[00:00:00] Speaker 04:
Good morning.

[00:00:00] Speaker 04:
The United States Department of Appeals for the Ninth Circuit is now in session.

[00:00:06] Speaker 03:
Thank you.

[00:00:10] Speaker 03:
Good morning everyone and welcome to the Ninth Circuit.

[00:00:14] Speaker 03:
We are here this morning for argument in the case of Perez Castillo versus Bondi.

[00:00:20] Speaker 03:
You'll have 15 minutes per side.

[00:00:23] Speaker 03:
And Council for Mr. Perez-Castillo, you can begin when you're ready.

[00:00:26] Speaker 03:
Please just let me know whether you'd like to reserve any time for rebuttal.

[00:00:31] Speaker 01:
Thank you, Your Honor.

[00:00:32] Speaker 01:
I'd like to reserve three minutes of my time for rebuttal.

[00:00:35] Speaker 01:
Great.

[00:00:36] Speaker 01:
Good morning, Your Honors.

[00:00:37] Speaker 01:
May it please the court, Chelsea Haley Nelson, on behalf of Petitioners Jose Perez Castillo and Gladys Funes Alvarado.

[00:00:45] Speaker 01:
To resolve this case, the court must independently determine the best reading of the persecutor bar without automatic deference to the Attorney General's decision in NGUCI 2 and decide whether that reading was correctly applied to Mr. Perez Castillo by the agency.

[00:00:58] Speaker 01:
The best reading of the statute places the initial burden on the government,

[00:01:03] Speaker 01:
and identifies a duress defense.

[00:01:05] Speaker 01:
Now applying this best reading, the agency aired below by placing the initial burden on Mr. Perez-Castillo by finding less than membership was sufficient to invoke the bar and by finding that Mr. Perez-Castillo could not rebut the bar through a duress defense where it's undisputed that he was forcibly recruited into the Salvadorian military.

[00:01:24] Speaker 02:
Can you answer this for me?

[00:01:28] Speaker 02:
I went back and I'm

[00:01:30] Speaker 02:
I'm reading the statute, and I guess I'm having trouble with some of the language, which seems to be a very strong textualist argument made by the government and the agency, too.

[00:01:44] Speaker 02:
How do I get around that argument?

[00:01:50] Speaker 01:
The language of the statute, Your Honor?

[00:01:52] Speaker 02:
Yeah.

[00:01:53] Speaker 02:
I mean, there are a couple of places, for example, where Congress specifically

[00:01:58] Speaker 02:
included voluntariness requirements, but didn't do so here.

[00:02:04] Speaker 02:
So how do we deal with those kinds of issues?

[00:02:09] Speaker 01:
Well, as to that argument, whether Congress required voluntary action in other immigration nationality provisions, I actually think that that is irrelevant in this particular case, Your Honor.

[00:02:23] Speaker 01:
So the provisions cited by the government each describe acts that unlike persecution,

[00:02:28] Speaker 01:
do not inherently exclude coerced conduct.

[00:02:31] Speaker 01:
So Congress had to include terms like voluntary in order to, in provisions because they otherwise might have construed to include involuntary acts.

[00:02:41] Speaker 01:
So use of the term voluntary excludes a broader range of conduct than acts coerced by threats of death or injury.

[00:02:47] Speaker 01:
So it's inclusion in other provisions within the INA.

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does not necessarily import an inference that Congress intended to encompass the narrower category of course conduct every time it did not include the term voluntary.

[00:03:00] Speaker 02:
Well, hold on.

[00:03:00] Speaker 02:
Where it indicated, for example, that there is an exception for folks who were in the totalitarian party inadmissible, they included that voluntary language there.

[00:03:17] Speaker 02:
Why is that irrelevant?

[00:03:20] Speaker 01:
Well, the cases and what the government's relying on there, I'm sorry, Your Honor, is that they cite to the Displaced Persons Act, the Refugee Relief Act, the Holtzman Amendment, and the government's argument that those statutes were enacted and they are relevant and specifically applicable in this particular case to the persecutor bar, I believe is in

[00:03:47] Speaker 01:
not applicable because those particular amendments and acts address specific conflicts asserting that they somehow provide guidance constraining the persecutor barb.

[00:03:58] Speaker 01:
The Displaced Person Act, the Refugee Relief Act, contain language that's different from the provisions of the persecutor barb before the court.

[00:04:05] Speaker 01:
The language bears little resemblance to the Refugee Act of 1980.

[00:04:10] Speaker 01:
Moreover, the statutes that were adopted to prevent admission of persons who support German nationalist socialists

[00:04:16] Speaker 01:
They're very specific to a certain conflict and a particular time.

[00:04:22] Speaker 01:
The Holtzman Amendment addressed exclusion and removal of non-citizens associated with the Nazi regime.

[00:04:28] Speaker 01:
And the government cites only to a single decision addressing the coercion issue.

[00:04:33] Speaker 01:
And that decision relies on Fedorenko, which we believe is not dispositive of the court finding a duress exception in this particular case.

[00:04:43] Speaker 01:
But in terms of the burden issue, which we believe is the first issue that the court needs to address, this court has actually already decided the burden as to the persecutor bar.

[00:04:59] Speaker 01:
Although the attorney general disagrees post-Loper Bryant, we believe that the court no longer needs to defer to the agency's interpretation and conversely must follow its own case law.

[00:05:08] Speaker 01:
So in Budiano, the court applied the same burden of a proof framework as in the persecutor bar and held that the government must make a threshold showing of definitive evidence as to each element of the bar before placing the burden on the applicant to rebut it.

[00:05:23] Speaker 01:
Budiano explained that the persecutor bar cannot apply

[00:05:26] Speaker 01:
where the applicant failed to affirmatively provide evidence rebutting the circumstantial evidence suggesting that he might have assisted in persecution.

[00:05:34] Speaker 01:
That's at 1048 of Budiano.

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And instead, Budiano said, there must be some initial showing that each element of the statute could be met.

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Otherwise, we risk rejecting applicants who are in all other respects eligible for relief simply on the basis of vague association.

[00:05:51] Speaker 01:
So in Budiano, in Kumar,

[00:05:55] Speaker 01:
In Miranda Alvarado, this court has made clear that threshold evidentiary showing is one borne by the government, and it requires more than just circumstantial evidence suggesting that the non-citizen might have assisted in persecution.

[00:06:08] Speaker 01:
And there must be enough evidence to support a specific finding as to each element of the bar.

[00:06:14] Speaker 04:
May I go back to your reference to Fedorenko?

[00:06:18] Speaker 04:
So is it your position that the persecutor bar contains a true duress defense?

[00:06:24] Speaker 04:
Or like the footnotes in Fedorenko, that his conduct doesn't rise to the level of assistance in persecution.

[00:06:34] Speaker 01:
We believe that the statute includes a duress exception and that Fedorenko, as I mentioned, is not dispositive of finding that duress exception because the provision that was reviewed in Fedorenko was the Displaced Persons Act.

[00:06:47] Speaker 01:
not the persecutor bar.

[00:06:49] Speaker 01:
The language is very different.

[00:06:50] Speaker 01:
The sentence structure is different.

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The DPA also focused on a specific set of individuals and used language closely tied to a very specific factual set of circumstances.

[00:07:00] Speaker 01:
Although Nogusitu cites to Fedorenko for a categorical bar, Fedorenko didn't make such a categorical bar.

[00:07:08] Speaker 01:
We believe that the Fedorenko court recognized that certain conduct cannot be considered assisting in the persecution of civilians, that's at 512, and acknowledged that the other distinctions might be harder to draw.

[00:07:20] Speaker 01:
Now, decades after Fedorenko, the U.S.

[00:07:22] Speaker 01:
Supreme Court

[00:07:23] Speaker 01:
also expressed concern over excluding individuals and victims of persecution from refugee protection and acknowledged that motive and incentive and voluntariness may be relevant to the proper interpretation of the statute.

[00:07:35] Speaker 01:
In addition, we believe that a duress defense exists because as detailed in our supplemental brief to the court, the legislative history and the context of the Refugee Act show that Congress intended a duress defense.

[00:07:50] Speaker 01:
When Congress enacted the Refugee Act, it made clear that U.S.

[00:07:53] Speaker 01:
refugee policy should align with the purpose and history and language of the 1967 Protocol and the 1951 Convention relating to the status of refugees.

[00:08:03] Speaker 01:
Because Congress intended this conformity, the persecutor bar should be interpreted in light of those international commitments.

[00:08:09] Speaker 04:
So going back to the Article 1FA of the 1951 Convention,

[00:08:18] Speaker 04:
And you rely on that.

[00:08:19] Speaker 04:
And also I note that the 1967 protocol only incorporates articles two through 34 of the convention.

[00:08:30] Speaker 04:
So why isn't that some evidence of congressional intent to put aside 1FA as under the 1951 act as opposed to the 1967 protocol?

[00:08:46] Speaker 01:
Well, because Congress included the persecutor bar specifically to be consistent with Article 1 of the Convention, the exclusion clause.

[00:08:56] Speaker 01:
And 1F references international instruments that incorporate defenses to liability that were well established at the time of the drafting, which included a duress exception.

[00:09:07] Speaker 01:
And I just want to point out Respondent makes an argument that the duress is not supported in the persecutor bar because it deals with criminal law and this is civil immigration law.

[00:09:19] Speaker 01:
But we think that that's irrelevant.

[00:09:21] Speaker 01:
Congress enacted the statute.

[00:09:23] Speaker 01:
the persecutor bar statute to implement obligations under the protocol in the convention.

[00:09:28] Speaker 01:
And the exclusion requires that these instruments are expressly limited to criminal conduct because they specifically use the language, quote, any person with respect to whom there are serious reasons for considering that he's committed a crime against peace, a war crime, or a crime against humanity.

[00:09:45] Speaker 01:
And because the treaty obligations permit only exclusion of criminal conduct, and Congress enacted the persecutor bar to conform domestic law to those obligations,

[00:09:53] Speaker 01:
The only possible conclusion here is that Congress intended the exclusion to describe criminal violation or criminal conduct.

[00:10:00] Speaker 03:
What do we, what do we make of the fact that Congress reenacted the persecutor bar for withholding and enacted a persecutor bar for Arira already knowing that at those, at that point, the BIA had held that there was no duress exception and then they didn't add an explicit exception.

[00:10:21] Speaker 03:
So what, what do we make of that?

[00:10:24] Speaker 01:
Yeah.

[00:10:24] Speaker 01:
So, um, again, um, the government makes the argument or contends that, uh, the 1996 recodification ratified this bar.

[00:10:36] Speaker 01:
Um, but the U S Supreme court has made clear that Congress must be aware of an administrative interpretation in order to ratify it.

[00:10:45] Speaker 01:
That's Brown v Gardner.

[00:10:46] Speaker 01:
513 U.S.

[00:10:47] Speaker 01:
115, 1994, where it says, when there is evidence that Congress was aware of an administrative interpretation, this court considers reenactment to be without significant.

[00:11:00] Speaker 01:
The government does not provide any evidence that Congress at the time was aware of a single sentence and a single decision by the Board of Immigration Appeals prior to that enactment.

[00:11:11] Speaker 01:
And then decades later, again, we have the Supreme Court

[00:11:15] Speaker 01:
in Negusi questioning the statute and the bar as clarity and indicating that a duress exception might be read into the statute itself.

[00:11:24] Speaker 01:
So I don't think that the argument that the government's making that this is recodification, I don't think that that is in fact as strong as the government makes it out to be.

[00:11:37] Speaker 01:
In this case, we believe that a duress exception should be read into the statute for the reasons that I mentioned, but also

[00:11:45] Speaker 01:
When Congress enacted the provisions to bring the U.S.

[00:11:50] Speaker 01:
into compliance with its treaty obligations, interpreting these obligations imposed by international instruments, the court accords considerable weight to opinions of sister signatories.

[00:12:03] Speaker 01:
And multiple courts around the world have recognized excluding persons from refugee status who are not criminally responsible for their actions,

[00:12:11] Speaker 01:
undercuts the convention's protective goals.

[00:12:14] Speaker 01:
Multiple countries, including Canada, the UK, Australia, New Zealand, and Norway have explicitly recognized that conduct performed under duress is just not encompassed within the exclusion clause.

[00:12:25] Speaker 01:
This jurisprudence should be important to be considered by the court in determining whether a duress exception exists and should weigh in favor of a determination that Congress reached the same conclusion and the persecutor bar should be construed in the same manner.

[00:12:40] Speaker 01:
So we believe that recognizing a duress defense conforms with the statute and congressional intent, international obligations, and it's consistent with the bar's historical application.

[00:12:52] Speaker 01:
Now, if the court agrees with us as to the burden, it may remand on that issue.

[00:12:57] Speaker 01:
If the court agrees that the statute includes a duress exception, it also must remand to the agency because a duress exception was never previously considered by the agency in this case.

[00:13:09] Speaker 01:
So it's not presently before the court whether or not Mr. Perez Castillo would qualify for such a duress exception.

[00:13:16] Speaker 01:
I realize that my time, I'm beyond the three minutes unless the court has any further questions, I'd like to reserve the remainder of my time for rebuttal.

[00:13:25] Speaker 03:
Well, I'll give you three minutes for rebuttal.

[00:13:27] Speaker 01:
Thank you.

[00:13:29] Speaker 01:
Thank you.

[00:13:37] Speaker 01:
As to the burden issue, as we mentioned, I believe that the court has... Well, I'll let you have three minutes when you're back up for a rebuttal.

[00:13:53] Speaker 01:
Okay.

[00:13:53] Speaker 01:
Thank you so much, Your Honor.

[00:13:54] Speaker 01:
Then I'll reserve the rest of my time.

[00:13:56] Speaker 03:
You can reserve the rest.

[00:13:57] Speaker 03:
Yeah.

[00:13:57] Speaker 03:
Okay.

[00:13:59] Speaker 03:
Okay.

[00:13:59] Speaker 03:
We'll hear from the government now.

[00:14:01] Speaker 03:
Thank you.

[00:14:09] Speaker 00:
Morning, Your Honors, and may it please the Court.

[00:14:11] Speaker 00:
My name is Stephanie Hennis, and I'm here for the respondent.

[00:14:16] Speaker 00:
This is not a case about duress.

[00:14:18] Speaker 00:
The petitioner in this case is not credible, and he cannot establish duress with his not credible testimony.

[00:14:24] Speaker 00:
But even accepting that he was forced to serve in the Salvadoran military, he still can't show any duress because the Supreme Court and every circuit, including this one, has required an immediate threat of death or serious bodily injury to establish duress.

[00:14:41] Speaker 00:
And the petitioner here has never even alleged that, let alone proven it.

[00:14:46] Speaker 00:
But even if the court decides to address whether there is a duress exception to the persecutor bar, it should defer under Skidmore to the attorney general's 35 page thorough and persuasive decision holding that a duress defense does not exist.

[00:15:03] Speaker 04:
I want to understand your position because you said he can't show duress.

[00:15:09] Speaker 04:
But that assumes that there is a persecutor bar.

[00:15:14] Speaker 04:
And that wasn't actually what was decided below.

[00:15:18] Speaker 04:
So I'm having some trouble understanding if we were to decide that there is a persecutor bar, then game over for the plaintiff, right, for the petitioner.

[00:15:34] Speaker 00:
Well, there is a persecutor bar.

[00:15:37] Speaker 00:
Are you addressing whether it would apply in this case or not?

[00:15:42] Speaker 04:
Yeah, right.

[00:15:42] Speaker 04:
But my question really is, is the question of application before us with respect to duress, or is that really a legal question?

[00:15:55] Speaker 00:
Our point in addressing this is that the petitioner has maintained that duress should be an excuse for the bar in this case, but there's never been any testimony about him engaging in specific acts because he's refused to be transparent with immigration authorities about his acts.

[00:16:19] Speaker 00:
that have been taken under threat of death or serious bodily injury.

[00:16:25] Speaker 00:
And amicus, this court, the Supreme Court, all agree that that is an element of duress.

[00:16:32] Speaker 00:
So my point here is that the petitioner is not credible and whether there is a duress exception or not, it doesn't matter in this case because the adverse credibility finding and the lack of evidence just stops him from being able to show duress

[00:16:49] Speaker 00:
at all.

[00:16:52] Speaker 00:
But I guess to also get, I suspect that the court is interested in the whether there is a duress.

[00:16:59] Speaker 03:
I think it'd be better if you would move on from argument.

[00:17:03] Speaker 03:
Yeah, go ahead.

[00:17:05] Speaker 00:
So the court should

[00:17:08] Speaker 00:
defer to the Attorney General's decision in matter of Negusi.

[00:17:14] Speaker 00:
Skidmore deference remains intact after the Supreme Court's decision in Loper-Brite, and this court has already deferred to published agency decisions using Skidmore deference after Loper-Brite.

[00:17:31] Speaker 00:
Some of the things that the court looks for when deciding whether deference is appropriate is the thoroughness of the agency decision.

[00:17:39] Speaker 00:
And here we have a decision that is 35 pages long.

[00:17:44] Speaker 00:
It analyzes the specific statutory terms.

[00:17:48] Speaker 00:
It considers the board's rationale in NGUCI 1 and explains why it is incorrect.

[00:17:55] Speaker 00:
and also considers the arguments that Ngoosi had made to the board relating to international sources and criminal concepts.

[00:18:05] Speaker 00:
On top of that, the INA itself dictates that the attorney general's rulings with respect to all questions of law shall be controlling.

[00:18:14] Speaker 00:
Secondly, the court looks at the validity of the agency decision.

[00:18:20] Speaker 00:
And here the attorney general does exactly what the Supreme Court asked it to do when it remanded Ngozi.

[00:18:30] Speaker 00:
It conducts an analysis of statutory interpretation.

[00:18:34] Speaker 00:
Ngozi did not rule out the possibility for there to not be a duress exception to the persecutor bar.

[00:18:45] Speaker 00:
It simply said that Fedorenko was not controlling because Fedorenko dealt with

[00:18:51] Speaker 00:
a statute that provided two juxtaposed provisions, one that included voluntariness and another that did not.

[00:18:59] Speaker 00:
So the court was looking at the plain meaning of that statute and said the agency could not simply look at that and then translate it over to a different statute.

[00:19:10] Speaker 00:
But it left to the agency the ability to consider whether that

[00:19:17] Speaker 00:
whether Congress's use of voluntary terms is relevant in the statute at hand.

[00:19:24] Speaker 00:
And that's exactly what the attorney general did here.

[00:19:28] Speaker 00:
The attorney general first looked at the fact that there is no express voluntariness or duress exception provided in the statute.

[00:19:38] Speaker 00:
Now the attorney general did not stop there though, recognizing that that's not dispositive, but he did point out that

[00:19:45] Speaker 00:
the courts generally declined to read words into statutes that do not appear there.

[00:19:51] Speaker 00:
Then the court went on, the attorney general went on to consider statutes that contain similar language to that used by Congress in the persecutor bar, and they have all been found to not have a duress exception.

[00:20:07] Speaker 00:
So, relying on that the attorney general used the maximum that consistent use of the same language regarding the same subject matter and in the same statute strongly suggests the strength, the same meaning.

[00:20:22] Speaker 00:
The DPA has no exception for duress or coercion.

[00:20:29] Speaker 00:
And the same is true for the Refugee Relief Act of 1953.

[00:20:33] Speaker 00:
There are numerous other provisions that the attorney general refers to in his decision.

[00:20:39] Speaker 00:
But I point out those two because Petitioner does rely on the legislative history of the persecutor bar.

[00:20:47] Speaker 00:
And that legislative history shows that Congress

[00:20:51] Speaker 00:
believed that this persecutor bar would be consistent with the DPA and the Refugee Relief Act, both of which do not have an exception for actions taken under duress.

[00:21:09] Speaker 04:
In this case, one of the reasons that was mentioned in Loper Bright

[00:21:18] Speaker 04:
was the flip-flopping or the changing of administrative positions and trying to give some consistency to those.

[00:21:27] Speaker 04:
Does it matter here that the first Nogusi was the BIA, but then Nogusi II is actually the attorney general himself overturning that?

[00:21:39] Speaker 04:
What does that mean procedurally?

[00:21:42] Speaker 00:
Procedurally, it means that there really isn't any major change in implementation here.

[00:21:51] Speaker 00:
What we have is the board reaching a decision in a 2 to 2 to 1 decision.

[00:21:57] Speaker 00:
So 2 board members inferred found that it was reasonable to infer a direct exception and 1 board member determined that it was not given that split.

[00:22:09] Speaker 00:
the attorney general certified the case to himself to resolve that dispute.

[00:22:16] Speaker 00:
The goosey one decision that inferred a duress exception was only available for about four and a half months versus, as the attorney general pointed out in his decision, about 70 years of

[00:22:33] Speaker 00:
statutory analysis of similar terms, saying that there is no duress exception to the persecutor bar.

[00:22:41] Speaker 00:
Additionally, this court in Lopez actually deferred to a board decision that

[00:22:54] Speaker 00:
revisited its prior precedent.

[00:22:58] Speaker 00:
It involved whether certain theft offenses constitute crimes involving moral turpitude.

[00:23:06] Speaker 00:
And this court looked to the fact that there had been a longstanding view that whether something is a temporary versus permanent taking was relevant.

[00:23:19] Speaker 00:
to the determination of whether something was a theft CIMT.

[00:23:25] Speaker 00:
And the agency changed its position.

[00:23:28] Speaker 00:
It did so in a reasoned decision.

[00:23:31] Speaker 00:
And this court actually upheld the board's decision, even though it had adjusted its understanding of what constituted a CIMT.

[00:23:44] Speaker 03:
Basically, when looking at this history, you want us to conclude that

[00:23:50] Speaker 03:
Nogusi 1 is just that, that's the outlier and that everything else has been consistent with the outcome that you're arguing for today.

[00:23:57] Speaker 03:
Yes.

[00:23:58] Speaker 00:
Yes, Your Honor.

[00:24:00] Speaker 00:
And apart from it, apart from the goosey one, simply being the outlier, the AG's decision is the one that does engage in the textual based analysis of the statute.

[00:24:16] Speaker 00:
What's missing from the board's decision and the petitioner's

[00:24:23] Speaker 00:
interpretation of the statute is any reference to the statutory terms themselves.

[00:24:32] Speaker 00:
While they point to the legislative history discussing some desire to bring the definition of refugee in line with the protocol or the convention, Congress did not use

[00:24:49] Speaker 00:
words that were pulled from the convention or the protocol.

[00:24:52] Speaker 00:
Congress used words that came from established domestic law, and that's the terminology that the court has to look at here.

[00:25:02] Speaker 00:
That is also a reason why the Supreme Court's discussion in Cardozo-Fonseca is not controlling.

[00:25:11] Speaker 00:
In that case, the Supreme Court was looking at

[00:25:15] Speaker 00:
the INA's refugee definition and said that it was virtually identical to the one in Article 1-2 of the convention.

[00:25:25] Speaker 00:
Because the statutory language was basically identical to that contained in the convention, it looked at these international documents to determine the meeting.

[00:25:38] Speaker 00:
The language is not nearly identical to the convention.

[00:25:42] Speaker 00:
Instead, it pulls from prior domestic law.

[00:25:47] Speaker 00:
On top of that, even in Cardozo-Fonseca, the court did initially begin its analysis with the statutory text, which is exactly what the AG did here.

[00:25:57] Speaker 00:
The additional international documents that petitioner relies on, one of which post dates the statutory, the Refugee Act itself, it was issued in 2003.

[00:26:15] Speaker 00:
The handbook while that was issued in September, 1979, that did post date the refugee act hearings, which occurred in March and May, 1979, and the Senate Judiciary Committee report, which was was dated in July, 1979.

[00:26:39] Speaker 00:
The United States joined the 1967 protocol only after concluding that it was, quote, largely consistent with existing law.

[00:26:49] Speaker 00:
In INS v. Stevick, the Supreme Court recognized that the refugee definition did not create a new or expanded means of entry, and instead, it formalized prior policies and practices, and that it would not require the United States to admit new categories or numbers of aliens.

[00:27:09] Speaker 00:
And as I had mentioned before, the committee report noted that the Refugee Act would add language specifically to exclude from the definition of refugee those who engaged in persecution and that this was consistent with the UN Convention and with the DPA and the Refugee Act.

[00:27:37] Speaker 00:
What I guess 1 final point is that.

[00:27:41] Speaker 00:
Even after Loper bright and the elimination of Chevron to the extent that the, you have an agency that is.

[00:27:55] Speaker 00:
providing its understanding of treaty terms, that remains something that is entitled to deference.

[00:28:02] Speaker 00:
This court addressed this issue similar to this in Rana v. Jenkins and held that Loper-Brite did not impact the longstanding principle that courts give deference to the executive's understanding of treaties.

[00:28:16] Speaker 00:
So to the extent that the attorney general was analyzing the

[00:28:23] Speaker 00:
what was meant by these treaties, that review remains deferential.

[00:28:33] Speaker 00:
Does the court have any additional questions?

[00:28:37] Speaker 03:
I don't think we do.

[00:28:38] Speaker 03:
Thank you very much.

[00:28:39] Speaker 00:
Thank you, Your Honor.

[00:28:45] Speaker 03:
OK, and now we'll have three minutes for rebuttal.

[00:28:48] Speaker 03:
Thank you.

[00:29:00] Speaker 01:
Thank you, Your Honor.

[00:29:01] Speaker 01:
Just give us a second to get there.

[00:29:07] Speaker 01:
Okay, go ahead.

[00:29:08] Speaker 01:
All right, thank you so much.

[00:29:11] Speaker 01:
So, Your Honor.

[00:29:13] Speaker 01:
Even though, despite all the arguments that the respondent has made here in terms of deference and the Skidmore deference, we still believe under the Loper-Brite framework that the court should reject any agency statutory reading that is not won the court after applying all the relative

[00:29:31] Speaker 01:
our relevant interpretive tools concludes is the best.

[00:29:34] Speaker 01:
So it's still this court's responsibility to determine what is the best reading of the persecutor bar using all of those tools.

[00:29:42] Speaker 01:
In terms of, I think the respondent makes much about international materials being irrelevant and also speaks to the protocol not being self-executing, but post-Sulphur-Bride, again, using statutory interpretations

[00:30:00] Speaker 01:
All of the tools are required to be used to determine the best reading.

[00:30:05] Speaker 01:
The canon of Charmin Betsy elevates the importance of reading statutes in a manner that's in accordance with relevant international law to determine the best reading of a statute and an act of Congress not to be construed to violate the law of nations if any other possible construction is possible.

[00:30:21] Speaker 01:
As previously mentioned, we believe that Congress's objective and intention here in implementing US obligations under the UN protocol and the convention

[00:30:30] Speaker 01:
Um, was to bring this in line with, uh, bring the U S into conformity with international definition of refugee.

[00:30:38] Speaker 01:
So those international materials are distinctly relevant to understanding what Congress's intent was into drafting this.

[00:30:45] Speaker 01:
Um, the, uh, government also makes, um, much of the fact that Mr. Perez Castillo was not credible and that therefore, uh, he can't qualify for any duress exception.

[00:30:57] Speaker 01:
That actually is irrelevant as well.

[00:30:59] Speaker 01:
It's not before this court, whether or not he was credible.

[00:31:04] Speaker 01:
This court finds that the best reading includes a duress exception.

[00:31:07] Speaker 01:
It still must remand to the agency in order for the agency to decide whether or not Mr. Pérez Castillo is eligible.

[00:31:14] Speaker 01:
for any duress exception.

[00:31:16] Speaker 01:
He was never afforded the opportunity to present such a defense.

[00:31:20] Speaker 01:
It wasn't recognized as an option, therefore he didn't present evidence, testimonial or otherwise in support of a duress exception.

[00:31:28] Speaker 01:
So he should be afforded the opportunity again if the court recognizes that exception and remands.

[00:31:36] Speaker 01:
The government suggests that Nogusi 1 is actually the outlier.

[00:31:43] Speaker 01:
We believe that that's incorrect.

[00:31:46] Speaker 01:
That even under Skidmore, no weight should be given to the Nogusi 2 decision as the reasoning is not only invalid, but it does represent an abrupt departure from

[00:31:57] Speaker 01:
the prior agency interpretation and application in this case.

[00:32:01] Speaker 01:
And ultimately, I believe that if the court does not find that a duress exception can be read into the statute, it can still resolve this case on the issue of burden because the government, the statute itself includes a burden on the government in order to

[00:32:23] Speaker 01:
established the elements of the persecutor bar in the first instance.

[00:32:27] Speaker 01:
That did not happen here by the agency.

[00:32:30] Speaker 01:
Even if the court found that the agency did apply the initial burden to the government, there simply is not enough evidence in this record to invoke the bar as to Mr. Perez Castillo.

[00:32:40] Speaker 03:
Okay.

[00:32:41] Speaker 03:
Thank you very much.

[00:32:42] Speaker 03:
We thank both counsel for their helpful arguments this morning.

[00:32:45] Speaker 03:
This case is now submitted and our court stands adjourned.

[00:32:49] Speaker 03:
Thank you.

[00:32:51] Speaker 04:
This court for this session stands adjourned.