[00:01:07] Speaker 03:
All right. So we will hear first from Ms. DeWitt. You may proceed when you're ready.

[00:01:13] Speaker 01:
Good morning, Your Honors. My name is Caitlin DeWitt from Social Justice Collaborative. I'm appearing on behalf.

[00:01:17] Speaker 03:
You get a little bit closer to the mic or speak up. So thank you.

[00:01:22] Speaker 01:
I'm a little short.

[00:01:25] Speaker 01:
Good morning.

[00:01:25] Speaker 03:
Actually, I think you can move it towards you.

[00:01:28] Speaker 03:
Is that better? Absolutely. Thank you so much.

[00:01:32] Speaker 01:
Good morning, Your Honors. My name is Caitlin DeWitt. I am from Social Justice Collaborative, appearing on behalf of petitioners. I would like to reserve three minutes for rebuttal.

[00:01:42] Speaker 01:
May it please the court, I believe there are several reasons for remand in this matter.

[00:01:46] Speaker 00:
Counsel, I'm sorry to cut you off. I have a lot of questions I just want to jump right on to.

[00:01:52] Speaker 00:
You know, I...

[00:01:55] Speaker 00:
We're looking here at a lot of family member issues as well. Have other family members come to the United States, and have they sought asylum?

[00:02:04] Speaker 01:
In fact, two of petitioner's brothers have sought asylum based on the same set of facts, and one is now a United States citizen since he was granted asylum, and one is a lawful permanent resident since being granted asylum.

[00:02:16] Speaker 00:
Okay, so both were granted asylum?

[00:02:18] Speaker 01:
Correct.

[00:02:18] Speaker 00:
Okay. Okay. And I need to help clarify some timeline here. So when was the man who was charged with Fidel's murder acquitted? Do you know?

[00:02:29] Speaker 01:
I'm not sure exactly when he was acquitted. I believe it would have been sometime between 2011 and 2013. I'm aware that the reason...

[00:02:43] Speaker 01:
Why he was acquitted was based on a threat towards Petitioner's mother, who then chose out of coercion to, in essence, perjure herself and say that that was not the perpetrator and therefore he was acquitted.

[00:03:01] Speaker 01:
I believe that's the timeline.

[00:03:02] Speaker 00:
Okay. And then did MS-13 gang members threaten the aunt Elsa Martinez-Cortez before, after, or during the trial of the man charged with Fidel's murder?

[00:03:13] Speaker 01:
That, I'm not sure that there are facts in the record to establish that. I am aware... Don't indulge me for just a moment.

[00:03:31] Speaker 01:
I'm not sure if that occurred. I am happy to look at that over during my short break, but...

[00:03:38] Speaker 01:
I do know that the petitioner's mother was threatened that they would kill her and her family, and I do know that the ants were on the mother's side.

[00:03:50] Speaker 00:
And then the ants, I know petitioner's ants were also taken. Do you know, with respect to the trial, was that before, during, or after the trial?

[00:03:59] Speaker 01:
That was after. So they were disappeared in 2015. The record shows that petitioner witnessed several men dressed as police officers clandestinely abducting her aunts who lived next door. They went to the police to say, why were they taken? Police said, we don't have them. And then in 2018, they were discovered. And it was established that it was indeed her aunts.

[00:04:25] Speaker 00:
And then the MS-13 gang member who gave the kill order for Fidel, was that person ever prosecuted?

[00:04:32] Speaker 00:
And what was the outcome?

[00:04:34] Speaker 01:
I am not aware of the outcome of that matter.

[00:04:36] Speaker 04:
I guess to take to another step in the analysis, didn't the board affirm entirely on the ground of nexus that And avoid the cognizability and PSG questions?

[00:04:56] Speaker 01:
They avoided a lot of the elements of finding a nexus. So they purely affirmed based on persecutory motive, which is a fact-finding question.

[00:05:08] Speaker 04:
Which would go to nexus.

[00:05:10] Speaker 01:
Which would go to nexus.

[00:05:11] Speaker 04:
Regardless of the cognizability of the proposed social groups, Respondent has not established a nexus between the persecution and protected ground.

[00:05:20] Speaker 01:
Certainly, but I would contend that the cognizability of a social group, particularly the proposed social group, in the context of the record informs the motive, and I think here that was ignored.

[00:05:31] Speaker 03:
So on the issue of motive and nexus, so motive is a factual issue that the BIA would review the IJ's determination for clear error, but nexus is a mixed question of law and fact that the BIA reviews de novo in light of the motivation finding, correct?

[00:05:53] Speaker 01:
That's correct. That's correct. The BIA must, or rather the ultimate question of whether nexus has been established is a question of law that the BIA must review de novo. And in this case, they did not say that they reviewed it for clear error, but in fact they didn't review it at all, which would have also, it's not dispositive, the persecutory motive is not dispositive of whether nexus has been established or not.

[00:06:27] Speaker 04:
Did the IJ, what were the IJ's findings on the motive underlying the nexus inquiry on the family and informant PSGs?

[00:06:42] Speaker 01:
If any, the IJ and affirmed by the BIA simply said that it was speculative, that the mountain of evidence that was presented, the murder of the military father who had his, not even an obituary, a newspaper article in the national newspaper where petitioner was named.

[00:07:01] Speaker 01:
A cousin was disappeared. Her aunt's. Her brothers were both threatened, and of course her mother. So they looked at these separately and just said they're speculative, which is a conclusory statement.

[00:07:17] Speaker 04:
Well, I guess let me, going to the IJ's decision, with respect to police informants, as I read it, the IJ found that the evidence is insufficient to establish respondents' membership in the proposed group.

[00:07:36] Speaker 04:
And as to the family group, then they get to the PSG part. But I'm struggling to find where there is a factual finding in the IJ that could provide the basis for the board's nexus determination.

[00:07:57] Speaker 01:
Well, I would contend that on the family PSGs, groups two through five, as it's defined, the IJ made a categorical decision that those were not cognizable due to the BIA precedent at the time, matter of LEA 2 specifically, which was since vacated at the time that the board issued their decision, their affirmance.

[00:08:20] Speaker 04:
But LEA is not a nexus case.

[00:08:24] Speaker 01:
LEA is regarding the cognizability of a family-based PSG, particular social group.

[00:08:32] Speaker 04:
Right. And as to the family-based PSG, I think the board cites the IJ in its decision at ER5, the finding that the evidence suggests that gang members saw her immediately family members as threats to their criminal enterprise or sought to recruit her immediate family members to further their criminal enterprise.

[00:09:02] Speaker 04:
I think the board is reciting that as to other groups, but that kind of sounds like a finding that suggests a family-based motive that would cut the other way, right?

[00:09:17] Speaker 04:
Would cut toward a finding of nexus with respect to family groups.

[00:09:21] Speaker 01:
Correct, because the personal retribution, the threat was based on the family. The father was military who went after gangs, and then it just went on from there. These are all interconnected particular social groups with the police informants based on the murder of her father and the disappearances of the aunts.

[00:09:43] Speaker 01:
I would also say that I think the BIA's Analysis here ignores mixed motive. So we've dismissed the the amount of evidence here to say that it's speculative It's speculatory and the evidence is just to further criminal enterprise.

[00:09:59] Speaker 04:
I don't think that's faithful to the record Well, whether it's faithful to the record or not the board isn't in a position to make findings that the IGA has not I

[00:10:11] Speaker 01:
Let me rephrase. The board must conduct an analysis to consider whether there is a cognizable PSG and whether there is the link between the protected ground, the PSG, and the harm. And they have looked at persecutory motive for clear error, but they failed to go that extra step to look at it in the aggregate to have that background inform whether or not there is a nexus established.

[00:10:43] Speaker 04:
As to the persecutor motive, again, I'm struggling to find what it could have reviewed in the IAJ's decision for clear error with respect to the family informant pieces. Again, to be clear, I think this helps you, but I'm trying to understand your arguments.

[00:11:02] Speaker 01:
Our argument is more so that the BIA made a legal error in not conducting the de novo analysis. As far as the clear error, I do contend that there is substantial in the record that does compel the conclusion that there was persecutory motive. And the IJ saying that these were all just personal retribution, these were individual instances, whether they were connected is speculatory. I think that is a question that would be...

[00:11:40] Speaker 04:
But did it say anything about that about the family or informant groups?

[00:11:44] Speaker 01:
The BIA?

[00:11:45] Speaker 04:
No, the IJ.

[00:11:48] Speaker 01:
The family groups, no, because, again, she categorically denied it based on the – well, since vacated president at the time and discussed whether they were perceived. And, again, here – She discusses the single news article, the reporter taking the statement, et cetera, to say that that does not sufficiently persuade the court, but that would be reviewed for clear error.

[00:12:19] Speaker 01:
But again, substantial evidence in the record shows that those actually support a finding of a family PSG, according to Ninth Circuit President Rios-Vilich, et cetera.

[00:12:36] Speaker 01:
I believe, Your Honors, there's also the issue of the BIA relying on vacated law in the first instance.

[00:12:44] Speaker 01:
At the time that the board made its decision, the matter of LEA 2 was no longer a good law in February 2025.

[00:12:54] Speaker 01:
And it's, you know, longstanding precedent. The BIA is required to apply the law existing at the time of its review, even if different. from law applied by the immigration judge. So there, again, we have the error of not conducting a de novo analysis review of the family PSGs because at the time, they should have conducted a case-by-case analysis under Rios-Felange as families, the quintessential social group.

[00:13:26] Speaker 01:
If your honors have no further questions, I'll reserve the rest of my time.

[00:13:28] Speaker 03:
All right. Thank you, counsel. Thank you.

[00:13:30] Speaker 03:
We will hear next from Ms. Aldana.

[00:13:41] Speaker 02:
Good morning, Your Honors. May it please the court, Sarah Aldana, on behalf of the Attorney General. The government asked the court to deny the petition for review as there is substantial evidence to establish that the agency's decision that there was no nexus at all to any protected ground here.

[00:13:57] Speaker 02:
Regarding the clear error review, the board here clearly applied the clear error review to the factual findings of motive here.

[00:14:05] Speaker 04:
Where are the factual findings of motive as to the family group in the IJ's decision?

[00:14:10] Speaker 02:
So if you look to page 8 of the immigration judge's decision, this is page 97 of the record.

[00:14:17] Speaker 02:
It's kind of the bottom paragraph where it says here the respondent claims the MS-13 gang targeted her because the gangs believe she supported the police and was communicating with the police.

[00:14:28] Speaker 02:
She then argues that the perceived supported demonstrated opposition to the gang, and then the immigration judge says, based on the evidence of the record, respondent has not sufficiently shown that she holds or was believed to have held a political opinion or any sort of imputed political opinion.

[00:14:42] Speaker 04:
Okay, but that's political opinion. I was asking about family, and at the top of page 8, the IJ says that in – responding to the Salvadoran women PSG, the IJ seems to find that MS-13 gang members saw respondents' immediate family members as threats to their criminal enterprise or sought to recruit them to further their criminal enterprise. That sounds like a finding with respect to defeating one PSG nexus that can only be read to support a family nexus.

[00:15:24] Speaker 04:
Why am I reading that wrong?

[00:15:26] Speaker 02:
In furtherance of criminal enterprises is not a protected ground. It's not – the immigration judge isn't finding that the family was being harmed for their relations to being a family.

[00:15:36] Speaker 04:
Well, I guess that depends on how you read the first part of the sentence. But so if we're not to find that the passage on the top of page nine is enough to do it for family members – I'm sorry, the passage you'd read me, that seems to go to political opinion. So is there anything else I should look for to figure out whether there's a fine in a family member motive that would support the BIA's nexus determination?

[00:16:09] Speaker 04:
I'll probably ask you the same thing with respect to the police informants. Again, because as I take it, the IJ did not make the police informants as just a paragraph. And the IJ's finding is that the evidence is insufficient to establish respondents' membership in the proposed group. But again, the board relied on nexus. So how does that work?

[00:16:32] Speaker 02:
Right. So what I'm saying is that the paragraph that I highlighted is mentioning her imputed police, her supporting the police or her being viewed as supporting the police, which would be a police informant. Right.

[00:16:45] Speaker 03:
You're looking at the carryover from eight to nine. Yes. But what's notable about that is at the end.

[00:16:55] Speaker 03:
There's a cross reference back to the motivation finding that is at the top of page eight.

[00:17:05] Speaker 03:
So there's a cross-reference. So in the context of discussing the proposed group of Salvadoran women, that's where the IJ walks through the findings of motivation, says that the various family members were seen as threats to the criminal enterprise, and then goes through each of the family members and makes her finding as to what's been shown with respect to each family member They say that this one was targeted for this, the brother for that, and finds it all kind of disparate and doesn't add up.

[00:17:43] Speaker 03:
So that's the motivation finding that's then cross-referenced in the other part. Am I reading this correctly?

[00:17:49] Speaker 02:
That's correct, Your Honor. So I would argue that these are the factual findings of the immigration judge regarding the family and how all of their harms are disjointed and disconnected from one another. The brother's was based on recruitment. The aunts, the motive for their murders is unknown. Even in the petitioner's testimony, she's asked if the murders of her aunts were tied to her father, and she testifies that she's unsure. That's on page 171 of the record.

[00:18:21] Speaker 02:
As well as the declaration of the brother indicates that he does not know if the death of his aunts were related to his father.

[00:18:27] Speaker 02:
So these would be the factual findings related to the family in determining that they're disjointed and that they were not connected to one another. And Petitioner was never threatened for her familial connection or for her father's military ties.

[00:18:43] Speaker 04:
Well, I see your first point. I'm still, I guess, struggling to understand the second point that goes to the – that would have to support a BIA nexus finding. So there's a difference between saying that the group may not be cognizable – And your friends have raised questions about that. But cognizability just requires different predicates than nexus.

[00:19:08] Speaker 04:
And so the fact that the family members may all kind of have different – be differently situated with respect to the threats in light of the IJ's – finding that the gang saw Respondent's family as threats to their enterprise.

[00:19:29] Speaker 04:
You think that's your position is that's enough to support a blanket, no nexus determination by the board?

[00:19:37] Speaker 02:
Because the nexus that they're claiming is that they're related to one another or.

[00:19:42] Speaker 02:
or that she has a political opinion because of her father's military stance or has an imputed political opinion.

[00:19:51] Speaker 04:
What about the informant then, the informant group?

[00:19:55] Speaker 02:
It would be the same reasons. The petitioner here was never an informant. She never testified in court.

[00:20:01] Speaker 04:
That goes to membership, but why is that enough to support nexus?

[00:20:06] Speaker 02:
Right. So my argument would be then, You're saying the immigration judge addressed nexus for police informant in this paragraph, although – I'm saying – I'm actually saying that I don't think that it did.

[00:20:19] Speaker 04:
I'm saying that it – yeah.

[00:20:20] Speaker 02:
I'm arguing that this paragraph is the immigration judge identifying police informant, that she – that there is insufficient evidence to establish – insufficient facts within the record to establish that her persecutors ever viewed her as a police informant or imputed a police informant. perspective on her.

[00:20:42] Speaker 04:
Can you point me to the words that you're gleaning that from?

[00:20:48] Speaker 02:
So the very first sentence, here a respondent claims the MS-13 gang targeted her because the gangs believe she supported the police and was communicating with the police. So that would be alluding to police informant. So the immigration judge is talking about political opinion and police informant in this paragraph. And it's applying the same facts to both of those protected grounds that either Isaac or Miguel has never identified or imputed or was in their behaviors or stated anything that she had any sort of police informant or political opinion.

[00:21:27] Speaker 02:
It was rather just a personal dispute regarding child support.

[00:21:32] Speaker 02:
And the record is clear on that, that Miguel stated that he wanted her to remove the complaints because he did not want to get police involved.

[00:21:42] Speaker 04:
So I guess trying to figure out how to put this together and add up these disparate sentences across into sufficient findings for the board to rely upon.

[00:21:54] Speaker 04:
Later on in withholding, and this is at 12 of the IJ's decision, ER 101, makes the observation that even under the lower nexus standard for withholding of removal, right, so kind of setting aside the nexus standard, the court finds that respondent is not established a cognizable social group.

[00:22:22] Speaker 04:
So, again, I guess in terms of I'm trying to understand whether that's the best reading of the IJ's decision is to have engaged in motives underlying nexus, at least with respect to the two sections on family and police informant that don't specifically – don't clearly call out motivations.

[00:22:52] Speaker 02:
Well, I would say that the next sentence, further respondent failed to establish that she held a political opinion or that the assailant subdued one onto her.

[00:23:00] Speaker 04:
I'll grant you that, but that doesn't go to family or informant.

[00:23:06] Speaker 02:
Oh, yeah. Well, I would argue that that paragraph under Salvadoran women would be the factual findings provided. for the family um and then the the board applied de novo review and applied the correct legal standard and determined well determined that those those factual findings were not clearly erroneous and then applied its own de novo review so i would argue that the the the meat of the immigration judge's factual findings would be on in that paragraph which just to be clear the paragraph uh under salvadoran women nexus determination at the top of page eight top of page yeah okay so just it overall in this case there's just simply no nexus to protected ground that the only the only reason for the harm here for the this petitioner uh was a personal dispute regarding child support and um just gang violence regarding her family's harm.

[00:24:13] Speaker 02:
If there are no other questions, the government asks the court to deny petition for review.

[00:24:16] Speaker 03:
All right. Thank you, counsel. We'll hear rebuttal now.

[00:24:32] Speaker 01:
Hello, Your Honors. I would start by pointing out something that the government made a point that Political opinion and police informant are separate protected grounds. There is political opinion and there is membership in a particular social group. And the fact that police informant was not analyzed for its cognizability, you cannot substitute political opinion for the cognizability of that social group.

[00:25:08] Speaker 04:
And why is that? Why wouldn't those overlap?

[00:25:12] Speaker 01:
Because, Your Honor, police informants or witnesses, et cetera, however it's contemplated by Enrique Cerebas, you still have to consider immutability, social distinction, particularity. You don't need that in political opinion. Political opinion is whether you have it or not or whether you are perceived to have it.

[00:25:30] Speaker 03:
But on the question of nexus, I mean, your opponent's argument is that IJ discussed the two together in this carryover paragraph from 8 to 9, which starts with the claim, it addresses jointly the claim that respondent claims that the MS-13 gang targeted her because the gang's belief she supported the police, which would be a political opinion, or at least that was her theory, and was communicating with the police, which is being an informant.

[00:26:03] Speaker 03:
So it seemed to just say these are kind of related, and she decided to discuss them together and then explained and ended with no nexus and cross-referenced Her discussion in the context of Salvadoran women as well. There are my findings on motivation.

[00:26:22] Speaker 01:
And to that, I would also say regarding her analysis of Salvadoran women.

[00:26:28] Speaker 01:
She then goes on to say, considering the entire record, MS-13 gay members saw immediate family members as threats, etc. It's almost as if she is dismissing Salvadoran women as as the nexus in favor of a family PSG. And I think we're back to where where we were starting.

[00:26:46] Speaker 03:
I think the is that is she she's you read this paragraph at the top of it. Page eight is finding a nexus based on family social group.

[00:26:59] Speaker 03:
It seems the opposite. She picks them apart and says, you know, this one was for this reason. This one's for another. This hasn't been shown. She's saying, as counsel described to their role, disjointed. So it doesn't add up to a family-based motivation. It was just over the course of however many years they went after different members of this family for their individual different reasons.

[00:27:21] Speaker 01:
Of course, and I see Your Honor's point. It's more so that cumulative effect review must be undertaken.

[00:27:27] Speaker 03:
That work must be undertaken?

[00:27:30] Speaker 01:
Cumulative effect review.

[00:27:33] Speaker 01:
And in these cases, the reason for that is because the harm, each additional harm compounds on the other and relates back. I don't see personally how the record shows that these aren't related incidents.

[00:27:50] Speaker 01:
I do understand that is a fact-finding question. However, by not looking at these in the aggregate, by separating them, she was able to say that this did not amount to a Okay.

[00:28:07] Speaker 03:
All right. Thank you, counsel. The case just argued will be submitted.