[00:00:00] Speaker 03:
We'll turn to the first case on the argument calendar, Case 24-6795, Panda v. Bondi. Good morning, and welcome back.

[00:00:08] Speaker 02:
Good morning. Yes, I was here on Monday. It's a pleasure to be able to stand before the same panel twice in one week. May it please the Court, Aaron Bassey, on behalf of the petitioners, I'd like to save two minutes of my time for rebuttal, and I'll keep an eye on that clock.

[00:00:23] Speaker 02:
I do notice that the counsel for the respondents, at least not on my screen.

[00:00:27] Speaker 03:
Yes, let's make sure...

[00:00:29] Speaker 03:
counsel for the government can hear us.

[00:00:37] Speaker 02:
Okay. Okay, good. Thank you, sir.

[00:00:41] Speaker 02:
So this case centers on whether substantial evidence supports the immigration judge's conclusion that the petitioner did not suffer past persecution and did not demonstrate an objectively reasonable fear of future persecution. This case is unique because the I.J. found the petitioner credible, yet rejected a number of the petitioner's core factual claims without reason, such that multiple parts of the I.J. 's decision are not supported by substantial evidence. Once we rectify this issue, we're left with a record that I think compels the conclusion that the petitioners have both suffered past persecution and demonstrated an objectively well-founded fear.

[00:01:15] Speaker 00:
Now, I didn't get the last you suffer past persecution and and that they've demonstrated an objectively reasonable.

[00:01:23] Speaker 02:
future persecution in Angola. Now, I want to highlight the most egregious examples of the IJ rejecting facts in this manner and also explain how this issue spills over into other legal findings made by both the IJ and the agency. First, the record here clearly demonstrates the petitioner escaped from police custody and that he lived in hiding afterwards until he left the country of Angola. These facts are important because they directly relate to whether the Angolan government had a continuing interest in the petitioner after his escape and whether the harm his family suffered after his escape was related to the problems he was having around the election.

[00:02:00] Speaker 02:
In his decision, the IJ does not grapple with the evidence in the record that supports the petitioner's account of events. Here, this is not a single sentence in the petitioner's testimony where he says that he escaped. We have large swaths of testimony where the petitioner provides detailed accounts of how this escape plan came to be, how his wife, through her personal connection to the police chief, obtained information that the petitioner was at a higher risk of being killed after he hadn't been released from custody as he had during his prior arrest. The petitioner also describes the escape itself in detail, how in the dead of night, two police officers escorted him wordlessly out of his cell into a police vehicle where they escorted him to a location of his choosing.

[00:02:44] Speaker 02:
When the police officers dropped the petitioner off, they told him not to go outside. All these are indications that this is not a standard release from police custody, and none of this is addressed by the IJ or the agency. Instead, the IJ simply states that because two police officers were involved in the escape, The Angolan government must have known about it and therefore must also have known about the petition.

[00:03:03] Speaker 04:
So these are facts that the agency should have considered in connection with the past persecution?

[00:03:08] Speaker 02:
Correct.

[00:03:09] Speaker 04:
So let me ask you this. How did they change the way in which we would look at past persecution if they were to be included?

[00:03:17] Speaker 02:
Understood. This fact is important because it explains how there's a clear connecting line between all the petitioner's problems around the election and the harm that his family suffered after this escape. In the IJ's and the BIA's analysis, they refused to consider the harm to these other family members. They see this as an isolated incident that, although unfortunate, has no connection to any of the other problems the petitioner faced. Because both the IJ and the BIA failed to consider this harm, they both concluded that the petitioner hadn't suffered past persecution and had no well-founded fear of future persecution.

[00:03:48] Speaker 02:
Again, once we accept that the record compels the petitioner's account of events, I think there's a clear connecting line between those two things.

[00:03:55] Speaker 04:
So if we were to agree with you that would be legal error on the part of the agency. Is that correct?

[00:04:04] Speaker 02:
It could be, Your Honor. I think, again... Oh, I mean, what is it?

[00:04:09] Speaker 02:
Well, it's a factual issue. So the IJ, I think, makes a factual conclusion that's not supported by substantial evidence. That factual... And that's one way to describe it.

[00:04:17] Speaker 03:
I guess another way to describe it is just not considering evidence.

[00:04:20] Speaker 02:
That's another way to consider it, too.

[00:04:21] Speaker 03:
That's what I thought.

[00:04:22] Speaker 02:
And this is why this is a mixed question of law and fact. These facts affect directly the... IJ and the agency's conclusion or, I guess, analysis of past persecution.

[00:04:33] Speaker 03:
So what's the appropriate remedy to, if we agree with what you're saying, to let the IJ consider this again?

[00:04:39] Speaker 02:
I think the record, again, compels the conclusion that the petitioner suffered past persecution. I would ask the court to make that finding and then remand to the agency to make further findings about the other elements of asylum. So the BIA, for example, didn't reach nexus.

[00:04:54] Speaker 02:
That's an issue that still needs to be addressed.

[00:04:57] Speaker 04:
The only problem is if we were to say that it was legal error, we have to tell the agency that they made a legal error and they – now we need to correct it and say – do this correctly.

[00:05:11] Speaker 02:
I think it's both a legal error and a factual error.

[00:05:13] Speaker 04:
Is there anything else in the record that would support finding a past persecution?

[00:05:20] Speaker 02:
Yes, I think there's – other facts in the petitioner's past that were glossed over by the IJ and the agency. So I want to zoom out and look at the bigger picture here. All of the harm in this case takes place within a context of political turmoil in Angola between the MPLA, which controls the government, and the UNITA political party. This court has consistently held that the context matters and can make the difference in the persecution analysis if there's objective evidence that individuals like the petitioner are being singled out for persecution.

[00:05:54] Speaker 02:
The petitioner in this case was a high-level UNITA activist. He was organizing protests. He was leading groups around ahead of the elections. And he's suffered past harm that one would expect for someone in this context. He testified that he'd been arrested multiple times. The wife's sworn statement in this case actually said that he was, quote, always arrested whenever protests took place. He testified that he'd suffered physical harm in the past that resulted in scars on his body. And he said that this harm didn't motivate him to leave the country because at the time he was still hopeful. Here we have a petitioner that is politically active because he wants to enact change in his country.

[00:06:29] Speaker 02:
He's now looking for an excuse to flee and seek asylum here in the United States. This is harm that the IJ didn't consider. The BIA did consider it, but it minimized the harm because the petitioner stated that it wasn't a factor in his final decision to actually flee the country for his own safety.

[00:06:46] Speaker 02:
In addition to that past harm, we have the threats that the petitioner received around the election. So these are threats made by a group of people, so both police officers and MPLA members. The threat was made to the petitioner while he was part of a group, but the petitioner testified that he was leading this group, right? The record also demonstrates that that threat was carried through. Just a few days later, the police arrived at the petitioner's home to arbitrarily arrest him and detain him for 10 days.

[00:07:15] Speaker 02:
And then I think this court does need to consider the harm to these family members after this escape. All right, the petitioner escaped from police custody just a few days later. Individuals show up at the petitioner's home looking for him. These are individuals associated with the MPLA party, the same party that controls the government, that controls the police, the same type of individuals that issued the threat to the petitioner before the election took place.

[00:07:40] Speaker 02:
I think all of this, well, This harm to the family members was severe. So the petitioner's wife was beaten. She was threatened. The petitioner's infant child, one year old, was locked in a freezer to pressure the petitioner's spouse to disclose his location. And all this did have an effect on the petitioner himself, even though he wasn't present when this harm took place. The petitioner testified that when he learned about this attack on his family members, what he wanted to do was turn himself into the authorities. Even though he knew that that would result in his death, he wanted to do anything that he could to protect his family members from further harm.

[00:08:14] Speaker 02:
I think all of that together and the country condition evidence compels the conclusion of past persecution.

[00:08:23] Speaker 02:
I also want to highlight additional facts about the attack at the family's home that makes it clear that there's a connection between that harm and the other problems the petitioner had. Again, proximity and time. The petitioner escaped from police custody, and then just four days later, these individuals arrive at the home associated with the MPLA party.

[00:08:44] Speaker 02:
I see that I'm running out of time. Before I yield my time, I just want to address the respondent's argument that we've waived certain challenges to the IJ's conclusions about how country conditions in Angola have evolved. We're here because the petitioner's challenged the agency's finding that he hasn't demonstrated a well-founded fear of future persecution. Country condition evidence is a necessary part of that legal analysis. And in the petitioner's opening brief, we repeatedly cite to country condition evidence when talking about past persecution and future persecution. Here, we're directing the court to country condition evidence in the record that directly conflicts with the IJ's brief assessment of country conditions in Angola.

[00:09:22] Speaker 02:
This is something that both the IJ and the BIA acknowledged was mixed, that there is evidence of police abuse, of impunity, of political prisoners, but there also is evidence that the Angolan government is taking some steps to mitigate them.

[00:09:37] Speaker 03:
Okay, we'll put two minutes on the clock when you come back. Thank you.

[00:09:42] Speaker 03:
Okay, we'll hear now from the Attorney General.

[00:09:51] Speaker 01:
Hello, may I please quote John Stanton for the Attorney General? I'll come clear, okay?

[00:09:56] Speaker 03:
You can't, you are, and good morning, sir.

[00:09:58] Speaker 01:
or good afternoon to you. Hello. Just very, very briefly, in our answering brief, we charged that petitioner's claim for reversal regarding his claim for the protection of the Convention against Torture was perfunctory and undeveloped. In his reply brief, he said absolutely nothing in response. In his oral argument, he says nothing in response. So as far as we're concerned, the CAC claim has been waived and abandoned. So with respect to the silent claim, I hope the court received our Rule 28J letter that we submitted on Wednesday afternoon regarding the Supreme Court's recent decision that held that the substantial evidence review applies to all agency findings regarding past persecution.

[00:10:46] Speaker 01:
And that's essentially what we're fighting about. The Procedure of Counsel basically re-argues the facts. But there's substantial evidence review so long as the agency was reasonable.

[00:11:00] Speaker 03:
How about the argument that really the IJ and BIA decisions are providing a more sanitized account of petitioners release or escape from detention and the time he spent in hiding?

[00:11:18] Speaker 01:
Well, we're not sure, like, he spent time in hiding. He was living with his pastor. He never claimed that he used the word, he did not use the word hiding. The pastor did not use the word hiding. He lived with the pastor. And besides everything else, the police knew where he was.

[00:11:32] Speaker 03:
Didn't he say he was told not to go outside? Didn't he say he was told not to go outside?

[00:11:38] Speaker 01:
I don't recall that, but so, but I mean, but.

[00:11:45] Speaker 01:
Even if he weren't hiding, the police never charged him with any typical crimes. It seems incongruous for the police to drop him off someplace and not do anything about him.

[00:12:00] Speaker 03:
Isn't the argument that his wife managed seemingly through a bribe to get the petitioner released from custody in the middle of the night and he was then taken to the pastor's house and I mean, it's not clear to me that the IJ and BIA fully grappled with the import of what he was claiming. How do you respond to that?

[00:12:23] Speaker 01:
Well, I mean, as I said before, I mean, the government has not shown any continuing interest in him.

[00:12:33] Speaker 01:
And to be honest, I mean, while the agency didn't actually make any nexus findings, it seems pretty clear that he was arrested in connection with an investigation for arson as opposed to any political activities. So, I mean, the election already happened in August 2022.

[00:12:52] Speaker 01:
Shortly after that, the MPLA building was firebombed or demolished.

[00:13:00] Speaker 01:
They're on fire intentionally by us and the police, for whatever reason, thought he had something to do with it. So, I mean, as we said in a brief, it's perfectly legitimate for governments to, like, conduct investigations, including holding suspects who are accused of bona fide crimes.

[00:13:19] Speaker 03:
Right, but I mean, why was he then released in the middle of the night, you know, under the circumstances that he claims?

[00:13:28] Speaker 01:
But at least of a strict sense of law, I mean, it's, well, according to the petitioner, I mean, like, his wife was the hairstylist of the police chief's wife. They probably talked. We don't know why exactly it happened then. It's certainly possible they were intending to release him, and they dropped him off at the pastor's house as a favor to him to, like, avoid any potential harassment from the MPLA.

[00:13:54] Speaker 03:
This is the issue, to me, with just the record. Like, the record... there is testimony from him that he was at risk. That's what he claims prompted his wife to come and use this connection she had. And she says the same thing. And I guess the question is, is that sufficiently accounted for in the agency decision?

[00:14:17] Speaker 01:
I believe so. I mean, like there's a presumption that the police, that the agency considered all the evidence. I mean, I believe the board discussed the, that exact incident in its opinion. So it was, in fact, considered the fact that the agency didn't view the evidence in the same way that petitioner would have preferred, does not show that the record compels reversal.

[00:14:39] Speaker 04:
I mean, that's what substantial evidence review is all about so long as... Mr. Stanton, may I ask you a question? Sure, of course.

[00:14:49] Speaker 04:
You would agree, wouldn't you, that if we were to conclude that the agency... did not fully consider all the material facts in the case, that that would be legal error. Is that correct?

[00:15:06] Speaker 01:
If a petitioner could show that the agency ignored or did not consider evidence under this court's precedent in the Lopez case, then yes, I would agree it would be legal error.

[00:15:20] Speaker 04:
And the remedy would be to remand it back to the agency so they can consider all the evidence. Isn't that correct?

[00:15:27] Speaker 01:
That would be the usual remedy, yes, Your Honor. Yes.

[00:15:29] Speaker 04:
And then at that point, the whole notion or the idea that substantial evidence review, as we now are required to do, would then kick in. Is that correct?

[00:15:44] Speaker 01:
Well, Well, I'm not sure I understand your honor's question.

[00:15:51] Speaker 04:
Under Oriana, the Supreme Court's recent case that you referred to a few minutes ago, past persecution is reviewed for substantial evidence. Yes. Right? Yes. Okay. But that only makes sense to me if the record before us has been fully considered by the board. Right? Right.

[00:16:13] Speaker 01:
Yes, yes, I agree with that, yes.

[00:16:15] Speaker 04:
So if we were to determine or we were to agree with the petitioner that certain material facts were not properly considered by the board or the agency, then the remedy would be to send it back, tell them to consider those facts, and then we'll take it from there.

[00:16:33] Speaker 01:
Correct? Yes, consider those facts and probably while they're at it, address some of the other elements for asylum as well, like the Lexus relocation. things of that nature. So I would agree that would be the remedy. But again, we don't agree with that. That's what happened here. We believe the... I understand that.

[00:16:51] Speaker 04:
Okay.

[00:16:52] Speaker 01:
All right. And with respect to the incident with the wife and children, I mean, again, very, very unfortunate. But I mean, this court's process makes clear that ordinarily harm to friends and family ordinarily are not considered persecution. to the asylum applicant unless it creates a pattern of persecution closely tied to the applicant.

[00:17:16] Speaker 03:
I don't know that the harm to the family has to create the pattern. I think that the harm has to be part of the pattern, right? So I think the argument here would be, well, it was part of a pattern considering that it was four days after he was released and then people came to his wife's house and assaulted her trying to find out where he was living, right? So that, I mean, the BIA referred to this as isolated, but I'm not sure that really is consistent with the record.

[00:17:48] Speaker 01:
Well, I mean, like the word create does appear in other courts' opinions. I know in the Sharma decision that you wrote, I mean, said it had to be part of a pattern of persecution. But other, I mean, the Ariente, I'm blanking on the name, the 1997 case said it has to create the pattern. But it was isolated. I mean, nothing else happened to the case. to the uh to the wife or family and daughter they relocated to another town petitioner says she was in hiding but there's i mean uh based on what i'm just moving another town is not um i think maybe based on being assaulted and having the child assaulted would be the reason the child the child was not harmed the child was placed either a freezer or uh or a closet, but the record indicates the child did not suffer any physical harm.

[00:18:42] Speaker 01:
I don't know if they were gentle with her or not, but I mean, but the child was not harmed, not assaulted.

[00:18:47] Speaker 04:
Mr. Stanton, I'd like to ask you another question about the record. And, you know, when I was looking over this, as I recall, you know, the wife got involved in negotiating with the, her connection with the chief of police and whatnot to help get him released.

[00:19:08] Speaker 04:
And I recall reading that the police chief told her that she may not see Panda again. And then later, the pastor tells her also in his declaration, he said that Panda stayed with him because the police wanted to kill Panda.

[00:19:36] Speaker 04:
That struck me as implied threats of death.

[00:19:42] Speaker 01:
I mean, it just seems incongruent that the police would want to kill him after they dropped him off someplace. It seems like there are much easier ways to do that. I mean, they have the opportunity to harm him. They did not.

[00:19:57] Speaker 04:
The police wanted to kill him. It's that the other side wanted to kill him.

[00:20:05] Speaker 01:
Okay, well, I mean, that's, to the extent Judge Press is talking about a pattern, I mean, that's a totally different pattern then. I mean, so I would think the pattern has to come from the same source of harm. Some of the cases that we cited in our brief finding a pattern of persecution, the source of harm is usually the same. Either it's the same gang or the government. It's not, I mean, it's not the government plus, I mean, thugs. So, I mean, I would say that's an entirely different pattern.

[00:20:35] Speaker 01:
Because he sets a pattern at all. It's only one incident. So I tried to find a situation where this court has held that one incident does not create a pattern in the persecution context. The court has made that point in other contexts, constructed notice, delivered indifference, but it hasn't made it in persecution. But, I mean, we think pattern has to mean something. Like there's just not a pattern of prosecution.

[00:20:58] Speaker 01:
of a persecution based by the MPLA against petitioner on this record. I mean, they may have been angry at him because they suspected that he was involved in the arson of their building, but they haven't contacted him or looked for him or looked for the wife ever since the September 22 incident. And so, I mean, I just don't think there's a pattern here.

[00:21:25] Speaker 01:
The police don't seem to care about him. He left the country without any issues with the assistance of the police chief. I mean, no one's really looking to kill this guy. Okay.

[00:21:35] Speaker 04:
Okay. Thank you.

[00:21:36] Speaker 03:
All right. We've let you go a little over. So I want to thank you very much for your presentation. And we'll hear now from Mr. Basie.

[00:21:43] Speaker 02:
Okay. Thank you, Your Honors. I just want to highlight a few things to address the response argument.

[00:21:56] Speaker 02:
The petitioner did say that he was living in hiding with the pastor. He testified that no one else knew where he was. If you also check the pastor's sworn statement, it suggests that he was in hiding, that he was there for his protection because people wanted to kill him, as Your Honor pointed out. I also want to highlight the country condition evidence and the long history of this conflict between UNITA and MPLA. This conflict dates back to the country's independence in 1974. Since then, the MPLA has controlled the government and UNITA has been the primary opposition party.

[00:22:27] Speaker 02:
I think it's ridiculous to say that this conflict has only now recently resolved itself.

[00:22:34] Speaker 02:
The respondent also minimizes other instances of harm, especially when talking about the petitioner's family members. The petitioner's infant child was harmed, and there's objective evidence in the record about that on page 185. We have this extent of the harm. The extent of the harm, I think, was limited to the child being forced into this freezer or closet to pressure the petitioner's spouse to reveal the location. And so the injuries are commensurate with that. So the medical report just notes bruising and body weakness.

[00:23:05] Speaker 02:
But the petitioner and petitioner's spouse and his child were at the hospital for two days after this attack. I think this this harm is severe. I also want to point out that the petitioner received threats before the election against from a group, a mixed group of both police officers and MPLA members. So there's already evidence in the record that these two, I guess, groups, if we want to characterize them as different groups, are acting together to carry out the same kind of pattern of persecution. The attackers at the home were also MPLA members. So again, I think the record really does compel a finding of past persecution.

[00:23:38] Speaker 02:
That's what we'd ask the court to do today.

[00:23:40] Speaker 02:
Thank you.

[00:23:42] Speaker 03:
Thanks to both counsel for the briefing and argument. The case is submitted.