[00:00:14] Speaker 04:
Good morning and welcome to the Ninth Circuit. We are pleased to hear you. We have read your briefs. We look forward to your argument. A little bit of housekeeping. One case has been submitted on the briefs, and that's Galvis Trujillo v. Blanche. That's been submitted. The other cases are argued cases. First one is Rojas Chavarria versus Blanche, and we've got one person appearing by video.

[00:00:39] Speaker 04:
When you're ready, counsel.

[00:00:56] Speaker 04:
The clock counts down, so you keep track of your time.

[00:00:59] Speaker 01:
Thank you. I would like to divide my argument into two major parts.

[00:01:05] Speaker 01:
The two issues were not waived in an appeal with the Board of Immigration Appeal. One is one of the particular social groups, which is the person who witnessed murder committed by persons associated with Peruvian government authorities and who is subject to retaliation if he returns to Peru. And the second, the political opinion of the petitioners.

[00:01:30] Speaker 01:
So on the first point... You have limited time.

[00:01:34] Speaker 02:
Let me make this suggestion. Stick to political opinion.

[00:01:38] Speaker 01:
Okay. Thank you, Your Honor.

[00:01:42] Speaker 01:
In that case, Your Honor, I would like to say that on a political opinion, what...

[00:01:59] Speaker 01:
my clients experienced was clearly related to their political opinion.

[00:02:09] Speaker 01:
There is a few cases that were cited in a Board of Appeals brief that one of them, main Rodrigo Zuniga versus Garland, that says that simple extortion does not equal to the political, to the to be protected ground. However, in our case, it is not just the extortion.

[00:02:37] Speaker 01:
Our clients, my clients, both adults, petitions in this case, they suffered crimes perpetrated by them. They suffered harm exactly because they were expressing political opinion.

[00:02:52] Speaker 04:
What's the evidence that what happened to your clients was based on political affiliation?

[00:02:58] Speaker 01:
Um, they were, um, they had that there's my advert political, the ties with posters on their boards.

[00:03:06] Speaker 01:
Uh, they had a business truck and they had, uh, advertised the party that they are affiliated with, where it's a popular and, uh, the people who harmed them, the, the gangs who were affiliated with, uh, with the government were supporting other party. Peru Libre.

[00:03:30] Speaker 01:
And they, against my client's will, they wanted to put special posters on the walls. And when our clients refused, the harm started.

[00:03:43] Speaker 01:
The dog was killed.

[00:03:45] Speaker 01:
One of the petitioners was punched in the mouth, the female.

[00:03:52] Speaker 04:
And also... Was there any harm because of the punch in the mouth?

[00:03:58] Speaker 01:
She still has a chipped tooth.

[00:04:00] Speaker 04:
A chipped tooth as a result of that. Correct.

[00:04:04] Speaker 01:
Also, her brother was shot in the head because he had a close resemblance to her husband, Alex Maza. He was shot in the head. And also their house, their business was set on fire. And that happened after they already left the United States.

[00:04:23] Speaker 04:
So that's the specific harm they... And when the business was set on fire after they left for the United States, who was running the business at that time? Was it still connected to them in some fashion?

[00:04:35] Speaker 01:
It was. It was her brother-in-law who took over the business after that.

[00:04:41] Speaker 04:
So it was still a family-run business, same family?

[00:04:43] Speaker 01:
Still family-run business, correct. And it is our position that basically the main case that speaks to our... One is Navas versus INS that says that the inquiry is whether the persecutors believe the victim had a political opinion. It targeted them and persecuted them because of the political opinion.

[00:05:08] Speaker 01:
Sure, the extortion claims were there as well.

[00:05:12] Speaker 01:
However, it is our position that it's mainly because of political opinion our clients suffered harm.

[00:05:21] Speaker 04:
And so what's the standard as to what proportion of the causation is the political basis?

[00:05:28] Speaker 01:
In like a percentage of.

[00:05:33] Speaker 01:
It's not clear from the caseload that I read at least.

[00:05:36] Speaker 04:
Well, it's either got to be a central reason or the central reason, depending on which one we're talking about, asylum or whatever.

[00:05:42] Speaker 01:
Always hold every moment.

[00:05:44] Speaker 04:
So why is it?

[00:05:46] Speaker 04:
So you have to show that the reason was pretty important.

[00:05:50] Speaker 04:
Why was that reason particularly important instead of just contributing? Sounds as though this gang was extorting money from everybody.

[00:05:58] Speaker 01:
Correct. However, the harm that my clients suffered, it extends beyond what other people suffered.

[00:06:15] Speaker 01:
It was an inter-gang situation. Wars there, too, and Trenarango gang in Los Rusos, they were like, sometimes they were together, sometimes they shooting each other, and that's when my client witnessed the murder. But the male adult petitioner, the husband, Alex Maza, he was a very firm supporter of Fuerza Popular. And the Los Rusos, who extorted money from them,

[00:06:48] Speaker 04:
they were very few supporters of uh peru libre it sounds so this gang is willing to shoot people who don't give them money that is to say apparently one of the neighboring businesses somebody was shot when they didn't give money and as far as i can tell from the record there was no political issue on that one we just didn't give money and so they killed him it it's um it is unclear to to us um unfortunately it was not part of the record i was the attorney of record and

[00:07:18] Speaker 01:
Perhaps I should have asked that question if my client knew. But as far as we don't know, maybe it was the political opinion as well for that person who was shot.

[00:07:27] Speaker 03:
I want to follow up on Judge Fletcher's comment. We, as I'm sure you know, get lots and lots and lots of cases where basically you've got gangs that want money. And that's what they're after. Political opinion pays virtually no role in this. What is your best argument on the substantial evidence basis that suggests that the attack here was politically motivated and not financially?

[00:07:58] Speaker 01:
It was both. It was both.

[00:08:06] Speaker 01:
But I believe out of all the community, my clients are the only ones who left and they were the ones who actively protested. At first, they even paid the gangs, but then they stopped because they just wanted to stand up for their reasons and for hoping that things will change because during the time they suffered harm, it was the opposing party led by the mayor of Lima, capital of Peru.

[00:08:40] Speaker 01:
Peru Libre was led. So, I mean, the city was controlled by And that's why the gangs ran around and it was just a total chaos and criminals just bribed the police.

[00:08:51] Speaker 02:
Let me see if we can focus in a little bit.

[00:08:54] Speaker 01:
Yeah, correct. Sorry.

[00:08:54] Speaker 02:
On what this case is about.

[00:08:56] Speaker 01:
Sorry.

[00:08:57] Speaker 02:
Bear with me and you tell me if my impression of the record is wrong. There was a political party controlled by this criminal group, correct?

[00:09:10] Speaker 01:
Correct.

[00:09:11] Speaker 02:
They were in control of it.

[00:09:13] Speaker 02:
And your clients ran a business that allowed the opposing party to put advertisements, give political speeches, et cetera, either at the business or on their business truck. Am I correct about those things?

[00:09:31] Speaker 01:
They allowed it first, but that's the reason all the problems started.

[00:09:36] Speaker 02:
Your argument, your thesis is that this criminal group, which controlled the opposing political party, use their violence to impose their political will. That's what you're arguing, right?

[00:09:50] Speaker 01:
It is. It is, Your Honor. Okay. It is.

[00:09:51] Speaker 02:
Thank you.

[00:09:52] Speaker 01:
And so, yeah, sorry, I wasn't clear. So by trying to change things, by trying to support the other one, the other party, where it's popular, our clients hope that things will change in Peru. I mean, in Lima specifically, but all over the Peru.

[00:10:10] Speaker 01:
that if the fuerza popular leader would be mayor, this would stop. This, how do you say, the chaos, that loneliness would stop.

[00:10:24] Speaker 01:
So that would be basically my argument. I only have 30 seconds.

[00:10:28] Speaker 04:
So why don't you save your 30 seconds, and we'll give you a little more time than that to respond.

[00:10:34] Speaker 01:
Thank you, Anna. Thank you.

[00:10:37] Speaker 01:
Do I go back to that? Yes.

[00:10:39] Speaker 04:
Thank you.

[00:10:40] Speaker 01:
Thank you.

[00:10:49] Speaker 00:
May it please the court, Nell Seymour on behalf of the Attorney General. And I'm also going to take your honor's advice and turn right to political opinion. And simply put, the record does not compel the conclusion that the petitioners established a nexus between the claimed harm and any alleged political opinion. The INA makes motive critical and the focus is on persecutory intent. Here, petitioners had to show that they held or that the persecutors believed that they held a political opinion and that the gang persecuted them because of that.

[00:11:23] Speaker 00:
And they failed to meet their evidentiary.

[00:11:24] Speaker 04:
I'm not sure they had to show that they believed the political opinion. but rather that they were showing posters that had a political opinion. And because they were showing posters that had a political opinion and refused to do the others, that that was a motivation for what they did. I don't think they have to show belief in political opinion on the part of the petitioners.

[00:11:46] Speaker 00:
Forgive me if I misspoke, Your Honor. I meant to say that the petitioners had to show that the persecutors believed they had a political opinion, not that they had a personally held political opinion.

[00:11:59] Speaker 04:
Okay.

[00:12:01] Speaker 03:
If we accept arguendo that there was past persecution in this case, is there not a presumption of the likelihood of future persecution and that it should go back to the BIA to consider that?

[00:12:17] Speaker 00:
The rebuttable presumption would only come into play were they able to prove past persecution on account of a protective ground. So although there's no dispute here that the harm rose to the level of persecution, because they have failed to establish the requisite nexus, they do not benefit from that presumption, and there is no need to send the case back.

[00:12:40] Speaker 03:
Because there was no protected ground action.

[00:12:43] Speaker 00:
Correct, Your Honor.

[00:12:45] Speaker 04:
It's pretty clear from the narrative that we can infer some contributions to the motivation from the political ground. The question is, how much is the contribution? How do we assess sort of the degree of contribution?

[00:13:03] Speaker 00:
The government's position is that there is no evidence that the gang was motivated to harm petitioners based on a political opinion, and instead they were initially targeted for extortion and in order to exert their influence over the general population. So a matter of percentage of how much the petitioner's political opinion factored in is in opposite in the government's opinion because there is no nexus to any protected ground in this case.

[00:13:33] Speaker 02:
Let me ask you this.

[00:13:35] Speaker 02:
Is there any evidence in the record that the petitioners in this case were harmed in any way prior to the display at their business of opposing party political paraphernalia?

[00:13:54] Speaker 00:
The petitioners were not harmed because they complied with the gang's demands?

[00:13:58] Speaker 02:
I'm not answering the question. This is a time question. Please focus on it. Is there any evidence in the record that any harm befell the petitioners prior to the time that they allowed opposing party political paraphernalia to appear at their place of business? The answer is yes or no.

[00:14:19] Speaker 00:
No, Your Honor.

[00:14:20] Speaker 02:
Okay.

[00:14:23] Speaker 00:
However, the only time that they were harmed or when the threats increased were after they defied the gang's authority and refused to comply. It was not on account of political opinion or any other ground.

[00:14:35] Speaker 02:
It was purely based on... Just that they refused to comply to. They refused to take the stuff down, right?

[00:14:43] Speaker 00:
Respectfully, no, Your Honor. They stopped paying the quote-unquote rent, the extortion tax.

[00:14:49] Speaker 04:
No, the evidence in the record is they paid intermittently... beforehand. So they already stopped from time to time. And I think Judge Hawkins is right that the actions complained of took place only after we had the contretemps as to whether or not they were going to display the signs of one party or the other. Isn't that right? I think that's in the record.

[00:15:10] Speaker 00:
Yes, they did take down the political paraphernalia, but that doesn't reflect a political opinion per se. It The timing is correct, Your Honors, but the government's position is that their decision to take down or not put up particular political paraphernalia or to stop the extortion that they were being subjected to is not a sufficiently conscious or deliberate action such that society would naturally attribute a certain political opinion to them.

[00:15:41] Speaker 00:
Instead, the wife, for example, was frustrated to the damage to the building, and that was when she was physically harmed. And when they stopped paying the extortion tax, the threats increased. And when the petitioner witnessed the murder and was threatened not to talk to the police about the murder, that had absolutely nothing to do with his political opinion or any other protected ground.

[00:16:07] Speaker 00:
And instead, the idea that is supported by substantial evidence in the record that they were targeted... as a business and as a way for the gang to further their criminal objectives, is supported by petitioners' own testimony, wherein they say that the gang wished to keep control of the community and that they wished petitioners to be flexible and let them put their political paraphernalia on the wall. At no point do they mention petitioners' alleged political opinion, and there's nothing in the record to suggest that petitioners held one or otherwise were known in society as being active supporters of any such party.

[00:16:50] Speaker 03:
What is the government's best argument that petitioners here were not persecuted because of their political opinion?

[00:17:00] Speaker 00:
The best argument would be that at the risk of being repetitive, that the harm increased and the threats they received only occurred when they stopped complying with the gang's demands.

[00:17:18] Speaker 00:
And thus, it is an unfortunately common case where they, because they were no longer complicit and doing what the gang was telling them to do, there was retribution. But general fear of crime or retribution is well established to not be sufficient to prove eligibility for relief. And here, this case is no different than that. They stopped doing what the gang asked, and then they faced harm.

[00:17:43] Speaker 03:
So from the government's perspective, this is an easy case. It's just criminal activity. Political opinion has little or nothing to do with it.

[00:17:52] Speaker 00:
That is correct, Your Honor.

[00:17:58] Speaker 00:
I, with my remaining time, would start to discuss the socially distinct aspect of the only putative social group that's on review if the court is interested. Otherwise, I can provide a conclusion if there are no further questions.

[00:18:15] Speaker 03:
I don't have any questions.

[00:18:17] Speaker 04:
No, I'm fine. Thank you.

[00:18:21] Speaker 00:
So, in conclusion, the record does not compel reversal of the agency's decision to deny petitioner's request for asylum, withholding a removal, or cap protection, and accordingly, the court should deny the petition. Thank you for your time.

[00:18:33] Speaker 04:
Thank you. Thank you.

[00:18:44] Speaker 04:
You saved a little time. Why don't we put two minutes on the clock?

[00:18:48] Speaker 01:
Thank you, Anna.

[00:18:50] Speaker 01:
I actually, I don't think I have that much to add, but I will just briefly say what came up during the the opposing counsel's argument, the timing, I think it is important, the timing, because how it was in the timeline, they first paid, then they stopped, and then this whole thing happened with the advertising of the political party, and that's when real harm started.

[00:19:23] Speaker 01:
And in between, they they leave the record reflects that we still made couple payments still too. And they were still, they were still targeted politically. And then after the, the, the most confrontation when, uh, when the wife was, uh, uh, punched in her mouth for defying to, for refusing to, uh, take the political advertisement of the opposing party down.

[00:19:55] Speaker 01:
That's when the harm intensified. That's when her brother was shot because the brother who was shot was present. He started defending her.

[00:20:06] Speaker 01:
So it is our position that it's mostly for political opinion they were targeted, not for the extortion. And to the second point that we really didn't discuss here, and I understand why, I believe that...

[00:20:24] Speaker 01:
that the main petitioner witnessed the murder, it also adds to the fact that the gangs that are backed up by government and was part of the record would look for him. And I don't think he can hide anywhere in Peru. Tren de Aragua is a transnational organization. So in conclusion, we ask him to, respectfully ask him to Review this one more time. Thank you, Your Honor. Okay. Permit me a couple of quick questions.

[00:20:54] Speaker 02:
Yes, yes. Do your clients speak English?

[00:20:57] Speaker 01:
They speak, no, they speak Spanish only. Okay.

[00:21:01] Speaker 02:
And what is your primary language?

[00:21:03] Speaker 01:
My, it's Russian, so it's very, kind of because Los Rustos are the ones who, yeah, mine's Russian, but I do have an interpreter and I speak Spanish.

[00:21:12] Speaker 02:
But when I say, you know what I mean. Of course I do.

[00:21:15] Speaker 01:
Por favor. Por favor. Thank you. Nice to meet you. Okay. Thank you, Your Honor. Thank you. Thank both sides for their helpful arguments. Thank you, Opposing Counsel.

[00:21:30] Speaker 04:
The case of Rojas-Chavarria v. Blanche is now submitted.