[00:00:18] Speaker 02:
Next, we have Rodas Urias versus Blanche.

[00:00:26] Speaker 00:
Good morning. Hi again. My name is Alex Hazel.

[00:00:29] Speaker 02:
And let me just confirm that your opposing counsel can hear us.

[00:00:33] UNKNOWN:
Okay.

[00:00:34] Speaker 02:
Thank you. Okay, go ahead.

[00:00:35] Speaker 00:
My name is Alex Hazel, and I'm also happy to represent the petitioner in this case. So I'll jump right into what the court asked us to focus on. This is a nexus problem. That specific problem is a missing Nexus analysis and the board's handling of that missing analysis When the immigration judge addressed the issue of Nexus she divided the harms into two categories The first was the gang related harms the assaults the the robbery in the street attempted recruitment the immigration judge did perform and complete a full Nexus analysis on these harms and she found that these harms were not related to the petitioner's relationship with his mother.

[00:01:19] Speaker 00:
I want to make it clear that this was the only fully completed nexus analysis that the immigration judge performed. But that leaves us with all of the other harms, the non-gang-related harms, the abuse that happened inside the home by the grandmother and the uncles when they were inside.

[00:01:37] Speaker 04:
So the uncles were essentially wearing two hats. They were... the uncles and they were gang members. And some of the things they did as gang members and some of the things they did as brothers.

[00:01:48] Speaker 00:
That is correct, Your Honor. And the judge's opinion divides that as well. And she says gang members, including the uncles. So that part is, they do kind of go back and forth between both.

[00:02:02] Speaker 02:
Did the ALJ engage in any mixed motives analysis for the uncles?

[00:02:08] Speaker 00:
No, Your Honor, the court only looked at gang-style harms.

[00:02:12] Speaker 02:
So they said uncles acting as gangs, no nexus, and then doesn't really address uncles acting as family members, and doesn't address whether uncles could have mixed motives as gang members.

[00:02:25] Speaker 00:
Exactly, Your Honor. When the judge turned to all those household harms, the judge said if she had found these harms rose to the level of persecution, then Jorge may have been able to to establish a nexus to the family-based social group, but the judge did not find persecution, so the judge skipped over that finding.

[00:02:45] Speaker 00:
On appeal, the board corrected that persecution finding. The board talked at length, especially about the harm that happened inside the household by his grandmother.

[00:02:56] Speaker 00:
And when the board turned to the issue of nexus, the board reaffirmed the judge's finding on the gang-style harms, And then when the board turned to the judge's finding on the household abuse, when the board answered that question, the board said, we are not left with a definite and firm conviction that the immigration judge made a mistake with respect to the grandmother's motivation. So the board said that they were reaffirming the judge's nexus analysis.

[00:03:27] Speaker 00:
Obviously, the problem is that there was no nexus analysis, that specific one, was one that the judge skipped.

[00:03:34] Speaker 04:
Now, did you make this argument in your brief?

[00:03:38] Speaker 04:
As such?

[00:03:40] Speaker 00:
Not as clearly, no, Your Honor. Not as I am today.

[00:03:44] Speaker 04:
Okay. But you figured it out since?

[00:03:47] Speaker 04:
Okay.

[00:03:48] UNKNOWN:
Yeah.

[00:03:48] Speaker 04:
Go ahead.

[00:03:51] Speaker 04:
So... Is that... I mean, we just had this conversation in the other case. What do we do with that problem?

[00:03:58] Speaker 00:
Uh... I appreciate the opportunity to raise the argument here orally and in oral arguments. But yes, I did not state the argument as clearly in my brief.

[00:04:10] Speaker 04:
Okay, go ahead.

[00:04:16] Speaker 00:
So I will say that the dissent in the board decision recognized this problem. It said that the immigration judge had not made the sufficient motive factual findings about whether or not The grandmother's abuse was motivated by Jorge's family.

[00:04:32] Speaker 00:
So at this point, the court might also ask if the judge skipped it, why can't the board fill that factual gap or look at the facts to determine what motive might have been. The difference, though, is that the board can make nexus determinations de novo, but factual determinations as a review body, as an appellate body, the board is not allowed to make new factual findings about motive, and motive is a factual finding.

[00:05:04] Speaker 02:
Either way, if we agree with your reading of the board's decision and the IJ's decision, we wouldn't be able to make

[00:05:13] Speaker 00:
decision for the board on nexus right that we would have to remand and then the board would have to figure out if it has to remand to the ij for finding about motive is that correct that is correct when and that is my argument is that when the board found that the persecution rose to the level or the harmless level of persecution they should have then remanded back down to the immigration judge for more fact finding rather than um coming up with a motive or making their own motive determination and then saying that it was already in the judge's decision, which is what the board seems to have done.

[00:05:46] Speaker 02:
Well, I mean, I don't know if they came up with their own motive decision or just misread the IJ's decision.

[00:05:55] Speaker 00:
Right. I mean, that raises another point, is how clear does the immigration judge need to actually say this is the motive? Is the board, is it acceptable for the board to maybe sincerely misread the judge's opinion and then affirm it. I think here, though, the motive of the grandmother was there wasn't enough clarity in the immigration judge's decision for the board to reasonably say that they inferred that motive from the judge's decision. Even the judge said at one time the grandmother might have been acting out of disciplining her child.

[00:06:29] Speaker 00:
And then at the same time, the judge said there might be a family nexus here. I just don't know. And the judge didn't reach that nexus determination. So they're just the grandmother's motive was up for dispute. And I don't think the board could or was allowed to decide what that motive was in the first instance.

[00:06:50] Speaker 02:
So I understand you're arguing right now that the grandmother's motive is up for dispute. Is there anything up for dispute about the uncle's motive?

[00:06:58] Speaker 00:
Again, I would split the two harms the way that the judge did. The harms that happened inside the home compared to the harms that happened outside the home. The uncles do sort of play both roles. They live in both worlds. So as far as what the uncles did inside the home, that would be there were beatings that happened inside the homes. They stole Jorge's money that was sent to him for support payments. Those are some harms that were not considered that kind of fell outside of that umbrella of gang-style harms that should be considered looking at the household harms.

[00:07:32] Speaker 00:
I will say, though, I mean, I will admit that the grandmother's motivation is really what we're focused on here.

[00:07:40] Speaker 00:
The uncles, the judge did say the uncles might be alcoholics or drug addicts or just criminals. So the judge did make some motive findings for the uncle, but did not make any conclusive mode of finding for the grandmother.

[00:07:58] Speaker 02:
What about the abuse of the mother by the grandmother? Do you contend that the record compels a rise to the level of past persecution?

[00:08:16] Speaker 00:
I mean, I wouldn't want to stick late to that or concede that point. So yes, I would say that the record compels that the abuse that the mother had from her mother rose to the level of persecution. I would make that argument even for the point that maybe the grandmother was just disciplining her child. I think this goes far beyond the realm of regular discipline or what the the agency should see as regular discipline.

[00:08:44] Speaker 02:
I understand there was about two pages of transcript that I read testimony about from the mother about the abuse from the grandmother. Is there anything else in the record addressing that issue?

[00:08:57] Speaker 00:
No, Your Honor.

[00:08:58] Speaker 02:
Okay.

[00:09:07] Speaker 01:
Good morning. May it please the court. Alexa Perlmutter on behalf of the respondents.

[00:09:11] Speaker 01:
I'm happy to answer any questions, but as Petitioner's Counsel just conceded, he has waived really the only issue in this case, which is Zavala's, whether his harm occurred on account of a protected ground by the grandmother.

[00:09:25] Speaker 02:
He hasn't waived it. He's forfeited it. And there is a difference. He's forfeited it. Correct. Yes, Your Honor. Okay.

[00:09:32] Speaker 01:
I understand.

[00:09:33] Speaker 03:
Counsel, excuse me. I didn't really read your brief to say that.

[00:09:40] Speaker 03:
You had one sentence in there about how he hadn't rebutted something, but you never expressly, as I read the brief, unless I'm missing something, said this has been forfeited and should not be considered.

[00:09:55] Speaker 01:
Well, Your Honor, Petitioner did not make any argument as to fact-finding, as to standard of review, as to the IJ's nexus determination, that kind of missing hole and the narrow issue of the grandmother's motivation. It simply wasn't in Petitioner's brief. And we're writing an answering brief. We answer to what the petitioner has put before us. And as the Supreme Court has recently reaffirmed twice in the past two years, the courts abide by the party presentation principle where the petitioner, the onus is on the petitioner to raise the issues and argue them in distinctly and specifically that he wants the court to address.

[00:10:30] Speaker 01:
And he has just admitted. And I think if we look at petitioners brief pages 18 and 19, the issue as to this missing grandmother nexus finding was not raised to the court.

[00:10:39] Speaker 03:
There is, though, isn't there a difference between waiver and forfeiture? And with forfeiture, at least, we have the discretion to overlook it. Do you agree?

[00:10:54] Speaker 01:
That is correct. It is discretionary. And there's three exceptions that the Ninth Circuit has identified. One is whether respondent argued that The issue in the alternative, we did not make this argument on the fact finding. It was not raised. We did not raise it. The other issue is if responded would not be prejudiced, we would certainly be prejudiced if the petition was granted on this ground. And the third is manifest injustice. And this gets me to, at the end of the day, process, in this case remand, must be for a point. The error here is harmless.

[00:11:24] Speaker 01:
Petitioner points to no evidence that grandmother harmed him on account of his protected grounds. He made this evidentiary argument.

[00:11:33] Speaker 02:
I think that's a pretty extreme position when the IAJ itself said, you know, I might find nexus if I thought there was past persecution. So I think, you know, it doesn't help you to ignore that, right? And when there's a dissent from the BIA itself pointing out the problem.

[00:11:59] Speaker 01:
What the BIA pointed out is that the IJ didn't necessarily make a finding on the issue. But, Your Honor, I've spent a lot of time on this record, and I've spent a lot of time with Petitioner's brief. His only argument is that the family saw Cruz leaving Petitioner in their care as the reason they were poor. That's not only rebutted by the record, pages 155 to 208, when both Cruz and Petitioner testified that grandmother needed and wanted the child support money, But it's also rebutted by page nine of Petitioner's own opening brief when Petitioner summarizes grandmother's actions that grandmother became elusive and would not send Petitioner back when Cruz asked for him.

[00:12:38] Speaker 01:
So the only argument he makes in support of his evidentiary burden is rebutted plainly by the record, rebutted plainly by their own summary of facts. And notwithstanding that petitioner did not cite anything else in the record, the record does not support a family-based motive. Petitioner's claim also is based on disparate treatment between his uncles and him when they were living in the home. The uncles, as petitioner's counsel before the immigration judge conceded on pages 131 to 133 of the record, the uncles are in the PSG.

[00:13:12] Speaker 01:
So grandmother could have none of the requisite animus against the PSG when the claim is based on treating the uncles better than he treated him. So I think what we have here, and we acknowledge the disconnect between the decisions and that was waived and is not properly before the court, I think the court has to articulate how is it getting past the party presentation principle. The Ninth Circuit has explained in the United States v. Turchin that unlike the criminal context, there's no exception under the INA to the party presentation principle, unlike the criminal context where you can look at plain error.

[00:13:45] Speaker 01:
That exception is not here. And so we're in the realm of manifest injustice. And on this record, where this error really is harmless, I think that there's no basis to overcome petitioner's waiver. When this error was pointed out by the dissenting board member, petitioner did not raise it in his brief. Petitioner had an opportunity to file an additional opening brief when this case was taken out of judicial administrative closure. There was no brief filed and there was no reply brief filed.

[00:14:13] Speaker 04:
Just to clarify, the...

[00:14:17] Speaker 04:
Did you argue in your brief anything about the next decision with regard to this child?

[00:14:25] Speaker 01:
Yes. We argued that the evidence does not compel the conclusion that petitioner established that his harm was on account of any protected ground, which is directly responding to the evidentiary argument that petitioner's counsel made in that regard.

[00:14:41] Speaker 04:
What page is that on your brief?

[00:14:43] Speaker 01:
In our brief, that is pages...

[00:14:47] Speaker 01:
40 to 43.

[00:14:50] Speaker 02:
The substantial evidence standard applies there when the agency has actually made a finding. Is that correct?

[00:15:00] Speaker 01:
That's correct.

[00:15:01] Speaker 02:
And the problem here is that the IJ did not actually make a finding about the grandmother's motive.

[00:15:12] Speaker 02:
Is that correct?

[00:15:14] Speaker 02:
I think you've conceded that point. That's correct. So how can we view a non-existent finding for substantial evidence?

[00:15:23] Speaker 03:
Well, it's a procedural error, not an evidentiary question.

[00:15:28] Speaker 01:
The procedural error is the petitioner did not raise this claim in his opening brief.

[00:15:33] Speaker 02:
We understand very well our own standards regarding forfeiture for failure to raise something in the opening brief, but that is, we have the discretion to to overlook that forfeiture. So assume for the moment we will exercise our discretion about whether to not consider this issue because it was forfeited or to exercise our discretion to consider it because the legal issue and the record is squarely before us.

[00:16:06] Speaker 02:
So putting aside the forfeiture because it's not waiver and the administrative exhaustion standard that you're relying on is not at issue here. We're talking about forfeiture, which we have the discretion to either hold petitioner to that or overlook it. So if we choose to overlook it, and I'm not saying that we have made a decision about that, but I need you to address if we chose to overlook it, what would be the appropriate thing to do?

[00:16:37] Speaker 02:
And we can't review for substantial evidence a finding that was not made by the agency.

[00:16:44] Speaker 01:
I understand, Your Honor. I think, you know, assuming that we're overlooking all of that and even assuming, you know, that there's no, we cannot apply substantial evidence, although I do think what's before us is what the board did. And if we're trying to apply substantial evidence to the board's decision, its decision is before the court. But I do think in the context of petitioner's claim, he argued past persecution from a variety of sources. And the board put together all of those sources.

[00:17:16] Speaker 01:
This is gang members, this is grandmother, this is uncles. And the board found in the aggregate that amounts to the severity of harm that rises to the level of persecution. And in order to benefit from the presumption, which is, you know, what petitioner I think is seeking here, which is really the only reason why this matters, is that he would get a presumption of future persecution if he could establish all of the elements of past persecution. So when we're looking at whether all of the reasons why he experienced harm rising to the level of persecution, if all of those sources of harm were harming him on account of a protected ground, that's why this matters.

[00:17:54] Speaker 01:
Can he put together a full past persecution claim? That's an interesting question.

[00:17:58] Speaker 03:
Excuse me, counsel, but let's say you are persecuted by two different entities or two different people. One is doing it on account of a protected ground, let's say your religion, and the other one is doing it just because they don't like people with red hair.

[00:18:17] Speaker 03:
That's a mixed motive case.

[00:18:21] Speaker 03:
It isn't enough to say, well, he's not claiming that everybody had a protected ground motivation, but I don't understand why you think everybody has to have the same motivations.

[00:18:35] Speaker 01:
Your Honor, I think I respectfully disagree. My understanding of the mixed motive case law is when we're looking at a single persecutor. And does that single persecutor have multiple reasons why they're harming that individual? But when we're in a situation where the harm is coming from all of these various sources and petitioner has not contested the finding that his gang related harm, for example, has not.

[00:18:57] Speaker 02:
And did the IJ consider whether the uncles had mixed motives?

[00:19:06] Speaker 01:
I think what the IJ did, and I agree that it's not.

[00:19:09] Speaker 02:
That's a yes or no question, counsel. They not clearly rule on whether there was a mixed motive on the part of the uncles.

[00:19:18] Speaker 02:
I think that what mixed motives discussed at all with respect to the uncles.

[00:19:24] Speaker 01:
Not specifically, although I think the IJ made clear is that Victor and Marcos, I'm looking at 94 of the record, Victor and Marcos, the harm that they perpetuated, such harm was not committed on account of any of his family relationships, and those are the only groups left. And the IJ specifically quoted... Where did the IJ say... The IJ... Page 94.

[00:19:45] Speaker 04:
I didn't understand that he said that.

[00:19:49] Speaker 04:
I thought he said some of what they did was because they were his brothers and some of them was because they were gang members.

[00:19:55] Speaker 01:
I don't necessarily read the IJ to be bisecting the harm by the uncles in that way. I think the IJ's, these two sentences... You can read them as contradictory. I think under Ming Dai, reasonably discernible. We have to look to, you know, is there a path here? And the IJ said Victor and Marcos, their harm was not committed on account of any of his family relationships. And then the IJ cites to this asylum application, which is 944. And if we look to page 944, the quote about them being alcoholics and drug addicts, that was in the context of his abuse inside the home.

[00:20:30] Speaker 01:
So I think the evidence to support that finding is about the, the abusive issue. It's not about the kind of separate gang claim if that is a separate claim. So I think what the IJ did there is consider all of the harm that the uncles were subjecting him to.

[00:20:44] Speaker 02:
Um, and so I'm reading here under on, uh, page 94, the IJ says, uh, that, uh, The son claims he was abused by his grandmother and uncles on account of his relationship to his mother and to each of the abusers themselves. Had Jorge Luis established that the abuse inflicted on him by these actors amounted to persecution, he may have been able to establish a nexus between that abuse and one or more of these family-based groups.

[00:21:22] Speaker 02:
So I don't understand how that is not an acknowledgment that there is a possibility

[00:21:30] Speaker 01:
I think as to the grandmother, yes.

[00:21:34] Speaker 02:
It doesn't say just the grandmother.

[00:21:38] Speaker 01:
I understand. The next sentence in the government's reading, the next sentence contradicts that first sentence. Well, that's part of the problem.

[00:21:48] Speaker 03:
How do you review something that is internally inconsistent and call it good?

[00:21:55] Speaker 03:
Because then...

[00:21:58] Speaker 01:
The board then did review the motivations as to the uncles, cited the same evidence that the IJ... The board is not entitled to make factual findings.

[00:22:07] Speaker 03:
And if the IJ makes contradictory factual findings, the remedy isn't for the board to pick one. It's to send it back for clarification or new findings. I wanted to ask a question about the forfeit.

[00:22:20] Speaker 04:
Yes, Your Honor. You argued...

[00:22:26] Speaker 04:
your argument on this issue was substantial evidence, which meant that you were, it meant that you were, had to be assuming that there was a finding by the board or there was a, or a correct decision by the board as to what the IJ had found, because that's the only way you could have substantial, a substantial amputation standard. So, I'm not at all sure that this is exactly a forfeiture problem because it really is a problem with your argument because your argument was trying to defer to a decision that wasn't made.

[00:23:04] Speaker 01:
Your Honor, respectfully, our argument responded to the one paragraph that Petitioner wrote about this issue in his brief.

[00:23:12] Speaker 04:
But it posited a board determination that you were asking us to defer to.

[00:23:20] Speaker 03:
And you have an obligation, regardless of the argument, to acknowledge problems that exist in your response.

[00:23:28] Speaker 01:
Your Honor, I do think the agency here made reasonably discernible findings. When the board made its decision, although the immigration judge, you know, we again acknowledge the issue with regard to the grandmother's motivation, but the board did not cite to anything that the immigration judge did not cite to. It cited to the immigration judge's factual summary.

[00:23:47] Speaker 04:
Now you're saying that it wasn't adequate determination by the board. No.

[00:23:53] Speaker 01:
I think we, again, acknowledge that the immigration judge did not make an explicit finding as to grandmother's motivation. But the board is entitled to look at the record that was before the immigration judge and look at what the immigration judge did to resolve the claim. I'm talking about the uncles.

[00:24:12] Speaker 04:
Just a minute. But in terms of the forfeiture problem, you're now making an argument that you argued, and it is what you argued, that the board determination was adequately grounded.

[00:24:29] Speaker 04:
And if we think it wasn't adequately grounded because there was no IJA decision, then I don't know that there's a forfeiture problem here exactly. The problem is in looking at your defense and saying it doesn't hold up.

[00:24:43] Speaker 01:
I understand the argument, Your Honor. I mean, our position is that the board's decision here is amply grounded in the record and petitioner himself did not cite to or point to any evidence to support his argument. And we recognize the issues here with the disconnect between the decisions. I'm not contesting that whatsoever. I'm just, when we get a brief from a petitioner, that is where we are looking to what is the petitioner interested in pursuing before this court. And despite the fact that the error was pointed out to him on the board's decision, It was not raised.

[00:25:16] Speaker 01:
It was not raised again. It was not raised in the reply brief. And I appreciate, you know, getting into it because I do think, you know.

[00:25:23] Speaker 04:
What do you mean the error was pointed out to him in the board's decision? The error wasn't. The board said that the IHA had found something that they didn't find.

[00:25:32] Speaker 01:
Sentencing board member on page 11 specifically pointed to the error that your honor has identified.

[00:25:37] Speaker 04:
Well, not exactly, but yes, close.

[00:25:40] Speaker 01:
Yes. Okay. I just think petitioner has been represented by counsel. before the agency, before this court the entire time. Petitioner's counsel conceded that he did not raise this argument.

[00:25:52] Speaker 01:
And I think if we look to the underlying record to see if we can get over the hurdle of what I do believe is a forfeiture by petitioner, the exceptions are not present here. I mean, I don't think on this record we can claim manifest injustice because the process does not exist for its own sake. Thank you, Your Honor. We ask this piece of review be denied.

[00:26:16] Speaker 02:
You have a minute on rebuttal. I think you were out of time, but we'll give you a minute.

[00:26:20] Speaker 03:
No, I think you have a minute and a half.

[00:26:22] Speaker 02:
There you go. Plenty.

[00:26:26] Speaker 00:
Just very quickly, I would say that even moving past the issue of substantial review, there is evidence here that a nexus finding could be made between the household harm And the abuse that his grandmother made and his relationship to his mother wasn't just about money. His mother was sending money to support routinely. And so the money was being sent whether or not the child would have been harmed.

[00:26:57] Speaker 00:
In fact, the grandmother was trying to hide the harm from the mother because she maybe feared that the money would stop. But the relationship, The money might explain why they wanted the child to be in the household and to maintain that relationship, but the money does not explain why the abuse was happening. Like I said, the money was coming whether or not Jorge was being harmed. And then lastly, of course, I do ask the court to use its discretion in this issue with the forfeiture.

[00:27:33] Speaker 00:
Thank you.

[00:27:33] Speaker 02:
Thank you. This matter is submitted.

[00:27:38] Speaker 02:
Next we have Dumit versus Bisignano. Excuse my pronunciation.