[00:00:01] Speaker 04:
Good morning and welcome to the Ninth Circuit.

[00:00:03] Speaker 04:
My colleague Judge Berzon and I welcome Judge Lefkoe from Chicago who is joining us and we both thank Judge Lefkoe for sitting with our court.

[00:00:14] Speaker 04:
It would be very difficult for us to do our jobs if we didn't have judges like Judge Lefkoe who helped us out on hearing cases.

[00:00:22] Speaker 04:
So we have, I believe, just one case that has been submitted on the briefs.

[00:00:27] Speaker 04:
Santiago Mendoza versus Bondi is submitted.

[00:00:30] Speaker 04:
We have four cases on the argument calendar.

[00:00:33] Speaker 04:
It's possible that we may take a break in the middle.

[00:00:36] Speaker 04:
We don't know yet.

[00:00:37] Speaker 04:
We'll let you know.

[00:00:39] Speaker 04:
The first case on the argument calendar is Blandon Gonzalez versus Bondi and counsel whenever you're ready.

[00:00:56] Speaker 01:
May please the court.

[00:00:57] Speaker 01:
Siobhan Ayala on behalf of Mr. Blondone Gonzalez.

[00:01:01] Speaker 01:
Good morning.

[00:01:05] Speaker 01:
There are two issues in this case.

[00:01:07] Speaker 01:
I think the most pressing issues before the court.

[00:01:11] Speaker 01:
The first is if the judge did enough to develop the record for this pro se petitioner.

[00:01:19] Speaker 01:
There were technical issues in the court that morning and the

[00:01:26] Speaker 01:
Um, petitioner was asked questions regarding credibility.

[00:01:30] Speaker 01:
There was two issues primarily with credibility about the immigration judge.

[00:01:35] Speaker 01:
Yes.

[00:01:36] Speaker 01:
Yes.

[00:01:37] Speaker 01:
The immigration identified just the inconsistencies, well this was also identified by the asylum office, inconsistencies regarding where the petitioner went after his, after he went to protest in 2018.

[00:01:51] Speaker 01:
And then there was the concern about the lack of detail regarding his time when he was in hiding.

[00:02:00] Speaker 01:
I think it's important to remember that this petitioner was only 15 or 16 years old when these events started happening.

[00:02:08] Speaker 01:
He went to the protest at the request of his brother and he then went to a flurry of places and eventually landed in hiding for two and a half years.

[00:02:21] Speaker 04:
Council, the asylum officer concluded at the very end on I think AR-66.

[00:02:30] Speaker 04:
Considering the lack of credibility, there is no non-testimonial evidence that establishes a reasonable possibility of persecution or torture.

[00:02:44] Speaker 04:
The IJ agreed.

[00:02:50] Speaker 04:
Do you concede that if that finding is correct, then

[00:02:55] Speaker 04:
We have to deny the petition because reasonable want a reasonable adjudicator could have come out the same way the IJ did.

[00:03:03] Speaker 01:
Yes, I do concede that your honor.

[00:03:05] Speaker 01:
Um, however, I don't believe that a reasonable adjudicator could come up with that conclusion.

[00:03:11] Speaker 01:
I mean, the, the, um, the fact that there's lack of detail, he talks about the fact that he wasn't hiding and he wasn't probed more than he just repeating himself.

[00:03:22] Speaker 01:
Um, and then he said his aunt cooked for him.

[00:03:24] Speaker 01:
While he was in hiding and then when asked about it by the immigration judge, he responded that he, he then went to his mother's house who then died.

[00:03:33] Speaker 01:
So we're talking about a petitioner who's suffered multiple losses at a very young age and is having a difficult time expressing themselves.

[00:03:45] Speaker 01:
Um, to the immigration judge and the asylum office, the, um, difficulty at expressing themselves was most prominent during the first part of the asylum interview, um, which was halted when he couldn't continue.

[00:04:00] Speaker 01:
And then at the second time, he again had some problems, but.

[00:04:04] Speaker 04:
But he wanted a new, he wanted to continuance the, the asylum officer who probably didn't have to give him a continuance did.

[00:04:12] Speaker 04:
And so he got what he had asked for there.

[00:04:14] Speaker 04:
So he could present at a different time.

[00:04:16] Speaker 03:
That's right, Your Honor.

[00:04:18] Speaker 03:
It's very hard to figure out.

[00:04:20] Speaker 03:
I mean, one of the problems here is that he had a lawyer on hand, apparently, at the time of the second asylum officer interview.

[00:04:33] Speaker 03:
And he didn't want to wait a half hour for the lawyer.

[00:04:36] Speaker 03:
So I mean, I understand that he may have been reasons he made bad decisions, but he

[00:04:43] Speaker 03:
He didn't have a lawyer.

[00:04:44] Speaker 03:
And then when he came to the IJ hearing, he had a lawyer and he apparently discharged him.

[00:04:51] Speaker 03:
Maybe, I don't know what happened there, but the lawyer withdrew with his acquiescence.

[00:04:57] Speaker 03:
So he was on his own, but not because he hadn't been given plenty of opportunity to have a lawyer.

[00:05:02] Speaker 01:
Yes, that's right, Your Honor.

[00:05:04] Speaker 01:
But the judge, because he is a pro se petitioner, the judge still does have a duty to advise him.

[00:05:12] Speaker 01:
probe more than a person who's represented by counsel, even though I do concede he did have the opportunity to obtain counsel and he was not able to.

[00:05:23] Speaker 03:
Well, no, that isn't what happened.

[00:05:25] Speaker 03:
He had a lawyer, both times.

[00:05:27] Speaker 03:
At the time of the asylum officer hearing, he said, do you want to wait a half hour and your lawyer will be available?

[00:05:36] Speaker 03:
And he said, no.

[00:05:37] Speaker 01:
Right, you're right, Your Honor, but he didn't have a lawyer present during the interview who could summarize or ask additional questions.

[00:05:46] Speaker 01:
He didn't have a lawyer present at the IJ interview who could summarize or ask additional questions.

[00:05:51] Speaker 04:
Yeah, but I mean, when I'm looking also at what the IJ did, because this is credibility, the IJ went through at AR 11 and following, he went through some of the things with your client that

[00:06:07] Speaker 04:
The asylum officer had based the lack of credibility finding on, he gave your client a chance to explain certain things and then he decided to uphold what the AO did.

[00:06:22] Speaker 04:
In terms of either law or the Constitution, I'm having trouble seeing what was wrong with what the IJ did here.

[00:06:30] Speaker 01:
Well, I think the IJ, he did probe.

[00:06:33] Speaker 01:
I think he could have probed more.

[00:06:35] Speaker 01:
And whether or not the court finds that the IJ sufficiently probed into the issue of credibility, I think that the petitioner sufficiently responded and provided information that would make a reasonable adjudicator find that he was credible.

[00:06:54] Speaker 04:
Well, but again, that's not the standard.

[00:06:58] Speaker 04:
I mean, you may be right.

[00:07:00] Speaker 04:
A reasonable adjudicator on these same facts may well have found your client credible, but the standard is we have to deny the petition unless no reasonable adjudicator could come out the same way the IJ did.

[00:07:13] Speaker 01:
Well, Your Honor, I think under Baratora and Melendez, the issue is whether there's substantial evidence regarding credibility.

[00:07:28] Speaker 01:
That's my understanding of the standard.

[00:07:37] Speaker 01:
I'm going to leave some time for thank you.

[00:07:39] Speaker 04:
All right.

[00:07:40] Speaker 04:
We'll hear from the government.

[00:07:55] Speaker 00:
Good morning, your honors may please the court, you know, all you said for the government, the petition for you should be denied and I'll proceed to address a couple of issues that were just discussed, particularly the credibility determination before that determination by the agency, by the asylum officer and then concurred with by the immigration judge.

[00:08:13] Speaker 00:
Any challenge to that was waived by the petitioner because they did not challenge that in their opening brief.

[00:08:18] Speaker 00:
They made references to the credibility and attempted to say, excuse it, but as it was presented here that the individual was 16 years old when the proceedings happened, but they've raised no specific challenges to the inconsistency relied on by the IJ as well as the lack of detail that was relied on by the IJ.

[00:08:36] Speaker 03:
This is a strange process because you have the asylum officer interview, you have

[00:08:46] Speaker 03:
A transcript is not a transcript.

[00:08:48] Speaker 03:
It's just some notes, basically.

[00:08:50] Speaker 03:
It's not a verbatim transcript.

[00:08:52] Speaker 03:
And then you go to the IJ, and the IJ is supposedly doing an appeal, but also can hear evidence.

[00:09:04] Speaker 03:
And it's not, I would like some help about what's supposed to be going on here, because, I mean, for example, he said, Mr. Blanton Gonzalez said,

[00:09:16] Speaker 03:
I have some, a couple of times, I have some pictures that I'd like to show you if you'll let me, that corroborate what I'm saying, and I have pictures and evidence of the people that have threatened me with, that threatened to kill me, and the I.J.

[00:09:32] Speaker 03:
didn't give him an opportunity to present those.

[00:09:34] Speaker 03:
Should he have done those, that?

[00:09:36] Speaker 03:
Is that how the system works?

[00:09:38] Speaker 03:
The I.J.

[00:09:39] Speaker 03:
has a hearing, but it's not really a hearing because he can't present evidence?

[00:09:44] Speaker 00:
Well, Your Honor, the regulations that this Court has upheld specifically say the IJ may take additional evidence and also may decline to do so.

[00:09:52] Speaker 00:
It was within the IJ's discretion to hear additional evidence.

[00:09:55] Speaker 03:
But that results in a very odd system in which, first of all, appellate bodies don't usually take evidence.

[00:10:07] Speaker 03:
Second of all, to make it discretionary means that

[00:10:13] Speaker 03:
The person who's the imputative appellee really doesn't know how to proceed.

[00:10:23] Speaker 03:
The problem seemed to be that they said he's not credible.

[00:10:27] Speaker 03:
He says, I have evidence that will bolster why I'm correct.

[00:10:33] Speaker 03:
Why doesn't he get to present that evidence?

[00:10:36] Speaker 00:
I think it's the nature of the proceedings that the petitioner is in.

[00:10:39] Speaker 00:
This is meant to be a streamlined process.

[00:10:42] Speaker 03:
I understand that, but on the other hand, the regulations are not at all firm about the notion that the IJA is actually just a pellet.

[00:10:54] Speaker 03:
I mean, if he can take evidence, presumably he can make findings based on the evidence.

[00:10:59] Speaker 00:
That's true, Your Honor, but immigration does not have to take evidence.

[00:11:03] Speaker 00:
The regulations do not require it.

[00:11:04] Speaker 03:
So you just have IJs who can do whatever they want.

[00:11:06] Speaker 00:
This court has reviewed the regulations and understood the purposes of these regulations, that this was meant to be a streamlined process that's meant to fulfill the kind of two competing interests, which was Congress's intent to have expedited proceedings for individuals subject to reinstated orders.

[00:11:24] Speaker 03:
And so we therefore have a lawless system where the IJ's can do whatever they want.

[00:11:29] Speaker 00:
I wouldn't call it lawless, Your Honor.

[00:11:30] Speaker 00:
I think the IJs here, for example, the IJ in this case, as Judge Bennett noted, was discussing the raise the inconsistencies to the petitioner.

[00:11:39] Speaker 00:
The IJ didn't necessarily have to take this additional testimony, but he did and addressed, gave the petition the opportunity to address these inconsistencies.

[00:11:48] Speaker 00:
And the petitioner did not do so.

[00:11:51] Speaker 03:
And again, I agree.

[00:11:51] Speaker 03:
If an IJ does take evidence, then what?

[00:11:53] Speaker 03:
He makes findings of that?

[00:11:55] Speaker 03:
Or is he still just reviewing the asylum office?

[00:11:59] Speaker 00:
I think it is an odd posture in these situations.

[00:12:02] Speaker 00:
I take your meaning, Judge Barzan.

[00:12:04] Speaker 00:
It does seem that an appellate review, it's a fact finding in an appellate capacity, but that is the nature of these proceedings.

[00:12:11] Speaker 00:
These are entirely like creation of regulation.

[00:12:15] Speaker 00:
And again, the court has approved the approach, understanding why these proceedings were made.

[00:12:20] Speaker 03:
Well, it proved it in a situation in which the person walks in and says, I want to present some evidence.

[00:12:28] Speaker 03:
ask some questions, but won't let him present the corroborating evidence he wants to present.

[00:12:32] Speaker 00:
Well, Your Honor, there are a couple of things to that in this specific situation.

[00:12:36] Speaker 00:
One is, I do believe that the IJ is not required to take that additional evidence.

[00:12:41] Speaker 00:
Two, Petitioner never raised this issue.

[00:12:43] Speaker 00:
I would deem that issue waived.

[00:12:44] Speaker 00:
They never pointed out in their brief to say that my client attempted to show evidence, but he was rejected.

[00:12:50] Speaker 03:
And then three, even if— That you probably write about, but that's what jumped out on me.

[00:12:54] Speaker 03:
The guy says, I want to present something.

[00:12:56] Speaker 03:
The I.J.

[00:12:57] Speaker 03:
just ignores him.

[00:12:59] Speaker 00:
I understand that you are, but then also if they were going to view that as a problem, then where's the prejudice here?

[00:13:03] Speaker 00:
The petitioner hasn't shown what this evidence was, how it would have altered the outcome of proceedings.

[00:13:08] Speaker 04:
Well, I mean, also the petitioner said, for example, I have pictures of my friend's house and, you know, the I.J.

[00:13:16] Speaker 04:
didn't ask him to show the pictures of the friend's house, but the I.J.

[00:13:21] Speaker 04:
I take it as the government's position is, it has the discretion as to what to look at and what not to look at.

[00:13:27] Speaker 04:
And if the IJ felt that pictures of the friend's house weren't relevant, he didn't have to look at them.

[00:13:32] Speaker 00:
I believe that that's correct, Your Honor.

[00:13:33] Speaker 00:
That is our position.

[00:13:34] Speaker 00:
I believe that's right.

[00:13:35] Speaker 00:
It's essentially the IJ saying this.

[00:13:36] Speaker 03:
But he also said, I have pictures and evidence of the people that are threatening me, that are threatening to kill me.

[00:13:43] Speaker 03:
So that's more, he had more than the friend's house.

[00:13:46] Speaker 03:
Or he said he did.

[00:13:46] Speaker 03:
I mean, nobody asked him what he had.

[00:13:48] Speaker 00:
That's right, Your Honor.

[00:13:49] Speaker 00:
Again, I think it does fall within the immigration judge's discretion.

[00:13:52] Speaker 00:
But also, there is the issue of the credibility determination that was waived by the petitioner here.

[00:13:58] Speaker 00:
And that is a dispositive determination based on the fact that petitioner has to present a credible claim for the asylum officer and immigration judge to say, oh, OK, that establishes reasonable possibility of persecution or torture.

[00:14:10] Speaker 00:
Petitioner didn't meet the very minimum threshold of presenting that credible claim.

[00:14:15] Speaker 00:
petitioner waived any challenge to that by failing to raise it in their opening brief.

[00:14:19] Speaker 00:
And I believe here the immigration judge conducted the proceedings in a manner that afforded the petitioner the due process to which he was entitled in this reinstated proceeding, which is meant to be a streamlined process and not a full evidentiary hearing as typical of removal proceedings.

[00:14:34] Speaker 00:
And so we believe that the petition for review should be denied here.

[00:14:39] Speaker 02:
How do you say that the applicant didn't

[00:14:46] Speaker 02:
at least show a 10% chance that he would be persecuted or tortured.

[00:14:52] Speaker 02:
I mean, that's a very low standard to allow him to go forward with an application for asylum.

[00:15:02] Speaker 00:
Yes, Your Honor, it is a low standard.

[00:15:05] Speaker 00:
As this court is kind of understood by establishing, for example, a reasonable possibility of persecution, it's your is a subjective and objective component.

[00:15:11] Speaker 00:
That subjective component requires a credible claim, credible testimony.

[00:15:15] Speaker 04:
The government's position is if there's no credible testimony, then on this record, we stop.

[00:15:22] Speaker 00:
Essentially, yes, Your Honor, because it's what is how can the purpose of these processes is

[00:15:29] Speaker 00:
I think the language is that the government, excuse me, the Congress wanted to ferret out frivolous claims.

[00:15:36] Speaker 00:
A frivolous claim is inherently one that's not credible, and I think that's kind of the purpose of this process, was this asylum officer determined that the petitioner, he wasn't sure what to believe or what the claim was based on these inconsistencies and lack of detail, and determined that they didn't meet that threshold, even the low threshold, as you honor notes.

[00:15:55] Speaker 00:
And I think that sufficiently disposes of the case,

[00:15:59] Speaker 00:
But again, there is that issue that this issue was waived entirely because the petitioner, the agencies, the petitioners simply did not raise it.

[00:16:08] Speaker 00:
And ultimately, we don't know what happened to this petitioner because of the lack of credibility.

[00:16:13] Speaker 00:
And therefore, they did not meet their burden of proof.

[00:16:17] Speaker 00:
All right.

[00:16:17] Speaker 00:
Thank you.

[00:16:17] Speaker 00:
Thank you.

[00:16:25] Speaker 01:
We would contest that the issue of credibility is waived.

[00:16:29] Speaker 01:
The opening brief actually pretty consistently talks about the credibility and why the petitioner's statements should be taken as true.

[00:16:41] Speaker 01:
It was, for instance, page 20 or 24 talking about the fact that the credibility is the main issue in this case.

[00:16:51] Speaker 01:
So we would take issue with the fact that

[00:16:54] Speaker 01:
The issue of credibility is waived.

[00:16:59] Speaker 01:
Regarding whether or not that the immigration judge can accept new evidence, this issue has been dealt with in Andrade, and the standard is whether or not the judge has an abuse of discretion, as well as in Dominguez-Ojeda.

[00:17:17] Speaker 04:
Where did you raise that issue in your opening statement?

[00:17:19] Speaker 04:
It was not raised, Your Honor.

[00:17:20] Speaker 04:
So we can't consider it.

[00:17:21] Speaker 01:
Right.

[00:17:23] Speaker 01:
your honor's question.

[00:17:26] Speaker 01:
It's not raised in the brief, though.

[00:17:28] Speaker 03:
What's not raised?

[00:17:29] Speaker 03:
I'm sorry.

[00:17:30] Speaker 01:
Whether or not the IJ abused his discretion by not taking in the new evidence.

[00:17:35] Speaker 01:
Right.

[00:17:36] Speaker 01:
And so it wasn't raised.

[00:17:37] Speaker 03:
Why wasn't it raised?

[00:17:38] Speaker 03:
I can't tell you, but it seemed to me to be the point that jumps out at you.

[00:17:42] Speaker 03:
But yes, it wasn't raised.

[00:17:44] Speaker 03:
OK.

[00:17:48] Speaker 04:
Do you have anything else?

[00:17:49] Speaker 04:
No.

[00:17:49] Speaker 01:
All right.

[00:17:50] Speaker 01:
Thank you.

[00:17:51] Speaker 04:
All right, we thank counsel for their arguments and the case just argued is submitted.