[00:00:00] Speaker 01: Court of Appeals for the Ninth Circuit is now in session. [00:00:03] Speaker 01: Please be seated. [00:00:12] Speaker 01: Good morning, everyone. [00:00:14] Speaker 01: We have a very long calendar today, so please be mindful of your time. [00:00:19] Speaker 01: The cases will be called in the order listed on the docket. [00:00:22] Speaker 01: The first case, Navarro Como versus Bundy, has been submitted on the briefs. [00:00:27] Speaker 01: The first case on calendar for argument is Surreal versus Bondy. [00:00:33] Speaker 01: Good morning, counsel. [00:00:34] Speaker 00: Good morning, your honor. [00:00:36] Speaker 00: May it please the court. [00:00:38] Speaker 00: My name is David Schlesinger. [00:00:39] Speaker 00: I represent the petitioner Bernard Surreal. [00:00:43] Speaker 00: At bottom, the BIA's final order contains a [00:00:48] Speaker 00: panoply of legal errors, so many so that this Court has many different jurisprudential permutations that it could take to grant Mr. Cirilli's petition for review. [00:01:01] Speaker 00: But with the Court's indulgence, I'd like to focus on one particular path, beginning with the BIA's erroneous nexus determination. [00:01:10] Speaker 00: At a bare minimum, [00:01:14] Speaker 00: the BIA erred because it applied an incorrect standard of review when reviewing the nexus determination that the immigration judge made. [00:01:26] Speaker 00: And this was reaffirmed recently by this court in Umana Escobar v. Garland, which ironically the government itself cited, too, in its supplemental brief. [00:01:39] Speaker 00: Umana Escobar held that applying an incorrect [00:01:44] Speaker 00: nexus standard of review, in this case clear error as opposed to de novo, was a per se ground for reversing that determination. [00:01:57] Speaker 03: read that part of Imana Escobar several times, and I'm not totally sure I understand the distinction it's drawing between it. [00:02:04] Speaker 03: So as I read it, the factual question of what motivated the persecutors is reviewed for clear error, and the legal conclusion as to Nexus is reviewed for, is reviewed de novo. [00:02:20] Speaker 03: Is that your understanding? [00:02:21] Speaker 00: That's correct, Your Honor. [00:02:23] Speaker 03: What is the practical difference between those two things? [00:02:26] Speaker 03: So here the IJ said that there's no evidence as to who these people were and their motive is unknown. [00:02:33] Speaker 03: So if that's a factual finding, how could you possibly conclude that there was nexus if you have a factual finding that you don't know what the people's motive was? [00:02:46] Speaker 00: Well, I would point to the BIA's language itself on AR3, which [00:02:54] Speaker 00: says, we review for clear the immigration judge's determination that the respond did not establish the requisite nexus between a protected characteristic and the harming fears. [00:03:03] Speaker 00: I think that it's very similar to the language that the, that this court in Umana-Escobar found objectionable, which is essentially it goes to the ultimate determination of nexus. [00:03:14] Speaker 00: not simply just the underlying factual findings. [00:03:17] Speaker 03: But I guess my question is, what is there, what does the ultimate determination of nexus entail beyond the factual finding, when the factual finding is we have no idea what the people's motive was? [00:03:31] Speaker 00: Sure, and as Your Honor knows, it's a mixed question of law and fact. [00:03:35] Speaker 00: So you do have those motivations coupled with the actual substance of law. [00:03:41] Speaker 00: And so I think here, [00:03:43] Speaker 00: What's important is that even when you look at the substance as opposed to the standard review, the BIA erred in determining, apart from the standard review issue, that there wasn't action on account of protected grounds. [00:04:03] Speaker 00: In this case, family as a social group [00:04:06] Speaker 00: Mr. Cirilla's nuclear family or his mother's nuclear family and Imputed political opinion imputed to him through his mother's active participation in a Haitian political party, but but how I mean, so Can you can you sort of may sketch out the? [00:04:24] Speaker 03: The opinion that the board could have written if you were writing the board opinion, right? [00:04:30] Speaker 03: The way that you wanted it to come out and they say okay. [00:04:33] Speaker 03: We have this factual finding that [00:04:35] Speaker 03: The motive of the attackers is unknown and we have to review that for clear error and you know assume they don't find it's clearly erroneous and then they say you know nonetheless since we can review nexus de novo we conclude there is nexus because What would they what would they then say? [00:04:54] Speaker 00: well [00:04:56] Speaker 00: I do think, even if you want to consider the facts of findings themselves, Your Honor, that there was clear error because the BIA did overlook actual evidence in the record showing that, and in particular I would point to AR 201 and 202, which is a translation of a judicial document on file in Haiti that was filed contemporaneously with [00:05:22] Speaker 00: the incident itself. [00:05:24] Speaker 02: Mr. Schlessinger, what's our standard of review of the BIA's clear error determination? [00:05:30] Speaker 00: Clear error, any type of factual findings, Your Honor, are reviewed for substantial evidence. [00:05:38] Speaker 00: So, but the nexus determination as a whole. [00:05:42] Speaker 02: So we're looking for anything that either you'd need the record to compel us to make a contrary finding, but if there's anything there that suggests that it wasn't clear error, we have to defer to the agency, right? [00:06:00] Speaker 00: If you're not compelled to conclude to the contrary, Your Honor, but I do suggest that [00:06:06] Speaker 00: A or two or one or two or two are very important parts of this record because it shows that contemporaneous to the incident itself there was an official judicial report lodged and the judicial report [00:06:21] Speaker 00: mentioned, and particularly at the bottom of AR-201, that all the members of the family have been subjected to vicious persecution because of their political opinions. [00:06:32] Speaker 00: And then on the next page, AR-202, that this incident happened after a political meeting where Julia Chan Son and her members of her family categorically refused to participate in a political protest with the goal of destabilizing the administration of power. [00:06:45] Speaker 00: So that's evidence that the BIA [00:06:49] Speaker 00: overlooked in terms of Nexus. [00:06:51] Speaker 00: If you're concerned about reviewing anything of a factual nature, this is very compelling evidence that was overlooked. [00:07:01] Speaker 00: And then you couple that with the incorrect standard of review, it leads this Court, I think, to having to reverse or vacate regarding Nexus. [00:07:16] Speaker 00: And that brings me to the second part of the path that I've suggested, which is that the BIA also erred in determining that Mr. Cirile reasonably could have relocated within Haiti. [00:07:30] Speaker 00: This analysis was flawed because the BIA only seemed to consider whether Mr. Cirile had the capability of relocating, but it didn't separately consider whether it was reasonable for him to do so. [00:07:42] Speaker 00: And it further erred because it didn't consider all the multiple factors set forth in the applicable regulations that this court in a multitude of cases, such as a free AV. [00:07:53] Speaker 02: Isn't this question, Mr. Schlesinger, downstream of any concern about the standard review of persecution? [00:08:01] Speaker 02: What standard are you asking us to review the BIA's persecution determination under? [00:08:08] Speaker 00: Are you referring, Your Honor, to the past? [00:08:11] Speaker 02: The de novo substantial evidence, yeah. [00:08:12] Speaker 00: past persecution It is a separate concept. [00:08:18] Speaker 02: I guess have referring to the well-founded future fear Determination which the bi decided solely on the basis, but if the if the persecution is I think you're asking us to review persecution Well what substantial for substantial evidence or de novo? [00:08:37] Speaker 02: There's a case at the Supreme Court dealing with this so [00:08:42] Speaker 00: I do know that my time is entering into what I hope to reserve for rebuttals. [00:08:48] Speaker 00: I just want to note that, but I would like to answer your question. [00:08:50] Speaker 00: Could you answer the question, please? [00:08:51] Speaker 00: Certainly, Your Honor. [00:08:53] Speaker 00: Persecution as a concept, whether it's past persecution or a well-founded feature, fear of persecution overall is typically reviewed for substantial evidence, but the legal components of those questions are reviewed de novo. [00:09:07] Speaker 00: And as we [00:09:09] Speaker 00: Discussed earlier honor any any factual underlying factual determinations are reviewed for substantial evidence, okay? [00:09:16] Speaker 02: Maybe when you're back. [00:09:17] Speaker 02: I guess I'd like to hear how you Whether and how you assign error to that upstream persecution issue, which then would inform the downstream questions of Relocation and future fear certainly your honor. [00:09:30] Speaker 01: Thank you. [00:09:30] Speaker 01: Thank you counsel. [00:09:31] Speaker 01: We're here from government and [00:09:43] Speaker 04: May it please the Court, Jonathan Robbins here on behalf of the Respondent Attorney General. [00:09:48] Speaker 04: Good morning to all of you. [00:09:49] Speaker 01: Good morning. [00:09:50] Speaker 04: The key question before the Court today is whether the record compels reversal of the agency's denial of asylum, withholding of removal, and cat protection. [00:09:58] Speaker 04: And it sounds like Your Honor is most interested in the question regarding the legal standard regarding [00:10:05] Speaker 04: the Nexus finding so I want to just sort of address that at the outset. [00:10:10] Speaker 04: Your honor is correct that under the law the factual findings pertaining to motive made by the immigration judge are reviewed for substantial evidence. [00:10:18] Speaker 04: And I think your honor's question had to do with what is left in the law to do after that. [00:10:23] Speaker 04: And the answer is not a whole lot. [00:10:25] Speaker 04: There's not a lot of legal analysis left to do if the finding is that there is no motivation, right? [00:10:30] Speaker 04: Because it doesn't take a lot of legal analysis to say that zero doesn't meet a standard. [00:10:35] Speaker 04: But it comes into play more if there's a finding of some motivation. [00:10:39] Speaker 04: Then there's a question, well, okay, how much does the motivation, does it meet the one central reason standard, right? [00:10:44] Speaker 04: That's the quintessential mixed question of fact and law. [00:10:47] Speaker 04: When the facts are undisputed and you have a quantum of evidence, how does that quantum of evidence meet the standard? [00:10:53] Speaker 04: But I don't know that you would need to get into that legal question if there's no quantum of evidence as there is here. [00:10:57] Speaker 03: So is it your view that the board's misstatement of the standard is harmless error here? [00:11:03] Speaker 03: It is. [00:11:03] Speaker 04: In fact, one of the things that the Omana Escobar case pointed out was that it needed to remand because the board hadn't made clear. [00:11:10] Speaker 04: It acknowledged that maybe the board understood the standard but articulated in the wrong way, but the decision didn't make it clear that it applied the right standards to the right things. [00:11:19] Speaker 04: That's not a concern here because the board's decision makes very clear what it's talking about. [00:11:23] Speaker 04: Because after it cites the standard, it says, quote, the record supports the immigration judge's finding that the respondent did not establish that family membership and or a political opinion imputed to the respondent motivated any of the problems that he or his family have experienced. [00:11:37] Speaker 04: So it's clear that it's talking about the record support for motivation. [00:11:41] Speaker 04: It goes on to say in that regard, the records, the record supports. [00:11:44] Speaker 04: So again, getting into the record evidence. [00:11:46] Speaker 04: The immigration judge is finding that the record lacks evidence that a political opinion has been or will be imputed to the respondent based on political opinion. [00:11:54] Speaker 04: So it's clear that what the board is looking at is the evidence of motivation and reviewing the IJ's determination that the record lacked evidence in that regard. [00:12:01] Speaker 03: Did you make a harmless error argument in your brief? [00:12:04] Speaker 03: I didn't understand the brief to be making that kind of an argument. [00:12:09] Speaker 03: Or at least not in the terms of harmless error. [00:12:13] Speaker 04: Well, I was responding to Your Honor's question about Umana Escobar's applicability. [00:12:19] Speaker 04: Understand that this case came out, this board decision was issued before Umana Escobar. [00:12:23] Speaker 04: So in 1984, when the Supreme Court issued its decision in an INS against Elias Zacharias, that was the Supreme Court's seminal Nexus case. [00:12:32] Speaker 04: And there were two main takeaways from that case. [00:12:34] Speaker 04: The takeaways were one, that when we're talking about Nexus, what we're talking about is a motive requirement. [00:12:39] Speaker 04: And then the second thing we take from that case is that's the case where the Supreme Court applied the substantial evidence standard in that case. [00:12:46] Speaker 04: So for many, many years before Umana-Escobar, the board was maybe using loose language, sort of combining the terms nexus and motive, because the Supreme Court had said basically that nexus was motive. [00:12:59] Speaker 04: And so Umana-Escobar takes the board, I think, to task for not being as precise about identifying the bifurcation in the analysis. [00:13:06] Speaker 04: But very often in cases, I mean this case is very common in cases before Umana-Escobar where the board wasn't being as precise in its language. [00:13:14] Speaker 04: But I don't think it's an indication that the board actually erred or misunderstood the standards. [00:13:19] Speaker 02: Wasn't the board's own authority prior to Umana-Escobar, didn't it hold that it was also [00:13:27] Speaker 02: Denovo for legal questions. [00:13:29] Speaker 04: Yes. [00:13:30] Speaker 04: And I don't think the board here is suggesting otherwise. [00:13:33] Speaker 04: I just think it's imprecise language. [00:13:35] Speaker 04: It often says we review the Nexus finding for clear error and then it usually goes into motivation. [00:13:40] Speaker 04: But I think the reason it was doing that was because Nexus and motive were sort of loosely used interchangeably. [00:13:46] Speaker 04: But I don't think there's any indication here that the board misunderstood the standard overview. [00:13:50] Speaker 04: It goes right into the factual findings regarding motivation, and that is supposed to be reviewed for clear error. [00:13:56] Speaker 04: So I don't think there's any error here. [00:13:57] Speaker 04: I think you could maybe accuse the board of using imprecise language in saying that clear error applies to a overall nexus holding without clarifying that what it's talking about is the motivation for the factual findings. [00:14:09] Speaker 04: But then because it goes on to do that, I think if you read it in context, it's clear the board understands that clear error is supposed to apply to motivation findings, a fact. [00:14:19] Speaker 04: And I do want to make one thing clear that I think Umana-Escobar doesn't entirely make clear. [00:14:25] Speaker 04: The board will review that final determination about quantum of evidence applying to a legal standard under its regulations de novo, but I'm not sure that the court would review that de novo. [00:14:38] Speaker 04: That's a mixed question of fact and law, and this court obviously isn't governed by board regulations. [00:14:42] Speaker 04: It's governed by what the Supreme Court has said about mixed questions of fact and law. [00:14:46] Speaker 04: And I'm sure Your Honors have at least a passing familiarity with the U.S. [00:14:50] Speaker 04: bank decision, where the Supreme Court has said that the standards of review that this Court applies, it really turns on the nature of the mixed question. [00:14:58] Speaker 04: Not every mixed question is built the same. [00:15:00] Speaker 04: Some of them lean more factual where the facts are doing the work, and some mixed questions are more legal. [00:15:05] Speaker 04: And the standard of review will turn on which way the mixed question leans. [00:15:08] Speaker 04: And I think it should be apparent that the type of mixed question that is presented when you're looking at [00:15:13] Speaker 04: You know how much motivation meets the one central reason standard what what role did the motivation play? [00:15:19] Speaker 04: That's clearly a mixed question that leans factual So I think your court would still review that determination for under the substantial evidence standard of review Now that that's not to say that there aren't pure legal questions that might be associated with the Nexus finding [00:15:32] Speaker 04: If somebody, for example, was challenging, what does one central reason mean in the statute? [00:15:36] Speaker 04: That's a question of statutory interpretation. [00:15:39] Speaker 04: That's something the court would look at as a pure legal question. [00:15:41] Speaker 04: That's not a mixed question. [00:15:43] Speaker 03: I mean, I take the point that, before I'm on Escobar, maybe the level of precision in how this is described wasn't as high. [00:15:50] Speaker 03: But the first sentence of the board's discussion seems not just imprecise, but just sort of flatly contrary to what [00:15:58] Speaker 03: what they're supposed to do. [00:15:59] Speaker 03: They say we review for clear error the IJ's determination that the respondent did not establish the requisite nexus. [00:16:07] Speaker 03: I mean, I don't see how to read that other than as nexus. [00:16:13] Speaker 03: The whole thing is being reviewed for a clear error. [00:16:17] Speaker 04: That's fair. [00:16:17] Speaker 04: If you believe that this is error, and if you ignore the context where it goes right into the factual findings, and you think that that's error, then I would argue it's harmless error. [00:16:26] Speaker 04: I would argue that it's not error, because when read in context, I think the board is conflating the concepts of motive and nexus. [00:16:35] Speaker 04: And the reason it's done that is because that's what the Supreme Court said in INS against Elias Zacharias. [00:16:41] Speaker 03: And so if it's a question of harmless error, what do we do with [00:16:45] Speaker 03: There's a passage in Omana-Escobar where they quote Ornelas Chavez, where the board applies the wrong legal standard. [00:16:54] Speaker 03: The appropriate relief from this court is remand for reconsideration under the correct standard, not an independent review of the evidence. [00:17:00] Speaker 03: And I take the point that given the findings here, the independent review of the evidence would not be very difficult. [00:17:09] Speaker 03: I mean, that's what we've said we're supposed to do. [00:17:11] Speaker 04: In Umana-Escobar, the reason the court remanded was it says we can't tell, we have no indication from the record that the board did it correctly. [00:17:18] Speaker 04: I think whereas here, you do have an indication that the board did it correctly, that's not necessary. [00:17:23] Speaker 04: I mean, the board talks, applies clear error standard and then gets into the factual findings. [00:17:28] Speaker 04: So I think you can look at, Umana-Escobar at least seems to suggest that the court can look at the findings and see if there is an indication that might prevent a remand. [00:17:37] Speaker 04: And I think we have that in this case because of the passages that I just described. [00:17:41] Speaker 04: And again, it gets back to Your Honor's point. [00:17:44] Speaker 04: I'm not sure how remand would result in anything other than a foregone conclusion. [00:17:50] Speaker 04: If the factual finding is that there's zero motive, how can there be any legal conclusion left to conduct to say that no motivation can't meet the legal standard? [00:17:59] Speaker 04: I mean, the Supreme Court has also said we don't play a ping pong game with the agency, right? [00:18:03] Speaker 04: We don't remand for things that are foregone conclusions. [00:18:05] Speaker 04: One of the exceptions to remand under the Chenary Doctrine is if remand is futile. [00:18:10] Speaker 04: So if the finding is that there's no motivation, how would it not be futile to send it back for the board to go through the sort of useless formality of saying, well, that doesn't meet the legal standard under the de novo standard? [00:18:23] Speaker 02: Well, is it a question of fact or a question of law whether the attackers who seem to have identified his family and fired into the house in which he was living, given the context, whether that was a sufficient nexus, whether that established a family nexus or [00:18:47] Speaker 04: Well, I want to be clear, Your Honor. [00:18:49] Speaker 04: I don't think that this case implicates a mixed question. [00:18:51] Speaker 04: I think this is a quintessential factual dispute. [00:18:54] Speaker 04: The petitioner is arguing that the evidence shows that he established a particular motive, and the agency and the government don't agree with that. [00:19:00] Speaker 04: I don't see that that's a mixed question at all. [00:19:01] Speaker 04: That seems to me to be a pure factual dispute. [00:19:03] Speaker 04: Remember, a mixed question only comes in when you're putting it. [00:19:07] Speaker 02: So if I thought that the record would compel us to think that at least his mother was targeted on the basis for political opinion, what's the remaining [00:19:17] Speaker 04: um... link left is that a factual or legal question about whether the targeting extended uh... the nexus to her son i think that i think it's still factual question and the reason i think that is this court has case law that deals with situations where a family member is targeted for harm and whether or not an individual can uh... basic claim or can make a claim out for asylum based on that family's harm what the court said about that is that [00:19:45] Speaker 04: The harm to a family member may be relevant if the individual can show that the harm to the family member was closely tied to them in some way. [00:19:54] Speaker 04: And here, one of the findings of the agency was that the petitioner didn't show that these individuals had any interest in him whatsoever. [00:20:01] Speaker 04: They appeared at this incident where these unknown bandits approached the house. [00:20:07] Speaker 04: They said his mother's name, but there's no indication that they even knew he was in the house. [00:20:11] Speaker 04: There's no indication at anywhere on the record. [00:20:13] Speaker 04: And he even concedes this in his testimony. [00:20:15] Speaker 04: that he doesn't really know anything about them. [00:20:17] Speaker 04: He doesn't know who they are. [00:20:18] Speaker 04: He was speculating that it was on account of political opinion because he sort of deduced that that's what it had to be. [00:20:24] Speaker 04: But he doesn't really have any information on that. [00:20:27] Speaker 04: And so that really seems to be a factual question. [00:20:29] Speaker 04: Whether or not this was closely tied to him or whether he established as a matter of fact that these events were tied to him in some way also seems to be a question of fact, not a legal question. [00:20:40] Speaker 04: And so it seems to me that that would also be reviewed under the substantial evidence standard of review. [00:20:45] Speaker 04: I see that I'm into the red. [00:20:47] Speaker 04: I'm happy to answer any more questions if you have them. [00:20:49] Speaker 01: Thank you counsel. [00:20:50] Speaker 04: Thank you for your time your honors. [00:20:52] Speaker 00: I did promise Judge Johnstone that I would address the downstream effects of past persecution if I could very very briefly your honor with your indulgence if I could briefly address Judge Miller's concern about harmless error I should note that [00:21:14] Speaker 00: The government often refers to sites to cases such as Zamorano v. Garland and Park v. Garland in the harmless error context. [00:21:23] Speaker 00: I would suggest that those are very limited examples of when harmless error can apply in this context in review of BIA final orders. [00:21:33] Speaker 00: Almost always, as this Court has held, the countervailing considerations that the Supreme Court set forth in INS v. Ventura and Gonzales v. Thomas compel this Court to remand to the BIA so that it could address in the first instance whether the legal error it made earlier was erroneous. [00:21:54] Speaker 00: If I could quickly pivot to Judge Johnston's concern, the downstream effects of determining that the BIA was [00:22:02] Speaker 00: erroneous in determining that there had not been past persecution would directly affect the reasonable relocation analysis because then there then becomes a rebuttable presumption based on the past persecution that it would not be reasonable to relocate. [00:22:17] Speaker 00: So I don't know if that fully addresses your concern, your honor. [00:22:21] Speaker 02: Well, I guess then are we reviewing, I looked again at your brief, are we reviewing the persecution to determine determination? [00:22:27] Speaker 02: Are you asking us to review it for substantial evidence or de novo? [00:22:31] Speaker 02: And how? [00:22:34] Speaker 00: I think it's a mixed analysis, Your Honor, in that the overall determination of whether it's past persecution, whether it's well-offended future fear of persecution, is substantial evidence. [00:22:45] Speaker 00: But there are legal components within it that are reviewed de novo. [00:22:51] Speaker 03: Isn't that the question that's presently before the Supreme Court? [00:22:54] Speaker 00: I believe so, Your Honor. [00:22:56] Speaker 00: If the court is interested in hearing the party's views on that, I would certainly, speaking for myself, I'd be glad to file a supplemental brief on that and certainly on harmless error as well or any other issue that the court deems to need further written consideration. [00:23:14] Speaker 00: Any further questions? [00:23:16] Speaker 01: It appears not. [00:23:16] Speaker 01: Thank you, counsel. [00:23:17] Speaker 00: Thank you very much. [00:23:18] Speaker 01: Thank you both, counsel, for your helpful arguments. [00:23:19] Speaker 01: The case just argued is submitted for decision by the court.