[00:00:00] Speaker 01:
Can you hear me okay?

[00:00:02] Speaker 05:
We sure can. All right.

[00:00:03] Speaker 01:
Good morning, Your Honor. May it please the court. My name is Luis Cortez, and I'm here on behalf of the petitioners. I'll endeavor to reserve about two minutes for rebuttal, and I'll watch my time.

[00:00:12] Speaker 01:
Your Honors, I would like to address three things I think before the court, the first being the CAT evaluation by the agency, then followed by the particular social group evaluation, both the cognizability and then the nexus. But I think I can try to dispose of the CAT argument quickly enough to try to get to the other arguments. Go a little slower, would you please, counsel? Yes, of course, Your Honor. Excuse me.

[00:00:33] Speaker 01:
Here, Your Honor, the CAT analysis is structurally deficient, and I think this is what we want the court to fix. First, our argument is that the agency's CAT evaluation did not grapple or actually evaluate the evidence as required by this court and by required by the law. For example, they did not provide or did not mention the country condition evidence that was submitted into the record, and there were hundreds of pages of it. Now, the government, what they argue is that they cite the cases about the court not needing to cite the specific pinpoint aspects of the case, and that the court seemed to have a general, we looked at the evidence, and so therefore that's sufficient for this court to conclude that that's what the agency did in the CAT evaluation.

[00:01:24] Speaker 01:
But this court's case in Andrade, I think it sets a specific standard where CAT requires an independent evaluation of the country condition reports.

[00:01:35] Speaker 04:
And so... So what is it about the country condition reports that would be helpful here on the CAT claim? The country condition... There's a few... Be helpful regarding the CAT claim.

[00:01:45] Speaker 01:
Right. Your Honor, things like... And I have some of the sites here for you.

[00:01:50] Speaker 01:
One of the things that we submitted into the record was that the homicide rates had increased by 45%.

[00:01:58] Speaker 01:
But when the outdoor defense took place in this very municipality and that the that the actions that this which they now become a state actor, that they engaged in torture and that evidence came from a diversity of of sources from congressional reports to former military personnel to news reports. So it came from all over about the type of harm that stored the torture specifically involved. prohibits or the convention.

[00:02:29] Speaker 04:
And relating to the out of the fences.

[00:02:31] Speaker 01:
To the out of the fences as they were conducting it in the location that they were controlling, which is where the petitioners were directly living. They were living in the birthplace. And so there are all these country condition reports that indicate the likelihood of torture, which is what the immigration judge had the biggest problem here with. The immigration judge found that out of the fences were state actors, that the actions that they would conduct would be torture. The question was about what was the likelihood. And so in the hundreds of pages of evidence, the agency disposed of it with about a single paragraph that doesn't itself mention any of the country condition reports.

[00:03:11] Speaker 01:
The mentioning of that there was some evidence that was mentioned was done earlier in the case. And the cases that the government cites too is specific to asylums. the asylum evaluation. And I think this is particularly important because in the Ninth Circuit, things like country condition reports alone could be sufficient to establish CAT eligibility. So not mentioning in the CAT analysis becomes a structural defect that this court can then fix and remand so that they can actually look at the country condition reports as required by Andrade.

[00:03:47] Speaker 04:
You would want us to remand us to CAT with directions to consider all the country conditions evidence.

[00:03:54] Speaker 01:
I think that that's the most appropriate here, Your Honor.

[00:03:56] Speaker 04:
Anything else they didn't consider?

[00:03:57] Speaker 01:
In terms of the CAT evaluation, Your Honor? Yes. Yes. I mean, excuse me, the things like, I will cite to the case, in AR 395, it talks about how the homicides wrote for 45%.

[00:04:13] Speaker 01:
Um, the AR 3 18, uh, talks specifically about, um, how the, uh, the outdoor defense says who were, became state sponsored and became African-American. They themselves started working eventually with the organized crime groups that ended up being there, uh, which increases the likelihood. Cause now there are these two groups that petitioner has to worry about.

[00:04:34] Speaker 03:
Um, we also have pages, uh, Is there any evidence that the Knights Templar are state actors?

[00:04:40] Speaker 01:
No, there's no evidence that the Templars are state actors, but the autodefensas, who are state actors, were working directly with them.

[00:04:46] Speaker 02:
Well, but you can't increase the likelihood by non-state actors.

[00:04:51] Speaker 01:
Not by non-state actors, but, Your Honor, the cat evaluation is either by the government or somebody that the government acquiesces to. So if the state of the autodefensas, who is the police force there, is working directly with them, that's the acquiescence.

[00:05:05] Speaker 02:
Are they acquiescing to the Knights Templar? Yes.

[00:05:07] Speaker 01:
Yes.

[00:05:09] Speaker 03:
Yes. That's what the country condition.

[00:05:11] Speaker 02:
The offenses were fighting the Knights Templar.

[00:05:13] Speaker 01:
That's the, that's the very interesting thing that happened in, in this, in this situation in Mexico is that they rose to do that. And eventually once they got control of the territory, they ended up working with the very same group that they were fighting against.

[00:05:28] Speaker 03:
And do you have any citations to the record? Yes.

[00:05:31] Speaker 01:
If you look at page, um, uh, three 18, uh, it's, uh, there was a member of the, stating that the outer defenses and night Templars are pretty much on the same team. And this was a member of the outer defense of saying that. And so it's, so it's an interesting phenomenon. I said, what ended up happening, this group gate power, and then that power corrupted.

[00:05:58] Speaker 05:
But the, do you not think, I mean, on AR 80, 81, that the IJ didn't, you know, essentially acknowledge the country conditions report in describing the auto defenses as having a connection with the government authorities and, you know, having been deputized to some degree? Is that not some indication that the IJ considered the evidence?

[00:06:21] Speaker 01:
Maybe, Your Honor, but the rule that Andrade establishes is that, first of all, they need to look at the State Department reports that they were filed, and those were not mentioned in the CAT evaluation. And Andrade makes that pretty clear. And so the structural program even begins from there. Even if there was some indication that they might have been hinted to it, it doesn't grapple with it in the way that the law requires it. And that's specific to the CAT evaluation because CAT does require independent analysis, given that there's just a different structure to look at it when we're looking at likelihood.

[00:06:54] Speaker 01:
And so those are, I think, the main structural defects, Your Honor. But as we argued in the briefing, I won't spend too much time on this, but Even if the court comes to the conclusion that the there wasn't an Andrade violation where they didn't look at it. So and so that they did look at the country condition evidence. Then looking at the weight of the evidence, the immigration judges, one paragraph doesn't seem to grapple with all of these very important statistical and very significant question of the likelihood of torture, which is the only question that was remaining here is there because he said there was a possibility of torture.

[00:07:31] Speaker 01:
But he didn't – he said that it falls short to the likelihood of torture.

[00:07:35] Speaker 05:
And so the court doesn't have to – What do you think in the country conditions – what do you think in the country conditions report would suggest that your client has a particularized risk of torture?

[00:07:45] Speaker 01:
Yes. So sliding back to the AR-395 where they talk about how the rate of homicides increased by 45 percent, but also, Your Honor, the –

[00:08:02] Speaker 03:
I'll try to get the specifics, but in the record... It's not particularized to this man, is it?

[00:08:07] Speaker 02:
Excuse me? It's not particularized to this man. I think Judge Bress asked you... Oh, I'm sorry. To particularize increase in risk.

[00:08:15] Speaker 01:
For the petitioner. Yes, Your Honor. The increase for him specifically was that the Out of the Fensas members came to him specifically repeatedly. They knew who he was. And at first they were asking for things like money and other types of resources, which he obliged. And he had been doing for quite some time, even in the extortion portions of it. He just figured that that was a part of life in Mexico. And it wasn't until they told him that they wanted him and his son to officially participate, physically participate, and they told him what would happen if they didn't.

[00:08:48] Speaker 01:
And so when he told them, I would think about it to try to get them at bay, and then he left. So they knew specifically who it was. And this is a town of about 10,000 people that this government forced a set of roadblocks. So we're talking about a population that's very specifically geographically circumscribed. And what the rest of the country conditions also report is that they were looking for men specifically who are going to – who are of a – fit a particular physical prototype in order to help them.

[00:09:19] Speaker 01:
Once the outdoor defenses started coming in, people knew who they were coming after. And there was an example, for example, where when someone – the out-of-the-fences even suspected of them – of being against the out-of-the-fences, they arrested him in front of his family and then they sent him to what was described in the country condition reports as a torture chamber. And this was done by someone who was there witnessing what was happening and that they were picking up seemingly innocent men because of the perception that if you're not helping us, then you must be part of the – And I think it happened to turn a few miles away, but it was all by the outdoor defenses that were done in that same area.

[00:09:59] Speaker 01:
And it was the municipality that had the roadblocks in it. I'm about to end my time.

[00:10:04] Speaker 05:
We'll put two minutes on the clock for rebuttal for you.

[00:10:06] Speaker 01:
Oh, thank you, Your Honor. I appreciate the generosity.

[00:10:08] Speaker 05:
Mr. Romero.

[00:10:19] Speaker 00:
May it please the court, Jeffrey Least appearing on behalf of the Attorney General. Substantial evidence supports the agency's denial of the petitioner's applications for asylum, withholding of removal, and protection under the Torture Convention.

[00:10:31] Speaker 00:
The opposing counsel has spent a lot of time on the CAT analysis. If the court would like me to start there, I can certainly do so.

[00:10:38] Speaker 00:
In this case, the agency properly considered the evidence that was before it. Now, the immigration judge did not specifically go through all of the country conditions evidence. The board did, and on appeal, note that it did consider the entirety of the record. What we're looking for here is individualized evidence, particularized evidence such that the applicant is more likely than not to suffer torture if he returns to his home country. Here, we don't have evidence of past torture. We also don't have any evidence of a continuing interest in him. When the petitioner left to go to Juarez, he was not targeted for any kind of harm at that point.

[00:11:12] Speaker 00:
His family, who remained back home in La Ruana, was not targeted or threatened or there were no recruitment attempts made At that time.

[00:11:20] Speaker 05:
How old was the son at that time?

[00:11:23] Speaker 00:
I don't believe I don't know his exact age. I believe he was like in his teenage years or just about there.

[00:11:28] Speaker 05:
But they had tried to get the son to be in the out of defenses previously.

[00:11:34] Speaker 00:
So when the out of defenses initially they were approaching him, the petitioner for like material support. And then they came and approached him to recruit him and his oldest son.

[00:11:45] Speaker 05:
So you're saying after he left, there were no further efforts to recruit the son, at least we're aware of?

[00:11:52] Speaker 00:
As far as we're aware of, no, Your Honor. And nor is there any evidence that after the petitioners have left and come to the United States, that there's anybody in Mexico specifically seeking to torture them if they return.

[00:12:02] Speaker 00:
As far as the country conditions evidence itself, this court recently, in a case called Encarnacion, said that it's an error for the agency to fail to consider potentially dispositive country conditions evidence, and that's not what we have here. Again, we're looking for individualized or particularized evidence. The country conditions evidence here is of general applicability.

[00:12:24] Speaker 00:
It discusses cartel violence, increases of harm that could be applicable to anybody in terms of homicide.

[00:12:29] Speaker 05:
Is it not a little closer than that, just given the region that it's talking about?

[00:12:33] Speaker 00:
It is, Your Honor. I think that the closest evidence we have that actually pertains to the petitioner's claim is this documentary that was created called Cartel Land, which deals with the out-of-defense in the province that the petitioner is from. But the immigration judge did address that evidence. Granted, it was in the context of asylum, but the immigration judge did note that, you know, that evidence had been presented. And then if you actually look at the agency's analysis of the cat claim, this is not a case where they're saying there's no evidence in the record to suggest that there's any likelihood of harm. They acknowledge that the auto defenses are a problem and that there is a possibility of harm, but it falls short of the legal requirement of it being more likely than not.

[00:13:13] Speaker 00:
And if you look at the immigration judge's discussion of this, I believe it's on page 79 of the record, he notes that this incident that occurred where an individual was taken away from his daughter and was subsequently harmed, it almost seemed to be a random act.

[00:13:27] Speaker 04:
And a random act of violence cannot really provide any likely – Didn't the petitioner testify that his friends had been tortured or persecuted by – I believe that he testified that they had been targeted. Who were in the same sort of situation as he was?

[00:13:42] Speaker 00:
I believe that they were targeted for recruitment. I don't recall them being tortured, but it could be in the record. I'm just not – I don't recall that specific aspect. Okay.

[00:13:54] Speaker 00:
Is there any further questions?

[00:13:55] Speaker 05:
What were you referring to about the consideration of the country conditions report in the asylum?

[00:14:01] Speaker 00:
Yes, it's on page.

[00:14:07] Speaker 00:
Page 79 of the records, the immigration judge's decision, and he discusses this documentary evidence or this documentary that had been created.

[00:14:14] Speaker 05:
Netflix documentary.

[00:14:15] Speaker 00:
Yes.

[00:14:15] Speaker 05:
Is that the country conditions evidence or you're taking that as part of it?

[00:14:19] Speaker 00:
I'm taking that as probably the closest and most relevant evidence submitted to his actual claim. The country conditions evidence is much more broad. And again, we're looking here at individualized evidence to suggest this individual is more likely than not to suffer torture. So if it's evidence of cartel violence that is throughout Mexico or evidence of, you know, things of that nature, it's not going to really be enough on its own in the absence of any continued interest in the petitioner to suggest that it's more likely than not that he will himself will face torture.

[00:14:49] Speaker 05:
what is the, um, degree to which the IJ needs to engage with the country conditions evidence? Because, you know, one could say, well, it's not specifically discussed, at least not in great detail in, in the, in the IJ's write-up.

[00:15:04] Speaker 00:
Uh, I don't know that there's any bright line rules for what needs to be said or how detailed it needs to be, but I think it needs to be that the immigration judge, there's evidence in the record that the immigration judge has considered the evidence. Um, But again, the agency, the immigration judge and the board don't have to write about every single piece of the evidence. It's whether when you look at the entirety of the decision, if it's clear that the immigration judge was actually looking at the evidence here. And I think that when we're looking at the way the immigration judge addressed the cat claim, because it was based on the evidence in the record, even if it was not specifically mentioned, that it was sufficient in this case to pass that threshold.

[00:15:41] Speaker 04:
Do you think his refusal to join up with the auto defenses would have, you know, characterized him? He would have been recognized or he would have been categorized as somebody who was opposed to the auto defenses?

[00:15:55] Speaker 00:
There's not evidence in the record to suggest that, Your Honor. He testified to that? He testified that when they approached him, he said that he would think about it, and then he left, and then there was no subsequent interaction.

[00:16:04] Speaker 04:
He never joined, right?

[00:16:05] Speaker 00:
He didn't join. So, I mean, there's been no continued interest in him, so there's no evidence in the record to suggest that he left.

[00:16:11] Speaker 04:
As I mentioned earlier, he testified that his friends, some of his friends had been You know, threatened and harmed by the auto defense.

[00:16:19] Speaker 00:
Right. But he had I think that that predated his interactions. So we don't have any continued interest specifically of him. So we're just kind of at this point supposing that, well, if anything in the record that indicates that they would be after him because he left the area.

[00:16:35] Speaker 00:
I don't believe so, Your Honor. I mean, again, when he did leave the area, he didn't there was no further contact. There was no further contact of his family who remained in the area during that period of time.

[00:16:46] Speaker 04:
I thought at some point he was confronted about where he was from.

[00:16:49] Speaker 00:
It wasn't in conjunction with any kind of claim. It was that when he was in Juarez and, again, when he was on his way to Tijuana, people could recognize his accent. But there was no indication that those individuals were seeking to harm him based on any kind of reason or let alone subject him to torture.

[00:17:08] Speaker 02:
He was recognized as coming from Mitoacan.

[00:17:12] Speaker 00:
that his accent suggests that he was from that area. But that kind of brings me to the asylum and withholding context is that when we're looking at the nexus to a particular social group in this case, we're looking at the entirety of the social group. So even if the individual could be recognized potentially as someone from that region, that doesn't really provide much evidence that able-bodied males from La Llorona who are unable to leave is viewed as a socially distinct group. The petitioner The arguments are essentially more from the perspective of the persecutor or reasonings why he might be recognized as an individual of that group.

[00:17:49] Speaker 00:
It doesn't really go towards whether or not the group itself is viewed as socially distinct.

[00:17:54] Speaker 02:
Is your position that the proposed PSG is not a proper PSG?

[00:18:01] Speaker 00:
That it is not cognizable because it's not immutable and it's not socially distinct. The immutability of it, it goes to the petitioners focused heavily on this inability to leave.

[00:18:12] Speaker 00:
which is undermined, I think, most clearly on the fact that he did leave. He was able to take a bus. He got around the barricades, went through the checkpoints, went to Juarez, where he would live for three or four months without incident. His family got on a bus, left Mocan, got around the barricades, went through the checkpoints.

[00:18:32] Speaker 05:
That sounds plausible. I mean, was that a ground for the agency decision, though?

[00:18:37] Speaker 00:
Yes. So the it's at the The board found that it was not immutable because the trait unable to leave was not immutable because your location is not something that's set in stone. And then they also cited the ARCG, I believe, which dealt with unable to leave as being an aspect.

[00:18:54] Speaker 00:
The board also noted that it was distinct from ARCG, which has since been overruled. But because in that case, the inability to leave may have been contain elements of societal or cultural prohibitions against leaving your spouse if it's an abusive relationship. Whereas here we have kind of these physical barricades themselves and the petitioner.

[00:19:15] Speaker 05:
How does the law stand on inability to leave and whether that is essentially a circular group based on the harm or whether you can actually define the group in that way?

[00:19:26] Speaker 00:
Well, Diaz-Rayonoso came out, and Judge Bress, I mean, it's probably unsurprising that I believe that the dissent in that case had the better argument there.

[00:19:34] Speaker 05:
No, I know, but my view didn't carry the day on that. But there's been things that have happened since then, at least at the agency level.

[00:19:39] Speaker 00:
So it's come full circle.

[00:19:42] Speaker 00:
AB was the case that predated Diaz-Rayonoso, and there's been kind of a tennis match between the agency for the last several years. But as of 9-26 this morning, AB is back in good order. A matter of SAFS came out in September, and they reinstated a matter of AB1, overruled ARCG again, so we're kind of back where we were, at least for now.

[00:20:05] Speaker 05:
Has that been the subject of any further circuit precedent?

[00:20:11] Speaker 00:
No. So the last circuit precedent was when AB3 came out, and that withdrew the previous ones because at that time there was a plan to make some kind of regulations which would have addressed the issue specifically. That never happened, so that's why a matter of SAFS came through to kind of reinstate back to where it was. So whether or not there's any room here to distinguish Diaz-Rayonoso, I think that in this case this kind of illustrates the difficulties because the petitioner has made the inability to leave kind of the core principle of this particular social group.

[00:20:44] Speaker 00:
So to kind of excise that and then at least for circularity analyze a different group.

[00:20:49] Speaker 00:
It is kind of problematic. And there was also the aspect of Diaz-Rionoso where they remanded because it wasn't clear whether the inability to leave was based on persecution or whether it could have been based on the cultural or societal issues. Whereas in this case, it seems pretty clearly tied to the persecution. The petitioner says, oh, well, you know, it's difficult to sell your business or to sell your house, but those are not cultural prohibitions. Those are just personal difficulties. You may have been doing something. So I think that there may be some room nuance a little bit of a distinction with Diaz-Reyonoso, but even if not, even if you put the circulatory issue to the side, I believe that the immutability and the social distinction issues are sufficient to deny the applications for asylum and withholding.

[00:21:33] Speaker 05:
Okay, we'll let you go a little over. Let me see if colleagues have other questions. Okay, let's hear a rebuttal. Thank you.

[00:21:38] Speaker 01:
Thank you, Your Honor. Thank you for the extra time. First, Your Honor, I do want to address some points on the record. First, on page 127, the petitioner did testify that his friends were tortured when they didn't abide, obliged by the auto defensas.

[00:22:01] Speaker 01:
The question here is, Andrade here is precise about what the agency has to do. It has to address evidence when it comes to the likelihood of torture. And so pointing directly to the court as to where it missed that, AR 275, talks about the expansion of the autodefensas, the government force, that at the time was in 13 out of 32 states. 317 talked about the torture of individuals by the autodefensas for people who they thought even might be against them, let alone that they were against them.

[00:22:38] Speaker 01:
And I believe in page 150, this is important, the petitioner testified that the community knew that he left the area and sought asylum in the United States.

[00:22:50] Speaker 01:
And his concern that if he returned, that is now a bigger part of the problem, a bigger part of the equation. So when we're looking at what evidence is there on the likelihood of torture, instead of reweighing the evidence, the court could say, did the agency really abide by Andrade in doing all that in the CAD context, and then decide that it did not, and then go ahead and remand it over. In the last 30 seconds, just the one thing I would say about Torvaldo and the unable to leave, the ping pong back and forth right now as it stands is that it's not prohibited.

[00:23:22] Speaker 01:
ARCG recognized it, but as the ping pong back and forth, it goes back to looking at it on a case-by-case basis. And the unable to leave here is structural. And so extraordinary evasion, his ability to leave in the middle of the night and stay in one place for a minimal amount of time before he got his family out there doesn't prevent the structure of what happened there. Certainly, as the country condition reports indicate, there were people coming in and out of that area who were other government officials and things like that.

[00:23:53] Speaker 01:
They were able to leave. They were not the ones that targeted. The outdoor defense has set the roadblocks first, set the conditions of being unable to leave this place, and then based on that, went in and targeted the specific individuals. So thank you, Your Honor, and we request that you grant the petition.

[00:24:11] Speaker 05:
Thank you. We thank both counsel for the briefing and argument. This case is submitted.