[00:00:00] Speaker 04:
I think we're all set.

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

[00:00:01] Speaker 04:
You all will take that case under advisement The next case on the oral argument calendar is should be Gonzales There it is Gonzales Argueta versus Bondi 25-557

[00:00:49] Speaker 04:
We're ready for argument.

[00:00:51] Speaker 04:
Thank you.

[00:00:59] Speaker 00:
Good morning, and may it please the court.

[00:01:00] Speaker 00:
I'm Joseph A. Lear on behalf of Petitioner Miguel Gonzalez-Argueta, who was a police officer in El Salvador.

[00:01:07] Speaker 00:
In this case, the ultimate issue is that

[00:01:14] Speaker 00:
In this case, the immigration judge focused his analysis on a lack of nexus to petitioners' proposed social group in the past persecution context almost exclusively.

[00:01:28] Speaker 00:
Unlike the case you were just discussing, this is a case that does not present a situation where the petitioner suffered harm rising to the level of persecution after he quit the Salvadoran police.

[00:01:42] Speaker 00:
In this case, the persecutory harm

[00:01:44] Speaker 00:
that he is alleging did take place while he was a current active anti-gang police officer.

[00:01:50] Speaker 00:
In this case, however, the immigration judge mentions the legal standards for a well-founded fear of future persecution but does not engage in any individualized analysis, instead saying basically because he was not persecuted in the past based on being a former police officer, there's no well-founded fear of future persecution.

[00:02:13] Speaker 00:
However, the problem with that is that now respond, pardon me, Petitioner is a former police officer.

[00:02:20] Speaker 00:
It's an immutable trait.

[00:02:21] Speaker 00:
He can never not be a former El Salvadoran police officer now.

[00:02:26] Speaker 00:
So it's very difficult for the BIA, well, the BIA adopted the IJ's decision under Bourbono.

[00:02:33] Speaker 00:
So we're really looking at the IJ decision.

[00:02:36] Speaker 00:
There's just not enough, there's no meaningful analysis of Petitioner's well-founded fear future persecution claim here.

[00:02:43] Speaker 04:
I'm not sure I understand your argument, because we have a number of cases, as you know, where folks are coming to seek persecution.

[00:02:51] Speaker 04:
They've been found, sorry, asylum.

[00:02:53] Speaker 04:
They've been found credible.

[00:02:54] Speaker 04:
They've had these terrible experiences.

[00:02:56] Speaker 04:
And from a commonsense standpoint, you would think, fill in the blank, El Salvador for this hypothetical would be a very dangerous place for this person to return to.

[00:03:08] Speaker 04:
But we have case law that talks about status as a former, I'll say, police officer for this hypothetical.

[00:03:14] Speaker 04:
not being cognizable when we're looking at actions taken when the person had that status.

[00:03:23] Speaker 04:
And then we had case law in Iowa recognizing, well, there might be.

[00:03:28] Speaker 04:
There might be if it really can be shown that the persecution is on account of the status, not actions taken, but the status of being a former police officer.

[00:03:41] Speaker 04:
And those cases turn out to be few and far between.

[00:03:44] Speaker 04:
But I think there's a clear line there.

[00:03:46] Speaker 04:
What I don't understand is why you think it's different that your client is focusing on future persecution.

[00:03:54] Speaker 00:
Well, because the crux of Judge Jan Fardino's decision was that while he was harmed by MS-13, he was a current police officer.

[00:04:04] Speaker 04:
That's because we've got this bright line of cases about that.

[00:04:07] Speaker 00:
Correct.

[00:04:08] Speaker 00:
And that's not in dispute.

[00:04:11] Speaker 00:
It's that when

[00:04:12] Speaker 00:
when Respondent quit and fled El Salvador, he only then became a former El Salvador.

[00:04:18] Speaker 04:
That's true in all those cases, right?

[00:04:19] Speaker 00:
Right.

[00:04:20] Speaker 04:
Two in all these cases, OK.

[00:04:21] Speaker 00:
Right.

[00:04:21] Speaker 00:
But what's interesting in reviewing all this case law and the oral argument you just heard is most of these cases, both at the BIA and at the Ninth, dealing with former military, former police, because it's not exactly uncommon in the Western Hemisphere.

[00:04:33] Speaker 00:
Unfortunately, yes.

[00:04:36] Speaker 00:
Our cases where the petitioner was military police, harmed, then left,

[00:04:42] Speaker 00:
and suffered more harm in the country before fleeing, and therefore that is the subject of it.

[00:04:48] Speaker 04:
Oh, it is relying on that.

[00:04:50] Speaker 00:
Right, it's the subject of a past persecution analysis.

[00:04:52] Speaker 04:
Do you think it makes your claim stronger that your client is relying only on the actions, persecution based on the actions he took while he was a police officer?

[00:05:03] Speaker 00:
Well, in this case, there's basically no analysis as to whether or not he has

[00:05:08] Speaker 00:
He only became, so his claim is that, you know, former status police officer, and there's no analysis of whether or not he has a well-founded fear or an objectively reasonable fear of persecution.

[00:05:20] Speaker 04:
So is your request that we remand for that analysis?

[00:05:22] Speaker 00:
Yes.

[00:05:23] Speaker 00:
All right.

[00:05:25] Speaker 00:
And this case, again, as you discussed with counsel in the other cases, is a mixed motive case, clearly, in that this local MS-13 gang leader, clearly based on this record,

[00:05:37] Speaker 00:
They don't like the police, but they didn't like this guy in particular because... Well, I'm not sure it's mixed motive.

[00:05:44] Speaker 04:
I certainly understand why it's a particularized risk as to him, but that's also true of any of the cases that talk about a former police officer or a member of the military who really engaged with and has taken actions, maybe very successfully against a cartel, when they're trying to act out of

[00:06:02] Speaker 04:
retaliation or retribution.

[00:06:05] Speaker 04:
So how does that help us?

[00:06:06] Speaker 00:
Well, OK, so I agree.

[00:06:08] Speaker 00:
The mixed motive is this, however.

[00:06:09] Speaker 00:
MS-13 in El Salvador is a nationwide designated terrorist group.

[00:06:14] Speaker 00:
And this record contains evidence that they take actions, concerted actions, meaning to move the political needle of El Salvador's government leadership.

[00:06:24] Speaker 00:
So while it may be the case that they don't like this officer because he messed with the wrong gang leader or whatever, if he goes back,

[00:06:32] Speaker 00:
He is now a former police officer, and they have been shown to take actions against state actors as a political or as a way of punishing or punishing the group as a way of moving the political needle.

[00:06:48] Speaker 04:
That's why your claim is intention.

[00:06:50] Speaker 04:
I think it has to be the case that you're arguing that they're taking actions against him because of his status, not actions that he took.

[00:06:58] Speaker 04:
But you're relying simultaneously on specific actions and specific threats as to him.

[00:07:03] Speaker 04:
And those particularized risks cut against your argument that it's really his status as opposed to him.

[00:07:08] Speaker 00:
Well, that's what I mean by mixed motive.

[00:07:09] Speaker 00:
I think it can be both.

[00:07:11] Speaker 00:
They have personal animus towards him.

[00:07:13] Speaker 00:
And there is a clear probability that they may take action against him, possibly this particular localized gang, because of their vendetta.

[00:07:22] Speaker 00:
But this MS-13 is a nationwide problem in El Salvador.

[00:07:26] Speaker 00:
Says as a former police officer whether he had beef with an in a particular gang leader or not Is still running that is still running that risk a very serious one your client didn't bring a claim for a political persecution He did actually but I mean here.

[00:07:43] Speaker 00:
We're not no and it was an interesting progression there There was no briefing at the Bia I didn't represent this petitioner at the IJ level or the Bia level so some arguments were made to the to judge Dan Fardino at the IJ level and

[00:07:56] Speaker 00:
There's no briefing or anything at the bia level so certain claims political one of the other psg's political opinion and cat were all essentially deemed abandoned other questions No, okay.

[00:08:08] Speaker 04:
Thank you council.

[00:08:09] Speaker 04:
We can reserve the rest of your time.

[00:08:10] Speaker 04:
Thank you

[00:08:25] Speaker 03:
May it please the court?

[00:08:26] Speaker 03:
Nell Seymour on behalf of the Attorney General.

[00:08:29] Speaker 03:
The harm petitioner fears in this case is based on actions he took while he was serving as a police officer in El Salvador.

[00:08:36] Speaker 03:
But there is nothing to suggest on this record that Killer or any other member of the MS-13 gang would be motivated to harm him on account of his status as a former police officer or any other statutorily protected ground.

[00:08:49] Speaker 01:
But each time he was acting against a killer, he was acting in the course and scope of his authority as a military police officer in El Salvador, correct?

[00:08:59] Speaker 03:
As a current police officer, yes.

[00:09:00] Speaker 01:
So doesn't that tell us that he is threatened by a killer?

[00:09:09] Speaker 03:
He was threatened by Killer, but at that time he was serving as a then acting police officer, whereas now he is claiming he will be harmed on a status as a former police officer, and the record doesn't support that.

[00:09:23] Speaker 01:
Because Killer hasn't found him wherever he might be.

[00:09:27] Speaker 03:
Not only that, Your Honor, the motivation for Killer to target Petitioner wouldn't be because of his status as a former police officer.

[00:09:35] Speaker 03:
He was brought to the attention of the gang

[00:09:37] Speaker 03:
while an active police officer.

[00:09:40] Speaker 03:
But his claim now is that they would target him because he used to be, and that's not what the record reflects.

[00:09:51] Speaker 03:
Petitioner had the burden to establish that killer would be motivated by a desire to overcome animus towards his claimed protected characteristic, which in this case is his group membership.

[00:10:01] Speaker 03:
and he failed to do so.

[00:10:03] Speaker 03:
Instead, the record reflects that any harm would be directed at him for his role in disrupting criminal activity.

[00:10:09] Speaker 03:
And that's supported by petitioner's own testimony with comments such as gangs will kill anyone who get in their way and that gangs are known to hold vendettas.

[00:10:18] Speaker 02:
Isn't it circular to say that rather than being harmed because he was a police officer, petitioner was harmed because of his role in disrupting particular criminal activity?

[00:10:26] Speaker 02:
I mean, disrupting criminal activity is exactly what police officers do.

[00:10:32] Speaker 03:
That's correct, Your Honor, but this court's focus is on the future reasons for why he would be harmed.

[00:10:36] Speaker 03:
So the fact that he's a former police officer isn't going to be the motivation of killer.

[00:10:44] Speaker 03:
It doesn't follow that because killer may have wanted to stop him in his then active role as someone who could interrupt his criminal activities, that he would now have any interest in him as someone who used to be someone who could get in his way.

[00:11:02] Speaker 03:
And this precedent in the agency of this circuit and this... I can't understand that.

[00:11:08] Speaker 01:
If Killer threatened him several times when he was in Salvador as a police officer, now when he comes back to Salvador, won't Killer threaten him again?

[00:11:17] Speaker 03:
The record doesn't help propel that conclusion, Your Honor, and that's because Petitioner had the burden to establish the nexus, the characteristic upon which he believes

[00:11:28] Speaker 03:
he would be harmed.

[00:11:30] Speaker 01:
He'd be harmed because of what he did before as a police officer.

[00:11:35] Speaker 03:
That would fall under the realm of personal retribution, Your Honor, and not a statutorily protected ground.

[00:11:40] Speaker 03:
The group he put forward.

[00:11:43] Speaker 01:
But it's personal because Gomez-Argueta was acting as a police officer, not because Gomez-Argueta was angry with the killer because killer was going out with his daughter.

[00:11:58] Speaker 03:
That may be true.

[00:11:59] Speaker 03:
If Killer is motivated to harm him because of retribution or retaliation, that doesn't give rise to nexus in this case.

[00:12:06] Speaker 03:
And it doesn't support his claim for asylum or withholding of removal, because a purely personal retribution isn't sufficient.

[00:12:13] Speaker 04:
That's the problem.

[00:12:14] Speaker 04:
That's, I think, what Judge Desai is getting at in calling this.

[00:12:18] Speaker 04:
It does feel very circular, because if it were purely personal,

[00:12:24] Speaker 04:
In the way Judge Bea suggests, like somebody's having an affair with somebody's wife, of course that's not actionable.

[00:12:31] Speaker 04:
But of course here, the thing that makes this so dangerous is because he was effective against a gang member.

[00:12:36] Speaker 04:
He had sort of hand-to-hand combat.

[00:12:39] Speaker 04:
That's my paraphrase, right?

[00:12:41] Speaker 04:
So it seems that much riskier, that much more likely he's going to be at grave risk if he is returned.

[00:12:48] Speaker 04:
And so to say, well, that's just because he's a former police officer is

[00:12:53] Speaker 04:
right, because he's doing his job.

[00:12:56] Speaker 04:
That's exactly what officers do.

[00:12:57] Speaker 04:
So when the BIA reasons, oh, it's not because he's a police officer, it's just that a member of a gang, they'd try to take out anybody who was effective against him.

[00:13:06] Speaker 04:
It puts these folks in a box where I'm not sure they can ever prevail.

[00:13:10] Speaker 04:
Is there a way he could prevail?

[00:13:12] Speaker 04:
Someone, a hypothetical, not this guy, is there a hypothetical former police officer who could prevail on this type of a claim?

[00:13:18] Speaker 04:
What would it take?

[00:13:19] Speaker 03:
There are retaliation for some anti, fill in the blank, gang, sorry, anti-gang, anti-cartel activities might support a nexus to a former status PSG, but the targeting would have to reflect broader intimidation as opposed to a personal score setting or some kind of retribution.

[00:13:41] Speaker 03:
And he would also need to show that petitioner himself was in a similarly situated

[00:13:47] Speaker 03:
position as those officers and the court could look at things such as time served, who exactly he came up against, and there would also have to be a sufficient likelihood that he would be persecuted based on that former status and the government would like to redirect us to that.

[00:14:02] Speaker 03:
The issue is not past persecution.

[00:14:05] Speaker 03:
Petitioner has

[00:14:06] Speaker 03:
conceded that there was no past persecution on account of our protected ground.

[00:14:10] Speaker 03:
We are only forward looking.

[00:14:11] Speaker 04:
Right.

[00:14:11] Speaker 04:
But we're forward looking, too.

[00:14:13] Speaker 04:
And we're trying to figure out what the government's rule is here, because it's really a thin line.

[00:14:17] Speaker 04:
And I really would like your help.

[00:14:19] Speaker 04:
And I appreciate you're so well prepared for argument.

[00:14:21] Speaker 04:
But the way I read these cases, and there's an awful lot of them, I just would like you to tell me why I'm wrong about the following.

[00:14:31] Speaker 04:
It seems that we do have cases that say just a few.

[00:14:35] Speaker 04:
But there's this opportunity when the persecution is on account of status as a former police officer or status as a member of the military.

[00:14:46] Speaker 04:
And the example that I gave from the case law is the case about somebody who was identified as being a member of the, I'll say, palace guard, a person who is a member of the military who guarded the president's daughters.

[00:14:59] Speaker 04:
You know the case I mean.

[00:15:01] Speaker 04:
So if that's the case and situation

[00:15:05] Speaker 04:
then it seems like the government's rule for somebody who helped during a coup guard the soon-to-be-deposed president would be cognizable if he's recognized as having been the palace guard.

[00:15:23] Speaker 04:
But the same person who helped smuggle the president out of the country or helped get the guy on the helicopter to get him to evacuate would not.

[00:15:32] Speaker 04:
Because one is the action of helping the president, the specific action of getting him out of the country.

[00:15:38] Speaker 04:
And the other is just the status of being a guard as to this deposed president.

[00:15:44] Speaker 04:
And I can't make sense of that.

[00:15:45] Speaker 04:
But I think that's what your case law says, or that's how I read your argument.

[00:15:51] Speaker 03:
Why is that wrong?

[00:15:53] Speaker 03:
I'm not sure that it is wrong, Your Honor.

[00:15:57] Speaker 03:
The issue is that it's not just about the cognizability of the PSG.

[00:16:01] Speaker 03:
There are also other elements that petitioner is responsible for proving.

[00:16:05] Speaker 04:
Well, in my silly hypothetical, why would one work and one would not?

[00:16:10] Speaker 04:
Whichever element you want to talk about.

[00:16:12] Speaker 04:
I'm really fascinated by this, and I want to make sure we get it right.

[00:16:19] Speaker 03:
Even if assuming the social group was cognizable, as I believe we are in your hypothetical, right, that the former, okay.

[00:16:29] Speaker 04:
Right, he's known as, his status is he's the palace guard.

[00:16:35] Speaker 03:
I think it would come back to, I appreciate the confusion around this, and I do think it is hair-splitting and a fine line, but one that's important between

[00:16:47] Speaker 03:
causation and motivation.

[00:16:49] Speaker 03:
And so I think in your hypothetical, if they were motivated to harm someone because of their former status, because they were aware of that former status and because they could show a well-founded fear on account of that former status, it might prevail.

[00:17:07] Speaker 03:
Whereas someone who they themselves know that they were a player in this but they can't

[00:17:14] Speaker 03:
The record doesn't compel the conclusion that anybody else knows that?

[00:17:17] Speaker 04:
My hypothetical is that the PSG is established.

[00:17:19] Speaker 04:
He's socially visible.

[00:17:20] Speaker 04:
He's recognized as the guy who helped the president get on the helicopter.

[00:17:24] Speaker 04:
Maybe there was a photo on the front page, but he's known as that.

[00:17:27] Speaker 04:
I don't understand why that person couldn't prevail under the government's theory of how these cases stitch together.

[00:17:38] Speaker 04:
It would have to be.

[00:17:40] Speaker 04:
I apologize, I'm not giving you a more... Well, no, I'm giving you a tough question, but we're really trying to dig into this, and I appreciate that you're struggling with it as well.

[00:17:48] Speaker 04:
You see our difficulty with why this feels so circular, either circular or that somebody has to express the precise magic words when they apply, and nobody means that.

[00:18:00] Speaker 04:
That's not a reasonable... That's not the argument you're making, and I appreciate you're not.

[00:18:04] Speaker 03:
No, Your Honor.

[00:18:08] Speaker 03:
It is petitioner's burden to establish eligibility for asylum and withholding, which means that they have to establish all of the elements.

[00:18:14] Speaker 03:
And so the government's position is not that there are magic words or that there are certain cases where it's very clear X, Y, Z. It all depends on the evidence throughout the record.

[00:18:26] Speaker 03:
And so in a case like this, where a petitioner fails to point to any evidence, direct or circumstantial,

[00:18:32] Speaker 03:
that the people he fears would be motivated, independently motivated by his status as a former police officer, his claim fails.

[00:18:40] Speaker 03:
So assuming there is a hypothetical case wherein somebody could prove they would be motivated by that former status and also meet the other elements required.

[00:18:51] Speaker 04:
So your answer is this is not that case and just answer the question.

[00:18:54] Speaker 04:
We should just answer the case before us.

[00:18:56] Speaker 03:
With apologies, Your Honor.

[00:18:58] Speaker 04:
I didn't mean to be flippant.

[00:18:59] Speaker 04:
I'm not suggesting that you were, but I appreciate your

[00:19:02] Speaker 04:
Your point and I appreciate your argument.

[00:19:05] Speaker 04:
Is there anything further?

[00:19:07] Speaker 00:
I don't think so we're going to let you off the hook Thank you for your patience with our questions council you have some time for rebuttal Just have one further comment your honor the ninth and the BA have well particularly ninth have held that this type of claim has to be considered in the particular political and social milieu of the country and

[00:19:32] Speaker 00:
in question in El Salvador is somewhat unique in this regard.

[00:19:36] Speaker 00:
MS-13 and its actions against state actors such as military or police, because of the nature and scope of MS-13 in El Salvador, have an inherently political aspect to them.

[00:19:48] Speaker 00:
And when I say political, I don't mean in the sense of a political opinion or imputed political opinion.

[00:19:53] Speaker 00:
But they have a motive to harm former police officers or agents of the state for different reasons than just

[00:20:02] Speaker 00:
while he arrested my leader, my friend, or he interfered with our gang activity.

[00:20:06] Speaker 00:
El Salvador, certainly not the only country that has an issue with gangs, particularly in Central America.

[00:20:13] Speaker 00:
But it's a small country with a massive gang issue, particularly MS-13, that controls territory and acts more as a... That's part of the problem that you've got.

[00:20:23] Speaker 04:
The IJ said, somebody who fights effectively, how is that cognizable?

[00:20:31] Speaker 04:
not going to apply to hundreds of people.

[00:20:34] Speaker 04:
How is it socially visible?

[00:20:36] Speaker 00:
Well, the IJ in this case actually found that that particular proposed social group, because there were two proposals, was not cognizable.

[00:20:42] Speaker 04:
But the argument you're making now is the one he found not cognizable.

[00:20:45] Speaker 00:
Well, I think the argument I'm making now is just the unique situation in El Salvador.

[00:20:51] Speaker 00:
Perhaps not completely unique.

[00:20:52] Speaker 00:
There are other countries with this issue.

[00:20:55] Speaker 00:
But the question is, would he be harmed in the future

[00:21:00] Speaker 00:
solely based on personal animus, or could it be because of personal animus and because, as a former police officer, they want to punish and overcome people who have that status of having been a police officer.

[00:21:17] Speaker 04:
What is the best evidence in this record that your client would face future persecution on account of his status?

[00:21:25] Speaker 04:
There's a... As opposed to past actions.

[00:21:28] Speaker 04:
What's the best of that?

[00:21:29] Speaker 00:
Sure.

[00:21:30] Speaker 00:
In the... There's a country conditions report at AR, at Administrative Record 279 and 285 where, quote, as recently the Vice Minister of Justice and Security, Raul Lopez, said that the gangs have increased their crime rate to force the government to soften extreme measures.

[00:21:50] Speaker 00:
That's not specific to Petitioner, of course.

[00:21:54] Speaker 00:
indicates that they have a motive to punish people based on that status not just on I Don't like that they arrested my friend right got it.

[00:22:03] Speaker 04:
Thank you for your argument both of you We appreciate it very much their important cases there They're difficult, and we'll take good care with this song take it under advisement