[00:00:11] Speaker 01:
Good morning, your honors.

[00:00:12] Speaker 01:
May it please the court.

[00:00:12] Speaker 01:
I am Kenneth Larkin Vanderhoff on behalf of the petitioners.

[00:00:16] Speaker 01:
I intend to reserve two minutes of my time for rebuttal, and I'll keep an eye on that clock.

[00:00:21] Speaker 01:
Before the court today is whether the petitioners suffered past persecution, whether they have established a well-founded fear of future persecution, and which evidentiary standard applies to the finding of whether or not past persecution was established.

[00:00:35] Speaker 01:
The petitioners here did in fact suffer past persecution.

[00:00:38] Speaker 01:
The petitioner's uncle fired a gun at petitioners home while yelling at him, indicating he knew or believed him to be in the home on at least five occasions.

[00:00:47] Speaker 01:
He separately threatened, the same family member threatened him, the petitioners.

[00:00:52] Speaker 01:
And the same family member physically beat the petitioner's father.

[00:00:57] Speaker 01:
The petitioner here was found credible by the immigration judge, and so his testimony is accepted as true.

[00:01:04] Speaker 01:
This court is well aware of the litany of cases that have grappled with what exactly constitutes persecution.

[00:01:10] Speaker 01:
It has found that threats alone can be persecution.

[00:01:13] Speaker 03:
So the harm, I guess, was the shooting at the house.

[00:01:27] Speaker 01:
Yes, Your Honor.

[00:01:28] Speaker 01:
To these petitioners, it would be psychological harm.

[00:01:30] Speaker 03:
Yes.

[00:01:31] Speaker 03:
Now, as I read the record,

[00:01:35] Speaker 03:
I thought the board may have mischaracterized actually what happened.

[00:01:41] Speaker 03:
Did the shooting take place in the house or outside the house?

[00:01:44] Speaker 01:
The shooting took place, the shooter was outside the home shooting at the home.

[00:01:48] Speaker 03:
Was he ever in the house?

[00:01:50] Speaker 01:
No.

[00:01:52] Speaker 03:
That's not the way I read the testimony.

[00:01:56] Speaker 01:
What I, the testimony in both the petitioner's written statement and his testimony was, I will admit, was on the back and forth in testimony before the immigration judge was a little bit unclear, but there was, I don't know the record to show anywhere that the shooter was inside of the home, but rather outside the shooter.

[00:02:12] Speaker 03:
How did these events take place?

[00:02:15] Speaker 01:
How did they take place?

[00:02:16] Speaker 01:
The shooter- Did you just come by and shoot him up?

[00:02:18] Speaker 01:
The shooter lived nearby.

[00:02:19] Speaker 01:
I think the record indicates he lived about 200 meters away from this home, and so he would come to the home to shoot at it.

[00:02:28] Speaker 03:
And the testimony is that the shooting and the threats and whatnot.

[00:02:35] Speaker 03:
And physical harm to the petitioner's father.

[00:02:37] Speaker 03:
Yeah.

[00:02:38] Speaker 03:
Because the harm to the father caused him psychological pain.

[00:02:43] Speaker 01:
Yes.

[00:02:43] Speaker 01:
In particular, the harm.

[00:02:45] Speaker 01:
Yes, Your Honor.

[00:02:46] Speaker 01:
In particular, the shootings and the threat of imminent death during the incidents of shooting.

[00:02:51] Speaker 04:
Was he in the house when the shootings occurred?

[00:02:54] Speaker 01:
He was.

[00:02:55] Speaker 04:
And was he aware of them?

[00:02:56] Speaker 01:
He was, and he testified to, I believe he was asked before the immigration judge how he knew who it was who was shooting.

[00:03:02] Speaker 01:
He said because he saw him from inside the home.

[00:03:06] Speaker 03:
Okay.

[00:03:07] Speaker 03:
And the shootings took place over what period of time?

[00:03:11] Speaker 01:
I believe, Your Honor, the period of three plus years.

[00:03:20] Speaker ?:
Okay.

[00:03:22] Speaker 01:
And so I just want to say that this court has held that threats can be compelling evidence of persecution when accompanied by violent confrontations, near confrontations, and vandalism.

[00:03:33] Speaker 01:
That's Mashiri v. Ashcroft.

[00:03:35] Speaker 01:
So here we are not alleging that there is only empty threats, but rather threats where particular steps were taken to carry out those threats, namely shooting a firearm which, but for different circumstances, could have resulted in serious bodily harm or death.

[00:03:51] Speaker 01:
And I'd also just note this court has held the absence of bodily injury is not necessarily dispositive.

[00:03:56] Speaker 01:
The persecution can be psychological as well.

[00:03:58] Speaker 00:
At what point is the line drawn between that which is considered for substantial evidence and then for error of law?

[00:04:06] Speaker 00:
It sounds to me like we're still discussing the facts.

[00:04:09] Speaker 00:
And if the BIA concluded factually that something in fact occurred, how do we disturb it or question it at this point?

[00:04:18] Speaker 01:
Yes, I think maybe I'll turn to the evidentiary standard because I think it is our position that this is a question of law, whether these facts, this harm rises a level of persecution is in fact a question of law, which this court can review de novo.

[00:04:33] Speaker 01:
And I know that the respondent in this case argues that it is the substantial, substantial evidence standard.

[00:04:39] Speaker 01:
I will admit this case is a little unique to me, at least in my practice, and that the board, the agency here only touched the argument on persecution, past persecution, and well-funded future persecution.

[00:04:51] Speaker 01:
Whereas in some cases they will say in the alternative, if there were past persecution, in any event we would find and go on to arguments of nexus than the other

[00:04:59] Speaker 01:
determinations that need to be made that wasn't done here.

[00:05:02] Speaker 01:
And so we would say that we don't need to show that the record has substantial evidence compelling reversal, but rather this court can review it de novo, the issue of whether particular acts here, which are not in dispute, the acts are not in dispute, whether they constitute persecution.

[00:05:20] Speaker 01:
And that's this court in Boer Sedano v. Gonzalez said that.

[00:05:24] Speaker 04:
So you're saying if we disagree with the board on past persecution, we have to send it back because they never made the nexus finding.

[00:05:30] Speaker 04:
Correct.

[00:05:31] Speaker 04:
Did they not accept the IJs?

[00:05:34] Speaker 01:
They said that they didn't reach.

[00:05:35] Speaker 01:
Well, what I would say is they didn't.

[00:05:36] Speaker 01:
They expressly say they did not reach our arguments on appeal.

[00:05:40] Speaker 01:
And so as to the other issues, citing Vagama's bad.

[00:05:43] Speaker 01:
And so I would say that if this court agrees that there was past persecution, then it should be returned to the agency to make a determination on those issues in a first instance.

[00:05:54] Speaker 00:
So when when the agency declined to address issues in the alternative it remains open then such that we would need a remand for further consideration if we if we reverse on the first question of past persecution.

[00:06:09] Speaker 01:
Yes your honor and it is their right to to not reach the other issues under the current law but for that reason yes we would say that if

[00:06:16] Speaker 01:
past persecution or the persecution past and or future were to be reversed, then it should be returned to the agency.

[00:06:23] Speaker 00:
And if they had made those determinations and the alternative, what would you be arguing then today?

[00:06:30] Speaker 01:
Well, your honor, I think that does change the what standard would apply.

[00:06:35] Speaker 01:
I think there's many cases from this court that does say that when

[00:06:41] Speaker 01:
when dealing with the determination of asylum and withholding of removal eligibility, it is the substantial evidence standard.

[00:06:47] Speaker 01:
And I do think all of those issues would be before this court, meaning we would need to prevail on each of those issues in order to get remand.

[00:06:56] Speaker 01:
But here we are focused on the issue of persecution.

[00:07:00] Speaker 04:
So which case would you cite from the Ninth Circuit that shows that these shots that never hit anyone, directed at a house,

[00:07:09] Speaker 04:
proves that that's perhaps persecution because you know Sharma is the on point and seems to say it's pretty has to be pretty high.

[00:07:17] Speaker 01:
I do agree, I would draw the panel's attention to Mashiri V. Ashcroft, from which I pulled the line, the site of threats are compelling evidence of past persecution.

[00:07:28] Speaker 01:
Their past persecution was found and it was a family where essentially the past persecution was death threats, violence against a family member, vandalism, economic harm and emotional harm, emotional trauma, excuse me.

[00:07:40] Speaker 01:
So it was reviewed, those things in the cumulative where it was determined to be past persecution.

[00:07:45] Speaker 04:
Was there any trauma here?

[00:07:46] Speaker 04:
I mean, besides, what's the evidence of trauma?

[00:07:52] Speaker 01:
The petitioner testified to believing he was going to die at the incidents when his home was shot upon by a family member.

[00:08:00] Speaker 01:
So argument would be the trauma is the near-death experience on five different occasions in his own home.

[00:08:08] Speaker 03:
You know, I'm just looking at my files here.

[00:08:10] Speaker 03:
And when I

[00:08:16] Speaker 03:
looked at the testimony at the hearing.

[00:08:19] Speaker 03:
Let's see here.

[00:08:26] Speaker 03:
I think it's on the father's record around certified administrative record 133.

[00:08:36] Speaker 03:
There's a question, is the judge to Mr.

[00:08:43] Speaker 03:
Mateo Juan, would he, meaning I guess the uncle, like walk or drive by and do this?

[00:08:53] Speaker 03:
Shoot.

[00:08:55] Speaker 03:
Or would he come up to the house and do it?

[00:08:58] Speaker 03:
Mr. Mateo Juan to judge, he came into our house.

[00:09:05] Speaker 03:
He threatened me and he shot his gun.

[00:09:11] Speaker 03:
So I read that suggesting that he testified that the fellow came into the house.

[00:09:22] Speaker 03:
Now, is that wrong?

[00:09:25] Speaker 03:
Did I misread that?

[00:09:27] Speaker 01:
You do not misread that.

[00:09:28] Speaker 01:
I think what I'm not aware of, and I don't believe any interpretation was challenged at the time, I would suggest maybe it was just the preposition of in as opposed to in front of, is the discrepancy.

[00:09:42] Speaker 01:
But I would point to in the record the client's written statement and his initial reasonable, fierce screening with an asylum officer soon after he arrived.

[00:09:50] Speaker 01:
And he has been otherwise consistent that he was not inside the home.

[00:09:53] Speaker 03:
The uncle or the uncle.

[00:09:55] Speaker 01:
Yes, I'm sorry about the petitioners inside the home.

[00:09:57] Speaker 01:
The uncle was outside shooting at the home from the outside.

[00:10:00] Speaker 03:
Okay.

[00:10:01] Speaker 03:
All right.

[00:10:03] Speaker 04:
Okay.

[00:10:03] Speaker 04:
I think we took up your time.

[00:10:04] Speaker 04:
We'll give you some two minutes off a rebuttal.

[00:10:05] Speaker 04:
Thank you.

[00:10:17] Speaker ?:
Thank you.

[00:10:17] Speaker 02:
Good morning and please support Richard Sanford on behalf of the attorney general.

[00:10:21] Speaker 02:
So, and your honor, I think I'll dispense for a second just to say I think the record pages around start around pages 129 to 131 and it's where you start to see those prepositions and my friend on the other side is correct.

[00:10:33] Speaker 02:
What happens and by the way, I would also recommend the father's record, EIR record at page 164.

[00:10:39] Speaker 02:
That's his declaration again, which has the same declaration saying they were shot at.

[00:10:45] Speaker 02:
As noted in the red brief, that's where the petitioner, sorry, the adult petitioner had mentioned that the roof of his home was damaged, or sorry, the roof of the disputed home was damaged.

[00:10:58] Speaker 02:
An unfortunate reality in immigration court is that they're working.

[00:11:02] Speaker 02:
I mean, it's nothing as grand as this.

[00:11:04] Speaker 02:
In fact, it's worth eventually sometime going by and seeing immigration courtroom.

[00:11:09] Speaker 02:
They're very tight close quarters.

[00:11:11] Speaker 02:
There is a digital recording system that goes on in place.

[00:11:14] Speaker 02:
I'm sure probably like this one, but not nearly as high tech.

[00:11:17] Speaker 02:
They contract out, and the immigration judges are allowed to read their oral decisions once oral decisions are issued.

[00:11:25] Speaker 02:
In fact, this way you may see sometimes what looks like the Microsoft Word where it's been at the strikers and edited, yes.

[00:11:35] Speaker 02:
They don't really get to read the transcripts.

[00:11:37] Speaker 02:
And so the people who are listening to the transcripts are doing their best to convert that.

[00:11:43] Speaker 00:
So if there's a question, then, as to the integrity of the transcript, the record, or that which the immigration judge recorded in their opinion, how should we treat that?

[00:11:58] Speaker 02:
So that would first have to be raised to the board.

[00:12:03] Speaker 02:
The litigant would raise the board and say, for instance, this interpretation was incorrect.

[00:12:08] Speaker 02:
They can actually get a CD of their own recording, of their own hearing.

[00:12:11] Speaker 02:
They can go to the immigration court and request that.

[00:12:14] Speaker 02:
And so they can go back and, for instance, if they say, oh, I had my own interpreter listen to this hearing and the court official interpreter, sorry, the contract interpreter interpreted it this way, but we say that the correct interpretation should have been this.

[00:12:27] Speaker 02:
They can raise that and present it to the board.

[00:12:30] Speaker 00:
So if this court has a question about the significant meaning behind one preposition over another,

[00:12:36] Speaker 00:
That's not something that we can take up on our own.

[00:12:40] Speaker 02:
It would not have been exhausted yet, your honor.

[00:12:41] Speaker 02:
And so it would have to be exhausted by being by raising it to the board and saying all of these at elsewhere in the transcript.

[00:12:50] Speaker 02:
They should have been ends.

[00:12:51] Speaker 02:
And so if you don't alert the agency to those things going on, first agency has to have the first crack at saying.

[00:12:56] Speaker 02:
what we think, because, for instance, the agency could get that motion to reopen saying there was a transcript infirmity, and then they might decide to say, well, now we're going to address nexus.

[00:13:04] Speaker 02:
Now we're going to address that the uncle was arrested six times.

[00:13:07] Speaker 02:
Now we're going to address that the father has gone back to the dispute at home.

[00:13:13] Speaker 02:
They would have that opportunity if they chose to do that, but we can't raise that for the first time here under the exhaustion statute.

[00:13:20] Speaker 04:
And, you know, if you read the context of this transcript, it does suggest he is outside.

[00:13:24] Speaker 04:
He's talking about how thin the walls are.

[00:13:26] Speaker 04:
And in context, it makes more sense for him to be outside.

[00:13:29] Speaker 02:
Well, yes, Your Honor.

[00:13:30] Speaker 02:
In fact, actually, petitioner's own counsel then would restate and saying, so I understand he shot at your home.

[00:13:36] Speaker 02:
So the effect on the listener is in play as well.

[00:13:39] Speaker 02:
So you have the, again, this is very tight quarters.

[00:13:42] Speaker 03:
I can appreciate that.

[00:13:46] Speaker 02:
It's funny.

[00:13:46] Speaker 02:
The immigration judge might be able to lean up out of his or her chair and almost shake hands with the witness in the witness box.

[00:13:53] Speaker 02:
If the witness leaned up out of it, it's very tight.

[00:13:57] Speaker 02:
So they're all hearing.

[00:13:58] Speaker 03:
Let me ask you another question about this.

[00:14:00] Speaker 02:
You know, I mean, this does take place over about a two year period, right?

[00:14:03] Speaker 02:
Well, Your Honor, actually, it started in 2009 when he is first deported to Guatemala.

[00:14:10] Speaker 02:
So I should point out, by the way, the other petitioner, the child petitioner in 231 was not alive for at least one of the shootings.

[00:14:17] Speaker 02:
Right.

[00:14:18] Speaker 03:
She only comes in at the very.

[00:14:19] Speaker 02:
She's born 2011.

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

[00:14:21] Speaker 02:
So the last shooting is 2012, and then the adult applicant stays there for another two years before he leaves.

[00:14:29] Speaker 02:
So roughly from 2009 to 2012, we have five shootings, five arrests, one threat for a sixth arrest, and then two more years pass before the adult petitioner who is the... So why don't these acts

[00:14:49] Speaker 03:
rise to the level of persecution.

[00:14:51] Speaker 03:
I don't quite understand.

[00:14:52] Speaker 03:
Well, Your Honor, the fact... We're not talking about, you know, just threats.

[00:14:56] Speaker 03:
We're talking about shootings.

[00:14:58] Speaker 02:
Into the home, Your Honor.

[00:14:59] Speaker 02:
And it might have been very well a different result if, for instance, the applicant had said, I was standing in my kitchen window and he saw me and I saw him raise his... And he missed, thankfully, and hit the glass or hit the frame.

[00:15:12] Speaker 02:
The fact finder in this case

[00:15:14] Speaker 02:
didn't call it that way and and because we're dealing with with twelve fifty two uh... before the standard before this court is it's a matter of it's not a matter of one person says the ball was fair one person says the ball is foul one person says the batter checked a swing the other says the batter went around it has to be that no other fact finder would have done with the fact finder here did and that's a reason

[00:15:36] Speaker 03:
Let me ask you this, you know, just in thinking about this, would it make a difference?

[00:15:42] Speaker 03:
Let's hypothetically speaking, suppose it had been a government official that had done this.

[00:15:46] Speaker 02:
Then there might be a cat claim that would go on.

[00:15:49] Speaker 03:
Well, would there be persecution?

[00:15:53] Speaker 03:
Same thing, just this governor official shooting.

[00:15:55] Speaker 02:
Well, we have to decide about the nexus.

[00:15:58] Speaker 03:
If the government official was mad that... No, no, I'm talking about the acts.

[00:16:03] Speaker 02:
I mean, again, would be a call for the fact finder.

[00:16:06] Speaker 02:
I mean, depending on who the fact finder was, they might say, well, that has a sort of an imprimatur, that it's more of an official act because the government's doing it.

[00:16:14] Speaker 03:
Does that make it worse than?

[00:16:16] Speaker 03:
I mean, the act itself, shooting a gun into a house.

[00:16:21] Speaker 03:
And people get prosecuted, you know.

[00:16:24] Speaker 02:
Well, they do get prosecuted and they get prosecuted for, for instance, even like beating up a spouse, but not necessarily every beating of a spouse turns into rising to the level of... And by the way, I should note, just to my friend in the other side's point about de novo review, for what it's worth, the Supreme Court is currently deciding this case right now in Urias-Ariana.

[00:16:44] Speaker 02:
They just had argument on December 1st.

[00:16:46] Speaker 02:
I don't have a case number, but it is Urius hyphen Oriana.

[00:16:50] Speaker 03:
I was going to ask you just to confirm my understanding.

[00:16:52] Speaker 03:
Yes, it's on that exactly.

[00:16:54] Speaker 03:
Whether or not it's.

[00:16:55] Speaker 04:
The nexus is de novo?

[00:16:57] Speaker 03:
No, whether we review persecution de novo or for substantial evidence.

[00:17:05] Speaker 03:
If you followed the question and answer on there, it looks like they're going to say it's substantial evidence.

[00:17:10] Speaker 02:
At that argument, the government attorney sat down early.

[00:17:12] Speaker 02:
That's the only thing I can tell you about that about that case.

[00:17:15] Speaker 02:
I mean, apart from I'm not going to read any he leaves about what questions the justice asked.

[00:17:20] Speaker 02:
But so does that suggest we should wait?

[00:17:23] Speaker 02:
If we think we think that we prevail as the legal landscape stands right now, your honor, with with everything from dating back to Elias Zacharias to this court's decision, Bramadi saying to the statute to Garland versus Meng Dai, we think we prevail.

[00:17:40] Speaker 02:
But if the court wanted to be triply sure they just held argument on December 1st, we know they're going to be done by the end of June.

[00:17:46] Speaker 03:
And we suspect that... This is not one of their big cases, so maybe they'll get it out soon.

[00:17:51] Speaker 02:
We don't think this is going to be one of the cases that's announced on the last day of the term.

[00:17:57] Speaker 02:
That's not a government position.

[00:17:59] Speaker 03:
You're dealing with an issue that's, you know, around the country, there's conflicting positions.

[00:18:04] Speaker 02:
Well, sure.

[00:18:04] Speaker 02:
And it was brought up, for instance, that with Wilkinson, with extreme hardship in the cancellation removal context,

[00:18:11] Speaker 02:
Did someone suffer exceptional, extreme, unusual hardship or will they suffer that if they have to return to their home country?

[00:18:17] Speaker 02:
That's a legal status, but the Supreme Court said in Wilkinson that is for sure a deferential factual finding by the agency.

[00:18:24] Speaker 02:
So they might be, anything can happen.

[00:18:26] Speaker 02:
They might be treading some new ground and we're not going to take...

[00:18:31] Speaker 02:
I'm sorry.

[00:18:31] Speaker 04:
They've surprised me with some of their roles.

[00:18:33] Speaker 04:
One other question.

[00:18:36] Speaker 04:
Does the fact that the uncle appeared to be drunk at the times of the shootings, is that should that play into our calculus of whether or not it's persecution?

[00:18:44] Speaker 02:
We think it should because it played into the calculus of the fact finder.

[00:18:48] Speaker 02:
And so again, we're all trying to decide would

[00:18:51] Speaker 02:
any other fact-finder find as the fact-finder did here.

[00:18:54] Speaker 02:
It's a powerful standard because we're dealing with review of facts.

[00:18:57] Speaker 02:
It's almost like trying to overturn a jury verdict.

[00:19:00] Speaker 02:
Could any other jury have reached this verdict that we don't touch it?

[00:19:04] Speaker 04:
And so how would that tease out?

[00:19:06] Speaker 04:
It makes it less persecuting because he was drunk?

[00:19:10] Speaker 02:
Well, it may have been whether there was sufficient intent.

[00:19:14] Speaker 02:
I mean, again, the roof is damaged.

[00:19:15] Speaker 02:
So if it's a matter of he's trying to fire the gun in the air to sort of be sort of menacing over the course of years to say, I want that house,

[00:19:21] Speaker 02:
get out if the fact finder thought this is this is the an uncle who by the way was 70 at the time of the hearing seven years ago was was trying to who if they don't live in that house he's not doing a thing he wants the house because

[00:19:39] Speaker 02:
the brother of the uncle who is in question, their father left it to the wrong brother.

[00:19:45] Speaker 02:
And so the fact finders looking at all these facts, making a call, fair or foul, check to swing or run around, and we're saying that it's not the case at any other, that every other fact finder would have done the opposite of the one here.

[00:20:01] Speaker 00:
If de novo review was exercised, how would the case be different, if at all, for you?

[00:20:07] Speaker 02:
we wouldn't, we would think that even under de novo review, the case is defensible, but de novo review would require a change, because right now the legal standard is substantial evidence.

[00:20:16] Speaker 02:
And so that's not changed, not counting whatever may happen in Oriana or U.S.

[00:20:21] Speaker 02:
Oriana.

[00:20:21] Speaker 02:
I'm sorry.

[00:20:23] Speaker 02:
So not counting what the Supreme Court may do.

[00:20:27] Speaker 02:
If they step in and say, surprise, that it's all de novo, we still think it's defensible, because again, the

[00:20:37] Speaker 02:
Fact finder is the one on the ground.

[00:20:38] Speaker 02:
The trial level immigration judge is the one in that room listening to the case, considering all the factors, including whether he was drunk, whether the father, the brother of the uncle who's now returned to the home to move back in there.

[00:20:54] Speaker 02:
We would also point the court, as the agency also cited, the immigration judge cited, at record page 185, there's that legal agreement

[00:21:02] Speaker 02:
that says the parties are going to respect each other physically and morally.

[00:21:07] Speaker 02:
It's written right into the agreement on record page 185.

[00:21:10] Speaker 03:
So whatever's happening with the dispute over the House, the fact finder was enough to say, we think even under no... For me, what's always been core to whether or not somebody suffered persecution was the nature of the act, the harmful acts that are in play.

[00:21:31] Speaker 03:
In other words, a threat is different than a physical being.

[00:21:36] Speaker 02:
Yes, Your Honor.

[00:21:37] Speaker 02:
And in this case, of course, again, there was no physical harm to either of the applicants here.

[00:21:43] Speaker 02:
But the immigration judges daily, they see, it's actually hard to put everything on a grid because the cases they see are so different and so varied every day where the claims change so much.

[00:21:55] Speaker 02:
And so they start to get a feel for whether it's a ball or strike.

[00:22:01] Speaker 00:
With your permission?

[00:22:02] Speaker 04:
Of course.

[00:22:04] Speaker 00:
If we were to consider this question on de novo review, what I want to try to do is visualize how that would end up working its way through a decision.

[00:22:16] Speaker 00:
Would we need to then also redefine the boundary of what factually would satisfy the condition of persecution?

[00:22:27] Speaker 00:
I mean, is that also what what we would have to be doing?

[00:22:30] Speaker 02:
I think it would be it's it's.

[00:22:34] Speaker 02:
It would be pulling a thread that might really become.

[00:22:38] Speaker 02:
We probably have to have some supplemental briefing on how to review factual findings de novo.

[00:22:42] Speaker 02:
I mean.

[00:22:45] Speaker 02:
Well, that sounds interesting.

[00:22:47] Speaker 03:
You know, it's the again, it's the ultimate question which you're reviewing de novo, right?

[00:22:52] Speaker 03:
And the facts, I mean, you know, the facts are supported by the evidence or not.

[00:22:56] Speaker 03:
then you look at whether or not those facts constitute right uh... persecution and persecution is the heart but it for me it's like the harm i mean it's really no different than and if you've ever done any fourth amendment work but you know in a motion to suppress you look at all the facts but ultimately the termination of whether or not there's been a violation of the fourth amendment is a legal question and we are well you're right that that touches a bit on what was going on in wilkinson because again that that

[00:23:24] Speaker 02:
whether you have exception of extreme hardship is a legal requirement.

[00:23:26] Speaker 02:
It's one of the elements for cancellation of removal.

[00:23:28] Speaker 02:
I've always forgotten, this is Osama's case, but that's a legal standard.

[00:23:34] Speaker 02:
But when the Supreme Court considered that in Wilkinson, they said all the ingredients that go in, all that fact finding makes it a deferential substantial evidence factual finding review.

[00:23:43] Speaker 02:
So still trying to answer just Casper's question.

[00:23:47] Speaker 02:
With the de novo standard with that, certainly,

[00:23:53] Speaker 00:
reasonable this would have to be included in in within that but within weekly we would then be required in some way as a court to issue guidance about uh... a different definition or what what minimum factual basis would be necessary to establish uh... persecution and might require this court to do more fact-finding at this level which of course it shouldn't or we would redefine the parameters in the remand to to

[00:24:19] Speaker 00:
to the agency for further fact-finding.

[00:24:21] Speaker 02:
Presumably that might be one if it was going to be a de novo the whole way.

[00:24:27] Speaker 04:
Okay.

[00:24:28] Speaker 04:
Thank you very much counsel.

[00:24:29] Speaker 04:
Thank you.

[00:24:41] Speaker 01:
Your honors, I just have a couple of very quick points I'd like to say Staying on the topic of de novo review versus a substantial evidence again This may be decided for us at some point in the future near future.

[00:24:52] Speaker 01:
I would just say the current Law of this circuit is that it is the whether certain harms rise to level persecution is not a factual question And I think there was some talk about what if it becomes a factual question We don't know what the Supreme Court may do and how that might affect this case but the current law is that it's not a factual question and

[00:25:09] Speaker 01:
in this court in Boer Sedano said that whether particular acts constitute persecution is a legal question.

[00:25:16] Speaker 01:
So depending on how the Supreme Court might rule in this case, whether they say all factual questions are or what, however they break it down, it won't necessarily change the law of this circuit.

[00:25:28] Speaker 01:
I just wanted to make that point.

[00:25:30] Speaker 01:
And then as to the discussion surrounding the acts

[00:25:34] Speaker 01:
the acts of harm, the shootings at the home.

[00:25:38] Speaker 01:
I think whether he was inside the home or not, I think we've more or less settled as best we can given the transcript that we have.

[00:25:45] Speaker 01:
I would say whether or not the uncle was drunk at the time he did it, to my eyes, does not change.

[00:25:50] Speaker 01:
It does not change the potential result of the shootings.

[00:25:53] Speaker 01:
The gun is still being fired.

[00:25:54] Speaker 04:
Yeah, I think it could impact on intent.

[00:25:57] Speaker 04:
Like, you know, he's not doing it with like a steeled purpose.

[00:26:00] Speaker 04:
He's just doing it because he's drunk and trying to show off or scare, you know, but not like he didn't form the real intent to harm them.

[00:26:09] Speaker 01:
Understood.

[00:26:10] Speaker 01:
I think the record establishes that this uncle, as was mentioned earlier, wanted the home that the petitioner is living in.

[00:26:18] Speaker 01:
So I think he's stated his intentions of his disagreements that he has with the petitioners.

[00:26:24] Speaker 01:
And so whether alcohol influenced his decision to fire a gun or not, it would still put the petitioners in at the risk of imminent harm or death.

[00:26:33] Speaker 01:
And we would argue that rises to the level of persecution.

[00:26:37] Speaker ?:
Any questions?

[00:26:37] Speaker 04:
Thank you, Council.

[00:26:38] Speaker 04:
Thank you both for your excellent argument.