[00:00:06] Speaker 04: Ms. [00:00:07] Speaker 04: Ayala. [00:00:08] Speaker 04: Yes. [00:00:09] Speaker 04: Good morning, Your Honors. [00:00:10] Speaker 04: May I please the court? [00:00:12] Speaker 04: My name is Avisa Ayala, and I represent the petitioner Ms. [00:00:15] Speaker 04: Claudia Garcia Castro. [00:00:17] Speaker 04: Today, I'm here to address the legal issues of whether the Board of Immigration Appeals erred in applying clear error standard to her issues instead of the appropriate de novo standard to the issues of social group, PSDs, cognizability, and the Convention Against Torture. [00:00:35] Speaker 04: First, I will demonstrate how the BIA improperly applied the CLEAR error standard specifically to the cognizability issue under or akin to Umana Escobar. [00:00:47] Speaker 04: And next, I want to explain how the BIA erred in finding that the petitioner waived the argument regarding his particular social group, how the BIA erred in finding that. [00:00:59] Speaker 04: And finally, I will address the board's erroneous [00:01:02] Speaker 04: decision and use of the clear error standard in reviewing the denial of the CAT claim. [00:01:10] Speaker 01: Could you reverse your order to see how flexible you are? [00:01:15] Speaker 01: Yeah, of course your honor. [00:01:17] Speaker 01: Start with the CAT claim and I'm less interested in the standard of review because I think the board at least mentioned the appropriate standard of review. [00:01:29] Speaker 01: that I am in the IJ's statement that what her past experience was not torture because it was inflicted by a domestic partner and there was no government agent involved in it. [00:01:46] Speaker 01: Is that an accurate statement of the law of what it can be, what it takes to be torture? [00:01:52] Speaker 04: Well, Your Honor, first of all, we do want to emphasize on the standard that you use. [00:01:57] Speaker 01: I understand you want to, but it's not what I'm asking you about. [00:02:00] Speaker 01: I'm asking you about whether or not the IJ's statement about whether she experienced past torture, and remember, the BIA pre-dermitted the acquiescence issue, whether that statement is an inaccurate statement of the law. [00:02:17] Speaker 01: Can you answer that for me? [00:02:20] Speaker 04: Yes, Your Honor, it is an inaccurate statement of the law since she did, in fact, experience in determining whether the harm [00:02:31] Speaker 04: equates to torture, the court has to re-evaluate the facts. [00:02:37] Speaker 04: And in this case, the petitioner had suffered extremely domestic violence. [00:02:43] Speaker 01: Well, I'm not asking whether or not the record compels a finding of torture. [00:02:51] Speaker 01: That's why I keep pushing away from the standard of review. [00:02:54] Speaker 01: I'm just trying to figure out whether the IJ's statement about what would constitute torture. [00:03:01] Speaker 01: And the IJ says she complains of, I don't want to quote it, but abuse by a domestic partner not inflicted by an agent of the state. [00:03:12] Speaker 01: That's roughly [00:03:13] Speaker 01: Roughly the quote. [00:03:16] Speaker 01: And I'm trying to figure out whether that's an inaccurate statement of the law. [00:03:21] Speaker 01: Can one be tortured by a domestic partner even if the state is not involved in the torture? [00:03:28] Speaker 04: Yes, Your Honor. [00:03:28] Speaker 04: So it is an inaccurate statement of the law because in determining whether a state actor [00:03:37] Speaker 04: is involved, it also encompasses whether the government turned a willful blindness. [00:03:44] Speaker 01: To be fair to the IJ, the IJ then went and said, I don't find any government acquiescence in this. [00:03:51] Speaker 01: So this wouldn't give me any trouble, but we have the BIA pre-termitting the issue of acquiescence. [00:03:57] Speaker 01: It said we don't need to address it. [00:03:59] Speaker 01: So I'm trying to figure out the effect of what the IJ's finding on past torture is. [00:04:06] Speaker 01: on the cat disposition in this case. [00:04:09] Speaker 01: Can you help me with that? [00:04:11] Speaker 04: Yes, Your Honor. [00:04:11] Speaker 04: Well, because acquiescence is different than willful blindness, and the description of the court, acquiescence requires that the government actually help in the torture or [00:04:24] Speaker 04: But willful blindness has also been considered to meet the torture standard, even if it's a third party actor. [00:04:32] Speaker 04: If the petitioner, for example, in this case has gone to the authorities and they haven't been able to help her or actually [00:04:41] Speaker 04: have turned her away on multiple occasions, even stating at one point that they wouldn't consider the domestic violence unless she was bleeding or they saw something physical on her face or on her body. [00:04:58] Speaker 04: So turning away from [00:05:01] Speaker 04: helping someone in these certain situations does count as or does constitute willful blindness and would constitute acquiescence. [00:05:11] Speaker 02: Well, I can't, let me ask you this. [00:05:13] Speaker 02: I can't find in your brief, does Miss Castro de Garcia assert that her past abuse constituted torture? [00:05:22] Speaker 02: I can't find that argument in her brief. [00:05:24] Speaker 02: Can you point that [00:05:26] Speaker 02: To me? [00:05:26] Speaker 04: Your Honor, I believe I didn't brief this case. [00:05:30] Speaker 04: But however, I do believe that because we were addressing that even the CAC claim was under the wrong legal standard. [00:05:38] Speaker 04: And it should be reviewed to know that there was no issue. [00:05:42] Speaker 02: But where do you make that argument? [00:05:44] Speaker 02: Even if you didn't do the briefing, you're still responsible for them here. [00:05:47] Speaker 02: Yes, Your Honor. [00:05:49] Speaker 02: So where is the argument made in your brief? [00:05:52] Speaker 02: that her past abuse constituted torture. [00:05:55] Speaker 04: Where in the brief can I find that argument? [00:06:20] Speaker 01: You know, if you're not, if you haven't done the brief, you ought to be familiar with it. [00:06:24] Speaker 02: Yes, Your Honor. [00:06:27] Speaker 02: So page nine is your, so it appears that Ms. [00:06:30] Speaker 02: Castro de Garcia only reported her abuse one time, is that correct? [00:06:36] Speaker 02: And the police gave the reason that it was a week after it happened and they couldn't see her bruises. [00:06:45] Speaker 02: Is that, would that be a correct statement of the record? [00:06:48] Speaker 04: That is the correct statement, Your Honor, and I believe that it wasn't hashed out more in terms of whether or not that was torture, because the brief does mention how that is a question of law, like whether something meets the standard of torture, and here the judges didn't. [00:07:09] Speaker 04: Again, Your Honor, I know that you don't want to address the standard of review, but I believe that's why it wasn't mentioned further, because [00:07:18] Speaker 04: It's a legal standard. [00:07:19] Speaker 04: Whether certain harm meets the definition of torture is not a question of fact, but it's a question of law. [00:07:26] Speaker 02: It also appears that the BIA concluded that Ms. [00:07:29] Speaker 02: Castro Garcia fears an individual person with whom she had not spoken since she had come to the United States in late 2012 or 2013, and she does not know where he is located in El Salvador. [00:07:45] Speaker 02: How can, and said, she can't establish that she was more likely than not to be tortured by him. [00:07:53] Speaker 02: Is that a fair statement of the record? [00:07:55] Speaker 02: Yes, Your Honor. [00:07:56] Speaker 02: Okay, thank you. [00:07:59] Speaker 04: However, because, again, the question of whether or not something meets the definition of torture, like I said, is a matter of law and not a matter of fact, and whether or not the BIA [00:08:13] Speaker 04: would make that determination has to be under the de novo standard of review. [00:08:18] Speaker 04: And again, they use clear error for this. [00:08:21] Speaker 04: I would like to reserve some time for rebuttal, Your Honors. [00:08:24] Speaker 03: All right. [00:08:25] Speaker 03: You have a minute and 44 seconds. [00:08:34] Speaker 03: Mr. Coleman. [00:08:47] Speaker 00: Thank you, Your Honors, and may it please the court. [00:08:49] Speaker 00: My name is Robert Coleman, and I represent the Attorney General. [00:08:54] Speaker 00: Turning to the cat first. [00:08:57] Speaker 00: The board's determination that under matter of Burbano, it would affirm the immigration judge's denial of the cat application here. [00:09:06] Speaker 01: Except for the acquiescence part. [00:09:08] Speaker 00: Except for the acquiescence part? [00:09:09] Speaker 01: The board says we're not finding acquiescence. [00:09:11] Speaker 00: That's correct. [00:09:12] Speaker 00: So the board did affirm under a matter of Burbano, but it did specifically limit that affirmance to specific aspects of the immigration judge's denial. [00:09:20] Speaker 00: And the cat claim is no different, yes, as to whether or not the evidence demonstrated that Castro would potentially be subject to harm. [00:09:32] Speaker 01: Right. [00:09:32] Speaker 01: And so I want to combine the questions that Judge Callahan and I were asking and see if you can help me with this. [00:09:39] Speaker 01: It seems to me that the IJ's statement that your past treatment was not torture because it was at the hands of a domestic partner and not at the hands of a government actor misstates the legal standard for torture. [00:09:57] Speaker 01: You agree that a domestic partner can be somebody who inflicts torture, correct? [00:10:03] Speaker 00: It is possible, it seems, but that is not what the immigration judge said. [00:10:08] Speaker 01: Well, then let me just help me and then you can tell me what. [00:10:10] Speaker 01: So you agree that a domestic partner can be a torturer? [00:10:15] Speaker 00: I don't know of any case law that says that. [00:10:18] Speaker 01: Well, is it the government's position that a domestic partner cannot be a torturer? [00:10:26] Speaker 00: This issue wasn't raised, so I don't have something at my fingertips on that particular issue, but I know that the immigration judge here did not state that. [00:10:35] Speaker 00: The immigration judge did say that, this is page 56 of the record, that the court finds [00:10:41] Speaker 00: that what happened to respond and while terribly unfortunate does not rise to the level of torture right because go on the dress as comma and also that it is individualized domestic violence so it doesn't say because it was domestic violence it's not torture [00:10:57] Speaker 00: Rather, it didn't rise to the level of torture. [00:10:59] Speaker 00: Then she's also noting that this was an incident of domestic violence and then goes on to that leads into the rest of the analysis that was discussed previously. [00:11:09] Speaker 03: Right, but you would agree that individualized domestic violence could, it's not categorically not torture. [00:11:16] Speaker 03: It could be torture in a given case. [00:11:21] Speaker 00: I would like to address that more fulsomely in a later filing if the court would like to see that, but I don't have that at my fingertips because that was not the issue. [00:11:29] Speaker 01: The definition of torture is extreme mistreatment. [00:11:31] Speaker 01: Put aside for a second the acquiescence. [00:11:34] Speaker 01: If a domestic partner puts somebody on a rack and moves the rack and breaks all their bones, that's torture under the definition in the regs, is it not? [00:11:45] Speaker 00: that the misconduct would rise to the, the treatment specifically would rise to the level of torture, it seems that that would be true. [00:11:52] Speaker 02: I'm just saying that I don't know. [00:11:55] Speaker 02: But if you look at torturers defined in 8 CFR 1208A1 as requiring the pain or suffering be, quote, inflicted by or at the instigation of or with the consent or acquiescence of a public official. [00:12:12] Speaker 02: So doesn't that say that there's got to be some consent or acquiescence to be torture for purposes of this case? [00:12:26] Speaker 00: Correct. [00:12:26] Speaker 01: And the BIA said, we don't care about that. [00:12:29] Speaker 01: We don't care about acquiescence in this case. [00:12:32] Speaker 01: We're going to find an absence of torture notwithstanding any evidence of acquiescence or non-acquiescence. [00:12:38] Speaker 01: That's what they said. [00:12:41] Speaker 01: that's correct which is only one aspect of a potential cat claim okay so I'm just trying to figure out still if the judge stated the legal standard wrong [00:12:52] Speaker 01: The BIA still could have gotten it right by saying, even assume we don't see a reasonable probability in the future, or something like that. [00:13:01] Speaker 03: But I'm just trying to figure out how- Or it could have ruled on acquiescence. [00:13:05] Speaker 01: Or it could have held acquiescence wasn't shown. [00:13:07] Speaker 03: Yeah. [00:13:07] Speaker 01: But it didn't. [00:13:08] Speaker 01: So this is the difficulty I have. [00:13:10] Speaker 01: I think the IJ statement of the legal standard for torture by saying it [00:13:15] Speaker 01: it's not torture because it was done by a domestic partner and not by the government is a misstatement of the law. [00:13:23] Speaker 01: If I'm right about that, then what do we do with this case? [00:13:29] Speaker 01: We can't say it's OK because there was acquiescence, which the IJA said, because the BIA said we're not worried about acquiescence. [00:13:39] Speaker 01: So what do we do if I'm right that the judge misstated the law? [00:13:43] Speaker 00: You could affirm anyway because there are other grounds that were provided that were articulated by the board that justified that determination. [00:13:50] Speaker 00: Tell me what they are. [00:13:51] Speaker 00: They are that Castro fears this one individual but has not heard from the individual and now going on 12, 13 years, and that she doesn't know the individual's location. [00:14:02] Speaker 00: These specific findings were articulated by the board. [00:14:05] Speaker 00: That was the basis of the board's determination. [00:14:07] Speaker 00: And again, the immigration judge, as [00:14:10] Speaker 00: The words indicate did not state, because this was domestic violence, it's not torture. [00:14:15] Speaker 00: It was a separate determination. [00:14:17] Speaker 00: And the bulk of the analysis goes to the issues that the board eventually affirmed on, namely. [00:14:22] Speaker 03: I.J., could we read the way Judge Hurwitz is reading it? [00:14:25] Speaker 03: I think the problem is we don't want to work into the development of immigration law, a wrong statement, an incorrect statement of the law. [00:14:34] Speaker 00: Understood. [00:14:35] Speaker 00: And the board did not affirm that. [00:14:36] Speaker 00: So you wouldn't be endorsing that by simply affirming the board's decision. [00:14:40] Speaker 03: There are other circumstances. [00:14:41] Speaker 03: I mean, even in our own country, there were substantial periods of time where the police just ignored complaints about domestic violence. [00:14:51] Speaker 03: They just didn't take it seriously, although they do now. [00:14:55] Speaker 00: Correct. [00:14:55] Speaker 00: And here we don't have acquiescence as a particular issue. [00:14:58] Speaker 00: But what the board did was, even if the court did conceive of the immigration judge as having misstatism, the board did not affirm on that basis. [00:15:07] Speaker 00: So that's not an issue before the court. [00:15:09] Speaker 00: And there was no argument, of course, on this issue by the parties below. [00:15:12] Speaker 02: So did Castro, did Garcia, assert that her past abuse constituted torture? [00:15:17] Speaker 02: I asked for where in the record that was, and she said, [00:15:20] Speaker 02: Well, Judge Hurwitz said page nine, and then she said yes. [00:15:24] Speaker 02: Is this issue even before us? [00:15:26] Speaker 00: It is not before the court. [00:15:28] Speaker 00: This was not briefed. [00:15:30] Speaker 00: And the reason why, for good reason, because that [00:15:35] Speaker 00: aspect, the particularly concerning aspect here that was articulated, was not what was relied on by the board here. [00:15:42] Speaker 00: The board relied on these two specific issues, namely the fact that the individual in El Salvador, we don't know his location, Castro doesn't know his location, and Castro hasn't heard from him in 12 or 13 of those other issues. [00:15:55] Speaker 02: Well, let's assume hypothetically that Judge Hurwitz is correct, that the immigration judge misstated that. [00:16:02] Speaker 02: Would that a determination that Ms. [00:16:04] Speaker 02: Castro de Garcia's past abuse rose to the level of torture change the BIA's determination that Ms. [00:16:12] Speaker 02: Castro de Garcia does not face future persecution if [00:16:17] Speaker 02: return to El Salvador, why or why not? [00:16:20] Speaker 00: It would not because there is no presumption because of having faced past torture that you would face it in the future, unlike what you have in the asylum withholding context. [00:16:32] Speaker 00: It's a different context. [00:16:33] Speaker 01: Haven't we said something like past torture is the strongest indication of the likelihood of future torture? [00:16:41] Speaker 00: But it has been articulated as an indication. [00:16:44] Speaker 00: And so the agency is tasked with reviewing the evidence and making a determination. [00:16:50] Speaker 00: And here, the question before the court is whether there is substantial evidence to support the board's decision. [00:16:57] Speaker 00: It doesn't have to be the same decision that this court would have arrived at if it was sitting in first instance in the shoes of the immigration judge. [00:17:04] Speaker 01: Yeah, and what I'm trying to figure out, and I think we're struggling with, aside from the preservation issues, [00:17:10] Speaker 01: is whether the board's decision was, because it cited Burbano, adopted the IJ's statement that I find troublesome. [00:17:20] Speaker 01: And if it did, now we have a board decision that says, in effect, a domestic abuser. [00:17:27] Speaker 01: can't torture, and that troubles me. [00:17:29] Speaker 00: Well, that gets us back to our earlier conversation, where the board did affirm under matter of Burbano, but it did not do a blanket affirmance saying that we affirm everything that the immigration judge did. [00:17:40] Speaker 00: It specifically articulated the individual grounds that it was affirming. [00:17:45] Speaker 03: Unfortunately, that's what Burbano stands for, though, that it's adopting the IJ. [00:17:50] Speaker 03: So it's kind of inconsistent. [00:17:53] Speaker 00: Well, this court has said different. [00:17:55] Speaker 00: In Abebe v. Gonzalez, this court articulated that in an explanation, although in that case, the court stated that the Bourbono affirmance did exhaust the issues. [00:18:07] Speaker 00: It went on to state that the board could articulate a Bourbono affirmance that specifically addresses only certain issues, but that it needs to articulate that in its decision. [00:18:17] Speaker 00: Here, that's exactly what the board did. [00:18:20] Speaker 00: It affirmed only under specific grounds, and you can see that from [00:18:23] Speaker 00: from the language used. [00:18:24] Speaker 00: And it only adopted those specific determinations from the immigration judge. [00:18:30] Speaker 00: And it did not wade into the perceived problematic issue. [00:18:35] Speaker 00: So this court would not be endorsing that, even if it were to affirm here, which we asked the court to do. [00:18:42] Speaker 03: All right. [00:18:43] Speaker 03: Any further questions? [00:18:45] Speaker 03: All right. [00:18:45] Speaker 03: Thank you, Council. [00:18:46] Speaker 03: Thank you. [00:18:47] Speaker 03: Ms. [00:18:47] Speaker 03: Ayala. [00:18:49] Speaker 04: Yes, Governor. [00:18:51] Speaker 04: Just again, bring the issue under Hernandez Montiel. [00:18:55] Speaker 04: The Ninth Circuit did clarify for an asylum applicant. [00:19:00] Speaker 04: He does not have to demonstrate that the government itself directly engaged in persecution. [00:19:05] Speaker 04: If the government is unwilling or unable to protect an individual from harm, that can be enough to establish eligibility [00:19:12] Speaker 04: And also, again, turning a blind eye constitutes acquiescence. [00:19:18] Speaker 04: The government doesn't have to be the actor. [00:19:20] Speaker 04: A private actor in domestic violence cases has been deemed to be enough for convention against torture or for that person to be considered the torture for immigration purposes. [00:19:33] Speaker 03: Can I ask you who did prepare this brief, the blue brief? [00:19:37] Speaker 04: I'm attorney. [00:19:39] Speaker 04: I believe attorney Mario Acosta. [00:19:42] Speaker 03: Now the case end up with you. [00:19:44] Speaker 03: Excuse me. [00:19:45] Speaker 03: How did the case end up with you after the briefs filed? [00:19:49] Speaker 04: I recently joined the firm where this case is under. [00:19:52] Speaker 03: OK, so it says someone in your firm prepared this brief. [00:19:58] Speaker 04: He's a of Council. [00:19:59] Speaker 04: You're not. [00:19:59] Speaker 04: He was retained to help us with this brief. [00:20:02] Speaker 04: He's not part of our law firm at this point, so. [00:20:07] Speaker 03: And it's a very unfortunate brief. [00:20:10] Speaker 03: It doesn't exhaust all the issues that should have been exhausted and doesn't leave us with much or your client with much. [00:20:20] Speaker 04: And I believe, Your Honor, again, it is because the attorney was focusing more on the standard of review. [00:20:26] Speaker 04: So if the court were to find that the BIA applied the wrong legal standard, then he wouldn't have to go into [00:20:36] Speaker 04: the factual arguments regarding whether it meets torture or doesn't meet torture. [00:20:43] Speaker 03: I just would like to caution you and your firm in the future that you need to raise in the opening brief every issue that you want us to consider and specifically and articulate it because otherwise you're going to find yourself waiving a lot of issues. [00:21:00] Speaker 03: Yes, thank you, Your Honor. [00:21:01] Speaker 03: All right, thank you. [00:21:02] Speaker 03: Castro de Garcia versus McEnry will be submitted. [00:21:06] Speaker 03: And we will take up.