[00:00:01] Speaker 02:
Good afternoon and a welcome to Seattle and to the Nakamura Courthouse. This is the time set for oral argument in the case of Maria Cruz Marisol Rojas Espinosa versus Todd Blatch.

[00:00:20] Speaker 02:
The counsel, please come forward. Thank you.

[00:00:37] Speaker 04:
May it please the court, my name is Elizabeth. I'm sorry, could I start already?

[00:00:40] Speaker 02:
Yes, you can. If you can pull those microphones down, speak right into them so we can hear you.

[00:00:46] Speaker 04:
Okay, thank you. Is this okay? It's better. Okay, thank you. May it please the court, Elizabeth Rodriguez appearing for petitioner Ms. Rojas Espinoza, her partner, and her two minor children. I would like to reserve five minutes for rebuttal.

[00:01:05] Speaker 04:
I would like to make four points today. The first point is that the board failed to meaningfully analyze the family-based nexus, and instead, we would argue, collapsed the case into private criminality.

[00:01:20] Speaker 04:
The second point is that the board's PSG analysis was too rigid and did not address the preserved family kinship theory.

[00:01:32] Speaker 04:
Third, the agency's treatment of government inability or unwillingness in CAT was legally incomplete because they discounted the country conditions and evidence and the fact that the threat followed petitioners even after she relocated.

[00:01:49] Speaker 04:
So essentially that argument would be based on that they did not aggregate the different events. And fourth, the state issue.

[00:01:58] Speaker 04:
which should be viewed through the current fully developed record, the serious merits questions that are being raised, and the particularized threat of death, sexual violence, and family targeting.

[00:02:14] Speaker 00:
So on the stay, can I ask, first of all, is your client still in the United States?

[00:02:20] Speaker 04:
As far as I know, yes.

[00:02:21] Speaker 00:
Okay. So we denied a stay.

[00:02:25] Speaker 00:
in March, but as far as you know, he has not yet been removed?

[00:02:30] Speaker 04:
As far as I know, no.

[00:02:30] Speaker 00:
Okay. And so you're asking us, I mean, you're asking us to grant the petition for review. If we do that, there's nothing to stay then, right?

[00:02:41] Speaker 04:
I'm sorry?

[00:02:42] Speaker 00:
If we agree with you that the petition for review should be granted, then we would set aside the removal order and there wouldn't be anything to stay at that point, would there? No.

[00:02:54] Speaker 03:
That's correct.

[00:02:55] Speaker 00:
Yes. Okay. And if we deny the petition for review, I take it that there would be no basis for a stay, right?

[00:03:04] Speaker 03:
Yes, that's correct.

[00:03:07] Speaker 00:
And I guess my last question on the stay is that there was some, as you're aware, the three-judge panel issued an order or issued an opinion that addressed the question of how stays ought to be processed. Do you Do you care about any of that?

[00:03:26] Speaker 04:
I do care.

[00:03:28] Speaker 00:
Why?

[00:03:29] Speaker 04:
Why do I care?

[00:03:31] Speaker 00:
You care about whether you get a stay now, but why does your client care about the timing of our processing of stays in general?

[00:03:40] Speaker 04:
Well, I don't know that my client necessarily would know about the processing of stays, but I would believe that it's important to her because especially in an asylum case like this one is, there is a risk to her and her family of harm as discussed in the briefs.

[00:03:59] Speaker 00:
Right. But I guess the question, you know, the panel opined on whether, you know, when there's an opposed stay motion, it should go to the first available motions panel or whether it can be deferred to be considered with the merits. I mean, those sort of questions, I take it your client doesn't have any position on. I...

[00:04:20] Speaker 04:
My client specifically, I don't know that she does have a position. I would at least agree with the court that if there is an objection, there should be some sort of follow-up by the court.

[00:04:32] Speaker 00:
Unless your client is going to get removed and come back, those issues are not going to affect your client in any way, are they?

[00:04:46] Speaker 04:
The procedural aspect that the court takes? No.

[00:04:50] Speaker 00:
Okay.

[00:04:51] Speaker 04:
Judge Wardlaw.

[00:04:53] Speaker 07:
Thank you. I just wanted to follow up on that because my understanding is that neither you nor the government actually briefed or argued the question of Nikin and G064C. Correct?

[00:05:13] Speaker 03:
I think it cut up a little bit. Can you hear me? Okay.

[00:05:19] Speaker 07:
Okay.

[00:05:21] Speaker 07:
In fact, below, I mean, before the panel and your briefing before the panel and your argument before the panel, neither you nor the government raised the whole Rule 6.4C issue, correct?

[00:05:39] Speaker 04:
I believe that's correct, yes.

[00:05:42] Speaker 04:
I think at least for petitioner's side, the only briefing that was made on this day was the initial filing, and then there was nothing after that. other than the respondent's opposition to it.

[00:05:54] Speaker 10:
Counsel, you had filed a motion for a stay in this case, right?

[00:05:58] Speaker 04:
Yes. Usually that's filed at the same time, or at least this office files it at the same time as the petition for review. Okay.

[00:06:07] Speaker 10:
And that stay was temporarily administratively granted. Is that right?

[00:06:12] Speaker 04:
Yes, that's right.

[00:06:12] Speaker 10:
And for about at least 10 months?

[00:06:16] Speaker 04:
Yes, minimum 10 months.

[00:06:17] Speaker 10:
Okay. And in your stay...

[00:06:20] Speaker 10:
You cited a provision of the Immigration Naturalization Act that provided for purportedly provided for an automatic stay.

[00:06:33] Speaker 04:
Yes, I do. I did see that. Yes.

[00:06:35] Speaker 10:
OK. You realize that that provision was repealed decades before you filed your motion for a stay.

[00:06:42] Speaker 04:
Yes. Well, to clarify, I didn't file that myself, but I did review that filing, and yes, I would agree with the court that that has been repealed.

[00:06:51] Speaker 10:
Okay. And that stay motion, have you used that stay motion in other templates in filing?

[00:07:01] Speaker 04:
Well, I believe so. I think the office does use that pretty regularly. So, yes.

[00:07:08] Speaker 10:
Is it still including that now repealed statutory citation? Yes.

[00:07:12] Speaker 04:
I would hope not, but I think it is something that I will have to take back to the lead attorney.

[00:07:20] Speaker 04:
Yes.

[00:07:22] Speaker 10:
Counsel, what is the PSG here that you are arguing for?

[00:07:28] Speaker 04:
So the PSG is essentially we would want it to be based on the kinship. I believe, and part of our argument is that the agency is, looked at it too strictly because it included the word targeted and then automatically dismissed the rest of the analysis. But really, in this case, what we're arguing is that the basis of the claim was on the family kinship itself because the person here, the petitioner, was targeted specifically because of that relationship.

[00:08:01] Speaker 04:
And that is proven by the actions of the actual perpetrators because they asked specifically for her brother and harmed her because of that relationship.

[00:08:12] Speaker 12:
So when you say agency, in this particular case, there's a bit of a discrepancy between what the IJ ruled and what the BIA ruled. But this is a question of law, so the BIA can jump right in there and did.

[00:08:25] Speaker 12:
And so I just want to make sure that your argument is framed around the BIA's ruling on the PSG. Is that right?

[00:08:32] Speaker 04:
Yes, the BIA's ruling. But if I remember correctly, the BIA's ruling also – affirmed what the immigration judge was stating.

[00:08:42] Speaker 12:
So if we decide that the BIA may have affirmed something that IJ didn't do, then I think this wouldn't be a barrier. The BIA would be free, because it's a question of law under our precedent. The PSG is a question of law. The BIA would be free to do that, yes, and to articulate its own reasoning?

[00:09:00] Speaker 04:
It would be free to do that, but our argument is that it really did not do that. It really, for example...

[00:09:07] Speaker 04:
Well, maybe I'm going to something else. But when we look at the nexus arguments and looking into the reason.

[00:09:13] Speaker 12:
Just on PSG. Just on PSG. And I don't think the IJ said anything about circularity. Did the IJ? That's just the BIA, isn't it? I believe it was just the BIA.

[00:09:23] Speaker 04:
Yes.

[00:09:24] Speaker 12:
And that seems to be to be contrary to Diaz-Renozo.

[00:09:27] Speaker 12:
Yes. Okay. And the other thing that the IJ said that you think the BIA may or may not have incorporated is particularity. Is that it?

[00:09:36] Speaker 12:
Yes, correct.

[00:09:37] Speaker 13:
Oh, I understood you to be saying that the IJ seems to have considered a family social group. Like one of the PSGs the IJ considered was, is family itself enough? And then the BIA didn't talk about that.

[00:09:50] Speaker 04:
It was very conclusory. I think it just went by what the PSG that was presenting because it said targeted and automatically because it said targeted. it said that it was circular.

[00:10:06] Speaker 13:
Right. But like if there was a family group, I wondered if the IJ had also considered what might have counted as a number four in the BIA's three, which is just family by itself. And the BIA maybe incorporated the IJ on that, but didn't separately address that fourth articulation.

[00:10:24] Speaker 04:
Right. Yes.

[00:10:25] Speaker 03:
Correct.

[00:10:27] UNKNOWN:
Okay.

[00:10:27] Speaker 03:
Should I continue?

[00:10:28] Speaker 10:
Counsel, I just wanted to clarify. So what can you state Well, let me put it this way. I think before the IJ, maybe your partner at the law firm, Murray Hiltz, he was asked by the IJ, tell me exactly what you want to put for your PSG. And he says, kinships who are targeted by gangs. He has two other PSGs.

[00:10:55] Speaker 10:
Kinships who are targeted by gangs. Is that the PSG you're arguing before us here?

[00:11:01] Speaker 04:
Well, I'm not arguing for a whole new PSG or anything of that nature, but I am asking the court to not look at that PSG as it was articulated so strictly because within that... That's what you articulated for your client. Yes, that's correct. But within that is the kinship. And as I stated earlier, we would argue that that kinship aspect of it should have been analyzed separately because, um, I believe in an, even with the BIA, they did say that a family relationship was cognizable, but then again, they just dismissed it because of that, just because of that targeting language.

[00:11:48] Speaker 12:
IJ thought that acknowledged, I think, um, it's a little fuzzy, uh, the whole record's a bit fuzzy, but I think the, uh, the IJ acknowledged that there's, uh, family, uh, It can be a cognizable PSG and then questioned whether she established that membership in that group by saying that she hadn't established that her brother was her brother.

[00:12:07] Speaker 04:
Yes, I did see that as well. However, I would also say that there wasn't really any notice that that would have to be corroborated when she was found credible.

[00:12:18] Speaker 12:
Forgive me for interrupting, but.

[00:12:21] Speaker 12:
The BIA didn't affirm that or didn't incorporate that part of the reasoning, right? So that falls out of the analysis, I think. Membership falls out, and that would be a question of fact at any rate. Yes. So back to what the BIA did rule, right, because PSG is a legal conclusion. And the BIA decides – mentions circularity, which I think we've touched on that, and then particularity. Yes. We have case law saying that a family – Social group is the quintessential PSG?

[00:12:52] Speaker 03:
Yes.

[00:12:53] UNKNOWN:
Correct.

[00:12:55] Speaker 10:
Counsel, you're not changing your PSG description, right?

[00:12:58] Speaker 04:
No, I'm not.

[00:12:59] Speaker 10:
It's the same before the IJ and before the BIA?

[00:13:01] Speaker 04:
Yes, that's correct. It's the same. But again, we're just asking that it not be looked at so strictly, especially when that stated PSG does have kinship.

[00:13:12] Speaker 12:
They don't look at it so strictly. Forgive me for interrupting, but I have Judge Tong's question as well. What exactly do you mean? You stated it this way, kinships who are targeted by gangs. Correct. And you want us to interpret it how or what?

[00:13:25] Speaker 04:
Well, it would be the substance is the kinship. So it would be the kinship to the brother. So I think that is included even within that PSG. So that's why we're saying we're not changing it.

[00:13:35] Speaker 10:
Is the brother included in the PSG? Is he a member of that PSG?

[00:13:41] Speaker 04:
I don't know that he would be because part of our argument also is that he couldn't be because the reason she was targeted was specifically because of the relationship to him. But the reason he was targeted was not clear, at least not before the record. And in fact, she did say that she wasn't sure why he specifically was targeted.

[00:14:03] Speaker 12:
But if we assume that he was targeted for some motivation that was entirely criminal, let's say, so if he had been a petitioner, which he is not, Let's say it's completely not cognizable.

[00:14:13] Speaker 12:
Then for the next question, the question is, why was she targeted? And what's your analysis there for her?

[00:14:19] Speaker 04:
So for her, it would be that she was specifically targeted because of her relationship to the brother. From the beginning of her testimony, she stated that They approached her because of the brother, not because of anything that she did or may not have done. It was always because of that relationship. And had that relationship not existed, then there would not be any harm.

[00:14:46] Speaker 02:
So is the attacker's motive for seeking vengeance for Rojas Espinosa's brother relevant to the Nexus inquiry?

[00:14:57] Speaker 04:
I think it's a factor, but...

[00:15:00] Speaker 04:
I think here what's important is the relationship and why they are persecuting her specifically.

[00:15:09] Speaker 01:
In what way is it even a factor in this?

[00:15:12] Speaker 04:
Well, it's a factor because it's part of the story, but I would say again that it's not what's important. The petitioner here is the petitioner and the brother is not, and I don't know actually what he's doing for his case or whether he's doing anything, but Here, the question is what happened to her and why that happened to her. And in this case, it is the relationship to the brother.

[00:15:34] Speaker 09:
So under your theory, suppose there's drug dealer A, drug dealer B. Drug dealer A steals drugs from drug dealer B, who then gets mad and says, return my drugs or I'm going to kill your wife and your best friend. So under that theory, would the wife of drug dealer A be eligible for asylum or meets the nexus requirement?

[00:15:56] Speaker 04:
She would be based on the relationship presumably of the husband, but I wouldn't say that the husband necessarily would be part of the same PSG because the reasoning why they're going after him would be different.

[00:16:09] Speaker 10:
Isn't that an oddity in your theory that the person who's directly harmed can't seek asylum on a protected ground, but a person who happens to be related to that person who's being targeted can seek asylum?

[00:16:23] Speaker 04:
Perhaps, but I think there has been a lot of case law that states that, you know, if it's not related to a particular social group or political opinion, then unfortunately that person may not be protected. So in this case, we're saying that there is kinship and she does fall under that protection.

[00:16:41] Speaker 12:
It's not a derivative of analysis. We've never said that.

[00:16:44] Speaker 04:
No.

[00:16:45] Speaker 12:
Right. So there may be, if we could just play out a few of these hypotheticals. Maybe there's a, to use Judge Lee's point, there's a person who is in a rival drug gang or a rival union or a rival whatever you want, and a criminal act is taken against him or her.

[00:17:04] Speaker 12:
Let's make it a husband to just be stereotypical. So you have this husband and he's in a rival drug gang and he is targeted by drug gang B and his girlfriend or his, I guess his wife is with him. If the car he's riding in is sprayed with bullets, I think you would agree she doesn't have a claim. She's caught in the crossfire. She's there. That's just a criminal act. The difference is if the gang, there's this interaction, an attempt by one drug cartel to take out the leader of the other drug cartel.

[00:17:37] Speaker 12:
But next week, the aggressive drug cartel comes after a wife or a girlfriend because of that relationship because they want to retaliate, because they want to put pressure on, because they want to exact additional, maybe a ransom. That person has a nexus then.

[00:17:57] Speaker 03:
Yes. Yes.

[00:17:58] Speaker 12:
Well, we would probably have to look at the case more, but yes. It's very fact-specific, I think, is what I'm trying to say. It seems to be very fact-specific. You just happen to have a case where she's separated from her brother, well, temporally, and on this record, they come after her not because she's a random victim of crime, but because she's his sister.

[00:18:18] Speaker 04:
Yes. And that's essential argument that it was not a random act, um, against this person. It was specifically because of that relationship. And we would say that the BIA did not look at that. Um, instead just said, this is private criminality.

[00:18:33] Speaker 12:
Oh, go ahead.

[00:18:38] Speaker 00:
What do you, what do we do with the, um, The paragraph at the bottom of page four of the record, page two of the board's order, that after discussing the groups, including kinships who are targeted by gangs, the board says that the evidentiary record does not demonstrate that respondents were or will be targeted on account of their membership in those groups. In the next sentence, respondents have only offered speculation as to the motives of their purported persecutors.

[00:19:05] Speaker 00:
So you need to show that that was not supported by substantial evidence, right, which in turn requires you to show that any reasonable fact finder would be compelled to reach a contrary conclusion on nexus. And so what is the evidence that you would point us to that supports that view?

[00:19:23] Speaker 04:
So in support of that view, we would say the actions themselves against the petitioner. So in this case, after her brother, even after the brother leaves the country, they came after her, they choke her, they attempt to rape her. And, um, Then later she relocates and then again they find her. And I believe it was she lived in Canete and I believe then she moved to Lima.

[00:19:50] Speaker 13:
Sorry, but isn't your answer because they said we're looking for your brother in each of those times? That's the answer, right? The nexus comes from the fact that they said they were looking for the brother.

[00:20:01] Speaker 04:
Yes, yes, yes. And that's my point in saying that there was nexus to the group that was discuss the, the, the kinship. Um, but then, and also looking at the sequence of events, um, that they even found her even after she relocated, that also supports the claim.

[00:20:23] Speaker 00:
But I mean, but the board addressed that point in like a couple sentences down by saying that, um, I think the inference the board drew from that was that they're, they're looking for the brother and when the brother's not there, they, they target her. Um, but it, I guess the board's view is it doesn't follow that they're targeting her because of the brother as opposed to just, you know, randomly after not finding the brother. So why, why is that an impermissible inference for the board to draw?

[00:20:50] Speaker 04:
Well, because they specifically are from the beginning, they said, we are looking for your brother. And then when she says, well, I'm sorry, I forgot what she said, but the point is that she didn't know where he was or that he left. They then continued to harm her and look for her.

[00:21:08] Speaker 12:
But if you had the same fact pattern and you didn't have the sentence or the statement that Judge Friedland's called your attention to, you might not have a showing of nexus. These are very fact specific cases, are they not?

[00:21:20] Speaker 04:
Yes, I agree. But in this case, it is part of the record and she was found credible and she testified that they specifically were looking for her because of that relationship.

[00:21:31] Speaker 12:
And so the attenuated after she moved, you take the inference you take from that is that they were really targeting her.

[00:21:39] Speaker 12:
Because this is a follow-on attack after the original one in which the statement was made. Yes. Yes. Okay. Thank you.

[00:21:48] Speaker 13:
Can I ask you something about this, going back to the stay? So if we were to conclude that the agency made a mistake here on Nexus and agree with you and remand to the agency to look at this case again on a correct analysis of Nexus, were we wrong to vacate the stay? Yes.

[00:22:05] Speaker 13:
Is the basically what I'm trying to ask is, is the stay of removal about whether you would get further proceedings, succeeding, getting for getting further proceedings? Or is it really about ultimately whether after whatever proceedings are going to happen, your client is eventually going to get permanent relief?

[00:22:23] Speaker 12:
So I'm sorry, I couldn't hear Judge Friedland.

[00:22:25] Speaker 13:
My question is, what does the stay of removal mean when we look at likelihood of success on the merits? Is it looking at whether you will succeed in getting a remand to the agency by having this petition granted, in which case, if we agree with you that we should remand to the agency and grant this petition, we probably were wrong to vacate the stay? Or is likelihood of success asking about whether eventually, after whatever proceedings happen between us and the agency, she will eventually get asylum?

[00:22:53] Speaker 13:
If that's the question, then maybe we don't even know if we were right to vacate the stay or not, because she may or may not eventually get asylum.

[00:23:00] Speaker 13:
Which one of those is the likelihood of success analysis?

[00:23:06] Speaker 04:
I'm not sure I understand it completely.

[00:23:08] Speaker 13:
When we have to think about whether there's a likelihood of success for whether we should grant a stay of removal, do we just have to think about whether this petition might be granted and remanded to the agency?

[00:23:20] Speaker 04:
So I think, yes, in looking at the merits of the case and in looking at the different issues, whether there is merits to the arguments made, then yes, the stay should have. been granted?

[00:23:30] Speaker 13:
It's possible that your client will succeed on making this nexus argument, but will have a problem with relocation or some other factor.

[00:23:38] Speaker 13:
Is that part of the analysis on likelihood of success for the stay of removal? Or is it just if she's going to be able to get a remand to the agency because what the agency said is wrong?

[00:23:50] Speaker 04:
Well, I mean, ultimately, the goal is that she would be granted asylum, obviously. But if that doesn't happen, and let's say there are Other issues, I think the other factor is obviously that there's an interest in not removing someone who has a history or a fear of return because of events that were violent and that there's an interest, a public interest in not allowing that to happen in this case.

[00:24:20] Speaker 09:
Can we go back to the PSG and Nexus? I mean, here there's no classic PSG like someone being persecuted because of religion, ethnicity, et cetera.

[00:24:30] Speaker 09:
But just using family as a nexus, I mean, it seems like we're creating, it's almost like alchemy here. We're creating something that doesn't exist because, you know, bad people will threaten family members all the time for their bad purposes. I mean, that's just reality. Half of the gang members will threaten someone and then I'm going to, you know, threaten your spouse, children, et cetera. So it seems we're really opening the doors if we consider family in such a broad way as a basis for a nexus for a PSG here?

[00:25:03] Speaker 04:
Well, I would say that, again, it's just very fact-specific, and we also have to look at the remainder of the issues, which in this case would also be that there's an argument that there's no real protection from the government.

[00:25:22] Speaker 04:
So I think it would just have to be very fact-specific and careful into if that is taken and that it doesn't really open the door, because that's not really what we're asking, that we open the door for everyone. I don't know if I answered that appropriately.

[00:25:36] Speaker 12:
Well, threats alone typically are not enough, and there would have to be risk of harm. It's got to be objectively reasonable and subjectively reasonable, and depending on the claim, she'd have to show that the government isn't able or willing to protect her, and there's quite a number of other elements to get to beyond nexus.

[00:25:52] Speaker 04:
Yes.

[00:25:53] Speaker 12:
And I think in this case, the agency didn't reach them yet.

[00:25:57] Speaker 04:
Yes, that's correct. And again, that's a lot of what we're saying in the argument.

[00:26:04] Speaker 11:
I'm sorry, before you move on, I'd like to ask you a question about the nexus argument. So what you're arguing is that because she says she didn't say in her declaration, she did not say it in her declaration, but when she testified at the hearing, she said these hooded individuals approached her asked where her brother was located. She didn't know. And then they attacked her.

[00:26:28] Speaker 11:
So we should draw the inference from that, that the reason they attacked her was because of her brother, because she was his sister. And so it was part of the family. But it seems the agency drew the inference that she was a target of opportunity. They approached her, said, where's your brother? I don't know. Well, meanwhile, now we have a woman in front of us and we're going to rape her.

[00:26:49] Speaker 11:
And the BIA seemed to draw that inference that this is just random criminality, that the nexus is not established if there's nothing more than what she said there, which is not much. So why is that not supported by substantial evidence? I mean, why are we compelled to draw a different inference and reach a different result?

[00:27:10] Speaker 04:
Well, because even in looking at that, it was not just one instance where they found her and asked her, where's your brother? And then they said, okay, here's a woman and let me go ahead and harm her. There was, again, a sequence of events after that fact, you know, to where she relocated and they still went after her. And as she stated, I believe in her testimony, there was nobody else that she had issues with.

[00:27:34] Speaker 11:
So she said she went to her cousin's home in another city. And there was a note with a bullet. But what did the note say? I mean, she didn't provide it. Right. So there's no copy of it there. What is what does she say? The note said, does it say we're coming after you because of your brother?

[00:27:51] Speaker 04:
I don't think in that note it specifically mentioned the brother, but it just stated we're going to harm you or kill you.

[00:28:00] Speaker 11:
But so she's now a target, presumably. So, again, they've attempted to rape her and attack her. She was able to get away because police were in the area. And she leaves and they now are after her. But what's the inference that it's because of her brother? I mean, now she's become their target, but it doesn't seem so there's a reasonable inference that has nothing to do with the brother.

[00:28:22] Speaker 04:
Because otherwise that would have never happened had that initial.

[00:28:28] Speaker 11:
Maybe, maybe not. I mean, maybe they wandering down the street and they see her and they decide to attack her. Well, but then we're just speculating that that maybe could happen. Well, the agency drew an inference that essentially she was a target of opportunity, that she was a victim of crime. And you're saying that's so unreasonable. There's no substantial evidence that cannot be an inference that's drawn. We're compelled to reach a different inference. And that's what we'd have to do to say that the agency erred in its nexus analysis.

[00:28:59] Speaker 11:
Yes.

[00:28:59] Speaker 04:
So I think.

[00:29:02] Speaker 04:
The strongest evidence for that is that second contact, which was the bullet, which was very imminent.

[00:29:09] Speaker 04:
I'm sorry, ominous.

[00:29:10] Speaker 11:
This contact that had said nothing about her brother or family or anybody else.

[00:29:14] Speaker 04:
Maybe it said nothing about her brother, but that the only reason would be because of the brother, because like she stated in her testimony, she had no other issues with anybody else in that initial contact. Even if it was prior to the second one, it was because of that connection to her brother and not for any other reason.

[00:29:33] Speaker 11:
And that's the inference you're drawing, which may be a reasonable inference, but perhaps not the only inference. Yes, I would agree.

[00:29:40] Speaker 02:
Do you want to reserve the balance of your time?

[00:29:43] Speaker 04:
Yes, thank you.

[00:30:00] Speaker 06:
Good afternoon. May it please the court, Drew Ensign, Deputy Assistant Attorney General for the United States.

[00:30:05] Speaker 06:
This court correctly denied petitioner stay for a request of removal pending review. Petitioner's threadbare motion did not even conceivably satisfy the demanding Niken standard. This court should now use this opportunity to clarify its standards for granting stays pending review and bring them into alignment with Niken, which is binding Supreme Court authority that squarely controls here. In particular, McCann provides that, quote, a reviewing court may not resolve a conflict between considered review and effective relief by reflexively holding a final order in abeyance pending review, unquote.

[00:30:40] Speaker 08:
And so in your view, how what is the evidence that this was a reflexive order?

[00:30:47] Speaker 06:
It was issued automatically, Your Honor. Under this court's general orders, it was issued automatically and the frankly patent frivolousness of it. It could not have issued as a result of judicial consideration. It issued reflexively because of General Order 6.4. I mean it is – it's among other faults. It cites three-decade-old law that is probably not within the bounds of Rule 11 to say that the filing of a stay automatically gets a stay, although ironically that is in fact what occurred.

[00:31:18] Speaker 06:
It relies on a single sentence that it would violate due process not to automatically grant a stay in every single case, but cites no case law for that proposition. It makes no sense either. Even under Matthews v. Eldridge, you'd be looking if there was a pre-deprivation hearing, but they received a pre-deprivation hearing before the IJ and then the BIA. So it's very hard to see how procedural due process could possibly support or mandate an automatic stay in every instance. So, Mr. Rensselaer, no.

[00:31:45] Speaker 08:
So, Counsel, is it your opinion that every stay should be denied then?

[00:31:50] Speaker 06:
No, Your Honor. It's that every stay should be decided by Article III judges applying the Niken standard, which is what the Supreme Court has required.

[00:31:58] Speaker 00:
So we did that in March, right? And you got an order denying the stay.

[00:32:03] Speaker 06:
Yes, Your Honor.

[00:32:04] Speaker 00:
So the stay has been denied. So at this point, I mean, sometimes a party has a damages claim, but at this point, What is there – I take it you don't. What is there for us to do about the fact that you suffered a delay before – I mean, you got the order you wanted. You have the order.

[00:32:26] Speaker 00:
What's before us now?

[00:32:28] Speaker 06:
Your Honor, certainly this is among the oddest procedural postures that I've encountered. So among – we asked the court what you would like to address. You specifically said the stays. So here I am addressing the stays. In addition – you're sitting on bonk. You often do so to provide supervisory guidance to the court as a whole. So I don't think, you know, you could always reconsider and grant the stay. So I don't think it's, strictly speaking, moot. This case is still pending review. You could, in fact, do that, and you could use that as an opportunity to bring this court's practices into alignment with Niken.

[00:33:03] Speaker 08:
Counsel, since you're challenging an administrative order, wouldn't it be more appropriate for the stay procedure to be addressed in administratively as opposed to on proceeding? Your Honor, I think that's an alternative method of challenging it, but I don't think... Not to challenge it, but because it was an administrative order for the court to look again at that administrative order and determine whether or not there needs to be any adjustment to it.

[00:33:32] Speaker 06:
Your Honor, I think that would be an alternative method of raising it, and certainly we intend to engage with this court on an administrative level, and I've had conversations with the clerk of the court towards that end. But just because something's in administrative order, that does not bless its violation of binding spree from court precedent.

[00:33:48] Speaker 08:
But there's no live controversy on that matter here, as Judge Miller pointed out, that stays being granted. So we don't have a live controversy on that point today.

[00:33:59] Speaker 06:
I disagree, Your Honor. This case is still pending with the status quo pending. The case is still pending, but is the issue still pending? Yes, Your Honor. You could reconsider, and I would urge you.

[00:34:09] Speaker 08:
Has anyone asked for us to reconsider?

[00:34:12] Speaker 06:
Your Honor, we filed a brief asking you to engage with the merits of Niken, and I believe that's squarely before you.

[00:34:19] Speaker 08:
But has anyone asked us to reconsider the denial of the stay? What's that? Has anyone asked us to reconsider the denial of the stay? Okay.

[00:34:31] Speaker 06:
Your Honor, to the extent that it would cause you to engage with whether or not your practices comply with binding three court decrees, then I would say that, yes, go ahead and reconsider it. If that's what you need as a vehicle to address the legality of your practices, go ahead and reconsider it.

[00:34:50] Speaker 13:
Have you removed the petitioner?

[00:34:52] Speaker 06:
We haven't, Your Honor, kind of for two reasons. One of them is that there is a minor United States citizen that would be removed with them. And so in order to do that removal, they need to get travel documents. that takes some time. And then, and second, the, the procedural, this posture is, is very odd. This is an extraordinary case where, you know, a state of review was granted. It was then denied. It was then this, this, this court stay was then stayed by the court itself, then vacated, then regranted given the sort of whiplash and uncertainty. I'm not, I'm not surprised that DHS has not even aside from getting the travel documents has not done a removal.

[00:35:28] Speaker 06:
You know, frankly, I might have been concerned that one or more of you would be upset if, in fact, there was removal when you had told us that you wanted to address the stay. And, you know, a non-bonk is not an ordinary everyday occurrence. So I think those are essentially the multiple reasons why, in this instance, the removal has not yet occurred.

[00:35:46] Speaker 13:
And when we were considering the stay and we were thinking of likelihood of success, What is the question? Is it is this person ultimately going to get immigration relief or is this petition going to be successful in getting a remand to the agency?

[00:36:00] Speaker 06:
It's success on the merits. So I think certainly if you look at the winter standard, that's ultimate success on the merits.

[00:36:05] Speaker 13:
It wouldn't be, you know, if certainly actually I think our court current precedent is otherwise.

[00:36:11] Speaker 06:
I'm not specifically aware, although I haven't I'll confess I haven't surveyed this. But, you know, if, for example, you had like a NEPA case, for example, that got dismissed, on standing grounds and they appeal to this court and they want an injunction pending appeal, I don't think it would be enough to say we're likely to succeed on standing, therefore give us our injunction on merits. I think you would actually have to show not just that you were likely to succeed on standing, but that you would have to succeed on the merits of your NEPA claim. Otherwise, you're getting relief that you couldn't get. Otherwise, without ever really having success on merits, you would have only, in fact, almost by definition, you didn't have success on the merits, you had success on jurisdictions.

[00:36:48] Speaker 12:
Yeah, but it's difficult in this type of case, isn't it? And I appreciate your grappling with this, and the number of cases involved make it hard for everyone, right, for everyone. But it is not uncommon for us to get a case like this where the BIA has really only reached a couple of issues.

[00:37:04] Speaker 12:
Yes, Your Honor. So we can't grant relief, relief. We have to send it back because the petitioner may and very often does the claim fails at the next stage, but we're not clairvoyant about what that evidence might be, what they might decide regarding relocation, for example. So what would we do there?

[00:37:21] Speaker 06:
I think you would decide it on the arguments presented. So to the extent that the government doesn't specifically make arguments about alternative things that are likely to stand as obstacles to ultimate success on the merits on remand, you could treat that as essentially like the you could use the path that has been presented by the parties in their briefing and wouldn't necessarily have to be clairvoyant as to all the possible outcomes that could occur in that, you know, in the process on remand.

[00:37:50] Speaker 12:
Just incidentally, on your comments regarding the stay, I'm wondering if you have any information about the number of stay motions that we receive each year.

[00:38:03] Speaker 06:
So I asked OIL to look at this. The statistics are a little dated because they were last prepared before the government shutdown. At that time, there were roughly about 500 pending stay motions, I believe.

[00:38:16] Speaker 06:
I've asked them to try to update information on that. I don't have that currently. That's something we could try to put together for the court and present it by 28J letter if that would be of interest.

[00:38:25] Speaker 12:
One related question, counsel. Do you know how many of those have been unopposed by the government?

[00:38:31] Speaker 06:
I don't, Your Honor, I believe that number was opposed. We typically oppose, but I can't give you specifics on that. I'd be happy to look at that, but I can't.

[00:38:41] Speaker 12:
Well, it's just that the logistics, the practical logistics are hard for everybody, right? So the government, there's any number of cases, and I think there's several thousand that have been administratively stayed. The government has given notice that they're reopening those in batches, which is very helpful so we can process them, you know, orderly, right? And what we're seeing, I think, this is anecdotal on my part, but what we're seeing, I think, very often in those cases, the government's doing its best, too, but many times they're requesting extensions because they're stretched really thin and can't brief them either.

[00:39:17] Speaker 12:
So we do run very quickly into some pragmatic considerations about these motions first steps.

[00:39:25] Speaker 06:
Your Honor, certainly. And, you know, what I might suggest is that, you know, we're certainly happy to work with this court on an administrative level to identify, you know, the cases that maybe should be decided first. And we've reached out to DHS about that to identify instances that it makes the most sense to start. Like if you're clearing the backlog, it makes the most sense to do so. And talking with DHS, what I think make the most sense and what we're looking at is those that are currently in detention with final orders of removal whose country of removal is in the Western Hemisphere, where we essentially have regular removal operations, typically flights on a regular basis.

[00:40:02] Speaker 06:
And so, you know, I've heard this court's frustration, you know, particularly I think within the last administration, this court would expend, you know, judicial resources deciding a stay motion, perhaps deny the stay motion, and then the person would not be removed and, you know, I understand there could be some frustration with like no matter whether or not you granted or denied the same motion, the result will be the same. The alien would not be removed. So I think it certainly makes sense to start with categories where we think removal is quite likely.

[00:40:34] Speaker 06:
And you can see that. But, you know, in the long run, this court needs to bring its procedures in line with the can. You know, it cannot be simply that binding Supreme Court precedent will be followed where we identify particular cases. where the need to follow the Supreme Court is particularly acute, it needs to be followed in all cases. And I think, you know, that needs to be the ultimate goal is compliance when they can. I think the original state panel opinion identified where that's, you know, where that's not occurring. And ultimately, the government's position is that that needs to end.

[00:41:07] Speaker 02:
What would that look like from your perspective?

[00:41:12] Speaker 02:
Which step, Your Honor? The NACAN. You say we have to be in compliance with NACAN. What would that look like?

[00:41:17] Speaker 06:
Your Honor. And talking within oil and actually some, I believe, kind of with other stakeholders, they've identified the Third Circuit's procedures as something that both the government and stakeholders have found particularly, you know, better or better sort of balancing of it. The way the Third Circuit does it is they have something of a screening mechanism that looks at four questions, whether or not the PFR is timely, whether or not it's in the correct venue. whether or not there's actually a final order of removal and whether or not the court has authority to grant, to review.

[00:41:53] Speaker 06:
I think that last one is in part to review, for example, final order of removal following expedited removal would not be within the court of appeals authority. And only after that point does an order issue, and then it's briefed and typically decided within 30 to 45 days.

[00:42:14] Speaker 06:
Who conducts that initial review? Is it a three-judge panel? I believe it's the clerk's office, but then it quickly ultimately shifts. We're certainly not advancing the position that administrative stays are per se unlawful. Obviously, we ask for them with some regularity, but they can only last so long as the court needs to decide it. They can't languish. And so what does that mean?

[00:42:39] Speaker 02:
When we have a circuit that has over half of all of the immigration cases filed in the country.

[00:42:45] Speaker 12:
I don't think your proffer is premised on the notion that the Third Circuit's caseload is comparable.

[00:42:52] Speaker 06:
It is not, Your Honor. Obviously, this court has a disproportionate share of the cases. But, you know, ultimately, the Supreme Court's decision in the Ken is does not have an exception for, you know, burdened caseload.

[00:43:07] Speaker 13:
Just asking about this third circuit process that you're, did you say that whether the briefing is complete as part of it or not?

[00:43:14] Speaker 06:
No, no, your honor.

[00:43:16] Speaker 13:
So, so they would grant an administrative stay as long as there is jurisdiction over the case, basically. And then that stay would be in place at least through the briefing. And if there's an argument, so you, at least in our court, the way briefing and argument work, especially with the government getting extensions, it's six months then at least, right?

[00:43:33] Speaker 06:
Your Honor, it's only briefing on the motion for a stay itself. It is not the motion. It's not the merits briefing, so to speak. And so that's why it's fully briefed and decided typically within 30 to 45 days of the completion of the screening, the screening and the issuance of that administrative stay.

[00:43:51] Speaker 12:
It just gets tricky because, of course, there's this baked in likelihood of success question that Judge Friedland was asking you about. And so I appreciate your offer to that the government's willingness to maybe maybe prioritize that. the cases that we need to be looking at.

[00:44:06] Speaker 12:
I don't want to disregard that. I appreciate that. But I do think this is a lot harder than it looks.

[00:44:16] Speaker 06:
I understand, Your Honor, though I think there's certainly something to Judge Van Dyke's observation that by giving out stays automatically, it creates some of the very burdensome that then feeds into the circle of, you know, more filings that, you know, is certainly bringing procedures into compliance when they can may help with the burden itself.

[00:44:36] Speaker 06:
You know, and I think.

[00:44:38] Speaker 12:
I appreciate that. So could you just take one more run at the at the maybe the logistics of the backlog that we have and looking at the need to write, make a likelihood of success on the merits determination fuzzy, but a likelihood. success on the merits, given Judge Friedland's point, which is that we very often get requests for extension. Understandably, I think the government's scrambling as fast as it can, too. But how would that look going forward?

[00:45:06] Speaker 06:
The nature of an administrative stay is to stay long enough for the court to decide the motion and not further. And Justice Barrett's concurrence in the United States versus Texas is pretty instructive on this point. But To the extent the government is requesting an extension on the stay motion, that would necessarily be part of why the court needs more time beside the stay motion. It's not, in fact, if it's not fully briefed, it's hard to fault the court for not deciding a stay motion in the posture of it's not fully briefed and not ready for a decision.

[00:45:34] Speaker 09:
Do you know what the Fifth Circuit's procedure is? Because I assume they have a comparable workload in terms of immigration cases.

[00:45:42] Speaker 06:
I don't specifically know what the Fifth Circuit's procedures are. Its docket is not quite as heavy.

[00:45:51] Speaker 06:
Nothing is comparable to the Ninth Circuit, correct? That's my understanding, Your Honor. This court accounts for approximately, I believe, 40 to 50 percent of filings that we handle within the Office of Immigration Litigation. It is by far and away the largest circuit.

[00:46:09] Speaker 10:
Counsel, in light of this discussion, what was wrong with what the panel discussed?

[00:46:16] Speaker 10:
in this case, concluded that if the briefing is completed on the stay motion, then the motion will be given to the next available motions panel. In other words, there is resource considerations baked into the holding itself.

[00:46:33] Speaker 06:
Your Honor, we certainly agree with that. And I think that kind of follows the standard that an administrative stay should last only so long as the court needs to decide. But if you're referring it to the next available motions panel, I think that, you know, falls within that sort of conception of, you know, that's part of the time that's needed to decide the state motion.

[00:46:53] Speaker 00:
And just to understand procedurally what we would say here, the opinion that you're envisioning would be, you know, we have denied, we denied the state motion.

[00:47:06] Speaker 00:
We could reconsider that. I'm not sure Commissioner has asked us to, but she could have.

[00:47:13] Speaker 00:
We deny reconsideration.

[00:47:15] Speaker 00:
And by the way, the clerk's office should start following the procedures in the Third Circuit. I mean, is that sort of what the opinion would say?

[00:47:22] Speaker 06:
Possibly, Your Honor. There is an oddity to this procedural posture where some of this is administrative and some of this is legal. And to the extent that you want to address administrative things, that could either be through a non-bonk opinion. It could be through the administrative processes of this court. We're not going to tell you how to do your own administration. We just ask that it be within the bounds of the canon of the law.

[00:47:44] Speaker 06:
But as to the opinion, I don't even know that you would need to reconsider. There's also nothing that prevents a court from issuing an opinion to explain what it's done. It's certainly not unheard of for a court to say, here's our decision, and an opinion will follow. You have issued your decision, but it's still a live issue. You could still issue a supplemental opinion that would address these issues if we're just talking about the procedural vehicle.

[00:48:10] Speaker 13:
Frankly, I'm worried at this point that she does have a likelihood of success. And so we made a mistake in vacating the stay at this point because I don't understand the nexus now that we've all looked at it more carefully. It seems like she was targeted because of her family relationship with her brother. So could you speak to that merits question?

[00:48:27] Speaker 06:
Certainly. Although if I could say antecedently that the stay could just also be denied because there's just no showing of irreparable harm here beyond removal itself. And that also makes clear. But that's not good enough to get a stay.

[00:48:39] Speaker 13:
Well, it's not good enough on its own, but along with likelihood of success, it would be.

[00:48:44] Speaker 06:
Yes. And and also, you know, considering the third and fourth factors, basically the public interest and balance of harms, all of which are necessary.

[00:48:54] Speaker 06:
You know, I think the simpler the simpler question here is nexus than PSG.

[00:49:00] Speaker 06:
And, you know, I think you need to look no further than their own briefs to understand why the nexus is problematic. I mean, on page seven of their brief, they said Mr. Rojas Espinosa's brother, a member of a workers union, began being mistreated when he openly disagreed with a union raising quotas and attempting to take over more projects from other groups.

[00:49:18] Speaker 13:
Then she testified as well that, you know, the brother was was targeted for criminal reasons or union reasons or whatever reasons. But this petitioner, his sister, wasn't she targeted because she was his sister?

[00:49:31] Speaker 06:
That's not the PSG that was presented to the IJ. The IJ, following her attorney, found that the third proposed PSG group was kinships who are targeted by gangs. That is entirely circular.

[00:49:47] Speaker 08:
Counsel, are you saying kinship is something different than family?

[00:49:51] Speaker 06:
No, I'm saying that her own proposed PSG is not cognizable and the petitioner needs to be held to the PSG that she exhausted before the IJ and BIA, and in fact, is precluded from raising a different PSG than she raised below.

[00:50:06] Speaker 01:
But what do we do with our, we held it in Diaz-Renoso that, you know, including some non-cognizable group is not, it's not a poison, it's not a poison pill, and that the agency should then take a case-by-case analysis. So what do we do with that? Because kinship was included here and, you know, as petitioners argued, Maybe the agency should have looked at it less strictly in the petitioner's words.

[00:50:33] Speaker 06:
Your Honor, the Diaz decision says that including targeting is not a per se fatal fault that causes it to be impermissibly circular. But here the proposed PSG is entirely circular. It is simply kinships who are targeted by gangs. It is defined entirely by targeting, and that's it. I mean, our kinships who are targeted by gangs likely to be targeted by gangs? The answer to that is, of course, yes, because the definition is entirely circular.

[00:51:03] Speaker 06:
I directed to the Supreme Court decision in Bray as well, which addresses this sort of circularity problem, and I believe it's either 1983 or the Title VII context.

[00:51:14] Speaker 11:
So I think what they're suggesting is that the agency – what Petitioner is suggesting is that the agency should have just – taken that third PSG, kinship, who are targeted by gangs, and then parsed it and just considered the word kinship and considered PSG based on family. And why is that not permissible? Why shouldn't the agency have been required to take out the portion that dealt with targeting because of gangs and just address the kinship or the family PSG?

[00:51:50] Speaker 06:
Well, I think the IJ is only obligated to decide the arguments presented to them. I don't think the IJ is obligated to make a better argument for a petitioner than the petitioner's own counsel is making.

[00:52:01] Speaker 12:
But the IJ did, sir. The IJ acknowledged. He makes a statement. Again, it's a little fuzzy. He makes a statement acknowledging that family is, or kinship, is a cognizable PSG. And then what the IJ relied upon is what he thought was the failure for the petitioner to prove their brother was a part of the group. But she was a part of the group, brother. She he said she didn't petitioner didn't prove that the brother was her brother. That's a different basis entirely.

[00:52:29] Speaker 06:
It is different, Your Honor. But I don't think that matters here because that fuzziness in the IJ was not a decision, was not the grounds of decision of the BIA, which is before you. The BIA said that that third group didn't work because it was impermissibly circular. And I think that's what squarely. But the.

[00:52:45] Speaker 13:
The IJ says this thing about family, and then in petitioner's appeal to the BIA, she says family is a group, and I really am his brother. There's no reason to think otherwise. And then the BIA just ignores that argument. So at the very least, hasn't the BIA failed to address an issue presented to it that the IJ did consider? I mean, I actually think the BIA incorporated the IJ, but putting that aside, if it didn't, it at very least didn't address that other theory that was presented to it and that was exhausted, at least at the IJ level, by the IJ having reached it.

[00:53:16] Speaker 06:
I don't believe so, Your Honor. I mean, and deciding the PSG as was clearly presented to the IJ, I don't think that's committing error. I think that's deciding the issues presented to it.

[00:53:26] Speaker 13:
Well, it didn't say we think the IJ went further than it needed to or something. I mean, it just sort of missed this.

[00:53:34] Speaker 06:
I don't think so. I think it took the definition that was a petitioner's own definition of the proposed PSG and explained the why petitioner's own proposed PSG was not legally cognizable.

[00:53:45] Speaker 12:
I don't... Speaking of the IJ or the BIA?

[00:53:48] Speaker 06:
I think the BIA.

[00:53:50] Speaker 12:
If you could go back to Judge Beatty's question, because I didn't mean to deter you from it. Her question, I guess I'm paraphrasing. There was this group. It wasn't squarely presented family as a social group. It's this kinship targeted on account of. And I think the question had to do with why was the IJ required to parse it, right? And I And I'm trying to get at what your response to that is, because on this transcript, it looks like the IJ did parse. I don't know if the IJ had to, but the IJ did. And I read the record to acknowledge, and as an acknowledgement by the IJ, that the family could be a PSG, a cognizable PSG.

[00:54:27] Speaker 12:
Do you read the transcript differently?

[00:54:30] Speaker 06:
I have not parsed that closely. I've looked at certainly the transcript where it has three proposed PSGs. and then the BIA explains why those three proposed BSGs each do not work in turn. I think that's a sufficient basis for decision.

[00:54:49] Speaker 06:
There may be stray language that I'm not thinking of recalling immediately here, but I think at the end of the day, they proposed three proposed PSGs, and the BIA said why each proposed PSGs using verbatim language as proposed by petitioner's own counsel explained why those definitions, as proposed by petitioners themselves, were not cognizable as a matter of law.

[00:55:13] Speaker 13:
Could I just ask, let's just say for a moment that it had been presented. So I know you don't believe this happened, but if she had proposed a family PSG and the agency had denied it on the ground that because the brother was targeted for being in a union, her PSG of having been targeted as his sister can't succeed because because of the union thing, because even if she was targeted just for his sister, it doesn't matter because it started with him being targeted for being in a union. Do you think that would be correct reasoning, or would she have a PSG nexus because of her family?

[00:55:46] Speaker 06:
I think that reasoning would work.

[00:55:50] Speaker 06:
Here, the BIA explained as well that the nexus failed because lead petitioner herself admitted that she did not know why she was attacked, and there was further a lack of evidence that would you know, failed to compel a conclusion that the requisite causal nexus was established here. You know, in particular, she said it was based on that kinship. But since she left to the United States, she has some family left in Peru, some in the United States. Neither of them have experienced any more threats.

[00:56:23] Speaker 06:
And the lack of any more threats combined with the fact that she herself was only speculating as to what the motivation of the attack was, means that under a substantial evidence review, there is not enough to set aside the nexus.

[00:56:36] Speaker 13:
So it sounds like you're saying, though, like say the rest of the family had been attacked and every time she was attacked, they said, we are attacking you because of your relative. We're attacking you because of your relative. Are you saying that that still can't be a family group because the brother was targeted for other reasons about being in a union? Or are you just saying the facts here don't rise to the level of a family group being targeted because of the brother?

[00:57:00] Speaker 06:
I think that would raise additional questions as to, you know, that it was persecution rather than criminality, certainly in order.

[00:57:06] Speaker 13:
As to nexus. So I'm getting at this because we have a case called Rodriguez Zuniga that suggests that it's never enough, even no matter how obvious the family connection is for the second person. If the targeting of the relative, the first person is for a reason other than family for theft, for retribution, for whatever reason. When you target the next family member to get at the first family member, it can never be a nexus.

[00:57:30] Speaker 13:
Maybe that case is wrong. It seems like the reasoning the IJ and BIA might have used here is that that kind of nexus isn't okay. I think you're kind of acknowledging it could be okay, just it has to be bad enough harm and bad enough family. But the idea of it being a family nexus is okay in theory.

[00:57:50] Speaker 06:
Your Honor, I don't think we're making that as a square concession. I think it's just as presented here, there's no need to reach it because the nexus finding is a finding of fact. It's only reviewable for substantial evidence, and there is certainly not enough evidence here to compel a conclusion that no reasonable fact finder could have made the nexus finding that the IJ did here.

[00:58:12] Speaker 10:
Counsel, we have some language in our case law that says family is the quintessential particular social group. We see that in Parada. We see that in another case, Rio.

[00:58:24] Speaker 10:
Do you read that? I mean, she's alleging kinship. Let's assume for these purposes that kinship is family. Why isn't that enough under that case law?

[00:58:34] Speaker 10:
Someone who asserts family that automatically confers PSG status.

[00:58:39] Speaker 06:
Well, I think there is certainly mixed case law on this, and I don't think that that's that this case really presents the vehicle to resolve that. Certainly it's not brief in any particular depth.

[00:58:52] Speaker 06:
I think you would certainly need to be cautious in that instance because if family is per se a PSG and that's enough, you would then have a lot of concerns with, it's not persecution because it may just be ordinary criminality where using Judge Beatty's example, it may just be a target of random criminality or it target of opportunity that suddenly gets transformed by overly loose PSG into persecution when it's really just ordinary garden variety crime, which is not what Congress intended for, you know, to make out as a viable asylum claim.

[00:59:29] Speaker 10:
Counsel, I've been thinking about a kind of a thorny issue because I understand there are not only BIA decisions, but AG decisions that have pretty clearly decided that a family is by itself, is not automatically a PSG. One still needs to go through the three criteria of what constitutes a PSG, immutability, particularity, and social distinction.

[00:59:56] Speaker 10:
And so if those administrative decisions, those DOJ decisions, are in tension or in conflict with Ninth Circuit case law, in a post-Loperbright world, what do we do?

[01:00:12] Speaker 06:
That's messy, Your Honor. So Loper Bright suggests that stare decisis, to the extent that it attached to your prior decisions, it continues to have force. So even though you might have applied Chevron deference in the prior precedent and Chevron is no longer good law, those precedents should still be good law.

[01:00:31] Speaker 06:
Now, that's kind of the Supreme Court applying Loper Bright to itself. I think it then gets very messy if you were to ever go en banc in a post-Loper Bright world and What's the stare decisis effect of that? Candidly, I'm not sure. You guys will have to wrestle with that, I suspect.

[01:00:49] Speaker 06:
And so I can certainly articulate the general principle, which is that Chevron's overruled, but Loper Wright makes clear that the stare decisis of effect of prior precedents, including of this court, that relied on Chevron as an analytical method to reach the decision it did are still good law.

[01:01:08] Speaker 06:
You know, how that comes into play in future cases.

[01:01:11] Speaker 12:
To the degree that our own precedent requires us to look at the elements of a PSG, right?

[01:01:17] Speaker 06:
I think so, Your Honor. I mean, certainly at that level of generality, I mean, yes, you certainly need to analyze that legal claim.

[01:01:26] Speaker 02:
Just before you conclude, I don't know if I heard your answer on how much is too much time under Nikent.

[01:01:34] Speaker 06:
Your Honor, I don't think that there is a hard and fast rule. I think the nature of the administrative stay needs to be the touchstone. An administrative stay can be issued for as long as it takes for the court to decide the issue, but it cannot be as sort of indefinite because then it becomes a de facto stay pending appeal or stay pending review. It has to be a stay only for so long as the court is needed for the court to decide the real stay motion. which is why administrative stays are often granted by explicitly disclaiming any analysis of the merits.

[01:02:10] Speaker 06:
And so certainly what you have here where it persisted for months or in other cases, even for years, that is not an acceptable or lawful administrative stay under Niken.

[01:02:21] Speaker 06:
You know, where that line is will probably depend on many circumstances. You know, if, for example, we gave the hypothetical of what happens if the government requests an extension on its filing an op, And, you know, it's certainly hard to fault the court for letting the administrative stay continue during that pendency because it doesn't have what it needs to decide the state motion.

[01:02:41] Speaker 02:
And you're not citing any case for that other than the can.

[01:02:47] Speaker 06:
Well, the nature of an administrative say, I think just Justice Barrett's concurrence in the United States versus Texas, this court's decision in Doe one versus Trump concurrence took into account the challenges for a court.

[01:03:01] Speaker 02:
in processing these.

[01:03:03] Speaker 06:
Certainly, it didn't bless the sort of open-ended that we have here as identified. And I think the discourse decision in Doe 1 versus Trump 2 also makes clear that administrative stay is only permissible for as long as the court needs to decide the stay motion. It's not an open-ended, full-blown stay pending repeal or stay pending review.

[01:03:24] Speaker 06:
Thank you. Thank you, Your Honors.

[01:03:42] Speaker 04:
May I come to you?

[01:03:44] Speaker 04:
Very briefly, I just wanted to note that the family relationship exists independently of the harm.

[01:03:55] Speaker 04:
And I believe Diaz Reynoso does state that the question is whether the group itself is defined exclusively by the harm, which is not the case here. Here, the non-circular group is the immediate family of the brother. and the harm proves why the family was targeted. It does not define the family itself.

[01:04:17] Speaker 04:
And then very briefly, I just wanted to touch on the withholding of removal issue because the BIA stated the petitioners failed asylum and therefore failed withholding, and then also very briefly stated that it considered a reason standard, but again, it was very conclusory and did not...

[01:04:38] Speaker 04:
independently analyze that part, which is important because there is a differentiation there and that there's different burdens of proof for the petitioner in that case.

[01:04:51] Speaker 10:
Counsel, on your PSG articulation, again, you said immediate family of the brother. But the PSG you articulated before the IJ and before the BIA was, again, kinships targeted by gangs, right?

[01:05:06] Speaker 10:
Yes, that broader PSG.

[01:05:08] Speaker 04:
Yes, that's correct.

[01:05:10] Speaker 04:
But again, our argument is that that PSG is not simply defined by targeted by gangs. It's defined by the family relationship in this case.

[01:05:23] Speaker 04:
And unless there's any more questions, I think I will end there.

[01:05:27] Speaker 02:
Thank you. Thank you.

[01:05:30] Speaker 02:
Thank you, Miss Flores Rodriguez. I really do appreciate on behalf of the court. You're coming.

[01:05:37] Speaker 02:
in person to argue this case. And Mr. Ensign, thank you very much for your oral argument presentation.

[01:05:46] Speaker 02:
Case of Maricruz Marisol Rojas Espinosa versus Todd Blanche is now submitted and we are adjourned. Thank you.