[00:00:00] Speaker 04:
Mr. Burch, you're here by yourself.

[00:00:03] Speaker 01:
I am, Your Honor.

[00:00:03] Speaker 04:
The reason we gave you oral argument is because you had a bunch of students with you.

[00:00:06] Speaker 04:
Where are they?

[00:00:08] Speaker 01:
I hope that's not the only reason, but they're studying for the bar at the moment, Your Honor.

[00:00:11] Speaker 01:
They what?

[00:00:12] Speaker 01:
Studying for the bar, Your Honor.

[00:00:13] Speaker 04:
They didn't know that at the time this argument was scheduled?

[00:00:16] Speaker 04:
That's correct, Your Honor.

[00:00:17] Speaker 01:
Well, no, they knew they were going to be studying for the bar, but they didn't know they were going to be studying for the bar at the time they took on the case back in the fall of last year.

[00:00:23] Speaker 04:
I guess my point is simply that in the future,

[00:00:26] Speaker 04:
If you're going to appear, tell us why.

[00:00:29] Speaker 04:
Sure.

[00:00:30] Speaker 04:
Because normally this might be the kind of a case that we wouldn't have oral argument.

[00:00:34] Speaker 04:
But because you had some students with you, we gave you oral argument.

[00:00:38] Speaker 04:
So just know the court is not amused.

[00:00:40] Speaker 01:
Sure.

[00:00:41] Speaker 04:
Keep that in mind, please.

[00:00:42] Speaker 01:
Sure.

[00:00:42] Speaker 01:
Well, I'll try not to disappoint, Your Honor.

[00:00:43] Speaker 01:
But I do think there are some substantial issues in this case that are worth discussing.

[00:00:47] Speaker 01:
That's for you to show us.

[00:00:48] Speaker 01:
Sure.

[00:00:49] Speaker 01:
So we respectfully ask this court to reverse the agency for two reasons.

[00:00:55] Speaker 01:
First.

[00:00:55] Speaker 03:
Well, before you get to that, maybe you could explain to me the standard of review in this case.

[00:01:02] Speaker 01:
Standard of review.

[00:01:03] Speaker 01:
It depends on which issue, Your Honor.

[00:01:04] Speaker 01:
So if we're talking about.

[00:01:05] Speaker 03:
What's the standard of review for me for this case?

[00:01:08] Speaker 03:
I mean, this is a cat.

[00:01:10] Speaker 03:
Yes.

[00:01:11] Speaker 03:
Case.

[00:01:12] Speaker 03:
What's my standard of review?

[00:01:14] Speaker 01:
Substantial evidence on the likelihood of future torture.

[00:01:16] Speaker 01:
Substantial evidence that would what?

[00:01:19] Speaker 01:
That would compel this court.

[00:01:20] Speaker 03:
Compel the conclusion that the BIA was incorrect, right?

[00:01:23] Speaker 01:
That's right, Your Honor.

[00:01:25] Speaker 03:
And a reasonable, any reasonable adjudicator would not find as this one did.

[00:01:33] Speaker 03:
Yes, Your Honor.

[00:01:34] Speaker 03:
So I'm talking about any other judge in America would not find the way this one did.

[00:01:40] Speaker 01:
Any other reasonable judge, Your Honor.

[00:01:42] Speaker 01:
I understand.

[00:01:42] Speaker 03:
That's right.

[00:01:43] Speaker 03:
And then after I get through that, it seems to me that my job then is to give that kind of

[00:01:53] Speaker 03:
Deference if you will to the BIA Isn't that true?

[00:01:58] Speaker 03:
I mean I can't substitute my opinion about that That's true if there's evidence on both sides I'm gonna have to go with them because even though I may not have made the same decision I'm still gonna have to go with them because that's the standard it doesn't compel anything differently isn't that correct?

[00:02:17] Speaker 01:
I don't dispute that your honor

[00:02:19] Speaker 03:
Well, and you have the burden of proof, right?

[00:02:22] Speaker 03:
Yes, your honor.

[00:02:23] Speaker 03:
Okay.

[00:02:24] Speaker 03:
I mean, that's the thing that's most worrisome in, I guess, a cat case.

[00:02:31] Speaker 03:
Cat cases are hard.

[00:02:32] Speaker 03:
Cat cases are the worst case for your petitioner because that standard review is so tough.

[00:02:40] Speaker 04:
It is.

[00:02:41] Speaker 04:
Can we go to a slightly legal aspect of it?

[00:02:46] Speaker 04:
How do you distinguish matter of AAR that was brought up by the government in his 28-J letter?

[00:02:52] Speaker 04:
Sure.

[00:02:53] Speaker 04:
That's a tough one for you, is it not?

[00:02:54] Speaker 01:
Well, I would say a few things about matter of AAR.

[00:02:56] Speaker 01:
Number one, it got it wrong.

[00:02:59] Speaker 01:
So there was substantial evidence in that case showing that particular individual would likely be tortured if forced to return.

[00:03:04] Speaker 04:
So you're saying matter of AAR is wrong?

[00:03:06] Speaker 01:
Yes, Your Honor.

[00:03:08] Speaker 01:
Got it wrong.

[00:03:09] Speaker 01:
There's substantial evidence in that case showing that the petition in that case would likely be tortured if forced to go back to El Salvador.

[00:03:15] Speaker 01:
There was evidence from the country report.

[00:03:18] Speaker 03:
But again, counselor, it seems to me those are great arguments if you're just making the argument to the jury or to the BIA.

[00:03:27] Speaker 03:
But you're not.

[00:03:28] Speaker 03:
You're making it to us.

[00:03:30] Speaker 03:
And we have a deference to the BIA.

[00:03:33] Speaker 03:
And so that's why it seems to me that arguing that a case is wrong, when we've got to look at it and say they get some deference, makes a tough argument.

[00:03:43] Speaker 01:
But I think the difference, Your Honor, is there's substantial evidence showing that case is wrong.

[00:03:47] Speaker 03:
Well, I understand your idea, I guess, about what's substantial evidence.

[00:03:51] Speaker 03:
Answer this question.

[00:03:53] Speaker 03:
What evidence is there in this record that compels the conclusion, now we're talking compels the conclusion, that a person who is not involved in an MS-13

[00:04:08] Speaker 03:
or Iberio 18 would be targeted by either the police or the gang members here.

[00:04:17] Speaker 01:
There are several things, Your Honor.

[00:04:18] Speaker 01:
What?

[00:04:19] Speaker 01:
I would start with the country report.

[00:04:20] Speaker 01:
The Department of... Start with what?

[00:04:22] Speaker 01:
The Department of State country report.

[00:04:24] Speaker 01:
So if you look at that report at the very beginning, it says that one of these significant human rights issues in El Salvador is tortured by security forces.

[00:04:32] Speaker 01:
That would be thing number one.

[00:04:33] Speaker 01:
Thing number two in that report says that prison guards in El Salvador regularly be detainees.

[00:04:40] Speaker 04:
Well, Counsel, you're an experienced lawyer.

[00:04:43] Speaker 04:
You know that country reports per se that are very general rarely satisfy situations like this where you have to bring it down to apply to your petitioner.

[00:04:56] Speaker 04:
Where have you done that in this case?

[00:04:58] Speaker 01:
Well, starting with the country report, and I will say I'll push that back on that a little bit.

[00:05:01] Speaker 01:
So in Cole versus Holder, for example, this court remanded based on the country report.

[00:05:06] Speaker 01:
There, the agency disregarded what the country report said, and the country report, for example, said that prison guards regularly beat detainees.

[00:05:14] Speaker 01:
And it looked at that report and sent it back to the agency because the agency didn't give it proper weight.

[00:05:18] Speaker 01:
So in this case, this is one of the significant things the court always looks to, to determine what the likelihood of torture is.

[00:05:25] Speaker 04:
The case you cite is very different than this one, is it not?

[00:05:29] Speaker 04:
country report cited to us all the time.

[00:05:31] Speaker 04:
And they're way up here, and we don't give any deference to it if there's no way to tie it to the individual petitioner.

[00:05:39] Speaker 04:
And I don't see that here.

[00:05:41] Speaker 04:
What am I missing?

[00:05:42] Speaker 01:
Well, I will say this Court has said on a number of occasions that the country report is typically the primary document it looks to.

[00:05:48] Speaker 01:
for determining country conditions, and it gives it important weight because it's written by experts.

[00:05:52] Speaker 04:
But it isn't just country conditions.

[00:05:54] Speaker 04:
It's how they apply to this petitioner.

[00:05:56] Speaker 04:
Right.

[00:05:57] Speaker 04:
When you have situations that, or the country court specifically refers to a particular police district and violence in that district, and that's what you're talking about, maybe.

[00:06:07] Speaker 04:
But when you're talking about, like, for example, we hear all the time, well, in Mexico they got cartels, and they do violence.

[00:06:13] Speaker 04:
That's true.

[00:06:14] Speaker 04:
Yes.

[00:06:14] Speaker 04:
It's really true.

[00:06:15] Speaker 04:
But that's not going to help you

[00:06:17] Speaker 04:
going back there to show that because you're here and you have an MS-13 tie that you have some kind of relief.

[00:06:25] Speaker 04:
And that's what I'm seeing here.

[00:06:26] Speaker 04:
What am I missing?

[00:06:27] Speaker 01:
So I'll say two things in response to that, Your Honor.

[00:06:29] Speaker 01:
The first is Julio credibly testified that MS-13 members in the California prison system told him that if he goes back to El Salvador, he's going to be viewed as a traitor because of his affiliation with the Mexican mafia and because of his tattoo indicating that affiliation.

[00:06:45] Speaker 01:
That was credible testimony that the agency accepted

[00:06:48] Speaker 01:
And that shows the particular risk that he faces if he goes back, in addition to the risk that the country reports show.

[00:06:54] Speaker 03:
Is that the only evidence we have in the record that shows the police or gang members are aware of the significance of the G shield tattoo?

[00:07:03] Speaker 01:
Well, we have his testimony, yes.

[00:07:05] Speaker 01:
So from this record.

[00:07:06] Speaker 03:
I mean, to be fair, I didn't find any evidence in the record other than this supposed idea that G shield, that it was

[00:07:15] Speaker 03:
pertain to the G-Shield.

[00:07:17] Speaker 03:
The testimony doesn't say that it really relates to the G-Shield.

[00:07:22] Speaker 03:
But I didn't find any evidence in this record that the police or gang members are aware of the significance of a G-Shield tattoo at all.

[00:07:31] Speaker 01:
Well, in addition to his credible testimony, I would point your honors to the FBI's own reports on California gang tattoos.

[00:07:38] Speaker 03:
So it wasn't in the record before... But now, just a minute, California, the FBI reports are not going to be something that's going to be down there.

[00:07:46] Speaker 01:
That is true.

[00:07:46] Speaker 01:
I don't know if they're going to be in El Salvador or not, but I just pointed that to point out that this is a widely recognized tattoo.

[00:07:53] Speaker 01:
And that corroborates Julio's credible testimony.

[00:07:56] Speaker 01:
that this is a widely recognized tattoo of affiliation with the Mexican mafia.

[00:08:01] Speaker 01:
So that shows that, you know, this is a credible claim he's making that he's going to face a significant risk if he goes back because of his affiliation with the Mexican mafia.

[00:08:11] Speaker 02:
Let me ask you, the evidence we have of the risk he faces of being singled out for torture based on his tattoo is what somebody told him?

[00:08:23] Speaker 01:
MS-13 members, Your Honor, yes.

[00:08:25] Speaker 01:
Okay.

[00:08:26] Speaker 01:
Yes.

[00:08:27] Speaker 03:
Let me ask you another question because I mean, your case is different than any I've seen thus far.

[00:08:34] Speaker 03:
You bring up a lot of articles.

[00:08:37] Speaker 03:
In fact, several articles that I'm supposed to take as the evidence of country conditions.

[00:08:42] Speaker 03:
I've never seen that happen in a case before.

[00:08:46] Speaker 03:
Aren't the all the articles that you reference

[00:08:50] Speaker 03:
Even if they were country condition evidence, aren't they limited to active members of MS-13 or Barrio 18?

[00:08:59] Speaker 03:
I mean, I went through each one of those articles, and it seems they deal with MS-13 members or Barrio 18 members.

[00:09:06] Speaker 03:
Not someone who isn't in either group, but has a G shield tattoo.

[00:09:13] Speaker 01:
What that shows is, Your Honor, two things.

[00:09:15] Speaker 01:
Number one, those are the two main gangs in El Salvador.

[00:09:18] Speaker 01:
Number two,

[00:09:19] Speaker 01:
People who are affiliated with the Mexican Mafia aren't going back there because it's dangerous.

[00:09:24] Speaker 01:
And that's why he fears going back.

[00:09:25] Speaker 03:
He didn't answer my question.

[00:09:27] Speaker 03:
Aren't all those articles in reference to M13 or Barrio 18?

[00:09:34] Speaker 03:
Gangs?

[00:09:35] Speaker 01:
Yes, Your Honor.

[00:09:36] Speaker 03:
There's nothing that gets me to G shield tattoos and how it relates to those at all.

[00:09:42] Speaker 01:
That's correct, Your Honor.

[00:09:43] Speaker 01:
Not in this record.

[00:09:43] Speaker 01:
There's not.

[00:09:44] Speaker 03:
So under the standard of review,

[00:09:48] Speaker 03:
Doesn't your client lose?

[00:09:49] Speaker 01:
No, Your Honor, he doesn't because he has credible testimony talking about the G-Shield tattoo.

[00:09:54] Speaker 03:
It is a credible testimony.

[00:09:56] Speaker 03:
If there's any evidence on the other side, it's something that compels the result.

[00:10:01] Speaker 03:
That's why I took you through the standard review.

[00:10:04] Speaker 03:
Sure.

[00:10:05] Speaker 01:
And I do think that testimony compels a different result in this case.

[00:10:09] Speaker 01:
But I do want to circle back to one predecessor problem that precedes everything else we've talked about so far, and that is what the agency did in this case.

[00:10:17] Speaker 01:
So the agency, when it started its analysis, the first point it made was that a significant and principal reason for denying relief was the fact that he had not been tortured in the past before he left El Salvador.

[00:10:29] Speaker 01:
But he left El Salvador at the age of 10.

[00:10:31] Speaker 01:
That was over 20 years ago.

[00:10:33] Speaker 01:
And he had good reason for leaving at the time.

[00:10:35] Speaker 01:
So the agency didn't take that into account.

[00:10:38] Speaker 01:
And that's very much like what happened in Akwesong versus Barr.

[00:10:41] Speaker 01:
You know, there in that case, the petitioner left her home country.

[00:10:44] Speaker 01:
She came and raised the cat claim.

[00:10:46] Speaker 01:
The agency denied it by emphasizing that she had not been tortured before she left.

[00:10:51] Speaker 01:
This court remanded for reconsideration because she had a reason for not being tortured.

[00:10:55] Speaker 01:
She hid to avoid being tortured, just like Julio hid here.

[00:10:58] Speaker 01:
He left to avoid being recruited in MS13 at the time because his uncle was a high level member of the gang.

[00:11:04] Speaker 01:
So he and his mother came to United States so he could avoid being recruited into it.

[00:11:09] Speaker 01:
And that's the exact circumstance we saw in Akasong and this court remanded there.

[00:11:12] Speaker 01:
We respectfully ask it to do that here as well because it has to be taken out of the equation to determine whether he's likely to be tortured in the future.

[00:11:20] Speaker 01:
That discounted all the evidence that came after that.

[00:11:23] Speaker 02:
So that has to be taken out.

[00:11:27] Speaker 02:
Based on the country report, Flores Vargas has a risk of being tortured because the El Salvadorian officials regularly make arbitrary arrests of young men because of their tattoos alone?

[00:11:42] Speaker 01:
Not just arrest, Your Honor, but also beat detainees in prison as well.

[00:11:45] Speaker 01:
There's a lot of evidence in the country report showing the conditions that individuals face when they go back to El Salvador.

[00:11:51] Speaker 01:
It's not just that they're going to be detained.

[00:11:53] Speaker 01:
It's going to be the conditions they're subjected to when they go.

[00:11:56] Speaker 01:
not only by prison guards but by other gang members as well.

[00:11:59] Speaker 04:
It's so general.

[00:12:02] Speaker 04:
Cat relief requires you to show the greater than 50% chance of torture.

[00:12:08] Speaker 04:
And what you've done here is talk about the general conditions, how awful it is and so on, but you don't tie it to your petitioner and you certainly don't try to show that you meet the 50% or greater standard, do you?

[00:12:20] Speaker 01:
I think we do, Your Honor.

[00:12:21] Speaker 01:
With his testimony about the danger he faces as being a member of the Mexican mafia, going back to a country full of Salvadoran gang members, that's the risk he faces that's unique to him.

[00:12:31] Speaker 01:
But still, first, in reviewing... Well, let me ask you this.

[00:12:34] Speaker 02:
Somewhere in your briefing, you talk about the significant risk of torture, and it translates to 60 percent of the country's 118,000 gang members.

[00:12:47] Speaker 01:
Yes, Your Honor.

[00:12:47] Speaker 02:
Is that what you're talking about as far as exceeding the 50%?

[00:12:50] Speaker 01:
No, Your Honor.

[00:12:51] Speaker 01:
That just shows he's likely to be detained.

[00:12:53] Speaker 01:
Okay.

[00:12:53] Speaker 01:
So if they detain more than half of the gang members, that shows that he's likely to be detained as well.

[00:12:58] Speaker 04:
You want to save any of your time?

[00:13:00] Speaker 01:
I do.

[00:13:01] Speaker 01:
I do.

[00:13:01] Speaker 01:
I want to save the rest for rebuttal, if that's okay.

[00:13:03] Speaker 01:
Very well.

[00:13:03] Speaker 01:
Thank you.

[00:13:05] Speaker 04:
All right.

[00:13:05] Speaker 04:
Let's hear from the government minister.

[00:13:14] Speaker 00:
Thank you, Your Honor.

[00:13:15] Speaker 00:
Good morning, Presiding Judge Smith.

[00:13:17] Speaker 00:
May it please the court?

[00:13:19] Speaker 00:
My name is Abigail Stout, and I represent respondent in this case.

[00:13:23] Speaker 00:
As this court has already noted, the issue in this case is straightforward and carries a deferential standard of review.

[00:13:30] Speaker 00:
Whether the immigration judge and the Board of Immigration Appeals erred by finding that petitioner failed to carry his burden to prove that he was entitled to cap protection.

[00:13:39] Speaker 00:
This would require the petitioner

[00:13:40] Speaker 00:
to fail to prove that it was more likely than not that he would be tortured if returned to El Salvador, his home country.

[00:13:47] Speaker 00:
The immigration judge and the Board of Immigration Appeals found that it was not.

[00:13:52] Speaker 00:
And administrative findings of fact, as noted, are conclusive on a review in court unless any reasonable adjudicator

[00:13:59] Speaker 00:
would be compelled to conclude to the contrary.

[00:14:01] Speaker 04:
Let me ask you this, counsel.

[00:14:02] Speaker 04:
You in your 28-J letter referred to the matter of AAR.

[00:14:05] Speaker 04:
What gravitas does the government ascribe to that case?

[00:14:11] Speaker 04:
You heard your opponents say that it was wrong.

[00:14:14] Speaker 04:
What difference does that make?

[00:14:15] Speaker 04:
But please, in what manner does the matter of AAR enter into our consideration?

[00:14:22] Speaker 00:
Your honor, we would suggest that AAR was correctly decided and in fact embodies a lot of the principles that are already found in Ninth Circuit precedent across the board.

[00:14:32] Speaker 00:
First, AAR recognizes that general grievances or generalized complaints are not sufficient for the particularized CAT standard.

[00:14:45] Speaker 00:
Secondly, it talks about the

[00:14:48] Speaker 00:
Specifically the prison conditions which echoes a lot of the Ninth Circuit precedent that talks about

[00:14:55] Speaker 00:
prison conditions in and of themselves not being amounting to torture, and even dire prison conditions not amounting to torture.

[00:15:02] Speaker 02:
Well, about that, let me ask you this question.

[00:15:05] Speaker 02:
I think the country report indicates that President Bukele doesn't give his government acquiescence to what happens in the prisons.

[00:15:19] Speaker 02:
I mean, he understands what's happening, and I think he indicates that that's what he intends.

[00:15:26] Speaker 02:
My question is, if we follow the reasoning in the matter of AAR and hold that the approval of gang members treatment in prison is not acquiescence, then what would the president have to do for there to be a finding of government acquiescence?

[00:15:44] Speaker 00:
Your Honor, I think there's a few things in your question.

[00:15:47] Speaker 00:
And I think the most significant part is what is required for torture, and then we can analyze then what's required for acquiescence.

[00:15:55] Speaker 00:
And I think what's

[00:15:56] Speaker 00:
AAR points out and the night circuit precedent points out is that there needs to be intent for there to be torture.

[00:16:03] Speaker 00:
So there needs to be an intent of mistreatment or intent to torture.

[00:16:08] Speaker 02:
Well, they indicate that he agrees with what's happening and indicates that they are being treated the way we say they are.

[00:16:17] Speaker 02:
That's being said they are.

[00:16:20] Speaker 00:
Your Honor, I think as AAR explains

[00:16:23] Speaker 00:
There are certain prison conditions perhaps like beatings that my friend on the other side brought up That night circum precedent has not held in and of itself amount to torture kind of as an initial matter And then secondly president bukele's awareness of prison conditions.

[00:16:40] Speaker 00:
I think there's a few ways we could analyze or look at that First is awareness of prison conditions

[00:16:47] Speaker 00:
our assertion is that those current prison conditions as explained in AAR do not amount to torture and also any kind of statement from the El Salvadorian government as AAR analyzing some points out goes to perhaps the kind of a reflection on the moral character of gang members and the way that the government wants to crack down on the spread of

[00:17:13] Speaker 00:
gang members and the violence that it's created in the society.

[00:17:15] Speaker 02:
Well, my question is this.

[00:17:16] Speaker 02:
He's acknowledged that it's happening, and he's aware of it, and suggests that he even approves of it.

[00:17:23] Speaker 02:
My question is, what would he have to do for there to be a finding of acquiescence if that's not acquiescence?

[00:17:29] Speaker 00:
In order for petitioner here to receive cap protection under that acquiescence standard, the petitioner would have to show that the

[00:17:40] Speaker 00:
Government itself would be aware of but then acquiesce to or not decline to intervene in the particular torture that's going on.

[00:17:51] Speaker 00:
So there would have to be the finding of torture first and then the finding of acquiescence secondly.

[00:17:57] Speaker 02:
So you're saying there's no torture?

[00:17:59] Speaker 00:
Your Honor, that is our submission.

[00:18:01] Speaker 00:
As the matter of AAR states, the prison conditions in El Salvador currently

[00:18:10] Speaker 00:
do not amount to that and that's also what this court in the Parks case addressed as well.

[00:18:15] Speaker 00:
It addressed also and analyzed the 2022 report and found that the prison conditions there, though harsh, though dire, did not amount to torture there because there wasn't that intent element as both the Ninth Circuit and then the Board of Immigration Appeals found.

[00:18:31] Speaker 02:
Well, how do you prove intent more than when you have the President saying, I'm aware of this and this is what I expect to happen in my prisons?

[00:18:39] Speaker 00:
Your honor, I think that intent A, there's the issue of the high ranking public official and whether that would be the particular acquiescence that would be.

[00:18:47] Speaker 02:
This is the president saying this.

[00:18:50] Speaker 02:
So what more do you need?

[00:18:52] Speaker 00:
I think for petitioner to receive cap protection, the petitioner would have to show that there was specific acquiescence in his case by a public official.

[00:19:00] Speaker 00:
So if he was undergoing torture himself that either the president through policy set that amounted to torture would be permitting that or if a specific public official would be acquiescing to the particular torture he was undergoing.

[00:19:15] Speaker 02:
But he hasn't lived there since he was 10.

[00:19:16] Speaker 02:
How is he going to prove that it would apply to him specifically?

[00:19:20] Speaker 00:
I think that goes to also the that it's the petitioners burden to prove acquiescence also and in this record that we have before us other than a kind of fleeting reference in the record on page in the record on AR 183 where petitioners stated that when talking about gangs

[00:19:43] Speaker 00:
quote, unquote, running the prison.

[00:19:45] Speaker 00:
He knows that just because that's how it is and because they live there.

[00:19:50] Speaker 00:
That's the only evidence that we have that Petitioner, in this case, would show on the acquiescence point.

[00:19:57] Speaker 02:
Well, if there's no evidence of past torture and no threats, how do you determine if a particular risk, in this case, exists?

[00:20:05] Speaker 00:
Your Honor, the Petitioner has the burden to prove each element.

[00:20:10] Speaker 02:
Well, how would he prove that in this case?

[00:20:13] Speaker 00:
Here in this case, he would have to prove that it is more likely than not that each element in the chain of hypothetical events that he asserts would be more likely than not to happen.

[00:20:23] Speaker 00:
So here he asserts that his criminal history and his tattoos would make him a target for detention, that he would then be detained, and that while in detention, he would be tortured.

[00:20:34] Speaker 00:
So each one of those links in the chain would have to be proved more likely than not.

[00:20:39] Speaker 00:
Here, when the immigration judge and the Board of Immigration Appeals looked at that,

[00:20:43] Speaker 00:
They said found that each chain was not more likely than not and so he does not receive cap protection, and that's very like matter of Jff where the court looked at the hypothetical links in the chain to determine whether that petitioner Received cat protection and said that it was too speculative Petitioner did not prove each link in the chain and therefore that petition did not receive cap protection so so the same here

[00:21:12] Speaker 02:
There's a pending appeal of the denial of the motion to reopen.

[00:21:17] Speaker 02:
In pursuant to 8 USC sections 1252B6, it provides that when judicial review of the final order of removal is filed, that review shall be consolidated with the motion to reopen.

[00:21:31] Speaker 02:
Do you have any objection to us proceeding with this case, with that appeal pending?

[00:21:35] Speaker 00:
Your Honor, that is also our understanding of the statute, that it would require consolidation of these cases.

[00:21:42] Speaker 04:
As you know, in your footnote, you mentioned that Riley versus Bondi is pending.

[00:21:48] Speaker 04:
What do we do with that?

[00:21:50] Speaker 00:
Your Honor, Ninth Circuit precedent is currently clear that this is considered a final order of removal that is reviewable by this court, and this court has jurisdiction to remove it.

[00:22:01] Speaker 00:
The government has been including that footnote in many of its briefs just to make the court aware that that case is pending.

[00:22:07] Speaker 00:
As a practical matter both sides in that case at the Supreme Court stage are in agreement that this would be a final order that the court has courts of appeals have jurisdiction to hear and in court Supreme Court is in fact appointed Fourth Circuit amicus Amicus to defend that decision so I think Though we wait or don't wait for Riley I We would urge the court not to have to wait for Riley because Ninth Circuit

[00:22:36] Speaker 00:
Precedent is currently clear on that issue and would decide would decide the case.

[00:22:41] Speaker 04:
I gather though that the government's Primary position is the one that my colleague mentioned at the very beginning.

[00:22:47] Speaker 04:
That's a substantial evidence rule.

[00:22:48] Speaker 04:
Is that correct?

[00:22:49] Speaker 02:
Yes, your honor It how would the resolution of this matter impact the appeal of the denial of a motion to reopen?

[00:22:58] Speaker 00:
Currently there is no stay motion pending my understanding is there's no stay motion pending in that

[00:23:05] Speaker 00:
Second case there has been a PFR file in that case as your honor has mentioned the case number there is 25 30 301 so Erotically without it stay motion pending Resolution of this case could determine removal of petitioner

[00:23:26] Speaker 03:
I have no questions.

[00:23:28] Speaker 03:
Judge Reyes asked all my questions about the motion to reopen.

[00:23:31] Speaker 03:
I don't have any more there.

[00:23:33] Speaker 03:
And you asked my question about the case that they highlight in the footnote.

[00:23:38] Speaker 03:
Those were going to be my questions.

[00:23:39] Speaker 03:
So I have no further questions.

[00:23:41] Speaker 03:
Any questions?

[00:23:41] Speaker 03:
I have no further questions.

[00:23:43] Speaker 04:
Everything you'd like to say?

[00:23:44] Speaker 00:
No, we would just emphasize the standard of review here again reiterate that petitioner is offered no specific evidence of Other than generalized claims and nothing particular to his case, which is required under cut The cat removal and that because record evidence does not compel the conclusion that petitioner demonstrates It's more likely than not that he'll be tortured in El Salvador.

[00:24:06] Speaker 02:
This court should affirm that well The country report you basically argued we should ignore that is that right?

[00:24:12] Speaker ?:
I

[00:24:13] Speaker 00:
Your honor, we're not arguing that you should ignore it.

[00:24:15] Speaker 00:
I think that as Judge Smith pointed out earlier, the country report is very generalized.

[00:24:20] Speaker 00:
Here the immigration judge very clearly did consider the country report and in its analysis on balance said that that petitioner did not carry his weight to prove a particularized threat of torture for himself.

[00:24:37] Speaker 00:
So the country report is not as positive in this case.

[00:24:39] Speaker 02:
Thank you.

[00:24:40] Speaker 02:
Very well.

[00:24:41] Speaker 04:
Thank you.

[00:24:42] Speaker 04:
All right.

[00:24:43] Speaker 04:
Mr. Persh, you have some rebuttal time.

[00:24:52] Speaker 01:
Thank you, honors.

[00:24:53] Speaker 01:
It may please the court.

[00:24:54] Speaker 01:
I just want to make a few quick points.

[00:24:55] Speaker 01:
And I want to start with substantial evidence, the standard.

[00:24:58] Speaker 01:
There have been a lot of questions about that today.

[00:25:00] Speaker 01:
And I just want to emphasize that that was the standard in AquaSung versus Barr as well.

[00:25:04] Speaker 01:
And in that case, his court remanded for reconsideration because the agency didn't take into account the fact that the individual in that case had fled to avoid torture.

[00:25:14] Speaker 01:
And that's why she wasn't tortured in the past.

[00:25:16] Speaker 02:
Well, let me ask you this.

[00:25:16] Speaker 02:
In this case, how do we determine if a particularized risk of Flores Vargas, if there is no evidence of past torture and no threats?

[00:25:24] Speaker 01:
There's particularized evidence or risk of torture in this case because of his affiliation with the Mexican mafia.

[00:25:29] Speaker 01:
And that's the key thing that makes this case different than most others.

[00:25:33] Speaker 01:
He's a member or former member of the Mexican mafia being sent back to a country full of Salvadoran gang members.

[00:25:39] Speaker 01:
And he credibly testified that MS-13 members told him in prison that if he goes back, he's going to be viewed as a traitor and he's going to die because of it.

[00:25:47] Speaker 01:
So that's the thing that places him at particular risk in El Salvador is that affiliation with the Mexican mafia.

[00:25:52] Speaker 01:
And if he goes back, that's the risk he faces.

[00:25:55] Speaker 04:
You know, we, I think just in the sitting we've had this week, we've had, I think, three cases.

[00:26:00] Speaker 04:
Sure.

[00:26:00] Speaker 04:
Almost identical to this.

[00:26:02] Speaker 04:
Same claim.

[00:26:04] Speaker 01:
There are a lot of gang members raising cat claims.

[00:26:06] Speaker 01:
I don't dispute that.

[00:26:08] Speaker 01:
But again, he is a former member of the Mexican Mafia being sent back to El Salvador where he's going to be treated differently.

[00:26:14] Speaker 01:
He's not a member of MS-13.

[00:26:16] Speaker 01:
He's not a member of 18th Street Gang.

[00:26:19] Speaker 01:
He's going to be viewed as a traitor, like he testified.

[00:26:21] Speaker 01:
But by whom?

[00:26:23] Speaker 04:
By the Mexican mafia?

[00:26:25] Speaker 04:
They're not in El Salvador.

[00:26:26] Speaker 01:
By his country members, Your Honor.

[00:26:27] Speaker 01:
By MS-13, by 18th Street gang, by security officials.

[00:26:31] Speaker 04:
But your client is claiming that if he goes to El Salvador, he's going to be tortured there based upon his traitorous activities to Mexican gangs.

[00:26:41] Speaker 04:
and which he affiliated in the United States.

[00:26:44] Speaker 04:
Yes.

[00:26:44] Speaker 04:
That's quite different than saying he was a member of a El Salvadorian gang that he betrayed, right?

[00:26:52] Speaker 01:
It is a credible risk, Your Honor, that he faces if he goes back.

[00:26:55] Speaker 01:
They're going to view him as a traitor because he affiliated with a gang that's not associated with his country.

[00:27:01] Speaker 01:
That's how gang mindsets work.

[00:27:03] Speaker 01:
They view him as a traitor because he wasn't a member of MS-13.

[00:27:06] Speaker 01:
He wasn't a member of 18th Street.

[00:27:08] Speaker 01:
And when he goes back, they're going to say, you're a member of the Mexican mafia, and he's likely to die because of that.

[00:27:13] Speaker 04:
And you believe that that evidence is sufficient to undermine the substantial evidence that was presented to the IJ and the BIA?

[00:27:23] Speaker 01:
I believe when you combine that with the country report and the other evidence in the record, yes, Your Honor, there is.

[00:27:28] Speaker 01:
And again, before you even get to any of that, you have to start with what the agency did in this case.

[00:27:33] Speaker 01:
It discounted his likelihood of being tortured in the future.

[00:27:36] Speaker 01:
by finding he had not been tortured in the past.

[00:27:38] Speaker 01:
That's exactly what happened in Akasong.

[00:27:41] Speaker 01:
So you have to take that out of the picture and then view his claim through the lens of current country conditions.

[00:27:46] Speaker 01:
And that didn't happen here.

[00:27:48] Speaker 04:
Your time is up.

[00:27:49] Speaker 04:
Thank you, Your Honor.

[00:27:49] Speaker 04:
Thanks to both counsel for your argument in this case.

[00:27:52] Speaker 04:
The case of Flores Vargas versus Bondy is submitted.