[00:00:00] Speaker 01:
Please be seated.

[00:00:06] Speaker 02:
Good morning, everyone.

[00:00:07] Speaker 02:
Let's see, the first one, two, three, four cases on the docket for today are submitted.

[00:00:15] Speaker 02:
So we'll take up Mithong, correct my pronunciation, versus Bondi.

[00:00:41] Speaker 00:
Good morning, your honors, and may it please the court.

[00:00:43] Speaker 00:
Nicholas Gonzalez from Orak, Harrington, and Sutcliffe.

[00:00:46] Speaker 00:
I'm for winner counsel for Mr. Mee Tong.

[00:00:49] Speaker 00:
I'd like to reserve two minutes for rebuttal.

[00:00:52] Speaker 02:
OK, watch your clock.

[00:00:54] Speaker 00:
Cat bars the United States from returning non-citizens to a country where they face a likelihood of torture.

[00:01:01] Speaker 00:
To implement that requirement, this court has held that the agency

[00:01:05] Speaker 00:
must aggregate the risks underlying multiple theories to determine whether the applicant has met that more likely than not standard.

[00:01:14] Speaker 00:
The agency here failed to do that, analyzing Mr. Mee Tong's risks only in isolation.

[00:01:20] Speaker 00:
That is legal error and the proper remedy in these circumstances is a remand.

[00:01:26] Speaker 00:
I'd like to first start with the legal error and then turn to the remedial question.

[00:01:30] Speaker 00:
So on the legal error, the government does not dispute here that Mr. Mitong presented multiple theories for why he might be tortured.

[00:01:37] Speaker 00:
The government also does not dispute that the agency here did not aggregate the risks from those theories.

[00:01:45] Speaker 00:
The government's only argument here today on the legal error is that the agency didn't need to aggregate because the aggregation rule applies only to cases, does not apply to cases involving government, only government-led torture.

[00:01:59] Speaker 03:
But what if we read the IJ's decision differently and concluded that there's four or five places where the immigration judge states the correct standard for cat relief.

[00:02:12] Speaker 03:
And then in the way his statements discuss each of the claims that Mr. Maithong makes, he was doing an aggregate analysis, even if the government agreed with you and you think they conceded that point.

[00:02:26] Speaker 03:
If we disagree, you think we're bound by that, by the concession?

[00:02:31] Speaker 00:
I think party representation principles would counsel against reaching out and presenting an argument that the government is not making here today.

[00:02:38] Speaker 00:
But I would also dispute that the agency aggregated it here or that it applied the correct legal standard, simply because the IJ invoked the more likely not standard is not talismanic.

[00:02:51] Speaker 00:
The agency's analysis shows that rather than considering the aggregate risk of torture, the agency actually sliced and diced various iterations of Mr. Mutong's theories and determined that no risk in isolation was likely to lead to torture.

[00:03:06] Speaker 00:
Now, this court has upheld agency decisions that have correctly applied the aggregation rule, where the agency

[00:03:16] Speaker 00:
at the end says, for example, I've now considered the aggregate risks and I determine that the more likely not standard has not been satisfied.

[00:03:24] Speaker 00:
The IJ here never did that.

[00:03:27] Speaker 00:
The IJ instead said, this iteration of the theory is unlikely to transpire.

[00:03:32] Speaker 00:
This iteration of the theory is unlikely to transpire because no individual theory is likely to transpire.

[00:03:38] Speaker 00:
Therefore, the cat burden has not been met.

[00:03:41] Speaker 03:
So the IJ described each of the various theories as hypothetical or speculative.

[00:03:47] Speaker 03:
So it appeared that the immigration judge, in a pretty lengthy oral decision, was going through each of the various claims and saying, there's just no evidence to support this.

[00:03:58] Speaker 03:
This is hypothetical.

[00:03:59] Speaker 03:
So how do you go from 0 plus 0 plus 0 equals 51?

[00:04:05] Speaker 00:
This is not a 0 plus 0 plus 0 case.

[00:04:08] Speaker 00:
Far from saying that there were no risks, the IJ said that there's certainly potential danger in Cambodia, pages 80 to 81 of the record.

[00:04:16] Speaker 00:
The IJ recognized that Cambodia does not put up with political opposition, which the IJ said includes human rights reformers, which Mr. Mee Tong very recently constitutes one of those types of people.

[00:04:28] Speaker 00:
And the IJ also said that

[00:04:34] Speaker 00:
because there was insufficient evidence to support, more likely than not, standard for the individual iterations of the theory that Mr. Mitong had not satisfied the cat burden.

[00:04:46] Speaker 00:
I would also note that the IJ cited Matter of JFF and said that that is for cases just like this one.

[00:04:52] Speaker 00:
But we know from Velasquez-Semayoa that that's just wrong.

[00:04:56] Speaker 00:
Matter of JFF has extremely limited utility, which is why this court in Velasquez-Semayoa cautioned against its use.

[00:05:03] Speaker 00:
It's for single chain events, single chain theories, and this is not a single chain case.

[00:05:10] Speaker 03:
Even the- I'm sorry, is your position that by citing matter JFF, that means that we should conclude there was legal error just by the citation to that decision?

[00:05:21] Speaker 00:
Not at all, Your Honor.

[00:05:22] Speaker 00:
Have the IJ cited matter of JFF and then said that none of the theories were individually likely to transpire, and then at the end said,

[00:05:31] Speaker 00:
I've now considered the aggregate risk based on the risks underlying all of the theories, and I find that the more likely not standard has not been met.

[00:05:40] Speaker 00:
This would be a very different case.

[00:05:42] Speaker 00:
The IJ never did that here.

[00:05:45] Speaker 03:
I think part of the language that's troubling to me in the Alaska Semiyoya is that the court says the aggregate analysis and the rule articulated in JFF are logically consistent.

[00:05:59] Speaker 03:
So it seems that we couldn't base a finding of legal error based solely on that citation.

[00:06:04] Speaker 03:
We'd have to find something more.

[00:06:06] Speaker 03:
I understand your position is you think there's something more.

[00:06:09] Speaker 00:
It's exactly right.

[00:06:11] Speaker 00:
Simply citing matter of JFF is not legal error per se.

[00:06:17] Speaker 00:
It's the fact that the IJ here not only cited matter of JFF, it analyzed the risks exclusively in isolation, and it never considered the aggregate risk of torture.

[00:06:30] Speaker 00:
Now Judge Beatty, I get the sense that you think that the IJ was saying that the risks were pretty low.

[00:06:38] Speaker 03:
Well, I don't think that the IJ assigned any sort of numerical value or did anything along those lines.

[00:06:44] Speaker 03:
It appeared that he was saying, I'm looking at each of these and there's no evidence to support them.

[00:06:48] Speaker 03:
They're hypothetical.

[00:06:49] Speaker 03:
And I'm a little troubled by

[00:06:53] Speaker 03:
Arajeda Martinez, I-R-A-H-E-T-A, I'm probably mispronouncing it, Arajeda Martinez, which seems to be a case very similar to this one from 2021 from our court, where the court said, true enough, the BIA did not make it perfectly clear that it was performing an aggregate analysis.

[00:07:12] Speaker 03:
But on the balance, the BIA said enough to convince us that it did, in fact, find there's less than a 50% chance that Arajeda will be tortured by all potential sources of torture.

[00:07:20] Speaker 03:
So it seems to me that our precedent allows us to look at what the judge actually said, and even if he doesn't invoke some magical words, to see if there really was an aggregate analysis.

[00:07:37] Speaker 00:
Yeah, so what the IJA said is that Cambodia has a lot of human rights issues, but there's certainly potential danger in Cambodia, that Cambodia doesn't put up with political opposition,

[00:07:47] Speaker 00:
and that human rights reformers have their rights run roughshod over.

[00:07:51] Speaker 00:
And then the IJ discussed various ways in which Mr. Mee Tong might be susceptible to torture.

[00:08:00] Speaker 04:
I don't entirely follow that because the IJ says that we don't have anything other than

[00:08:12] Speaker 04:
human rights conditions in Cambodia generally with regard to political opposition, people, protesters, criminals, things of that nature.

[00:08:23] Speaker 04:
And responded at this point really doesn't fall into any of those categories.

[00:08:28] Speaker 04:
So I thought in your brief, so it seems to me he's saying, you know, there's kind of zero possibility there.

[00:08:37] Speaker 04:
In your brief, you focus on the fact that this fellow is a criminal.

[00:08:43] Speaker 04:
And the IJ said, I think he said that he, well, he wasn't a criminal, he hadn't committed any crimes in Cambodia.

[00:09:01] Speaker 04:
And I thought you in your brief, you were saying that he is a criminal because he, as I understand it, he spent 29, is that incorrect?

[00:09:10] Speaker 04:
He spent 29 years in prison in this country?

[00:09:12] Speaker 00:
That's exactly right.

[00:09:13] Speaker 00:
He did spend 29 years in prison.

[00:09:16] Speaker 04:
And the IJ didn't take that into account at all.

[00:09:21] Speaker 04:
And that was what I thought you were arguing in your brief.

[00:09:25] Speaker 04:
So have I misread your brief on that point?

[00:09:28] Speaker 00:
No, that's further evidence that the IJ did not consider all of the risks underlying Mr. Meatong's overall risk of torture.

[00:09:37] Speaker 00:
That's just another example of the failure to aggregate, which is implementing the mandate under the regulations that the agency consider all of the evidence that could support a torture claim.

[00:09:53] Speaker 00:
Judge Beatty, if I could go back to Iroheta.

[00:09:58] Speaker 00:
The mere fact that the agency called the claims described the

[00:10:07] Speaker 00:
chain here as hypothetical only reflects that that is the nature of a cat claim.

[00:10:12] Speaker 00:
It's about hypothetical risks that occur in the future.

[00:10:16] Speaker 00:
And merely expressing that individually, risks are not, are perhaps speculative or generalized, that does not excuse aggregation.

[00:10:28] Speaker 00:
And we know that because this court in Park, which I know that Judge Bader, you're familiar with, and Andrade, when

[00:10:37] Speaker 00:
The agency there had said that the risks were speculative, and this court confronted whether the agency had to irrigate.

[00:10:46] Speaker 00:
This court still applied the aggregation rule.

[00:10:48] Speaker 00:
That reflects that even if individual risks are low, the aggregation rule still kicks in because the fact that individual risks are low does not mean that torture is unlikely to transpire.

[00:10:58] Speaker 00:
They could additively lead to the 50% plus threshold being satisfied.

[00:11:05] Speaker 00:
That means that the agency still had to aggregate here, and there's nothing in the agency's decision that discloses that it aggregated the overall risk of torture, and that is legal error.

[00:11:21] Speaker 00:
On the remedial question, this court has been clear that when there is a legal error,

[00:11:28] Speaker 00:
this court does not then page the record to determine whether substantial evidence nonetheless could support the agency's decision.

[00:11:35] Speaker 00:
The court said that in Singh versus Garland, and the Supreme Court has reiterated the remand rule in cases such as Calcutt and Wages.

[00:11:47] Speaker 03:
So if we, I don't dispute what you're saying, yes, we would not do a substantial error analysis, but don't we apply a harmless error analysis?

[00:11:57] Speaker 00:
Yes, and the harmless error analysis, as Singh versus Garland explains, excuse me, Singh versus Barr explains, that asks whether remand would be a useless and idle formality.

[00:12:12] Speaker 00:
Now, that is a standard that reflects that this court only denies a remand when there is an independent legal or factual basis that's free from error that logically compels the same conclusion on remand.

[00:12:28] Speaker 03:
But the legal error here, as I understand your argument, is that the immigration judge did not sufficiently articulate aggregation.

[00:12:38] Speaker 03:
So the immigration judge did list and explain the various theories at length, at least a paragraph or two of the written decision about each of the theories that the petitioner had advanced.

[00:12:54] Speaker 03:
and then said multiple times, I think five different times throughout his decision, stated the correct standard.

[00:13:01] Speaker 03:
So with that record, it seems that on remand, the immigration judge would do the same thing, reach the same conclusions.

[00:13:10] Speaker 03:
There's no newly discovered evidence.

[00:13:13] Speaker 03:
There's no intervening law.

[00:13:15] Speaker 03:
I'm having a hard time understanding why this wouldn't be futile.

[00:13:20] Speaker 00:
So the agency did not say that there were no risks.

[00:13:23] Speaker 00:
The agency also did not apply the correct legal standard.

[00:13:26] Speaker 00:
It may have invoked the CAT standard, but there's a difference between invoking it and applying it.

[00:13:32] Speaker 00:
And if you look at pages 80 to 81 of the record, the IJ repeatedly says, this risk is unlikely to transpire, this risk is unlikely to transpire, this risk is unlikely to transpire.

[00:13:44] Speaker 00:
Under matter of JFF,

[00:13:46] Speaker 00:
Because no individual risk is likely to transpire, that means torture is unlikely to transpire.

[00:13:51] Speaker 00:
But that conflates the matter of JFF standard with the CAT standard.

[00:13:55] Speaker 00:
The CAT standard requires aggregation of all the risks to determine whether the more likely than not standard has been met.

[00:14:03] Speaker 00:
And if this court were to remand and instruct the agency to apply the aggregation rule, the entire tenor of the IJ's decision would change.

[00:14:12] Speaker 00:
Because the IJ has to now consider

[00:14:15] Speaker 00:
All these risks in the aggregate, do they meet the more likely than not standard?

[00:14:21] Speaker 00:
There's nothing in the IJ's opinion that ever said that.

[00:14:25] Speaker 00:
And it's not so much a matter of like magic words.

[00:14:27] Speaker 00:
It's a matter of showing your work and saying, I've considered these aggregate risks and the more likely than not standard hasn't been met.

[00:14:37] Speaker 00:
And the agency here failed to do that.

[00:14:40] Speaker 00:
I see that I'm running out of time.

[00:14:41] Speaker 00:
So if I could reserve the balance of my time for rebuttal.

[00:14:45] Speaker 02:
You may.

[00:14:46] Speaker 00:
Thank you.

[00:14:51] Speaker 01:
Ms.

[00:14:52] Speaker 01:
Perlmutter.

[00:14:55] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:14:57] Speaker 01:
Alexa Perlmutter on behalf of respondent.

[00:15:00] Speaker 01:
After petitioner who has not been in Cambodia since 1979 testified to his fear of harm from the government, the immigration judge fully considered the potential harm from that one source.

[00:15:12] Speaker 01:
Looking to the record at page 81, the immigration judge specifically

[00:15:16] Speaker 01:
referenced the country conditions and found, as a factual matter, that Petitioner does not fall, quote, does not fall into any of these categories.

[00:15:25] Speaker 01:
He hasn't committed any crimes in Cambodia.

[00:15:27] Speaker 01:
He hasn't protested.

[00:15:29] Speaker 01:
He's not a member of the political opposition, end quote.

[00:15:33] Speaker 01:
The immigration judge was not then required to articulate a separate aggregation analysis regarding the specific reasons for the feared harm once the claim of feared harm by the government was fully considered.

[00:15:48] Speaker 01:
As Your Honor mentioned, these hypothetical examples were used as illustrations, which shows that the immigration judge was fully engaging with petitioner's testimony and fully engaging with petitioner's claim as he presented it.

[00:16:03] Speaker 01:
I'd encourage the court to look to pages 131 to 133 of the record because it makes clear that the entirety of this claim was speculative.

[00:16:13] Speaker 01:
At the end of the day, Petitioner and his other two witnesses had not been in Cambodia for 50 years and were relying on their general fears, things they had read.

[00:16:22] Speaker 01:
And again, the immigration judge had the country conditions at his disposal.

[00:16:28] Speaker 01:
And the immigration judge reasonably referenced those hypothetical situations.

[00:16:32] Speaker 01:
But as your honor mentioned, we are now at a zero plus zero plus zero situation.

[00:16:37] Speaker 01:
And as this court explained in Velasquez-Samioa, referencing Medina Rodriguez, there's no aggregation required when there's no evidence to support a specific theory.

[00:16:51] Speaker 04:
Well, I'm troubled by this.

[00:16:56] Speaker 04:
I understand your position that it's zero plus zero plus zero.

[00:17:00] Speaker 04:
But the IJ said, well, he hasn't committed any crimes in Cambodia.

[00:17:05] Speaker 04:
Therefore, he has a zero likelihood of being tortured as a criminal.

[00:17:10] Speaker 04:
And yet, this guy is a criminal.

[00:17:11] Speaker 04:
He spent 29 years in prison.

[00:17:13] Speaker 04:
He's a murderer.

[00:17:15] Speaker 04:
And the IJ didn't deal with that at all.

[00:17:21] Speaker 01:
Yes, Your Honor.

[00:17:21] Speaker 01:
I think, first, it is undisputed.

[00:17:23] Speaker 01:
He has not committed any crimes in Cambodia.

[00:17:26] Speaker 01:
As for his criminal record in the United States, there's no evidence in the record that the American government shares that information with the Cambodian government.

[00:17:35] Speaker 04:
Petitioners own- No, but the likelihood of somebody finding out that he spent 29 years in prison because he is not dealt with.

[00:17:47] Speaker 04:
And it seems to me it's quite likely that somebody is going to find that out.

[00:17:52] Speaker 04:
Yes, go ahead.

[00:17:56] Speaker 01:
I was just going to note that petitioners owned country conditions evidence on page

[00:18:02] Speaker 01:
540 and 541 of the record states that deportees specifically from America who have criminal records then have a clean record in Cambodia.

[00:18:13] Speaker 01:
There's simply not evidence in the record to support a likelihood of torture based on for that reason.

[00:18:19] Speaker 01:
And this court would have to find evidence compelling that conclusion.

[00:18:24] Speaker 02:
Well, not if we find that

[00:18:32] Speaker 02:
the IJ applied the wrong legal standard, then we would just remand as we're required to do under Ventura.

[00:18:42] Speaker 02:
You're saying that if we were wanted to grant relief, we would have to say that, but I do find that lack of discussion of this criminal history in the United States somewhat troubling given

[00:19:03] Speaker 02:
That's an obvious basis for concluding that he would end up homeless or beat up or lacking adequate medical care or, you know, when you consider all of the characteristics of his plight as a whole, which the IJ did not do here.

[00:19:26] Speaker 01:
Your Honor, we would dispute that the IJ did not fully consider the claim.

[00:19:30] Speaker 01:
And with regard to, if that would be a legal error, that would be reviewed de novo.

[00:19:37] Speaker 01:
Although, if Your Honor's suggestion is that it puts him at an increased risk of ending up in detention, we would then still need, you know, a more likelihood than not of torture in detention.

[00:19:50] Speaker 01:
And we simply don't have that on this record.

[00:19:52] Speaker 04:
But the IJ just didn't deal with that.

[00:19:55] Speaker 04:
He didn't say that.

[00:19:56] Speaker 04:
He said, well, he's not going to be persecuted as a, tortured as a criminal because he hasn't done anything in Cambodia.

[00:20:05] Speaker 04:
And you say, well, nobody would ever find out because he had no criminal record in Cambodia, and there's evidence about it.

[00:20:12] Speaker 04:
But the DIJ doesn't say that, and that seems kind of questionable.

[00:20:17] Speaker 01:
That would, however, be a factual finding because that factual finding that he does not fit into these categories of at-risk individuals is a factual finding based on petitioner's characteristics.

[00:20:30] Speaker 01:
That would be separate.

[00:20:32] Speaker 01:
My understanding is that would be separate from this aggregation error that petitioner is claiming.

[00:20:37] Speaker 01:
But under Cruz and under Zamorano, which are decisions by this court in 2025 and 2024,

[00:20:43] Speaker 01:
The court has applied two legal errors of this sort.

[00:20:47] Speaker 01:
The harmless error rule, a species of the harmless error rule asking, is there material evidence in the record that would potentially change the outcome of this case?

[00:21:00] Speaker 01:
So that is something that the court is empowered to do.

[00:21:02] Speaker 01:
The question in those cases were, was there evidence that could have materially affected the agency's decision or material enough to carry his burden?

[00:21:13] Speaker 02:
I don't think that's our harmless error rule in immigration.

[00:21:17] Speaker 02:
That's, you know, in criminal cases.

[00:21:19] Speaker 02:
But we've explained that when the agency commits legal error, we do not ignore the error to see if substantial evidence nevertheless supports the agency's determination.

[00:21:33] Speaker 02:
Why would we stray from that rule here?

[00:21:36] Speaker 01:
Well, in Cruz v. Bondi and Zamorano v. Garland, which were two cases considering cat claims,

[00:21:43] Speaker 01:
the agents, this court found that petitioner had to point to this evidence in the record that could have materially affected his decision that they called that the taking due account of the rule of prejudicial error.

[00:21:55] Speaker 01:
Now those were similar legal errors as to consideration of the record.

[00:22:00] Speaker 01:
We certainly understand, you know, your honors can, if you would prefer to remand this case, the government's position here is that, um,

[00:22:08] Speaker 01:
If any error occurred, it was harmless based on this very speculative claim that petitioner has put forth.

[00:22:14] Speaker 01:
What we have at the end of the day is relying on the country conditions evidence to meet his burden.

[00:22:21] Speaker 01:
And looking to the country conditions evidence, which the immigration judge did fully consider,

[00:22:28] Speaker 01:
Our position is that he has not met his burden here.

[00:22:30] Speaker 01:
The immigration judge fully considered torture, the risk of torture from the one source that he articulated, a fear.

[00:22:39] Speaker 02:
So, counsel, going back to the discussion of harmless error, can you point to a case that assume for a minute that I think that we find, even though it's

[00:22:53] Speaker 02:
I don't know how we're going to end up with deciding this case, but assume we were to find aggregation analysis error.

[00:23:05] Speaker 02:
Can you point to a case where in that situation we nonetheless proceeded to a harmless error analysis and didn't remand to the BIA or the agency?

[00:23:19] Speaker 01:
not in the aggregation context specifically.

[00:23:22] Speaker 02:
We're talking about the aggregation context here.

[00:23:25] Speaker 02:
So I think our law consistently says you remand to the agency for it to consider the correct application of the law in the first instance.

[00:23:36] Speaker 02:
And I don't think we've changed that rule.

[00:23:41] Speaker 01:
Yes, Your Honor.

[00:23:42] Speaker 01:
Pointing to Ira Hedda Martinez, this court still can deny the petition even when the agency did not make it perfectly clear that it was performing an aggregation analysis.

[00:23:53] Speaker 01:
What do you mean perfectly clear?

[00:23:57] Speaker 01:
Those were the words of Ira Heta-Martinez.

[00:23:59] Speaker 01:
That was a quote from that case.

[00:24:02] Speaker 01:
If your honors believe that the agency did not make it clear on the face of the record that the aggregation.

[00:24:08] Speaker 02:
Well, I think this case, I don't see any ambiguity in this case.

[00:24:12] Speaker 02:
He did not aggregate everything, including a major characteristic of the petitioner, his having spent 29 years in an American prison for a crime he committed at age 16.

[00:24:27] Speaker 01:
Your honor, we submit that this sentence on page 81, he does not fall into any of these categories that make him high risk.

[00:24:35] Speaker 01:
That is holistically and fully considering the potential harm from the government.

[00:24:40] Speaker 01:
And if your honor believes that it was a factual error that he does not fit into any of the high risk categories that would be reviewed for substantial evidence.

[00:24:50] Speaker 01:
I do not see this sentence on page 81 to be any of the, um,

[00:24:55] Speaker 01:
hypothetical illustrative examples regarding JFF that your honors were discussing previously.

[00:25:01] Speaker 01:
This sentence on page 81, our position is that this represents a full consideration.

[00:25:07] Speaker 02:
Which sentence on page 81 is the full analysis?

[00:25:14] Speaker 01:
Yes, Your Honor.

[00:25:17] Speaker 01:
We don't have anything other than really bad human rights conditions in Cambodia generally with regard to political opposition, people, protesters, criminals, things of that nature.

[00:25:27] Speaker 01:
And respondent at this point doesn't fall into those categories.

[00:25:31] Speaker 01:
He hasn't committed any crimes in Cambodia.

[00:25:33] Speaker 01:
He hasn't protested.

[00:25:35] Speaker 01:
He's not a member of the political opposition.

[00:25:37] Speaker 01:
That to me seems like a full holistic analysis of the one source of potential harm that petitioner claimed, and an error arising from that sentence would be a factual error.

[00:25:58] Speaker 03:
So I'm looking at page 81.

[00:26:00] Speaker 03:
I don't see anything in the IJ's decision addressing Mr. Maithong's criminal record in the United States.

[00:26:11] Speaker 03:
I know he raised other claims that he then abandoned on appeal such as access to medical care for his

[00:26:19] Speaker 03:
for his cancer, but did he raise that argument that he has a criminal record in the United States and that that would be disclosed in Cambodia?

[00:26:28] Speaker 03:
Was that an argument that he made?

[00:26:31] Speaker 01:
No, Your Honor, pages 131 and 133 of the record is where Mr. Mitong articulates the basis of his fear claim.

[00:26:40] Speaker 01:
He discusses his American beliefs and values and principles and his fear of someone overhearing him and reporting back to the government on those principles.

[00:26:50] Speaker 01:
And he fears that because of his Americanized identity, he might be targeted from the government.

[00:26:55] Speaker 01:
There was no articulation of a fear claim based on that criminal record.

[00:27:02] Speaker 01:
There was, of course, discussion of it in the testimony, but that was not the basis of the claim.

[00:27:07] Speaker 01:
Nor is it the basis of the claim that Petitioner raises in his opening brief, as he makes clear that the two categories he's generally contesting are the outsider status and the political beliefs.

[00:27:23] Speaker 01:
If your honors have no further questions, we do submit that this claim was fully and cumulatively considered and the IJ was not then required to articulate a separate aggregation analysis after the once the one feared source was fully considered.

[00:27:37] Speaker 01:
Thank you.

[00:27:39] Speaker 01:
Thank you, counsel.

[00:27:52] Speaker 00:
The government says that the IJ did not have to articulate the aggregation analysis standard.

[00:27:57] Speaker 00:
That reflects that the IJ wasn't even considering the aggregation rule.

[00:28:01] Speaker 00:
the IJ did not consider all of Mr. Mee Tong's risks underlying his risk of torture.

[00:28:06] Speaker 00:
That includes his criminal background because that also contributes to his overall risk of torture.

[00:28:12] Speaker 03:
So the government says that that was not raised below.

[00:28:14] Speaker 03:
Was it?

[00:28:15] Speaker 03:
Can you point to the record where that was raised?

[00:28:17] Speaker 00:
Yeah, outsider status.

[00:28:18] Speaker 03:
Not outsider status.

[00:28:19] Speaker 03:
That's the, you know, they don't like people who come from the United States.

[00:28:22] Speaker 03:
He has an accent.

[00:28:24] Speaker 03:
He doesn't speak Cambodian well.

[00:28:26] Speaker 03:
But specifically what Judge Schroeder was asking about,

[00:28:29] Speaker 03:
criminal record here in the United States such that he would be considered a criminal in Cambodia.

[00:28:34] Speaker 00:
But that is just a subset of the aggregation error because the agency did not consider all of the risks and that is just one example of the risk that you did not consider.

[00:28:41] Speaker 03:
But was that risk presented to the agency is my question.

[00:28:44] Speaker 00:
Certainly.

[00:28:45] Speaker 00:
Mr. Mutong said that the agency erred because it did not aggregate the risks.

[00:28:49] Speaker 00:
This is just an example of that because it is a risk.

[00:28:51] Speaker 03:
But what I'm getting from your answer or non-answer is that you're not pointing me to anywhere in the record where he made this specific argument so that the,

[00:29:00] Speaker 03:
It's difficult to fault the IJ for not considering something that was not presented.

[00:29:04] Speaker 03:
And the specific argument was he committed a serious crime in the United States, spent a very long period of time in prison, and that that's a reason why he'd be considered a criminal in Cambodia and be in danger.

[00:29:16] Speaker 00:
The IJ affirmatively said he is not a criminal despite, as the government concedes, the testimony before the IJ that said he had been convicted of a crime.

[00:29:25] Speaker 00:
The IJ himself recognized that Mr. Mee Tong had spent almost three decades in prison.

[00:29:30] Speaker 04:
So this was... He didn't say he was not a criminal.

[00:29:32] Speaker 04:
He said he hasn't committed any crimes in Cambodia.

[00:29:38] Speaker 04:
So is that a legal, a factual error or is that a legal error in applying the...

[00:29:46] Speaker 04:
I'm not quite sure what to do with it.

[00:29:49] Speaker 00:
It's a legal error in the sense that he did not consider that risk, which contributes to the overall risk of torture.

[00:29:56] Speaker 00:
On the remedial question, the government invokes the wrong legal standard.

[00:30:01] Speaker 00:
The government suggested that because the evidence here does not compel the conclusion that Mr. Mitang will face torture in Cambodia, that that means remand is unwarranted.

[00:30:10] Speaker 00:
That is not the standard.

[00:30:12] Speaker 00:
The panel knows the standard is whether it would be an idle and useless formality to remand this case.

[00:30:19] Speaker 00:
And here it would not be a useless and idle formality because the IJ's opinion running through it.

[00:30:25] Speaker 00:
is the incorrect notion that simply because individual risks are unlikely to transpire, that means that torture is unlikely to transpire.

[00:30:34] Speaker 00:
That is wrong under Velasco Semeira and several other cases where this court has remanded for failure to apply the aggregation rule.

[00:30:44] Speaker 00:
And the government cites not a single case in which an aggregation error resulted in this court then wondering whether how the agency applied

[00:30:53] Speaker 00:
the correct irrigation standard, the agency would have reached the same conclusion.

[00:30:58] Speaker 00:
And that makes a lot of sense because the Supreme Court in wages recently said that even if the court, the Supreme Court suspects a significant likelihood that the agency will reach the same result on remand, that is not enough.

[00:31:12] Speaker 00:
So given the agency's legal error here, we would ask that the court vacate the agency's decision and remand so that the agency can apply the correct legal standard.

[00:31:22] Speaker 02:
All right, thank you council.

[00:31:24] Speaker 02:
I also want to thank you and co-council and our Carrington insect clip for Representing mr. Mythong pro bono.

[00:31:34] Speaker 02:
Thank you.

[00:31:34] Speaker 02:
Thank you.

[00:31:35] Speaker 02:
Excellent argument Okay, mythong versus bondi is submitted and we'll take