[00:00:12] Speaker 01:
Good morning, and may it please the court.

[00:00:14] Speaker 01:
My name is Callard Cowdery, and I represent the petitioner, Mr. John Doe.

[00:00:18] Speaker 01:
Your honors, with your permission, I would like to reserve three minutes for rebuttal.

[00:00:23] Speaker 01:
About 25 years ago, Doe dissociated from a notorious Jamaican gang, now known as the Junglists.

[00:00:30] Speaker 01:
They beat him, sliced him with a machete, and burnt him with acid.

[00:00:34] Speaker 01:
He fled to the United States.

[00:00:36] Speaker 01:
But in 2023,

[00:00:37] Speaker 01:
When the Junglists learned he would soon be deported, they reignited their vengeance, burning down the home he inherited in Jamaica and murdering his cousin for challenging the gang's ongoing threat against Doe.

[00:00:49] Speaker 02:
What was the basis for saying that the gang learned that he was returning to Jamaica or that he had been released from custody?

[00:00:58] Speaker 02:
What in the record supported that or how they determined that?

[00:01:01] Speaker 01:
Doe provided testimony in his initial proceedings about how he had heard from family members back in Jamaica that his imminent release date from prison was being circulated throughout the neighborhood.

[00:01:16] Speaker 01:
This is corroborated by the expert report that was later submitted with the motion to remand.

[00:01:24] Speaker 01:
which stated that Jamaica is a small community and information circulates widely there.

[00:01:31] Speaker 01:
Moreover, he later provided evidence that his release date was publicly listed online for when he would be released.

[00:01:40] Speaker 02:
So there's a difference between being released from custody for his conviction and his immigration status.

[00:01:47] Speaker 02:
And I thought I understood that there was some suggestion that gang members in Jamaica would also know

[00:01:53] Speaker 02:
his immigration status.

[00:01:55] Speaker 02:
And it wasn't clear to me how they would know that.

[00:01:57] Speaker 01:
Correct, Your Honour.

[00:01:58] Speaker 01:
It's independent, however, because the Jamaican gangs do monitor individuals who are deported.

[00:02:05] Speaker 01:
Back to Jamaica, they have awareness that individuals who are committed of crimes are then put into deportation proceedings and their deportation is seen as imminent.

[00:02:13] Speaker 01:
And this is evidenced by the evidence in the record, both through Doe's testimony, as well as

[00:02:21] Speaker 01:
through letters from his family in Jamaica who attest to the fact that it was circulating in the neighborhood where Doe is from.

[00:02:26] Speaker 02:
Well, they were saying it was circulating that had been released from prison, but I don't know that there's any database online that you could check to see somebody's immigration status.

[00:02:35] Speaker 02:
So it seemed pretty speculative that they would know what his immigration status was or if he was being returned to Jamaica.

[00:02:43] Speaker 02:
And I thought you were relying on expert testimony to suggest that through corruption, through the

[00:02:48] Speaker 02:
government, that information would be released when he actually returned to the country.

[00:02:53] Speaker 02:
But that's a different matter than testimony from him or his family.

[00:02:57] Speaker 01:
Correct, Your Honor.

[00:02:58] Speaker 01:
There are multiple grounds on which we rest.

[00:03:00] Speaker 01:
There is the testimony from him.

[00:03:01] Speaker 01:
There's testimony from his family who spoke to the active knowledge they heard in the community of the junglists who saw him as being deported.

[00:03:09] Speaker 01:
And then additionally, there is expert testimony that explains that because of corruption,

[00:03:18] Speaker 01:
Jamaican officials do communicate to the gangs.

[00:03:21] Speaker 01:
But regardless, I think the strong evidence we have here is from the family that witnessed within the community rumors circulating that Doe would be returned, showing that the information was disseminated throughout the community.

[00:03:38] Speaker 01:
So there are multiple places in the record where there is evidence to support the fact that the junglists became aware.

[00:03:47] Speaker 01:
And today I would like to focus my time on the three most egregious errors that the board committed in denying Doe's motion to remand.

[00:03:58] Speaker 01:
First, the board did not provide a reasoned explanation for the

[00:04:02] Speaker 01:
for failing to consider the expert's testimony.

[00:04:05] Speaker 01:
Second, the board applied the wrong standard when denying the motion to remand based on ineffective assistance of counsel.

[00:04:12] Speaker 01:
And third, the board applied the wrong standard again in denying the motion to remand based on new evidence.

[00:04:19] Speaker 01:
Turning to my first point, I would like to address a dispositive, egregious legal error committed by the board.

[00:04:24] Speaker 01:
The board provided no reasoned explanation for failing to address the country conditions expert testimony.

[00:04:32] Speaker 01:
CATS implementing regulations

[00:04:34] Speaker 01:
require all evidence to be considered.

[00:04:37] Speaker 01:
This court has consistently and repeatedly ordered remand whenever the board fails to give reasoned consideration to potentially dispositive evidence.

[00:04:47] Speaker 01:
This occurred, just to name a few published examples, in N.A.

[00:04:51] Speaker 01:
Cole, Aguilar Ramos, Camalfas, and Encarnacion recently.

[00:04:56] Speaker 01:
This board has also said that when it comes to expert testimony, if the board rejects it, the board must state why it was insufficient and give a reasoned explanation.

[00:05:06] Speaker 01:
And even the board itself requires explicitly addressing expert testimony before rejecting it.

[00:05:13] Speaker 01:
That comes from their decision in matter of MAMC.

[00:05:16] Speaker 01:
And here, the board said nothing regarding the expert testimony.

[00:05:20] Speaker 01:
In their briefing, the government attempts to justify this

[00:05:24] Speaker 01:
by pointing to the fact that the board referenced the expert testimony when it summarized evidence Doe asserted his prior counsel should have filed.

[00:05:33] Speaker 01:
But the board made no direct reference to the report that was actually submitted.

[00:05:37] Speaker 01:
And again, even if this court finds that a mentioning expert testimony occurred, board's precedent and this court's precedent say that's not enough.

[00:05:49] Speaker 01:
There must be a reasoned explanation.

[00:05:51] Speaker 01:
Especially here where the board was required to accept the experts contentions as true unless they were inherently unbelievable.

[00:06:00] Speaker 01:
I'll note here that the expert findings are clearly dispositive.

[00:06:05] Speaker 01:
Dr. Damian Blake boasts at least 20 years of research relating to Jamaica as well as authoring numerous publications regarding politics, society, and violent actors in Jamaica.

[00:06:16] Speaker 01:
He provided a thorough, reasoned, and particular analysis as to Doe, spanning 33 pages.

[00:06:23] Speaker 01:
As to the likelihood of torture that Doe faces, Dr. Blake specifically found that Doe has a high and more likely than not risk of deadly violence in Jamaica.

[00:06:33] Speaker 04:
This expert report was the new one, right?

[00:06:35] Speaker 04:
I guess submitted as new evidence with the IAC motion, the two motions to remand.

[00:06:41] Speaker 01:
That's correct, Your Honor.

[00:06:42] Speaker 04:
And the BIA opinion does refer to new evidence being submitted, so maybe it doesn't explicitly mention the expert by name, but then it does address that DOE has presented new evidence and then explains why the BIA does not feel it's adequate here.

[00:06:59] Speaker 04:
So, I mean, it looks like it did address the merits of it.

[00:07:02] Speaker 01:
Your honor while it may have addressed the merits in general and provided a general Summary of that it considered the evidence before it a catch-all phrase cannot stand if there is any evidence that the Any evidence within the record that particular evidence was not considered and this court has found as I mentioned in numerous cases where

[00:07:27] Speaker 01:
Where there is any indication that the evidence was not considered That constitutes an abuse of discretion in his legal air And here dr. Damien Blake's report is clearly dispositive He made a finding as I stated that to has a high and more likely than not risk of deadly violence in Jamaica and to acquiescence

[00:07:50] Speaker 01:
He found that the Jamaican police would likely turn a blind eye or acquiesce to any torture that Doe might experience.

[00:07:59] Speaker 01:
So just the fact that the board never stated any reason for not considering a report, testimony of an expert that speaks directly to the torture that Doe will experience, and that has never been reviewed by a fact finder, that's enough for remand.

[00:08:14] Speaker 01:
And this alone, regardless of any other issue before the court today, necessitates remand.

[00:08:20] Speaker 04:
And what is the specific new evidence about the acquiescence issue?

[00:08:25] Speaker 04:
It seems like it's kind of similar to what was presented before.

[00:08:30] Speaker 01:
The evidence on acquiescence introduces an additional element that was not presented at those initial cat hearing.

[00:08:39] Speaker 01:
The expert explains in detail how individuals like Doe himself, who are deportees and who have prior convictions, are treated differently by the Jamaican police.

[00:08:52] Speaker 01:
They are seen as what

[00:08:54] Speaker 01:
Dr. Blake refers to as waste men and they are not seen as worthy of protection and often become a target for violence by the police themselves.

[00:09:02] Speaker 01:
So this is an entirely new reason for acquiescence that was not addressed at all by the board and was not presented at the lower court.

[00:09:12] Speaker 01:
Additionally, Dr. Blake, as well as country conditions evidence shows that there's direct collusion between the gangs and the police in Jamaica.

[00:09:21] Speaker 01:
as well as corruption, which further supports the acquiescence analysis and is akin to the evidence that's presented in cases that this court has also ordered remand in finding that the board can strew the acquiescence standard too narrowly.

[00:09:36] Speaker 04:
That's still kind of similar to what was said before, which is conditions aren't great in Jamaica, but the government is still making some efforts.

[00:09:45] Speaker 04:
Maybe not up to standards here, but they are making some efforts.

[00:09:48] Speaker 04:
It seems like it's very duplicative or cumulative of what was presented before.

[00:09:55] Speaker 01:
Your Honour, what is not duplicative or cumulative is the argument or is the evidence that Doe shares particular characteristics that will make the Jamaican police more likely than not to turn a blind eye to any harm that might befall him.

[00:10:12] Speaker 01:
So that is not cumulative.

[00:10:14] Speaker 01:
That does not appear in the initial proceedings.

[00:10:17] Speaker 01:
Additionally, the evidence that is submitted under a proper acquiescence analysis does show a likelihood of acquiescence, as this court has held that not just, that acquiescence does not

[00:10:35] Speaker 01:
require only that the federal government itself would acquiesce, but that an official at any level would acquiesce.

[00:10:45] Speaker 01:
And here, with the copious amounts of evidence showing corruption and direct collusion between the gangs, this evidence is not duplicative and certainly meets the requirements for acquiescence.

[00:10:59] Speaker 01:
Turning to my second point, when the board found that Doe's prior counsel's ineffective assistance did not result in prejudice, it applied the wrong legal standard.

[00:11:09] Speaker 01:
This court has repeatedly held that the prejudice standard requires concerning, considering whether the deficient performance may have affected the outcome.

[00:11:19] Speaker 02:
So doesn't the BIA decision say that and cite authority for that point and then include in parenthetical explaining that the standard is may have?

[00:11:28] Speaker 01:
You're correct, Your Honor.

[00:11:30] Speaker 01:
The board decision does cite a parenthetical.

[00:11:34] Speaker 01:
Well, it sets a case.

[00:11:35] Speaker 01:
Cites a case with a parenthetical.

[00:11:38] Speaker 02:
And setting out the standard.

[00:11:39] Speaker 02:
It's explicitly setting forth the standard, which seems to clearly indicate that the board knew the standard and were setting it forth.

[00:11:45] Speaker 02:
And it was setting it forth in its decision.

[00:11:49] Speaker 01:
Yes, Your Honor, they do cite a case and include a parenthetical that does use the correct may have affected the outcome.

[00:11:57] Speaker 01:
However, in Fonseca, Fonseca, this court found that there is a history of conflating standards in both the board's prior decisions as well as the Ninth Circuit's before that time.

[00:12:10] Speaker 01:
And here, the standard was clearly conflated.

[00:12:16] Speaker 01:
They did correct.

[00:12:18] Speaker 01:
cite the correct standard through case law, but in their ultimate conclusion, they use the language would have affected.

[00:12:25] Speaker 01:
And this shows a clear conflation of standards.

[00:12:28] Speaker 01:
And this court has ordered remand in other cases where the standards have been conflated.

[00:12:33] Speaker 01:
An example of this occurs in Dovey Garland, case number 271884.

[00:12:40] Speaker 01:
And there, both standards were cited, and remand was still ordered on that basis.

[00:12:48] Speaker 02:
You are under three minutes.

[00:12:51] Speaker 02:
Did you want to reserve time for rebuttal?

[00:12:53] Speaker 01:
Yes, I'd like to reserve the remainder of my time for rebuttal.

[00:12:56] Speaker 01:
Thank you, Your Honor.

[00:13:08] Speaker 02:
Sweetacre, can you hear us?

[00:13:12] Speaker 03:
Yes?

[00:13:13] Speaker 03:
Yes, I can.

[00:13:13] Speaker 03:
Thank you.

[00:13:15] Speaker 03:
Good morning, may it please the court.

[00:13:17] Speaker 03:
My name is Kristen Whitaker and I'm here on behalf of the Attorney General of the United States.

[00:13:22] Speaker 03:
This court should deny the petition for review.

[00:13:25] Speaker 03:
First, substantial evidence supports the agency's denial of the petitioner's claim for cat deferral because he failed to show a likelihood of torture

[00:13:33] Speaker 03:
with the requisite state action.

[00:13:35] Speaker 03:
Second, the board did not abuse its discretion in denying the motion to remand because the petitioner failed to show that he was prejudiced or that the new evidence he presented was material to his claim.

[00:13:48] Speaker 03:
Now, going to the administrative appeal or the original cat deferral claim,

[00:13:52] Speaker 03:
As Your Honor pointed out, there is no sufficient or persuasive evidence showing that the Wild Bunch gang had any continued interest in the petitioner.

[00:14:03] Speaker 03:
There had been a significant length of time that he has had any contact with gang members or also government officials.

[00:14:12] Speaker 03:
There is no evidence that he would be targeted and he failed to show or identify any evidence that compels the contrary conclusion.

[00:14:21] Speaker 02:
So now, if we move past that issue, for the sake of argument, assume there's substantial evidence to support the IJ's initial determination, there still seems to be two very live and significant issues with respect to the motion to remand, the motion to reconsider and remand.

[00:14:40] Speaker 02:
So the one being ineffective assistance of counsel and the other being new evidence, newly discovered evidence.

[00:14:47] Speaker 02:
So can you turn to those points

[00:14:50] Speaker 02:
and explain why your friend on the other side is incorrect when she says that the board applied the wrong standard and disregarded evidence.

[00:15:01] Speaker 03:
Yes, your honor.

[00:15:02] Speaker 03:
So turning to the motion to remand the board appropriately denied that motion first off, because the petitioner failed to show prejudice.

[00:15:11] Speaker 03:
Now the board did apply the right standard as your honor pointed out, they refer to a case and in that parenthetical they explicitly announced the standard which is may have affected the outcome.

[00:15:23] Speaker 03:
And as to the actual basis of that determination, they discussed the evidence that the petitioner had presented.

[00:15:29] Speaker 03:
They included the expert witness report.

[00:15:32] Speaker 03:
And this isn't just a catch-all sentence where they just said that this evidence was insufficient.

[00:15:37] Speaker 03:
They provided, as Your Honor pointed out, the basis

[00:15:40] Speaker 03:
for determining why it was insufficient, that the evidence itself was largely cumulative, and any evidence that wasn't necessarily cumulative didn't reach statutory requirements for cat deferral.

[00:15:56] Speaker 03:
So it failed to show that mistreatment constituting torture was pervasive.

[00:16:02] Speaker 03:
So it's very clear that the agency here didn't just merely react.

[00:16:07] Speaker 03:
They considered the evidence before it and provided a reasoned decision.

[00:16:11] Speaker 03:
And there is also the presumption of regularity.

[00:16:15] Speaker 03:
Now, I know that the petitioner has pointed out cases in which this court has found that the agency has failed to give the expert witness adequate attention.

[00:16:24] Speaker 03:
But in those cases, there are generally issues such as, you know, there are mischaracterizations of the evidence in, for instance, the 28 J the letter.

[00:16:34] Speaker 03:
The case itself, there was issues with the immigration judge's evaluation of the expert report.

[00:16:40] Speaker 03:
There were just inaccuracies abound.

[00:16:42] Speaker 03:
So we don't have that here.

[00:16:44] Speaker 03:
The agency handled the evidence appropriately and it gave a reasoned decision, and it applied the right standard.

[00:16:50] Speaker 03:
Granted, the concluding sentence did say would have,

[00:16:55] Speaker 03:
That's more about semantics.

[00:16:57] Speaker 03:
It's obvious that they're applying the standard.

[00:16:59] Speaker 03:
And even if there was an error there, it's harmless.

[00:17:02] Speaker 03:
And it would be futile to send it back, to have the board then just say, we meant what we meant, we said the right standard, and we applied it.

[00:17:10] Speaker 03:
Now, as for the motion to amend for new evidence, the board also applied the right standard there.

[00:17:17] Speaker 03:
They applied the would likely have changed standard.

[00:17:19] Speaker 03:
And that's because it goes to materiality.

[00:17:22] Speaker 03:
Now, petitioner points out Fonseca and says that it should be a lower standard.

[00:17:27] Speaker 03:
However, Fonseca did not touch on materiality whatsoever.

[00:17:31] Speaker 03:
And it's important that materiality is separate because we look at motions to reopen and that they're disfavored and that finality is, you know, the most of the most import here.

[00:17:43] Speaker 03:
And so when we're looking at materiality, we want to see that it affects the deficiency of the claim.

[00:17:51] Speaker 03:
And so this evidence, it doesn't affect the deficiency of the claim because even if it's talking about, you know, gang violence and the wild bunch,

[00:17:59] Speaker 03:
it doesn't touch whatsoever on state action.

[00:18:02] Speaker 03:
It doesn't go into how the government or a government official would torture the petitioner or acquiesce to that torture.

[00:18:12] Speaker 03:
And so he failed to sufficiently explain how it was material to his Cateferral claim.

[00:18:20] Speaker 03:
So that is why the board didn't abuse its discretion.

[00:18:23] Speaker 03:
Now, even though we haven't

[00:18:25] Speaker 03:
had clear precedent on the matter of materiality.

[00:18:28] Speaker 03:
That is another reason why the board didn't abuse its discretion in applying its standard that it believes is appropriate based on Calejo.

[00:18:37] Speaker 03:
Because we don't have any precedent saying that it's wrong.

[00:18:40] Speaker 03:
It obviously can't be arbitrary.

[00:18:42] Speaker 03:
It's not capricious and it's not contrary to the law.

[00:18:45] Speaker 03:
So the board didn't abuse its discretion applying the standard that it had before it.

[00:18:52] Speaker 03:
Does that answer your honor's questions in regards to the motion to remand?

[00:18:57] Speaker 02:
Well there are two parts, so there's the part on ineffective assistance of counsel and then newly discovered evidence.

[00:19:05] Speaker 02:
Is your argument the same for both or is there a distinction?

[00:19:08] Speaker 03:
Well, so there are different standards for the first part.

[00:19:11] Speaker 03:
For the ineffective assistance of counsel, it's the may have affected the outcome of the case.

[00:19:17] Speaker 03:
And so for the second part, the materiality would likely change.

[00:19:21] Speaker 03:
So this court's precedent is already established in regards to the ineffective assistance of counsel.

[00:19:27] Speaker 03:
The court has established that it may have affected.

[00:19:31] Speaker 03:
But here, we don't have evidence that may have affected.

[00:19:34] Speaker 03:
If it is the same evidence, if it's cumulative, it can't plausibly affect it.

[00:19:40] Speaker 03:
And then also, if you have evidence, say, regarding prison conditions, but you don't show any specific intent to torture, then it plausibly cannot affect the claim because that is a requisite to establish torture.

[00:19:54] Speaker 02:
So the evidence differs.

[00:19:56] Speaker 02:
So for the IAC claim, it's largely based on the expert declaration, which responds or appears to be an attempt to respond to the immigration judge's findings based on the passage of time, 20 years or so, since Mr. Doe had been in Jamaica and had interacted with the gang.

[00:20:17] Speaker 02:
Then they had this ineffective assistance claim that prior counsel didn't present this information.

[00:20:24] Speaker 02:
And then on the newly discovered evidence, as I understand it, that is based on the murder of Mr. Doe's cousin, correct?

[00:20:31] Speaker 03:
That's correct.

[00:20:32] Speaker 03:
And they're completely separate.

[00:20:34] Speaker 03:
So we have this new evidence that could not have been presented by his counsel because it occurred after the fact.

[00:20:39] Speaker 03:
And so you have to show that it is material to the claim and that you have to reopen it.

[00:20:44] Speaker 03:
So he didn't show that it was material because he didn't show

[00:20:48] Speaker 03:
How it would have affected the acquiescence prong and in fact Which which bit of evidence are you discussing now the murder?

[00:20:57] Speaker 03:
The cousins murder so he did not show how the government would acquiesce to torture of the petitioner or

[00:21:07] Speaker 03:
an official himself would torture the petitioner.

[00:21:12] Speaker 03:
Even if you're looking at the Cousins murder, there is evidence there that the government was involved, not involved in the murder, but involved in investigating the murder.

[00:21:24] Speaker 03:
There was a police report and they were following up.

[00:21:27] Speaker 03:
That clearly does not show acquiescence that they're willfully blind to gang violence.

[00:21:34] Speaker 03:
So this evidence is not material whatsoever to the cat deferral claim if you can't establish a dispositive prong for cat.

[00:21:47] Speaker 02:
So circling back to the ineffective assistance of council claim,

[00:21:53] Speaker 02:
If we were to agree with your friend on the other side that it's at least confusing what standard the board applied because they cite the correct standard but then they use the concluding language would have.

[00:22:07] Speaker 02:
Does that mean that we should grant the petition and send it back to the BIA to reconsider or more clearly apply the correct standard?

[00:22:16] Speaker 03:
If it's a matter of just wanting the board to say, yes, this is the standard that we apply, I would contend that remand would be futile here, that that's harmless error.

[00:22:26] Speaker 03:
Now, if the court is uncertain if they applied the right standard based on the language used and also the basis of the board's decision, the reasons provided,

[00:22:38] Speaker 03:
then send it back for that specific reason for the board to clarify in regards to the ineffective assistance of counsel claim.

[00:22:46] Speaker 03:
However, the court can still look to the other part of the motion to remand in regards to the new evidence of the cousin's murder and say, or you did that right, you didn't abuse your discretion.

[00:22:58] Speaker 03:
And you can also look to the administrative appeal and say substantial evidence support the agency's conclusion.

[00:23:05] Speaker 03:
And that's okay.

[00:23:06] Speaker 03:
But we're looking solely at the ineffective assistance of council.

[00:23:09] Speaker 02:
So we usually try not to reach issues that we don't need to reach.

[00:23:13] Speaker 02:
So why would we reach those issues?

[00:23:15] Speaker 02:
Is there some winnowing effect?

[00:23:17] Speaker 02:
Do you think this is in some way helpful to the board if we were to parse through and address these three issues that you've identified separately?

[00:23:28] Speaker 03:
I think it's important to remember that a motion to reopen is disfavored.

[00:23:32] Speaker 03:
And if we're opening this all up, all over again, and not reaching any issues that we have a sufficient record before us that shows that the agency did its job, we're allowing this case to continue and go beyond what's necessary.

[00:23:48] Speaker 03:
Also, there were matters that were exhausted before the agency.

[00:23:53] Speaker 03:
in the administrative appeal, and there were matters that were not exhausted in the administrative appeal by council.

[00:24:01] Speaker 03:
And it's not by former council that allegedly is deficient.

[00:24:06] Speaker 03:
So if we are sending everything back and opening it all up, then you're giving it basically another bite at the apple.

[00:24:14] Speaker 02:
I understand.

[00:24:17] Speaker 03:
I understand your answer.

[00:24:18] Speaker 03:
Thank you.

[00:24:19] Speaker 03:
Does your honor have any other questions or does anyone have any other questions?

[00:24:25] Speaker 03:
That is all the respondent rest on the arguments made before you here today as well in the answering brief.

[00:24:31] Speaker 03:
Thank you.

[00:24:32] Speaker 02:
Thank you.

[00:24:43] Speaker 01:
I would like to address two main points quickly on our bottle first the government tries to excuse the errors Created based on the motion to remand based on new evidence by first claiming that the board found this new evidence was not material to acquiescence however, this is not true and

[00:25:02] Speaker 01:
This evidence is indisputably material to acquiescence.

[00:25:05] Speaker 01:
The police report describes the murder as simply being a gang feud.

[00:25:09] Speaker 01:
When this directly contradicts witness testimony that says it arose because of the victim speaking up against the threat against Doe.

[00:25:19] Speaker 01:
Additionally, it showed no follow-up with the family.

[00:25:23] Speaker 02:
So is that the standard for acquiescence?

[00:25:26] Speaker 02:
I thought it was their unwilling or unable.

[00:25:29] Speaker 02:
Not that they're inept.

[00:25:31] Speaker 02:
At this point, or that they don't pursue it in the way that petitioners family would prefer.

[00:25:36] Speaker 01:
Your Honor, the standard is to show that they would acquiesce or turn a blind eye.

[00:25:42] Speaker 01:
And here, this evidence does speak to it.

[00:25:45] Speaker 01:
And importantly, at this stage, the Doe need not show complete acquiescence.

[00:25:51] Speaker 01:
All he needs to show is that the new facts alleged

[00:25:54] Speaker 01:
Coupled with the facts on the record show that it would be worthwhile to further develop the issues.

[00:25:59] Speaker 01:
So here We need to consider both the evidence that came in the new evidence as well as the record of the whole the entire cat record as well as The evidence that was presented on the motion to remand based on ineffective assistance of counsel It's not looking at this evidence in isolation.

[00:26:17] Speaker 01:
It's looking at it together with the flax already on the record and that comes from Tobias in and

[00:26:24] Speaker 01:
Second, the government seems to be saying that the would likely change is a standard that can be used for materiality, but that is not the law.

[00:26:33] Speaker 01:
And just because there is not precedent does not mean that the board can create a new standard in this individualized case.

[00:26:41] Speaker 02:
There is no- We're reviewing for an abuse of discretion.

[00:26:43] Speaker 02:
So if there is not a clear violation of law that makes it a little more difficult for you to establish that the standard the board applied was in fact an abuse of discretion.

[00:26:52] Speaker 01:
Well, here, the would likely change standard comes from a discretionary determination.

[00:26:58] Speaker 01:
And here, there is no discretionary determination.

[00:27:01] Speaker 01:
INS via BUDU and the Supreme Court, I see that my time has run.

[00:27:05] Speaker 01:
Go ahead and finish what you were saying.

[00:27:07] Speaker 01:
And the Supreme Court held that there's only a discretionary determination where the underlying relief sought is also discretionary.

[00:27:13] Speaker 01:
And here, DOE is seeking CAT, and there is no discretion.

[00:27:17] Speaker 00:
Council.

[00:27:17] Speaker 01:
Yes, Your Honor.

[00:27:18] Speaker 00:
Judge Gould with a question for you.

[00:27:21] Speaker 00:
How do you deal with the

[00:27:23] Speaker 00:
circuit precedent that says motions to reopen like this are disfavored.

[00:27:33] Speaker 01:
Well, Your Honor, here, first, the motion to remand based on ineffective assistance of counsel, Doe deserves to have a day in court in which he was not prevented from putting forth his entire case.

[00:27:48] Speaker 01:
So while they may be disfavored, they were specifically created by Congress to allow petitioners in situations like Doe to seek

[00:28:00] Speaker 01:
Reopening and that is the case both on the ineffective assistance as well as based on the new evidence that occurred after his hearing Thank you, thank you your honor Thank you So thank you both for your arguments this morning they were very helpful and this case is submitted