[00:00:00] Speaker 01:
No one arguing for petitioner and for respondent for the Attorney General. Argument is via video. And counsel, are you able to hear us okay?

[00:00:18] Speaker 03:
Yes. Good morning, Your Honor.

[00:00:19] Speaker 01:
Okay. So you have 10 minutes, and whenever you're ready.

[00:00:26] Speaker 03:
Thank you, Your Honor.

[00:00:29] Speaker 03:
Good morning. May it please the court? Rhea Jaro on behalf of the respondent, the Attorney General.

[00:00:35] Speaker 03:
The answering brief that I filed addressed three main issues. First, the untimeliness of Mr. Alvarenga's asylum application, the adverse credibility finding, and the denial of his application for cap protection.

[00:00:50] Speaker 03:
Because the District Council is not here, certainly the arguments in my answering brief, I'm happy to rest on those arguments. I think they sufficiently cover But I'm also happy to address any issues or questions your honors have with respect to any of those three issues. All right.

[00:01:07] Speaker 01:
So I have a number of questions on the credibility finding by the agency. So let me and two in particular. So let me start with my first one.

[00:01:20] Speaker 01:
Quoting from page forty two of your brief.

[00:01:28] Speaker 01:
Initially, the now petitioner testified he began making payments at the end of November 07, et cetera, and also testified that he left El Salvador a month later, thereby making it impossible for him to complete six months of consecutive payments.

[00:01:51] Speaker 01:
Upon being confronted with this contradiction, Alvarenga changed his testimony and claimed that he made payments in 2006.

[00:02:02] Speaker 01:
And the record site in your brief is to, I believe, first the IJ at AR 61 to 62, and then to the administrative record at 122 to 126. I can't find anything in the administrative record that shows that upon being confronted with this supposed contradiction, Alvarenga changed his testimony and claimed that he made payments in 2006. I have pages 122 to 126 of the record in front of me.

[00:02:37] Speaker 01:
Can you tell me where in the record that you cited there is the confrontation with the contradiction and he changed his testimony? Because, as I said, I can't find it.

[00:02:52] Speaker 03:
Yes, Your Honor, I think if you go to pages 124 and 125, at the bottom of page 124, or maybe towards the end of the question was, and you didn't begin to pay the rent either time, I think he means the first and second time you were threatened by the gangs.

[00:03:12] Speaker 01:
Yeah, and then he says the second time, yes. So you started paying rent after the second time, correct.

[00:03:19] Speaker 03:
And then, so you started paying rent after the second time. He says, correct. And then the next page at the top of 125, he says, okay. And that would have been around 2006. Is that correct? He says, yes, I think 2006. Okay.

[00:03:34] Speaker 01:
Well, if that's what you're pointing to, I don't see that supports the agency's finding or supports the proposition that upon being confronted with a contradiction, He changed his testimony. So let me move.

[00:03:50] Speaker 02:
Can I ask a question about that exchange? I mean, I also had a bit of a confusion with reading the transcript. It seemed as if there was a muddle at the hearing, and maybe because the government's counsel was asking sort of leading questions or loaded questions. But if you look on AR-125 at the bottom, after that exchange that you were describing – Mr. Alvarenga explains again, well, the first time I didn't pay, the second time is when they threatened me, saying that they knew where I lived, so I paid.

[00:04:25] Speaker 02:
The third time is when they threatened me with the firearm. So at different times, he is, in fact, saying I paid after the second threat.

[00:04:34] Speaker 02:
And so I share the concern that It doesn't seem to me as if he was presented with an inconsistency and then changed his story. It seemed as if he was trying to say that he was paying after the second threat the entire time.

[00:04:50] Speaker 03:
But I think in the initial, he initially says the beginning of the extortion is 2006. That's when they first started threatening him and asking him for money. But there's no evidence of what date the second threat occurred. He was asked multiple times, well, when is the second threat? It's unclear if the second threat was 2006 or 2007. And there's conflicting testimony as to whether he paid at all leading up to 2007. Then he goes back and says 2006 is when I paid after the second time.

[00:05:24] Speaker 03:
So it's unclear when the second threat actually occurred.

[00:05:30] Speaker 02:
I don't think it is because at a different point in the transcript – He testified that he was first approached by a gang member in early 2006 to pay rent. That was the first threat. And then about a month later, a different gang member approached and threatened that he would kill his family if he didn't pay rent. So there are aspects of the record that indicate a month later or some other time in 2006. I'm sorry, Your Honor. I don't mean to interrupt. I'm sorry. We're speaking over one another. What did you say?

[00:06:02] Speaker 03:
On page 123, he also claims that no rent was paid up until November 2007. And then he changes his tune just a page or two later and says, no, he paid after the second threat and the second threat and he paid in 2006.

[00:06:19] Speaker 03:
So it's unclear when actually he started paying.

[00:06:24] Speaker 03:
In one instance in the testimony, he makes it seem as if he only paid after the third threat because of that gun was brandished and scared, and he was scared during the third threat. And so he paid for one month. That's on page 121.

[00:06:39] Speaker 03:
But then just a few pages later in the transcript, all of a sudden he's saying he paid in 2006 after the second threat.

[00:06:47] Speaker 03:
So I think that his testimony is quite unclear, and it is his burden to provide a credible case. And I think even if you set aside this-

[00:07:16] Speaker 02:
And I just have not been able to find it anywhere in the record.

[00:07:22] Speaker 03:
Councilman. So on page 122, he says the third time that you were threatened by the gangs, he was also leaving work. He says the last days of November 2007, they said that, and then I started paying the rent. That's at the bottom of 122.

[00:07:42] Speaker 03:
So he makes it seem as if he just started paying the rent after that third threat in 2007. But then just a few pages later, he says, so the question was, so you started paying the rent after the second time? He says, correct. And then he was asked, would that would have been around 2006? Is that correct? He says, yes, I think 2006. So it is unclear.

[00:08:09] Speaker 01:
I think we have your argument, but I still am where I started, where even if there is perhaps some inconsistency about when each payment was made, I don't see anything in the record that supports the agency's determination that he was confronted with something and changed his testimony. But Judge Holcomb, you had a question.

[00:08:30] Speaker 00:
I do. Following up on Judge Bennett and Judge Sanchez's questions, Continuing in the record, in the testimony on page 126, now this is where the judge steps in, the IJ. The question had been, okay, so then what were you threatened with in November of 2007, this bottom of 125? Answer, well, the first time I didn't pay. The second time is when they threatened me saying that they know where I lived, so I paid.

[00:09:02] Speaker 00:
The third time is when they threatened me with a firearm. Here the IJ steps in. And the question was, why? Why were you threatened? If you had been paying, why were you threatened?

[00:09:12] Speaker 00:
And then Mr. Alvarenga says, oh, because they wanted me to pay more money. Is it possible that the IJ was misremembering what the inconsistency was? The IJ stepped in. He obviously thought there was some sort of issue with his testimony. He got an answer that actually made sense.

[00:09:33] Speaker 00:
But the IJ on page 61 and 62, observes that the respondent's demeanor when he testified concerning this point, I think he's got the wrong point, and it appeared to the court that the respondent was making the rather obvious calculation, that in order for his testimony to be consistent, and then he gets the wrong thing.

[00:09:53] Speaker 00:
But my point is, I think I'm agreeing with Judge Bennett, even if my piecing this together is correct, the I.J., made a big mistake in what he regarded credible or not credible.

[00:10:10] Speaker 00:
So isn't that enough for us to have to remand this case?

[00:10:16] Speaker 03:
No, Your Honor, because substantial evidence still stands here with regards to the other inconsistencies and omissions. For example, in his affidavit, the written declaration that he submitted with his asylum application, he did not even indicate that he made any rent payments.

[00:10:31] Speaker 01:
Let me stop you there because that was going to be my exact second point as to where I have a problem with the agency. So I'm looking at page 225 of the now petitioner's declaration. and he says at the bottom, in my family, I am the only one that works, and I could not pay one day. I was told by a gang member, the one they call the strange one, and was told that I only had one more opportunity.

[00:11:06] Speaker 01:
So I read what he's saying. I mean, it's certainly not in detail, but I read what he's saying is that he was threatened and he was paying, and that's what he meant by I could not pay one day, and I only had one more opportunity. So I read his declaration directly contrary to what the agency's finding was, where I think that that paragraph that I'm reading, although not in a lot of detail, I think the only fair reading of that is that he was paying, and one day he couldn't anymore, and then they threatened him.

[00:11:39] Speaker 01:
So why isn't my reading of this the correct reading?

[00:11:44] Speaker 03:
Well, I would have two points with regards to the affidavit. Number one, he doesn't mention in the affidavit that he made six months of payments. That's nowhere in his affidavit, which is a pretty big detail to leave out that the petitioner then includes in his testimony. The second thing is, it also is reasonable for a fact finder to interpret this paragraph in the affidavit as saying, I'm the only one that works and I could not pay one day.

[00:12:10] Speaker 03:
I was told I only had one more opportunity, meaning he's been threatened and threatened and threatened and he hasn't been paying and he only has one more opportunity to start paying or else they would harm him and that leads me to believe that- Didn't the IJ say at page 61 there is nothing in the affidavit about extortion?

[00:12:37] Speaker 03:
I'm sorry, is it page 61?

[00:12:40] Speaker 01:
The end of the first full paragraph. The court is being asked to believe that despite the then respondents paying an extortion demand on a weekly basis over a period of five to six months, he did not consider this alleged payment of extortion fees to be sufficiently important to remember to include it in a three-page affidavit.

[00:13:02] Speaker 03:
Right. Yes, the fact that he didn't include those weekly payments for five to six months, he didn't include that detail in the affidavit was a significant omission that supported the immigration judge's credibility finding. This is the whole basis of his persecution claim, is that he was extorted. And to leave out such an important detail about the period of time that someone is being extorted and the number of payments being made, and really providing such vague details as to when any of the payments were happening, it leads a reasonable fact finder to believe that this individual is not credible.

[00:13:39] Speaker 03:
I don't think the record overall, based on the testimony and the affidavit, compels a reversal of that finding. In fact, his affidavit doesn't even THE TESTIMONY DOESN'T EVEN CONFIRM WHAT THE AFFIDAVIT SAYS ABOUT HIS MOTHER'S CAR ACCIDENT, WHICH ALLEGEDLY OCCURRED THREE DAYS AFTER THREATS FROM GANG MASSACRES.

[00:14:00] Speaker 01:
SO, COUNCIL, I DON'T HAVE A QUARREL WITH THE FACT THAT THE AGENCY ON THE INCONSISTENCIES THAT I AGREE WITH THE GOVERNMENT ARE THERE. I DON'T QUARREL WITH THE FACT THAT THE AGENCY COULD HAVE FOUND HIM NOT CREDIBLE. But my problem is included in the agency's credibility findings are two significant ones that I don't think are supported by the record. And so I think we probably have to send this back to the agency.

[00:14:30] Speaker 01:
So with our questions, we've taken you significantly over time.

[00:14:34] Speaker 02:
Judge Brennan, can I ask a question?

[00:14:37] Speaker 02:
Counsel, I wanted to ask you about another one of the inconsistencies about as to who made the second threat. And I think it came up in cross-examination with government's counsel, and it seems clear that there was an inconsistency. He first testified that it was a different person, and then he testified that it was the same person, if memory serves. But we have several cases that talk about that the agency cannot rely on an inconsistency to form an adverse credibility determination agreement.

[00:15:14] Speaker 02:
if you don't give the petitioner a chance to explain that inconsistency. And I don't see any explanation or an opportunity for him to explain why he made that inconsistent statement in the record. So why should that be a basis for the agency to rely on that inconsistency, the second one?

[00:15:37] Speaker 03:
But it's hard to imagine that he didn't have an opportunity. He was counseled at the time. He had an attorney at the time at this hearing, and he was provided an opportunity during cross-examination and redirect to discuss the identity. I mean, he was questioned during direct examination, but also during cross-examination on page 121 about whether this was the same person or not. That's sufficient opportunity during cross-examination to clarify whether or not this was the same individual.

[00:16:09] Speaker 02:
The government's counsel didn't actually point out, hey, you testified that it was a different person in your direct, and now you're saying it's the same person on your cross-examination.

[00:16:23] Speaker 02:
What is the basis for your inconsistency? Am I right in that recollection?

[00:16:31] Speaker 03:
But by asking the question on page 120, DHS is giving him that opportunity. And he says, how long after the first incident did the second incident happen, the second threat? He said a month. So all of a sudden in cross-examination, he's giving a specific timeframe. And then he's asked, was it the same person at the bottom of page 120? And he says, yes, the same person.

[00:16:54] Speaker 03:
At that point, I don't know what more the DHS council is supposed to do.

[00:17:00] Speaker 02:
What I just said, which is, by the way, you testified that it was a different person on direct, which by which, you know, government council did with, with other things, right. It was identifying things that council thought were inconsistent statements or, or inconsistent positions, but just not here.

[00:17:18] Speaker 02:
And, but the, and the IJ relied on that. So, I mean, that suggests to me that there might be some infirmity with relying on that as a basis for an adverse credibility determination.

[00:17:32] Speaker 03:
Other than asking Mr. Alvarenga why was it not the same person, even not asking that question, again, there's no case law that says that having an opportunity during cross-examination to discuss that issue means he's somehow hindered or has a due process violation in any way, or that his credibility claim was, his testimony was hindered in any way. He had ample opportunity after that questioning to provide that answer, to clarify that answer.

[00:18:09] Speaker 03:
I don't believe the case law says that DHS counsel must specifically ask the question, The question is, based on the record, does the IJ, the reasonable fact finder, see an inconsistency? And was the petitioner provided an opportunity to discuss that inconsistency? And I don't believe, and maybe I'm incorrect, I don't believe the case law says that DHS counsel has to specifically ask a question about that specific issue. I think overall the case law is, what does the record provide and what is the reasonable fact finder's interpretation of that record?

[00:18:43] Speaker 01:
Council, do you have any final points you'd like to make?

[00:18:46] Speaker 03:
No, Your Honor. I just rest on the arguments made in my answering brief, and I thank you for your time today.

[00:18:51] Speaker 01:
All right. Do either of my colleagues have any further questions? No, thank you. All right, then we thank Council for their argument, and the case just argued is submitted.