[00:00:00] Speaker 02:
Order they appear on the calendar, starting with Orozco Aguilar.

[00:00:06] Speaker 02:
Whenever you're ready, counsel.

[00:00:16] Speaker 01:
Good morning and may it please the court. My name is Alex Hazel and I am happy to represent the petitioners in this case. I'll be watching the clock. I'd like to reserve about two minutes for rebuttal.

[00:00:27] Speaker 01:
The issue in this case is persecution. whether the threats and other harms against Jennifer and her family created a reasonable fear of future persecution or rose to the level of past persecution. I'm going to begin with future persecution because I think that's the stronger issue here. Of course, if we want to discuss past persecution, I'm happy to answer questions about that, too.

[00:00:50] Speaker 01:
When considering future persecution, the agency accepted that Jennifer's fear was subjectively genuine, but it denied that her fear was objectively reasonable. relying mostly on the fact that her parents and family continued to remain alive in Guatemala for a couple years after she left. They said that they spent a significant time in their hometown and that during that time they could have been killed or harmed if the gang wanted to.

[00:01:16] Speaker 01:
Now, I recognize that substantial evidence review gives the agency a lot of deference, but that deference has a limit.

[00:01:25] Speaker 01:
The question is whether a reasonable fact finder could look at this record and still conclude that Jennifer's fear of returning to Guatemala was objectively reasonable.

[00:01:37] Speaker 01:
Given what the agency itself acknowledged happened to her family, the answer to that question is no.

[00:01:43] Speaker 01:
The record compels the opposite result.

[00:01:46] Speaker 05:
Can I just stop for a minute? In terms of the connection between past persecution and future persecution, there's the Incidents that occurred to her, for example, that she continued to have threats, as I understand it, from her home area when she was in the United States. She herself was still getting threats. Is that right?

[00:02:15] Speaker 00:
Yes, that is correct.

[00:02:16] Speaker 05:
And also her brother was shot at while she was in the United States, but it happened to him.

[00:02:27] Speaker 05:
at home.

[00:02:29] Speaker 05:
So, I mean, we have case law that says that the past persecution has to be in the original home country, but why aren't those things generated from her home country relevant to past persecution? And in other words, you're assuming that they are relevant only to future persecution, but is that right?

[00:02:55] Speaker 01:
I would say that as far as past persecution goes, the overall theory of the case that we have is that this has all of the harms was towards her family unit as a whole, that this was a nexus towards her family unit. So even when she was in the United States, the harms that were perpetrated against her family could still be used towards past persecution against her, justifying her future persecutions. That would be the theory, if I had to argue it.

[00:03:27] Speaker 01:
The main part of our past persecution claim is the serious threats, the imminent threats that she received, why she was still in Guatemala.

[00:03:38] Speaker 05:
But I do— But they weren't—I mean, the actual face-to-face confrontation was relatively mild, and she wasn't actually hurt herself.

[00:03:50] Speaker 05:
But after she left, her brother was shot.

[00:03:56] Speaker 05:
Well, go ahead.

[00:03:57] Speaker 01:
Well, yes, I admit that the past persecution is a lot more of the uphill battle, the difficult argument to make between the two types of persecution, past persecution and future persecution.

[00:04:07] Speaker 05:
And then in terms of future persecution, as I understand it, the agency's position was and is that her family was in town some of the time and they could have been What does the record show specifically about how often they moved around and also about the security that they had, private security? What's the relevance of the private security?

[00:04:36] Speaker 01:
Yeah, so the record shows that they moved around every other week or every several weeks is what was testified. Was that accredited?

[00:04:49] Speaker 01:
Sorry?

[00:04:49] Speaker 05:
Was that accredited? And it wasn't clear in a minute what that thing actually was. that the agency actually credited that testimony.

[00:04:56] Speaker 01:
Yeah, so that is true. So the agency said, the agency treated it a little flippantly. They said that the petitioner testified that her family moved every couple of weeks, but that they spent a significant amount of time in their hometown despite the gang's threats.

[00:05:16] Speaker 05:
Including a year before they started moving around.

[00:05:18] Speaker 01:
Sorry? Sorry?

[00:05:20] Speaker 05:
It was a year before they started moving around.

[00:05:22] Speaker 01:
Yes, Your Honor. Yes, that is correct.

[00:05:24] Speaker 02:
And there was – you agree it's undisputed that the family was not harmed during that year?

[00:05:33] Speaker 01:
Yes, Your Honor, but during that year was also when they had the private security as well to protect them. And I believe it was also when her brother was shot at and he fled to the United States afterwards. So I –

[00:05:49] Speaker 02:
Do you need to be clear on the timeline? The brother was shot during that year or before that year?

[00:05:54] Speaker 01:
Let's see. So in 2015, in September 2015, someone shoots at Jennifer's brother's car and 2015 was also when she left the United States. So she left in August 2015, and about a month later is when somebody shot at his car.

[00:06:24] Speaker 02:
And then the family was able to live in the same location for about a year after that?

[00:06:29] Speaker 01:
For about a year after that, yes, with the private security as well. So my only argument to that would be that I wouldn't say that they were living safely and freely in – In cases like Akwasong V. Barr, the court looked at whether or not the petitioner changed their public life, changed how they went about in public. Here, the family, their testimony says that they did. Her sisters rarely left the house during this time, even when they were in their hometown.

[00:07:00] Speaker 01:
So I would say that they weren't able to live freely or safely during that time.

[00:07:09] Speaker 05:
And she's seen most concern with going back and having to deal with this private security. Do we have any case at all about that kind of thing?

[00:07:16] Speaker 01:
About private security?

[00:07:17] Speaker 05:
Yes.

[00:07:19] Speaker 01:
So Lin v. INS is similar. During that time, he was given a police sort of bodyguard during that time. That was influential. And then also during Marcos v. Gonzalez, he was also given, I believe that was also private security. He was given a bodyguard through his work, I believe, although it wasn't 24-7.

[00:07:40] Speaker 01:
The court also considered that as well, the fact that he needed security during that time.

[00:07:55] Speaker 01:
If there's no other questions, I would reserve the two minutes.

[00:07:59] Speaker 01:
Okay, thank you.

[00:08:16] Speaker 04:
May it please the Court, Your Honors. Joanna Watson on behalf of the government. Excuse me.

[00:08:23] Speaker 04:
In this case, as opposing counsel just went over, the primary issues are whether the harm rose to pass persecution, which is important because if it did, then there would be a presumption of future persecution. But here, I mean, it's unfortunate the threats and everything, but it's what the immigration judge said. It's to the point of harassment because calls, it was only during a three-month period.

[00:08:54] Speaker 04:
It started in May, and then she left, I believe, in mid-August and came to the United States August 27th after a two-week period. And during that time, she received the calls, and then she was confronted on one occasion, but she wasn't put in harm's way.

[00:09:11] Speaker 04:
And the calls, while they were coming in daily, nothing ever happened.

[00:09:17] Speaker 04:
So the harms.

[00:09:20] Speaker 02:
Yeah, I mean, it's difficult because it seems the brother was shot shortly after she left. And that certainly seems to be more than just then an empty threat.

[00:09:33] Speaker 04:
Correct. But that would not go to the past persecution.

[00:09:37] Speaker 02:
But why not?

[00:09:38] Speaker 04:
Pardon me? Why not? Oh, because she's already left.

[00:09:41] Speaker 05:
And so?

[00:09:42] Speaker 04:
So we're looking at it.

[00:09:43] Speaker 05:
And so?

[00:09:45] Speaker 05:
So what? It was still passed from the point of view of the time that the decision was being made by the agency. It was things that had already happened. And they were, excuse me, and they were happening in her home area, not in the United States. There were not things that were happening in the United States. There were things that were happening there. There were also phone calls to her, but from the where she was starting from.

[00:10:20] Speaker 05:
And the so I don't I mean, we have we have case law, as I said, that says that the past persecution can't be in the United States. But this stuff was not happening in the United States.

[00:10:35] Speaker 04:
But we're looking at while she was in Guatemala.

[00:10:36] Speaker 05:
But why are we looking at that? That's what I'm asking you.

[00:10:39] Speaker 04:
Because her claim is based on what happened to her in Guatemala.

[00:10:43] Speaker 03:
I have a slightly different question about the same issue.

[00:10:49] Speaker 03:
Does a shooting at her brother's car count as persecution against her?

[00:10:58] Speaker 03:
It may count in terms of her reasonable fear. But does it count as persecution against her, even if it's viewed as past?

[00:11:10] Speaker 04:
It wouldn't be viewed as past persecution here because she was not there at the time.

[00:11:15] Speaker 03:
No, that's not what I'm asking. I'm asking whether it has to be directed at her for it to be persecution of her in the past. In other words, let's say she was still in Guatemala, but the only person who had something happen to him was her brother. whose car was shot at, would that be past persecution of her?

[00:11:36] Speaker 04:
It would depend on what her claim was based on. Was she around during the incident? It could be a whole host of things.

[00:11:43] Speaker 02:
Under our standard for determining when a threat rises to the level of persecution, of harm, doesn't the recent violence against her brother elevate the gravity of the threat To her.

[00:12:03] Speaker 04:
Yeah, it would go to because it was a month after she had already left. So it would go to whether the fear of returning. But we also don't know anything about that incident. We don't know. Was he were they trying to extort him like her? Was it a random incident? We don't have any details of that.

[00:12:23] Speaker 02:
I realize that in and.

[00:12:27] Speaker 02:
You know, if the agency had relied on lack of nexus, we might be having a different conversation, right? But they relied solely on the issue of harm, right? Whether there was... Correct.

[00:12:38] Speaker 04:
The board did.

[00:12:39] Speaker 02:
There was no nexus determination by the board.

[00:12:41] Speaker 04:
Correct. It's simply past persecution or whether there's a well-founded fear.

[00:12:48] Speaker 04:
And in this case, I mean, while she still received threats and her family members had moved, there was that year period where nothing happened.

[00:12:59] Speaker 05:
They had private security the whole time. Does that matter? I mean, in other words, we have rules about relocation, right? That if you have to relocate unreasonably and your life becomes limited, that could be a problem. Now, why is it also true that if you're having to live under restrictive circumstances, i.e. with security following you all over, that's what she kept saying, you know, I don't want to live that way.

[00:13:29] Speaker 05:
So the question is, is there any case law regarding whether she has to, whether her fear is mitigated as long as she has security, even though that means that she's living a different kind of life than she was before?

[00:13:49] Speaker 04:
I mean, she comes from a wealthy family who's able to have the security. I

[00:13:58] Speaker 05:
But what she's saying is to live with security means everywhere I go, I have to have people following me around, and I can't really go very far, and I'm not living the life that I was living before. Does that matter?

[00:14:10] Speaker 04:
Pardon me.

[00:14:10] Speaker 05:
Does that matter, I'm asking you? Is there any case law about whether that matters? I cannot think of right now. The opponent just gave me a couple cases before about bodyguards suggesting that those cases, although there was more going on there, indicated that the people were, in fact, remained in danger and had a reasonable fear, despite the bodyguards.

[00:14:37] Speaker 04:
I'd be happy to file something with the court, a case specific that have to do with security.

[00:14:44] Speaker 03:
Okay. I have a question about security also.

[00:14:49] Speaker 03:
What is the state of the record as to whether the security was whether without security they would have continued to face threats. In other words, a wealthy family can, if it wants to, hire security. I mean, a lot of us have very elaborate security systems in our home, even though we've never had any threats. So I guess the question is, is there anything in the record that ties the ongoing security after the shooting at the brother's car to ongoing threats or the necessity of having security?

[00:15:37] Speaker 04:
I can't think of anything in the record, but I will mention that there is no indication that the whole entire family had security. And in the record, it does discuss how her father bought her two sisters' houses. They each have their own houses.

[00:15:54] Speaker 04:
And while they've received some calls, they have lived safely there.

[00:15:59] Speaker 04:
And she only indicates that her father was, you know, being threatened, nothing about the mother. And the father has two separate houses, and there's no indication whether, you know, that security follows them all around. And, you know, here we're looking at whether the record compels. It's not subjectively whether different minds can differ because that can always happen. It's whether the record compels the conclusion that she's suffered harm rising to the past persecution and whether she has a well-founded fear.

[00:16:34] Speaker 04:
And this family has been living there for a long time and they're all safe.

[00:16:40] Speaker 02:
We understand the standard of review. I think the trouble here is if, for example, the record indicated that the family was safe, but they had been in hiding.

[00:16:52] Speaker 02:
And the agency had said there's no well-founded fear of persecution because the family has not been harmed. And the reliance on the fact that they were hiding would be legal error. And I think what we're trying to get at is the reliance on the family's safety when it's in the record that they had private security.

[00:17:16] Speaker 02:
Is there anything indicating whether that's Reliance on the family's continued safety when they had private security guards legally correct or incorrect. So I think that's something you're saying you'll research further.

[00:17:35] Speaker 04:
Absolutely. Okay. I will absolutely look up some cases and file a 20-H-A addressing that specific issue here. I mean, and the board, I mean, the board did talk about, and the immigration judge, you They hadn't been harmed. But I understand you're specifically talking about whether they should have looked more at the fact that they had security.

[00:17:59] Speaker 02:
When a family has extensive security. But there's also. Does it mean we can rely on the absence of harm?

[00:18:10] Speaker 05:
And specifically, if one or the other.

[00:18:14] Speaker 02:
Imagine that the absence of harm is analogous to going into hiding. Is there anything that says it is or is not analogous to going into hiding?

[00:18:26] Speaker 04:
I understand exactly what you're saying.

[00:18:27] Speaker 05:
In particular, she did testify that the reason her brother wasn't hurt was because of the intervention of the security people.

[00:18:38] Speaker 05:
So she did say that the security people, A, were protecting not just her mother and father, but her brother, right? Correct.

[00:18:47] Speaker 05:
and that they were instrumental in the reason that the harm wasn't worse.

[00:18:56] Speaker 04:
Correct, but we also don't know the circumstances. We really don't know if this is related to her claim and the extortion in these gangs or if this was a random incident because there's a lot of information in the record that we don't have details on.

[00:19:11] Speaker 02:
I understand, but that was not the reasoning of the agency.

[00:19:16] Speaker 04:
Right.

[00:19:17] Speaker 04:
And I will get that. Thank you. So in closing, I ask the court to uphold the agency's decision on finding a no-pass persecution or well-founded fear.

[00:19:26] Speaker 02:
Thank you.

[00:19:28] Speaker 05:
Thank you. You cited two cases that you said gentlers and bodyguards went Lim and Marcus something?

[00:19:48] Speaker 01:
V. Gonzalez.

[00:19:50] Speaker 05:
And what did they say about that?

[00:19:53] Speaker 01:
They were just part of the overall consideration of whether or not the fear of future persecution was well-founded. In Lim, the court listed a lot of the things that Lim had to do to stay safe. And even though Lim himself was never actually physically harmed, so they just listed things to consider were that he changed his movements, hired a bodyguard, he was followed, and that his family was never harmed, but his colleagues, so people that were similarly situated to him who didn't have bodyguards were harmed.

[00:20:26] Speaker 01:
And then with Marcos V. Gonzalez, that case involved his employer, while he was at his job, provided him a security guard that was there. And the court just added that as part of the things that he had to do to stay safe while he was in his home country. Even though in that case as well, he wasn't actually harmed, the court did still find that in addition to the bodyguards and everything else he was doing, created a well-founded fear of future persecution.

[00:20:57] Speaker 02:
Did any of those cases involve someone who hadn't established past persecutions?

[00:21:03] Speaker 01:
I believe, Lim, as well, the court reached two different conclusions. They said this doesn't support past persecution, but it does support future persecution. And Marcos V. Gonzalez was the same. The court found that this doesn't justify past persecution, but it does create at least an objectively reasonable fear of future persecution. The last thing I would just want to say, I wish I had a case law to support this, but Just the need to hire private security shows that this family hasn't been able to depend on the government police force of Guatemala, despite filing police reports and asking for government help.

[00:21:41] Speaker 02:
So that was not the ground on which the agency relied. OK, thank you, counsel. This matter is submitted.