[00:00:01] Speaker 01:
May it please the court, Matt Adams with Northwest Immigrant Rights Project.

[00:00:05] Speaker 01:
I'm going to seek to preserve one minute for rebuttal.

[00:00:07] Speaker 01:
Very well.

[00:00:09] Speaker 01:
In denying the family's asylum applications, the agency made three fundamental errors that warrant reversal.

[00:00:15] Speaker 01:
First, it discounted harm in calculating whether the harm rose to the level of past persecution.

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Second, it found that the threats were insufficiently direct and vague to justify a well-founded fear of future harm.

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And third, as Respondent concedes, the board erred in purporting to affirm a holding that the immigration judge never made.

[00:00:39] Speaker 01:
On the Nexus issue?

[00:00:40] Speaker 01:
On the Nexus issue.

[00:00:43] Speaker 01:
But first, with regard to whether the harm rose to a level of persecution, the agency errs in largely discounting the physical attack that left Mr. Espinosa with lasting injuries based on speculation.

[00:00:58] Speaker 01:
Speculation that it may have been a random attack and not performed by the gang.

[00:01:05] Speaker 01:
Now, the board cites to matter of DR stating quote, an immigration judge is not required to accept a respondent's assertions, even if possible, where there are other permissible views of the evidence based on the record, end quote.

[00:01:21] Speaker 01:
But that is precisely the problem.

[00:01:23] Speaker 01:
The record does not support the board's speculation that this may have been a random attack.

[00:01:30] Speaker 01:
In this regard, we cited to the Mashiri versus Ashcroft case, where again, this court noted that the agency erred in making an unsupported assumption that the home being ransacked in that case may have been a random criminal incident.

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ignoring the circumstantial evidence identifying who had perpetrated that harm.

[00:01:52] Speaker 03:
You know, one of the issue difficulties in this case, we have a single incident.

[00:01:58] Speaker 03:
So crediting that as being physically harmed, give it to the gangs given some of the earlier testimony,

[00:02:08] Speaker 03:
In case after case, we've said that that usually is not enough to rise to the level.

[00:02:13] Speaker 03:
So do you have another case, or is there something special about this case we should look at?

[00:02:19] Speaker 01:
I think in some of the cases that said it hasn't rose to enough is focusing on general violence or where there were no, for example, in the Sharma case that the board cited to there, they said the individual could point to no injuries.

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And in fact, the individual subsequently traveled abroad and voluntarily returned.

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And that individual's family continued to live without problems in that country.

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But even in Sharma, in a footnote, it noted that physical violence is normally enough.

[00:02:49] Speaker 01:
And when you have that physical violence compounded with years of threats and stalking of the wife, you have direct threat to his child and ex-wife, you have the pastor being stopped and examined by armed

[00:03:06] Speaker 01:
men looking for him, that combination of factors demonstrates, again, past persecution.

[00:03:16] Speaker 01:
But it was not just that.

[00:03:18] Speaker 02:
The agency made... Can I just interrupt for a moment?

[00:03:19] Speaker 02:
Yes, please.

[00:03:20] Speaker 02:
The one thing the board seemed to focus on, though, is that, of course, he alleges it was four years of persecution, but he was able to go to work.

[00:03:30] Speaker 02:
Like, so he said he stayed in his house, hid from the gang, but he was able to get out and go to work.

[00:03:37] Speaker 01:
That is correct.

[00:03:39] Speaker 01:
But as he noted, he worked in the fields, in the MILPA fields, and he would make calls ahead of time to find out if there were vehicles there monitoring it.

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And he also was unable to take jobs that provided greater exposure.

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And so he had more limited opportunities to work in that period because of that.

[00:03:58] Speaker 01:
And that's very similar to the case of Marcos from the Ninth Circuit, where the individual, again, over a period of years was facing threats and had to take precautions about, you know, where he entered and left work and the places he stayed at.

[00:04:14] Speaker 01:
But the court found that that, in fact, demonstrated a well-founded fear of persecution.

[00:04:20] Speaker 01:
But I would note one other significant error that the agency made here, and that was discounting the harm that he had suffered because of the isolation, because of the precautionary measures.

[00:04:33] Speaker 01:
The immigration judge specifically said that he would not consider that harm in calculating the cumulative of harm because he chose himself to enter into hiding, into isolation.

[00:04:49] Speaker 01:
But of course, at the same time, the immigration judge found that his fears were understandable.

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And so it's an error to say, yes, you have an understandable fear for your life.

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But on the other hand, I am not going to consider the harm that that fear caused in making you take these measures to secure your own safety.

[00:05:08] Speaker 01:
And we cited the cases like Akwesang, where this court said that the agency can't expect an individual facing persecution to remain in hiding.

[00:05:19] Speaker 02:
What about the family members that also applied for asylum and the court kind of just said they were the same set of facts?

[00:05:27] Speaker 02:
What is your position on that?

[00:05:29] Speaker 01:
So, again, that was an error because, for example, his wife had demonstrated that she herself had been stalked and there had been threats levied against her saying if they weren't able to take care of the petitioner that they were going to take care of her.

[00:05:44] Speaker 01:
And as to the child, the child was deprived of education.

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And there's case law from the Ninth Circuit that's saying harm from the perspective of a child is different than that as perceived by an adult because of their vulnerable state.

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So those are additional errors that the agency made in failing to evaluate the applications.

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It just basically considered them as derivative applications and not individual applications.

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And again, with respect to the finding that there was not future harm, it ignores this court's decision in Marcos.

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It's saying threats over years can, in fact, demonstrate future harm.

[00:06:25] Speaker 01:
But the immigration judge, and you see this on page 117 of the record, specifically said that, well, since they didn't carry out those threats, then it's more speculation.

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There's not really a basis to assume that they're going to go after you.

[00:06:38] Speaker 01:
And of course, this discounts that he was physically attacked, but also discounts what the Ninth Circuit has said time and again in Marcos and Aidan.

[00:06:47] Speaker 01:
It's not whether they've already killed you or one of your family members, but it's whether they have the will and the ability.

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And even the immigration judge acknowledged that the MS-13 does have the will and the ability to carry out these attacks.

[00:07:05] Speaker 02:
I think one of the things that the panel was concerned about, though, was that, for example, in the first instance where we have a blue car with MS-13 and the weapon and the men, later there's different cars parked 15 minutes here and there in front of the house, and that might be speculative that that's part of the gang.

[00:07:25] Speaker 02:
What is your answer to that?

[00:07:27] Speaker 01:
Again, this was in an isolated neighborhood and that's why in the record they put in photos of where they lived.

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They lived in a place that had two homes and a church across the street.

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So there's absolutely no reason to speculate that there could have been other cars randomly parked other than these men who are monitoring them or seeking to intimidate them.

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And in fact, the only other neighbor on that street had been directly approached by these armed men telling them that they were going to kill Mr. Espinosa.

[00:07:59] Speaker 01:
And the church that was on that street, their pastor reported not only being stopped and inspected by armed men, but hearing from other members of the church that they had been informed by the gang members that, yes, Mr. Espinosa was targeted for death by these gang members.

[00:08:17] Speaker 01:
In addition, the board erred in failing to consider that even after they left, there continued to be inquiries about where Mr. Espinosa was, as the gang wanted to make sure, as the country conditions records are in the evidence, the gang wanted to make sure that they laid a clear message to the community that they were in charge, that they were not going to tolerate individuals who would not collaborate with them.

[00:08:47] Speaker 01:
And if there are no further questions, I'll reserve my final minute.

[00:08:50] Speaker 01:
Very well, thank you, Council.

[00:09:11] Speaker 00:
Good morning, Your Honors, and may it please the court, Stephanie Groff for the Attorney General.

[00:09:15] Speaker 00:
Your Honors, this case does ultimately turn on past persecution.

[00:09:19] Speaker 00:
And while the government acknowledges that what Mr. Espinosa and his family went through in El Salvador was concerning and rightfully so scary, what we have here is that he has not shown that the immigration judge's decision and the board's decision was unreasonable.

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Specifically, this court employs the substantial evidence standard of review

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when reviewing the past persecution finding.

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And what's important is whether the record compels a contrary conclusion.

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The Supreme Court in Ming Dai noted in looking at the substantial evidence standard review that it's the only question for this court is whether any reasonable adjudicator would conclude as the agency found.

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And that's really important.

[00:10:01] Speaker 00:
What we have here with Mr. Espinoza's experience, a reasonable adjudicator could find, as Mr. Espinoza claims,

[00:10:08] Speaker 00:
that he did experience past persecution, that it was enough.

[00:10:11] Speaker 02:
He did discount the attack on Mr. Espinosa, right?

[00:10:15] Speaker 02:
So he came up to this conclusion that it could be anybody that was looking for him.

[00:10:21] Speaker 02:
And yet when you look at those photos in the neighborhood, it's a very isolated area.

[00:10:27] Speaker 02:
And he did credit Mr. Espinosa's statements that he would

[00:10:31] Speaker 02:
not even go outside of his house to go to the bathroom at night, you know, because he would be afraid to be outside of his house.

[00:10:38] Speaker 02:
It was a rare moment that he actually left his house when he was attacked, right?

[00:10:43] Speaker 00:
Yes, Your Honor, and the government acknowledges that.

[00:10:45] Speaker 00:
And my friend on the other side notes that there's a lot of speculation on behalf of the immigration judge.

[00:10:50] Speaker 00:
However, it's important to note that while the immigration judge might not have agreed with Mr. Espinosa in his claim, that doesn't mean that it is speculation.

[00:11:00] Speaker 00:
Rather, a reasonable fact-finder as an immigration judge here drew a different conclusion than that of what Mr. Espinosa is arguing.

[00:11:08] Speaker 00:
In terms of the rock-throwing, yes, the immigration judge noted that it was not clear that it was gangs.

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In fact, Mr. Espinosa testified himself that he didn't see who it was.

[00:11:19] Speaker 00:
It was late at night.

[00:11:20] Speaker 00:
He was going to a store.

[00:11:21] Speaker 00:
All he heard was, there he goes.

[00:11:24] Speaker 00:
But in the alternative, the immigration judge in the same vein stated, even assuming that this is the gang and looking at it cumulatively, it's not enough.

[00:11:32] Speaker 00:
And that same goes for, as my friend on the other side has a concern with the isolation finding.

[00:11:37] Speaker 00:
The immigration judge did find that Mr. Espinosa self-isolated, that that is not harm because of the MS-13.

[00:11:46] Speaker 00:
And while that is true, and he did say that, and it may have gone a bit further as there is case law as it relates to religious persecution, that self isolation and practicing and hiding is problematic, the immigration judge here made that alternative finding that said, even assuming that the self isolation harm is because of MS-13, looking at the psychological harm

[00:12:08] Speaker 00:
the economic harm by him not working as much as you noted he was able to go to work he was able to go to church looking at it all cumulatively he still has not met the high burden of proof for past persecution but he did credit the statements that the neighbor said that the ms-13 was looking to kill him the pastor said that the ms-13 was looking to kill him

[00:12:30] Speaker 02:
The employer at the agricultural job gave him less hours because MS-13, she was afraid, was going to come out to the work site.

[00:12:39] Speaker 02:
And then even his ex-partner had to move throughout El Salvador to escape the threats from the MS-13.

[00:12:46] Speaker 02:
And he did credit that these cars were in front of the house for over four years.

[00:12:51] Speaker 02:
So all of that doesn't seem like he was looking at past persecution, right?

[00:12:56] Speaker 00:
No, Your Honor, I respectfully disagree with your portrayal of it.

[00:12:59] Speaker 00:
And let me clarify a few things.

[00:13:01] Speaker 00:
So first, what we have here is in 2017, Mr. Espinoza was approached in this vehicle and asked to collaborate.

[00:13:08] Speaker 00:
There was no threat at that instant.

[00:13:10] Speaker 02:
From there, he did hear from... Well, the man was standing, was in the front seat with a fully automatic weapon, right?

[00:13:16] Speaker 00:
Well, yes, but he, Mr Espinosa stated that he does not want to get involved because of his family and was able to walk away.

[00:13:23] Speaker 00:
And this court's case law does show that, yes, while that may be scary, that's not enough for past persecution.

[00:13:29] Speaker 00:
Then his neighbor heard from the gang members that they were asking about him, that they wanted to harm him.

[00:13:35] Speaker 00:
That's an indirect threat.

[00:13:36] Speaker 00:
It was not to him.

[00:13:37] Speaker 00:
His partner, sorry, his ex-partner, that is where there was a death threat.

[00:13:42] Speaker 00:
They did come up to her, ask about Mr. Espinosa, stated that they were going to kill him and her if they found out.

[00:13:48] Speaker 00:
That is true.

[00:13:49] Speaker 00:
The government and the immigration judge acknowledges that.

[00:13:52] Speaker 00:
But in terms of the pastor, my friend on the other side noted that the gang was looking for him.

[00:13:57] Speaker 00:
That's not what Mr. Espinoza's testimony stated.

[00:13:59] Speaker 00:
In fact, Mr. Espinoza stated that his pastor was driving around in the car with his family, I believe a van, and at one point, gang members surveyed the van and left.

[00:14:10] Speaker 00:
While my friend on the other side notes that there was some evidence as it relates to what happened since Mr. Espinoza has left and that there were some threats, if you specifically look at that, the neighbor stated that someone was asking and she said, well, only God can

[00:14:26] Speaker 00:
The gang said only God can help them now.

[00:14:28] Speaker 00:
So to say that those are menacing, intense death threats, rising to the level of past persecution or a well-founded fear is a possible reasonable explanation, but that's not the standard.

[00:14:39] Speaker 00:
Just because it's reasonable doesn't mean this court can overturn it.

[00:14:42] Speaker 00:
It needs to be whether the record compels a contrary conclusion, and that is not what we have here.

[00:14:48] Speaker 00:
I also want to just acknowledge the separate applications

[00:14:51] Speaker 00:
of both the wife and the two children.

[00:14:54] Speaker 00:
Importantly, the government and the immigration judge and board, everyone acknowledged that.

[00:15:00] Speaker 00:
In fact, the board specifically had a whole section, the immigration judge at the end had a section about the other applications stating that all three of the petitioners are derivatives but have their own claims based on a family, PSG, and others.

[00:15:14] Speaker 00:
But the immigration judge noted that no other evidence was submitted with that.

[00:15:18] Speaker 00:
While the wife did,

[00:15:19] Speaker 00:
It was similar and it stated what Mr. Espinosa went through.

[00:15:24] Speaker 00:
I'll also note that the children were very young.

[00:15:27] Speaker 00:
There was no evidence there.

[00:15:28] Speaker 00:
So the immigration judge found, you know, it's petitioner's burden that based on what we have here, it's really all based on Mr. Espinosa's harm.

[00:15:35] Speaker 00:
And therefore, because he did not establish past persecution or a well-founded fear, they are not going to find that the derivatives on their own had risen to the level and have met their burden.

[00:15:47] Speaker 00:
I will note that there is case law as it relates to looking at minors and whether their harm rises to the level.

[00:15:55] Speaker 00:
of past persecution and especially considering the fact that they're children.

[00:15:59] Speaker 00:
However, as I noted, it's petitioner's burden.

[00:16:02] Speaker 00:
And in looking at the evidence, in fact, the closing argument before the immigration judge, the only harm that his counsel noted as it relates to the children was that the son, when he's returned, might not be able to go to school because they're afraid of the gangs.

[00:16:16] Speaker 00:
That's not enough to compel a contrary conclusion as it relates to the children on their own having established past persecution.

[00:16:24] Speaker 00:
Ms.

[00:16:24] Speaker 03:
Croft, just shifting gears slightly, would you address the nexus issue, which I understand both the government and the Council agree that the IJ didn't make such a finding, but the BIA referred to as if there were a finding?

[00:16:44] Speaker 03:
What is the legal import of that?

[00:16:47] Speaker 00:
Yes, Your Honor, I'm happy to address that.

[00:16:49] Speaker 00:
So as we noted in our brief and my opposing counsel has mentioned, the government is not defending the nexus finding of the board.

[00:16:56] Speaker 00:
And that's specifically because the immigration judge did not make a nexus finding.

[00:17:02] Speaker 00:
The legal import of that is, yes, that is a error of the board.

[00:17:06] Speaker 00:
However, we argue that it is harmless error.

[00:17:08] Speaker 00:
In fact, this court recently in 2014 held in Gonzales Lara v. Garland, which was another immigration case that

[00:17:15] Speaker 00:
There, the board aired as it related to voluntary departure, but found that it was harmless because I believe the non-citizen didn't establish prima facie eligibility for something.

[00:17:25] Speaker 00:
And we would argue something similar here, that it is harmless because if we were to remand back to the board to say remove the Nexus finding, what we have is a dispositive past persecution finding, a dispositive well-founded fear finding, and even jumping ahead, if we were to go back, this is a quintessential gang

[00:17:43] Speaker 00:
threat case, which the government acknowledges is concerning to these countries are going through a lot.

[00:17:48] Speaker 00:
There is violence.

[00:17:49] Speaker 00:
We recognize that.

[00:17:50] Speaker 00:
But and the immigration judge and board recognize that.

[00:17:53] Speaker 00:
But it is not enough to compel a contrary conclusion.

[00:17:55] Speaker 00:
These are close call cases.

[00:17:57] Speaker 00:
And here we believe that cumulatively the immigration judge was correct and finding that it did not rise to a level of past persecution.

[00:18:04] Speaker 00:
And he did not meet his burden of proof for well founded fear.

[00:18:10] Speaker 00:
And thank you so much.

[00:18:11] Speaker 00:
Sorry for the last minute substitution.

[00:18:12] Speaker 00:
That's all right.

[00:18:13] Speaker 01:
I appreciate you making the trip.

[00:18:14] Speaker 01:
Thank you.

[00:18:15] Speaker 00:
Thank you.

[00:18:23] Speaker 01:
Thank you.

[00:18:23] Speaker 01:
If I may quickly, Respondent asserts that even if the immigration judge erred in not taking into account the harm from the isolation from safety measures, that the immigration judge in the alternative found that that harm was insufficient in weighing cumulative harm.

[00:18:43] Speaker 01:
That's incorrect.

[00:18:43] Speaker 01:
If you look at the immigration judge's decision

[00:18:46] Speaker 01:
On page 114, he states, quote, the court does not consider the respondent's period of time of isolation as part of the cumulative harm.

[00:18:55] Speaker 01:
There's no alternative finding there.

[00:18:56] Speaker 01:
So that was simply discounted.

[00:19:00] Speaker 01:
In addition, respondent argues, well, in order to find that the record compels a finding, you need to show that a reasonable adjudicator could have not come up with this alternative.

[00:19:11] Speaker 01:
But again, a reasonable adjudicator has to make their assumptions based on the record.

[00:19:15] Speaker 01:
It can't be speculation.

[00:19:17] Speaker 01:
Respondent speculates that they could have been playing a game saying they're going to throw the rock at the next individual.

[00:19:23] Speaker 01:
And there he goes, the next individual.

[00:19:25] Speaker 01:
That's just rank speculation.

[00:19:27] Speaker 01:
There's no justification in the record.

[00:19:29] Speaker 01:
Especially where the MS-13 exercised exclusive control, a monopoly of the violence.

[00:19:36] Speaker 01:
And again, the final error with the BIA creating or purporting to uphold a finding that the immigration judge didn't make.

[00:19:45] Speaker 01:
You have error upon error that's stacked in this case.

[00:19:48] Speaker 01:
And there's no way to divvy these out and say, well, there might have been some basis for a reasonable adjudicator to find that he had not faced past persecution, that there was not a well-founded fear.

[00:20:01] Speaker 01:
In the end, it's based on speculation and cannot stand.

[00:20:04] Speaker 01:
Thank you.

[00:20:05] Speaker 01:
Thank you, Council.

[00:20:06] Speaker 01:
Thanks to both of you for your briefing and argument in this case.

[00:20:09] Speaker 01:
This matter is submitted and we'll go ahead and call the next one.