[00:00:00] Speaker 02:
All right. Thank you, counsel. Thank you. The case just argued will be submitted.

[00:00:08] Speaker 02:
And we will proceed then to hear argument on the next case on calendar for argument this morning, which is 20-70816, Floriberto Miguel Lopez versus Pamela Bondi.

[00:00:51] Speaker 02:
And we will hear first from Ms. Levesque. Did I pronounce that correctly?

[00:00:57] Speaker 04:
Levesque, Your Honor.

[00:00:58] Speaker 02:
Levesque. All right. You may proceed when you're ready.

[00:01:05] Speaker 04:
Good morning, Your Honors. May it please the Court, my name is Angela Levesque. I represent the petitioner Floriberto Miguel Lopez. I'd like to reserve three minutes for rebuttal.

[00:01:15] Speaker 04:
Your Honors, this case should be remanded because the agency applied the wrong legal standards to the established record. I'd like to talk about the exception to the asylum filing deadline, the past persecution and nexus arguments, and then I'd like to discuss the due process violations because of the transcription and video conference errors in the hearing.

[00:01:45] Speaker 04:
as well as the BIA's failure to rule on the motion.

[00:01:48] Speaker 01:
Would you mind just jumping to your cat relief argument first and tell us what you consider to be your best argument in support of that?

[00:01:58] Speaker 04:
Admittedly, that perhaps is not the strongest argument the petitioner has. However, in terms of the cat argument, I believe there was evidence to the fact that There can be torture to individuals in the petitioner's group if he is returned. There was some evidence submitted on the record regarding all of that, but admittedly that is perhaps not the strongest. All right, thank you.

[00:02:29] Speaker 04:
Regarding the agency applying the wrong legal standard to the asylum filing deadline, however, the immigration judge, if we look at his decision, he indicates that the To establish changed circumstances, the petitioner would have needed to testify that he had no fear of losetas when he entered the U.S. in 2006 and then only feared them later. But that's not the law. That's not the standard that should be applied. Changed circumstances do not require a brand-new conflict or a sudden emergence of fear, and that's in Vahora v. Holder.

[00:03:02] Speaker 04:
In that case, this court has held that applicants can wait until later developed...

[00:03:09] Speaker 04:
developments materially increase the risk and make an asylum claim more viable. And that's what happened here. The petitioner testified, yes, that he was scared of losetas when he left Mexico, but after he left, the danger intensified more. The record does show this. The record shows that there's increasing cartel violence, specifically of losetas. In fact, I think they are even talking about... those expanding their territory even into Guatemala.

[00:03:41] Speaker 04:
That's corroborated by the Department of State reports and even acknowledged by the immigration judge.

[00:03:47] Speaker 04:
And then, of course, in 2013, the record shows that the petitioner's father was violently attacked. So, again, that happened after the petitioner left. So there is a change of circumstances. This does fit squarely into that exception.

[00:04:05] Speaker 04:
Secondly... going to now withholding of removal, the agency improperly found that harm did not rise the level of past persecution. We do have undisputed facts here. Multiple encounters with Losetas. In 1993, the petitioner at age 16 was approached by armed members of Losetas. They confronted him, shoved him, and basically said, join or die. Then in 1998, they once again confronted him, this time demanding monthly payments and robbed him.

[00:04:42] Speaker 04:
Then lastly, in 2013, individuals believed to be Losetas broke into the petitioner's father's home, violently beat the petitioner's father, and asked, where is Miguel? Where is the petitioner?

[00:04:55] Speaker 01:
This court has held that... Would you address the argument that those were really three isolated incidents and so there's substantial evidence to support the BIA decisions?

[00:05:05] Speaker 04:
I think there's a link in all of those instances. We have individuals claiming to be Los Zetas. That's not been contested.

[00:05:15] Speaker 04:
Sure, there is some time that has passed, but in each instance, the petitioner went back to his hometown and he was personally attacked twice, right? One at age 16 and again in 1998 by Los Zetas, and then again Los Zetas came in and attacked the father personally. Because some time has passed, I don't think that that necessarily means that it is not linked.

[00:05:43] Speaker 04:
Again, we have specific and menacing threats combined with violent or near-violent confrontations. That can constitute persecution. And, of course, we should look at these things cumulatively. So I think that that's what I'm arguing here in addressing those three separate incidents. It's a cumulative thing. Here we have threats, join or die. We have pay or die. We have confrontations at gunpoint. We have physical aggression, robbery, and violence directed towards a family member. I did want to note that the immigration judge made an error in dismissing the attack on the petitioner's father simply because the petitioner was not present.

[00:06:20] Speaker 04:
Again, this court has recognized that violence against family members that connected to the threat is considered persecution. So I think taken together, we do see that the harm does rise to the level of persecution. Next, I do want to talk about nexus.

[00:06:41] Speaker 04:
I think that the agency overlooked the circumstantial evidence in addressing nexus. Importantly, I want to look at the social group.

[00:06:50] Speaker 04:
Pardon me. The agency acknowledged that the core social group is indigenous Mexican men.

[00:06:58] Speaker 04:
And the immigration judge specifically said that that is a cognizable or maybe a cognizable particular social group. Prior counsel did add other elements, having children.

[00:07:08] Speaker 02:
We see a lot of these cases where, you know, they're worried about gang activity. And, you know, the agency will look at the circumstances of the case and then make a conclusion that, you're really worried about general lawlessness in Mexico. And they're not coming after you because you're in this particular group. They're coming after you because they're thugs who go after anyone who's available to them.

[00:07:37] Speaker 02:
And we have to review that deferentially. So how can we say that substantial evidence doesn't support the determination that this is due to general lawlessness and the gangs are just indiscriminate thugs?

[00:07:54] Speaker 04:
I agree, Your Honor. Many times there are, it is general instances, right? It is a general violence. But in this case, I think we look at the circumstantial evidence, and I think that here is where the immigration judge, the agency, failed. They didn't look at the circumstantial evidence. So I think that if we look at that, in addition to the fact that these are attacks not generally, this is specifically to the petitioner, to the petitioner's father, that we can say this goes past those generalized circumstances. claims of fear. This is very specific, and I think that substantial evidence, we could say that substantial evidence does support that.

[00:08:32] Speaker 04:
Again, so I kind of want to look and make sure that we're seeing that, yes, the prior council did add these other elements, but specifically the agency did find that core element, that core social group, and I think that we could focus the analysis on that, and that is cognizable, so that I think the agency then made an error indicating that the protected group, well, the protected group need only be a reason and that motive is proven by that circumstantial evidence. So I don't think that when the immigration judge says that there's no evidence in the record that the cartel targeted the petitioner, I think that is not looking at the circumstantial evidence that was submitted.

[00:09:14] Speaker 04:
I do want to also talk about how the petitioner was denied a full and fair hearing. So in this hearing, we had a video conference between Boise and Salt Lake City.

[00:09:29] Speaker 02:
Was there ever a formal motion to change venue to Boise?

[00:09:35] Speaker 04:
No. If you look at the record towards the end, it's 152 and 153. After all of those interruptions, it was like eight in total in two and a half hours, the immigration judge ultimately said, we're shutting this down, we're going to call, we're going to do this by teleconference. And there was no indication to counsel, to petitioner's counsel.

[00:09:57] Speaker 02:
One of the things that's odd about this case is that the immigration judge is in Salt Lake City, which is not in this circuit. Correct. But your client was in Boise. And But the judge announces at the beginning of the hearing, I'm conducting it from Salt Lake City.

[00:10:23] Speaker 02:
And then he issues a ruling where he cites only 10th Circuit authority. And so that was why I was wondering, is there a formal order that transferred the venue to Boise so that it's clear that the venue is is Boise? I mean, we had a similar case, exactly this problem where someone's in Boise. And in the early documents of the case, the immigration court for Boise was headquartered in Portland, and then it got shifted to Salt Lake City.

[00:10:54] Speaker 02:
And you see that in the documents in this case. So I'm just wondering, is it clear that the venue was Boise?

[00:11:02] Speaker 04:
I'm fairly certain that the immigration judges do indicate the venue is Boise. I would have to refer to the record to be sure. Nobody's contested venue in this case. Right, having practiced before this case. They typically do say venue is Boise.

[00:11:18] Speaker 02:
But it's odd that the judge seemed to think that he was in the Tenth Circuit because he didn't cite any Ninth Circuit cases.

[00:11:24] Speaker 04:
They're all Tenth Circuit cases. He did. And this is, again, one reason why I think that we need to stress Ninth Circuit law here. And I think that maybe there was that disconnect between the standards.

[00:11:35] Speaker 02:
I think it's kind of odd that the immigration courts have set themselves up so that they have courts that straddle circuits.

[00:11:40] Speaker 04:
It is very strange. And again, we are now back in Portland being in Boise. But again, I do think that we do have that.

[00:11:52] Speaker 04:
We have so many interruptions in this hearing.

[00:11:55] Speaker 00:
Can you identify potential prejudice? I think the record is clear there's a lot of technical difficulties, but what's the prejudice?

[00:12:01] Speaker 04:
So if we look at where the interruptions occurred, most of them occurred, well, some of them, like three or four occurred during the petitioner's testimony. And then the rest, and I think it's the majority, occurred during DHS counsel's closing. I think that that's important because the petitioner's attorney was not afforded an opportunity to really understand what was being said. And then because the judge immediately foreclosed anything else, he said, we're going to a telephonic hearing and I'm going to issue a written decision and basically told the petitioner's attorney, you understand that, correct?

[00:12:40] Speaker 04:
And did not give the petitioner's attorney an opportunity to maybe address the, maybe in a rebuttal closing argument, those issues that district counsel highlighted. I think that there's potential prejudice there. Maybe the attorney would have addressed the nexus, the changed circumstances, all of these issues that the judge.

[00:13:01] Speaker 02:
Did the judge do an oral ruling?

[00:13:06] Speaker 02:
It was just a written ruling later. Correct. How much later was it? Pardon me? How much later was it?

[00:13:14] Speaker 04:
I don't believe it was too much later, Your Honor. I would have to check the dates exactly. Okay.

[00:13:20] Speaker 02:
If counsel wanted to submit something further, couldn't counsel have submitted something further?

[00:13:25] Speaker 04:
Admittedly, he could have, but if you look at the record, the immigration judge basically foreclosed that option and indicated the record is closed.

[00:13:36] Speaker 04:
Lastly, I do want to touch on just the Board of Immigration Appeals not addressing the motion to terminate. I mean, that's just antithetical just to the idea of jurisprudence. We have courts to be able to decide on issues. there was zero indication that the Board of Immigration Peoples even acknowledged that motion. They should have at least acknowledged it. There was nothing, and I think that that definitely demands remand. My time is nearly up. I do want to reserve some time for... All right. Thank you, counsel.

[00:14:04] Speaker 02:
We'll hear now from Mr. Morgan. Oh, Ms. Morgan. I'm sorry.

[00:14:20] Speaker 02:
You may proceed.

[00:14:21] Speaker 03:
Good morning, Your Honors. I'm Carmel Morgan on behalf of the respondent, the United States Attorney General.

[00:14:27] Speaker 03:
I first want to address the two 28J letters that the government submitted. The first dealt with a recent Ninth Circuit case, Ruiz, in which the court decided that the changed circumstances or extraordinary circumstances excuse for an untimely asylum application was remains reviewable as a mixed question of fact and law.

[00:14:55] Speaker 02:
But the standard is differential.

[00:14:57] Speaker 03:
The standard is differential. I just wanted to point out that I want to be careful on behalf of the government to say that we're not withdrawing our argument. We would like to preserve that for appeal, but we recognize that in Rui's... We're bound by Rui.

[00:15:11] Speaker 02:
Correct. Yes, Your Honor. But you may want to take that up.

[00:15:14] Speaker 03:
Correct, Your Honor. Thank you.

[00:15:15] Speaker 03:
With regard to the second 28J letter, there was a footnote in Respondent's brief. There had been some question about the standard of review for a past persecution determination that has now been resolved very recently by the U.S. Supreme Court, and that is substantial evidence. I think we said in our brief it wouldn't have mattered what the standard was, but it is substantial evidence, and that issue has now been resolved.

[00:15:44] Speaker 02:
There are a number of issues in this. Can I just ask you, just out of my own curiosity, is it clear from the record that the venue is, in fact, Boise? I mean, the BIA cites Ninth Circuit decisions, but it really was striking that the IJ cites only 10. The IJ seemed to think that this was the case in the Tenth Circuit, so, but I...

[00:16:06] Speaker 03:
Yeah, I think it's very clear from the case law that it's where the notice to appear issues and the case originates unless there's a motion to change, actually change venue.

[00:16:19] Speaker 02:
The venue originally was Boise. It was Portland, I think.

[00:16:23] Speaker 03:
Yes, but Portland or Boise, nobody's disputing that the correct law to apply in this case is Ninth Circuit law.

[00:16:30] Speaker 02:
Okay, all right.

[00:16:35] Speaker 03:
With regard to the untimely asylum application, it's the government's position that substantial evidence does support the agency's determination that the petitioner did not come forth with information sufficient to show a material change in circumstances that would impact the filing of his asylum application.

[00:16:59] Speaker 03:
It's a little unclear. The petitioner seemed to be making two arguments. One was that There was an increase in power among the Los Zetas gang. He also seemed to be making the argument before the board, which the board addressed, that the 2013 incident was what completely changed his outlook and made him want to apply for asylum.

[00:17:27] Speaker 03:
To the extent that he's relying on information in the record about changes in the strength of the gang. I don't think that the record supports that that's a material change when the petitioner was aware as far back as 1993 that the gang was appearing in his home village and was harassing young men. That wasn't a new circumstance.

[00:17:56] Speaker 03:
He even admits before the immigration judge that he understood that things were the same in his home village.

[00:18:07] Speaker 03:
With regard to the incident involving his father in 2013, he admits on the record that he doesn't know who the assailants were. So you can't tie that to a change in circumstances when it's unclear who assaulted his father or what the circumstance is for.

[00:18:30] Speaker 03:
His story changed a little bit, or at least he added details. And one of the added details about that incident was that he was asked about, his father was asked about his location. Where's Miguel? But it's unclear from that statement why they were looking for him.

[00:18:52] Speaker 03:
So I don't think that that incident and the board determined it was not material information. to a change or extraordinary circumstance.

[00:19:02] Speaker 03:
And therefore, substantial evidence does support the determination.

[00:19:07] Speaker 03:
Even setting that aside, nexus is a bigger problem for the petitioner in this case. The evidence just does not strongly support that there's a nexus to even the shortened... So if we were to agree with you on the nexus point, would we even have to reach the timeliness issue? No, Your Honor, you wouldn't. Nexus is determinative of both asylum and withholding of removal in this case.

[00:19:35] Speaker 03:
On the nexus element, even if you consider the shortened version of a particular social group, and that would be the indigenous Mexican men, Petitioner doesn't set forth any facts that would lead you to believe that's why he was approached for the first time in 1993.

[00:19:56] Speaker 03:
by the gang. There's no evidence that they asked him or mentioned his ethnic background.

[00:20:05] Speaker 03:
If that second incident occurred, he seemed to say in his live testimony that that was the only incident, the 1993 one, but he did mention in his declaration there was a second incident some years later when he returned to his hometown. Again, they asked him for money. It's not clear at all that the record would support a finding that his indigenous ethnicity was related to why they were demanding money from him. And the same goes for the third incident, which occurred in 2013 when the petitioner was already in the United States.

[00:20:45] Speaker 03:
It can't go to past persecution because he was not present. That wouldn't be considered persecution of petitioner himself.

[00:20:55] Speaker 03:
If something dreadful, and it did, dreadful happened to his father, that might be relevant to future persecution. But here there's no evidence that his father was attacked based on his ethnicity or that those attackers wanted to pursue the petitioner in this case based on his ethnicity. And so substantial evidence in the record does support the immigration judge's finding that the evidence just simply is insufficient to show a nexus to one of the protected grounds.

[00:21:31] Speaker 03:
With regard to past persecution, the story changed somewhat there, too. Initially, he did not mention a death threat. I don't think he mentioned any death threats except to his father, perhaps.

[00:21:46] Speaker 03:
But even setting that aside, the agency seemed to credit his later testimony that he was threatened with death in 1993, but that was a very brief incident. And I think, depending on which version of his facts you look at, they also asked him for money. It's not clear that that would rise to the level of persecution. Someone, I forget which of you mentioned, isolated incidents, but these do seem to be isolated in time.

[00:22:22] Speaker 03:
The 1993 incident, Many years later, I think 1998, he goes back to his hometown, and then again 2013 when he's not even present.

[00:22:33] Speaker 03:
But even together, considering all of the circumstances, cumulatively, they don't add up to a past persecution finding.

[00:22:45] Speaker 03:
With regard to cat protection, I think Petitioner almost conceded that there's really very little evidence that would amount to substantial evidence in support of a torture claim in this case. That certainly is the government's position, that it's insufficient simply to show generalized poor country conditions.

[00:23:07] Speaker 02:
The sentence there that we see in the BIA's ruling is we also affirm as lacking clear error.

[00:23:19] Speaker 02:
The immigration judge's finding that the respondent did not established that any future harm he would experience in Mexico would be by or with the consent or acquiescence, including the willful blindness of a government official. Is that sort of composite sentence, is that just an acquiescence finding in your view, or does it also include a future harm finding?

[00:23:45] Speaker 03:
I read it as including both there, Your Honor. I mean, you have to have...

[00:23:52] Speaker 03:
both to make a torture claim successful.

[00:23:56] Speaker 02:
So you read that as a BIA saying the standard is you have to show that there would be harm that would be with the acquiescence, and here you fail that standard because any future harm that you might have shown wouldn't rise to the level.

[00:24:15] Speaker 02:
Yeah, I think that... Or wouldn't involve acquiescence, et cetera. Yeah, okay.

[00:24:20] Speaker 03:
Um... With regard to the interruptions, the government disagrees that any prejudice was shown. The petitioner hasn't come forward with specific evidence of what might have been missing, what was overlooked, and particularly with regard to Nexus, which is dispositive of the asylum and withholding claims, there's no identification of what the immigration judge failed to consider. The petitioner certainly was able to get out the facts of his case, and clearly the immigration judge considered them.

[00:24:58] Speaker 03:
The very end of the hearing, I read the record as showing that the parties had rested by the time that the immigration judge switched to the telephonic recitation at the end of the hearing.

[00:25:16] Speaker 03:
That issue specifically with regard to switching to the telephone was not raised before the board, and so the board didn't address it.

[00:25:25] Speaker 03:
But it doesn't appear that despite those few interruptions that the petitioner's testimony was somehow not coherent or understood.

[00:25:36] Speaker 03:
Certainly, counsel could have asked to, you know, please continue the hearing. Let's not go forward. I'd like a chance for rebuttal or any of these things, and there's nothing reflected in the record that that was asked of the immigration judge at the hearing.

[00:25:57] Speaker 03:
It is unfortunate I could not find in the administrative record that the board addressed the motion to terminate. So it does appear that that motion was unfortunately overlooked. However, at this time, it is very clear that under Bastid-Hernandez, a decision of this court, that jurisdiction does rest with the immigration court under these circumstances.

[00:26:27] Speaker 02:
Even though it was overlooked and normally there'd be Chenery issues, here the absolute pointless futility of sending it back, which is an exception to Chenery, you'd think covers that.

[00:26:40] Speaker 03:
Yes, Your Honor, that is the government's position. And in addition, I think the fact that it's a jurisdictional issue and the court can always examine its jurisdiction is perhaps relevant here too.

[00:26:52] Speaker 03:
Correct, Your Honor.

[00:26:56] Speaker 03:
Please let me know if I haven't addressed any areas of concern, but if you have no further questions, the government will ask.

[00:27:05] Speaker 01:
I have one.

[00:27:05] Speaker 03:
Great.

[00:27:06] Speaker 01:
If Nexus takes care of withholding an asylum...

[00:27:11] Speaker 01:
does this issue of the failure to rule on the motion to terminate in any way undercut those grounds or the nexus as a basis for ruling in your favor?

[00:27:24] Speaker 03:
It can't here, Your Honor, because it's just so perfectly clear that jurisdiction vested with the immigration court. So, no, there wouldn't be any impact.

[00:27:37] Speaker 03:
So if there are no further questions.

[00:27:40] Speaker 02:
So the transcript we have in the record, is that prepared based on a recording of the matter?

[00:27:54] Speaker 03:
Yes, that's my understanding.

[00:27:55] Speaker 02:
But isn't like a court reporter taking down in?

[00:27:59] Speaker 03:
No, no, there isn't a court reporter present.

[00:28:03] Speaker 02:
So what we have here reflects what audio was captured.

[00:28:07] Speaker 03:
That is correct, Your Honor.

[00:28:09] Speaker 02:
Through the various means.

[00:28:10] Speaker 03:
Yes.

[00:28:12] Speaker 03:
Okay. They don't prepare those transcripts unless there is an appeal, generally. Okay. So that's done after the fact.

[00:28:20] Speaker 02:
All right. Thank you, counsel.

[00:28:22] Speaker 03:
Thank you, Your Honors.

[00:28:23] Speaker 02:
All right. We'll hear rebuttal.

[00:28:28] Speaker 04:
Thank you, Your Honors. I want to take up the issue of the motion to terminate.

[00:28:34] Speaker 04:
Yes, this court in Bastida-Hernandez did address the underlying arguments in the petitioner's motion to terminate. But if we look at the concurrence in that motion to terminate, we see that these are callable arguments. These are arguments that the concurrence indicated maybe the Supreme Court would later overturn and maybe indicate that one notice to appear, if it's complete, does control jurisdiction.

[00:29:06] Speaker 04:
So I think that given that there's somewhat of a colorful argument, the Board of Immigration Appeals should have at least addressed it. You're referring to Judge Friedland's concurrence? I believe so. Okay.

[00:29:20] Speaker 04:
We should at least be able to have that decision because this is, again, what we do with appeals. If there's an adverse decision that we take an issue with, we can address it in the courts higher up. And perhaps, as the conference indicated, the Supreme Court would address the notice to appear, given that the Supreme Court in both Pereira and Chavez was, again, very strict with the treatment of that notice to appear. So perhaps later on. I mean, immigration law changes all the time.

[00:29:53] Speaker 04:
It just depends on the day.

[00:29:55] Speaker 04:
So this is, I think, that we should at least get an articulated decision from the BIA on this motion.

[00:30:05] Speaker 04:
In addition, regarding the interruptions, you know, the interruptions, yes, did occur at the end. But reading the record, it does seem like, to me, the immigration court just completely foreclosed any other options, just said, I'm going to issue an oral decision, did not allow counsel to do anything more. And I think that could have been that. the argument to convince the court to rule otherwise.

[00:30:38] Speaker 04:
Thank you, Your Honors.

[00:30:41] Speaker 02:
Thank you, Counsel. The case just argued will be submitted, and the court will stand in recess for 10 minutes.

[00:30:57] Speaker 03:
All rise.