[00:00:11] Speaker 01:
Good morning, your honors. May it please the court. I am Kenneth Larkin Vanderhoff on behalf of the petitioners. 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. The petitioner's uncle fired a gun at petitioner's home while yelling at him, indicating he knew or believed him to be in the home on at least five occasions. 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. It has found that threats alone can be persecution.

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

[00:01:27] Speaker 01:
Yes, Your Honor. To these petitioners, it would be psychological harm.

[00:01:30] Speaker 03:
Yes. Now, as I read the record – 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 the home, but rather outside the – How did these events take place?

[00:02:15] Speaker 01:
How did they take place? Did you just come by and shoot him up? The shooter lived nearby. 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... And physical harm to the petitioner's father. Yeah. His harm to the father caused him psychological pain?

[00:02:43] Speaker 01:
Yes. In particular, the... Or harm? Yes, Your Honor. 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 or...

[00:02:57] 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, and he said because he saw him from inside the home.

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

[00:03:15] Speaker 03:
Okay. 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. That's Mashiri v. Ashcroft. 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 would also just note that this Court has held the absence of bodily injury is not necessarily dispositive, that 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? It sounds to me like we're still discussing the facts, and if the BIA concluded factually that something in fact occurred, how do we disturb it or question it at this point?

[00:04:19] Speaker 01:
Yes, Your Honor. I think – maybe I'll turn to the evidentiary standard because I think we – it is our position that this is a question of law, whether these facts, this harm rises to the level of persecution is in fact a question of law, which this court can review de novo. And I know that the respondent in this case argues that it is the substantial evidence standard.

[00:04:39] Speaker 01:
I will admit this case is a little unique to me, at least in my practice, in that the board, the agency here, only touched the argument on persecution, past persecution, and well-founded future persecution. 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 cases. determinations that need to be made. It wasn't done here. 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.

[00:05:25] 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 01:
Correct.

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

[00:05:34] Speaker 01:
They said that they didn't reach – well, what I would say is they expressly say they did not reach our arguments on appeal. And so – as to the other issues, citing Vagam is bad. 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. Okay.

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

[00:06:08] Speaker 01:
MR. Yes, Your Honor. And it is their right to not reach the other issues under the current law. But for that reason, yes, we would say that if past persecution – or the persecution, past and or future, were to be reversed, then it should be returned to the agency.

[00:06:22] Speaker 00:
And if they had made those determinations and the alternative, what would you be arguing then today?

[00:06:28] Speaker 01:
MR. Well, Your Honor, I think that does change what standard would apply. I think there's many cases from this court that does say that when – when dealing with the determination of asylum and withholding of removal eligibility, it is the substantial evidence standard. And I do think all of those issues, uh, would be before this court, meaning we would need to prevail on each of those issues in order for it to, uh, get remand. 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, you know, these shots that, you know, never hit anyone directed at a house, um, proves that that's perhaps persecution because Sharma is the on point and seems to say it 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. 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 trauma. So it was viewed those things in the cumulative where it was determined to be past persecution.

[00:07:45] Speaker 04:
Was there any trauma here? 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. So our 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. And when I...

[00:08:17] Speaker 03:
Looked at the testimony at the hearing.

[00:08:22] Speaker 03:
Let's see here. I think it's on the father's record around certified administrative record 133. There's a question. It's 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? 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 as suggesting that he testified that the fellow came into the house. Now, is that wrong?

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

[00:09:27] Speaker 01:
Your Honor, you did not misread that. I think what I would – 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. But I would point to in the record the client's written statement and his initial reasonable fear screening with an asylum officer soon after he arrived, and he has been otherwise consistent that he was not inside the home. Okay.

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

[00:09:54] Speaker 01:
The uncle, yes. I'm sorry, but the petitioner was inside the home. The uncle was outside shooting at the home from the outside.

[00:09:59] Speaker 03:
Okay.

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

[00:10:03] Speaker 04:
Okay, I think we took up your time. We'll give you some two minutes off for rebuttal. Thank you. Thank you.

[00:10:17] Speaker 02:
Good morning. In the name of the police and the court, Richard Sanford, on behalf of the Attorney General.

[00:10:21] Speaker 02:
MR. So, and Your Honor, I think – I'll dispense for a second just to say I think the record page is around – started around pages 129 to 131. 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, EYR record, at page 164. 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 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 – I mean it's nothing as grand as this. In fact, it's worth eventually sometime going by and seeing an immigration courtroom. They're very tight, close quarters. There is a digital recording system that goes on in place, I'm sure, probably like this one, but not nearly as high-tech.

[00:11:18] Speaker 02:
they contract out and the immigration judges are allowed to read their oral decisions once oral decisions are issued. In fact, that's why you may see sometimes what looks like the Microsoft Word where it's been at the strike and edited. Yes. They don't really get to read the transcripts. And so the people who are listening to the transcripts are doing their best to convert that.

[00:11:43] Speaker 00:
And so 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 to the board and say, for instance, this interpretation was incorrect. They can actually get a CD of their own recording of their own hearing. They can go to the immigration court and request that. 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, they can raise that and present it to the board.

[00:12:29] Speaker 00:
So if this court has a question about the significant meaning behind one preposition over another – 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. And so it would have to be exhausted by raising it to the board and saying all of these ats elsewhere in the transcript, they should have been ins. And so if you don't alert the agency to those things going on first, the agency has to have the first crack at saying, 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. Now we're going to address that the uncle was arrested six times. Now we're going to address that the father has gone back to the disputed 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. He's talking about how thin the walls are. Right. And in context, it makes more sense for him to be outside.

[00:13:29] Speaker 02:
Well, yes, Your Honor. In fact, actually, petitioners on council then would restate and saying, so I understand he shot at your home. So the effect on the listeners is in play as well. So you have the again, this is very tight quarters.

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

[00:13:45] Speaker 02:
It's it's funny. 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. If the witness leaned up out of it, it's very tight.

[00:13:57] Speaker 02:
So they're all hearing – Let me ask you another question about this. I mean this does take place over about a two-year period, right? Well, Your Honor, actually it started in 2009 when he is first deported to Guatemala. 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. Right.

[00:14:18] Speaker 03:
She only comes in at the very – She's born 2011.

[00:14:19] Speaker 02:
Yes.

[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. 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 – rise to the level of persecution i don't quite understand well your honor the the fact we're not talking about you know just threats we're talking about shootings into the home you're on 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 hit the glass or hit the frame the fact finder in this case didn't call it that way.

[00:15:16] Speaker 02:
And because we're dealing with 1252 before, the standard before this court, it's not a matter of one person says the ball was fair, one person says the ball was 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 what the fact finder here did. And that's a reasoned

[00:15:37] Speaker 03:
Let me ask you this. Just in thinking about this, would it make a difference? Hypothetically speaking, suppose there 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 that there's a government official shooting.

[00:15:55] Speaker 02:
Well, we have to decide about the nexus. If the government official was mad that – I mean, again, it would be a call for the fact finder. 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. Does that make it worse than...

[00:16:17] Speaker 03:
One fact finder might – I mean the act itself, shooting a gun into a house. And people get prosecuted.

[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 up a spouse turns into rising the level of prosecution. And by the way, I should note just to my friend on the other side's point about DeNova Review. For what it's worth, the Supreme Court is currently deciding this case right now in Urias-Ariana. They just had argument on December 1st.

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

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

[00:16:53] Speaker 02:
Yes, it's on that exactly.

[00:16:54] Speaker 04:
Whether or not it's – The nexus is de novo?

[00:16:57] Speaker 03:
No, whether we review persecution de novo or for substantial evidence. So, yes. And if you followed the question and the 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. That's the only thing I can tell you about that case. I mean, apart from I'm not going to read any tea leaves about what questions the justice asked. So does that suggest we should wait?

[00:17:24] Speaker 02:
We think that we prevail as the legal landscape stands right now, Your Honor. With everything from dating back to Elias Zacharias to this court's decision, Burmadi Singh, to the statute, to Garland v. Meng Dai, we think we prevail. 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. Right.

[00:17:47] 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 the government position.

[00:17:58] Speaker 03:
They're dealing with an issue that's around the country. There's conflicting positions.

[00:18:04] Speaker 02:
Well, sure. And it was brought up, for instance, that with Wilkinson, with extreme hardship in the cancellation and 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? That's a legal status, but the Supreme Court said in Wilkinson that is for sure a deferential factual finding by the agency. So they might be – anything can happen. They might be treading some new ground, and we're not going to take – I'm sorry.

[00:18:31] Speaker 04:
They've surprised me with some of their roles. One other question. Does the fact that the uncle appeared to be drunk at the times of the shootings, 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. And so, again, we're all trying to decide would Any other fact finder find as the fact finder did here. It's a powerful standard because we're dealing with review of facts. It's almost like trying to overturn a jury verdict. Could any other jury have reached this verdict? Then we don't touch it.

[00:19:04] Speaker 04:
And so how would that tease out? It makes it less persecutory because he was drunk?

[00:19:10] Speaker 02:
Well, it may have been whether there was sufficient intent. I mean, again, the roof is damaged. 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. 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 uncle – the brother of the uncle is in question. Their father left it to the wrong brother. And so the fact finder is 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 that any other – that every other fact finder would have done the opposite of the one here.

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

[00:20:08] Speaker 02:
We would think that even under de novo review, this case is defensible. But de novo review would require a change because right now the legal standard is substantial evidence. And so that's not changed, not counting whatever may happen in Oriana or U.S. Oriana. I'm sorry.

[00:20:22] Speaker 04:
Go ahead, finish.

[00:20:24] Speaker 02:
So not counting what the Supreme Court may do. If they step in and say, surprise, that it's all de novo, we still think it's defensible because, again, the – fact finder is the one on the ground the trial level uh immigration judge is the one in that room listening to the case considering all the factors including uh whether he was drunk whether the the father the brother of the uncle who's now returned to the home uh to move back in there we would also point the court as the agency also cited the immigration judge cited at record page 185 there's that legal agreement 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 – 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 beating.

[00:21:36] Speaker 02:
Yes, Your Honor. And in this case, of course, again, there was no physical harm to either of the applicants here. 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. And so they start to get a feel for whether it's a ball or a strike.

[00:21:59] Speaker 04:
Okay.

[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. Would we need to then also redefine the boundary of what factually would satisfy the condition of persecution? I mean, is that also what we would have to be doing?

[00:22:30] Speaker 02:
I think it would be – it's – it would be pulling a thread that might really become – we probably have to have some supplemental briefing on how to review factual findings de novo. I mean – Well, that sounds intriguing.

[00:22:45] Speaker 03:
Well, it's the ultimate question. You know, it's the – again, it's the ultimate question, which you're reviewing de novo.

[00:22:51] Speaker 02:
Right.

[00:22:51] Speaker 03:
And the facts. I mean, you know, the facts are supported by the evidence or not, and then you look. then you look at whether or not those facts constitute persecution. And persecution is the harm. For me, it's like the harm. I mean, it's really no different than – I don't know if you've ever done any Fourth Amendment work, but on a motion to suppress, you look at all the facts, but ultimately the determination of whether or not there's been a violation of the Fourth Amendment is a legal question that we do.

[00:23:18] Speaker 02:
Well, Your Honor, that touches a bit on what was going on in Wilkinson then because, again, that – whether you have exception of extreme hardship is a legal requirement. It's one of the elements for cancellation of removal. I realize we've gotten this in some case, but that's a legal standard. 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. So still trying to answer Justice Castaway's question.

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

[00:23:53] Speaker 00:
Reasonableness would have to be included within that. But then we would then be required in some way as a court to issue guidance about a different definition or what minimum factual basis would be necessary to establish persecution.

[00:24:10] Speaker 02:
It might require this court to do even more fact-finding at this level, which of course it shouldn't do.

[00:24:15] Speaker 00:
Or we would redefine the parameters and the remand to – to the agency for further fact-finding.

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

[00:24:27] Speaker 04:
Okay. Thank you very much, counsel. Thank you.

[00:24:41] Speaker 01:
Your Honors, I just have a couple of very quick points I would like to say. Staying on the topic of de novo review versus substantial evidence, again, this may be decided for us at some point in the future, near future. I would just say the current law of this circuit is that whether certain harms rise to the level of 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. in this court in boris adano said that whether particular acts constitute persecution is a legal question 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 i just wanted to make that point and then as to the discussion surrounding the acts The acts of harm, the shootings at the home, I think the – 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. It does not change the potential result of the shootings. The gun is still being fired.

[00:25:54] Speaker 04:
Yeah, I think it could impact on intent. Like, you know, he's not doing it with like a steeled purpose. He's just doing it because he's drunk and trying to show off or scare, you know, but not like he doesn't form the real intent to harm them.

[00:26:09] Speaker 01:
Understood. I think the record establishes that this uncle, as was mentioned earlier, wanted the home that the petitioner is living in. So I think he's stated his intentions of his disagreements that he has with the petitioners. And so whether the – having – 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. And we would argue that rises to the level of persecution.

[00:26:35] Speaker 04:
Okay. Anything else?

[00:26:37] UNKNOWN:
No.

[00:26:37] Speaker 04:
Thank you, counsel. Thank you both for your excellent argument.