[00:00:04] Speaker 02:
Thank you. Good morning. Welcome.

[00:00:08] Speaker 02:
Welcome to our Browning Courthouse here in San Francisco. We have a number of cases set for argument, but many have been submitted on the briefs. The case of Juan Medellin v. Blanche, Walid Majub v. Blanche, United States of America v. Federico de Diaz de Leon versus Solar Mosaic LLC and Guil versus Blanche. All those cases have been submitted on the briefs, along with Hulsano versus Blanche.

[00:00:46] Speaker 02:
So the first case set for our argument this morning is Garcia Garcia versus Blanche. And I believe counsel are on video. So you may begin.

[00:01:03] Speaker 00:
Good morning, Your Honors. May it please the court, Robert Jacobs for the petitioner.

[00:01:09] Speaker 00:
This case is about the immigration judge and a temporary appellate judge at the BIA refusing to apply Ninth Circuit precedent regarding whether family is a valid social group in the circuit.

[00:01:23] Speaker 00:
A nuclear family is a particular social group in the Ninth Circuit, period.

[00:01:30] Speaker 04:
Wait, are you saying it's a per se particular social group?

[00:01:37] Speaker 00:
They haven't applied a blanket rule, but the Ninth Circuit precedent has two cases that are actually on point regarding the issue of family. And in the Parada v. Sessions case, they considered family...

[00:01:59] Speaker 00:
as a particular social group and there was nothing in the case that talked about that family being remarkable or having any particular social distinction. They actually split up the claim into two separate categories and found that both of their PSG claims were viable. And that the aliens family without any qualifiers was a particular social group.

[00:02:32] Speaker 00:
There was a second case, Rios versus.

[00:02:34] Speaker 04:
But the issue in Parada was Nexus, right?

[00:02:39] Speaker 00:
Well, the Nexus is the second step, but there has to be a valid social group before you can move on to the analysis of Nexus.

[00:02:47] Speaker 04:
But I guess I'm still unclear. Do you think that case is saying family can be. A particular social group is – or family is always a particular social group.

[00:03:00] Speaker 00:
I think the precedent in the Ninth Circuit, I'd like to say it's always, but I don't necessarily believe that. I can concede a little bit to the government that there has to be – that there could be a situation where a family is not necessarily a particular social group.

[00:03:26] Speaker 00:
But I think that is a remote situation. I think what the government, though, is intending on relying on is the LEA-2, which was reverted back to after a matter of RERM, that was intended to wipe out family completely as a valid social group.

[00:03:56] Speaker 00:
And I think also with the looper.

[00:04:00] Speaker 04:
But how does it wipe it out totally? It says family can be a social group, but you need something more. So I read LEA 2 as saying family can't be a per se social group. You need something more.

[00:04:17] Speaker 04:
And that doesn't seem inconsistent with what you just said.

[00:04:21] Speaker 00:
Well, I think – but I think that they're trying to raise the bar too high. They're trying to – I mean, the intent of it was to eliminate family as a valid social group. They're trying to raise the bar as if aliens, immigrants would have to prove that their family was part of the Kennedys or the Trump family. They're not – They're not holding it to a reasonable standard that was contemplated by the Ninth Circuit in both the Rios case and the Prada case.

[00:05:02] Speaker 04:
What's the language that does? I mean, I just see based upon these immigration decisions in the ordinary case, a nuclear family will not without more.

[00:05:11] Speaker 04:
constitute a particular social group because most nuclear families are not inherently socially distinct.

[00:05:18] Speaker 04:
Does that statement conflict with Ninth Circuit law, or it seems consistent, no?

[00:05:25] Speaker 00:
Well, I think it conflicts with the Rios and the Parada case. In neither of those cases was the family particularly socially distinct or remarkable.

[00:05:38] Speaker 00:
In fact, in the Rios case, they It was more about religion.

[00:05:45] Speaker 00:
And the Ninth Circuit on its own actually recognized that the case should have been analyzed under the argument of family, and it got remanded for that reason.

[00:05:59] Speaker 00:
And it also emphasized that family as a particular social group does not have to be tied to another protected ground, that it can stand on its own.

[00:06:08] Speaker 00:
And so that's the whole point is in the Ninth Circuit, they recognize family as a quintessential social group, which essentially means it's a perfect example of a social group. And even in the cases cited by the government, that quotation has been included. What the government's arguing is they're using all these cases with social group analysis, but they're looking at – mostly gang cases, cases where people are claiming that there's some fear because of either imputed gang activity or threats from gangs, or they were a wealthy businessman.

[00:06:51] Speaker 00:
Because particular social groups can be a wide variety of, there can be a wide variety of arguments as to what your alleged social group is. Family is one of them. And most of the case law by the BIA and the Ninth Circuit covers other particular social group analysis on different arguments. But when you look only when you boil it down and look at the Ninth Circuit precedent on cases that are limited to the arguments for family, it does the Ninth Circuit does say it's a quintessential social group.

[00:07:23] Speaker 00:
And and you don't have to really go further in this particular instance.

[00:07:27] Speaker 04:
Are your two social groups basically boiling down just to families?

[00:07:34] Speaker 04:
Because you don't seem to make either social distinction or other sort of arguments about the second one of substantially physically looking like the murdered brother.

[00:07:47] Speaker 04:
Well, I'll boil down to family.

[00:07:50] Speaker 00:
Well, it boils down to family, but his remarkable likeness to his brother physically also is related to the argument of family.

[00:08:02] Speaker 02:
I think we asked for a supplemental briefing in this case, but I don't think we received anything from you on behalf of your client. Is there a reason for that?

[00:08:12] Speaker 00:
No, Your Honor. The government's brief basically just addressed the Looper case and was arguing that despite the fact that Chevron was overturned and the Ninth Circuit doesn't have to defer to the BIA or the agency decisions, they're they've just basically said the Looper case doesn't apply. And there was no need to really respond to that argument because regardless of whether Chevron applies here or doesn't apply here, which it doesn't, but even if it did apply here, family is still a quintessential social group in the Ninth Circuit.

[00:08:53] Speaker 00:
And the overturning of Chevron is not that material to this case. It adds a little bit of, an argument for us, but it's not dispositive.

[00:09:05] Speaker 01:
Going back to the second proposed social group, the substantial physical likeness, how would there be social distinction for that proposed social group?

[00:09:21] Speaker 00:
Well, first of all, even though I'm arguing that there's not social distinction There's not a high bar requirement in the Ninth Circuit because of the case law.

[00:09:36] Speaker 00:
In this case, the police told the family. I mean, this family did have social distinction after their brother was conspicuously murdered, and the family was specifically told by the police, don't let the males go to the funeral because they're in danger. I mean, that alone should be satisfactory to the BIA. Okay. that there was social distinction in this case because that is what happened.

[00:10:03] Speaker 01:
The fact that the police kind of called the family out as a unit that should stay away from the funeral.

[00:10:10] Speaker 00:
Absolutely. Yeah, that fact alone supports our argument. And so if there is a bar in the Ninth Circuit that there needs to be some social distinction, it has been met here. But the bar that the government is attempting to apply by reverting back to a matter of LEA too, that's an unreasonable, unbelievably high burden that the Ninth Circuit doesn't require.

[00:10:36] Speaker 02:
But doesn't the social group have to exist independently of the fact of persecution because the persecutors or perception is not itself enough to make a group socially distinct? Don't we have case law on that? What's your response to that?

[00:10:59] Speaker 00:
Well, the social distinction is, I mean, it can be from the persecutor and also can be from the community.

[00:11:12] Speaker 00:
But when it comes from the community, I mean, we do have that here, as I stated before, regarding the warning from the police.

[00:11:25] Speaker 00:
But yeah, I think that we do have that here.

[00:11:30] Speaker 02:
You have what here?

[00:11:33] Speaker 00:
That we have social distinction by both the persecutors and in the community.

[00:11:42] Speaker 04:
If the other brothers are living in Mexico unharmed, I guess doesn't that undermine your family, particular social group?

[00:11:54] Speaker 04:
I know that your client testified all, but they don't look like the deceased murdered brother. But if the particular social group is family, then you would think the other men in the family would equally be persecuted, wouldn't you?

[00:12:13] Speaker 00:
Yes, the other members of the family could be equally persecuted. However, the analysis under the asylum law is not whether the other family members have since been persecuted. We're just looking at whether the judge in this case and the board should have dismissed this claim almost entirely based on stating that family is not a social group in this case.

[00:12:43] Speaker 02:
Do you want to, well, your time is up. Thank you. Okay, thank you.

[00:12:51] Speaker 02:
You're up, Ms. Blah.

[00:12:52] Speaker 03:
Oh, I'm sorry, Your Honors.

[00:12:55] Speaker 03:
May it please the Court, Robin Blah for the government. In this case, Your Honor, we respectfully note that we were ordered to file supplemental briefs on Loeber-Bright. We did. He did not. He's had several opportunities to discuss the social distinction finding by the board, and he didn't do that in his opening brief. He could have done it in a reply brief or in that supplemental brief.

[00:13:21] Speaker 03:
In his brief to the court, he he I think it's on page 16, talks about distinction, but does not like point to any real evidence that indicates that this group is socially distinct in Mexican society, which was required.

[00:13:41] Speaker 01:
And this how how's the agencies, the BIA's conclusion here, not contrary to our. existing precedent that family is the quintessential social group?

[00:13:56] Speaker 03:
Well, Your Honor, I found this Gomez v. Bondi case that's from 2025.

[00:14:03] Speaker 03:
You can't just automatically jump to this is a particular social group. You have to do the three-prong analysis for a social group to be considered a social group. Here he just jumps over that and says, oh, family is the quintessential group.

[00:14:25] Speaker 03:
That's not how this works.

[00:14:29] Speaker 04:
But where did the agency do that three-step, right? The IJ just cited LEA saying in an ordinary case, a nuclear family will not constitute a PSG.

[00:14:45] Speaker 03:
I believe they – if I remember correctly, I believe the immigration judge did talk about the immutability aspect and then discussed the social distinction because all three prongs have to be met and found that social distinction wasn't met in this case.

[00:15:04] Speaker 02:
Did the BIA do that?

[00:15:07] Speaker 03:
Did the board? No. They did point out, I believe, that they had to – that he had to meet the three-prong analysis. But then they talked solely about social distinction.

[00:15:23] Speaker 04:
So the IJ found the two groups were immutable, then said neither group is socially distinct. There's no evidence in the record that the substantial physical likeness to the respondent's murder brother is a group that Mexican people generally recognize, and then just said LEA2. So was there a...

[00:15:41] Speaker 04:
an actual factual finding on social distinction with respect to the first group of family?

[00:15:51] Speaker 03:
I mean, the immigration judge did consider it, and under LEA considered that, like, it's not automatically a social group, that he did need to show evidence indicating, like, that there was some social group, that his group was, considered distinct within Mexican society. He just cursorily said, oh, my case, I'm family. It's a social group.

[00:16:21] Speaker 03:
That's not the type. You need to provide evidence. This court has said that you need to provide evidence.

[00:16:28] Speaker 02:
What evidence, in your view, would Petitioner need to provide? It seems like his PSG is his nuclear family.

[00:16:44] Speaker 02:
what else would he need to provide?

[00:16:48] Speaker 03:
I mean, he's providing it basically from his persecutor's perspective, but that's not how the Mexican society considers that group.

[00:16:58] Speaker 02:
He testified to how his family was being targeted. His sisters received threats after his brother was killed. I'm just curious, what more would he have needed?

[00:17:12] Speaker 03:
I mean, he basically just concludes that the family was being sought because of his brother. There's no indication. He indicated that they have no idea who killed his brother, who sent these notes. They have no indication why. I mean, it could have been just common crime that these were being, you know, common extortion.

[00:17:34] Speaker 02:
Did the BIA go through that analysis?

[00:17:38] Speaker 03:
Your Honor, no, but

[00:17:39] Speaker 02:
I mean, that matter to us that the BIA didn't go through that analysis.

[00:17:46] Speaker 03:
I mean, they found that it wasn't socially distinct. He didn't provide any. They were more focused on the particular social group than they were like on, you know, who was who he was claiming was persecuting him in the past or his family. I should say he wasn't persecuted. And so.

[00:18:07] Speaker 02:
And you're not asking us to overturn our precedent that says that family is PSG. I think it seemed like from your supplemental brief that you're asking us to deny under the substantial evidence. But without the BIA going through this analysis, I'm not quite sure how we would do that.

[00:18:34] Speaker 03:
By this court's own case law, I don't believe it's made any exception for a family.

[00:18:40] Speaker 03:
This court has said that to establish a particular social group, you have to show those three prongs.

[00:18:46] Speaker 02:
Yeah, but regardless of persecution, it seems like his nuclear family exists independently of the fact of persecution, doesn't it, under our case law?

[00:18:59] Speaker 02:
I'm sorry, could you ask that again? His nuclear family seems to exist independently of the fact of persecution. At least that's what it seems like under our case law. So I'm trying to figure out what else does he need to show?

[00:19:18] Speaker 03:
Under this court's case law, they've said that He should show his group is distinct by media reports, country conditions evidence.

[00:19:28] Speaker 02:
What case are you referring to? Just so I can see if the facts are similar. I believe it's Gutierrez Alm, Your Honor. You believe, or it is? I'm sorry, I just want to be clear because that's what I'm going to look at for this.

[00:19:45] Speaker 03:
Yes, it's Gutierrez Alm.

[00:19:47] UNKNOWN:
Okay.

[00:19:48] Speaker 04:
Can I ask you if the Mexican police, tell the men in the family, don't get involved so no one else gets, you know, nothing happens to anyone else. Why isn't that the Mexican government acknowledging that this family is socially distinct, or at least the men in this family are socially distinct?

[00:20:09] Speaker 03:
I mean, there are other members of his family that are still in Mexico that have not been, male members that have not been harmed.

[00:20:15] Speaker 04:
Right. Now, that might go to the merits of the claim, and that's an analysis that would have to come later, but just on the social distinction element only.

[00:20:27] Speaker 03:
It's not clear from the record why they said that.

[00:20:30] Speaker 04:
Well, but it could still be evidence that the Mexican government thinks the men in this family are socially distinct.

[00:20:43] Speaker 03:
I mean, I guess it could be, but the evidence isn't clear on that. There could have been other reasons why they said that.

[00:20:54] Speaker 01:
I'm sorry, Judge Coe, were you done with your question? Yes. Okay. You referred us to Gutierrez's home, but I'm just wondering what part of Gutierrez's home you think supports your argument? Because in Gutierrez's home, we recite our holding, again, that family is the quintessential social group, but that in that case, Gutierrez had not The record didn't compel the conclusion that Gutierrez-Alm would have been targeted based upon his father's opposition to the Sandinista government in that case.

[00:21:31] Speaker 01:
But here you have a petitioner who's arguing that he is going to be targeted because he looks like his brother. So he's offered us some evidence here. I'm just wondering how Gutierrez-Alm actually supports your point because, again, we did reemphasize our holding there.

[00:21:52] Speaker 03:
Gutierrez-Alm requires that social distinction analysis requires an evidence-based inquiry. And so as to whether the relevant society considers that group socially distinct within it.

[00:22:12] Speaker 03:
And that's where they said that ordinarily, like you would show that through country condition evidence, or reports expert witness testimony.

[00:22:21] Speaker 01:
But when it comes to the proposed family social group in Guterres' home, the holding is that his third proposed social group, family members of people who oppose the government, fails. While it is generally accepted that the family remains the quintessential particular social group, the record does not compel the conclusion that that Gutierrez would be targeted for persecution based on his father's opposition to the Sandinista government.

[00:22:52] Speaker 01:
When we talk about social distinction there, it's referring to his claim about gang membership, not to his family, a proposed social group in that case. So I guess I don't – you might refer me to some other portion of that case, but I don't see the portion of the case where we're talking about social distinction and family.

[00:23:12] Speaker 03:
I'm not aware of any case that this court has said that you shouldn't have to do the three-prong analysis of the social group.

[00:23:22] Speaker 03:
I think in the past that part of the problem with the first LEA case was that the parties just assumed that a family was a social group and went from there. And that's part of the reason LEA 2 overruled LEA 1. And I think some of that comes into play here.

[00:23:46] Speaker 02:
Do you have anything else?

[00:23:49] Speaker 03:
No, if you have no further questions. All right.

[00:23:51] Speaker 02:
Thank you. Thank you.

[00:23:54] Speaker 02:
Mr. Jacobs, you're out of time, but I'll give you one minute to respond.

[00:23:59] Speaker 00:
Oh, thank you.

[00:24:02] Speaker 00:
Even if we went back to LE1 or LE2, LEA2, the Ninth Circuit had separate precedent and they did not have to follow LE1 or 2. So In a sense, that's quite irrelevant. Not irrelevant, but it's not dispositive. And that also goes back to the fact that Looper overruled Chevron is also not necessarily dispositive. Regardless, the Ninth Circuit precedent has always been that family is a quintessential social group.

[00:24:37] Speaker 00:
And if there's any social distinction required, it definitely has been met here. Um, and that the level required by the ninth circuit is, is nowhere near the, the level that's, um, uh, alleged or suggested by, um, matter of R E R M. Um, and also going back to the Gutierrez Alm case, they were analyzing, um, for actual claims and, um, fearing gang recruitment, deportees, and being a suspected gang member in addition to family.

[00:25:15] Speaker 00:
And as stated, the analysis of the three-pronged test went more towards the other three social groups. And also the family social group in that case wasn't a case that like we have here. It was whether he could be targeted for persecution based on father's opposition to the Sandinista government back in the 1980s. And this is a case from 2023. Whereas in our case, we're talking about the family had received death threats or extortion threats as recently as two weeks before the May 2021 hearing.

[00:25:49] Speaker 00:
And so the fact of the family being recognizable is much more apparent here than it would be in a 2023 case talking about whether something that happened in the 1980s would cause that family to continue to be cognizable.

[00:26:13] Speaker 02:
All right. Thank you very much, Mr. Jacobs and Ms. Bly. I appreciate your oral argument presentations here today. The case of Garcia