[00:00:00] Speaker 01: Good morning, Your Honor. [00:00:00] Speaker 01: Good morning. [00:00:02] Speaker 01: Your Honors, sorry. [00:00:03] Speaker 01: May it please the court? [00:00:04] Speaker 01: My name is Lieta Milova. [00:00:05] Speaker 01: I represent Petitioners in this case. [00:00:09] Speaker 01: I'm going to tell you a very similar story to the previous case. [00:00:13] Speaker 01: We have post-persecution, we have relocation, and we have a well-established fear of future persecution. [00:00:19] Speaker 01: To all of that, IJ said no, and the agency said no, that IJ was correct. [00:00:26] Speaker 01: First, I would like to talk about the well-founded fear of persecution, one of the part of which is relocation. [00:00:34] Speaker 01: We have exactly the same situation here as in many other cases where agency as well as IJ completely ignore the facts. [00:00:43] Speaker 01: And not only they ignore the facts within one case, they ignore facts within one paragraph of their own decision because in one part, [00:00:53] Speaker 01: in the beginning of the paragraph, they're saying this and this family member was killed. [00:00:58] Speaker 01: And then just a tiny little bit later in the same paragraph, they say, but because family was not harmed, she can safely relocate. [00:01:07] Speaker 01: Well, you have to choose which one it is. [00:01:09] Speaker 01: It's either one or the other. [00:01:10] Speaker 01: And the same mistake happens in the AJA decisions, in the BIA ruling, and then oil brief to this court. [00:01:17] Speaker 01: They all do exactly the same. [00:01:19] Speaker 01: Yes, these people were killed, they're family members, but family was unharmed, therefore she can move. [00:01:25] Speaker 04: Choose your- How about the well-founded future persecution? [00:01:29] Speaker 04: Because I had read the IJ and BIA to essentially say there was these terrible killings, but the details of that and the circumstances of that and how that could relate to her is unclear. [00:01:39] Speaker 01: So that's nexus, correct? [00:01:41] Speaker 04: Well, I guess I had read it to more mean that [00:01:43] Speaker 04: Her fear was not objectively grounded just because the details of these killings and their relationship to her was unclear. [00:01:51] Speaker 04: That's how I interpreted it. [00:01:54] Speaker 01: Yes. [00:01:54] Speaker 04: You can tell me if you think that's different. [00:01:56] Speaker 04: You interpret it differently. [00:01:58] Speaker 01: The problem here is not in the facts itself, the problem here is what the BIA and IJ do with them. [00:02:05] Speaker 01: Because what they do is, this person was killed, the partner was killed, you got a threatening call, then three other people connected to you killed. [00:02:13] Speaker 01: However, one phone call is not enough for past persecution, therefore you don't have a fear of well-founded persecution. [00:02:20] Speaker 01: Again, what did you analyze right now? [00:02:22] Speaker 01: Just one phone call? [00:02:24] Speaker 01: Why are we disregarding the death of the partner and death of other family members? [00:02:29] Speaker 01: If you, at least in one sentence, explain to us why all of them are unrelated and, you know, [00:02:37] Speaker 01: Irrelevant to this case, sure. [00:02:39] Speaker 01: However, we'll list the facts, but then conclusion is one phone call is not persecution, therefore no well-founded fear. [00:02:46] Speaker 01: Again, we are completely ignoring the facts, and it happened with past persecution, nexus, and the future persecution. [00:02:53] Speaker 04: Another problem with this- What specific facts do you think were ignored? [00:02:58] Speaker 01: Everything but the phone call. [00:03:01] Speaker 04: Okay, well, let's be a little more specific. [00:03:02] Speaker 01: So what- The death of the partner that happened nine days before the phone call. [00:03:07] Speaker 04: Okay, I mean that is discussed in the opinion, right? [00:03:11] Speaker 01: And then conclusion is one phone call is not persecution. [00:03:15] Speaker 01: What about the death? [00:03:16] Speaker 01: It's not, okay, it may be not persecution, but shouldn't you state that death of the partner call and death of other family members does not amount to past persecution? [00:03:27] Speaker 01: That would be logical. [00:03:29] Speaker 01: Instead, we have one phone call is not persecution. [00:03:31] Speaker 01: But where did the rest of the facts go? [00:03:35] Speaker 01: Also, related to that, the problem with analysis is, so we're discussing post-persecution. [00:03:42] Speaker 01: This happened, that happened, that happened. [00:03:44] Speaker 01: And our conclusion all of a sudden? [00:03:46] Speaker 01: No nexus. [00:03:47] Speaker 01: Excuse me? [00:03:48] Speaker 01: It's either post-persecution discussion or nexus discussion. [00:03:51] Speaker 01: Why are we making conclusion of no nexus after we discuss post-persecution? [00:03:56] Speaker 01: And BIA said, we are not touching the nexus because Ajay was correct in the past persecution. [00:04:03] Speaker 01: But he made this mistake of nexus in the discussion of past persecution. [00:04:08] Speaker 01: So this decision is just one complete pile of everything together and one like we don't have separate parts in the analysis at all. [00:04:18] Speaker 01: Like our analysis is just jammed. [00:04:21] Speaker 01: That's an error of law. [00:04:23] Speaker 01: They should be remanded to the BIA. [00:04:25] Speaker 01: So the BIA can actually analyze it correctly. [00:04:29] Speaker 01: It may not be grant of asylum. [00:04:31] Speaker 01: It may be a grant of asylum. [00:04:32] Speaker 01: We don't know because we cannot evaluate it based on the analysis of the BIA and the IJ because... Just assume for a moment for the rest of your, for a few minutes here of your time that [00:04:43] Speaker 03: There was that the finding of no past persecution is, you know, let's just assume that it's okay. [00:04:50] Speaker 03: Okay. [00:04:51] Speaker 03: So what about relocation? [00:04:57] Speaker 01: If we're talking analysis by the agency about relocation, they also made the same mistake. [00:05:04] Speaker 03: They at least- I'm sorry. [00:05:05] Speaker 03: You let your voice trail off. [00:05:06] Speaker 01: Sorry. [00:05:07] Speaker 01: If we discuss relocation, if we are talking about discussion of relocation by the BIA, again, what the BIA did, this person and this person died, but family members. [00:05:21] Speaker 01: But because her family is unharmed, she can relocate. [00:05:24] Speaker 01: Which one is it? [00:05:25] Speaker 01: This person and this person died or family was unharmed? [00:05:28] Speaker 01: It's a complete just contradiction of the facts within the same paragraph and conclusions she can relocate. [00:05:36] Speaker 01: So it has to be remanded so we can just make the record straight because you cannot analyze anything based on this completely erred paragraph. [00:05:48] Speaker 01: I will keep the remainder of my time if I may. [00:05:52] Speaker 04: Sure, thank you. [00:06:09] Speaker 04: Miss Jones, good morning. [00:06:10] Speaker 00: Good morning. [00:06:11] Speaker 00: May it please the court. [00:06:13] Speaker 00: Tracy Jones appearing on behalf of the respondent, the U.S. [00:06:15] Speaker 00: Attorney General. [00:06:17] Speaker 00: The court should deny the position for review in this case because the petitioner has failed to meet her burdens of proof in establishing eligibility for relief and protection, and the record does not compel. [00:06:27] Speaker 00: a contrary conclusion. [00:06:30] Speaker 00: I'm going to start with the objectively reasonable fear of future persecution finding because the courts seem to have some concerns about that. [00:06:39] Speaker 00: The arguments that petitioners council just made is a total mischaracterization of the agency's decisions. [00:06:45] Speaker 00: The agency did in fact consider the deaths of the petitioner's family members and determined that the petitioner wasn't able to provide any details in regards to these deaths. [00:07:00] Speaker 00: When asked numerous times in regards to each incident who killed or who committed the murder, petitioner responded, I don't know. [00:07:10] Speaker 00: When asked why each family member was killed, [00:07:15] Speaker 00: petitioner again said, I don't know. [00:07:16] Speaker 00: When asked if these incidents could possibly be non gang related petitioner responded, I don't know. [00:07:26] Speaker 00: Without details of these incidents in which [00:07:30] Speaker 00: By the way, they waived those findings because in their opening brief, they never address that the killers were unknown. [00:07:43] Speaker 00: They never address that the target was unknown. [00:07:48] Speaker 00: And she never addressed how each killing was linked and how it was closely tied to her. [00:07:55] Speaker 00: Yes, this court has determined that when examining eligibility for asylum, you can assess the harm to family members or close relatives or close associates. [00:08:09] Speaker 00: However, that harm does not substitute for that to the applicant. [00:08:14] Speaker 00: The applicant has to show that everything is closely linked. [00:08:17] Speaker 00: And she failed to do that here. [00:08:19] Speaker 03: The call that she received after, was it Benito's murder? [00:08:22] Speaker 00: Yes, in 2016. [00:08:23] Speaker 03: It was very short in time. [00:08:25] Speaker 03: Proximity was very close. [00:08:26] Speaker 03: It was like, what, nine days or something? [00:08:27] Speaker 00: It was nine days. [00:08:28] Speaker 03: Why isn't that enough? [00:08:30] Speaker 00: Because there's no evidence of who the caller is. [00:08:35] Speaker 00: She never presented any details about identifying the caller. [00:08:39] Speaker 00: Everything is based off of her own suspicions that it's a gang. [00:08:43] Speaker 00: She couldn't even identify [00:08:45] Speaker 00: which gang was targeting her or targeting her family members. [00:08:51] Speaker 03: How was Benito killed? [00:08:52] Speaker 03: I can't remember. [00:08:53] Speaker 00: I believe he was shot in the head, yes. [00:08:57] Speaker 03: And she surmised from that, that that was a gang, right? [00:09:00] Speaker 00: Because it's common. [00:09:01] Speaker 03: Kind of typical of the way gangs in her area sort of operate. [00:09:05] Speaker 03: Not surprising, I mean, you know. [00:09:07] Speaker 00: Yes, and even to that, Your Honor, when I asked which gang is controlling your neighborhood, she said, I don't know. [00:09:14] Speaker 00: It's just the petitioner provided absolutely no details surrounding any of this to determine that she would be eligible for past persecution, that she showed past persecution or that she even showed an objectively reasonable fear of future persecution. [00:09:30] Speaker 00: It's just nothing in the record. [00:09:32] Speaker 00: The only thing that is in the record is generalized country conditions, which this court has held without more is not sufficient to meet the muster of establishing eligibility for asylum or withholding of removal. [00:09:48] Speaker 04: So how about on the reasonable relocation finding? [00:09:52] Speaker 04: I mean, take the petitioner to be saying, well, the finding is a little thin. [00:09:56] Speaker 04: How do you respond to that general objection? [00:09:59] Speaker 00: Well, I think that's also a mischaracterization on petitioner counsel's part. [00:10:05] Speaker 00: The court is not, I mean, I'm sorry, the agency is not saying that when you're looking at the deaths of past family members and then in the same breath saying, well, you still have family there unharmed. [00:10:20] Speaker 00: What the court, I mean, what the agency is saying is that the deaths, there's no link. [00:10:27] Speaker 00: She didn't connect the dots. [00:10:29] Speaker 00: But when you're looking at the relocation and the objectively reasonable fear, the fact that she still has siblings there, the fact that she still has extended family members who are similarly situated to her, they're there unharmed, that weakens her objectively reasonable fear. [00:10:47] Speaker 00: These same family members can assist with any transition from any transition that the petitioner would need when returning to Mexico. [00:10:59] Speaker 03: These other family members related to I think his name is Benito again. [00:11:05] Speaker 00: Well, she only mentioned her siblings and aunts and cousins, which is just her extended family. [00:11:12] Speaker 00: But the family members that she discussed that [00:11:15] Speaker 00: had been unfortunately killed were not just related to Benito. [00:11:22] Speaker 00: She had a nephew herself that was killed. [00:11:25] Speaker 00: So I don't think that the link is just Benito. [00:11:29] Speaker 00: I think she's more so trying to argue that the deaths of her close family members, regardless if they were related by blood to Benito. [00:11:39] Speaker 03: Well, do you think it's significant that [00:11:45] Speaker 03: The siblings were not related to Benito? [00:11:48] Speaker 00: No, I don't, Your Honor, because some of the past deaths- I mean, because you have to have some similarity. [00:11:53] Speaker 00: And I think the similarity she's trying to argue is that it's her family members, not necessarily Benito's. [00:12:00] Speaker 00: Benito did- she did testify- It was her connection with Benito though, right? [00:12:06] Speaker 00: That's what she's trying to argue is that he's a family member of hers, not necessarily that [00:12:14] Speaker 00: It was his relationship that is the cause of all this, because she did mention two deaths, one of her actual nephew and another of a person that she raised, that she was their nanny, to support her claim that she suffered past persecution and have a fear of future persecution. [00:12:34] Speaker 00: Those two individuals had no relation to Benito, at least she did not present any evidence of such. [00:12:41] Speaker 03: But Nietzsche was the daughter's father. [00:12:45] Speaker 00: Yes, that's correct. [00:12:46] Speaker 03: That's a pretty close connection there. [00:12:49] Speaker 00: It is. [00:12:50] Speaker 00: It is. [00:12:51] Speaker 00: But at the same point in time, the other deaths that she relies on to support her claim that she suffered past persecution don't have that same relationship or close tie. [00:13:05] Speaker 00: At least she didn't present any, which she has the burden to do what she failed to do here. [00:13:12] Speaker 00: Now, looking at the past harm, unless the court has any other questions in regards to the objective reasonable fear, I'll go ahead and move to the past harm. [00:13:22] Speaker 00: The incidents just do not constitute past persecution. [00:13:27] Speaker 00: The single threatening phone call that she did receive, which in fact she perceived as a threat, merely stated, you're living alone, be careful. [00:13:39] Speaker 00: with no but there's no details surrounding that there's no details about who may have called her no specifics in regards to the gang and on top of that there's no reason why she was targeted or why Benito was targeted one could say you know came nine days after Benito was killed yes she was [00:14:03] Speaker 03: They shared a child together. [00:14:05] Speaker 03: They had been going together. [00:14:06] Speaker 02: Is there any evidence of why Benito was killed in the sense of any activities that he was doing that she was also doing and she was warned about? [00:14:18] Speaker 00: No, Your Honor. [00:14:20] Speaker 00: Petitioner testified that prior to Benito's death, she didn't know of any gang affiliation with Benito and any gangs in her area. [00:14:30] Speaker 00: She also testified that she did not know of any threats that were received before then. [00:14:35] Speaker 00: And when asked why was Benito killed or why do you believe it was gangs that killed Benito, she merely stated because it was common. [00:14:45] Speaker 00: That was her suspicion. [00:14:47] Speaker 00: She didn't present any evidence as to why Benito was targeted and why he was killed. [00:14:58] Speaker 00: At the end of the day, Your Honor, the petitioner has the burden of proof to establish and demonstrate eligibility for relief and protection. [00:15:06] Speaker 00: And in this case, she just did not do that. [00:15:09] Speaker 00: The evidence that the limited generalized country conditions evidence is not sufficient to carry the day. [00:15:16] Speaker 00: The petitioner was required to connect the dots and demonstrate how each incident was closely tied to her and was committed in hopes or in anticipation of harming her. [00:15:29] Speaker 00: The petitioner just did not do that here. [00:15:32] Speaker 00: So in conclusion, the court should deny the position for review because the petitioner has failed to meet her burden of proof, plain and simple. [00:15:39] Speaker 00: And the record does not compel a contrary conclusion, nor has she identified any evidence in the record that will compel a contrary conclusion. [00:15:47] Speaker 00: Thank you. [00:15:48] Speaker 04: Thank you very much. [00:16:02] Speaker 01: Your Honor, first I would like to address the part of me mischaracterizing what the agency did. [00:16:09] Speaker 01: I'm just going to read from the agency's decision. [00:16:12] Speaker 02: Keep your voice up if you would. [00:16:13] Speaker 01: Sorry, I don't know why I'm so quiet today. [00:16:15] Speaker 01: Normally I'm never am. [00:16:17] Speaker 01: All right. [00:16:18] Speaker 01: So while the respondent recounted the killings of several family members or others connected to the respondents and then, you know, discussion continues. [00:16:29] Speaker 01: And then when we talk about relocation, [00:16:35] Speaker 01: The immigration judge correctly considered that the respondents, three siblings and other family members, live elsewhere in Mexico without harm or problems. [00:16:42] Speaker 02: That's a clear... Did she recount why any of the family members were killed in the sense that Benito and the other family members were of a rival gang? [00:16:53] Speaker 02: Anything like that? [00:16:55] Speaker 01: No, and that another problem, because the IG just didn't go there. [00:16:59] Speaker 01: We don't know. [00:17:01] Speaker 01: Because when she testified that the family members were killed, logical for me would be to ask where, why, so forth. [00:17:10] Speaker 02: Did you ask her that at the hearing? [00:17:11] Speaker 01: We don't have it in the record. [00:17:13] Speaker 01: she said she did not know why but then there is no other questions about like where because if you're saying that the ij was it false for not developing the record correct that's what i think on top of everything else um also what seems to me the opposite side in this case has a position that [00:17:35] Speaker 01: Because a respondent in the removal proceedings did not establish the facts enough for asylum, we don't have to properly analyze it at the appeal stage by the BIA. [00:17:47] Speaker 01: But then how do we know that the respondent did not establish all the facts that are necessary if we do not conduct a proper analysis on appeal? [00:17:58] Speaker 01: So I do not believe that the errors by the agency can be cured [00:18:03] Speaker 01: by just saying the respondent did not establish enough. [00:18:07] Speaker 01: Tell me, you know, show me the analysis and you know, then we will not be here. [00:18:11] Speaker 02: Could you answer one other question? [00:18:13] Speaker 02: Did the petitioner have counsel at the IJ hearing or was it proper? [00:18:18] Speaker 02: Yes, she did. [00:18:23] Speaker 01: That was not me. [00:18:23] Speaker 01: So I would not be able to tell you what happened back then exactly. [00:18:28] Speaker 01: Thank you so much for your attention. [00:18:30] Speaker 04: Thank you. [00:18:30] Speaker 04: Thanks to both counsel. [00:18:32] Speaker 04: The case is submitted.