[00:00:00] Speaker 04: 23-9588, Gercciani versus Garland. [00:00:06] Speaker 04: Counsel for the petitioner, if you would approach and make your appearance and proceed, please. [00:00:19] Speaker 00: Thank you, Your Honor. [00:00:20] Speaker 00: And may it please the court, Griffin Rubin on behalf of petitioner Timory Gercciani. [00:00:25] Speaker 00: Mr. Gercciani has a strong case for asylum [00:00:28] Speaker 00: that the attorney general should grant his discretion. [00:00:30] Speaker 00: But that issue is not before the court today. [00:00:34] Speaker 00: The court question presented is whether Mr. Gercciani is eligible for asylum. [00:00:39] Speaker 00: Mr. Gercciani is a dual citizen of the countries of Georgia and Russia. [00:00:43] Speaker 00: He entered the United States without inspection, seeking refuge from the reach of Vladimir Putin's totalitarian regime, as Mr. Gercciani refused to be conscripted to proliferate human rights abuses against Ukraine on Russia's behalf. [00:00:57] Speaker 00: Without considering Mr. Gercciani's asylum eligibility as to Russia, the BIA found him ineligible because he did not demonstrate his asylum eligibility as to Georgia. [00:01:07] Speaker 00: The BIA's determination rested solely on its own precedent. [00:01:11] Speaker 00: But the agency's precedent is an incorrect interpretation of Congress's clear and unambiguous definition of the word refugee in Title VIII, Section 1101A42A. [00:01:23] Speaker 00: As the Second Circuit confirmed two years ago in Zepeda Lopez, [00:01:27] Speaker 00: The INA only requires Mr. Gercciani to demonstrate his asylum eligibility in Georgia or Russia. [00:01:35] Speaker 00: By requiring him to demonstrate asylum eligibility in Georgia and Russia, the BIA committed reversible legal error. [00:01:42] Speaker 04: That's an interesting issue. [00:01:44] Speaker 04: I enjoyed reading the Second Circuit decision. [00:01:47] Speaker 04: But my threshold question is, why do we get to any of that? [00:01:51] Speaker 04: I mean, until the supplemental reply [00:01:57] Speaker 04: You said nothing about the government's continual beating on the drum that you have waived all of those merits arguments. [00:02:06] Speaker 04: Why isn't that a problem? [00:02:08] Speaker 04: I mean, it seems to me that I don't see any reason why you haven't waived them. [00:02:12] Speaker 04: So explain to me, number one, explain to me why that's wrong. [00:02:16] Speaker 04: Number two, explain to me, even if you make a powerful argument now, why should I even care since you have not done anything up until the supplemental reprieve brief? [00:02:27] Speaker 00: Yes, thank you, Your Honor. [00:02:30] Speaker 00: The waiver argument that the government makes, read closely, pertains almost exclusively to the withholding of removal argument. [00:02:37] Speaker 00: And respectfully to the government, it's a sleight of hand, a good one at that. [00:02:42] Speaker 00: But I want to point out what the argument they make is. [00:02:45] Speaker 00: At least as I read the argument, it appears to be, first, there are particular matters within the withholding of removal claim that have been waived. [00:02:53] Speaker 00: And of course, we contest this premise. [00:02:57] Speaker 00: Because of those particular waivers, the withholding of removal claim fails. [00:03:02] Speaker 00: And therefore, according to the government's logic, the asylum claim must fall as well. [00:03:07] Speaker 00: But respectfully, Your Honors, even if I assume without conceding that the withholding removal claim has been defeated, that does not speak to the asylum claim. [00:03:17] Speaker 04: And why is that true? [00:03:19] Speaker 04: I mean, conventional wisdom is if you can't make out withholding of removal, you can't make out asylum. [00:03:25] Speaker 04: And you noted your contesting of their arguments about waiver. [00:03:29] Speaker 04: Well, you didn't contest them. [00:03:30] Speaker 04: You didn't contest them until your supplemental reply brief, which by our precedent is too late. [00:03:35] Speaker 04: But beyond that, go ahead and explain to me why the logic, this last point, that it eliminates your asylum claim, why doesn't that work? [00:03:44] Speaker 00: Yes, Your Honor. [00:03:45] Speaker 00: So to my understanding from the reading of this circuit's precedent, it's actually the other way around. [00:03:52] Speaker 00: A failure to demonstrate an asylum claim [00:03:55] Speaker 00: therefore precludes a withholding of removal claim. [00:03:57] Speaker 00: And that makes sense given the differing burdens on persecution. [00:04:00] Speaker 04: All right. [00:04:01] Speaker 04: Give me the case you're thinking of. [00:04:02] Speaker 04: Maybe I missed that day when I was looking at these immigration cases, because I'm pretty sure it's the reverse. [00:04:08] Speaker 04: Go ahead. [00:04:09] Speaker 00: Of course. [00:04:10] Speaker 00: And the way I phrase it is this. [00:04:11] Speaker 00: I believe the petitioner's name was Garcia something, and it's from 2022. [00:04:17] Speaker 00: But I'll direct the court to the Supreme Court's decision in INSP Cardozo-Fonseca in 1987. [00:04:22] Speaker 00: in which the Supreme Court clarified that the standard for withholding of removal differs from the standing of asylum on persecution. [00:04:30] Speaker 01: And what is it? [00:04:31] Speaker 01: It's preponderance, right? [00:04:33] Speaker 00: For withholding of removal, it's clear probability. [00:04:35] Speaker 00: And for asylum, it is just a past persecution or well-founded fear. [00:04:42] Speaker 00: And in Cardoza-Fonseca, the majority gave an example, which has been reiterated in that Garcia case in 2022, that all there needs to be is a 10% objective [00:04:52] Speaker 00: fear of the persecution that either happened or upon return to that country, just 10%. [00:04:59] Speaker 00: And so because it's a much lower threshold, that's why the asylum claim is not precluded by the withholding of removal claim. [00:05:05] Speaker 01: Where did you make that argument in the briefing, if you did, that the differing standards would yield in your favor? [00:05:13] Speaker 00: I believe it was addressed in supplemental briefing, Your Honor. [00:05:15] Speaker 00: And to the best of my memory, I wrote the brief nine months ago and have left the job and come back to it since. [00:05:22] Speaker 00: I believe it was covered in a part, I believe, somewhere within the pages 9 to 17 of the blue brief, I believe, Your Honors. [00:05:33] Speaker 00: To make the point more eloquently, if I may borrow Judge Wilkinson's words from the Fourth Circuit, this is from a case about the First Amendment and intermediate versus strict scrutiny, but I've adapted it to apply here. [00:05:44] Speaker 00: Since the persecution standard for asylum is less onerous than that of withholding of removal, [00:05:49] Speaker 00: An application failing the asylum standard would also fail the withholding of removal standard. [00:05:53] Speaker 00: After all, if you can't ski a blue run successfully, you obviously can't tackle a double black diamond. [00:06:00] Speaker 00: Yet failing to navigate a treacherous course does not imply an inability to handle a gentler slope. [00:06:06] Speaker 00: Likewise, that an application fails the withholding of removal standard means little for how it would fare under the more lenient asylum standard. [00:06:13] Speaker 00: And that's what I'd submit to the court on that point. [00:06:15] Speaker 04: The more lenient asylum standard [00:06:19] Speaker 04: Okay, if the asylum standard is more lenient, then why would it not be the case that if you cannot satisfy the higher standard, you cannot satisfy the lower one? [00:06:33] Speaker 00: Sure. [00:06:33] Speaker 00: So, for instance, in the First Amendment context, just because a law that's challenged on the First Amendment does not satisfy strict scrutiny does not necessarily mean it fails intermediate scrutiny. [00:06:42] Speaker 00: Because it's more lenient, but were it to fail intermediate scrutiny, then it certainly cannot meet strict scrutiny. [00:06:48] Speaker 04: All right, let's get out of the First Amendment context. [00:06:50] Speaker 04: Let me ask you this, and let's play it out for a second. [00:06:53] Speaker 04: Let's assume for the moment that you are still in the game as it relates to the asylum argument. [00:07:00] Speaker 04: In other words, you indicated you're not conceding. [00:07:05] Speaker 04: But let's assume that the withholding removal argument is persuasive as it relates to it being off the table. [00:07:12] Speaker 04: As it relates to the asylum argument, [00:07:15] Speaker 04: Then would your premise be that you're entitled to relief because on the plain reading of the statute, it contemplates one country being enough? [00:07:28] Speaker 04: In other words, the Second Circuit's analysis. [00:07:31] Speaker 00: Yes, Your Honor, with one caveat. [00:07:33] Speaker 00: It's not that my client would be entitled to asylum, because that would be the second step. [00:07:37] Speaker 03: But there would have been error. [00:07:39] Speaker 00: But there would have been error and reversible legal error at that. [00:07:41] Speaker 03: That would be new 10th Circuit law. [00:07:44] Speaker 00: I believe so, Your Honor. [00:07:46] Speaker 00: And that would comport with the only published circuit case on this issue. [00:07:52] Speaker 03: I'm just confused from a public policy point of view on that. [00:07:56] Speaker 03: If you have dual citizenship outside the US, and there's ways of preference to sending people back to their native country of citizenship if you can, why wouldn't a dual citizenship [00:08:12] Speaker 03: require that you prove you couldn't go back to either country. [00:08:15] Speaker 03: Because even though if you had just one country, we do require that you couldn't go back to anywhere in that country. [00:08:22] Speaker 03: That is, you may have lived in the capital, but if you could go back in the rural area, it's OK. [00:08:28] Speaker 03: Given that strong preference, why doesn't that same analogy apply when you have a dual citizenship that's not US? [00:08:35] Speaker 00: Sure, Your Honor. [00:08:36] Speaker 00: First, I think, and I may be wrong, but I believe part of what you're talking about is the withholding of a removal standard as opposed to the asylum standard. [00:08:44] Speaker 00: And I just want to make clear that on this point, I'm only making this argument as to asylum. [00:08:47] Speaker 03: OK, you're right. [00:08:47] Speaker 03: I was switching to withholding. [00:08:50] Speaker 03: So do you want to wait and discuss that when you address withholding? [00:08:53] Speaker 03: It's your call. [00:08:54] Speaker 00: Of course. [00:08:55] Speaker 00: And when it comes to the policy argument, [00:08:58] Speaker 00: The Supreme Court, of course, has been clear that no matter how strong a policy argument, it cannot overcome the plain language of the text, which is what we're dealing with here. [00:09:07] Speaker 00: The Second Circuit in Zepeda Lopez very clearly delineated why the text demonstrates only one country is necessary for asylum eligibility when you're a dual citizen. [00:09:18] Speaker 00: But if we want to specifically go into the policy matter, I think there's a professor at UConn who has been the primary author on this issue. [00:09:26] Speaker 00: And the main example he uses is the case of Soviet Jews from back in the day. [00:09:32] Speaker 00: Soviet Jews were able, technically, to claim their right of return to Israel. [00:09:39] Speaker 00: But they also wanted to potentially flee to the United States to escape political and religious persecution. [00:09:46] Speaker 00: That was considered when the definition of refugee was adopted in 1980, which is modeled on the UN Convention's definition of refugee [00:09:56] Speaker 00: We're in conformance with that definition, but the United States Code, through Congress's enactment, provides even further protection. [00:10:03] Speaker 00: So that's why all refugees under the UN Convention's definition would be refugees under the US Code, under 1101A42A. [00:10:12] Speaker 00: But it cannot be said in reverse. [00:10:14] Speaker 00: Not all refugees under the United States Code would constitute refugees under the UN Convention. [00:10:21] Speaker 04: Does they explicitly define it as two countries? [00:10:24] Speaker 04: I mean, whatever country you're a citizen of, right? [00:10:27] Speaker 04: You can't, you have to establish asylum standard as it relates to both those countries. [00:10:32] Speaker 00: Under the U.N. [00:10:33] Speaker 00: Convention definition? [00:10:33] Speaker 00: Yes, under the U.N. [00:10:35] Speaker 00: Convention. [00:10:35] Speaker 00: And that's a distinct, you know, that's something that the court in Zepeda Lopez discussed. [00:10:40] Speaker 00: And if I may, with just a little bit of time left, I know that there's been a sea change in administrative law since June when Loper-Bright came down. [00:10:50] Speaker 00: But I wanted to, of course, highlight for the court what hasn't changed. [00:10:53] Speaker 00: What has not changed is, first, the text of the statute at issue. [00:10:57] Speaker 00: And second, under the Chevron regime or under the forthcoming Loper-Bright regime, [00:11:03] Speaker 00: The government has not articulated why we move past the first step. [00:11:07] Speaker 00: And that is to examine the plain text of the statute and determine whether there are any ambiguities. [00:11:14] Speaker 00: They have not offered any compelling or substantive argument other than it could be. [00:11:19] Speaker 00: But the evidence strongly weighs in favor of the way that Zepeda-Lopez came out and as we have argued in our briefs. [00:11:27] Speaker 00: But furthermore, in their supplemental response brief, the government turns to Skidmore. [00:11:32] Speaker 00: And they parse some language from Loper-Brite and claim that Skidmore is just going to replace Chevron, effectively. [00:11:40] Speaker 00: And with due respect to my friend on the other side, Skidmore is not going to exhume Chevron. [00:11:48] Speaker 00: The one case that they cite from the 10th Circuit, which I believe is the McGraw case on page 5 of their supplemental brief, [00:11:54] Speaker 00: The government cites that case to say, well, Skidmore applies even when you're interpreting statutes irrespective of ambiguity or lack of clarity. [00:12:03] Speaker 00: But oddly enough, in a forthcoming piece by Professor Kristin Hickman in the Duke Law Journal Online, she actually cited that case to suggest the exact opposite, to say that [00:12:15] Speaker 00: this circuit has potentially already spoken and said, there must be an ambiguity in the authority being interpreted to invoke Skidmore at all. [00:12:24] Speaker 00: And even if that weren't the case, by Professor Hickman's count, at least three circuits have already explicitly stated that Skidmore only applies in the presence of ambiguity. [00:12:36] Speaker 00: And that would be the second, third, and eighth. [00:12:38] Speaker 00: And then at least four circuits [00:12:40] Speaker 00: have traditionally and conventionally applied Skidmore only in certain situations in which there is ambiguity. [00:12:46] Speaker 00: And so that would be the Fifth, the Ninth, the Federal Circuit, and the DC Circuit. [00:12:52] Speaker 00: Last but not least, my short remaining time, just to touch on the withholding of removal claim. [00:12:57] Speaker 00: Again, I think we've talked about waiver, and we are where we are on that. [00:13:02] Speaker 01: What is the finding that you concede is waived, or if you do concede is waived, for the withholding? [00:13:10] Speaker 00: Candidly, Your Honor, I don't see anything as waived, at least as to a finding of effect. [00:13:14] Speaker 01: How is nexus preserved? [00:13:15] Speaker 00: So nexus is preserved because this is a very odd and frankly not very well developed area of jurisprudence. [00:13:23] Speaker 00: The inhuman conduct exception to conscription, in this matter it's been stated as a part of a particularized social group. [00:13:33] Speaker 01: In other courts, it has gone to other statutorily protected factors, such as- Well, your argument sounds like a basis for destabilizing nexus, but you didn't make the argument. [00:13:46] Speaker 00: I think with respect, Your Honor, I believe it's on page 18 or 19 of the blue brief. [00:13:52] Speaker 00: I can recall pointing at least to a BIA precedent that explicitly states, in rare instances, the inhuman conduct exception to conscription [00:14:03] Speaker 00: It's kind of unclear whether it's tethered to all five, tethered to none, stands on its own. [00:14:09] Speaker 00: I'm not quite sure. [00:14:11] Speaker 00: But nevertheless, the BIA itself has said that the invocation of this inhuman conduct exception in the rare instances in which it will apply very well covers the nexus issue that we have here. [00:14:23] Speaker 03: That is such a broad issue. [00:14:27] Speaker 03: I must say, I kind of worry that [00:14:31] Speaker 03: that that could just be used to attack foreign policy of every country on a whole lot of things. [00:14:40] Speaker 03: Unless there's a good way to cabin that, I'm apprehensive about expanding it. [00:14:47] Speaker 00: And certainly, Your Honor, and I don't want to suggest that I have any 10th Circuit case law that says what the BIA has said on that front. [00:14:56] Speaker 00: I think the BIA is probably the right place for that to occur, since it's the attorney general. [00:15:02] Speaker 00: The attorney general speaks for the president on these matters under 8 USC 1103. [00:15:08] Speaker 00: But I see I'm out of time. [00:15:09] Speaker 00: Unless the question. [00:15:10] Speaker 04: Now, continue, because I do have a question. [00:15:12] Speaker 04: But on the inhumane conduct, irrespective of where it legally fits into the picture, [00:15:21] Speaker 04: Isn't it the case that if you didn't challenge the underlying BIA determinations, you know, like the fact that he was not persecuted in Russia, the fact that he, oh, more to the point, that he didn't show that anybody would kidnap him in Georgia and take him to Russia. [00:15:39] Speaker 04: Nobody, he didn't show that Russia would force him to join the Russian military. [00:15:45] Speaker 04: He didn't show all of these things. [00:15:47] Speaker 04: And if he didn't show all of these things, irrespective of whether the BIA should have directly addressed the inhumane conduct allegation, isn't any error of that regard harmless? [00:15:59] Speaker 04: Because you didn't address the underlying factual findings that would gut any argument for inhumane conduct. [00:16:08] Speaker 00: Well, so, Your Honor, understandably, this court's precedent says that substantial evidence is what this court applies when it comes to things like, do a certain set of facts demonstrate persecution or anything like that? [00:16:20] Speaker 00: And that's over a vigorous circuit split. [00:16:23] Speaker 00: And the BIA itself reviews those determinations de novo. [00:16:26] Speaker 00: But this court, understandably, and current under this precedent, does so under substantial evidence. [00:16:31] Speaker 00: But that, respectfully, is not what's at issue. [00:16:35] Speaker 00: There's a distinction between reviewing whether certain facts give rise to the findings of facts made by the BIA or confirmed by the BIA, as opposed to a wholesale application of an incorrect legal standard from the outset. [00:16:47] Speaker 00: So that's the difference I would say. [00:16:49] Speaker 04: And by wholesale incorrect legal standards, my understanding of what you're saying is, well, look, the BIA did not take into consideration, didn't explicitly mention the inhumane conduct, exception, or wherever it fits. [00:17:04] Speaker 04: That's your contention, right? [00:17:05] Speaker 00: In part, yes, Your Honor. [00:17:07] Speaker 04: OK. [00:17:07] Speaker 04: BIA didn't mention it. [00:17:09] Speaker 04: That's error. [00:17:10] Speaker 04: I guess what I'm saying is, if the findings that the BIA did make [00:17:16] Speaker 04: If they stand unchallenged, then any error in not uttering the words inhumane conduct, how can that possibly be grounds for granting relief? [00:17:30] Speaker 04: Because there would be no harm. [00:17:32] Speaker 00: Sure. [00:17:33] Speaker 00: And so I just want to make sure that we're centered in on the withholding of removal claim only on this point. [00:17:37] Speaker 00: Yes, sir. [00:17:38] Speaker 00: And as to that, what I would point the court to, I believe it's cited [00:17:43] Speaker 00: Again, I'm going to say somewhere between pages 17 and 21 of the blue brief, where the Third Circuit in the Cabinda case talked about how this inhuman conduct exception goes both to past persecution and future persecution. [00:17:57] Speaker 00: And candidly, Your Honors, this inhuman conduct exception was not some footnote that was dropped just very briefly in our brief before the BIA. [00:18:06] Speaker 04: That's not my point. [00:18:07] Speaker 04: My point is, even if I assume that the BIA erred, why isn't that harmless error? [00:18:12] Speaker 04: Because all of the findings that would fatally undermine any claim of inhumane conduct [00:18:18] Speaker 04: have not been challenged. [00:18:20] Speaker 04: In other words, if you have not challenged that he wasn't forced to fight at all. [00:18:25] Speaker 04: In other words, you didn't challenge that their claim that you didn't show he was forced to fight. [00:18:30] Speaker 04: If that is unchallenged, then a force you are, you didn't challenge that he was forced to fight inhumanely, right? [00:18:38] Speaker 00: But yes, but being forced to fight is not what is necessarily inherent in the conscription standard. [00:18:45] Speaker 00: It can be about threats. [00:18:46] Speaker 04: You didn't challenge the conscription argument, right? [00:18:50] Speaker 00: I believe we did, Your Honor. [00:18:51] Speaker 00: But again, pages 17 through 21, I think we did challenge the BIA's understanding of conscription. [00:18:58] Speaker 00: And like in Cabinda, Cabinda says, [00:19:00] Speaker 00: that this exception goes to both past persecution and for future persecution. [00:19:04] Speaker 00: So by failing to consider this exception, the entire persecution analysis for the withholding of a removal claim has been tainted. [00:19:11] Speaker 04: I have one more question. [00:19:14] Speaker 04: Oh, yes, please. [00:19:14] Speaker 01: Go ahead. [00:19:15] Speaker 01: I wanted to return to this withholding an asylum or different standards position, assuming it's in the case, because I didn't see you brief it, but I will return and look. [00:19:27] Speaker 01: If we read the no nexus finding from the BIA as dispositive of your withholding claim, your position is no, my asylum claim is still alive, correct? [00:19:39] Speaker 00: Correct, Your Honor. [00:19:40] Speaker 01: And then don't we have to look at the nature of the finding on Nexus to see how it plays out in the asylum context? [00:19:48] Speaker 01: And what I mean by that is it's not just that it has to be legally available. [00:19:52] Speaker 01: It has to be available on the facts. [00:19:55] Speaker 01: And the district court, I apologize, the BIA here concluded that there was no Nexus evidence at all. [00:20:02] Speaker 01: What I'm trying to ask you about is why the standards, the legal standards matter. [00:20:06] Speaker 01: when the finding is that there is no evidence, not some evidence that may satisfy a lower standard, but no evidence at all. [00:20:13] Speaker 00: Well, and candidly, I want to be clear that on this record, this is challenging because we're looking at the BIA order. [00:20:22] Speaker 00: But if we go back down to what the immigration judge did, because the immigration judge framed the asylum case, the claim for asylum as, if you read the transcript, you can see, there was no time of day given for my client to develop [00:20:37] Speaker 00: his story about asylum as to Russia. [00:20:41] Speaker 01: And so that's- The evidence would have been different? [00:20:43] Speaker 01: The nexus evidence would have been different? [00:20:44] Speaker 00: I was not counsel during the IJ hearing. [00:20:47] Speaker 00: He was pro se at the time, so I can't speak specifically to that. [00:20:51] Speaker 00: But on the record that's before this court, I would say that there is a strong possibility that had the IJ [00:20:58] Speaker 00: given due consideration under the proper legal standard for asylum, these issues, even including Nexus, would have been better fleshed out. [00:21:06] Speaker 03: Well, boy, that is a question of speculation from this record. [00:21:11] Speaker 03: That's getting us pretty deep into speculation of whether there was time on a matter which the record isn't even very clear. [00:21:20] Speaker 00: Sure, Your Honor. [00:21:21] Speaker 00: And I'm going to make the arguments that I have, respectfully. [00:21:24] Speaker 00: And on top of that, if this were any normal matter, I may not. [00:21:29] Speaker 00: But we're talking about a man's life. [00:21:31] Speaker 00: Unfortunately, my client has already been removed back to Georgia after much protestation. [00:21:35] Speaker 00: The government was ready to ship him back to Russia. [00:21:37] Speaker 00: We had to get the embassy involved. [00:21:39] Speaker 00: This is a man's life. [00:21:40] Speaker 00: And so respectfully, I'm going to make every argument that I can. [00:21:42] Speaker 03: But he's in Georgia now. [00:21:44] Speaker 00: At the moment, yes, your honor. [00:21:47] Speaker 03: OK, thank you. [00:21:48] Speaker 04: All right, thank you, counsel. [00:21:49] Speaker 03: Thank you, your honor. [00:21:51] Speaker 04: We have been very liberal with your opposing counsel, and I will take that in consideration as the argument flows with you. [00:21:59] Speaker 04: Please make your appearance and proceed. [00:22:01] Speaker 02: Good morning. [00:22:02] Speaker 02: May it please the court, Vanessa Otero, on behalf of the Attorney General. [00:22:06] Speaker 02: Your Honors, this court has one distinct path to disposing of this petition for review, and that's the application of the waiver doctrine. [00:22:13] Speaker 03: The application of what? [00:22:14] Speaker 02: The waiver doctrine. [00:22:16] Speaker 02: The board denied petitioners' claim for withholding of removal for five independent reasons. [00:22:21] Speaker 02: one of which is that he didn't show past persecution in Russia or Georgia, and that he didn't show future persecution in Georgia or Russia as well. [00:22:29] Speaker 02: Petitioner hasn't challenged any of those five independent grounds whatsoever. [00:22:33] Speaker 02: Instead, in his opening brief, he raises three arguments only, none of which this court has to address. [00:22:40] Speaker 04: And let me hit the pause button there. [00:22:43] Speaker 04: The key thing that is being asserted today [00:22:47] Speaker 04: is that irrespective of what happens with his withholding of removal arguments, his asylum claim continues on. [00:22:57] Speaker 04: That is what I want to hear your response to now, because he's saying that, you know, even though he doesn't concede it, he's saying that even if the withholding of removal goes away because of this reason of not challenging findings, that does not undermine the soundness of his asylum claim. [00:23:14] Speaker 04: And I know in your brief you said that it did, but please amplify for me why that would be the case. [00:23:23] Speaker 02: It would be the case because even if this court were to remand this matter back to the board, we already know what the board thinks about the facts of this case and how it would render a ruling on his asylum claim. [00:23:35] Speaker 02: So it said you didn't show past persecution in Russia. [00:23:39] Speaker 02: The harm you suffered didn't rise to level of persecution. [00:23:41] Speaker 02: That would be the same. [00:23:42] Speaker 02: That's the same for asylum as it is for withholding of removal. [00:23:45] Speaker 02: Those standards are not different. [00:23:47] Speaker 02: Then it said you didn't show past persecution in Russia on account of a protected ground. [00:23:52] Speaker 02: That would be the same for an asylum claim. [00:23:54] Speaker 02: The standards are no different there. [00:23:55] Speaker 02: The only difference in the standards between asylum and withholding comes to the forward-looking claim, the future persecution claim. [00:24:02] Speaker 02: Now, in this case in particular, [00:24:04] Speaker 02: The agency applied the lower standard. [00:24:06] Speaker 02: They didn't really even apply the withholding of removal standard. [00:24:09] Speaker 02: They said you didn't show an objectively reasonable fear of persecution in Georgia or Russia. [00:24:16] Speaker 02: An objectively reasonable fear standard is what's generally applied in asylum cases. [00:24:20] Speaker 02: And I think what the board and the immigration judge were doing here was just applying the lower standard as they normally do. [00:24:27] Speaker 02: They render a decision on asylum and say, okay, you haven't, you know, [00:24:31] Speaker 02: satisfied your burden under asylum, therefore you're not going to satisfy your burden under withholding only for the future persecution. [00:24:38] Speaker 02: Because if you don't show objectively reasonable fear, you're never going to show clear probability of fear. [00:24:43] Speaker 02: So our position is that it doesn't really matter if this matter goes back down to the board. [00:24:49] Speaker 02: The board's going to come to the same conclusions just in the asylum context, which is very similar to withholding a removal context. [00:24:57] Speaker 04: And help me characterize what that argument is. [00:25:03] Speaker 04: I mean, you say it doesn't really matter. [00:25:05] Speaker 04: Okay, as a practical matter, it may not matter. [00:25:07] Speaker 04: But I mean, what sort of legal construct do you put on that? [00:25:11] Speaker 04: Or do we say that it's not a matter of futility? [00:25:17] Speaker 04: Is it a question that [00:25:18] Speaker 04: that remand is not appropriate because, I mean, even if the BIA erred under asylum, any error would be harmless because he would lose anyway. [00:25:32] Speaker 04: What way does this decision write? [00:25:35] Speaker 04: I mean, what does that look like? [00:25:37] Speaker 04: It's not just it doesn't really matter. [00:25:39] Speaker 04: I don't think that makes for an eloquent line in the opinion. [00:25:42] Speaker 04: So how does this write? [00:25:44] Speaker 02: I apologize. [00:25:45] Speaker 02: I didn't mean to be flippant or anything. [00:25:46] Speaker 02: You're not. [00:25:47] Speaker 02: Go ahead, please. [00:25:48] Speaker 02: I think it is a futility argument. [00:25:51] Speaker 02: Withholding of removal in asylum are so similar, as I've said. [00:25:54] Speaker 02: So the whole purpose of remanding on petitioner's arguments and what he's presenting to the court, it would be unnecessary to the results of this petition for review. [00:26:05] Speaker 03: So you think it makes it moot, the other issue moot? [00:26:08] Speaker 03: Are you making a mootness argument? [00:26:10] Speaker 02: Mootness argument, yes. [00:26:11] Speaker 02: But also, I'd like to cite the court to Mural Vichilela, this court's precedent in which it said, [00:26:18] Speaker 02: A litigant's failure to challenge an agency finding that's an independent basis for denial of relief forecloses the success of the petition or review despite the merits of an alternative argument. [00:26:30] Speaker 01: But that's as to the withholding claim. [00:26:32] Speaker 01: If he has an independent asylum claim, I think that you need to explain, or be helpful if you could explain, [00:26:41] Speaker 01: What is it about the BIA's conclusion that is dispositive of the asylum claim? [00:26:48] Speaker 04: And that's what I'm trying to trace out. [00:26:51] Speaker 04: Would the argument be, I mean, we now talked about futility, would the argument be that, you know, he's made this discreet asylum argument, the one based upon dual nationality. [00:27:02] Speaker 04: Would the argument be, even if he did prevail on that, even if he did prevail on that, [00:27:10] Speaker 04: he would lose anyway. [00:27:12] Speaker 04: In other words, any error that the BIA made on that would be harmless because of the findings that have been unchallenged that we've been talking about. [00:27:20] Speaker 04: I'm just trying to sort it out. [00:27:21] Speaker 04: I mean, that's my best shot. [00:27:23] Speaker 04: Tell me, was that right or wrong? [00:27:25] Speaker 02: No, no, you're absolutely correct. [00:27:27] Speaker 02: What would be dispositive of asylum is the board's findings on past persecution. [00:27:31] Speaker 02: Those would be dispositive of past persecution claim from Russia. [00:27:35] Speaker 02: He didn't raise a past persecution claim from Georgia. [00:27:39] Speaker 02: So that's not relevant. [00:27:42] Speaker 02: And then the future persecution, the no objectively reasonable fear of persecution in Georgia or Russia would also be dispositive of his asylum claim. [00:27:51] Speaker 01: And is that because the evidence would be the same? [00:27:53] Speaker 01: Yes. [00:27:54] Speaker 01: Even though the standards are different? [00:27:56] Speaker 02: The standard is only different for the future persecution. [00:27:58] Speaker 02: And like I said, the board here applied the lower asylum standard when it analyzed his future persecution claim from both countries. [00:28:06] Speaker 01: Did you make that argument in your brief? [00:28:07] Speaker 01: I'm curious. [00:28:08] Speaker 01: I don't remember seeing this idea that there was sort of this threshold error about the standard. [00:28:15] Speaker 02: Oh, I don't think it's a threshold error. [00:28:17] Speaker 02: We didn't make this specific argument, but we did. [00:28:20] Speaker 01: Maybe not an error, but your reading of what the BIA did now sounds a little different than what was presented in your brief. [00:28:26] Speaker 02: Well, we analyzed it under the objectively reasonable standard in our brief. [00:28:29] Speaker 02: And we said, substantial often supports it. [00:28:31] Speaker 02: We did that as an alternative argument. [00:28:33] Speaker 02: And just looking upon it further, it made me realize, well, they actually did apply the lower standard and then came to the conclusion, well, this isn't a clear probability of future persecution. [00:28:42] Speaker 01: But if the standards are different, why is it just plainly unfair to not remand this and allow the petitioner to present evidence under the operative claim under the correct legal standard? [00:28:57] Speaker 02: Because the standards are not that different. [00:28:58] Speaker 01: Because it would be different. [00:29:00] Speaker 01: Maybe they're not that different, but they're different. [00:29:03] Speaker 01: And he was pro se before the evidence wasn't perhaps developed in the way that it needed to have been had only asylum been on the table. [00:29:11] Speaker 02: Well, his argument about the evidence not being developed, that would go to his due process claim, which he also waived. [00:29:17] Speaker 02: He's never brought that before this court. [00:29:19] Speaker 02: And he brought it up here at argument for the first time. [00:29:22] Speaker 02: Again, I'm not sure why the board disposed of it, but he never appealed that in his opening brief. [00:29:27] Speaker 02: Like I said, he only raised three different arguments. [00:29:30] Speaker 04: And you're saying the BIA applied the lower standard threshold standard that would apply for asylum anyway. [00:29:37] Speaker 04: In other words, in conducting its analysis and determining that there was no nexus, it applied that standard anyway, right? [00:29:45] Speaker 02: Well, the no nexus doesn't have to do with the objectively reasonable theory. [00:29:49] Speaker 02: Regardless, at the end of the day, its decision is saying there's just not enough evidence. [00:29:54] Speaker 02: So it doesn't really matter if you're applying objectively reasonable possibility. [00:29:58] Speaker 01: That actually matters a lot, I think. [00:30:00] Speaker 01: Not enough evidence is really different from no evidence. [00:30:03] Speaker 01: And I think for your position to be successful on this record, the BIA has to have said there's no evidence, not parsing it. [00:30:13] Speaker 01: What's your reading of the record? [00:30:15] Speaker 02: That's what it said. [00:30:15] Speaker 02: There's no evidence. [00:30:18] Speaker 01: Yes. [00:30:19] Speaker 01: So we have to read the record back categorically so that there's no room for any sort of development of the record that could potentially change the result on the asylum claim, right? [00:30:30] Speaker 02: Correct. [00:30:30] Speaker 02: There's no evidence. [00:30:31] Speaker 02: He didn't present any evidence, whether subjectively reasonable or not, of what's going to happen to him when he returns. [00:30:38] Speaker 03: Future persecution. [00:30:39] Speaker 03: When he returns where? [00:30:41] Speaker 02: Well, to Georgia or to Russia. [00:30:43] Speaker 02: And in this particular case, his overall claim is, I'm going to be kidnapped in Georgia, taken over by unknown persons that he couldn't identify. [00:30:51] Speaker 02: That's in his testimony. [00:30:52] Speaker 02: And then forced to serve. [00:30:54] Speaker 02: That's his claim. [00:30:55] Speaker 02: He didn't show any evidence of that. [00:30:57] Speaker 02: And that's what the agency found. [00:30:58] Speaker 03: I didn't see any evidence of that. [00:31:01] Speaker 03: And you're representing there is none. [00:31:03] Speaker 03: Correct. [00:31:04] Speaker 03: Of a risk of kidnapping in Georgia. [00:31:06] Speaker 03: That is, if Russia wants him bad enough, that they'll figure out a way to kidnap him. [00:31:10] Speaker 02: Correct. [00:31:11] Speaker 02: His testimony was that the IJ asked him, well, who's going to kidnap you in Georgia? [00:31:15] Speaker 02: And I think he said something along the lines of, I can't identify. [00:31:17] Speaker 02: I don't know who the people would be. [00:31:20] Speaker 02: So if he can't even satisfy the first step of the chain of events, then the rest sort of falls apart. [00:31:35] Speaker 02: If the court has any further questions? [00:31:38] Speaker 04: I do not. [00:31:39] Speaker 04: All right. [00:31:39] Speaker 04: Thank you. [00:31:40] Speaker 02: Thank you for your time. [00:31:42] Speaker 04: Case is submitted. [00:31:43] Speaker 04: Thank you for your arguments, counsel.