[00:00:01] Speaker 02:
May it please the court, my name is Stacey Escobar Machuro.

[00:00:04] Speaker 02:
Alongside my co-counsel and on behalf of the University of Idaho College of Law, we represent petitioner, Mr. Sergio Cruz-Barrera.

[00:00:11] Speaker 02:
Your honors, we've reserved five minutes for a rebuttal.

[00:00:13] Speaker 02:
At the heart of this case, your honors, is a merits hearing in which the immigration judge failed to give reasonable consideration

[00:00:19] Speaker 02:
to key evidence pertaining to Mr. Cruzbrera's claim, a human being who was gruesomely gang raped and beat to the verge of death.

[00:00:26] Speaker 02:
We offer two separate grounds to support a grant of the petition for review and a remand of the board's decision.

[00:00:32] Speaker 02:
First, the board violated this circuit's precedent regarding extra evidence and violated its own standard of review with post hoc rationalizations.

[00:00:41] Speaker 02:
Second, the board aired in its analysis on whether El Salvador

[00:00:45] Speaker 02:
was unable or unwilling to protect Mr. Cruzberra by exclusively focusing on the failed prosecution of one of the three attackers of Mr. Cruzberra.

[00:00:55] Speaker 01:
Can I jump you to the second issue?

[00:00:58] Speaker 01:
It seems to me that this case is more about the inability of the Salvadoran government to control these actors as opposed to their willingness.

[00:01:08] Speaker 01:
Do you agree with that?

[00:01:09] Speaker 01:
Yes, Your Honor.

[00:01:10] Speaker 01:
What is your key evidence for the inability of the government to control these actors?

[00:01:15] Speaker 02:
Your Honor, the fact that after they did the arrest, they further did not show up to the court hearing pertaining to this attacker, which he was then released.

[00:01:24] Speaker 02:
No one showed up to this court hearing.

[00:01:26] Speaker 02:
Further, they did not provide protection to the eyewitness, Mr. Ernesto, who was then, did not show up as well.

[00:01:33] Speaker 05:
But didn't both those individuals, the victim, your client, and the eyewitness,

[00:01:39] Speaker 05:
They left the country at the time.

[00:01:41] Speaker 05:
So what was the country, what was the El Salvadorian government going to do in terms of prosecution?

[00:01:46] Speaker 02:
Your honor, Mr. Cruzberra and we don't know for certain, but Ernesto did leave, flee the country.

[00:01:52] Speaker 02:
However, they fled for their safety.

[00:01:54] Speaker 02:
The two police officers that did the arrest, took the report, did not show up to that court hearing to testify.

[00:02:02] Speaker 05:
With what evidence were they going to prosecute the attacker?

[00:02:06] Speaker 02:
The fact that they committed that they went and arrested the ceiling.

[00:02:10] Speaker 02:
They took the report.

[00:02:11] Speaker 02:
They had gone to the hospital and they took the report, but no one then showed up to the court hearing.

[00:02:15] Speaker 01:
But would that have been appropriate under the rules of evidence or just how court proceedings work in El Salvador?

[00:02:21] Speaker 01:
Do we know that?

[00:02:23] Speaker 02:
We are uncertain, Your Honor.

[00:02:24] Speaker 02:
However, it is the norm for police officers to go and testify if they are able to.

[00:02:29] Speaker 02:
However, there is no appearance on behalf of the police officers.

[00:02:34] Speaker 01:
What do we make of the fact that Antonio is now deceased?

[00:02:40] Speaker 01:
Do I have their name wrong?

[00:02:42] Speaker 05:
So the attacker was Tono or Antonio.

[00:02:46] Speaker 05:
And so your client's brother killed him.

[00:02:49] Speaker 01:
Right.

[00:02:50] Speaker 01:
Correct.

[00:02:51] Speaker 01:
Right.

[00:02:51] Speaker 01:
So what do we make of that in terms of the risk of future persecution?

[00:02:55] Speaker 02:
Your Honor, that was an example of future persecution.

[00:02:58] Speaker 02:
After they had arrested the attacker and the attacker was released, he further continued threats against the family, which led

[00:03:05] Speaker 02:
to this confrontation between petitioner's brother, where he self-defended himself and had to kill the attacker.

[00:03:11] Speaker 02:
That is one of three of the attackers.

[00:03:13] Speaker 05:
But in terms of inability, so the El Salvadorian government attempted to prosecute the brother for killing Antonio, and then ultimately he prevailed in a self-defense claim.

[00:03:26] Speaker 05:
So didn't that show a willingness by the El Salvadorian government to exercise the rule of law in these cases?

[00:03:33] Speaker 02:
Your honor, there's no bright line rule as to like how far the government has to go to protect the government.

[00:03:39] Speaker 02:
Some ability to protect Mr. Cruz-Berra does not mean that they were able to protect.

[00:03:43] Speaker 02:
So the arrest, the initial arrest does not show that he was, that the El Salvadoran government was willing to protect him and able to protect him.

[00:03:51] Speaker 02:
fully.

[00:03:51] Speaker 02:
After this second incident in which the judicial system did allow his brother to claim self-defense and he was released, that is a separate example.

[00:04:02] Speaker 02:
Dr. Borman discusses in his expert report how corruption in El Salvador is not black and white.

[00:04:09] Speaker 02:
Therefore, that was an example and the immigration judge failed to see that as evidence of future persecution rather than an example of the judicial system working.

[00:04:17] Speaker 05:
So this court in Hernandez said that the IG wasn't required to specifically address every aspect of Dr. Berman's declaration.

[00:04:26] Speaker 05:
How do you overcome that?

[00:04:28] Speaker 02:
Yes, Your Honor.

[00:04:28] Speaker 02:
However, in Hernandez, they held that that report was duplicative, and they held that it was not highly probative or potentially dispositive, which is why they held that the immigration judge did not need to address it.

[00:04:40] Speaker 05:
But here, Dr. Berman was speaking in generalities, wasn't he?

[00:04:43] Speaker 05:
He didn't specifically address this situation with this family

[00:04:47] Speaker 05:
and the competing family, there seems to be something going on back in the native country with these families that I'm not sure I understand.

[00:04:56] Speaker 02:
Your honor, Dr. Borman does discuss explicitly on page 1125 of the record.

[00:05:01] Speaker 02:
He devotes about two and a half pages to Mr. Cruz-Barrera's claim.

[00:05:06] Speaker 04:
But all he can say is that Mr. Cruz-Barrera's claim sort of fits the profile, because he hasn't interviewed him.

[00:05:15] Speaker 04:
He doesn't know any of the family members.

[00:05:17] Speaker 04:
So all he can say is it fits the pattern.

[00:05:21] Speaker 04:
And here are general consequences.

[00:05:23] Speaker 04:
Here's a profile.

[00:05:25] Speaker 04:
of some awful things that happen in El Salvador.

[00:05:29] Speaker 04:
So what should the IJ have done with this report?

[00:05:33] Speaker 02:
Your Honor, the IJ should have mentioned it.

[00:05:35] Speaker 02:
It came up pursuant to Yang Rongzhao v. Holder.

[00:05:37] Speaker 02:
An immigration judge has a duty to consider the entirety of the evidence.

[00:05:41] Speaker 04:
But what should the IJ have done with this report?

[00:05:44] Speaker 04:
What would your side have liked him to have done with this report?

[00:05:48] Speaker 02:
Your Honor, the immigration judge should have addressed the evidentiary weight pertaining to Dr. Berman and used it in its analysis.

[00:05:55] Speaker 02:
It should have discussed it in its decision on whether El Salvador was.

[00:05:59] Speaker 04:
Dr. Berman has testified in hundreds of these cases.

[00:06:02] Speaker 04:
And I suspect that much of what he filed here has been repeated elsewhere.

[00:06:07] Speaker 04:
So it may well be that the IJ, certainly somebody at the BIA, may be very, very familiar with Dr. Berman's

[00:06:15] Speaker 04:
thesis with his general tenor of his testimony and would know the fact that he is not able to corroborate any of the particular facts in this case.

[00:06:27] Speaker 04:
Has Dr. Berman's report been mentioned by the BIA before?

[00:06:31] Speaker 02:
Yes, Your Honor, it has been.

[00:06:32] Speaker 04:
And in what context did it mention it?

[00:06:35] Speaker 02:
In different contexts, in different cases.

[00:06:38] Speaker 04:
Did it credit it in other contexts?

[00:06:40] Speaker 04:
Did it dismiss it?

[00:06:42] Speaker 02:
Yes, and pertaining to some cases, yes, and in others, no.

[00:06:47] Speaker 02:
However, in this record, there's no indication in the immigration judge's behalf that he found these issues with Dr. Borman's report.

[00:06:55] Speaker 02:
The issue, it was raised three times in the record on three different days, May 31st, June 7th,

[00:07:02] Speaker 02:
July 17th, and the back and forth was whether it would be admitted due to timeliness, not any issues regarding the credibility of Dr. Borman's report.

[00:07:11] Speaker 02:
Ultimately, it was admitted on the last day.

[00:07:13] Speaker 02:
However, the immigration judge stated that he would go back and decide on the evidentiary weight.

[00:07:18] Speaker 02:
He quote said, and so we'll address that at the end.

[00:07:20] Speaker 02:
However, he never did.

[00:07:22] Speaker 02:
Pursuant to Yang, Rong, Zhao, V. Holder, an immigration judge has a duty to consider the entirety of the evidence.

[00:07:28] Speaker 02:
And if there is indication that it has not done so and that evidence could have changed the outcome, then it warrants remand.

[00:07:35] Speaker 02:
Here, the indication that the immigration judge stated that he would go back and address the issue, the evidentiary issue regarding Dr. Borman's report, but he never went back and there is no mention of it, shows that he did not consider the entirety of the evidence.

[00:07:49] Speaker 02:
Furthermore,

[00:07:50] Speaker 04:
I'd like to go back to the unwilling or unable to protect.

[00:07:57] Speaker 04:
I.J.'

[00:07:58] Speaker 04:
's decision was initially issued orally, is that right?

[00:08:00] Speaker 04:
Or was it only issued orally?

[00:08:02] Speaker 02:
Orally, Your Honor.

[00:08:03] Speaker 04:
Okay.

[00:08:03] Speaker 04:
All right.

[00:08:04] Speaker 04:
I'm looking on page 233 of the record where the judge is addressing Cruz Barrera.

[00:08:11] Speaker 04:
And he says, so sir, I've denied your application.

[00:08:14] Speaker 04:
I found that the police and the courts were at least in part able or willing to protect you.

[00:08:19] Speaker 04:
What are we supposed to do with that?

[00:08:21] Speaker 04:
What are we supposed to do in part?

[00:08:24] Speaker 04:
How much of a part?

[00:08:26] Speaker 02:
We don't know Your Honor, he did not discuss it.

[00:08:28] Speaker 02:
Dr. Borman's report goes a step further than these 800 pages of country condition reports that the immigration judge refers to that he has considered.

[00:08:36] Speaker 02:
Dr. Borman's report goes a step further as it does explicitly speak about

[00:08:41] Speaker 02:
Mr. Cruzborough's claim.

[00:08:43] Speaker 02:
As I mentioned, he devotes over two and a half pages pertaining to Mr. Cruzborough's claim.

[00:08:48] Speaker 02:
He specifically states, quote, it is my professional opinion that Mr. Cruzborough would be at high and predictable risk of egregious physical harm and death if returned to El Salvador.

[00:08:58] Speaker 02:
It's undeniable that in his report, Dr. Borman does discuss

[00:09:02] Speaker 02:
Mr. Cruzborough's claim it is not a copy and paste generalized country conditions.

[00:09:07] Speaker 05:
So he says that returning Cruzborough to El Salvador could likely result in his death, but where does he opine that the El Salvadorian government wouldn't do anything to protect him?

[00:09:20] Speaker 02:
Your Honor, this was a case specific report that Dr. Borman crafted off of the testimony of Mr. Cruzborough.

[00:09:25] Speaker 02:
It was case specific.

[00:09:26] Speaker 02:
He crafted it off of the declaration of Mr. Cruzborough, his father, and his brother.

[00:09:33] Speaker 02:
And that compiled with his firsthand expertise pertaining to the violence in El Salvador and its inability to protect its victims is how he crafted his expert report.

[00:09:44] Speaker 01:
He furthermore states- I want to ask you a legal question related to this inability and unwillingness to control.

[00:09:51] Speaker 01:
That requirement is both part of the test for statutory withholding and for relief under the Convention Against Torture.

[00:10:00] Speaker 01:
However, we've talked about it slightly differently in our case law.

[00:10:03] Speaker 01:
And I'm just curious, after your review of the cases, do you see the Unable Unwilling standard to be the same under both of those claims for relief, or are there differences?

[00:10:14] Speaker 02:
Under Convention Against Torture, it is more in the aggregate pursuant to the regulations for Convention Against Torture.

[00:10:20] Speaker 02:
It considers all evidence to the possibility of torture.

[00:10:25] Speaker 01:
But I'm focused on the unable and unwilling part of this, not the torture or whether conduct rises to the level of torture or persecution.

[00:10:34] Speaker 01:
So we have case law in the cat context that talks about lack of resources and just general ineffectiveness of a government or a legal system in a government can't rise to the level of inability such that you're acquiescing.

[00:10:52] Speaker 01:
Do you think that that's true in the withholding standard?

[00:10:55] Speaker 01:
Like, what do we make of just a government's sort of ineffectiveness?

[00:11:01] Speaker 02:
Yeah, under CAT, it is more narrow, this inability or unwillingness to protect the victim.

[00:11:07] Speaker 02:
OK.

[00:11:07] Speaker 02:
Your Honor, if I may briefly conclude, for the reasons stated, we respectfully request a grant of the petition for review and agreement of the board's decision.

[00:11:16] Speaker 02:
Thank you.

[00:11:17] Speaker 02:
Thank you.

[00:11:18] Speaker 01:
We'll hear from the government.

[00:11:37] Speaker 00:
Good morning, Your Honors, and may it please the Court, Stephanie Groff for the Attorney General.

[00:11:42] Speaker 00:
Your Honors, let me first just clarify the question that you just asked.

[00:11:46] Speaker 00:
There is a significant difference between the standard for the government being unable and unwilling for withholding of removal, and whether for cat protection, the government or public official or other person acting in official capacity

[00:11:58] Speaker 00:
will acquiesce to that future or possible torture.

[00:12:01] Speaker 00:
And let me just clarify.

[00:12:02] Speaker 00:
While there is something called withholding of the removal of cat protection, in the context here, what we're talking about is just pure withholding of removal.

[00:12:10] Speaker 00:
And what Mr. Cruz-Berra needed to show there, it's part of the definition of persecution, is that if he were to be removed, the Salvadoran government would be, as noted, unable or unwilling.

[00:12:20] Speaker 00:
As this court has held on numerous occasions, that does not mean that one must be

[00:12:23] Speaker 00:
protected from all harm, that they have a duty to prevent harm, to intervene.

[00:12:29] Speaker 00:
Now with cat protection, it is a harder burden of proof to me.

[00:12:33] Speaker 00:
Now here, he sought cat protection, and with that, the cat definition specifically states that one must show that it's more likely than not that they will be tortured if removed.

[00:12:43] Speaker 00:
And that torture definition includes the acquiescence element, stating that this significant amount of harm must be either by

[00:12:50] Speaker 00:
or with the acquiescence of a public official or other person acting in an official capacity.

[00:12:55] Speaker 00:
This court has various case law that notes that acquiescence means that the public official or other person have knowledge of the harm that rises to level of torture beforehand and failed to intervene.

[00:13:06] Speaker 00:
And that's where, as you mentioned, Judge Forrest, the case law comes in about lack of finance for prisons.

[00:13:13] Speaker 00:
Are they actually attempting?

[00:13:14] Speaker 00:
Do they know about it?

[00:13:15] Speaker 00:
Is it really enough to constitute acquiescence?

[00:13:18] Speaker 00:
They're closing a blind eye to it.

[00:13:19] Speaker 00:
They are two very different standards, but importantly here, Mr. Cruz-Barrera has failed to meet his burden of proof for both of them.

[00:13:26] Speaker 00:
Let me first turn to unable and unwilling.

[00:13:29] Speaker 00:
Here, the immigration judge looked at the evidence as a whole.

[00:13:33] Speaker 00:
Importantly, he noted on various instances in his oral decision that he considered the numerous country conditions evidence that was presented by Mr. Cruz-Barrera.

[00:13:42] Speaker 00:
However, the immigration judge noted that it is a case-by-case determination and he needed to look specifically at not only the country of origin evidence, but what happened to Mr. Cruz Barrera.

[00:13:52] Speaker 04:
Hey, counsel, so what do we do with the statement on page 233?

[00:13:56] Speaker 00:
Sure, your honor, the statement that you pointed out with my friend on the other side, I will note that's not part of his oral decision.

[00:14:03] Speaker 00:
It was after the fact, letting the Mr. Cruz Barra know what happened.

[00:14:07] Speaker 00:
I would say that at this point, it is not in any indication that the immigration judge aired in his decision.

[00:14:13] Speaker 04:
Well, he may not hear it.

[00:14:15] Speaker 04:
I mean, he said this is a finding, and nobody's challenging whether that's correct or not.

[00:14:21] Speaker 04:
We're trying to figure out what's the implications of saying in part.

[00:14:24] Speaker 04:
I don't know what to do with that.

[00:14:26] Speaker 04:
A big part, a little part, does it make a difference if it's

[00:14:30] Speaker 00:
Well, Your Honor, I think what you can do with that is look to his specific oral decision where he addresses that it is a close call, that there is evidence of government corruption.

[00:14:40] Speaker 00:
The judge notes that there's evidence that Salvadoran officials have trouble controlling and handling it.

[00:14:47] Speaker 00:
But here, as noted, Mr. Cruzbrera's specific instance where he was harmed, which albeit the government admits is very tragic, and we are not challenging that at all,

[00:14:57] Speaker 00:
But after that, his persecutor, at least one of them, Antonio, was arrested.

[00:15:02] Speaker 00:
The police were involved.

[00:15:04] Speaker 00:
As far as we know, Ernesto, the witness, fled.

[00:15:06] Speaker 00:
There's no evidence that the government was unable to protect him or provide any protection or witness protection that was never before the court.

[00:15:15] Speaker 00:
And ultimately, while Antonio was released, years later, when his brother, Mr. Cruz Pereira's brother, got in an interaction with them,

[00:15:22] Speaker 00:
He ended up killing Antonio.

[00:15:24] Speaker 00:
So one of his main feared persecutors had passed, is gone.

[00:15:28] Speaker 00:
But with that, what the immigration judge looked at here was that Mr. Cruzbrera's brother Mario was arrested.

[00:15:34] Speaker 00:
He was tried.

[00:15:36] Speaker 00:
He was able to argue legal self-defense in this murder, and he was not convicted and able to be released.

[00:15:42] Speaker 01:
But I think all of that is a strong argument for why unwillingness is not met here.

[00:15:48] Speaker 01:
I mean, I've seen lots of these kinds of cases, and sometimes the record is very clear.

[00:15:51] Speaker 01:
that local authorities have no interest in helping someone and that doesn't seem to be the case in this context.

[00:15:57] Speaker 01:
So the question is inability.

[00:16:00] Speaker 01:
Is, are the authorities able to protect this petitioner if he's returned to the country?

[00:16:05] Speaker 01:
And what we have here is people are fleeing for their lives.

[00:16:09] Speaker 01:
He has to be removed out of the hospital because there's threats there.

[00:16:13] Speaker 01:
Parents are moving, they're hiring private security, the brother gets into an interaction and the only way he protects himself is to kill the

[00:16:18] Speaker 01:
the person who's coming after him like this doesn't seem like the family is getting a whole lot of protection from the government and if they're not unwilling to do it it suggests that maybe they just can't do it and also unlike many cases that I've seen where you just sort of have generalized

[00:16:37] Speaker 01:
You know, the society seems to be falling apart or whatever.

[00:16:39] Speaker 01:
This is a specific problem.

[00:16:41] Speaker 01:
There are discrete people that are having a conflict with this family.

[00:16:45] Speaker 01:
So perhaps we could expect a little bit more from authorities in being able to take some protective action.

[00:16:50] Speaker 01:
How do you react to all that?

[00:16:52] Speaker 00:
Well, yes, Your Honor, and the government acknowledges all of that.

[00:16:54] Speaker 00:
But I will just first point, before I answer your question, that the standard that this court needs to utilize is substantial evidence standard.

[00:17:01] Speaker 00:
These are factual findings, and the record needs to compel a contrary conclusion.

[00:17:05] Speaker 00:
This is a close case.

[00:17:07] Speaker 00:
This is more unique than some that you, Judge Forrest, has mentioned are different, where it's just generalized.

[00:17:12] Speaker 00:
There has been direct harm.

[00:17:14] Speaker 00:
There has been police interaction.

[00:17:15] Speaker 00:
But just because it's a close case does not mean that the record compels a contrary conclusion.

[00:17:20] Speaker 01:
Well, I mean, you go back to Judge Bybee's question about this one statement by the IJ.

[00:17:24] Speaker 01:
It's a close case, and the IJ says, well, in part, they can't protect him.

[00:17:30] Speaker 00:
Well, and Your Honor, let me answer the question you asked previously.

[00:17:34] Speaker 00:
Here, what we do have is, yes, Mr. Cruz-Barras' family has moved.

[00:17:37] Speaker 00:
They've relocated.

[00:17:38] Speaker 00:
They hired private security.

[00:17:40] Speaker 00:
But when asked specifically, have they gone to the police to complain about any of the threats they received?

[00:17:46] Speaker 00:
he said generally on one occasion they have.

[00:17:48] Speaker 00:
We don't have evidence that they've actively sought protection, that there's active threats.

[00:17:52] Speaker 00:
It was only on one instance where a family member went back to the land and someone of Antonia's family was with a machete.

[00:17:59] Speaker 00:
It's unclear from this record if they went to the police, if they sought any protection.

[00:18:04] Speaker 00:
So yes, while there is a willingness, the lack of inability or in part the judge's concern, he found that as the evidence as a whole, looking at it in the totality here,

[00:18:13] Speaker 00:
Mr. Cruzbrera has not shown that they have an inability to protect him.

[00:18:19] Speaker 05:
That's a question I had for both sides.

[00:18:20] Speaker 05:
So, I mean, the assault upon Mr. Cruzbrera occurred in 2011.

[00:18:26] Speaker 05:
The killing of the assailant by his brother occurred in 2014.

[00:18:31] Speaker 05:
Does the record provide any other dates as to these other allegations by the family that, you know, the machete incident with his sister

[00:18:40] Speaker 05:
It all seems to blur together.

[00:18:43] Speaker 05:
Is the record clear about this?

[00:18:45] Speaker 05:
And then to your point, it seems to me that a government's unable to protect someone.

[00:18:51] Speaker 05:
There's got to be a demonstration that they were aware of the fact, and then they were unable to protect them.

[00:18:58] Speaker 05:
And I'm not clear on the facts for either of this.

[00:19:03] Speaker 00:
Yes, your honor.

[00:19:04] Speaker 00:
And it is a bit ambiguous, and I'll note that it is Mr. Cruz-Barrera's burden, and he didn't establish it below.

[00:19:09] Speaker 00:
But as far as the incident with the machete, I do believe that occurred after the fact Antonio was murdered by Mario.

[00:19:15] Speaker 00:
The record also shows, and my friends on the other side had argued in their brief, that when Mr. Cruz-Barrera's sister went to the police years later, I believe maybe in 2017, although I need to check, the police had destroyed those records.

[00:19:28] Speaker 00:
It might have been 2019.

[00:19:29] Speaker 00:
Nonetheless, their argument was

[00:19:31] Speaker 00:
years later, the police destroyed the record.

[00:19:34] Speaker 00:
That shows an inability.

[00:19:35] Speaker 00:
However, what it shows is that years have passed.

[00:19:38] Speaker 00:
And while they are afraid for their life back at home based on Antonio and generalized claim and fear of the gangs, the judge stated that here, yes, there was a family dispute, but the fact that it's immediately and automatically connected to the gangs as Dr. Borman's declaration opined, that is not what we have here.

[00:19:57] Speaker 00:
They have generalized fear while they've had to go through other things.

[00:20:00] Speaker 00:
It had been years since this attack, and Tony has been killed.

[00:20:03] Speaker 00:
And there's nothing to show that the government, if he were to return, would be unable or have an inability to protect him.

[00:20:10] Speaker 00:
Well, there hasn't been any new evidence since 2019.

[00:20:12] Speaker 00:
That's because this case has been closed.

[00:20:15] Speaker 00:
But as I noted in the brief, there is significant country changes.

[00:20:19] Speaker 00:
And the evidence does note that.

[00:20:22] Speaker 00:
There has been a new president in El Salvador.

[00:20:24] Speaker 00:
The country conditions note that President Bucali

[00:20:26] Speaker 00:
want to is seeking to control gangs there has been difference and while we do this court does not need to remain to address it what you need to look at is whether the record compels that contrary conclusion while it may be close by the judge may have gone back and forth with it it does not compel and I do you've said a couple of times there's no evidence that the government is unable to protect them

[00:20:47] Speaker 01:
And I guess I'm wondering what evidence is there that they're able to, given all the circumstances that we've seen where there was no protection for many, you know, it's just not one incident, it's multiple.

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

[00:21:01] Speaker 00:
However, this court has held on various occasions that it's not that a government must prevent all risks of harm.

[00:21:07] Speaker 00:
Specifically, this court in Hussein versus Rosen stated that, yes, there may be inability.

[00:21:13] Speaker 00:
There may be unwillingness.

[00:21:14] Speaker 00:
But the concept that there must be perfect protection, that is not one that this court holds other countries to.

[00:21:20] Speaker 00:
In fact, the United States is not held to that.

[00:21:23] Speaker 00:
And there's various case law that notes that.

[00:21:25] Speaker 00:
For instance, in Nah

[00:21:27] Speaker 00:
I'm going to butcher this, Navrani v. Gonzalez.

[00:21:29] Speaker 00:
In 2005, this court noted that the record didn't compel a conclusion there about unable and unwilling, because while he was harassed, while he was sought, the government actively tried to investigate, but was unsuccessful in resolving that matter.

[00:21:43] Speaker 00:
And the Ninth Circuit in that case and numerous others have held that that's not enough to compel a contrary conclusion if they express difficulty.

[00:21:50] Speaker 00:
And I do just want to turn to Dr. Borman's declaration.

[00:21:54] Speaker 00:
I think it's important for this court to have some context and clarity in what actually happened here, as my friends on the other side do mischaracterize the merits hearing a bit.

[00:22:05] Speaker 00:
Importantly, Mr. Cruzbrera, during this time, was detained.

[00:22:08] Speaker 00:
He had two specific merits hearings.

[00:22:11] Speaker 00:
He was able to testify.

[00:22:12] Speaker 00:
There was cross-examination.

[00:22:14] Speaker 00:
And at the conclusion of his testimony,

[00:22:17] Speaker 00:
the immigration judge started to address the case, noting both sides' arguments, and allowed both sides to present closing arguments.

[00:22:25] Speaker 00:
Specifically, this started on Administrative Record 220 to 222 with the Department of Homeland Security's closing.

[00:22:31] Speaker 00:
However, Mr. Cruz-Barrera's attorney noted and specifically stated that on page 224, that looking at Dr. Borman's evaluation, the government of El Salvador absolutely does not have the capacity to defend individuals.

[00:22:46] Speaker 00:
So Mr. Cruz-Barrera's attorney noted that for the immigration judge.

[00:22:50] Speaker 00:
Then the immigration judge stated, it's your burden to prove this.

[00:22:54] Speaker 00:
He acknowledged that it's a case by case determination, and that the evidence showed that here the government was willing and able to help him based on all the numerous examples that I've mentioned with arresting.

[00:23:04] Speaker 04:
So in a case that you have told us very candidly, and I really appreciate the government coming and telling us, reminding us that this is a close case.

[00:23:11] Speaker 00:
Yes, Your Honor.

[00:23:12] Speaker 04:
In a close case, why wouldn't the IJ say, I have considered Dr. Berman's testimony, and for the following reasons, I don't find that it is persuasive, that it's too general.

[00:23:27] Speaker 04:
It doesn't apply in this particular case.

[00:23:29] Speaker 04:
This was a family to family.

[00:23:31] Speaker 04:
These are Hatfields and McCoys.

[00:23:33] Speaker 04:
kind of a situation, why wouldn't he at least mention it to complete the record?

[00:23:40] Speaker 04:
This is obviously a substantial piece of work on Dr. Berman's part.

[00:23:44] Speaker 04:
I understand this may be something that the IJ and certainly the BIA has seen again and again and again with respect to El Salvador.

[00:23:52] Speaker 04:
And it may be that they're used to dealing with it, and it may be that they've discounted it in some way.

[00:23:57] Speaker 04:
But we need to look at this record

[00:24:00] Speaker 04:
So why didn't the IJ mention it and why isn't that a problem?

[00:24:04] Speaker 00:
Absolutely, Your Honor.

[00:24:05] Speaker 00:
And the government agrees that it is case by case for this court to look at it in this record.

[00:24:09] Speaker 00:
But what we have here in continuing, both in the closing, the immigration judge addressed and spoke with Mr. Cruzbearer's attorney.

[00:24:16] Speaker 00:
In fact, Mr. Cruzbearer's attorney then stated, if you look at the entire country of origin evidence, including Dr. Borman's declaration, she made that comment.

[00:24:26] Speaker 00:
Then the immigration judge went and issued his oral decision.

[00:24:29] Speaker 00:
And in the oral decision, while we note that he did not specifically state Dr. Borman's testimony,

[00:24:33] Speaker 00:
Sorry, Dr. Borman's declaration.

[00:24:36] Speaker 00:
The immigration judge on multiple instances said, I've considered the country of origin information, noting corruption in El Salvador, which, as Mr. Cruz-Barrera's attorney mentioned a few minutes earlier, was what Dr. Borman had provided, country of origin evidence as it relates to the corruption and difficulties in controlling.

[00:24:54] Speaker 00:
In addition, for convention against torture protection, the regulation only states that the judge must consider the evidence in their totality.

[00:25:01] Speaker 04:
The country of origin, those are also the State Department reports.

[00:25:05] Speaker 00:
Yes, Your Honor.

[00:25:06] Speaker 04:
Which the IJ should have considered, and we assume that he probably did.

[00:25:10] Speaker 00:
But the immigration judge here did consider it, and that's the difference.

[00:25:13] Speaker 00:
This court's decision in Cole versus Holder specifically states that an immigration judge need not specifically go through every piece of evidence unless the non-citizen can show that it's probative or potentially dispositive.

[00:25:25] Speaker 00:
And as we noted in our brief, Dr. Borman's declaration is neither.

[00:25:29] Speaker 00:
It's neither probative nor potentially dispositive as to the outcome of this case.

[00:25:33] Speaker 00:
As you mentioned, Judge Bybee,

[00:25:35] Speaker 00:
A lot of it was generalized.

[00:25:37] Speaker 00:
Yes, that he does testify in a variety of cases.

[00:25:40] Speaker 00:
I noted in our brief that a lot of it does mimic the country of conditions evidence.

[00:25:44] Speaker 00:
The only aspects of Dr. Borman's declaration that discussed Mr. Cruz-Barrera's case were either legal conclusions or discussing issues that were not before the court.

[00:25:55] Speaker 00:
For instance, he opined on ability to relocate.

[00:25:58] Speaker 00:
That is not an issue here.

[00:25:59] Speaker 00:
And an expert cannot opine on legal conclusions.

[00:26:02] Speaker 00:
So the government is arguing that it was not legal error for the immigration judge to not mention Dr. Borman's specific declaration as the immigration judge here considered the evidence as the whole, looked at it as a totality, noted that it is a close call, but in this specific case, he found that he didn't meet his burden approved.

[00:26:23] Speaker 04:
You've got some very good reasons, some good basis for arguing that he can't opine on legal conclusions.

[00:26:30] Speaker 04:
I certainly would have liked to have heard that from the IJ.

[00:26:33] Speaker 04:
rather than from the government's attorney.

[00:26:34] Speaker 00:
Yes, Your Honor.

[00:26:35] Speaker 00:
And if I may just briefly answer that.

[00:26:37] Speaker 00:
I see my time is running up.

[00:26:39] Speaker 00:
The government acknowledges this.

[00:26:41] Speaker 00:
This may not be a perfect immigration judge decision.

[00:26:45] Speaker 00:
It was an oral decision.

[00:26:46] Speaker 00:
But this court has held that judges don't need to write exegesis on every piece of evidence.

[00:26:51] Speaker 00:
They don't need to go through every single piece.

[00:26:54] Speaker 00:
And this is not post-hoc rationalizations.

[00:26:56] Speaker 00:
The board looked at it de novo as it was a legal error claim.

[00:27:00] Speaker 00:
And they made the correct decisions.

[00:27:01] Speaker 00:
And we ask that this court find that there was no legal error with Dr. Borman's declaration and that substantial evidence supports the ultimate conclusions.

[00:27:09] Speaker 00:
Thank you so much, Your Honors.

[00:27:10] Speaker 01:
Thank you, counsel.

[00:27:12] Speaker 01:
We'll hear a rebuttal.

[00:27:21] Speaker 03:
Good morning, Your Honors.

[00:27:22] Speaker 03:
My name is Stephanie Wodnick, and I have two points on rebuttal.

[00:27:25] Speaker 03:
First, Dr. Borman's report was highly probative and potentially dispositive, and under this court's case law... What in the report was highly probative and potentially dispositive?

[00:27:36] Speaker 05:
Give me specifics.

[00:27:37] Speaker 03:
Yes, your honor.

[00:27:38] Speaker 03:
So, Mr. Excuse me, Dr. Borman has two conclusions about Mr. Cruz-Barrera.

[00:27:44] Speaker 03:
First, on 11-26, he states, it is his professional opinion Mr. Cruz-Barrera would be at a high and predictable risk of egregious physical harm and death.

[00:27:52] Speaker 05:
Is that just a legal conclusion?

[00:27:54] Speaker 03:
No, Your Honor.

[00:27:55] Speaker 03:
That's his professional opinion, looking at the totality of the evidence here and as well as Mr. Cruz-Barrera's specific case against the backdrop of the country conditions, showing that what is happening in El Salvador on a large scale is what is happening here in this specific case.

[00:28:09] Speaker 05:
And what was your second one?

[00:28:11] Speaker 03:
And the second one is on 1153, Your Honor, and he, you know, has the same opinion, but then additionally adds that the Salvadoran government will be unable or unwilling to provide even a modicum of protection to Mr. Cruz Barrera if returned.

[00:28:24] Speaker 05:
Those are conclusory statements.

[00:28:26] Speaker 05:
Does he provide any basis to put me to the bones for his conclusions?

[00:28:31] Speaker 03:
Yes, Your Honor.

[00:28:32] Speaker 03:
Starting on 1126, Dr. Borman states, Mr. Cruz Barrera and numerous members of his family have been targeted by MS-13 over the course of several years, and the only reasonable conclusion is that those threats remain active.

[00:28:44] Speaker 03:
He further states, the fact that Mr. Cruz Barrera's brother, Mario, killed Antonio would exacerbate MS-13's rage by a factor of multiples and predict... How does that tie, though, to the government's unwillingness or inability to protect the family?

[00:28:59] Speaker 03:
Well, Your Honor, this comes in because, you know, if Antonio would have been brought to trial as he should have been, if the police would have... What evidence?

[00:29:07] Speaker 03:
What evidence?

[00:29:09] Speaker 03:
The evidence that the police failed to show up to the hearing, the evidence that... That's enough to convict somebody?

[00:29:15] Speaker 05:
A police comes by with a report and they say that a murder was committed and someone can get found guilty in El Salvador for that?

[00:29:23] Speaker 03:
I don't know if I understand your question, Your Honor.

[00:29:25] Speaker 03:
Would you repeat, please?

[00:29:26] Speaker 05:
Yeah.

[00:29:26] Speaker 05:
So the witnesses are gone.

[00:29:28] Speaker 05:
The victim is gone.

[00:29:29] Speaker 05:
The witness is gone.

[00:29:30] Speaker 05:
How was the El Salvadorian government and court system supposed to conduct a trial?

[00:29:36] Speaker 03:
Well, Your Honor, they had evidence, they had reports that they had taken from Ernesto, and Ernesto would have been able to go there and testify against Antonio.

[00:29:45] Speaker 05:
He's gone.

[00:29:46] Speaker 03:
He was gone, Your Honor, and the evidence in the record and according to Mr. Cruz Herrera's credible testimony, which was found credible by the IJ and under a lot of the INS, should be taken as true under that standard.

[00:29:58] Speaker 03:
He testified that he found out that Ernesto, they had not protected him under a code name and therefore Ernesto had fled because he was also receiving threats from MS-13.

[00:30:08] Speaker 03:
So when we look at the totality of the evidence here, we're looking at the police failing to show up to the hearing to testify against Antonio.

[00:30:16] Speaker 03:
We see Ernesto failing to appear.

[00:30:18] Speaker 03:
We see destruction of records.

[00:30:20] Speaker 03:
We see continued death threats.

[00:30:23] Speaker 05:
We see that Antonio had to attack and kill.

[00:30:28] Speaker 05:
threats were made and whether they were reported to the El Salvadorian government.

[00:30:34] Speaker 03:
Your honor, we do not have specific dates as to when those happened to my knowledge and under mr. Cruz Barrera's declaration He was told a couple of years after the fact that these threats had been coming in that the family was continuing to be threatened So we know that that this happened after Antonio was murdered And we know that the family has continued to receive threats such that they have relocated twice within El Salvador and have hired private security guards I know all that but I mean

[00:31:02] Speaker 05:
How does the El Salvadorian government know that all this is occurring?

[00:31:06] Speaker 05:
Have they reported it to authorities and the authorities have ignored them?

[00:31:11] Speaker 03:
From my knowledge, Your Honor, Mr. Cruz-Barrera's declaration states that his family did go to the police with this information, and the police did nothing in response to those threats.

[00:31:23] Speaker 03:
And so, you know, I'm not aware that the family has continued to go back, but they have felt scared enough to relocate twice and hire private security guards.

[00:31:33] Speaker 03:
Your Honours, going off of that point, El Salvador has an inability to protect Mr. Cruz Barrera, and this is reviewed under a de novo standard, which comes from Wilkinson v. Garland, which states that the question of whether a government is unable or unwilling to protect a persecutor is an example of a mixed question of law and fact.

[00:31:54] Speaker 03:
and under Mendoza-Pablo V. Holder, mixed questions of law, in fact, are reviewed de novo.

[00:31:59] Speaker 03:
But even if we look at this under a substantial evidence standard, we still win because the totality of the evidence shows that Mr. Cruz-Barrera was harmed, grievously, and the Salvadoran government was unable or unwilling to protect him from that harm.

[00:32:13] Speaker 03:
Your honors, I see I'm out of time if I may briefly conclude for all of these.

[00:32:17] Speaker 05:
I have one question for you.

[00:32:18] Speaker 05:
So if this was remanded, I mean, it's going to be remanded for what purposes?

[00:32:22] Speaker 05:
What is the immigration judge going to hear new that it hasn't already heard?

[00:32:28] Speaker 03:
Your Honor, well, I would assume that that would depend on what type of instructions you would send the case back.

[00:32:33] Speaker 03:
But at minimum, the IJ needed to acknowledge Dr. Borman's report.

[00:32:38] Speaker 03:
He left it hanging.

[00:32:39] Speaker 03:
It was an issue that he did not come back to when he specifically stated that he would.

[00:32:43] Speaker 03:
And under this court's case law, as well as the federal regulations, he was required to mention that piece of evidence, and he failed to do so.

[00:32:50] Speaker 03:
So at minimum, he needs to acknowledge that he viewed Dr. Borman's report and considered that in his decision.

[00:32:57] Speaker 03:
Your honors, for the foregoing reasons, we respectfully request this court grant the petition and remand the case.

[00:33:02] Speaker 03:
Thank you.

[00:33:04] Speaker 01:
All right.

[00:33:04] Speaker 01:
Thank you, counsel, for the helpful argument in this case.

[00:33:06] Speaker 01:
And I will just briefly note the court's gratitude to the clinic at the University of Idaho for taking on this case as part of our pro bono program.

[00:33:15] Speaker 01:
And of course, a personal point of pride for me, given that this is my alma mater here doing service for the court.

[00:33:20] Speaker 01:
So thank you very much.