[00:00:00] Speaker 00:
Good morning, Your Honor.

[00:00:01] Speaker 00:
I don't want to reserve any time for a bottle.

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

[00:00:06] Speaker 04:
You can proceed.

[00:00:07] Speaker 00:
Good morning, Your Honor.

[00:00:08] Speaker 00:
May it please the court, Marco Garzon, for the petitioner, Patricia Zamora-Flores, and her minor children.

[00:00:16] Speaker 00:
The lead petitioner in this case was the victim of constant domestic violence at the hands of her common-law spouse, with whom the petitioner had a long-term relationship

[00:00:28] Speaker 00:
since she was a minor until her late 20s.

[00:00:33] Speaker 00:
The petitioner in this particular case established nexus between the lead's petitioner past harm and her long-term relationship with her former incumbent law partner.

[00:00:46] Speaker 00:
In this particular case, the fact that the petitioner and the abuser had a very long relationship

[00:00:53] Speaker 00:
is a determining factor to show that one of the reasons that motivated the constant harm was precisely the existence of that familial relationship.

[00:01:05] Speaker 02:
Mr. Corazon, the board held that

[00:01:10] Speaker 02:
the respondent did not provide any testimonial or documentary evidence to support this argument.

[00:01:16] Speaker 02:
And so you've just said it relied on this long-term relationship.

[00:01:21] Speaker 02:
Where's the best place we should look to find the testimonial or documentary evidence of nexus that you're asserting here?

[00:01:33] Speaker 00:
We believe or I believe that that

[00:01:35] Speaker 00:
is a particular issue that is coming out of the long-term relationship between the two.

[00:01:44] Speaker 02:
But why would that compel us, under the standard of review, to find that the nexus here was due to that relationship?

[00:01:56] Speaker 02:
I hope you understand we have

[00:01:59] Speaker 02:
Lots of cases where there is a long-term relationship.

[00:02:03] Speaker 02:
And all too sadly, we also have lots of cases involving domestic violence.

[00:02:10] Speaker 02:
But for purposes of the immigration and asylum claim, we're looking for the evidence that would compel us to go the other way than the agency.

[00:02:20] Speaker 02:
Do you have anything specific other than the existence of the relationship?

[00:02:25] Speaker 00:
John, I think that in this particular case,

[00:02:30] Speaker 00:
there were moments where there was no any harm to the petitioner.

[00:02:36] Speaker 00:
And that particular evidence comes from the testimony throughout the hearing that she had in front of the immigration court, in which she stated that precisely when he was high, when he was under the influence of the drugs, that's when most of the harm occurred.

[00:02:54] Speaker 00:
But also,

[00:02:56] Speaker 00:
is the fact that when the former spouse moved to Ensenada, she followed.

[00:03:01] Speaker 00:
There were times where there were no abuse.

[00:03:04] Speaker 00:
There were times where the relationship was good.

[00:03:06] Speaker 00:
There were no incidents of violence.

[00:03:09] Speaker 00:
But that fact that she testified to, that it was a constant relationship, that's what gave us an idea that precisely the fact that they had a deep relationship, that's what gave us that nexus

[00:03:26] Speaker 00:
in the sense that a reasonable approach or a reasonable analysis of that specific issue give us the sense that the attacker or the former spouse, one of the reasons why he was able to take advantage or was able to harm her is precisely because she felt comfortable that she was there always.

[00:03:46] Speaker 00:
She was a constant presence in his life.

[00:03:49] Speaker 00:
And that's why, that's established in Exeter.

[00:03:53] Speaker 01:
Council, can I follow up?

[00:03:54] Speaker 01:
There is some evidence in the Raptor that she refused to have sex with him and he would rape her.

[00:04:01] Speaker 01:
So to Judge Johnstone's question, do you believe that that's a motive?

[00:04:07] Speaker 01:
That in other words that he abused her, he raped her repeatedly because she refused to have sex with him.

[00:04:14] Speaker 01:
Do you believe that that's a motive?

[00:04:16] Speaker 00:
I believe so, Your Honor.

[00:04:18] Speaker 00:
And in particular, those specific instances show that he felt so entitled, so comfortable to control her in that relationship, that that refusal is precisely a motive for the abuse, Your Honor.

[00:04:34] Speaker 02:
But there is a more specific and more troubling declaration in the record.

[00:04:42] Speaker 02:
Did that declaration come in?

[00:04:45] Speaker 02:
Did those facts come in as part of the asylum process or was it part of the U visa application?

[00:04:51] Speaker 02:
I guess I share Judge Ferri's concern about those allegations.

[00:04:59] Speaker 02:
Was that before the agency for purposes of asylum?

[00:05:02] Speaker 02:
And if so, where would I find that in the record?

[00:05:04] Speaker 00:
You know, the declaration, there's two declarations on the record.

[00:05:08] Speaker 00:
One is the declaration that was presented at the time that she had the hearing in front of the immigration judge.

[00:05:14] Speaker 00:
And that's when she specified that the rapes and the sexual abuse, the other declaration that was submitted in this record, it was part of the motion to remand the case.

[00:05:28] Speaker 00:
And it's my understanding that that declaration was precisely to address the visa, but that was that abuse.

[00:05:36] Speaker 00:
Unfortunately, it was at the hands of a different person that abuse was here in the United States.

[00:05:41] Speaker 00:
So the one declaration that is relevant for these particular cases, the one that was submitted in front of the immigration judge back in 2019.

[00:05:48] Speaker 02:
Do you have a site with respect to the first declaration as to where we would locate or in the testimony the facts of sexual assault and those sorts of assertions of power over her?

[00:06:10] Speaker 00:
That declaration is in the record on

[00:06:15] Speaker 00:
228 to 232.

[00:06:18] Speaker 00:
And in that declaration, there's not really any specific statement as to the motivation of the attacker, unfortunately.

[00:06:28] Speaker 00:
That is just a declaration that describes the whole life and what happened in Mexico, Your Honor.

[00:06:35] Speaker 02:
Would you feel, I'm not sure how much it pertains to this case, but do you have an update on the status of the petitioner's U visa application?

[00:06:44] Speaker 00:
Yes, you're actually we recently learned that the immigration services review the application and they issue a non bona fide letter in this case, meaning that at a first review of the visa, they don't believe that she qualifies for it.

[00:07:02] Speaker 00:
But that's something that could change at a later time when they do a full review of the record.

[00:07:09] Speaker 00:
But that's the latest update that I received from the council representing Petitioner and Hermano Children in that case, Your Honor.

[00:07:19] Speaker 00:
The other issue that I want to raise, Your Honor, is I think that the board

[00:07:29] Speaker 00:
decision misconstrues the burden of the petitioner must meet to show inability or unwillingness to protect them.

[00:07:38] Speaker 00:
The fact that the government may be willing to protect the petitioner, or this petitioner in particular, does not support a finding that the territories in Mexico are able to protect her.

[00:07:51] Speaker 00:
And this assertion is supported on the conditions and the documents submitted in this case, in particular the inability of the Mexican authorities to hold the petitioner's former partner accountable for what he did to her.

[00:08:10] Speaker 00:
And this is, in specific, is the statement or the testimony of the petitioner when she said, he told me that

[00:08:19] Speaker 00:
His boss or his co-worker bribe the police and that's what he was released.

[00:08:25] Speaker 00:
So that prone although is

[00:08:28] Speaker 00:
Willingness and unable to protect.

[00:08:31] Speaker 00:
I think in this particular case the problematic issue is that the tourists in Mexico are unable to protect her.

[00:08:38] Speaker 04:
Well, I think the issue there though is that the the BIA found that your client didn't provide any independent documentary evidence to to back up her claims and so the

[00:08:54] Speaker 04:
BIA, the IJ, essentially said, we just don't have any reason to, I think, to know that that happened.

[00:09:01] Speaker 04:
And so what do we do with that?

[00:09:03] Speaker 00:
I think it goes to credibility of the witness.

[00:09:07] Speaker 00:
The board or the IJ never found that she was not credible.

[00:09:11] Speaker 00:
And she was specifically asked to state for first-hand knowledge that the attacker, her former spouse, told her,

[00:09:21] Speaker 00:
This is why I was released.

[00:09:24] Speaker 00:
This is what happened.

[00:09:25] Speaker 00:
So I think that we can reasonably rely on her testimony, especially because neither the IGN nor the board found her not credible, Your Honor.

[00:09:36] Speaker 01:
Okay.

[00:09:36] Speaker 01:
Council, can you clarify in the record, I couldn't tell whether she reported the abuse five times in person or five times total with a subset of that being in person

[00:09:51] Speaker 01:
I couldn't quite make out the total number of times that she reported it and the number of times that she did that in person.

[00:09:59] Speaker 00:
From the testimony, my understanding and my analysis that he did five times support the abuse in person because she said that the police, she talked to the police, she had an encounter with the police.

[00:10:13] Speaker 00:
In fact, he was arrested by the police.

[00:10:15] Speaker 00:
So my understanding from the records that she did that personally five times at least, Your Honor.

[00:10:21] Speaker 00:
Yes.

[00:10:26] Speaker 00:
I don't have anything else at this point.

[00:10:28] Speaker 04:
OK.

[00:10:28] Speaker 04:
Do either of you have any other questions?

[00:10:30] Speaker 04:
No.

[00:10:30] Speaker 04:
OK.

[00:10:31] Speaker 04:
Thank you very much.

[00:10:32] Speaker 04:
Thank you.

[00:10:32] Speaker 04:
And you do have some time left over.

[00:10:34] Speaker 04:
So if you determine that you want to have rebuttal time, then you can let me know that.

[00:10:38] Speaker 04:
Thank you.

[00:10:38] Speaker 04:
OK.

[00:10:39] Speaker 04:
Thank you.

[00:10:49] Speaker 03:
Good morning and may it please the court Jennifer Williams for the Attorney General.

[00:10:54] Speaker 03:
The issues before this court that haven't been waived or that weren't that the board explicitly decided not to decide are the denial of asylum and withholding of removal on two separate independently dispositive grounds.

[00:11:09] Speaker 03:
Nexus and the finding that the Mexican government was not unable or unwilling to control Christian.

[00:11:19] Speaker 03:
Either of those findings is dispositive of the denial of asylum and withholding of removal, which means that the court can affirm the decision of the agency on either ground.

[00:11:30] Speaker 03:
I'll start with Nexus.

[00:11:35] Speaker 03:
The standard is whether, in this case, the alleged particular social groups were a reason for Christian's abuse of the petitioner.

[00:11:49] Speaker 03:
In this case the record Evans does not compel that conclusion because the only reason she gave during her testimony and her declaration for that abuse was Christians abuse of drugs and It's important council council.

[00:12:05] Speaker 01:
Let me stop you Did she ever really say that that was the reason I mean she said that he was always high But did she ever say he beat me because of the drugs?

[00:12:18] Speaker 03:
I believe in her, well, to start, she didn't provide direct testimony in this case.

[00:12:23] Speaker 03:
And so the record evidence, it is what it is, but there's her declaration.

[00:12:28] Speaker 03:
And then there's some questions that were asked by government counsel, the immigration judge, and I believe her counsel on redirect.

[00:12:36] Speaker 03:
So what there is, is her statement during her testimony that he was high, he was always high.

[00:12:42] Speaker 03:
But then there's her declaration.

[00:12:43] Speaker 03:
And in her declaration, she specifically states that

[00:12:48] Speaker 03:
He moved to Ensenada, she followed him to Ensenada, and there was about a month when things were good.

[00:12:55] Speaker 03:
And then she says he started using drugs again and the abuse started again.

[00:12:59] Speaker 01:
No, no, counsel.

[00:13:00] Speaker 01:
That's not what the declaration says.

[00:13:03] Speaker 01:
The declaration says he started using drugs, not he started using drugs again.

[00:13:10] Speaker 01:
So that's the first mention in the declaration of drugs.

[00:13:13] Speaker 01:
Two years after the miscarriage incident,

[00:13:17] Speaker 01:
and the Christmas incident as well where he left her bloodied.

[00:13:21] Speaker 03:
Yes, but she testified that the abuse always occurred when he was high.

[00:13:26] Speaker 01:
You just said.

[00:13:26] Speaker 03:
With no temporal limitation on that testimony.

[00:13:28] Speaker 01:
You said, declaration 12, paragraph 12, and I have it right here, he started using drugs.

[00:13:35] Speaker 01:
He didn't say started using drugs again.

[00:13:37] Speaker 01:
And in fact, isn't that what the IJ got wrong when he said,

[00:13:46] Speaker 01:
And part of his order, it was only after he began using drugs again that the abuse began again as well.

[00:13:55] Speaker 01:
And he cited paragraph 12.

[00:13:57] Speaker 01:
So he just got it wrong.

[00:14:00] Speaker 03:
With respect, I would argue that the declaration and the testimony read in conjunction with each other where she specifically states in her testimony, he was high, he was always high.

[00:14:13] Speaker 03:
read with that statement in the declaration, he started using drugs.

[00:14:18] Speaker 03:
Again, the standard of review is whether the evidence compels the conclusion.

[00:14:21] Speaker 03:
That evidence is substantial evidence in support of the immigration judge's factual determination that every time he abused her, he was high.

[00:14:31] Speaker 03:
And that that statement in the declaration is that he did not use drugs.

[00:14:35] Speaker 03:
He did not abuse drugs for the first month in Ensenada.

[00:14:38] Speaker 03:
and then he started using drugs.

[00:14:40] Speaker 02:
Well, Ms.

[00:14:40] Speaker 02:
Williams, I do think that, I mean, I find it, I agree with Judge Vera, it's hard reading paragraph 12 of the declaration in combination, I believe, with her testimony that at least the initial instances of abuse were not claimed to be motivated by drugs.

[00:15:00] Speaker 02:
If we find that the relevant evidence at least compels us to find that there were earlier

[00:15:08] Speaker 02:
that there was earlier abuse in which drugs may not have been implicated.

[00:15:13] Speaker 02:
What's your response to your friend's suggestion that we have a domestic relationship in which violence is occurring, in which the partner is abusing Petitioner in that way, and that should be enough for us to find nexus?

[00:15:33] Speaker 03:
I would answer that that is not the factual finding that was made by the immigration judge, which the court reviews for compelling evidence.

[00:15:45] Speaker 03:
The agency found differently.

[00:15:46] Speaker 03:
They found on this record that based on her testimony, her specific testimony that he was high, he was always high.

[00:15:54] Speaker 01:
But counsel, wasn't that in response to a question about being drunk when mistreated?

[00:15:59] Speaker 01:
So essentially, she was correcting the question.

[00:16:02] Speaker 01:
She essentially was saying, no, he was high.

[00:16:05] Speaker 01:
And she said he was always high, but that didn't refer either to a cause or to a time frame.

[00:16:13] Speaker 03:
Well, the immigration judge made different factual findings.

[00:16:22] Speaker 03:
And the question is whether the evidence in the record

[00:16:25] Speaker 03:
compels a different reading of these two statements in light of the fact that this is all that there is in the record.

[00:16:32] Speaker 03:
The fact is that in the testimony, there's her statement, he was high.

[00:16:36] Speaker 03:
And she didn't stop there.

[00:16:37] Speaker 03:
She said he was always high.

[00:16:39] Speaker 03:
And then she has this statement in her declaration that he treated her well.

[00:16:47] Speaker 03:
I mean, whatever that sentence, he started using drugs.

[00:16:51] Speaker 03:
It is clear from what she said previously that when he wasn't using drugs in Ensenada, he treated her well.

[00:16:56] Speaker 03:
So those two statements combined, our position is the evidence doesn't compel a conclusion contrary to the immigration judge.

[00:17:04] Speaker 01:
Council, I assume you reviewed the I-589, the asylum application that you filed under penalty of perjury?

[00:17:13] Speaker 03:
Yes.

[00:17:16] Speaker ?:
Okay.

[00:17:17] Speaker 01:
Section, I think it's 2A, that says, have you or your family or close friends or colleagues ever experienced harm or mistreatment or threats in the past by anyone?

[00:17:26] Speaker 01:
She answered yes.

[00:17:28] Speaker 01:
And then there's several questions about what happened, when, who, and why you believe the harm or mistreatment or threats occurred.

[00:17:36] Speaker 01:
And she answered, for about four years, I was mistreated by the father of my children.

[00:17:41] Speaker 01:
On different occasions, he beat me so hard that I had to go to the hospital.

[00:17:45] Speaker 01:
detailed declaration to follow.

[00:17:48] Speaker 01:
Did she mention drugs there or anything about drugs as being the reason?

[00:17:52] Speaker 03:
No, she didn't, but she made it clear that she would further explicate her claim in her detailed declaration, which does mention drugs.

[00:18:02] Speaker 03:
And in her testimony, which also mentioned drugs.

[00:18:05] Speaker 03:
And so the asylum application on its own, it has to be read in conjunction with the evidence she later provided.

[00:18:12] Speaker 03:
And on this record,

[00:18:14] Speaker 03:
The evidence is basically one sentence in her testimony that he was always high and a statement in her declaration that our position is in conjunction with that testimony that it's not, the evidence doesn't compel the conclusion that he started using drugs for the first time after they were in Ensenada for a month.

[00:18:36] Speaker 03:
She said in her testimony, he was always high when he abused me.

[00:18:42] Speaker 03:
And it's clear from the declaration that

[00:18:44] Speaker 01:
a minimum during the month in Ensenada when she was there and he wasn't using drugs he treated her well so let's let's take that and just dive a little deeper if if we assume that drugs was one reason why why aren't we allowed to find that

[00:19:06] Speaker 01:
that the record compels us to find that her relationship with her partner was a reason.

[00:19:17] Speaker 01:
And I didn't see any analysis of that.

[00:19:20] Speaker 01:
She was found sufficiently credible, and the summary of the record is kind of jaw-dropping.

[00:19:31] Speaker 01:
I mean, she was pushed to the ground

[00:19:35] Speaker 01:
causing her to miscarry.

[00:19:37] Speaker 01:
She was repeatedly beaten and taken to the hospital.

[00:19:41] Speaker 01:
She was threatened at night point.

[00:19:45] Speaker 01:
She was kept isolated.

[00:19:46] Speaker 01:
He refused to let her leave the house.

[00:19:49] Speaker 01:
He didn't give her money for food.

[00:19:51] Speaker 01:
He raped her.

[00:19:53] Speaker 01:
He took her children and he told her that he would kill her if she left.

[00:19:57] Speaker 01:
You don't believe that that compels us to find that a reason was her domestic relationship.

[00:20:05] Speaker 03:
Well, I just want to first clarify that the only declaration that's relevant is the one about Christian, not the U visa.

[00:20:13] Speaker 01:
No, but some of that is in her... I'm not sure it all is.

[00:20:17] Speaker 03:
But anyway, whatever is in her declaration about Christian's abuse, the agency recognized, everybody recognizes that the harm to which she was subjected is abuse.

[00:20:33] Speaker 03:
that it was terrible, but the question is whether it occurred on account of a protected ground.

[00:20:40] Speaker 03:
And the fact that she was in a relationship with him in this case on the facts of this record, I mean, yes, she was in a relationship with him, but that doesn't mean that was a reason for the abuse because of her statements that the reason for the abuse was his abuse of drugs.

[00:21:00] Speaker 01:
Again, she didn't say that that was the reason, but you're inferring that.

[00:21:05] Speaker 03:
Well, the immigration, the agency looked at the facts in the record, and those are the factual findings that the IJ made as affirmed by the board.

[00:21:13] Speaker 03:
And under this court's standard of review, the question is whether the evidence in the record compels a contrary conclusion.

[00:21:25] Speaker 03:
The second ground relied on, if the court has no more questions about Nexus, the second ground relied on that is independently dispositive is whether she met her burden of showing that the Mexican government and the police were unable or unwilling to control Christian.

[00:21:41] Speaker 03:
As we argue in our brief, she basically conceded that they were willing to do so, but argues that they were unable to do so.

[00:21:52] Speaker 03:
The only evidence in this record is the declaration and what limited testimony there is.

[00:21:58] Speaker 03:
And those facts simply don't compel the conclusion that the Mexican police were unable to control Christian.

[00:22:05] Speaker 03:
There are questions on this record that are not answered.

[00:22:09] Speaker 03:
It is unclear exactly how many times she went to the police.

[00:22:13] Speaker 03:
It's unclear how many times the police arrested Christian.

[00:22:16] Speaker 03:
It's clear that they did so at least once, but there's a suggestion in her testimony that they did so more than once.

[00:22:22] Speaker 03:
It's unclear whether, assuming they arrested him more than once, they released him every time because the boss paid a bribe, or whether that only happened once.

[00:22:33] Speaker 03:
The record doesn't contain the police reports, and she didn't testify as to what she told the police on each occasion.

[00:22:41] Speaker 03:
So the only evidence in the record is her statement that Christian told her that the police released him because his boss paid a bribe.

[00:22:49] Speaker 03:
And even though she was found credible, he may have actually told her that, but that doesn't mean that's what actually happened.

[00:22:56] Speaker 03:
There's no independent evidence, again, of any of these facts.

[00:23:01] Speaker 03:
And it's important that she bears the burden of proof.

[00:23:04] Speaker 03:
She has to show that the Mexican police were unable to control Christian.

[00:23:07] Speaker 03:
And on this record, the evidence doesn't compel the conclusion that she met that burden.

[00:23:16] Speaker 04:
Thank you very much.

[00:23:16] Speaker 03:
Thank you.

[00:23:21] Speaker 04:
And Mr. Carson, did you want to use any more of your time or no?

[00:23:25] Speaker 04:
Okay.

[00:23:26] Speaker 04:
Thank you.

[00:23:26] Speaker 04:
Thank you both very much for your helpful arguments in this case.

[00:23:29] Speaker 04:
This case is now submitted.

[00:23:30] Speaker 04:
Thank you.