[00:00:00] Speaker 03:
The first case we have for argument this morning, I believe, Isabella Gonzalez versus Garlandaca 239547.

[00:00:10] Speaker 03:
Council, we're ready for your argument whenever you're ready.

[00:00:21] Speaker 01:
Good morning.

[00:00:22] Speaker 03:
Good morning.

[00:00:22] Speaker 01:
And may it please the court.

[00:00:24] Speaker 01:
My name is Isabel Lonasco, and I represent the teaching

[00:00:29] Speaker 01:
Maria Aviles-Gonzalez, I would like to reserve three minutes for rebuttal.

[00:00:36] Speaker 01:
The BIA made two errors on this case.

[00:00:39] Speaker 01:
First, the board applied the incorrect legal standard by requiring a police report as a prerequisite to meet the enabled or unwilling analysis.

[00:00:52] Speaker 01:
Second, the board erred by affirming

[00:00:57] Speaker 01:
the IJA's misstatement of Ms.

[00:01:00] Speaker 01:
Avila's one-word response to the government's leading question.

[00:01:04] Speaker 01:
That misstatement is not supported by substantial evidence.

[00:01:10] Speaker 01:
This court can grant Ms.

[00:01:12] Speaker 01:
Avila's petition in either of these grounds to remand the BIA for them to apply the correct legal standard.

[00:01:22] Speaker 01:
As evident in the record, in January 2012,

[00:01:26] Speaker 01:
12 armed men dressed as police officers broke into Ms.

[00:01:31] Speaker 01:
Avila's house demanding to see Fernando.

[00:01:38] Speaker 01:
In August 2013, Fernando was brutally murdered meters from the prosecutor's office.

[00:01:47] Speaker 04:
Well, what evidence was presented

[00:01:51] Speaker 04:
regarding contacts with the local police.

[00:01:55] Speaker 04:
It was my impression that nobody had ever bothered to call them about any of these events.

[00:02:01] Speaker 01:
Correct, Your Honor.

[00:02:03] Speaker 01:
They did not file a police report.

[00:02:07] Speaker 01:
Misabidance testimony through the entire proceedings has been that she feared going to the police because she would be killed if she filed a police report.

[00:02:18] Speaker 04:
What is the evidence that that

[00:02:21] Speaker 04:
might have occurred or do you want us to just hold that the entire police department is not believable and they don't do their job and that's true throughout Mexico?

[00:02:36] Speaker 01:
Your Honor, this case presents the case before you.

[00:02:42] Speaker 01:
The record before you has corroborated evidence that has been ignored in this case.

[00:02:49] Speaker 01:
evidence that is the testimony for Ms.

[00:02:52] Speaker 01:
Aviles.

[00:02:53] Speaker 01:
We have the husband that testified in the individual hearing corroborating that similar situated people in the community have been killed after reporting.

[00:03:05] Speaker 01:
Country reports also confirm this statement.

[00:03:09] Speaker 01:
Ninety-four percent of people in Mexico, by human rights report and let me direct your attention to AR-427,

[00:03:18] Speaker 01:
Country reports state that 93% of people in Mexico do not file a police report because they believe they are in league with the criminals.

[00:03:29] Speaker 01:
Also, Freedom House, it's an exhibit presented by Miss Aviles, an exhibit that was not contested by the government, confirms this number, that 93% of people in Mexico do not file a police report.

[00:03:46] Speaker 01:
What we are asking this court is to remand the case to the BIA for them to do a totality of the circumstances analysis.

[00:03:54] Speaker 01:
This is not a new argument.

[00:03:57] Speaker 01:
The BIA, more than 20 years ago, in matter of SA, they have articulated that filing a police report is not essential to meet your burden of unable or unwilling.

[00:04:09] Speaker 01:
Most recently, in matter of CPT, which was raised by the government,

[00:04:17] Speaker 01:
statement that filing a police report is not required when reporting is futile or dangerous.

[00:04:25] Speaker 01:
That was the case here.

[00:04:28] Speaker 00:
Well, the facts are quite a bit different in the recent case that the government provided, CGT, I believe.

[00:04:36] Speaker 00:
That was a juvenile, or he was a juvenile, when he would have been required to report what was going on with his father.

[00:04:47] Speaker 00:
And so the court said, or the BIA said, you've got to consider the fact that he is a juvenile, and that he's young, and he doesn't really have the ability to report, and that it would have been futile to require him to report.

[00:05:03] Speaker 00:
So how does that case really help you here when we're dealing with an adult who clearly understood that she could have reported and had the ability to do so?

[00:05:16] Speaker 01:
H was not this positive in matter of CGT.

[00:05:19] Speaker 00:
It was very significant.

[00:05:21] Speaker 00:
That was what they directed on remand.

[00:05:25] Speaker 00:
That was what was directed to be considered by the IJ, along with the totality of the evidence.

[00:05:31] Speaker 00:
Correct.

[00:05:32] Speaker 01:
They discussed this was one of the many things they consider.

[00:05:37] Speaker 01:
They consider country reports.

[00:05:39] Speaker 01:
They consider the testimony of everybody involved.

[00:05:42] Speaker 01:
In this case, we have

[00:05:45] Speaker 01:
or overwhelming evidence, overwhelming evidence that supports that Mexico was unable or unwilling, and also that reporting would have been dangerous.

[00:05:54] Speaker 01:
Matter of CT adopted Rosales Gusto in the First Circuit.

[00:05:59] Speaker 01:
The First Circuit has also said that it's not fatal, not filing a police report.

[00:06:07] Speaker 00:
Well, that's not what the BIA said here.

[00:06:11] Speaker 00:
The BIA didn't say it was fatal, that the report wasn't

[00:06:15] Speaker 00:
filed, it went on to consider the evidence.

[00:06:20] Speaker 00:
It didn't just base it on that one fact.

[00:06:24] Speaker 01:
Correct.

[00:06:24] Speaker 01:
They based the analysis in the totality of the circumstances.

[00:06:29] Speaker 01:
And that is why we are asking this court today to remand the case for them to look at the totality of the circumstances, H being just one of the elements as the report

[00:06:41] Speaker 01:
the country conditions, the statement that has been consistent.

[00:06:44] Speaker 00:
Well, the court did consider the country conditions.

[00:06:47] Speaker 00:
I mean, the BIA did consider the country conditions.

[00:06:51] Speaker 01:
The BIA only stated that Mexico was doing efforts to prevent this.

[00:06:57] Speaker 00:
And there was some evidence in the record to support that.

[00:07:00] Speaker 01:
Correct, Your Honor.

[00:07:01] Speaker 01:
However, the record supports also that there's additional evidence that was not consistent.

[00:07:11] Speaker 01:
in his decision that she did not file a police report because she believed that filing a police report, it would anger them and- The police.

[00:07:26] Speaker 01:
Yeah.

[00:07:26] Speaker 01:
Correct.

[00:07:27] Speaker 01:
That is the misstatement.

[00:07:28] Speaker 01:
That is the second mission of this case.

[00:07:31] Speaker 00:
Yeah.

[00:07:32] Speaker 00:
The way I read the BIA's determination and the IJ is that they viewed her testimony on that

[00:07:41] Speaker 00:
as inconsistent because on the one hand, she said, yes, I didn't file a report because I thought the police would then take action against me.

[00:07:49] Speaker 00:
And then she also said, I didn't file a report because I thought if the police tried to protect me, that I would be retaliated against.

[00:08:01] Speaker 00:
And so they said, that's inconsistent by itself.

[00:08:06] Speaker 00:
So it's not supportive of her argument.

[00:08:11] Speaker 01:
After finding, assuming credibility, and the government waived this credibility, they stated in AR4, quote, in light of their answers, the IG permissibly found the gang members fear authorities.

[00:08:27] Speaker 01:
This is rebutted by the evidence in this case.

[00:08:31] Speaker 01:
We have, I already mentioned country reports, Ms.

[00:08:35] Speaker 01:
Aviness' testimony throughout the entire proceedings has been the AR141

[00:08:41] Speaker 01:
quote, because of cases I have seen back in the same city that have gone and made a police report and then later the people arrive and they are killed.

[00:08:51] Speaker 01:
And they say it was because they went to file a police report.

[00:08:55] Speaker 01:
Then we have husband's testimony at the individual hearing corroborating the same statement on AR 165 saying that there have been cases that people report a case and then you have been threatened and you make a report

[00:09:10] Speaker 01:
immediately the police will go and tell them that you made a report and they will kill them.

[00:09:16] Speaker 01:
This supports her evidence.

[00:09:18] Speaker 01:
Also, we have immediate family members who were killed after Fernando.

[00:09:24] Speaker 01:
We have her cousin, Felipa, who was brutally murdered.

[00:09:28] Speaker 01:
Christopher, her nephew, was also brutally murdered.

[00:09:31] Speaker 01:
That was evidence that was not considered in this case.

[00:09:35] Speaker 01:
Also, there is a report in Human Rights Report... But not by the police.

[00:09:40] Speaker 00:
Not by the police.

[00:09:42] Speaker 00:
The other, the cousin and the nephew.

[00:09:44] Speaker 00:
Correct.

[00:09:45] Speaker 01:
They were killed by the same criminal organization that targeted the brutally killed Fernando.

[00:09:50] Speaker 00:
But we're talking now about why she didn't report to the police.

[00:09:56] Speaker 01:
She didn't report.

[00:09:57] Speaker 01:
The evidence before this court supports that filing a police report wouldn't be futile or dangerous.

[00:10:04] Speaker 01:
Had Maria, Ms.

[00:10:05] Speaker 01:
Aviles,

[00:10:06] Speaker 01:
file a police report, she would have been brutally murdered the way her brother, her cousin, and her nephew were killed.

[00:10:13] Speaker 00:
Requiring a police report frustrates- Did her brother, did her nephew, they weren't killed after filing a police report, were they?

[00:10:21] Speaker 00:
No, no, no.

[00:10:21] Speaker 00:
But there's- I'm trying to get to, that's the part of it that the BIA relied on.

[00:10:25] Speaker 00:
And that's why I'm trying to get you to focus on that part, which is what the inconsistent statements the BIA said she made about

[00:10:32] Speaker 00:
police and why she didn't report, because that's the real nut of this case.

[00:10:37] Speaker 00:
And I didn't hear you.

[00:10:38] Speaker 00:
You did say that, yes, that the BIA accepted your credibility.

[00:10:42] Speaker 00:
The trouble is, they said that, but then they said, with respect to this particular issue, we're not accepting your credibility because of these inconsistent statements.

[00:10:52] Speaker 00:
How could you address those inconsistent statements?

[00:10:57] Speaker 01:
Going to that inconsistency, let me point yourself to the record AR165.

[00:11:02] Speaker 01:
In the questioning, she says, when she's asked about why she didn't file the police report in AR-165, she says, because we believe that the police would tell them that we went to make a report, then the government asks, do you believe that that would happen?

[00:11:19] Speaker 00:
Meaning the police would tell the gang members.

[00:11:21] Speaker 01:
Exactly.

[00:11:21] Speaker 01:
And then they ask.

[00:11:23] Speaker 00:
And the gang members would retaliate because the police were basically part of it.

[00:11:27] Speaker 00:
Correct.

[00:11:27] Speaker 00:
So she says that.

[00:11:28] Speaker 01:
She says that.

[00:11:29] Speaker 01:
And then the government asks, do you believe

[00:11:32] Speaker 01:
that would anger them that you went to the police.

[00:11:35] Speaker 01:
He responds one word, yes.

[00:11:37] Speaker 01:
The following question, because the police could interfere with their threats, yes.

[00:11:42] Speaker 01:
Beyond a yes, that response to that question asked in a different language through an interpreter.

[00:11:49] Speaker 01:
There's no evidence in the record to support that misstatement.

[00:11:53] Speaker 01:
For those reasons, following Mother Hernandez Avalos from the Fourth Circuit, the same scenario happened there.

[00:12:01] Speaker 01:
where the IJ and the BIA misstated the testimony, ignore evidence, ignore country reports.

[00:12:09] Speaker 01:
For those reasons, this court should remand this case to the BIA for them to apply the legal standard, the correct legal standard that has been on the books for more than 20 years.

[00:12:23] Speaker 01:
Matter of essay, matter of CGT, Rosales Justo in the First Circuit also articulated

[00:12:30] Speaker 01:
that filing a police report is not a requirement.

[00:12:35] Speaker 01:
People fleeing from their home country seeking asylum, they are fearing from the nice.

[00:12:41] Speaker 01:
Requiring them to file a police report before fleeing frustrates the purpose of asylum.

[00:12:48] Speaker 03:
Are there any limits to the rule that you're maybe proposing as far as Mexico per se being unwilling

[00:12:58] Speaker 03:
and unable to provide protection?

[00:13:01] Speaker 03:
Or would the same argument work for anyone from Mexico?

[00:13:05] Speaker 01:
Our argument is that the BIA should follow its own precedent by considering the totality of the circumstances.

[00:13:12] Speaker 01:
Country reports, corroborating evidence, that was not done here.

[00:13:18] Speaker 01:
And if there are no further questions, I would like to

[00:13:36] Speaker 02:
May it please the court?

[00:13:38] Speaker 02:
Alana Young for the attorney general.

[00:13:40] Speaker 02:
Unless the court has any specific questions or issues that the court would like the government to go to, I would like to address counsel's points and start with the most recent points that counsel made and the court's questions.

[00:13:55] Speaker 02:
Regarding the limiting principle, the petitioner's position is that the Mexican government is unable or unwilling to protect the petitioner based on general country conditions, evidence,

[00:14:06] Speaker 02:
including corruption.

[00:14:07] Speaker 02:
But there is no limiting principle here.

[00:14:09] Speaker 02:
If this court takes the position of the petitioner, then all individuals coming from Mexico would be able to, per se, assert that the Mexican government is unable or unwilling to pertain to them.

[00:14:19] Speaker 04:
Well, if that's correct, what would be wrong with doing that?

[00:14:24] Speaker 02:
That's not correct, Your Honor.

[00:14:26] Speaker 02:
It's not wrong if the evidence supports it and if the petitioner's position was consistent with the case law.

[00:14:32] Speaker 02:
But that's not the position here.

[00:14:35] Speaker 02:
The board and the immigration judge considered all the evidence in the record, including petitioners personal circumstances and then also the country condition evidence.

[00:14:47] Speaker 02:
I would like to point out one point first before I get there.

[00:14:51] Speaker 02:
Petitioner raised the question of issues with the interpretation, and it was through an interpreter.

[00:14:55] Speaker 02:
It was through a translation.

[00:14:56] Speaker 02:
That issue exhausted your honor, and the government requested the government that this court not consider it.

[00:15:02] Speaker 02:
It was not raised before the immigration judge that she had an interpretation issue.

[00:15:07] Speaker 02:
It was not raised before the board that there was an interpretation issue.

[00:15:10] Speaker 02:
And it's not exhausted before this court.

[00:15:12] Speaker 00:
Well, she is correct that she gave a one-word response to a question

[00:15:21] Speaker 00:
that was leading that she was inconsistent with anything else that she had said.

[00:15:28] Speaker 00:
She had consistently said she was afraid to report to the police because she thought they would then report to the gangs that they were in on the whole thing.

[00:15:38] Speaker 00:
But then somehow she, in this one word response, indicates that no, she's apparently not afraid that the police would do that.

[00:15:48] Speaker 00:
And that's what I'm saying is that's inconsistent with the record and it would seem to be an indication that she didn't quite realize what she was saying.

[00:15:58] Speaker 00:
And it was a leading question asking for a one-word response not supported anywhere else in the record and it looked to me like the BIA relied heavily on that single credibility finding after the BIA said

[00:16:13] Speaker 00:
We find her credible, or we're going to assume her credibility.

[00:16:18] Speaker 00:
So that was inconsistent within the BIA's decision itself.

[00:16:22] Speaker 00:
Your Honor, I disagree with that.

[00:16:24] Speaker 02:
I disagree because it wasn't just a one word.

[00:16:28] Speaker 02:
Yes, it was not on directive exam.

[00:16:32] Speaker 02:
It was on cross.

[00:16:33] Speaker 02:
The government was permitted to ask leading questions.

[00:16:36] Speaker 02:
It was two questions.

[00:16:37] Speaker 02:
It was a series of questions, three questions.

[00:16:40] Speaker 02:
Did you go to the police when they threatened you?

[00:16:42] Speaker 02:
No.

[00:16:43] Speaker 02:
Why not?

[00:16:44] Speaker 02:
Why not?

[00:16:45] Speaker 02:
Because we believed that the police would tell them that we went to make a report.

[00:16:48] Speaker 02:
Do you believe that that would anger them that you went to the police?

[00:16:52] Speaker 02:
Yes.

[00:16:53] Speaker 02:
Because the police could potentially interfere with their threats or harm?

[00:16:56] Speaker 02:
Yes.

[00:16:57] Speaker 02:
After the government asked that question, petitioners council had the opportunity to redirect and ask any other questions, and council did not.

[00:17:05] Speaker 02:
Council had the opportunity to further elaborate or explain if it was not consistent with the record,

[00:17:10] Speaker 00:
Was there anything in the record consistent with that question?

[00:17:16] Speaker 00:
The second question about whether, the question was whether she would anger the gangs if she went to the police because the police, it was a long question, but because the police could potentially interfere with their threats or harm.

[00:17:32] Speaker 00:
That was the question put to her.

[00:17:34] Speaker 00:
And she said yes.

[00:17:35] Speaker 00:
Was there anything else in the record where she made that assertion?

[00:17:39] Speaker 00:
No, Your Honor.

[00:17:40] Speaker 02:
But before this court, before these courts can't standard review substantial evidence, and her pointing to one incident in the record does not compel reversal of the... Well, she's suggesting there's a lot of things that weren't considered.

[00:17:56] Speaker 00:
So if that's true, if there were matters in the record that were not considered, perhaps that might have made a difference on this somewhat questionable credibility finding.

[00:18:08] Speaker 00:
It wasn't credibility-finding, Your Honor?

[00:18:10] Speaker 00:
Yes, it was.

[00:18:11] Speaker 00:
It was absolutely credibility-finding.

[00:18:13] Speaker 00:
The BIA said she gave two different answers, so we don't find her credible.

[00:18:18] Speaker 00:
The BIA... Basically.

[00:18:20] Speaker 02:
No, the BIA accepted the immigration judge's credibility... Right.

[00:18:25] Speaker 02:
... but found that her testimony was not persuasive or specific to meet her burden of proof.

[00:18:30] Speaker 02:
And that's under McDi.

[00:18:32] Speaker 02:
Credible testimony does not mean truth or does not mean legal victory.

[00:18:37] Speaker 02:
And that's the situation here where the immigration judge and the board consider the totality of the circumstances.

[00:18:43] Speaker 02:
And I say that because the immigration judge specifically said in his decision, I've considered all the evidence of record, regardless of whether.

[00:18:49] Speaker 02:
I'm stating them in this decision.

[00:18:52] Speaker 02:
Before the immigration judge rendered his decision, he had a thorough dialogue with the parties regarding the evidence in the record, including responding to DHS's objections to three pieces of the evidence.

[00:19:04] Speaker 02:
And the board on appeal had to consider the totality, did consider the totality of the evidence because the board specifically rejected Petitioner's arguments regarding the evidence in the record.

[00:19:21] Speaker 00:
Thank you.

[00:19:22] Speaker 00:
Could you address some of the corroborating evidence that Petitioner says was not considered about

[00:19:30] Speaker 00:
The number of people, the percentage of people who are afraid to file reports, 93%.

[00:19:35] Speaker 00:
And the husband's affidavit?

[00:19:40] Speaker 02:
Yes, Your Honor.

[00:19:42] Speaker 02:
But the agency did consider that evidence, and it was considered in the totality of the circumstances.

[00:19:47] Speaker 02:
How do we know that?

[00:19:48] Speaker 02:
Because the agency explicitly said so.

[00:19:50] Speaker 02:
And this court assumes that the agency did its job, unless there is other indication of the record.

[00:19:56] Speaker 02:
Besides the immigration judge, the agency explicitly stating so, we have evidence in the record that shows that substantial evidence supports the agency's decision.

[00:20:11] Speaker 02:
And that's including that the agency conserved petitioner's testimony about why she did not contact the police, her subjective belief that the police would report to the gang, or her subjective belief that there was retaliation.

[00:20:25] Speaker 02:
But then we also have other evidence on the record that, Your Honor, Petitioner points to global evidence about Mexico and corruption.

[00:20:33] Speaker 02:
But then if we look at the evidence in Petitioner's case, including that when Fernando was murdered, there was police presence.

[00:20:42] Speaker 02:
There was at least three agencies that appeared at the scene of the crime that investigated.

[00:20:47] Speaker 02:
For Felipe, for the cousin Felipe Azuna's murder, there was an investigative order about

[00:20:53] Speaker 02:
reports, interview, documentations about what happened.

[00:20:56] Speaker 02:
We also know from the record that Petitioner contacted the police when her sister, she testified that when there was a dead body and her sister suspected that it was Fernando, she testified that she called the police and asked about it.

[00:21:14] Speaker 02:
Given Petitioner's,

[00:21:20] Speaker 02:
The direct, given that there's lack of direct evidence here that shows that the police in Guerrero would, that she contacted the police, we don't know whether the police would have, like what the police would have done, how the police could have reacted, or whether the police, the government would have helped.

[00:21:37] Speaker 02:
And because that's what we have for direct evidence, petitioner can't, could not before the agency establish that the government was either unable or unwilling to protect her.

[00:21:48] Speaker 02:
And then we looked at the more general country condition evidence, which the agency did consider.

[00:21:53] Speaker 02:
It was that the Mexican government had various efforts, implemented various efforts of corruption reform, including turning the previous corruption agency from agency-led, state-led, to a civilian board and enacting constitutions and creating other reforms

[00:22:14] Speaker 02:
to give this agency autonomy and the ability to fight corruption.

[00:22:20] Speaker 02:
Then we also have all the evidence about gang violence and the Mexican government attempting to protect its citizens from gang violence, drug cartels.

[00:22:31] Speaker 04:
Apparently, they're not doing it at all.

[00:22:34] Speaker 02:
They are doing it.

[00:22:35] Speaker 04:
I mean, just the other day, the three surfers were killed, their carts stolen.

[00:22:41] Speaker 04:
They were dumped in a well, and the police couldn't do a thing about it.

[00:22:44] Speaker 02:
The standard is not perfect protection, Your Honor.

[00:22:49] Speaker 02:
Certainly it's not.

[00:22:50] Speaker 02:
It's not.

[00:22:51] Speaker 02:
It's government, whether they're willing and able.

[00:22:53] Speaker 02:
And they are trying to make efforts.

[00:22:55] Speaker 02:
And that's where the anti-corruption, there's an interesting board's article in the record that talks about how Mexico has tried various corruption reforms.

[00:23:08] Speaker 02:
but it didn't work, so they engaged civil society.

[00:23:11] Speaker 02:
Professors came in and scholars came in and came up with these new ways to show, okay, that didn't work in the past, how do we try something else?

[00:23:19] Speaker 02:
That is the Mexican government's efforts and that shows its ability and willingness.

[00:23:25] Speaker 04:
But if those efforts are totally useless, I mean, I read just the other day that in the elections coming up,

[00:23:33] Speaker 04:
the gangs are killing off the people that are running against their friends.

[00:23:39] Speaker 02:
Yes, Your Honor.

[00:23:40] Speaker 04:
They're really doing a good job of cleaning up the whole situation.

[00:23:45] Speaker 02:
Yes, they are trying, Your Honor.

[00:23:47] Speaker 02:
And the evidence in this case is showing that the government's effort, they are making efforts.

[00:23:52] Speaker 02:
And the evidence in this case doesn't show that the petition hasn't shown that the government in Guerrero, the police in Guerrero, would be unable or unwilling to help her.

[00:24:03] Speaker 02:
She called the police when they found the missing body.

[00:24:06] Speaker 02:
The police showed up when they found Fernando's body.

[00:24:08] Speaker 02:
They ordered an investigation for Felipa.

[00:24:12] Speaker 02:
She has a subjective belief, but her subjective belief that the government and the police would not be able to help her is not sufficient for her to meet her burden of proof.

[00:24:21] Speaker 02:
And before this court doesn't compel reversal.

[00:24:24] Speaker 04:
What does she need to show, in your opinion?

[00:24:28] Speaker 02:
Yes, Your Honor.

[00:24:29] Speaker 02:
There's a variety of things that she could have shown.

[00:24:32] Speaker 02:
She could have demonstrated.

[00:24:34] Speaker 04:
She could have been killed.

[00:24:36] Speaker 04:
That would show right away.

[00:24:38] Speaker 02:
No, Your Honor.

[00:24:41] Speaker 02:
She could have, when Petitioner raised several points about her claim that she would be killed if she had reported to the police, and then when she was asked specific questions about, well, can you tell me who these people are or names or addresses?

[00:24:59] Speaker 02:
She wasn't able to provide the names of the people.

[00:25:02] Speaker 02:
She said, I don't know their names or their addresses, just people I've heard about.

[00:25:06] Speaker 02:
But that's her subjective belief.

[00:25:08] Speaker 02:
We don't have evidence to show that the police in Guerrero would not have done something or would not have helped.

[00:25:16] Speaker 02:
She could have had fact-specific testimony about her claim, but she didn't present that evidence.

[00:25:25] Speaker 02:
If the court looks at matter of essay, matter of CGT, those petitioners, I understand the facts of those cases are different.

[00:25:34] Speaker 00:
Well, I do want to talk about CGT because you just told me that it was enough in making this very specific fact inquiry about the reasonableness of her not reporting to the police.

[00:25:48] Speaker 00:
You told me it was enough for the BIA to simply say, we've considered the record.

[00:25:53] Speaker 00:
They don't have to specify that they've considered, they don't have to talk about the corroborating evidence that she presented or anything else, but yet in this case, which is factually different, but the BIA said very specifically when they remanded to consider the reasonableness of the failure to seek assistance from authorities,

[00:26:13] Speaker 00:
that they were to consider all evidence honoring man.

[00:26:15] Speaker 00:
And this analysis should include the respondent's testimony, available corroborating evidence, and country condition reports.

[00:26:23] Speaker 00:
They don't say it's enough to say, oh, by the way, we considered everything, which is what you're telling me today.

[00:26:30] Speaker 00:
No, Your Honor.

[00:26:31] Speaker 00:
Aren't they saying here, when emphasizing how fact-specific this inquiry is, that you've got to at least address

[00:26:41] Speaker 00:
some of the circumstances the petitioner put into the record as corroborating.

[00:26:46] Speaker 02:
And I can see any of that here in the IJ's analysis or in... Well, Your Honor, the immigration judge and the board, this court's review is of both decisions, because the immigration judge... Understand.

[00:27:01] Speaker 02:
This court's... And because it's not only that.

[00:27:04] Speaker 02:
One of the indications that this court can determine, one of the indications that the agency considered all the evidence is yes, they explicitly said so.

[00:27:12] Speaker 02:
But then also, it's because they- That's not what they suggested here.

[00:27:16] Speaker 00:
They said on remand, this is a very specific fact inquiry, and you basically need to show your work.

[00:27:22] Speaker 00:
Yes, and the agency did show his work when- How?

[00:27:25] Speaker 00:
The immigration judge- With respect to the corroborating evidence that petitioner pointed to.

[00:27:30] Speaker 02:
The immigration judge, they recognized the evidence regarding the country conditions.

[00:27:34] Speaker 02:
They did.

[00:27:35] Speaker 00:
Well, what about the other corroborating evidence she pointed to about... The violence in Mexico.

[00:27:41] Speaker 02:
They did consider the violence in Mexico.

[00:27:42] Speaker 00:
What about her own personal family and the violence and the fear that she had based on the murders in her own family?

[00:27:49] Speaker 00:
That was considered... And what about the 93% statistic of why, of the number of people that don't report?

[00:27:56] Speaker 00:
None of that was mentioned.

[00:27:57] Speaker 00:
It wasn't mentioned in your article.

[00:27:59] Speaker 00:
It was general country...

[00:28:00] Speaker 02:
Yes, it wasn't mentioned, but it is considered as part of the totality of the circumstances.

[00:28:04] Speaker 00:
What about her personal circumstances?

[00:28:06] Speaker 00:
You mentioned that that's what they considered, personal circumstances as well as country conditions.

[00:28:11] Speaker 00:
What personal circumstances did they consider?

[00:28:14] Speaker 00:
Whether she reported it to the police.

[00:28:15] Speaker 00:
But that's the very fact question that we're talking about.

[00:28:19] Speaker 00:
That is the question.

[00:28:21] Speaker 00:
What did they consider in the totality of the circumstances that went to whether she reported to the police?

[00:28:29] Speaker 00:
Her testimony.

[00:28:30] Speaker 00:
Well, yes, her testimony.

[00:28:32] Speaker 00:
Right, which we discussed.

[00:28:33] Speaker 00:
Yes, her testimony.

[00:28:34] Speaker 00:
The only thing they said about her testimony is that she had a one-word answer that was inconsistent with her testimony.

[00:28:42] Speaker 00:
That's the only thing I saw.

[00:28:43] Speaker 00:
May I, Your Honor?

[00:28:44] Speaker 00:
Please, yes.

[00:28:46] Speaker 02:
The agency did consider all of her testimony, considered all the corroborating evidence.

[00:28:50] Speaker 02:
It's not.

[00:28:52] Speaker 02:
The agency's decision explicitly responds to petitioners' arguments about those arguments,

[00:28:58] Speaker 02:
about her testimony showing that it considered the evidence and showing that it considered what her personal circumstances in this case.

[00:29:10] Speaker 03:
Thank you.

[00:29:13] Speaker 03:
Thank you, counsel.

[00:29:18] Speaker 01:
Had Misabi next filed a police report, he would have been killed.

[00:29:23] Speaker 01:
the way her brother Fernando was killed.

[00:29:25] Speaker 03:
Well wait, why is that so?

[00:29:27] Speaker 03:
I thought they were after him as a drug dealer.

[00:29:29] Speaker 01:
Fernando was killed meters from the prosecutor's office, which shows a complete disregard for the authorities.

[00:29:39] Speaker 01:
In fact,

[00:29:41] Speaker 00:
Had she filed a police report, she would have been killed.

[00:29:43] Speaker 00:
Well, that's not what you have to prove anyway.

[00:29:45] Speaker 00:
You don't have to prove she would have been killed.

[00:29:47] Speaker 00:
She only has to have a reasonable fear of that.

[00:29:51] Speaker 00:
Yes.

[00:29:51] Speaker 01:
That's all you need to show.

[00:29:52] Speaker 01:
And the matter of CGT, you need to prove not only considering the totality of the circumstances, the reasonableness, why the police report, finding a police report was more dangerous or futile than it was in this case.

[00:30:07] Speaker 01:
Had she filed a police report, it wouldn't have been futile.

[00:30:09] Speaker 01:
She would have put her life in danger.

[00:30:12] Speaker 01:
Now, in this case, what we are asking this court is to remand the case to the BIA for them to apply their own legal precedent, their own legal standard.

[00:30:23] Speaker 01:
Consider this is a fact-intensive analysis.

[00:30:26] Speaker 01:
Consider the totality of the circumstances, corroborating evidence.

[00:30:30] Speaker 01:
Her testimony has been consistent the entire time.

[00:30:34] Speaker 01:
Country reports, which is we have a wealth of evidence to support that.

[00:30:40] Speaker 01:
Mexico was not only unable, but also unwilling to protect her.

[00:30:45] Speaker 01:
For these reasons, I ask this court to remand this case, adopt matter of CGT, follow Rosales-Justo.

[00:30:52] Speaker 01:
Multiple circuits have already ruled on the unable or unwilling analysis.

[00:30:57] Speaker 01:
And a police report should not be required to meet that burden.

[00:31:02] Speaker 01:
And if you don't have further questions, I'd like to thank you.

[00:31:08] Speaker 03:
Thank you, counsel, for your arguments.

[00:31:09] Speaker 03:
The case is submitted and counsel are excused.