[00:00:01] Speaker 01:
you can see

[00:00:48] Speaker 02:
higher with likely change standard.

[00:01:20] Speaker 01:
Accordingly, a petitioner asks that this court remand the BIA for application of the correct standard in the first instance.

[00:02:12] Speaker 02:
removal, which invokes prima facie considerations.

[00:02:18] Speaker 02:
So as much as that sentence might suggest that the BIA considered materiality, I would say it equally suggests that the BIA made a determination on prima facie grounds.

[00:02:32] Speaker 03:
If we find that the BIA denied the motion to reopen both on prima facie grounds and also based on a lack of new and material evidence,

[00:02:55] Speaker 02:
ground as we know from Fonseca Fonseca is the reasonable likelihood standard and we know that here it's not disputed that the BIA denied on the would likely change standard accordingly it's it was legal error for it to have applied this higher standard and if the BIA did deny on both new and material evidence grounds and prima facie grounds it erred in applying

[00:03:50] Speaker 02:
harmless error would not apply here.

[00:03:52] Speaker 02:
This court's general principle

[00:04:32] Speaker 02:
And in fact, in the course of oral argument for Fonseca Fonseca, the question of harmless air also arose, and the opinion that was ultimately issued, again,

[00:05:19] Speaker 02:
this evidence.

[00:05:20] Speaker 02:
That makes it new.

[00:05:21] Speaker 01:
That doesn't make it material, right?

[00:05:24] Speaker 01:
I mean, he could put in some evidence about, you know, war crimes in Ukraine, and that would be new because it hadn't happened before, but it wouldn't be material to a claim of asylum from Tonga, right?

[00:05:36] Speaker 01:
So why is evidence of a volcano, admittedly a volcano in Tonga, but why is that material to an assessment of the likelihood of torture with the consent or acquiescence of the Tongan government?

[00:05:50] Speaker 02:
I would say materiality does involve considerations of whether evidence is qualitatively different.

[00:05:58] Speaker 02:
I think the analysis of whether evidence is new is best conceptualized as whether the evidence was previously unavailable, which this evidence undoubtedly is evidence that was previously unavailable.

[00:06:24] Speaker 02:
here.

[00:07:04] Speaker 02:
And I can now spend some time talking about the ways in which we know that the BIA here denied on prima facie grounds, unless you have other questions.

[00:07:18] Speaker 02:
But we know that the BIA denied on prima facie grounds here, again, because in looking at the text of the BIA order,

[00:07:44] Speaker 02:
highlighted earlier, while it potentially invokes materiality considerations, also invokes prima facie eligibility considerations.

[00:07:54] Speaker 02:
And the fact that this was a denial on the prima facie ground is alone evidence, or is alone sufficient grounds for remand, according to the guidance that this court provided in Fonseca, Fonseca.

[00:08:11] Speaker 02:
And with my remaining time,

[00:08:14] Speaker 02:
bring us back to two separate errors that provide a basis for remand.

[00:08:20] Speaker 02:
One such error is the BIA's lack of substantive reasoning in its analysis.

[00:08:41] Speaker 02:
did deny on the prima facie ground, which, as we've discussed, we think the BIA did deny on that ground.

[00:08:50] Speaker 02:
So I would highlight that that argument by the government in opposition is waived.

[00:08:56] Speaker 01:
Did you want to reserve any time for rebuttal?

[00:08:58] Speaker 01:
Yes.

[00:08:59] Speaker 01:
Okay, then maybe – maybe now would be a good time to – Thank you.

[00:09:02] Speaker 01:
Yes.

[00:09:04] Speaker 01:
And we'll hear from the government.

[00:09:23] Speaker 04:
May it please the court, my name is Kristen Lawser and I'm here on behalf of the respondent.

[00:09:28] Speaker 04:
The petition for review in this case should be denied.

[00:09:31] Speaker 04:
The agency did not act arbitrarily, irrationally, or in a manner contrary to law when it denied the motion to reopen based on petitioners' failure to introduce new, previously unavailable immaterial evidence that would likely change the result in his case with respect to his application for protection under the Convention Against Torture.

[00:09:51] Speaker 04:
The sole piece of evidence that petitioners submitted in support of his motion to reopen was a one and a half page unsworn personal statement, which was largely duplicative of everything he had told the agency previously on the merits.

[00:10:06] Speaker 04:
Specifically, he claimed to fear returning to Tonga because he feared that he wouldn't be able to obtain the necessary medical treatment, and he feared being harmed by the family of his second wife, who he attempted to murder.

[00:10:26] Speaker 04:
of information that he'd included in his declaration supporting the motion to reopen was this reference to a natural disaster which occurred in Tonga in 2022, which the board considered and credited.

[00:10:39] Speaker 04:
But petitioner failed to indicate how his general assertions about a natural disaster would be material to his application for protection under the Convention Against Torture.

[00:10:50] Speaker 04:
The issues in this case really

[00:10:55] Speaker 03:
that we really shouldn't reach materiality because remand is appropriate under the standard of review that the BIA adopted.

[00:11:04] Speaker 03:
You'd agree that under Fonseca Fonseca,

[00:11:29] Speaker 04:
I think that argument hinges on the underlying assumption that the reason the board denied the motion to reopen here was on the basis of a prima facie eligibility determination.

[00:11:40] Speaker 04:
So Fonseca Fonseca addressed the standard that applies to prima facie eligibility.

[00:11:44] Speaker 04:
As your honor noted, that was the reasonable likelihood standard.

[00:11:48] Speaker 04:
But the government's arguing that the reason the board denied the motion to reopen was a separate and independent ground.

[00:12:00] Speaker 04:
not address that question.

[00:12:01] Speaker 04:
So Fonseca Fonseca does not dictate the result in this case.

[00:12:07] Speaker 04:
And the reason that we know that the board did not deny on the basis of prima facie eligibility, there are several reasons.

[00:12:15] Speaker 04:
First, in the one statement where the board references prima facie eligibility, that same sentence the board goes on to describe the independent ground for denying

[00:12:31] Speaker 04:
material evidence.

[00:12:33] Speaker 04:
And the board at no point in this decision said it was denying on the basis of prima facie eligibility, unlike in Fonseca Fonseca where the board decision the court was reviewing had language where the board said it was denying based on prima facie eligibility.

[00:12:49] Speaker 01:
But the board did say he hasn't done anything that would likely change.

[00:12:53] Speaker 01:
It used that phrase.

[00:13:09] Speaker 01:
change the result isn't?

[00:13:12] Speaker 04:
I mean this court has not addressed that question as to what standard applies to the materiality inquiry.

[00:13:19] Speaker 04:
The government's argument is that the board did not err in applying the would likely change standard in this case to the new previously unavailable material evidence ground.

[00:13:29] Speaker 04:
The sentence that my colleague references as indicating the board was looking at prima facie eligibility is this sentence where the board

[00:13:42] Speaker 04:
regarding the natural disaster in Tonga, he has not indicated how the natural disaster would qualify for him for any form of relief or protection from removal, nor has he proffered any evidence other than his own statement in support of his contention.

[00:13:57] Speaker 04:
I think the operative word in that sentence that really tells us what the board was looking at is that how.

[00:14:02] Speaker 04:
The board wasn't saying he didn't show eligibility or that this evidence was sufficient for prima facie eligibility.

[00:14:11] Speaker 04:
The board was saying he hasn't explained why or how this evidence that he's talking about, this natural disaster, is relevant to his application for protection under the Convention Against Torture.

[00:14:23] Speaker 04:
And in the prior sentences in that paragraph, the board is addressing, the board is emphasizing that it's what Petitioner is presenting at this point is really duplicative of the kinds of things he said before.

[00:14:44] Speaker 04:
under the Convention Against Torture.

[00:14:46] Speaker 04:
It emphasizes that the Board had previously addressed these arguments and he's not making any specific arguments that the Board aired when it was previously addressing these arguments.

[00:14:57] Speaker 01:
So suppose that we were to conclude that the would likely change sentence

[00:15:25] Speaker 04:
what it was doing was prima facie eligibility and materiality and the government's argument would be that even if the board applied the wrong standard which we maintain that it did not this would be harmless error because under any well first of all the court need not address that issue because petitioner has not argued that the standard applying to the material

[00:15:55] Speaker 04:
unavailable evidence is anything different than would likely change until their reply brief.

[00:16:03] Speaker 04:
They didn't advance any argument with respect to what standard was correct in the answering brief.

[00:16:07] Speaker 04:
They just said that the court didn't need to address the issue.

[00:16:11] Speaker 00:
But if I can ask just like variations of that question, what if it's that we're not sure what the BIA was saying?

[00:16:17] Speaker 00:
Maybe it was a materiality, maybe it was a problem

[00:16:25] Speaker 04:
I think here, again, it would be a harmless error because under any standard, what petitioner has shown would not show materiality.

[00:16:33] Speaker 04:
That is a separate and independent basis that they have, you have to show in order for a motion to reopen to be granted.

[00:16:39] Speaker 04:
This court's case law addressing materiality in cases like Najmabadi, Hoyeniran, Malte, all of those cases discuss materiality in the context of showing that there is a qualitative difference in the

[00:16:57] Speaker 04:
applicant submitted something that showed individualized relevancy under no standard.

[00:17:03] Speaker 04:
Has petitioner here introduced anything that would show that this particular natural disaster had not individualized relevancy to his application for protection into the Convention Against Torture?

[00:17:17] Speaker 04:
And unless the court has further questions on this issue with my remaining time, I would just note

[00:17:36] Speaker 04:
and does not discredit the evidence in ways like was done in the cases cited by petitioner.

[00:17:44] Speaker 04:
And so for the reasons submitted in our briefing and the reasons discussed here, we would ask that the court deny the petition for review.

[00:17:54] Speaker 01:
Thank you, counsel.

[00:18:27] Speaker 02:
seem to be very overlapping, it would make sense that the same standard be applied to both the reasonable likelihood standard, or in any case certainly a lower standard than the Wood Likely Change standard that was applied here.

[00:18:42] Speaker 02:
And this is consistent with the principles of Fonseca Fonseca, which distinguishes between denials on the discretionary ground, which again are certainly not an issue here.

[00:18:57] Speaker 02:
much like materiality.

[00:18:59] Speaker 02:
And even if we're not certain which ground was at issue here, what we do know is that the standard that was applied was the would-likely-change standard, and it was certainly the incorrect standards have applied, so remand is appropriate.

[00:19:18] Speaker 01:
Thank you.

[00:19:19] Speaker 01:
So Ms.

[00:19:19] Speaker 01:
Moreno, you were appointed by the court to represent Mr. Funahua.