[00:00:00] Speaker 02:
The next matter on calendar is Rodolfo Pena Estrada versus Todd Blanch, 25-2988. Good morning, Your Honors.

[00:00:14] Speaker 00:
May I please report?

[00:00:15] Speaker 02:
Oh, just one sec. Let me just one sec here. That's right. You're both remote. Okay. Let's make sure. Can everyone, we can see both of you.

[00:00:25] Speaker 02:
You're looking wonderful, both, today. And can you both hear us?

[00:00:31] Speaker 01:
Yes.

[00:00:32] Speaker 01:
Okay.

[00:00:33] Speaker 02:
All right. And you each have 15 minutes, and that, Mr. Dempsey, would be total, including any rebuttal time. Did you aspirationally wish to reserve any time for rebuttal?

[00:00:47] Speaker 00:
Yes, Your Honor. Two minutes for rebuttal.

[00:00:49] Speaker 02:
All right. Thank you. Okay. We still have your full 15, so you may go ahead and proceed. Thank you.

[00:00:55] Speaker 00:
Thank you. Good morning. May it please the court, Christopher Dempsey on behalf of Petitioner Estrada. This case presents a narrow but fundamental question about the limits of deference and credibility determinations.

[00:01:10] Speaker 00:
An immigration judge found Mr. Estrada not credible based on vagueness and lack of responsiveness, yet never observed him testify in person.

[00:01:21] Speaker 00:
He rather made his decision based on a cold written record similar to the way an appellate court reviews a cold written record. And that is the whole reason that findings of fact based on observance of live firsthand observed testimony received deference because we cannot substitute our judgment based on of credibility based on what is observed at a human to human level in the courtroom.

[00:01:48] Speaker 02:
Just to clarify the parameters of what you're arguing, are you making a constitutional argument that the agency violated Pena's due process rights because the IJ made a credibility determination without observing Pena testify? Is that your argument?

[00:02:07] Speaker 00:
Yes, it's a constitutional due process argument that is subsumed within the credibility framework you know, the credibility standard, which is substantial evidence. We would argue in the alternative it should receive de novo, but we're fine with substantial evidence because either way... Are you raising only a due process argument?

[00:02:29] Speaker 04:
I thought, as I read your brief, that you also linked in the statutory credibility rules.

[00:02:37] Speaker 00:
Well, yes, Your Honor, the real ID that apply the totality of circumstances, determination of credibility does apply here.

[00:02:48] Speaker 00:
But the point is narrower, and that is when you are making credibility determinations. that turn on the performance during testimony. And mind you, in these proceedings, this is not an English-speaking, native English-speaking individual. This is a Spanish-speaking individual who had an immigration court provided interpreter So we have many layers of communication here, and that just highlights how important it is to be able to look somebody in the eyes, observe the microexpressions.

[00:03:21] Speaker 00:
All these things that any trial attorney knows are key to determination.

[00:03:25] Speaker 02:
But Ari, I guess what Judge Pius and I just want to find out, are you making a broader statutory argument that the REAL ID Act requires an IJ to observe an applicant testify before making a credibility determination? And can you direct me in your brief where you clearly make that argument, or am I understanding that you're not exactly making that argument?

[00:03:50] Speaker 00:
The latter, Your Honor. We're not going directly after the statute to say programmatically, here's a challenge to the way things are done. We're saying in this case, it requires totality, and underneath totality, Credibility determinations only receive deference because those determinations are made based on live observation.

[00:04:10] Speaker 02:
So you agree that the Real ID Act does not expressly require the IJ to observe an applicant before making a credibility?

[00:04:19] Speaker 00:
That's correct, but constitutional due process and these courts reams of decisions on deference and why it exists in the first place still support the result we're asking for, which is remand.

[00:04:35] Speaker 02:
Go ahead. Has any circuit held that the IJ must observe an applicant testify before making a credibility determination?

[00:04:43] Speaker 00:
No, it would have made our job today easier. No, and neither has this court. There are two cases cited by the government, Maswar and Singh, where it came up parenthetically, but was not directly addressed. In Maswar, the court, you're Your court.

[00:05:00] Speaker 02:
Okay, I'm sorry. I stepped on Judge Pius. No, no, no.

[00:05:03] Speaker 04:
Let me ask you this. To what extent does demeanor come into play here?

[00:05:09] Speaker 00:
demeanor comes into play because that is one of the sources of assessing credibility. And if you look at the decision here by the immigration judge, over and over again, he talks about the vagueness of the testimony, unable to recall, lack significant detail, whether it was direct, straightforward responses, vague and non-responsive.

[00:05:34] Speaker 04:
Well, demeanor is in...

[00:05:38] Speaker 04:
If you go to 8 U.S.C. 1158B, which is the credibility, the Real ID Act, it says, considering the totality of the circumstances and all relevant factors, a trier fact may base a credibility determination on the demeanor, candor, or responsiveness. Then it lists a number of other factors, relevant factors, right? Right.

[00:06:08] Speaker 04:
So is it your argument, whether it's due process or statutory based, that you can't really assess whether a witness is expressing truthfulness or is being candid with the decision maker or assessing responsiveness without observing them? Is that what the argument boils down to?

[00:06:37] Speaker 04:
Yes, Your Honor. Why?

[00:06:41] Speaker 04:
Response to this, can't you just look at the record and say, well, here was the question, and here's the response, and it doesn't address the question.

[00:06:54] Speaker 00:
This is a very grossly oversimplistic example, but imagine if the test, we're trying to determine if the solution to a mathematical equation is true or false. One plus one equals two. The record reads one plus one equals two. Now, let's say the person has got profound cognitive issues and they go one plus one Is three?

[00:07:26] Speaker 00:
The record will still read one plus one equals three.

[00:07:33] Speaker 00:
But clearly, that demonstration tells us how much information is embedded in the presentation of live testimony.

[00:07:41] Speaker 03:
Well, in both of those situations, the answer is just wrong and not responsive. So why do we have to see that?

[00:07:48] Speaker 00:
Because wrong and not responsive could be based on a lack of veracity, or it could be based on a lack of cognitive ability, training, understanding. And again, here we have a language barrier. So there's a lot going on in the courtroom with the translation of every question and answer. Pauses in between, there could be looks of confusion. um, all, all things you cannot get on a record.

[00:08:11] Speaker 02:
Well, but they, but we're in this record, like, you know, I've been a trial judge and I've looked at people and sometimes you look at someone and you go, that person is a, a lying sack of, you know what? Uh, because you say, well, they, every time you asked them a question, they looked away or they, you know, you, and you describe that with great specificity. And so it is important that you're looking at the person then, and that it's, you know, sort of a little bit like a picture's worth a thousand words. Sometimes seeing someone face-to-face is a completely... But I'm having a hard time seeing in this record where any of the determinative factors are going that level, not saying the person's not looking at me or not saying that, you know, every time it's like you look at me and you say something and I roll my eyes, okay?

[00:09:03] Speaker 02:
Or I go...

[00:09:05] Speaker 02:
I'm making tisking sounds or something like that. Most married people have experienced that kind of response. So where is this record like that?

[00:09:15] Speaker 00:
Well, that's the exact problem is if the immigration judge knew at the time he presided over the proceedings it would be read and decided by a different immigration judge, it would have been wise to note all the observances of the presentation of testimony by a petitioner But he did not.

[00:09:37] Speaker 00:
And because he did not, there wasn't sufficient evidence as a matter of due process for which the subsequent immigration.

[00:09:44] Speaker 02:
But what if you had like, hypothetically, you have two documents, and it's not disputed. They're in the record when the person was initially interviewed. And it said, I have no fear of returning to my country. The reason that I came is that I want to get Botox and better cosmetology in California or something like that. And then in another place, and suddenly when they testify, they say, oh, I was just so afraid and X, Y, and Z happened. why can't you just compare something like that on the record?

[00:10:17] Speaker 02:
It doesn't really matter whether I'm rolling my eyes or doing anything. There's flat-out statements that I said I wanted to come for Botox, and the other says I was terrified by the cartel. That's pretty inconsistent.

[00:10:32] Speaker 00:
It is. That's a good example, Your Honor, because if there are diametrically opposed written or reported statements...

[00:10:42] Speaker 00:
then that may be sufficient. But in this case, that's not all there was.

[00:10:50] Speaker 02:
Well, but are you asking us to find that you can never make that determination without seeing people or just you can't in this incident?

[00:11:02] Speaker 00:
You cannot invoke a credibility determination based on lack of responsiveness or a basic... So that's a due process violation out the gate? correct, Your Honor, but if they had framed the decision differently, if they had only relied on documentary inconsistencies outside the context of observed life testimony and declared as a finding of fact that they could never, no matter what their demeanor was in the courtroom, they could not have overcome the written record of evidence adverse to their cause, perhaps... Let me ask you this.

[00:11:36] Speaker 04:
A due process violation basically, not basically, but usually requires, and I say usually because there are some instances where it doesn't, but usually requires some showing of prejudice.

[00:11:50] Speaker 00:
That's right.

[00:11:51] Speaker 04:
Where's the prejudice here?

[00:11:54] Speaker 00:
Sure. Now, it's important to remember that the standard for assessing prejudice in this context may have affected the outcome. May, not...

[00:12:04] Speaker 00:
you know, if then, with, you know, logical certainty, but may have.

[00:12:09] Speaker 02:
Do you make a prejudice argument in your brief? Do you even address prejudice?

[00:12:14] Speaker 00:
I mean, I...

[00:12:18] Speaker 00:
I'd have to go control F for the word prejudice, but I know we addressed that it was impossible for the court to have made the findings of fact, the credibility determinations, and that the result, if it was based on live in-person testimony, a different result may have followed.

[00:12:34] Speaker 02:
You can look at your brief when you're listening to the government to direct us to where you address prejudice.

[00:12:42] Speaker 03:
Just one question. Is there any context, not just immigration, criminal, anywhere, or civil, where this type of due process claim has been made that the finder of fact has to be the same person that witnesses the testimony to make a credibility determination?

[00:13:00] Speaker 00:
I can't say that it's ever come up because it ordinarily is. This is just an outlier case.

[00:13:09] Speaker 00:
I have not seen any jurisprudence in a criminal, let's say a criminal trial. I think we all know that will probably not happen, that you would have a different finder of fact that wasn't at trial make the decision.

[00:13:22] Speaker 04:
Let me ask you this.

[00:13:24] Speaker 04:
If your argument is construed as a statutory argument as well, What's the showing that you have to make? Do you have to make a prejudice showing, or do you have to argue that it was harmful, not harmful, or the government has to argue that it was harmless?

[00:13:42] Speaker 00:
Well, I think in the context of statute or...

[00:13:46] Speaker 00:
Well, what's at issue is whether or not the proceedings were fundamentally unfair. And here our argument in essence is that the proceedings were procedurally defective and therefore fundamentally unfair because the credibility determinations were made on a written record.

[00:14:05] Speaker 00:
If we could do that, then no court of appeal would afford any deference to the finder of fact. ever because it could just read the transcript and make up its own mind.

[00:14:16] Speaker 00:
This issue is a lot deeper than this case. It's a lot more important. And systemically or programmatically, I think there's great risk here that if this court countenances the rubber stamping of adverse credibility determinations by immigration judges that did not observe the testimony, we are allowing more cases like this to arise.

[00:14:40] Speaker 02:
Do you want to save the balance of your time for a rebuttal?

[00:14:42] Speaker 00:
Yes, Your Honor.

[00:14:44] Speaker 02:
Okay. We asked you a lot of questions, so I'll give you two minutes on rebuttal. Thank you. All right. We'll hear from the government.

[00:14:51] Speaker 01:
Good morning. Good morning. May it please the court, Roseanne Perry on behalf of the Attorney General. Commissioner's due process claim lacks merit because the record demonstrates that he was provided with a full and fair hearing. He did not show error or substantial prejudice, which is required for a due process violation.

[00:15:12] Speaker 02:
Well, admittedly, though, you've seen sort of what the focus is here, so I'm not meaning to, I want to make the best use of your time. In cases like Ling Wang versus Holder, we have referenced that the IJ's ability to observe an applicant as a reason of why we give IJ's credibility determination significant deference. How, if at all, does that factor into your review here?

[00:15:40] Speaker 01:
Well, in those cases, they had to do with the reviewing court's review of the case and not actually the assigned IJ who is making the determination. There's no indication that the assigned IJ couldn't make a determination based on the transcript in this case. It's like When the IJ, instead of the presiding IJ, makes an oral decision and instead of making an oral decision decides to make a written decision based on the transcript, what's to say that the newly assigned IJ can't do the same?

[00:16:20] Speaker 02:
Well, let's say hypothetically if the IJ had said, you know, I just don't believe you because, you know, the way that you're not looking at me when I'm asking you questions or you're making faces at inappropriate times. So I just conclude, you know, I'm looking at you, and we've all made these determinations, whether it be with our children or anyone. I think you're lying because I don't, you know, you're looking really shifty.

[00:16:51] Speaker 02:
You look really shifty. If that were the case here, could a second person that hadn't seen those shifty behaviors make that determination on a cold record?

[00:17:04] Speaker 01:
Well, there was no demeanor finding in this record, but there were other aspects, other factors that the... Just a straight demeanor finding.

[00:17:14] Speaker 02:
Are you arguing that that wouldn't be problematic?

[00:17:20] Speaker 01:
If the IJ, the presiding IJ, made comments about the demeanor in the transcript, I don't believe that that would be problematic at all. In this case, the IJ made comments about the non-responsiveness of the petitioner during the hearing. And there were other factors that he relied on, the deciding IJ. So I don't believe that's an issue here. And this record before the court.

[00:17:51] Speaker 02:
Well, non-responsiveness, I guess if I were making the argument, I could say it could be determined on what the actual answer is. That would be one way to look at it, and that supports your argument. But it could also be because, oh, you looked up at the ceiling, or, oh, it took you really long to answer the question, or, oh, you were, you know. And those would be two different things. non-responsiveness. Couldn't non-responsiveness possibly be demeanor at certain times?

[00:18:26] Speaker 01:
Our position is no, that it's not demeanor.

[00:18:31] Speaker 02:
I know it's your position here, but couldn't there be instances where non-responsiveness would require seeing the person to say no?

[00:18:45] Speaker 01:
Our position is that it's not answering the question and not demeanor. It's simply not answering the question.

[00:18:52] Speaker 02:
So hypothetically, but sometimes you can ask for too much. You can shoot yourself in the foot here. On the one hand, non-responsiveness could be, well, it shows you didn't really answer the question that was asked. Is it red or is it blue? And then you went on and talked for 15 minutes about a book. Okay, that could arguably be nonresponsive just on its face. But if the nonresponsiveness required how long did it take you or what was your face doing or what were you, you know, all of that, isn't that a different type of nonresponsiveness?

[00:19:28] Speaker 01:
I believe if the IJ is actually making comments in the transcript regarding the demeanor or the nonresponsiveness, that is sufficient for the deciding judge to rely on.

[00:19:50] Speaker 04:
So what your position is, is that demeanor wasn't necessary, demeanor finding wasn't necessary here? Is that what the argument is?

[00:19:57] Speaker 01:
Yes, the demeanor finding wasn't necessary because there are other, in the totality of the circumstances.

[00:20:04] Speaker 04:
Don't you think that's part of the totality, though, demeanor?

[00:20:08] Speaker 01:
It's a non-exhaustive list. So the IJ could have relied on many things here. He could have relied on the inherent plausibility of the testimony, the inconsistencies, the demeanor, the candor, the responsiveness. There are so many other factors. And he did rely on vagueness and specificity, the lack of specificity. What does vagueness mean here? Well...

[00:20:38] Speaker 01:
He just was, I can't recall exactly when he was vague.

[00:20:46] Speaker 01:
He was vague with regard to, I can't recall exactly where the IJ said he was vague, what the circumstances were.

[00:21:05] Speaker 03:
Counsel, can I ask, would the government agree that Congress gets to set what is the level due process required in immigration proceedings?

[00:21:15] Speaker 01:
Yes, I would agree with that.

[00:21:17] Speaker 03:
And so the very fact that Congress did not require in the statute in the Real ID Act that the trier fact be the same trier in fact in making a creditability determination, doesn't that end the due process inquiry there? No.

[00:21:33] Speaker 01:
I believe so. It's in the regulations that the IJ can be reassigned.

[00:21:40] Speaker 04:
Is it in the statute?

[00:21:43] Speaker 01:
It's not in the statute.

[00:21:44] Speaker 03:
It's in the regs.

[00:21:45] Speaker 01:
It's in the regs.

[00:21:46] Speaker 03:
Yeah, but the statute doesn't say that when it directly addresses credibility determinations, it never says that another IJ can't rely on another IJ's proceedings to find credibility, right?

[00:22:02] Speaker 01:
No, but it also doesn't say that they can make a determination otherwise, like on the merits either.

[00:22:15] Speaker 04:
So do you come up with a definition or an idea of what vagueness means here in this context?

[00:22:22] Speaker 04:
Um...

[00:22:34] Speaker 01:
With regard to the warning that he received at the workplace he was not clear about what There was no testimony about what his customers discussed regarding the government and how it all related to him He did not provide details about what actions or activities caused the increasingly serious threats or about the consistency of the threats So he was just vague as to why he he was harmed at all.

[00:23:06] Speaker 01:
He gave no real answer to why he was harmed at all.

[00:23:14] Speaker 02:
So would you have any issue with, and I'm not saying this is what we're going to do because we haven't obviously conferenced on this case, but if we were to hold that an IJ does not violate due process by making an adverse credibility determination based on transcripts alone where the factors relied upon by the IJ to make that adverse determination can reasonably be ascertained by review of the transcripts.

[00:23:46] Speaker 01:
I'm sorry, you said, can you make the determination that... No, I, no.

[00:23:52] Speaker 02:
Okay, go back. Okay. Would you have any issue...

[00:23:57] Speaker 02:
If we were to hold that an IJ does not violate due process by making an adverse credibility determination based on transcripts alone where the factors relied upon by the IJ to make that adverse credibility determination can reasonably be ascertained by review of the transcripts.

[00:24:21] Speaker 01:
I'm sorry, I lost the audio.

[00:24:25] Speaker 02:
okay all right let's let's hope third time's the charm here okay okay all right would you have i i mean obviously i don't know you seem to be advocating for this would always be okay i i think you're that may be a road too far But would you have any issue with us holding that an IJ does not violate due process by making an adverse credibility determination based on transcripts alone where the factors relied upon by the IJ to make that adverse credibility determination can reasonably be ascertained by review of the transcripts?

[00:25:11] Speaker 01:
Yes, I think that's reasonable.

[00:25:16] Speaker 02:
Well, thank you. You would not have a problem, is what I'm... Yes, no, I would not have a problem.

[00:25:22] Speaker 03:
Well, I mean, are you sure you want that, though? Then we're prophylactically setting the boundaries, but wouldn't you rather the boundaries be set in a case where that actually is breached? Yes.

[00:25:43] Speaker 03:
Because Judge Callahan's formulation would cabin where the IG's ability to make credibility findings. Are you sure you really want to do that here?

[00:25:55] Speaker 01:
No, I don't believe we'd want to do that here.

[00:26:00] Speaker 04:
So bottom line, what's your position? That there's just no due process violation here, period, end of story?

[00:26:06] Speaker 01:
Never.

[00:26:08] Speaker 01:
Well, here, no due process violation occurred because he had the opportunity to present evidence and testimony. There was no error. There was no substantial prejudice.

[00:26:19] Speaker 01:
He was questioned by both the government counsel and his attorney and the IJ. He has not shown error or substantial prejudice here.

[00:26:29] Speaker 02:
But that's not even what he's raising. We're talking past each other here.

[00:26:34] Speaker 02:
What he's saying is he isn't saying that he didn't have due process, that he had a due process violation at the first hearing. What he's saying is the due process violation occurred when someone that wasn't at the hearing reviewed the record.

[00:26:51] Speaker 01:
Yes, but he's not showing that he didn't have a full and fair hearing, which is required for due process violation.

[00:27:00] Speaker 02:
All right, but...

[00:27:02] Speaker 02:
Hypothetically, if the IJ at the first hearing where the IJ was present said, I just don't believe you because of the look on your face, okay?

[00:27:15] Speaker 02:
Then go to the, fast forward, that IJ's not here, another one looks at it. Can that second IJ find adverse credibility saying, I don't like the look on your face when that IJ never saw the look on the face?

[00:27:35] Speaker 01:
I don't believe so, but there are other aspects of the transcript.

[00:27:40] Speaker 02:
I know this is not that case. I'm just asking you to think hypothetically. So what I was saying is, let's say hypothetically, I'm not willing to say every time you have a fair hearing the first time and then someone else looks at the record, and doesn't, you know, is a different person, if I'm not willing to say there can never be a due process violation based on credibility, if the whole basis of credibility was the look on the face, but I am willing to say, hey, if I can see that you gave inconsistent answers or any, that might not be a due process violation.

[00:28:24] Speaker 02:
You're not being nimble here. You're just saying no one can ever have a due process violation when a second IJ looks at it if the first hearing was fair. Correct.

[00:28:35] Speaker 01:
Yes.

[00:28:36] Speaker 02:
Okay. All right. All right. I give up. I surrender. Okay. Do you have anything else that you want to add?

[00:28:52] Speaker 01:
Otherwise... Substantial evidence supports the agency's denial of petitioners' applications for relief and protection. And the respondent respectfully requests that the court deny the petition for review.

[00:29:07] Speaker 02:
Okay, thank you. Thank you. We have two minutes for a rebuttal.

[00:29:12] Speaker 00:
Thank you, Your Honor. First, to address your question about prejudice, the word prejudice does not appear in the petition or the initial brief, but credibility because credibility was dispositive here.

[00:29:26] Speaker 02:
But wouldn't you have to show prejudice to win here?

[00:29:30] Speaker 00:
Well, we did. I'm just explaining that. You just didn't say it.

[00:29:35] Speaker 02:
We have to imagine it.

[00:29:36] Speaker 00:
We didn't say the word prejudice, but we made. a forcible argument that any error in how the determination was made necessarily affects the outcome. That's where prejudice is addressed, or at least implied. Credibility controlled the outcome, so the defect in making that determination necessarily establishes prejudice. It goes to the core issue of credibility. As to your framing earlier, the question you kept asking, counsel for the government, that is exactly what i was arguing before if the record is it makes it so evident what inconsistencies form the basis for an adverse credibility determination that would be sufficient but here when we have a mere descriptive term used over and over again not responsive um you know without any further description so the hypothetical rule that i proposed

[00:30:28] Speaker 02:
I know you don't agree that happened here. Okay, I understand that. But does that hypothetical rule give people room to argue where demeanor or things are not present?

[00:30:42] Speaker 00:
Does it give them room? It depends on what the IJ determines credibility on. If they cite the transcript and say I can read here and here, that these are diametrically opposed, 180 degrees different than what you testified, and I see that here on the transcript, you lack credibility, that would be sufficient, not the human-to-human.

[00:31:04] Speaker 02:
Well, if I'm willing to concede that you can make that argument of looking at, then some transcripts would be okay and some would not, and it depends on that.

[00:31:16] Speaker 03:
Yes, Judge Bumate has a question for you. Why doesn't Congress get to set the bounds of due process here?

[00:31:24] Speaker 00:
Well, it did in the little – if you look at little 2i or lowercase 2i and 2, 3, sustaining burden and credibility determination. Yes. At least four times by my count, they used the word a trier of fact may base a credibility determination on, et cetera, et cetera.

[00:31:43] Speaker 03:
Yes.

[00:31:44] Speaker 00:
Trier of fact in plain language necessarily implies someone who tried the case, who observed – No, it says a trier of fact. That's right, Your Honor.

[00:31:53] Speaker 03:
I mean, that's even more generalized than the trier effect. It's actually a trier effect. It doesn't even have to be the trier effect.

[00:32:01] Speaker 00:
So I think in that hypothetical, if you run that all the way out, you could be a trier effect on a cold record that somebody else took the testimony and assembled. Correct. That would be, I think, given the implications of a removal order and what happens in the liberty interest involved.

[00:32:21] Speaker 03:
Yeah, but Congress gets this at that.

[00:32:26] Speaker 00:
Well, they said a trier effect, and the court gets to determine, consistent with constitutional due process, if the two can be squared, thus avoiding a constitutional conflict between the statute.

[00:32:38] Speaker 04:
That's why I asked you whether or not this was a statutory argument.

[00:32:42] Speaker 00:
Well, it's not, the thrust of it isn't, but I went back to the statute because the court knows better than me that that's the beginning point, and so I just keep seeing a trier of fact, and all I can think of in my plain English brain is a judge or a jury.

[00:33:00] Speaker 02:
Okay.

[00:33:01] Speaker 02:
Thank you both for your argument in this matter, and this will stand submitted. Court is in recess until tomorrow at 9. Thank you.