuality as being a basis for being attacked by the pre-party and the cartel and state police.

[00:09:52] Speaker 03:
And then on page 11, why isn't that sufficient to adequately apprise the government that that is an issue, a live issue in this appeal?

[00:10:00] Speaker 02:
I agree, Your Honor, that the arguments are sort of loosely mentioned. I think there's a big problem with the lack of citations to the record. I think a case that is helpful in explaining that is the Quest Radio Services case that we cite.

[00:10:12] Speaker 03:
Which one?

[00:10:14] Speaker 02:
Sorry, the Western Radio Services versus Quest case. In that case, the court talks about a counseled brief that fails to cite the record, and that's where the language about combing through the record comes in.

[00:10:27] Speaker 02:
Without the citations of the record, this court is going to have to go into the administrative record itself and kind of look around for relevant testimony and whatnot. I think that's problematic.

[00:10:36] Speaker 03:
Well, I don't think we will because the issue is a legal one. The board, we have the board's decision before us. It talks about political opinion and sexuality in terms of past persecution. But can you point to anything in the record that shows that the BIA addressed a reasonable fear of future persecution based on those legal grounds?

[00:10:57] Speaker 02:
Yes, Your Honor. I would point to page three of the BIA's opinion, the first paragraph there. The board does say that it agrees with the immigration judge's conclusion that the respondent did not demonstrate that he was persecuted. or would it be persecuted on account of his membership in any cognizable social group or any other protected ground? I think that language necessarily encompasses those arguments, albeit not entirely clearly.

[00:11:24] Speaker 03:
But there's no reason to analysis behind it, because even if someone doesn't have past persecution based on the legal ground, doesn't mean that one couldn't face future persecution on that account. So there's no discussion behind those grounds.

[00:11:38] Speaker 02:
I think to the extent that You can't locate that in the board's opinion, Your Honor. I think if it's ambiguous at all, you can definitely look to the immigration judge's opinion. And the immigration judge says twice that he considered all of the evidence, and he talks about each of these areas, albeit not in detail. But I would remind the court that the Supreme Court recently explained in the Ming Dai v. Garland case, which came out of the circuit, that these opinions don't need to be models of clarity, and that so long as the agency's path can be reasonably discerned, That should be enough for the court to – as long as the court kind of understands what the agency was doing and the conclusion is there, I don't think it has to be so explicit.

[00:12:15] Speaker 03:
Can you – can I ask you to look at the BIA's past persecution analysis?

[00:12:21] Speaker 02:
Yes, Your Honor.

[00:12:22] Speaker 03:
Do you agree or disagree with me that there's a misstatement of law here from the quotation – this is on AR-4 from the Sharma v. Garland quotation that harm to family members cannot be considered harm to him?

[00:12:36] Speaker 02:
No, Your Honor, because I think there's two different ways.

[00:12:38] Speaker 03:
So I agree or disagree. I apologize. I think that was a compound question on my end.

[00:12:43] Speaker 02:
I disagree, Your Honor, and I'll explain why. I think that statement, I think you could read it that way, but I think you could also read it as in the harm to his family members, meaning in this case can't be considered harm to the petitioner, meaning that the board looked at the particular harm in this case, the facts there, and made that conclusion. So it's either a question of fact. or maybe it's a mixed question of law and fact. And if it's a mixed question of law and fact, um, under the Urias or Alana case, um, I think that's still substantial evidence.

[00:13:16] Speaker 02:
So I would disagree. And I guess I'll just also say that the petitioners brief doesn't, um, say that it's a legal error and doesn't, I don't think it uses the word or the term de novo once or legal error once. Um, so I think we're pretty much, we're squarely in substantial evidence realm on this appeal. And I don't think, um,

[00:13:34] Speaker 03:
So where do you think the IJ gave due consideration of the kidnapping of the nephew, the disappearance of the godson, the kidnapping of the wife and family and taking them to the farm and hitting them over the head, and his later kidnapping and the cartels asking whether he said anything about cartel activity with the military? Where is the IJ addressing all those issues?

[00:13:58] Speaker 02:
Yes, Your Honor. First, of course, I'll just say that the IJ does say he considered all the evidence, but more to the point. No, you're more specific than that. Yeah, more to the point, Your Honor. I think it comes out mostly in the immigration judge's analysis as to cat protection, which, albeit it's not the same category here, but he clearly appreciates the evidence and talks through it as he explains cat protection. So it's clear that he did consider that evidence. In the context of cats?

[00:14:25] Speaker 02:
Yes, Your Honor.

[00:14:26] Speaker 03:
But not in the context of this withholding claim?

[00:14:29] Speaker 02:
I don't think he explicitly states it in the context of the withholding or the asylum arguments, Your Honor.

[00:14:35] Speaker 03:
And you don't think that constitutes legal error if it was properly presented to the BIA?

[00:14:40] Speaker 02:
I don't think so, Your Honor, because I still think the conclusion is there. I still think the board itself makes the conclusion.

[00:14:47] Speaker 02:
And to the extent it's ambiguous or unclear, I would just again point to the Mingdai case, which explains this exception to Chenery that's been well-established. that exception being the one from Bowman Transportation, where as long as the agency's path can be reasonably discerned, we're not going to require each of these opinions to be perfect or to be a model of clarity.

[00:15:04] Speaker 01:
Counsel, let me ask you in terms of the question that Judge Sanchez asked you about harm to family members. The BIA cited its decision in NRAE-AK, and in that case, on page 278, it elucidated that the – it discussed various circus courts that have addressed claims for future persecution based on harm to family members and have generally indicated that acts of persecution against the family members do not serve to establish a risk of future persecution to the applicant himself absent a pattern of persecution tied to the applicant personally.

[00:15:48] Speaker 01:
So is it fair to say that the board – in shorthand, by citing this case, in essence, did make the correct legal analysis.

[00:15:59] Speaker 02:
Yes, Your Honor. I definitely agree with that.

[00:16:02] Speaker 02:
I think the language you just read, I think it has to be closely tied. There has to be something more, especially more than what's in the record here. And I know I'm talking about the substantial evidence now, but there's really nothing that comes close to that close tie. In fact, everything in the record compels the opposite conclusion. Whenever the police or the military or the cartel came for the family, they didn't come for the petitioner. They left him alone.

[00:16:33] Speaker 02:
Most of the time, they raided his neighbor's homes, his family's homes. They didn't raid his home.

[00:16:39] Speaker 02:
I will acknowledge that the petitioner did receive the one threat from the cartel, after which he stayed in the country for 14 more months, got arrested. a business proposition from the cartel to sell gas, denied it, nothing happened to him. So I think even if this court were to look at it, try to comb through the record and find things that support that contrary conclusion.

[00:16:58] Speaker 03:
Can I ask? I mean, even if the BIA did through the shorthand way, even if the BIA was guided by the proper context, there's no analysis about whether this is closely tied or not. Because you just told me that the IJ didn't analyze under withholding anything related to the family members in the context of the withholding claim, and the BIA is not doing so either. So if the BIA says, suppose we agree that this is a factual issue more than a legal one, if there's no analysis behind whether it was closely tied to him, then how is it applying the law correctly?

[00:17:39] Speaker 03:
If there's no analysis there.

[00:17:42] Speaker 02:
I just disagree, Your Honor, that there's no analysis there. I think it's not as clear as it could be.

[00:17:46] Speaker 03:
Well, where's the analysis about why the harm to these particular family members is not sufficiently closely tied to him?

[00:17:53] Speaker 03:
If either the BIA is misstating the law and saying it can never happen, which is what the sentence seems to say, or it's saying it can be in the context of closely tied, but where's the analysis to why the agency determined there was not a sufficiently close tie to him?

[00:18:12] Speaker 03:
Either from the IJ or BIA.

[00:18:14] Speaker 02:
I think it's necessarily implicit in the conclusion, the conclusion being the INA's application, or the agency's application of the INA to the fact, and I see the amount of time.

[00:18:25] Speaker 02:
I could just point back to the CAT section and the statements by the IJ that he considered all the evidence, and he's due a reasonable presumption of regularity, and I don't see why his... So your counsel...

[00:18:39] Speaker 01:
Counsel, your argument is that the analysis in the CAT section enables us to ascertain the path of reasoning.

[00:18:46] Speaker 02:
Is that your argument? I think so, Your Honor. I think that's part of it. To the extent that you're not satisfied with the conclusion and the board and immigration judge's statements that they considered everything, if that's not enough, you can also look at the CAT section just for proof that the IJ actually did look at this evidence and didn't ignore it completely.

[00:19:06] Speaker 03:
Do you have a reference to the CAT section by any chance, what you were referring to? Sure.

[00:19:11] Speaker 02:
It would be toward the end of the immigration judges.

[00:19:15] Speaker 03:
I'm flipping through it and I'm looking for it.

[00:19:18] Speaker 02:
It's not a new paragraph, so it kind of bleeds together with the previous one.

[00:19:20] Speaker 03:
Okay, I see it. AR 30 and 31.

[00:19:24] Speaker 01:
I thought that was 67.

[00:19:28] Speaker 01:
Are you talking about the IJ or the BIA?

[00:19:31] Speaker 02:
I'm talking about the IJ right now, Your Honor.

[00:19:38] Speaker 02:
Okay, so I think I'm looking at page 67 of the administrative record. Yeah. Okay. And, you know, he talks about respondents' relatives, the cartel, the police, his son, Araberto, and the fact that – or his nephew, Araberto, and the fact that Araberto is not alive anymore.

[00:19:55] Speaker 03:
So that sort of analysis would certainly be relevant to – And do you have a case that says that we could look at the agency's analysis as to one claim and apply it in another context? for a different claim?

[00:20:09] Speaker 02:
I'm not sure specifically, Your Honor, but I think the Ming Dai, the Bowman transportation exception to Chenery pretty squarely addresses that. It's reasonably discernible. I think we all know what the IJ was thinking, even if he didn't explicitly state it. Okay. Thank you, Your Honor.

[00:20:23] Speaker 01:
All right. Thank you, Counsel. Thank you. Rebuttal.

[00:20:30] Speaker 00:
Thank you. I would just note that even if the immigration judge made an analysis and the board, to some extent, relied on that decision. The fact that the board decided not to affirm that decision in full means that they applied their own analysis to this, and so they shouldn't be given the benefit of being able to rely on certain parts of the immigration judge's decision if there was a separate analysis conducted, as so stated by the board. The court asked if I had forfeited a certain argument with regards to the family units. I would just direct the court's attention to page 12 of my brief I do cite to the Naranjo-Garcia v. Wilkinson case to talk with regards to the fine line between animus towards family, which does establish nexus and purely personal retribution, which does not.

[00:21:15] Speaker 00:
I wrote that the panel wrote that sweeping retaliation towards a family unit over time, such as is the case here, can demonstrate a kind of animus distinct from a purely personal retribution.

[00:21:28] Speaker 03:
What page was that?

[00:21:29] Speaker 00:
Page 12.

[00:21:31] Speaker 00:
And so I would note that the argument was made. It should not be found to have been waived. The respondent also in their brief argues that they inferred that at least three arguments that were made in my brief were based on what I would say is fabricated facts. Those are not the fact that the petitioner was tortured by the CJNG. I would argue that that's argument grounded in undisputed fact. looking at the record AR 164 to 171.

[00:22:04] Speaker 00:
That is relating to the issue when he was summoned by the CJNG leader. He was handcuffed with masking tape, had masking tape placed on his face to cover his eyes. He was placed in the back of a truck for an hour, driven to an undisclosed location while blind and bound. He heard more vehicles come and arrive and more cartel members jump out and say, aha, we're going to have a party. which he understood to mean a massacre. So he clearly had a situation that rose to arguably a level of torture.

[00:22:32] Speaker 00:
The second one with regards to his petitioners threatened to expose state police ties, and my time is about to be up.

[00:22:41] Speaker 00:
Actually, my time is up. I don't know if the two other sections I would cite to AR 135 and 142.

[00:22:49] Speaker 00:
And then the third one, Petitioner Olivia filed formal complaints with the Human Rights Commission. Olivia did file a complaint and asked the petitioner at AR-150. He took Mauricio's mother to the Office of the Human Rights Office, and he made a declaration statement that was submitted in conjunction with that.

[00:23:03] Speaker 01:
So I would note that those were not fabricated incidents, and they are – The point was that there were no citations to the record in the brief that confirmed those facts. That was the issue. All right. Thank you, counsel. Understood. Thank you very much for your time today. Thank you to both counsel. The case just argued is submitted for decision by the court.