[00:00:00] Speaker 02:
First case for argument is Fedorov versus Bondi.

[00:00:03] Speaker 02:
Council, whenever you're ready.

[00:00:08] Speaker 00:
Good morning, Your Honors.

[00:00:09] Speaker 00:
May it please the court, Marina Alexandrovich, for the petitioners.

[00:00:14] Speaker 02:
Would you like to save any time for rebuttal?

[00:00:17] Speaker 00:
Yes, please, Your Honor.

[00:00:20] Speaker 02:
How much?

[00:00:22] Speaker 00:
Your Honor, two minutes.

[00:00:32] Speaker 02:
You may proceed when ready.

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

[00:00:36] Speaker 00:
There are three questions presented by this honorable panel.

[00:00:41] Speaker 00:
To answer this first question, the answer is yes.

[00:00:44] Speaker 00:
And specifically, a respondent petitioner is going to refer the score to AR-57, where the judge expressly acknowledged so in his order in these very words.

[00:00:57] Speaker 00:
The respondent's biggest fear is being conscripted

[00:01:01] Speaker 00:
Then he continued citing one of the nine circuit cases, which would be the Hattie versus Gonzalez.

[00:01:08] Speaker 00:
And then he expressly mentions the punishment for violation of military service rules can constitute persecution when one is subject to disproportionately severe punishment or the respondents reasonably likely to face persecution if he returns.

[00:01:27] Speaker 00:
In other words, inhuman conduct.

[00:01:31] Speaker 00:
So in other words, the immigration judge expressly addresses the issue.

[00:01:38] Speaker 00:
He does connect the conscription and inhuman conduct.

[00:01:44] Speaker 03:
But I guess that seems to maybe be an answer to our second question about whether it was considered by the agency.

[00:01:53] Speaker 03:
But you're not arguing today that this was, I mean, wherein the petitioners

[00:02:01] Speaker 03:
materials, would this have been presented to the immigration judge?

[00:02:08] Speaker 03:
Can you point us to anything in the declaration, in the hearing, or other words, before the immigration judge adopted?

[00:02:14] Speaker 03:
As you can tell in the argument.

[00:02:17] Speaker 03:
Go ahead.

[00:02:17] Speaker 00:
Yes, Your Honor.

[00:02:18] Speaker 00:
I have some citations.

[00:02:19] Speaker 00:
I think they're relevant.

[00:02:21] Speaker 00:
Well, AR 91.

[00:02:25] Speaker 00:
Line 17 through 19, respondent's testimony, because of my Christian, because I'm Christian, evangelized Christian, based on my religious views, I cannot, I can't take the weapons into my arms and follow all the army orders.

[00:02:43] Speaker 00:
I ask for the alternate alternative service.

[00:02:46] Speaker 00:
Then you wanna respond and keep stalking, same AR 97, line seven through 10,

[00:02:54] Speaker 00:
I'm afraid to go back into the country that is persecuting me for my religious views and political views and that would like take me to war because I oppose the political and because I'm opposed to that and because I consider Ukraine as my brothers and this whole war is simply craziness.

[00:03:15] Speaker 03:
But against the backdrop that forced conscription is not itself ground for asylum,

[00:03:23] Speaker 03:
you need more.

[00:03:24] Speaker 03:
And I think on one telling you, you need to establish that his objection is because of a fear of being forced to engage in inhuman conduct.

[00:03:36] Speaker 03:
I think at one point the immigration judge asks about that.

[00:03:44] Speaker 03:
I think he says that maybe he thinks that it's criminal, but then it keeps coming back to religious objections.

[00:03:51] Speaker 03:
I mean, you can see that religious objections to forced conscription without more is not enough.

[00:03:59] Speaker 00:
Well, I understand your question.

[00:04:03] Speaker 00:
And if I may kind of jump to answering question number two, because I think it's partially addresses your concern.

[00:04:13] Speaker 00:
Petitioner argues that the BIA actually did not consider expressly inhuman conduct.

[00:04:19] Speaker 00:
BIA only considered excessive punishment, but BIA did not address specifically inhuman conduct.

[00:04:26] Speaker 00:
However, the judge,

[00:04:29] Speaker 00:
in his decision, the judge did consider that.

[00:04:32] Speaker 00:
That would be our arguments.

[00:04:34] Speaker 00:
And then a petitioner would refer to AR 50.

[00:04:38] Speaker 02:
But counsel, exhaustion requires that the petitioner raise it to the BIA.

[00:04:42] Speaker 02:
And if you didn't raise it to the BIA, then it's not exhausted.

[00:04:47] Speaker 00:
Your Honor, well, the BIA started the decision by adopting, by citing to Burbano.

[00:04:56] Speaker 00:
And petitioner argues then, then this particular adoption or affirmation of the immigration judge's decision makes Burbano central to exhaustion and review doctrine.

[00:05:13] Speaker 00:
well, issues the immigration jobs besides- That's a pretty broad reading, exhaustion.

[00:05:16] Speaker 02:
I've never seen a case that does that.

[00:05:18] Speaker 02:
If the BIA adopts the IJ's decision, then you're saying anything that's in the IJ's decision is exhausted before us?

[00:05:26] Speaker 00:
No, not exactly, Your Honor.

[00:05:29] Speaker 00:
Well, my point is this, and I think Abebe versus Gonzalez talks about that, that even if the

[00:05:40] Speaker 00:
Even if not vigorously argued on the appeal, these certain issues may be considered by the BIA and by the federal courts.

[00:05:50] Speaker 00:
For instance, the immigration judge gave a lot of attention and a lot of consideration to respondents to the connection of petitioners' religious beliefs and his persecution.

[00:06:06] Speaker 00:
Well, the BIA adopted, they cited Burbano, and then the council that the petitioner had at the time, who also helped them to file the direct appeal, the council actually tried to argue some of the issues that connected to the religious beliefs and the persecution, perhaps not vigorously, and that's my point.

[00:06:31] Speaker 00:
For instance, Your Honors, if I may refer you to AR 17,

[00:06:36] Speaker 00:
one of the arguments that the previous council made on the direct BIA appeal.

[00:06:42] Speaker 00:
Well, she was talking about how respondents following law had issues based on his religious beliefs.

[00:06:53] Speaker 00:
And then she states or she argues to be correct.

[00:06:57] Speaker 00:
Furthermore, the judge erred in deciding that exceptions

[00:07:02] Speaker 00:
to force military conscription can constitute persecution.

[00:07:08] Speaker 00:
In other words, the previous council that represented petitioners actually advanced some arguments to that regard, however not vigorous.

[00:07:19] Speaker 03:
Can we turn to, I mean, yes, and it's citing the inhuman conduct cases there.

[00:07:25] Speaker 03:
So if we get to this issue,

[00:07:30] Speaker 03:
So as I understand, the immigration judge's decision is not particularly detailed on this particular line.

[00:07:39] Speaker 03:
But the immigration judge does speak quite a bit relative to the inhuman conduct of the alternatives.

[00:07:51] Speaker 03:
So there's a passage in the decision where the immigration judge says, after talking about

[00:07:59] Speaker 03:
mentioning inhuman conduct, it's likely that he could be contacted by authorities, more probably because of his position regarding military service.

[00:08:08] Speaker 03:
It says whether he refused or did not seek alternatives, the fact that he would be contacted does not amount to persecution.

[00:08:14] Speaker 03:
So if we get to the record and then are looking to whether there's substantial evidence to support

[00:08:23] Speaker 03:
if we read what the immigration judge is doing to say he could find alternatives.

[00:08:29] Speaker 03:
There are lots of intermediate steps between petitioner and coerced in human conduct on the front in Ukraine, so that it's just speculative.

[00:08:40] Speaker 03:
He doesn't get all the way there.

[00:08:42] Speaker 03:
And the other cases

[00:08:44] Speaker 03:
involve at least more direct links to the forced conscription.

[00:08:49] Speaker 03:
So where in the record, given that it's not very well developed in the briefs, where in the record should we be compelled to find a well-founded fear first that he will be conscripted?

[00:09:01] Speaker 03:
I understand he has the summons, but even if he's conscripted or brought into the military system, that he would be forced to commit inhuman conduct?

[00:09:12] Speaker 00:
Iona, I will start with AR 51, where the judge, the very same judge at the same time notes, apparently there is an exception in Russia that in certain period, at time of war, that one would not be eligible for alternative services.

[00:09:29] Speaker 00:
Previously, the judge was talking about that he cannot grant a petitioner's asylum because of the possibility of the alternative service, but at the same time,

[00:09:40] Speaker 00:
which would be contradictory, the immigration judge acknowledges that during the time of war, and that's exactly what's going on, the petitioner argues in Russia, he simply would not be eligible for the alternative services.

[00:09:54] Speaker 00:
Hence, he would be forced to serve in Russian military.

[00:10:00] Speaker 03:
Is there an important difference between now going to the exhibits, the country condition report, some of the other materials that the petitioner put in the record,

[00:10:10] Speaker 03:
between alternative civil service, that is, being diverted from the military altogether versus being conscripted in the military but finding other ways to serve, which I think there is some evidence of in the record, which are we talking about here?

[00:10:26] Speaker 03:
In other words, even if he's conscripted, it's not inhumane conduct and the record wouldn't compel us to do so if there's substantial evidence that he could be diverted into some sort of alternative service within the military that would keep him from the front lines.

[00:10:40] Speaker 00:
Understood, Your Honor.

[00:10:41] Speaker 00:
Well, again, petitioner argues that during the time of war, and again, the judge acknowledged that there is no alternative service.

[00:10:53] Speaker 00:
And in terms of the

[00:10:56] Speaker 00:
petitioner being forced to engage in human conduct, the evidence would be in the Department of State Human Rights report on Russia, the one that was made part of the record for 2022, that would be in Exhibit 3.

[00:11:13] Speaker 00:
I'm referring to the fact that the conscripts

[00:11:17] Speaker 02:
I read the IJ saying, she's saying there's an exception because there's a time award to the age of conscription, which is 27, since he's 40.

[00:11:29] Speaker 02:
But the IJ seems to suggest that his brothers did receive alternative service.

[00:11:35] Speaker 02:
And so why is he not eligible for that?

[00:11:39] Speaker 00:
Your Honor, my understanding is that there are two communal issues.

[00:11:49] Speaker 00:
alternatives to the military service prior to the announcement of the war, Russian-Ukrainian war, which would be prior to February 24 of 2022 and after that period of time.

[00:12:03] Speaker 00:
So perhaps those two issues were somehow commingled and compound, impermissibly compound, because there is certainly and

[00:12:16] Speaker 00:
lead respondent never disputed that, that prior to the time of war, prior to February of 2024 of 2022, he was offered the alternative services.

[00:12:32] Speaker 00:
And then perhaps that age limitation, meaning to the certain period of time,

[00:12:37] Speaker 00:
actually was referred to the conscription prior to February 2024 of 2022.

[00:12:46] Speaker 00:
Now, during the time of war, respondents, the petition argument was that

[00:12:53] Speaker 00:
he believes he would be subject to the mandatory military conscription, even being 40, at that time he was 40 years of age, which would exceed the age of 27, Your Honor.

[00:13:10] Speaker 02:
Do you want to save your time for rebuttal?

[00:13:13] Speaker 00:
Yes, Your Honor.

[00:13:14] Speaker 00:
Yes, Your Honors.

[00:13:25] Speaker 01:
May it please the court, Christopher Pryby for the Attorney General.

[00:13:33] Speaker 01:
In response to Your Honor's questions, the first, the claim that is being considered in these questions, specifically whether Fedorov will be looking at, will be

[00:13:54] Speaker 01:
whether he presented a claim that he would be forced to commit inhuman conduct.

[00:13:59] Speaker 01:
That is not what he presented to the IJ.

[00:14:01] Speaker 01:
Throughout his entire presentation and his briefs, he is saying that he will be persecuted for his religious objection.

[00:14:12] Speaker 01:
And this is actually, it's not clear.

[00:14:15] Speaker 01:
He sometimes cites excessive punishment, but sometimes he just seems to suggest that it's a per se type form of persecution to be

[00:14:24] Speaker 01:
conscripted against his beliefs, and that was rejected by the Supreme Court in INSV Elias Zacharias.

[00:14:33] Speaker 01:
And in fact, GVR had a case from this court that had held that there was a per se persecution for being conscripted, even though you conscientiously objected.

[00:14:48] Speaker 03:
What about, I mean, the petitioner talks about when asked point blank by the

[00:14:54] Speaker 03:
immigration judge says that it's criminal they're doing.

[00:14:58] Speaker 03:
I mean, so these are war crimes.

[00:15:00] Speaker 03:
Why isn't that enough to assert a claim sounding inhuman conduct?

[00:15:09] Speaker 01:
It's not... Criminal can mean a lot of different things.

[00:15:17] Speaker 01:
It could mean criminal as in it's

[00:15:20] Speaker 01:
it's a wrong thing to do.

[00:15:22] Speaker 01:
I mean, there's a line between objecting to a course of behavior because you think it's wrong and being worried that you're going to be forced to commit acts that are inhumane.

[00:15:37] Speaker 01:
He is focusing on, again, the

[00:15:45] Speaker 01:
This is like a political belief that it is wrong for Russia to be attacking our brothers.

[00:15:53] Speaker 03:
Well, he doesn't say it's wrong.

[00:15:55] Speaker 03:
He says it's criminal.

[00:15:56] Speaker 03:
And we typically don't expect petitioners to use magic words in terms of saying, I am bringing a claim for inhuman conduct.

[00:16:08] Speaker 01:
Well, I mean, if you look at his mere use of the word criminal as enough to bring that claim, that is sort of a magic words rule to the petitioner's benefit.

[00:16:17] Speaker 01:
It's saying that you're imputing a claim that he thinks he's going to be forced to commit inhuman acts, which is a very specific type of claim, one that distinguishes from the general, that Barraza Rivera distinguished from the general

[00:16:37] Speaker 01:
a conscientious objector claim.

[00:16:40] Speaker 03:
Sure.

[00:16:40] Speaker 03:
But then we're presented with a decision by the immigration judge that was adopted by the board under Bourbono that does use those magic words, inhumane conduct.

[00:16:56] Speaker 03:
And I guess, first of all, on the exhaustion question,

[00:17:03] Speaker 03:
Doesn't ABB say that even if, you know, once the board decides to get past its own procedural kind of objections and does reach a claim, whether or not it was presented below that we're obligated to review it?

[00:17:18] Speaker 01:
That is what ABB says, but that's not applicable here because the claim was not presented below.

[00:17:24] Speaker 03:
Well, these cases were cited in the briefs to the board.

[00:17:30] Speaker 03:
Your friend just noted that.

[00:17:33] Speaker 01:
Yeah, I can pull up the language.

[00:17:37] Speaker 01:
I think it was on page 1 AR 17.

[00:17:44] Speaker 01:
Punishment for violation of military service rules can constitute persecution where the individual would suffer disproportionately severe punishment for evasion on account of one of the grounds.

[00:17:55] Speaker 01:
That's the claim that the petitioner raised.

[00:17:58] Speaker 02:
Is that the same thing as inhumane conduct?

[00:17:59] Speaker 02:
That's my point.

[00:18:00] Speaker 02:
I don't even think the IJ reached the inhumane conduct exception.

[00:18:06] Speaker 02:
He or she seems to be talking about the disproportionate punishment and then says, in other words, inhumane conduct.

[00:18:13] Speaker 02:
But I think that's not correct.

[00:18:14] Speaker 02:
Those are different exceptions.

[00:18:16] Speaker 02:
Is that right?

[00:18:17] Speaker 01:
Yes, Your Honor.

[00:18:18] Speaker 01:
That's the point I'm making.

[00:18:20] Speaker 01:
the claim that the petitioner is making is the first one.

[00:18:23] Speaker 02:
Right, disproportionate conduct.

[00:18:24] Speaker 02:
Right.

[00:18:24] Speaker 02:
And you're saying the petitioner never raised inhumane conduct exception, which is totally separate.

[00:18:30] Speaker 01:
Correct.

[00:18:30] Speaker 02:
But it seems like the IJ botched it a little by conflating the two, calling the disproportionate exception inhumane conduct.

[00:18:38] Speaker 01:
That's correct.

[00:18:38] Speaker 03:
And in fact... What do we make of the Barraza Rivera site in that passage then?

[00:18:43] Speaker 01:
In which passage, Your Honor?

[00:18:44] Speaker 03:
from the brief that you just pointed us to.

[00:18:46] Speaker 03:
Barraza Rivera only involved in humane conduct.

[00:18:49] Speaker 03:
I get that the other cases also presented the punishment question.

[00:18:55] Speaker 03:
And I mean, looking at the IJ, again, I'm not suggesting that it's crystal clear.

[00:19:03] Speaker 03:
But when you turn to the IJ, so the petitioner sites or the appellant sites, Barraza Rivera to the board, the board

[00:19:14] Speaker 03:
adopts via Bourbono a decision in which, on page 57 of the immigration judge's decision, when the judge is discussing this, says, in human conduct, and then cites, it cites, it says, then it also raises the religious point, I think, that you'd made, conscientious objectors.

[00:19:38] Speaker 03:
But then it, that's the,

[00:19:41] Speaker 03:
Zahaitia case, the Jehovah's Witness case, that's all the way at the top of the page.

[00:19:45] Speaker 03:
What the immigration judge cites after this are the inhuman conduct cases, Barraza Rivera.

[00:19:51] Speaker 01:
Go ahead.

[00:19:53] Speaker 01:
Barraza Rivera states all of the, I believe it states all of the different objections, and then it talks about specifically the one, or the exceptions, but then it talks specifically about the inhuman conduct exception.

[00:20:04] Speaker 01:
Here, so a citation just to the case, a bare citation, as is also present in the brief on page 17, those cannot alone be enough to raise an inhuman conduct claim.

[00:20:17] Speaker 01:
It is where it's just one of a list of types of exceptions that could be found to the no-per-se rule for conscientious objector.

[00:20:32] Speaker 03:
But I guess then why, so going to the record that the petitioner presented to the agency, where this is at least in the air.

[00:20:45] Speaker 03:
We can see whether it was presented or exhausted before hanging those labels on it.

[00:20:48] Speaker 03:
It's out there.

[00:20:49] Speaker 03:
The cases are being cited.

[00:20:50] Speaker 03:
There's some testimony regarding it.

[00:20:56] Speaker 03:
And then what are we to make of all the

[00:20:59] Speaker 03:
He's not putting in things about, there are some things about his sincere religious beliefs, but there's a lot in there about Russia's conduct of the war in Ukraine and the, for lack of a better term, the inhuman conduct that's occurring in that theater.

[00:21:19] Speaker 03:
And so why isn't that in its totality enough?

[00:21:27] Speaker 03:
I mean, what else would be the point of discussing as the war there was fought in a criminal way, as he suggested?

[00:21:34] Speaker 03:
What's the point of all that in the record, if not to connect those dots towards inhuman conduct?

[00:21:45] Speaker 01:
I'm going to refer to another Abebe case.

[00:21:47] Speaker 01:
This is Abebe v. Mukasey.

[00:21:50] Speaker 01:
And in that case, exhaustion requires that an issue be raised and argued.

[00:21:56] Speaker 01:
in the conjunctive.

[00:21:58] Speaker 01:
Here, maybe there are issues floating around in the record, but none of them were squarely raised by the petitioner before the IJ, or none of the ones that we are speaking about right here.

[00:22:09] Speaker 01:
This is the first time that this issue has been this much discussion about this kind of claim in this case.

[00:22:19] Speaker 01:
The agency never considered this.

[00:22:21] Speaker 01:
It was never brought to the agency's attention.

[00:22:23] Speaker 01:
This is not exhaustive.

[00:22:26] Speaker 03:
I guess, again, we're in a position where the board, in a Bourbono affirmance, we go back to the IJ to try to figure out what was presented.

[00:22:37] Speaker 03:
I can't recall whether there was, you know, and then we have the declaration and testimony.

[00:22:44] Speaker 03:
Was there briefing before the IJ where we should be looking to see whether it was presented or not?

[00:22:48] Speaker 03:
I think generally the petitioner established their claim through a declaration and through testimony to the immigration judge.

[00:22:56] Speaker 03:
And again, the immigration judge has an obligation to, if a claim can be made out of there, to identify it.

[00:23:04] Speaker 03:
And it seems here that the immigration judge says inhuman conduct.

[00:23:07] Speaker 03:
So I mean, in front of the set aside the board and the briefs and everything else, because the board made the decision to Bourbono affirm.

[00:23:16] Speaker 03:
So we're now back to whatever the IJ thinks was presented was presented.

[00:23:21] Speaker 01:
And I am asking or I am saying this court, if this court is looking at a Bebe V. Gonzalez to say that the IJ's opinion is what counts, this court should also apply a Bebe V. Mukasey to the briefing below before the IJ.

[00:23:38] Speaker 01:
That means that the petitioner needs to argue and raise and argue all issues before the IJ.

[00:23:45] Speaker 01:
So in this case, if you look at the briefs, there is actually a briefing by the Petitioner's Council before the IJ.

[00:23:52] Speaker 01:
I'm looking at AR 155 and 156.

[00:23:57] Speaker 01:
Because Mr. Fedorov is a man of faith and attends an evangelical church, he cannot take up arms and alternative services not available during mobilization, 156.

[00:24:08] Speaker 01:
He went through years of outright persecution from civilians and authorities, and there is no indication that he would be able to escape from military service upon arrival to Russia.

[00:24:17] Speaker 01:
This is about forced conscription.

[00:24:19] Speaker 01:
This is nothing to do with inhumane conduct, which was raised in an errant phrase by the IJ one time and not analyzed at all.

[00:24:29] Speaker 01:
This is not before the agency, and if this court were to decide the issue, that would be violating Chenery, which is giving the agency the first crack at this issue.

[00:24:39] Speaker 03:
Well, I guess there's room for gray area, and in the past we have remanded to allow the IJ to

[00:24:48] Speaker 03:
consider and better specify, provide us grounds for review.

[00:24:52] Speaker 03:
In other words, part of the discussion we're having here today is what exactly are we reviewing?

[00:24:58] Speaker 03:
And if the record isn't clear as to what the IJ reviewed, why don't we just send it back and give the agency a chance to spell it out a little more clearly?

[00:25:14] Speaker 01:
The burden is on the petitioner to show that he is eligible for asylum and other relief.

[00:25:21] Speaker 01:
The IJ is only ruling on what the petitioner brings forward.

[00:25:31] Speaker 01:
And if the petitioner only makes a clear claim as to this is the form of persecution I am expecting, I am expecting either to be conscripted against my conscientious objection or to be severely punished, then that is what the IJ has to go on.

[00:25:55] Speaker 01:
If this court were to remand merely because an IJ made an error in stating something during an oral opinion, then that would also open the floodgates for a lot of other remands based on just errant phrasing when the reasonable course of the agency's decision is apparent.

[00:26:14] Speaker 01:
Here it's apparent that it was not brought up that calling a war criminal one time during testimony

[00:26:25] Speaker 01:
and an IJ saying, oh, well, it would be inhumane to subject him to severe punishment because of his religious beliefs.

[00:26:34] Speaker 01:
That cannot be enough to raise this claim on behalf of the petitioner in some way.

[00:26:40] Speaker 03:
Mr. Pryby, I appreciate you becoming prepared to discuss these issues today, but did the government raise exhaustion in its briefing?

[00:26:50] Speaker 01:
We had no need to, Your Honor, because this issue was not presented before the... The opening brief said that it was.

[00:26:57] Speaker 03:
The government had an opportunity to respond in its brief.

[00:27:01] Speaker 03:
Is there anything in the brief that gets at these issues?

[00:27:04] Speaker 03:
Cannot the government forfeit an exhaustion argument, right?

[00:27:08] Speaker 03:
It's non-jurisdictional.

[00:27:12] Speaker 03:
If there's something in the brief, let me know, otherwise it's just coming down to our discussion here today is the first time.

[00:27:17] Speaker 03:
that the government is discussing this.

[00:27:20] Speaker 03:
Is that right?

[00:27:24] Speaker 01:
In the brief, the government raises a failure to exhaust on the grounds of nexus.

[00:27:32] Speaker 01:
Because the claim that the petitioner raised was, I am being persecuted because of my religious beliefs.

[00:27:45] Speaker 03:
I think we've both established that inhuman conduct is a type of claim for these purposes for exhaustion.

[00:27:54] Speaker 03:
Anywhere in the briefs where there's a discussion of non-exhaustion of the inhuman conduct,

[00:28:14] Speaker 01:
The claim that he does not raise this claim in his blue brief.

[00:28:19] Speaker 01:
That is, therefore, the government did not need to raise an exhaustion argument.

[00:28:23] Speaker 03:
I recall there's at least a couple pages, certainly a full paragraph, citing the inhuman conduct pieces as part of the reasonable fear.

[00:28:35] Speaker 01:
My time has expired.

[00:28:36] Speaker 01:
May I answer the question?

[00:28:37] Speaker 03:
Yeah.

[00:28:38] Speaker 01:
Oh, sorry.

[00:28:40] Speaker 01:
The section starts with the lead petitioner is a religious pacifist.

[00:28:45] Speaker 03:
And this is in your brief or the?

[00:28:47] Speaker 03:
The blue brief.

[00:28:48] Speaker 03:
OK.

[00:28:51] Speaker 01:
And the petitioner summarizes the IJ's opinion.

[00:28:57] Speaker 01:
The situation is rather transparent.

[00:28:58] Speaker 01:
The religious pacifist demonstrates in public in protest to war, and he gets labeled a sectarian and being threatened to send to war.

[00:29:06] Speaker 01:
All of this sounds in.

[00:29:09] Speaker 01:
So far it sounds in the claim that he is being persecuted because of his religion.

[00:29:20] Speaker 01:
And then he cites a bunch of cases that have to do with

[00:29:35] Speaker 01:
deserting to avoid participating in acts condemned by the international community.

[00:29:52] Speaker 01:
This court has said you must present a cogent and reasoned argument in order to preserve the issue in the briefs.

[00:30:05] Speaker 01:
The petitioner has put a bunch of citations in the middle of what is essentially a claim based on religious persecution.

[00:30:16] Speaker 01:
And that does not give fair notice to the government that this is a specific type of claim that this petitioner is raising.

[00:30:23] Speaker 01:
Therefore, exhaustion does not need to be raised by the government in this instance.

[00:30:28] Speaker 02:
Thank you, counsel.

[00:30:34] Speaker 00:
Your Honor, I don't have any additional arguments, so I won't be taking my two minutes for a bottle.

[00:30:39] Speaker 02:
If I could ask a question, then what's your response to the that the IJ actually never even considered the inhumane conduct exception because he or she just mislabeled what was the disproportionate punishment exception?

[00:30:55] Speaker 00:
Well, certainly that's more than just an error in phrasing.

[00:31:00] Speaker 00:
So, petitioners do disagree with counsel characterization of that.

[00:31:06] Speaker 00:
I would rather, petitioners would rather agree with your reasoning, Juana, when you said that perhaps the IJ

[00:31:14] Speaker 00:
conflated the two the the issue of disproportionate punishment for violation of military service rules and kind of calling it or conflating calling it and then human conduct.

[00:31:30] Speaker 00:
Well, however, it's not the petitioner's fault that the judge did not give it the full consideration, even though the judge cited the proper case law that talks about inhumane conduct.

[00:31:44] Speaker 00:
Well, in other words, the remand

[00:31:50] Speaker 00:
could be appropriate in this particular case for the judge to develop the issue of inhuman conduct to expressly address it.

[00:32:00] Speaker 00:
I would agree with that when I heard your reasoning, Your Honor.

[00:32:07] Speaker 02:
Okay.

[00:32:07] Speaker 02:
Anything else?

[00:32:08] Speaker 02:
Any questions?

[00:32:09] Speaker 02:
Okay.

[00:32:09] Speaker 02:
Thank you very much, counsel.

[00:32:10] Speaker 02:
This case is submitted.

[00:32:12] Speaker 00:
Thank you.