[00:00:00] Speaker 02:
All right, each side has 15 minutes. Good morning.

[00:00:05] Speaker 01:
Good morning, Your Honors, and may it please the court. My name is Miguel Martinez. On behalf of the petitioners, Laura Patricia Sanchez Cacho and her two children.

[00:00:19] Speaker 01:
Your Honor, this court should grant this petition for review. In this case, the petitioner was subject to acts of persecution since she was a young woman.

[00:00:31] Speaker 01:
The agency agreed in that the petitioner suffered harm that amounted to persecution. However, the agency erred in finding that it was not on account of a protected ground.

[00:00:52] Speaker 01:
Our position is that the respondent, the petitioner in this case, was persecuted on account of her gender, primarily and on account of her membership in the witness-based groups that we set forth in our brief.

[00:01:08] Speaker 02:
Well, so you contend several social groups here, correct? How many total?

[00:01:14] Speaker 01:
I believe eight total.

[00:01:16] Speaker 02:
That's pretty significant. I mean, usually. So to me, your closest one might be the witness group. But after a review of the case law on social distinctness, including Enriquez-Rivas, it appears that a petitioner's specific evidence of distinctness is very important. So could you explain how petitioner's article on witness protection, as well as her article related to the bloggers, supports her proposed, quote, criminal witness, unquote, social groups?

[00:01:57] Speaker 01:
Well, this court has found that the society at large needs to recognize the group. And in Enrique Rivas, it did so also based on a local law in El Salvador, which protected witnesses. In this case, Mexico has a similar law. Also, there is the article about individuals who share information about the cartels.

[00:02:26] Speaker 02:
Well, there isn't a specific case that recognizes what your client's asking us to recognize, correct?

[00:02:33] Speaker 01:
May you repeat the question, Your Honor?

[00:02:35] Speaker 02:
Well, is there a specific case out there that recognizes, quote, criminal witness social groups?

[00:02:43] Speaker 01:
Criminal witness social groups?

[00:02:45] Speaker 02:
Well, that's what you're asking us to recognize as one of her social groups, right?

[00:02:50] Speaker 01:
Yes, but in...

[00:02:53] Speaker 01:
There are several groups, but may I shift the focus primarily to the gender-based part of our argument?

[00:03:02] Speaker 02:
Well, you can talk about that later, but now you have to talk about what I want to talk about. Okay.

[00:03:09] Speaker 01:
There hasn't been a case... Enrique Rivas treated that issue, and he talked about the fact that that specific applicant for asylum... was a witness, a testimonial witness in the case. But Enrique Rivas does not impose a categorical rule on being a testimonial witness in order to benefit from a witness type of particular social group.

[00:03:38] Speaker 02:
Okay, so you propose like eight groups, but three of the social groups are related to criminal witnesses alone. As we sort through them, which of these criminal witness groups do you believe is the best fit or provides the strongest position for your client?

[00:03:58] Speaker 01:
The one that, in my view, Your Honor, the one that best fits the circumstances, Mexican witnesses to serious cartel crimes who do not report crimes to law enforcement, but whose identities are known to the cartel.

[00:04:16] Speaker 04:
So I understand the agency's findings.

[00:04:24] Speaker 04:
the immigration judge considered, respondent did not testify against the cartel or provide the police with a statement. So as you say, it is the definition of simply people who have not, not simply, but people who are threatened because they are, have been witnessed to cartel crime and are known to the cartel. But the evidence in the record that, that the agency was given to deal with was, were, were, two articles, um, in part, there may be more, but one dealt with the witness protection program.

[00:04:55] Speaker 04:
And I think as we've explored, um, it's undisputed that, um, um, this petition was not a member of the witness protection program. And then this, the second, um, or the, the, the bloggers, the, the violence against, um, people who were, um, perceived, um, to have reported the crimes. So not an, haven't reported to the police, um, and haven't reported publicly. So, How do either of those compel us to find that that is a particularized social group?

[00:05:27] Speaker 04:
Or am I missing some other piece of evidence that should be doing the work of compelling us to find differently than the agency?

[00:05:32] Speaker 01:
I believe that there's an additional piece of evidence, and that's contained in the petitioner's declaration before the agency, which was given full evidentiary weight as well, where she recounts an incident where she encountered two corpses, with signs stabbed to their chest saying that this is what happens when you talk about us or something along those lines.

[00:05:56] Speaker 04:
Again, is the position here that she's talked about the cartel to anyone?

[00:06:03] Speaker 01:
The position is the perception, not that she actually talked to the police or not that she actually talked to law enforcement. It's the fact that she witnessed the murder.

[00:06:16] Speaker 04:
But are any of the examples that you've provided so far persecution of people on the basis of a perception. So far, all of these examples seem to be people who have actually reported the crime. And I think that the difference between the group that you're proposing and the difference that we've recognized elsewhere and that the record has is that there's been a report. And so none of those involve the perception piece. How does – where in the record compels us to find that extra piece, which I think is important to your claim?

[00:06:50] Speaker 01:
Because the cartels saw the prosecutors going to her house, and they confronted her about it.

[00:06:57] Speaker 01:
And that created the perception that she had some type of ongoing communication with the – So it was as good as she reported.

[00:07:03] Speaker 03:
Could we talk about the blogger article for a moment? In that article, do we know whether the individuals who – were killed were actually the ones who had done the blog post or reported to the blog?

[00:07:23] Speaker 01:
According to the article, my understanding is that it was.

[00:07:29] Speaker 01:
But again, it's the societal perception as far as someone who has information that is incriminating and can be a witness. And it's also the exposure that Henrique Rivas kind of like it's established, that puts her in danger because the cartels, she's exposed to the cartels. Now that they are aware, they saw the prosecutors at her house.

[00:07:56] Speaker 01:
And that the government might frame this as an extortion case, but the timing in this case is essential because the record establishes that she had a food business that she was running for years and years and years, five, six, seven years, in a cartel-infested area. However, the cartel came knocking at her door after she witnessed the murder.

[00:08:21] Speaker 01:
So the government's position that this is a money case, in my view, obviously, is undermined by that major fact in the case of the timing. When did the cartel come to her house? Was it about the money? And Another very illustrative fact in the record is the first encounter, the first contacts with the cartel, once they came knocking at her door, it wasn't about the money.

[00:08:53] Speaker 01:
It wasn't about give me $5,000 to keep running your food stand. It was we saw you, we saw you witness the murder, and we saw the prosecutors at your house.

[00:09:05] Speaker 03:
So I thought in the Blogger article that the issue there was that, that it wasn't known whether the folks who were killed had actually done the reports.

[00:09:18] Speaker 01:
Do I have that wrong?

[00:09:19] Speaker 02:
I would have to go, I don't have it off the top of my head, Your Honor, and my apologies for that, but it again goes back to... I think a detective testified on that, that it would be impossible to find out whether the victims actually posted anything online about the cartels.

[00:09:36] Speaker 02:
So maybe the article establishes that the society knows about victims is that they were suspected of reporting serious gangs?

[00:09:51] Speaker 01:
It's all about the perception. You are correct, Your Honor.

[00:09:55] Speaker 02:
That's where we're trying to— So I'm going to ask your friend on the other side about that, is whether if that stands for the proposition that doesn't— does the blogger situation— you know, mirror petitioners social group where she's saying, quote, Mexican witnesses who are suspected of reporting serious gang crimes to law enforcement.

[00:10:20] Speaker 01:
That can be encapsulated also with witnesses, right? It's in my view, it's all about the perception. If you're a blogger or if you suspect, if you are suspected to have shared some type of content related to the cartels, Well, why aren't those different?

[00:10:37] Speaker 04:
I mean, I guess there's no dispute that the victims discussed in the snitches article were bloggers. The question is whether they had posted anything about it, whether they knew. But, of course, if your job is to spread information, which is not the petitioners here, is that a material difference?

[00:10:59] Speaker 01:
Sharing information can be...

[00:11:02] Speaker 01:
different forms, right? Sharing information can be revealing incriminating facts to the community at large via social media blog, or it can be revealing incriminating information to law enforcement, right? It's more about the medium than anything else. But the important thing here about the Henriquez-Rivas holding is the exposure, right? Henriquez-Rivas did not impose a categorical rule about having to testify in open court in order to be able to claim legally a witness-based group.

[00:11:39] Speaker 01:
And the exposure was present in this case when she was confronted by the cartels.

[00:11:52] Speaker 01:
The next point I wanted to make was going back to the petitioners. Sorry, I work in immigration courts. have responded, stuck in my head. The petitioner's childhood. There are several accounts. There's actually three full pages in her declaration dedicated to the trauma she suffered in her early years, specifically at the hands of her father.

[00:12:18] Speaker 01:
In this type of trauma, the agency found that it amounts to the level of persecution. However, the agency stopped in their analysis when they said, Well, this is not an account of a protected ground, but we disagree. It was, and the record is very clear on that.

[00:12:36] Speaker 01:
She grew up, petitioner grew up in a household where it was okay. It was tolerated to abuse women.

[00:12:46] Speaker 01:
Her mother, there's accounts in the record about her mother being beaten to the point of unconsciousness in that household. There's accounts in the record of the petitioner's brother beating his his mother, and assaulting her with a knife because the brother suspected that the mom was being unfaithful to the father.

[00:13:09] Speaker 01:
There are accounts in the record of the petitioner's sister being raped in that same community. But the more precise point I want to make is that the petitioner was sexually...

[00:13:26] Speaker 01:
that her father tried to sexually assault her.

[00:13:30] Speaker 01:
And she states in her psychological evaluation that she felt as if her father didn't look at her as a daughter, but looked at her as a woman.

[00:13:40] Speaker 01:
And that is supported by other facts in the record. For example, the fact that the father tried to make sexual advances towards her.

[00:13:50] Speaker 01:
And the broader point I want to make is You might be asking, well, counsel, how does that serve the case? Right. What do we do? What do we do with that? It happened way back 20 years ago, 30 years ago. Well, if the court agrees with our position, that would constitute past persecution on account of gender, specifically Mexican women. And that will open up the door for the petitioner to seek humanitarian asylum for the agency, which is a form of relief that was denied.

[00:14:23] Speaker 01:
Not denied, but the immigration judge did not get to that part because past persecution was not established on account of a protected ground.

[00:14:33] Speaker 01:
And my time is running out, so I reserve the balance if that's okay.

[00:14:36] Speaker 02:
I don't think we have any additional questions, so I'll give you two minutes for a rebuttal.

[00:14:42] Speaker 02:
Thank you.

[00:14:56] Speaker 02:
Good morning.

[00:14:58] Speaker 00:
Morning, Your Honors. May it please the court. My name is Kosei Ugumori, and I represent the United States Attorney General in this case.

[00:15:05] Speaker 00:
The court should deny this petition for review. This case is about extortion. It's not about persecution on account of a cognizable protected ground. It's not about torture. The petitioner raises a litany of claims, but she cannot change the baseline facts of this case, which is that she was the unfortunate victim of an extortion, an extortion by itself, is not a basis for asylum, withholding, or cap protection. And to the extent the petitioner alleges abuse as a child, the evidence does not compel the conclusion that she suffered past persecution on account of a protected ground, and she has never raised a separate claim of future persecution based on the abuse.

[00:15:41] Speaker 03:
So in terms of the proposed criminal witness group, criminal witness social groups, what I think it's true that the articles are not a perfect match with this case. But if you take them at a high enough level of generality, they do seem to suggest that Mexican society recognizes people who are identified as cooperating with law enforcement, whether or not they actually testify in court. So why wasn't that overlooked, improperly overlooked below?

[00:16:12] Speaker 00:
I do not think any evidence was overlooked, and that's not the petitioner's claim.

[00:16:18] Speaker 00:
But Yes, at some level of generality.

[00:16:21] Speaker 03:
Disregarded, I should say. Go ahead.

[00:16:24] Speaker 00:
Well, the question before this court is whether there is evidence that compels the conclusion that Mexican society views these three or one of the alleged witness-based social groups as distinct in their society. So that's the question. First and foremost, review is not de novo. Review is for substantial evidence.

[00:16:45] Speaker 02:
Well, it seems like... that she alleges admittedly one of the largest number of social groups that I've been doing immigration cases for a long time. I mean, she threw every social group against the kitchen sink and what stinks, see what sticks. But it seems like common sense, maybe, that people who know too much are a group recognized by any society. So should we be taking, you know, that's, it's, Is there enough here?

[00:17:17] Speaker 02:
And if so, did the district court deal with that social group?

[00:17:23] Speaker 00:
Right. Well, so the court specifically addressed the Blogger article, the Times article, and considered the evidence in the record and found that there was no – that Mexican society did not view witnesses of crimes as a distinct group. And that would be consistent with this court's case law as well. It's not necessarily the case that somebody who is out and public about being a witness is always going to be a social group. For example, in Hernandez-Ruiz, there was, of course, there was support that somebody who testifies in open court may be socially distinct in that society.

[00:18:02] Speaker 00:
But it was because there was laws protecting witnesses. And so if there's a law protecting a witness, then clearly that society views that group of people as discreet.

[00:18:14] Speaker 00:
So it's not just that somebody is open, there has to be laws and policies, as this Court has said, for example, in Diaz-Torres versus Barr in 2020. In order to determine social distinction, you look to country reports, you look to expert reports, you look to press accounts of policies of discrimination, policies of, I'm sorry, press accounts of discrimination and laws and policies. historical animosity.

[00:18:41] Speaker 03:
But here we have two press accounts that demonstrate some animosity against people who are suspected as having cooperated. I mean, we know from our prior case law that testimony in court is not required. So I guess, again, why aren't these articles enough? It seems like the BIA dismissed the claim that these could be substantially distinct social groups by just saying, well, there was no testimony in court. But that's not I think that that was wrong.

[00:19:12] Speaker 03:
That's not the standard. So go ahead.

[00:19:16] Speaker 00:
Well, first and foremost, the board adopted and affirmed the immigration judge's decision, which means the immigration judge's analysis is also before the court. And the immigration judge specifically addressed the evidence, specifically noted that the petitioner in this case did not testify. She's not a blogger. She's not a journalist. She's not part of the witness protection program. And so that evidence simply was not enough to establish social distinctions. And second of all, the board was responding to the petitioner's arguments on appeal. What the petitioner was arguing was, well, you know, because I'm a witness under Ninth Circuit law, that's enough.

[00:19:50] Speaker 00:
And the board said that's not the case, that it's a case-by-case, evidence-based approach. And this court has affirmed that in many cases, including in Torres Diaz and also Conde Quevedo versus Barth. where this court said that social distinction is reviewed for substantial evidence and that there are no categorical rulings with respect to social distinction because it has to be based on the evidence in the record.

[00:20:21] Speaker 04:
Why should it matter whether she did report or was perceived to report when the perception is the very thing that makes it socially distinct?

[00:20:34] Speaker 00:
Right. So the question is not only whether she is viewable, whether she did enough to, I suppose, expose herself. But the real question is, does Mexican society view those persons as a discrete group or a faction or an other group that needs some kind of special protection?

[00:20:54] Speaker 04:
Right, and I mean, if you – maybe you don't agree, but let's assume that the articles establish that people who have reported cartel crimes to the police – and are known by the cartel to have done so are a PSG. Just assume that. If that's the case, why does whether that perception of the petitioner as being part of that group false? Why should that matter for a PSG analysis?

[00:21:27] Speaker 00:
So if I understand your question correctly, if the evidence established that witnesses to crimes are... Who have reported...

[00:21:35] Speaker 04:
Right. The only difference between witnesses to crimes who have reported them and petitioner is that she didn't. But she's saying she was perceived to. So in the eyes of the cartel and arguably society in general, there's no difference.

[00:21:53] Speaker 00:
Well.

[00:21:56] Speaker 00:
So I'm trying not to change her hypothetically, but I think I'm used to it. Well, I would not want to. So please correct me if my answer is going off rails here. But again, the question is Mexican society's views, not the persecutor's views. So it actually doesn't matter how the persecutor views the individual, except to the extent it reflects society's views.

[00:22:21] Speaker 04:
So there's some, I think, I think somewhere in the record, and maybe your friend can help me pinpoint it, discussion that, you know, we're in a In small towns, word goes around, people talk.

[00:22:35] Speaker 04:
So it's more than just the cartel, I think, is the argument here. It's more than just the cartel that perceives her as reporting the crime. It's her community. And the community includes the cartel, but the community, why isn't community society?

[00:22:50] Speaker 00:
So I think I understand your question now. So it's First and foremost, there are two parts. One is that the immigration judge found that it was Mexican society. That's the relevant society, and that's never been challenged before. So the lens with which the analysis has to be from Mexican society. So does Mexican society view witnesses as a socially distinct group? So that's the first part. If we wouldn't apply the community in Apazingan, for example, here, because the immigration judge used Mexican society, That's the society that is before this court now.

[00:23:26] Speaker 00:
The second part of that is just because somebody can be seen doesn't mean they are viewed as a group.

[00:23:33] Speaker 00:
So social distinction means that the group is a faction or some historically oppressed group, for example. Those are the clearest examples of social distinction. It's not that anybody who appears...

[00:23:51] Speaker 00:
to draw attention to themselves, is a socially distinct group. And this is why it's important to have country conditions evidence in the record to establish what Mexican society or how Mexican society might view a proposed particular social group. And the petitioner attempted to do that here. They did submit country conditions evidence, the immigration judge considered it, and it just wasn't enough. And this court, when reviewing that record, has to find evidence that there are no other reasonable way to look at it in order to reverse.

[00:24:23] Speaker 04:
I mean, I guess Enriquez-Rivas kind of is the inverse of this case, where the error that we assigned there was that the person did testify and the agency erred in saying that, but they weren't known to testify. And so we've got kind of the reverse here in that they didn't testify, but they are suspected of at least reporting.

[00:24:47] Speaker 04:
But I guess, does that make a difference?

[00:24:51] Speaker 00:
Well, in this case, it makes a difference, but not in the petitioner's favor, because it's even less compelling than in Hernandez-Rivas. The petitioner didn't testify. She didn't cooperate. In fact, the gang never really actually made a threat with respect to her being a witness. She came to the attention of the gang because she had witnessed. But after that, it's all about extortion.

[00:25:18] Speaker 00:
They only want money. She even testifies, you know, they wouldn't have extorted me if I didn't run a business or didn't have ready access to funds. When they initially extorted her, it was about, well, if you want to continue your food stand, you have to pay us. So the gang itself actually never treated her adversely because of this being a witness. And I think that's why the board noted tangentially in its decision that not only the cognizability aspect of it, but also the nexus aspect of it.

[00:25:50] Speaker 00:
That merely that a personal dispute is not enough to establish persecution on account of a protected ground. And that's really what we have here. The gang is targeting the petitioner not because of her status as a member of a group, but only because she came to their attention after having witnessed the unfortunate event of the murder of the neighbor.

[00:26:14] Speaker 00:
So, Again, I think it's important to know what this case is really about. It's about extortion.

[00:26:21] Speaker 00:
The petitioner came to the attention of the gang and then was extorted. That's not a basis for asylum. Most of these particular social groups that the petitioner alleges, including the political opinion ground, which would make nine separate grounds for relief and protection here, most of those grounds, I would say eight maybe. Well, if you exclude the witnesses, it would be six. The petitioner actually never even said that during the testimony. She didn't say during the testimony, well, why were you targeted? She didn't say, well, because I am a female small business owner who opposed the Gantt.

[00:26:55] Speaker 00:
She didn't say that. She didn't say it's because of my gender or my nationality. She didn't say it was because of her family or her political opinion. These are all arguments by counsel, and it's not based on the facts. And so there's certainly no compelling evidence in this case that would establish a nexus or cognizability, really, to any of the petitioner's... The baseline facts of the case wouldn't support any of those claims, Your Honor.

[00:27:28] Speaker 00:
And with respect to the petitioner's arguments about... The agency didn't reach nexus on the witness piece, right?

[00:27:36] Speaker 00:
Well, the government believes it did. The...

[00:27:42] Speaker 00:
immigration judge found that six of the nine grounds were denied, not just on cognizability, but also on nexus.

[00:27:51] Speaker 04:
But the one we've been spending most of our time talking about, you're not contending that it reached nexus on the perceived witness to criminal activity.

[00:28:00] Speaker 00:
The immigration, the board did note in its decision, not only cognizability, but that personal disputes is not persecution on account of a protected ground. So that may constitute nexus, but it's not necessary for this court to dispose of the entire case just on nexus because cognizability resolves the witness grounds, and a combination of cognizability and nexus would resolve the other claims as well.

[00:28:24] Speaker 00:
So if your honors have no further questions, the government asks that the petition for review be denied. Thank you very much.

[00:28:42] Speaker 01:
Your honors.

[00:28:43] Speaker 01:
Two quick points on the perception that this circuit has case law that establishes that cognizability or social distinction is the proper term does not have to occur at the national level. It can be even at the regional level. And in this case has sufficient evidence to support that the proposed groups are cognizable at the very least.

[00:29:10] Speaker 04:
at the regional level and the- Was that part of the group that the, there the respondent put before the agency, a subnational group?

[00:29:23] Speaker 01:
No, I'm just speaking about in general terms how the cognizability factor is analyzed.

[00:29:31] Speaker 04:
Yeah, I'm just wondering whether we can reach it if what the agency was asked to consider was a national group.

[00:29:38] Speaker 01:
It's not worded at a regional level in terms of . It's worded in terms of Mexican, but the circumstances and her environment, specifically the piece of evidence I mentioned in her declaration where she encountered two bodies stabbed with a sign in a public plaza displaying signs that said, this is what happens when you talk too much or something along those lines. It's very illustrative that they were putting out this message to that community, to that region, to that specific community that this is what happens when you witness something and you come forward with it.

[00:30:18] Speaker 01:
I thank you for your time and the opportunity, Your Honors. I respectfully requested Your Honors grant the petition and remind the case for further proceedings.

[00:30:27] Speaker 02:
Thank you both for your argument. This matter will stand submitted.