[00:00:02] Speaker 03:
Good morning, Your Honor.

[00:00:05] Speaker 03:
May it please the Court.

[00:00:06] Speaker 03:
Sarah Kirby, law student representative for the petitioner.

[00:00:09] Speaker 03:
In this case, Edwin Humberto Artigo Morales.

[00:00:12] Speaker 03:
I'd like to reserve five minutes for rebuttal for my colleague Blanca Pena.

[00:00:16] Speaker 04:
All right.

[00:00:17] Speaker 03:
Thank you.

[00:00:18] Speaker 04:
So you have 10 minutes.

[00:00:19] Speaker 04:
That's your total time.

[00:00:20] Speaker 04:
And we'll put five minutes up when your colleague comes.

[00:00:23] Speaker 03:
Yes, Your Honor.

[00:00:26] Speaker 03:
Our client Edwin has lived in the United States for four decades.

[00:00:30] Speaker 03:
He now faces deportation to El Salvador, a country entering its fourth year under the state of exception.

[00:00:37] Speaker 03:
In the words of Salvadoran President Nayib Bukele, the war on gangs will only end when every former active and suspected affiliate of gang members is in prison or dead.

[00:00:51] Speaker 03:
Six of the seven country condition reports submitted identify factors that heighten individuals risk of being targeted under the state of exception.

[00:00:59] Speaker 03:
And our client Edwin checks all of those boxes.

[00:01:02] Speaker 03:
He is a former MS-13 gang member.

[00:01:05] Speaker 03:
He has a criminal record.

[00:01:06] Speaker 03:
He is branded with four MS-13 tattoos on his chest on the back of his calves.

[00:01:12] Speaker 03:
He also has family ties to his cousin, who's been arrested under the state of exception, Oscar.

[00:01:18] Speaker 03:
It's been two years now, and their family still doesn't know where Oscar is today.

[00:01:22] Speaker 03:
The IJ, the immigration judge, knew that Edwin is a former gang member.

[00:01:28] Speaker 03:
And despite his repeated attempts to explain to prison officials that he'd left this gang 20 years ago, his criminal record continues to label him as such.

[00:01:38] Speaker 04:
So is your only seeking relief under the cat, is that correct?

[00:01:44] Speaker 03:
That's correct, Your Honor.

[00:01:46] Speaker 04:
So you have to show that substantial evidence does not support the agency determination of a lack of probability of being tortured.

[00:01:58] Speaker 03:
That's correct, Your Honor.

[00:01:59] Speaker 04:
So your argument is that the evidence you're citing refutes that finding?

[00:02:08] Speaker 03:
that's what you're talking about.

[00:02:10] Speaker 03:
Yes.

[00:02:11] Speaker 03:
So throughout the there's multiple reports of torture at the hands of the Salvadoran government.

[00:02:16] Speaker 01:
I think one of the one of the issues here is that the I J. thought that this evidence was not particularized didn't show a particularized risk to your

[00:02:34] Speaker 01:
sort of includes a lot of the evidence, sort of, that you're talking about today.

[00:02:39] Speaker 01:
What should we make of the fact that there are no specific—there's no specific information in that report or anywhere, as the IJ noted, relating to specific individuals who want to harm your client in particular, as opposed to sort of these broad and overgeneralized statements about

[00:02:59] Speaker 01:
the president's intent and even some of the pretty egregious circumstances in the prisons.

[00:03:07] Speaker 03:
Yeah, thank you for that question.

[00:03:09] Speaker 03:
So under Ruiz-Colmenares, I believe that case law holds the petitioner doesn't need to be named specifically in the reports in order for them to demonstrate that they face a risk.

[00:03:23] Speaker 03:
So Edwin is part of a certain group of people, unsavory,

[00:03:28] Speaker 03:
a group in El Salvador, which is understandable because the gangs have wreaked havoc in that country.

[00:03:34] Speaker 03:
However, currently, there is a pattern and a practice of indiscriminate killings.

[00:03:41] Speaker 03:
There is essentially impunity for all government officials

[00:03:45] Speaker 03:
In any police confrontations, they are able to kill individuals, and if they are suspected of gang membership or affiliation, it isn't counted as a homicide in the data.

[00:03:56] Speaker 03:
So a lot of the statistics that we're seeing isn't reflecting the actual number of deaths.

[00:04:01] Speaker 01:
But you would agree that it is your burden to be able to show the particularized risk of torture.

[00:04:10] Speaker 01:
So I'm trying to figure out where's that line?

[00:04:12] Speaker 01:
Where do we go from, okay, we have this sort of generalized information, where does it tip in favor of sort of that particularized risk?

[00:04:23] Speaker 03:
So Edwin kind of hit some of those main categories that really make him more vulnerable than others.

[00:04:29] Speaker 01:
The branded tattoos on his body is one of the first things that immigration officials will see as one of the first things that prison, that police officers- And specifically, maybe you can answer this question by pointing to where in the record this evidence exists since, as Judge Rawlinson pointed out, what we need to be able to determine is whether substantial evidence in the record supports or does not support the agency's decision.

[00:04:53] Speaker 03:
Yeah, I think the Chrysosol Report is a great place to look at.

[00:04:58] Speaker 03:
It starts on page 358.

[00:05:00] Speaker 03:
There is a table of 153 deaths from various different prisons.

[00:05:06] Speaker 03:
It's not just one prison that we're getting these examples from, but there are deaths reported, beatings leading to skull fractures, blunt force trauma, punctured lungs, septic abdomens, malnutrition,

[00:05:17] Speaker 03:
strangulation, hanging.

[00:05:19] Speaker 03:
The immigration judge here didn't engage with any of these sources.

[00:05:24] Speaker 03:
In fact, on page 36, she stated, the evidence doesn't suggest that the Salvadoran government is intentionally harming inmates.

[00:05:32] Speaker 03:
But we have examples of guards telling inmates that they will be electrocuted if they tell human rights investigators what's going on in the prisons.

[00:05:41] Speaker 03:
We have a 14-year-old boy detained by the police whose fingers are crushed in pincers and his face is submerged in water in order to elicit a gang confession.

[00:05:50] Speaker 03:
And under El Salvadoran law, it doesn't matter if you have disassociated or left the gang, there are still enhanced criminal penalties for any individual, once in the gang, always in the gang.

[00:06:02] Speaker 00:
I think there are maybe two separate issues here that it would be helpful to think about separately.

[00:06:06] Speaker 00:
One is, is he at particularized risk of something?

[00:06:11] Speaker 00:
and the other is, is he more likely than not to be tortured?

[00:06:15] Speaker 00:
And some of the evidence you're pointing to, the Salvadoran government is not just randomly putting people in prison, they're putting people in prison as a campaign against the gangs, and he has tattoos that indicate he's in the gang, so that does seem particularized.

[00:06:31] Speaker 00:
But the board also found, even if he's imprisoned, they said his susceptibility to being detained

[00:06:41] Speaker 00:
does not equate to a likelihood of torture.

[00:06:43] Speaker 00:
So what is there in the record that not only allows but would compel the conclusion by a reasonable fact finder that if he's in prison that he is more likely than not to suffer torture?

[00:06:59] Speaker 03:
I think because of those risk factors that I mentioned previously, this case is similar to Velasquez-Samayoya.

[00:07:05] Speaker 03:
They have similar risk factors.

[00:07:07] Speaker 03:
They were both former gang members, and they have gang tattoos.

[00:07:10] Speaker 03:
So those particular features is what increases individuals' risk of being targeted and for their deaths not to be recorded, for their bodies potentially to be buried in unmarked graves.

[00:07:24] Speaker 03:
So I think that Edwin was the only one that offered evidence in this case at the trial level.

[00:07:30] Speaker 03:
There were 7 reports and when you go through those reports, all of them are demonstrating that there are human rights abuses happening, there is torture happening and that those who are targeted most are individuals exactly like Edwin.

[00:07:42] Speaker 00:
Dr. McNamara's report describes very disturbing examples of mistreatment in Salvadoran prisons and harsh conditions and has a lot of specific examples about cases of torture but it's a very high burden to show that it is more likely than not that any given inmate would suffer torture and

[00:08:08] Speaker 00:
That's what I read the board to have thought that that was what was missing.

[00:08:12] Speaker 00:
So why was the board wrong about that?

[00:08:15] Speaker 03:
Well, Your Honor, I would dispute the idea that this is a very high burden.

[00:08:19] Speaker 03:
CAT is 51% likelihood.

[00:08:22] Speaker 03:
So that's a preponderance of the evidence.

[00:08:23] Speaker 03:
In civil cases, that's like the level of evidence you would need for a contract.

[00:08:28] Speaker 03:
It's not the lowest evidence necessary in an immigration context.

[00:08:34] Speaker 03:
Asylum is 10%.

[00:08:35] Speaker 03:
However, 51% is akin to flipping a coin.

[00:08:39] Speaker 00:
Well, but in the context of lots of people in prison, what 51% means is, are most of those people going to suffer torture?

[00:08:50] Speaker 00:
And that's what, I mean,

[00:08:54] Speaker 00:
something less than 50% of people could be tortured and it would still be very, very bad.

[00:08:58] Speaker 00:
But the legal standard is 51% and that's what I'm not sure Dr. McNamara really established.

[00:09:09] Speaker 03:
Yeah, I think one way to also look at it is chronologically.

[00:09:13] Speaker 03:
So he might not be stopped at the airports by immigration officials.

[00:09:16] Speaker 03:
He might not be stopped by police blockades.

[00:09:19] Speaker 03:
He might avoid going to the prisons for several weeks.

[00:09:23] Speaker 03:
But it's really not a question of if.

[00:09:24] Speaker 03:
It's a question of when, because the state of exception has been going on now almost four years.

[00:09:31] Speaker 03:
This is a war on gangs.

[00:09:33] Speaker 03:
There has been

[00:09:35] Speaker 03:
many, many, many examples, which I wish I could get more into about what's happening in the prisons across the country, not just in one, not just some rogue officials.

[00:09:43] Speaker 03:
It's a pattern and a practice.

[00:09:47] Speaker 04:
That's the second time you've talked about pattern and practice, but was that argument made before the agency?

[00:09:54] Speaker 03:
So Edwin's basic claim that he will be suspected of gang membership and he will be tortured in El Salvador was raised at the trial level.

[00:10:02] Speaker 04:
The specific argument made that there is a pattern in practice of torture against gang members.

[00:10:09] Speaker 04:
Was that argument, specific argument made before the agency?

[00:10:12] Speaker 03:
I think it could have been made more eloquently, Your Honors.

[00:10:18] Speaker 03:
If there are no further questions, I'd like to save the rest of my time for rebuttal.

[00:10:21] Speaker 04:
All right.

[00:10:21] Speaker 04:
Thank you, Counsel.

[00:10:22] Speaker 03:
Thank you.

[00:10:25] Speaker 04:
We're here from the government.

[00:10:33] Speaker 05:
May it please the court, Andrea Jeevis, on behalf of the Attorney General.

[00:10:37] Speaker 05:
This court should deny the instant petition for review because petitioner has not met his burden of showing he qualifies for deferral of removal under CAP, which is the only available remedy to him.

[00:10:48] Speaker 05:
Specifically, as the agency properly concluded, Petitioner did not show it was more likely than not he would be tortured in El Salvador because he showed neither a particularized risk of torture or harsh prison conditions specifically intended to torture him.

[00:11:06] Speaker 00:
I don't really understand what the board said about particularity.

[00:11:12] Speaker 00:
The evidence that he put in was that the Salvadoran government is not just randomly imprisoning people from the general population.

[00:11:21] Speaker 00:
They're targeting people who they think are in gangs.

[00:11:24] Speaker 00:
And he's someone who they would think was in a gang.

[00:11:28] Speaker 00:
Doesn't that mean that he is at a particularized risk?

[00:11:31] Speaker 00:
Whether or not it's enough to ultimately prevail is a separate question, but he is at a particularized risk that some other person off the street might not be, isn't he?

[00:11:42] Speaker 05:
to the fact that only 3,000 of 70,000 detainees were prior gang members.

[00:12:03] Speaker 05:
Even petitioner himself said that 75% of the individuals detained had no

[00:12:11] Speaker 05:
the facts of her report, it does not show that because she's a gang member he would be particularized.

[00:12:20] Speaker 01:
You're not suggesting that there needs to be some sort of specific mention of his name or the people who would intend

[00:12:26] Speaker 01:
to torture him.

[00:12:28] Speaker 01:
That's not the level of detail that's necessary, correct?

[00:12:32] Speaker 01:
Correct.

[00:12:32] Speaker 05:
Not specifically, but it has to be more than generalized, country conditions.

[00:12:36] Speaker 01:
Okay, but we would agree that Dr. McNamara's report is not talking about, you know, there are specific factors that are being used to determine who to detain under the decree.

[00:12:49] Speaker 01:
that they're using to sort of detain people.

[00:12:53] Speaker 01:
And those include gang affiliation, things that are used to identify people affiliated with gangs, like tattoos.

[00:13:00] Speaker 01:
And so this information puts Mr. Artiga in the right place.

[00:13:05] Speaker 01:
within the ambit of the kinds of people that the government is looking to detain.

[00:13:09] Speaker 01:
You would agree with that, right?

[00:13:10] Speaker 05:
Correct, yes.

[00:13:11] Speaker 05:
But when you get to her facts of her report, it does not say that the gang member, like I said, 3,000 of 70,000 is a much lower percentage than 50%.

[00:13:20] Speaker 05:
She's talking about generalities, and this does not pertain specifically to Mr. Petitioner.

[00:13:27] Speaker 00:
They're two case recent— Maybe I'm

[00:13:30] Speaker 00:
I thought in answer to Judge Desai's question, you said that there doesn't have to be something specifically about Artigo Morales himself, does there?

[00:13:41] Speaker 00:
Let me ask you a hypothetical to illustrate the point.

[00:13:44] Speaker 00:
I mean, suppose that you have the government in a particular country is imprisoning and torturing members of a particular religious minority.

[00:13:53] Speaker 00:
And you have country conditions report that establishes that.

[00:13:56] Speaker 00:
And then you have a petitioner who says, I am a member of that religious minority.

[00:14:01] Speaker 00:
Doesn't that establish a particularized risk of torture, even if there isn't any document that says they want to torture him by name?

[00:14:11] Speaker 05:
Yes, but I think the recent cases that I've cited on in my brief would illustrate that this court has held gang membership, tattoos, and other factors that the judge mentioned did not make him particularly vulnerable to torture.

[00:14:24] Speaker 05:
And the one case is Andradev versus Garland.

[00:14:28] Speaker 05:
Just because you have these factors does not mean it's going to be particular to you.

[00:14:32] Speaker 05:
These were general country conditions that Dr. McNamara

[00:14:38] Speaker 05:
raised in her report, yet when she did not show how it directly affected Petitioner.

[00:14:48] Speaker 04:
Counsel, the situation described by Judge Miller, wouldn't that be a pattern of practice case?

[00:14:53] Speaker 05:
Yes, and as you noted earlier, pattern of practice was never raised before the agency.

[00:14:58] Speaker 05:
The only two issues that we were raised before the agency and discussed is particularized risk and the harsh prison conditions, which this is petitioners burden to show that he has a particularized risk of torture and that the harsh prison conditions are designed specifically by government officials to torture.

[00:15:18] Speaker 05:
which the facts also do not support as less than 1% of the detainees died in prison according to the reports.

[00:15:27] Speaker 05:
El Salvador also has built a new mega prison to alleviate the prison conditions because there was overcrowding.

[00:15:34] Speaker 05:
So they are proactively trying to fix prison conditions.

[00:15:38] Speaker 05:
And those were the only two issues properly before this court.

[00:15:47] Speaker 05:
And if there's any other questions.

[00:15:51] Speaker 05:
I'd like to just reiterate that it's petitioners' burden to show that there was a likelihood of torture, which he failed to do.

[00:16:00] Speaker 05:
There's two recent cases, Andrade and Hernandez, on respondents brief pages 24 to 25, which had similar facts of former gang members, someone with a tattoo.

[00:16:12] Speaker 05:
And this court said that he was not particularly vulnerable to violence and denied cat deferral in both of those cases.

[00:16:21] Speaker 05:
And that's all, Your Honor.

[00:16:22] Speaker 05:
So in conclusion, the government would argue that this court should deny the petition for review.

[00:16:27] Speaker 05:
Petitioner has not showed either particularized risk or harsh prison conditions specifically intended to torture, and therefore did not show it was more likely than not he would be tortured in El Salvador.

[00:16:39] Speaker 04:
Thank you, counsel.

[00:16:39] Speaker 04:
Thank you.

[00:16:41] Speaker 04:
Rebuttal.

[00:16:49] Speaker 02:
Good morning, Your Honors.

[00:16:51] Speaker 02:
The Supreme Court under Yi held that an issue is adequately preserved for further review if the basic claim was raised below.

[00:16:57] Speaker 02:
As appellants, we are not tied to any precise arguments made.

[00:17:00] Speaker 02:
Here, Edwin's basic claim at the IJ is that he will be perceived as a gang member upon arrival to El Salvador and be subsequently tortured due to his multiple risk factors.

[00:17:11] Speaker 02:
At the BIA, the issues continue to be raised.

[00:17:14] Speaker 02:
In the brief, it was mentioned that there was particularized risk, lack of legitimacy to the expert reports, state intent, acquiescence, the substantial evidence standard, and multiple sources of harm.

[00:17:26] Speaker 04:
So as we ask your colleague, what is the evidence of a particularized risk?

[00:17:34] Speaker 02:
Yes, Your Honor.

[00:17:35] Speaker 02:
So it has been a statewide policy for years now in El Salvador to exterminate people exactly like Edwin.

[00:17:44] Speaker 02:
Edwin has multiple risk factors.

[00:17:45] Speaker 02:
He is a former gang member.

[00:17:47] Speaker 02:
He has a criminal history.

[00:17:48] Speaker 02:
He will have a deportee status if he is returned.

[00:17:51] Speaker 02:
He is branded with four MS-13 tattoos on his body, two artistic tattoo sleeves on his arms.

[00:17:57] Speaker 02:
He has familial ties to prisons and he has a gang membership label on his prison records.

[00:18:02] Speaker 01:
So let's say we agree with the idea that the government orders and practice of detaining folks with these kinds of indicia of gang membership satisfies the particularized risk of torture.

[00:18:18] Speaker 01:
Can you speak briefly about

[00:18:20] Speaker 01:
I think the question that Judge Miller asked about to your colleague, which is, what do we look at in the record to establish or demonstrate that it's more likely or not that he will be tortured with government acquiescence?

[00:18:34] Speaker 02:
yes your honor so in the record it states multiple times there's on page 221 and on 230 that lists all of Edwin's risk factors and how that puts him at risk of being detained but it is important to note that being detained and being in prison is not his only source of torture that he can experience once he arrives to El Salvador there are countless examples of

[00:18:56] Speaker 02:
people being electrocuted in prison.

[00:18:58] Speaker 02:
There have been a lot of reports that as soon as people are arrested and arrive to the prisons, they are forced to kneel on hot gravel in the beaming sun for hours, and they are beat with batons and with the butts of rifles.

[00:19:09] Speaker 01:
Does the failure to notify families about missing persons in the prisons, is that something that we can look at as evidence?

[00:19:19] Speaker 01:
of torture?

[00:19:20] Speaker 02:
So the failure to alert family members may not be exactly the kind of, it might not rise to the level of torture, but that does point to state intent.

[00:19:29] Speaker 02:
And the state's intent to torture people exactly like Edwin and have them miss any medications or any food that the family members might bring them.

[00:19:41] Speaker 02:
And that's intentional starvation and making them

[00:19:46] Speaker 02:
not have any of the nutrition that they need.

[00:19:48] Speaker 02:
There's further evidence in the record that there have been reports of people's fingers being crushed with pincers.

[00:19:56] Speaker 02:
Fatal beatings alone is mentioned 22 times across the record.

[00:20:01] Speaker 02:
And these are things that the IJ nor the BIA ever engaged with.

[00:20:04] Speaker 02:
There are reports of people being hanged.

[00:20:07] Speaker 02:
There are reports of people being submerged in water until they confess that they're a gang member.

[00:20:12] Speaker 02:
Reports of strangulation at the end of the Christmas all report.

[00:20:16] Speaker 02:
There is a table listing the causes of death for numerous of People that were arrested people that have stabbings to the eye broken rib cages septic abdomens cracks in their hands and their feet neck fractures blows to the head and asphyxiation and those are only to name a few

[00:20:34] Speaker 02:
And again, Edwin's source of torture is not just in prison.

[00:20:39] Speaker 02:
Edwin can also encounter police officers on the streets that are strip searching people and beating them before they're even arrested, airport officials who already have access to his deportee's criminal history record and will already be able to put him in jail as soon as he arrives, extrajudicial killing squads that are ordered by the government to prowl the streets and constantly hunt for people exactly like Edwin.

[00:21:01] Speaker 02:
community members who call into anonymous tip lines whenever they see anybody that looks suspicious or nervous, rival gang members from the Barrio 18 gang who will want to harm Edwin because he is in a rival gang, members from the MS-13 gang who, if finding out that Edwin was a part of MS-13 and left the gang previously, will want to harm him as well.

[00:21:20] Speaker 00:
Those last two, though, his gang and the other gang, how would that be with the consent or acquiescence of the Salvadoran government?

[00:21:28] Speaker 00:
I mean, the record you've established is that

[00:21:30] Speaker 00:
the government is making great, perhaps too great, efforts to suppress the gangs, right?

[00:21:37] Speaker 02:
So, Your Honors, the ends don't justify the means, and so one of the means that the government has been taking is making truces with gangs and

[00:21:45] Speaker 02:
that they are willing to take into account the fact that the government has been colluding with them and allowing them to harm themselves because that is that is the point.

[00:21:52] Speaker 02:
And if they can use less resources on their end and have them beat themselves up.

[00:21:56] Speaker 02:
That is what they want.

[00:21:58] Speaker 02:
And they're willfully blind to that.

[00:21:59] Speaker 02:
It has also been reported that the government doesn't even take into account random disappearances from

[00:22:09] Speaker 02:
They are constantly trying to hide the homicide rates and they will do whatever it takes to exterminate people exactly like Edwin.

[00:22:19] Speaker 02:
Your honors, once again, this is not a matter of if Edwin will be tortured, but when.

[00:22:24] Speaker 02:
It is undeniable that Edwin faces an imminent and particularized risk of torture if removed to El Salvador.

[00:22:30] Speaker 02:
The lower court's failure to grasp the substantial evidence by not properly engaging with the record, refusing to consider the totality of the circumstances, and dismissing clear evidence of state-sponsored torture amounts to reversible error.

[00:22:43] Speaker 02:
Accordingly, petitioner respectfully urges this court to remand to the lower courts with instructions to properly engage with the record and correctly aggregate Edwin's risk of torture if returned to El Salvador.

[00:22:54] Speaker 04:
Thank you, counsel.

[00:22:55] Speaker 04:
You've exceeded your time.

[00:22:56] Speaker 04:
Yes, thank you.

[00:22:57] Speaker 04:
We thank you.

[00:22:57] Speaker 04:
And on behalf of my circuit, we thank the law students for coming here to represent this petitioner.

[00:23:04] Speaker 04:
The case just argued is submitted for decision by the court.

[00:23:07] Speaker 04:
We thank all counsel for your helpful arguments.