[00:00:01] Speaker 05:
To those of you who weren't in here before, welcome.

[00:00:04] Speaker 05:
And a continuing welcome to everybody who stuck around.

[00:00:08] Speaker 05:
We'll call the next case, 23-9605, Pinto v. Garland.

[00:00:24] Speaker 05:
Go ahead, Council.

[00:00:26] Speaker 00:
Thank you, Judge Carson, and may it please the court, Max Siegel of Paul Weiss for Petitioners.

[00:00:32] Speaker 00:
With the court's permission, I reserve up to three minutes of my time for rebuttal.

[00:00:37] Speaker 05:
OK, you're going to be the master of your time, so watch the clock, and hopefully we'll give you a chance.

[00:00:43] Speaker 00:
I will.

[00:00:44] Speaker 00:
This case involves prolonged gender-linked abuse that undisputedly rose to the level of persecution.

[00:00:51] Speaker 00:
The abuse included beatings, death threats,

[00:00:55] Speaker 00:
and an effort to burn down Petitioner's home while she was sleeping inside.

[00:00:59] Speaker 00:
Petitioner attempted to escape this relationship, including by relocating across Brazil three times but was unable to escape her persecutor.

[00:01:10] Speaker 00:
There are three straightforward independent paths to reversal.

[00:01:15] Speaker 00:
First, the BIA erred as a matter of law in requiring Ms.

[00:01:20] Speaker 00:
Pinto to provide evidence of a reference by her persecutor to her gender.

[00:01:25] Speaker 00:
in order to establish a nexus between her gender and the persecution she suffered.

[00:01:31] Speaker 00:
The government stands by this position in its briefing, arguing that, quote, Mr. Oliveira made no mention of or reference to any of Pinto's proposed protected characteristics.

[00:01:44] Speaker 00:
That's at page 17.

[00:01:46] Speaker 00:
This is wrong on the law because petitioners can and frequently must rely on circumstantial evidence, as persecutors can hardly be expected to state expressly the motives for their persecution.

[00:01:59] Speaker 05:
Well, as I read the BIA's decision, the BIA seemed to believe, not rely so much on that, but on the fact that the persecution was caused by jealousy.

[00:02:14] Speaker 00:
The BIA's decision expressly adopts the immigration judge's statement regarding reference.

[00:02:22] Speaker 00:
But with respect to jealousy, that's where the BIA made its second error in that it found one motive for persecution that it described as jealousy or personal animosity and stopped short by failing to consider another inextricably intertwined motive.

[00:02:40] Speaker 00:
namely, Ms.

[00:02:41] Speaker 00:
Pinto's gender.

[00:02:43] Speaker 05:
What if we were here and the persecution was the same kind of persecution, but it was a same-sex couple?

[00:02:50] Speaker 00:
In that event, I think there would still be a finding of nexus on the ground that the victim of the persecution was of the same gender as the persecutor.

[00:03:03] Speaker 04:
And I think that in this case, what's particularly telling... I'm sorry, counsel, to interrupt, but if that's true, then...

[00:03:11] Speaker 05:
There we go That was a real showstopper We better give you a minute where I'm gonna watch your clock here at 1152.

[00:03:36] Speaker 05:
I'm gonna give you a minute Go ahead

[00:03:40] Speaker 04:
I'll wait for this to retract.

[00:03:43] Speaker 04:
Okay, if I can find that thought.

[00:03:46] Speaker 04:
Judge Carson asked you if this scenario would be the same if it were a same-sex couple.

[00:03:52] Speaker 04:
And as I heard your answer, I thought it was, well, it's really more about sort of an intimate relationship.

[00:03:58] Speaker 04:
It doesn't matter what the gender is.

[00:03:59] Speaker 04:
But how can that be true if your argument here is that the persecution happened on account of gender?

[00:04:07] Speaker 00:
I don't think it doesn't matter what the gender is by any means.

[00:04:10] Speaker 00:
I think that in the event of a same-sex couple, a persecutor attracted to persons of his or her own sex, it would be on account of sex, just of the persecutor's own sex rather than the opposite sex.

[00:04:25] Speaker 00:
But what's distinctive here, going beyond even the genders in the relationship, is the nature of the abuse and the incidents that provoked the abuse or comments made in the course of the abuse.

[00:04:41] Speaker 02:
Go ahead.

[00:04:42] Speaker 02:
Thanks.

[00:04:44] Speaker 02:
The issue before us is nexus, right?

[00:04:48] Speaker 02:
Correct.

[00:04:48] Speaker 02:
And that's a factual determination.

[00:04:50] Speaker 02:
Correct so if we are.

[00:04:54] Speaker 02:
Unpersuaded by your matter of law arguments.

[00:04:59] Speaker 02:
The standard we're bound to is substantial evidence.

[00:05:02] Speaker 02:
And it seems that that standard understood as we're bound to uphold the BIA's determination unless any reasonable adjudicator would be compelled to conclude to the contrary.

[00:05:13] Speaker 02:
It seems like a very challenging standard for our court, for you.

[00:05:18] Speaker 02:
So how do you satisfy that standard?

[00:05:21] Speaker 00:
First, to clarify, although we are here on nexus, the failure to consider circumstantial evidence, the failure to consider mixed motives, and the failure to consider inextricably intertwined motives are legal errors that are reviewable de novo and not for substantial evidence.

[00:05:41] Speaker 00:
Nonetheless, if this court were to conduct substantial evidence review, the BIA's decision is on its face contrary to undisputed testimony that was found to be credible by the IJ.

[00:05:56] Speaker 00:
For example, the BIA, as I laid out, adopts this principle that there must be a reference to a protected characteristic.

[00:06:05] Speaker 00:
Even if that were the law, which it is not, there are such references in the record here.

[00:06:11] Speaker 00:
For example, notably, in the record at pages 134 and 135, petitioner expressly testified that the abuse she suffered escalated upon her pregnancy with another man and that she suffered death threats stalking both her and her son following that pregnancy.

[00:06:34] Speaker 00:
That's an express reference to a gender-linked characteristic.

[00:06:39] Speaker 02:
Did the BIA rely on that?

[00:06:42] Speaker 00:
The BIA did not, the BIA overlooked that, which is the critical error in its analysis.

[00:06:49] Speaker 00:
The BIA not only states an incorrect legal standard, but then misapplies that standard by overlooking evidence in the record.

[00:06:59] Speaker 00:
The BIA is not permitted to simply overlook or misconstrue evidence that is in petitioner's favor.

[00:07:06] Speaker 05:
I mean, is that unequivocally a sign of gender, though?

[00:07:10] Speaker 05:
Couldn't we look at that and say that the persecution escalated because the persecutor couldn't stand for her to be with someone else, period?

[00:07:25] Speaker 05:
That's back to the jealousy thing?

[00:07:27] Speaker 00:
Well, that's where the issue of the motives being inextricably intertwined comes in.

[00:07:33] Speaker 00:
I would point the court, for example, to the Sebastian Sebastian decision out of the Sixth Circuit that we discussed in our brief.

[00:07:43] Speaker 00:
There is a finding that personal animosity and a personal vendetta were among the motives for persecution.

[00:07:52] Speaker 00:
The court nonetheless found that there was a nexus because those motives were inextricably intertwined with petitioner's gender.

[00:08:01] Speaker 00:
Petitioner would not have been in this situation where there was that personal animosity and personal vendetta were it not for her gender.

[00:08:10] Speaker 05:
Would you agree that generally we're looking at these things, I mean there's got to be some limiting factor.

[00:08:19] Speaker 05:
in them.

[00:08:20] Speaker 05:
And this seems to be that that any male female relationship that's abusive in Brazil where the man's persecuting the woman would result in persecution on the base of her gender under your position.

[00:08:37] Speaker 00:
I don't think the court needs to go nearly that far.

[00:08:40] Speaker 00:
There are specific features here that will not be present in

[00:08:44] Speaker 00:
every case of domestic violence that you just mentioned.

[00:08:49] Speaker 00:
Critically, for example, there was prolonged abuse that rose to the level of persecution.

[00:08:55] Speaker 00:
There was an attempt to burn Petitioner's house down.

[00:08:59] Speaker 00:
There were beatings that continued.

[00:09:01] Speaker 00:
There was stalking even after Petitioner moved

[00:09:04] Speaker 00:
six hours away on multiple occasions.

[00:09:07] Speaker 05:
Those are signs of severe persecution, I'll give you that.

[00:09:10] Speaker 05:
But where's the nexus?

[00:09:13] Speaker 05:
How do those create a nexus?

[00:09:15] Speaker 00:
So those factors go to the severity of the persecution.

[00:09:19] Speaker 00:
I took your question to ask what the off-ramp might be to a

[00:09:28] Speaker 00:
to a grant of asylum in any instance of domestic violence in a male-female relationship.

[00:09:34] Speaker 05:
So in addition to... And to some extent, I was, but I'm looking at it if... And it's like, okay, every abusive relationship, if it's between a male and a female, there's gonna be a nexus in your position.

[00:09:50] Speaker 00:
I don't think that follows from our position.

[00:09:52] Speaker 00:
This court has been clear that when a motive is merely incidental or tangential to persecution there is no nexus.

[00:10:02] Speaker 00:
So I would give the court

[00:10:04] Speaker 00:
examples like the following.

[00:10:06] Speaker 00:
If there's a relationship where the persecutor simply wants money from the victim and they are incidentally in a male-female domestic relationship, there would be grounds to say there's no nexus there.

[00:10:21] Speaker 00:
If the petitioner were an alcoholic who came home indiscriminately violent, made no reference to gender,

[00:10:28] Speaker 00:
made no reference to gender-linked traits, there would be grounds to say there is no nexus there.

[00:10:44] Speaker 00:
make statements regarding her pregnancy with another man, at which point the abuse escalated.

[00:10:50] Speaker 00:
On top of that, he made statements that she could not wear short clothes, which is typically linked to female gender.

[00:11:00] Speaker 00:
He made comments about his jealousy when other men were around.

[00:11:05] Speaker 00:
Each of these is gender linked and goes beyond the mere existence of the relationship.

[00:11:12] Speaker 02:
Can you speak a little bit about your but for standard argument?

[00:11:16] Speaker 00:
So I think the but for standard is a way of articulating a prima facie case of a nexus.

[00:11:26] Speaker 00:
As I noted earlier, there is jurisprudence that qualifies that standard if a motive

[00:11:32] Speaker 00:
is merely incidental or tangential.

[00:11:35] Speaker 00:
So in the example I gave, if the relationship exists and she's a woman, but the persecutor's motive is solely to obtain her money, that would be a case where there's a showing of but for causation and it's overcome by a showing that the motive was merely incidental or tangential.

[00:11:56] Speaker 00:
You don't have anything of that sort here.

[00:11:58] Speaker 02:
Can you have an incidental but for cause?

[00:12:03] Speaker 00:
I think to the extent that butt for cause is inextricably linked to another trait, it might be that that other trait is a butt for cause but incidental.

[00:12:16] Speaker 00:
Here on this record, there's nothing to suggest that.

[00:12:20] Speaker 00:
The violence is targeted at a woman in a domestic relationship where there are references to gender, where there are

[00:12:30] Speaker 00:
incidents of violence that clearly follow events such as being around other men, which is inherently a sex-linked

[00:12:40] Speaker 00:
trigger for the abuse.

[00:12:42] Speaker 02:
And you're not relying on any other component for Nexus other than gender, right?

[00:12:50] Speaker 02:
That she was young and black and resilient.

[00:12:53] Speaker 02:
None of those combinations of things which sort of appear throughout, but the BIA wasn't as focused on, right?

[00:13:01] Speaker 00:
I'm arguing gender now because the BIA made its decision about gender and stopped.

[00:13:06] Speaker 00:
But I do think, particularly to Judge Carson's question about a limiting principle, the fact that here Petitioner was unable to leave her relationship is crucial and will not exist in every case of domestic violence.

[00:13:21] Speaker 00:
And some of the courts that have weighed in very specifically on the issue of asylum in domestic violence cases have cited that as a crucial factor.

[00:13:31] Speaker 00:
We point in our briefing to Depena Paniagua out of the First Circuit, to Juan Antonio out of the Sixth, and to Diaz Reynoso out of the Ninth.

[00:13:41] Speaker 02:
And what exactly is the evidence that establishes the inability to leave?

[00:13:45] Speaker 02:
Are those country condition reports, or is it specific to the petitioner?

[00:13:50] Speaker 00:
It varies by petitioner.

[00:13:52] Speaker 00:
Here, I think it's especially clear from the fact that petitioner moved six hours away multiple times.

[00:13:59] Speaker 00:
And in each instance, her persecutor managed to track her down, send her pictures of her location, continue to send her threats.

[00:14:09] Speaker 00:
And that continuation of abuse after an attempt to leave is another factor that the courts I just mentioned have focused on and I think are instructive in constructing a limiting principle here.

[00:14:21] Speaker 04:
Council, can I get your input as to what issues are properly preserved for us in your challenge to the BIA decision?

[00:14:28] Speaker 04:
For example, for the immigration judge, you raised a convention against torture claim, but I don't see that as being brief.

[00:14:34] Speaker 04:
Do you agree that's waived?

[00:14:36] Speaker 04:
I do.

[00:14:36] Speaker 04:
And then whether or not Ms.

[00:14:39] Speaker 04:
Pinto had past persecution, which of course the immigration judge found that she did improve that, but the well-founded fear of future persecution, do you consider that waived?

[00:14:49] Speaker 00:
I don't, because past persecution gives rise to a presumption of well-founded fear of future persecution.

[00:14:58] Speaker 04:
So if that's before us, how do we analyze the relocation findings?

[00:15:01] Speaker 04:
Or has that been properly sort of discussed that we could reach a meaningful decision about it?

[00:15:07] Speaker 04:
About whether or not she could relocate within Brazil?

[00:15:09] Speaker 00:
I don't think it's necessary for the court to make that finding, particularly without the cap claim, because

[00:15:16] Speaker 00:
The government does not dispute that by regulation, presumption of future harm for purposes of withholding removal is established when past persecution on account of a protected ground is established, and thus there's no need for further examination.

[00:15:35] Speaker 05:
Thank you, counsel.

[00:15:36] Speaker 05:
You're out of time.

[00:15:37] Speaker 00:
Thank you.

[00:15:54] Speaker 01:
May I please the court?

[00:15:55] Speaker 05:
You're going to need to speak up just a little bit.

[00:15:58] Speaker 01:
May I please the court?

[00:15:59] Speaker 05:
Perfect.

[00:16:00] Speaker 01:
May it please the court, Alana Young for the Attorney General.

[00:16:02] Speaker 01:
Unless the court has a particular, or the many issues you raise, if there's a particular one you want me to address, I'm going to start with the issue of what is before this court.

[00:16:12] Speaker 01:
And then I'll go and proceed and address the other questions that this court raised.

[00:16:17] Speaker 01:
I will also be providing record citations for the evidence that's, substantial evidence that supports the agency's nexus determination.

[00:16:23] Speaker 05:
Oh, can you speak up just a little bit more?

[00:16:28] Speaker 01:
I'm sorry.

[00:16:28] Speaker ?:
Okay.

[00:16:29] Speaker 01:
Your honor, the only issue before this court is the nexus determination.

[00:16:33] Speaker 01:
And it's the nexus determination regarding the particular social group of young, black, Brazilian women unable to leave the domestic relationship.

[00:16:41] Speaker 01:
All other issues are not before this court.

[00:16:43] Speaker 01:
The government is asking this court to apply the Chenery principle, which is to review the agency's decision based on the grounds that the agency reached.

[00:16:52] Speaker 01:
And here, the ground that the board reached

[00:16:55] Speaker 01:
was the nexus determination.

[00:16:56] Speaker 01:
It did not address the PSU determination, it did not address relocation, it did not address CAT.

[00:17:02] Speaker 01:
The only issue is the nexus determination regarding that PSU, Your Honors.

[00:17:10] Speaker 01:
When it comes to the

[00:17:17] Speaker 04:
I'm sorry, before you move past that, in regards to the nexus question in the social group that, as you just mentioned, young, black, resilient woman, which of those, on behalf of the Attorney General, do you think is before us?

[00:17:30] Speaker 04:
Meaning, I read the briefs to have

[00:17:34] Speaker 04:
The government took issue with young, for example, being part of a particularized analysis and whether or not that could qualify, even though other circuits have found that just using the word young to describe a group is particularized enough.

[00:17:46] Speaker 04:
Are you guys contesting that?

[00:17:48] Speaker 01:
It's not before this court.

[00:17:49] Speaker 04:
We're not addressing it.

[00:17:52] Speaker 01:
It's not only gender, Your Honor.

[00:17:53] Speaker 01:
We're looking at, we're defending the agency's decision with regard to the PSG that is young, black, resilient women unable to leave a domestic relationship.

[00:18:02] Speaker 01:
We are defending the agency's determination that Petitioner did not establish

[00:18:06] Speaker 01:
a nexus between her past or feared harm that was on account of that particular social group.

[00:18:12] Speaker 01:
The IJ's determination with regard to the immunity particularity with regards to the word young, that is not before this court because the board did not reach this determination.

[00:18:23] Speaker 01:
The nexus issue, the reason why we're focusing on gender, the word gender, Your Honor, is because the evidence before this court did not show, the evidence before the agency did not show

[00:18:35] Speaker 01:
all the aspects, all the characteristics that petitioners propose.

[00:18:39] Speaker 02:
So could you speak to that?

[00:18:40] Speaker 02:
This is what I'm really struggling with.

[00:18:42] Speaker 02:
The government has to concede that gender played some role in this case, right?

[00:18:46] Speaker 02:
Yes, Your Honor.

[00:18:47] Speaker 02:
Okay.

[00:18:47] Speaker 02:
So on this record, if her gender made her more vulnerable, and we have that in our record, and

[00:19:01] Speaker 02:
There's all sorts of circumstantial evidence here that gender is linked to domestic violence in Brazil.

[00:19:07] Speaker 02:
And when we have that record and we're reviewing for substantial evidence, I think it's the government's position that that may be true, but that's not enough.

[00:19:16] Speaker 02:
And I would like to know what is enough.

[00:19:19] Speaker 01:
Yes, Your Honor.

[00:19:20] Speaker 01:
So a few things here.

[00:19:21] Speaker 01:
Looking at the totality of this record, the agency

[00:19:26] Speaker 01:
looking at the totality of this record, the agency recognized that based on the country condition evidence, women could be more susceptible to violence.

[00:19:34] Speaker 01:
But that was it.

[00:19:35] Speaker 01:
There is no testimony from Petitioner indicating that her gender was part of it.

[00:19:40] Speaker 01:
Petitioner's argument is based on

[00:19:43] Speaker 01:
conjecture, but conjecture is not sufficient to compel reversal.

[00:19:46] Speaker 01:
What we have before this court is, and I will get to your honest questions, what we have before this court is evidence, AR 121, where she was asked, she said, he was jealous, he came to me to the market, he was jealous because there were many men around.

[00:20:01] Speaker 01:
AR 151.

[00:20:02] Speaker 01:
During that period, did he ever say why he was violent to you?

[00:20:06] Speaker 01:
No, but it was because something related to jealousy or because he was nervous.

[00:20:10] Speaker 01:
Again, why do you think he was violent towards you?

[00:20:12] Speaker 01:
For jealousy.

[00:20:13] Speaker 01:
The best evidence in this case is petitioner's own testimony regarding the relationship, Your Honor.

[00:20:18] Speaker 01:
157.

[00:20:20] Speaker 01:
Was he sending any threatening messages to you?

[00:20:22] Speaker 01:
What happened?

[00:20:23] Speaker 01:
So what is it that the government contends is absent here, exactly?

[00:20:27] Speaker 01:
The government is contending that there is no insufficient evidence, direct or circumstantial, that Jorge's actions against Petitioner were motivated by

[00:20:40] Speaker 01:
her a protected characteristic.

[00:20:42] Speaker 02:
I understand yes what I don't understand is what does that evidence that you contend is missing what would it look like?

[00:20:49] Speaker 01:
It would look like one it would look like if we're looking at the country condition evidence there could have been country condition evidence of the culture of domestic violence of machismo of a motive that men overcame like men were overcoming women because they were their property that they belonged to them

[00:21:05] Speaker 04:
Any evidence of that?

[00:21:07] Speaker 04:
In the record that you just read from the transcript of the hearing before the IJ, why isn't that circumstantial evidence, if not more, of what exactly you just said, that Jorge here viewed Ms.

[00:21:18] Speaker 04:
Pinto as essentially based upon her gender, that sort of

[00:21:22] Speaker 04:
one step removed from the jealousy aspect of this, that because of her gender, because of her vulnerability to him, that he was persecuting her and enraged at jealousy because he viewed her essentially as his property, which he was entitled to.

[00:21:38] Speaker 04:
Why isn't that in the record before us insufficient?

[00:21:42] Speaker 01:
Because, Your Honor, that's based on conjecture.

[00:21:45] Speaker 01:
There's no, what we have is her testimony of why, what his actions were motivated by.

[00:21:50] Speaker 01:
We have that evidence and to go one step further is insufficient before this court to compel Reversal.

[00:21:56] Speaker 04:
But your answer to Judge Rossman is, well, we need sort of

[00:21:58] Speaker 04:
more evidence about the culture of the country itself.

[00:22:01] Speaker 04:
So we needed some evidence to say, well, within Brazil, generally this is how domestic violence works as opposed to how it works in other countries where it's prevailingly men committing acts of domestic violence against women.

[00:22:13] Speaker 01:
Wait, Your Honor, to clarify.

[00:22:15] Speaker 01:
The country condition evidence that I was pointing out, there would be other evidence too with regards to petitioner's own testimony.

[00:22:21] Speaker 01:
I'm not saying that petitioner's testimony in this case plus that country condition evidence would be sufficient.

[00:22:29] Speaker 01:
The government's position in this case is petitioner's own testimony in this case shows that Jorge was motivated by jealousy and personal animus.

[00:22:39] Speaker 01:
But why?

[00:22:39] Speaker 01:
Because of her gender.

[00:22:41] Speaker 01:
But, Your Honor, it could be.

[00:22:44] Speaker 01:
I mean, it could be, and that's why the agency considered that mixed motive.

[00:22:47] Speaker 04:
What else could it be?

[00:22:48] Speaker 01:
It was because he was a jealous individual and had personal animus against her because he wanted to resume the relationship, and she did not.

[00:22:55] Speaker 01:
And that's why we have evidence in the record where he says, where she said, why did, like, she confirmed that she didn't want to be in a relationship with him, AR-128, and that's when he burned down the house.

[00:23:08] Speaker 01:
And then it was asked, like, well,

[00:23:10] Speaker 01:
She was talking about, why do you think he was sending you threatening messages or burning them out of the house?

[00:23:14] Speaker 01:
Well, it's because I wanted to be finished with him, but he wasn't finished with me.

[00:23:19] Speaker 01:
And then we have the statements regarding the son and the son also.

[00:23:23] Speaker 01:
It's not, it's just it's not my son and I would kill you both.

[00:23:26] Speaker 01:
And that goes to the relationship.

[00:23:28] Speaker 01:
It could be, it could be gender, but before the agency considering the totality of the circumstances, the agency could reasonably conclude that Jorge's motive was based on jealousy and personal animus.

[00:23:41] Speaker 01:
And that's the crux of the base of a mixed motive analysis.

[00:23:44] Speaker 01:
If this court looks in Rolana and talks about Nexus, there has to be some evidence that the prosecutor knows about and cares about the gender.

[00:23:55] Speaker 01:
But there's no evidence to show that he cared about her gender.

[00:23:59] Speaker 01:
We have evidence, but we have evidence that he was a jealous individual and he wanted to resume the relationship.

[00:24:05] Speaker 04:
But what about the evidence in the record that he abused her based upon his dissatisfaction with her manner of dress?

[00:24:13] Speaker 04:
Isn't that inherently gender linked?

[00:24:15] Speaker 01:
It could be, Your Honor, but he or she's saying it's because he was jealous of other men.

[00:24:20] Speaker 01:
So the agency could reasonably conclude that... Jealous of other men because why?

[00:24:24] Speaker 04:
Their reaction to?

[00:24:25] Speaker 04:
I mean, isn't that what she was saying?

[00:24:27] Speaker 01:
And that's the inference, and that is... But under totality of the circumstances, why can't we draw that inference?

[00:24:33] Speaker 01:
Because before this court, the evidence is the substantial evidence review.

[00:24:37] Speaker 04:
Sure.

[00:24:38] Speaker 01:
And the court is looking at whether a reasonable adjudicator would be compelled to conclude otherwise.

[00:24:42] Speaker 04:
But we're also allowed to consider mixed motives, right?

[00:24:47] Speaker 01:
You would review that, you would also be reviewing the agency's mixed motive.

[00:24:51] Speaker 04:
We're trying to see whether or not the BIA here in their factual findings, you know, reviewing the IJ record on Nexus, you know, the government's saying, well, it's a totality of the circumstances and what the BIA determined was reasonable.

[00:25:05] Speaker 04:
But we're trying to probe to see, do we agree that it was reasonable under even a substantial evidence standard?

[00:25:11] Speaker 04:
Or is it just so patently obvious that what underlies their findings here of jealousy is based upon gender that they erred by not acknowledging that?

[00:25:20] Speaker 01:
Your Honor, the agency did acknowledge that, and that's the thing.

[00:25:23] Speaker 01:
When you look at the immigration judge and the board's decision, the agency considered the mixed motive on whether he was jealous, based on her testimony, whether he was jealous and had a person anonymous, and then looked at the gender.

[00:25:35] Speaker 01:
And the gender aspect, the agency considered the totality, and that came from the country condition evidence.

[00:25:40] Speaker 01:
The agency recognized that, but determined

[00:25:43] Speaker 01:
that the one central reason, at least one central reason, was because he was jealous and had personal animus.

[00:25:49] Speaker 01:
And before this court, it's not whether the agency acted reasonably, it's whether a reasonable adjudicator would be compelled to conclude otherwise.

[00:26:00] Speaker 05:
So let me ask you a question.

[00:26:03] Speaker 05:
Assume for me that the evidence is this.

[00:26:07] Speaker 05:
that the persecutor wouldn't have persecuted her, or that the persecutor was attracted to her because she was a female.

[00:26:17] Speaker 05:
That the persecutor had been in a relationship with her because he prefers females.

[00:26:24] Speaker 05:
That the persecutor wanted to continue the relationship, but she broke up with him.

[00:26:30] Speaker 05:
And that when she broke up with him, it made the persecutor mad.

[00:26:35] Speaker 05:
After that, any time

[00:26:37] Speaker 05:
the persecutor noticed her with another man or around men or doing things that might attract other men, he flew into a rage and would beat her based on jealousy and the fact that she didn't want to be in a relationship with him.

[00:27:00] Speaker 05:
So that's your factual background.

[00:27:03] Speaker 05:
Can the BIA, under that set of facts,

[00:27:06] Speaker 01:
Reasonably conclude that one central reason was not her gender Yes, your honor because it could also go because based on that fact it could also be jealousy it could also be jealousy and if she under Was she able to leave the leave the relationship your honor?

[00:27:27] Speaker 05:
Was she well we have to take her word for it Don't we?

[00:27:31] Speaker 01:
Your honor, it would still be based on jealousy and it would be based on the other facts and the other evidence in the record, of course, whether what his testimony was, any indication that he had told her what her testimony was, what the country condition evidence showed.

[00:27:46] Speaker 01:
I mean, there is evidence out there.

[00:27:48] Speaker 01:
There is evidence out there that could have been presented, but it wasn't presented in this case.

[00:27:52] Speaker 01:
What we have here, the best testimony in this case, is Petitioner's own testimony of jealousy and personal animus, and he wanted to resume the relationship, but she simply did not.

[00:28:01] Speaker 05:
And what I'm getting at is I wanted your position on what do we do when we have this record full of lots of facts that could go either way.

[00:28:10] Speaker 01:
It's substantial evidence, Your Honor.

[00:28:13] Speaker 01:
whether a reasonable adjudicator would be compelled to conclude otherwise.

[00:28:17] Speaker 01:
And even if this court, looking at the record, would have ruled otherwise, this court should apply the differential substantial evidence standard under Ming Dai, under Elias Zacharias, and affirm the agency's decision.

[00:28:29] Speaker 02:
Can you distinguish the Sebastian Sebastian case?

[00:28:33] Speaker 01:
Yes, Your Honor, for Sebastian, Sebastian, the Sixth Circuit case, there the BIA stopped short and didn't consider the mixed motive, didn't consider the gender aspects of it.

[00:28:43] Speaker 01:
But in this case, we know that the agency did, because we can see it physically, physically by looking at the agency's decision that it considered first, this is first, Your Honor, physically looking at the BIA's decision, the BIA said, talked about like why,

[00:29:00] Speaker 01:
The one central reason was Jorge's actions was his jealousy and his personal animus.

[00:29:05] Speaker 01:
But then we go to the next paragraph that talks about the gender aspect of it and the agency recognizing that gender could have been a reason, but it's not one central reason for Jorge's actions.

[00:29:20] Speaker 02:
So is the legal error that was present there your contention it's absent here?

[00:29:24] Speaker 01:
Yes, Your Honor.

[00:29:25] Speaker 02:
So that's why we're looking at this under the substantial evidence?

[00:29:28] Speaker 02:
Yes, Your Honor.

[00:29:29] Speaker 02:
Yes, Your Honor.

[00:29:32] Speaker 04:
Council, can I ask one more question?

[00:29:34] Speaker 04:
I may just be confusing this, but the issues on appeal were focused totally on nexus, but what about the government's position on whether a petitioner has alleged the social group and whether that's adequate?

[00:29:49] Speaker 04:
Because I understood the briefs to be that was also somewhat contested, and that the BIA opinion, as I recall,

[00:29:55] Speaker 04:
It kind of footnotes the five social groups that she alleged, but it rested solely upon Nexus.

[00:30:01] Speaker 04:
So if we're, let's just say that we found that there was, even under the substantial evidence standard, a problem with what the BA concluded in Nexus, what do you suggest we do regarding the social groups and whether we just accept those as a given as part of our analysis, or what do we do with that part of the case?

[00:30:24] Speaker 01:
Yes, Your Honor, this court would have to remand for the agencies to consider.

[00:30:29] Speaker 01:
Several things is the immigration judge, when it comes to cognizability of a particular social group, there's three determinations, immunity, particularity, and social distinction.

[00:30:39] Speaker 01:
The IJ only reached the particularity determination, and then before the board, the board did not address the IJ's particularity determination.

[00:30:48] Speaker 01:
And we know that from the board explicitly affirming the nexus determination and the objectively reasonable fear determination.

[00:30:54] Speaker 01:
But then, may I continue?

[00:30:57] Speaker 01:
May I briefly continue?

[00:30:58] Speaker 01:
Yeah, go ahead.

[00:30:58] Speaker 01:
Yes.

[00:30:58] Speaker 01:
But then in a footnote, in footnote six says that because these issues were dispositive, it wasn't reaching the other issues.

[00:31:05] Speaker 01:
So this court would have to remand to the board to give the board the opportunity to consider the other grounds that the immigration judge considered.

[00:31:12] Speaker 01:
And then if the board decides to do so, it would remand to the immigration judge to give the immigration judge

[00:31:17] Speaker 01:
the opportunity to address the other aspects of the cognizability of the particular social groups, Your Honor.

[00:31:23] Speaker 05:
Okay.

[00:31:23] Speaker 05:
Thank you, Council.

[00:31:24] Speaker 05:
You're out of time.

[00:31:26] Speaker 05:
Okay.

[00:31:26] Speaker 05:
The case will be submitted and Council are excused.

[00:31:29] Speaker 05:
You didn't have any time left.

[00:31:30] Speaker 05:
Did you have 10 seconds?

[00:31:32] Speaker 05:
She went over a little bit.

[00:31:33] Speaker 05:
If you want to... I believe I have one minute from the closing.

[00:31:36] Speaker 00:
Oh, that's right.

[00:31:37] Speaker 05:
I gave you a minute.

[00:31:42] Speaker 05:
My bad.

[00:31:43] Speaker 05:
You have a minute and 10, in fact, because it looked like you had 10 seconds left.

[00:31:47] Speaker 05:
Go ahead.

[00:31:49] Speaker 00:
Thank you, Your Honors.

[00:31:50] Speaker 00:
I'd like to begin where my friend on the other side left off with Sebastian Sebastian.

[00:31:56] Speaker 00:
She attempted to distinguish this case on the ground that the BIA here had a paragraph about lacking a reference to gender and then had a paragraph about country conditions and vulnerability to violence.

[00:32:09] Speaker 00:
That is exactly what happened in Sebastian Sebastian, 87F4 at page 848 of the opinion.

[00:32:17] Speaker 00:
As to my friend's focus on jealousy, it overlooks the simple fact that when someone is jealous, they are jealous of something.

[00:32:26] Speaker 00:
It's not a personality trait in isolation.

[00:32:28] Speaker 00:
There's no testimony.

[00:32:30] Speaker 00:
that Mr. Olivero was jealous of anyone other than Ms.

[00:32:34] Speaker 00:
Pinto.

[00:32:34] Speaker 00:
There's no testimony that he became jealous for any reason other than her gender, other than when she was around other men, other than when she was pregnant.

[00:32:44] Speaker 02:
And to the extent that... Would it be a reversible error for us to say that in this case,

[00:32:55] Speaker 02:
all the adjudicators and judges that have considered cases like this were fundamentally unreasonable under the applicable standard because of the way that gender inheres in cases like this.

[00:33:07] Speaker 00:
I think that it depends on drawing the line with respect to... On this evidence?

[00:33:12] Speaker 02:
On this evidence... How could we say that on this evidence and stay within the bounds and scope of the review that the standard for nexus requires of us?

[00:33:22] Speaker 00:
I think you would say that

[00:33:24] Speaker 00:
First, this reference requirement is contrary to law.

[00:33:29] Speaker 00:
Second, there is evidence on these facts of intertwined motives.

[00:33:34] Speaker 00:
There is violence after the pregnancy, after being around other men, after wearing short clothes.

[00:33:43] Speaker 00:
harm rises to an extraordinary level of severity and there's demonstrated inability to leave the relationship and abuse that continues after an attempt to leave the relationship.

[00:33:57] Speaker 05:
Okay.

[00:33:57] Speaker 05:
Thank you, counsel.

[00:33:58] Speaker 05:
You're out of time.

[00:33:58] Speaker 00:
Thank you, your honors.

[00:33:59] Speaker 05:
All right.

[00:34:00] Speaker 05:
The case will be submitted and counsel are excused and we are set for a 10-minute recess while we get some new students in and students that are going out.