[00:00:00] Speaker 00:
Good morning.

[00:00:02] Speaker 00:
May it please the court, Shalani Malin on behalf of petitioners Eduardo Felipe Funes Alvarado and his minor son, Angel Eduardo Funes León.

[00:00:12] Speaker 00:
I'd like to reserve two minutes for rebuttal.

[00:00:15] Speaker 02:
Very well.

[00:00:17] Speaker 00:
The legal errors made by the agency in evaluating my client's eligibility for immigration relief are straightforward.

[00:00:24] Speaker 00:
And the facts here are undisputed.

[00:00:26] Speaker 00:
When Mr. Funes went to the police

[00:00:29] Speaker 00:
to report the beatings and death threats he faced for members of MS-13, the police told him the best thing for him to do would be to leave the country and disappear because MS-13 had a way of quickly finding this out.

[00:00:43] Speaker 00:
This key piece of testimony, which the IJ found credible, directly undermines the conclusion that the IJ reached.

[00:00:52] Speaker 00:
And yet, the agency failed to consider this testimony whatsoever.

[00:00:57] Speaker 00:
The agency likewise failed to consider

[00:00:59] Speaker 00:
corroborating country conditions evidence that shows the Honduran government is powerless to protect its residents from MS-13.

[00:01:07] Speaker 00:
Case after case in the Ninth Circuit holds that the failure to consider highly probative evidence like this is legal error that, at a minimum, requires remand on Mr. Funez's asylum, withholding, and cat claims.

[00:01:22] Speaker 01:
Council, was that argument raised to the BIA?

[00:01:25] Speaker 01:
The argument that they ignored that evidence, that the IJ ignored that evidence.

[00:01:29] Speaker 00:
Yes, Your Honor, it was raised to the BIA.

[00:01:33] Speaker 00:
In his administrative appeal, Mr. Funes mentions this exact exchange with the police officers.

[00:01:39] Speaker 00:
That's at AR 26.

[00:01:42] Speaker 00:
And he also challenged the IJ's determination on the unable, unwilling prong, which is what we're discussing here as well.

[00:01:51] Speaker 01:
But you're making the argument that he failed to consider the evidence.

[00:01:55] Speaker 01:
The IJ failed to consider the evidence, right?

[00:01:56] Speaker 01:
But was that raised to the BIA, that specific argument?

[00:02:03] Speaker 00:
I would like to note that the exhaustion standard in the Ninth Circuit is not that formalistic.

[00:02:08] Speaker 00:
They don't need to raise the precise issue.

[00:02:11] Speaker 00:
And here, Mr. Funes did raise this exact exchange with the police officer, and he did challenge the Unable Unwilling Prong.

[00:02:23] Speaker 01:
But you're suggesting it was almost a legal error, correct, by ignoring the evidence, right?

[00:02:30] Speaker 01:
Don't you claim it as a legal error?

[00:02:32] Speaker 01:
Correct.

[00:02:32] Speaker 01:
But the way I see the brief to the BIA, it was almost a substantial evidence error, an evidentiary error, not a legal error.

[00:02:41] Speaker 00:
I think it was both, Your Honor.

[00:02:44] Speaker 01:
OK, can you show us where you think that was raised as a legal matter?

[00:02:49] Speaker 00:
Yes, the exact exchange is raised on AR 26.

[00:02:58] Speaker 00:
And it says the police advised him to leave the country telling him that it would probably be better to leave the country because he had made the report.

[00:03:12] Speaker 00:
And then if you turn to

[00:03:20] Speaker 00:
the section about, I think it's section three, independent grounds to affirm the IJ's decision.

[00:03:30] Speaker 00:
He raises the governmental involvement.

[00:03:33] Speaker 00:
That's an AR-40.

[00:03:34] Speaker 00:
And the argument that he raised is the IJ seems to have adopted

[00:03:49] Speaker 00:
per se, rule that because he filed a police report, that that means the government was able and willing.

[00:03:55] Speaker 00:
But Ninth Circuit law tells us that that's not true.

[00:03:59] Speaker 00:
You have to go beyond that.

[00:04:02] Speaker 00:
Antonio V. Garland says that even if an individual is able to file a police report, that does not end the inquiry.

[00:04:12] Speaker 00:
And JRV Barr tells us that some official responsiveness is not enough.

[00:04:19] Speaker 00:
that the agency must examine the response to the police report.

[00:04:25] Speaker 00:
And here, both parties agree that the police's response was to leave the country, to disappear, and MS-13 has a way of quickly finding this out.

[00:04:35] Speaker 01:
But didn't he leave the country like two days afterwards?

[00:04:37] Speaker 01:
So how does he know what happened?

[00:04:40] Speaker 00:
He did leave the country two days after.

[00:04:42] Speaker 00:
I think it's important to note that he was just heeding the police's warning.

[00:04:48] Speaker 00:
is no requirement for a petitioner to stick around and see if these death threats come true.

[00:04:55] Speaker 00:
He was caring for his minor son at the time.

[00:04:58] Speaker 00:
JRV Barr holds that this court's law does not require applicants to wait until gang members carry out their deadly threats before they are eligible for asylum.

[00:05:10] Speaker 00:
And I would also like to point out in Antonio V. Garland, the petitioner left

[00:05:16] Speaker 00:
the country five days after making his report, and the court still remanded for the agency to consider all of the evidence on the government-unable, unwilling prong.

[00:05:26] Speaker 00:
And that's exactly what we're asking for here as well.

[00:05:32] Speaker 01:
Do you think there was evidence that the IJ actually did consider the evidence?

[00:05:34] Speaker 01:
Because he said, when he said that statement about police telling him to leave, he said, oh, I understand that, but is there anything else?

[00:05:44] Speaker 01:
So the IJ did consider that evidence.

[00:05:47] Speaker 00:
No, Your Honor, we don't think the IJ did consider that evidence.

[00:05:51] Speaker 00:
The IJ did ask a question about it at the hearing, and Mr. Funes was pro se, so the IJ was kind of just doing his job asking questions about his claim.

[00:06:07] Speaker 00:
Him asking a question about it at the hearing does not show that he considered it in evaluating Mr. Funes' eligibility for relief.

[00:06:16] Speaker 03:
Didn't the IJ explicitly acknowledge that the police had advised the petitioner to leave the country?

[00:06:24] Speaker 03:
And is that not enough?

[00:06:27] Speaker 00:
Yes, Your Honor, we do not think that's enough.

[00:06:30] Speaker 00:
There was a passing mention of this testimony in the background section of the IJ's decision, but he did not mention the testimony at all in actually evaluating the claim for relief.

[00:06:46] Speaker 00:
And the BIA does not mention this testimony at all either.

[00:06:50] Speaker 00:
In Diaz v Bondi, the court held that when the IJ makes one passing reference to relevant evidence and the BIA doesn't mention it at all, that is legal error and it requires remand.

[00:07:04] Speaker 00:
And that's exactly the situation that we have here.

[00:07:14] Speaker 00:
And although Mr. Funes was able to file a police report, as I mentioned earlier, that does not end the inquiry.

[00:07:22] Speaker 00:
This type of official responsiveness does not automatically equate to government ability and willingness.

[00:07:32] Speaker 00:
In Afri v. Holder, the Ninth Circuit held that the police's response provides highly relevant evidence on the unable, unwilling prong, and further held that the BIA committed error in focusing exclusively

[00:07:44] Speaker 00:
on the fact that the petitioner was able to make a report.

[00:07:47] Speaker 03:
I'm wondering if you could talk a little bit about the country report issues.

[00:07:51] Speaker 03:
Absolutely.

[00:07:51] Speaker 03:
And I'm particularly curious in hearing more about your argument that the immigration judge erred in deciding what to focus on in the country report.

[00:08:07] Speaker 00:
Yes.

[00:08:09] Speaker 00:
As you note, we argue that the

[00:08:12] Speaker 00:
agency failed to consider the country conditions report.

[00:08:18] Speaker 00:
The IJ doesn't mention the report at all in evaluating Mr. Funez's eligibility for asylum.

[00:08:25] Speaker 00:
There's a brief mention in evaluating his eligibility for cat protection.

[00:08:31] Speaker 00:
But even if you look at that portion of his decision, he cites the report

[00:08:42] Speaker 00:
saying C, generally, he doesn't mention any of the evidence that's in the report, including evidence that directly undermines the conclusion that he reached.

[00:08:54] Speaker 00:
And specifically in this country conditions report, there's evidence that MS-13, which is the gang that was persecuting Mr. Funes Alvarado, committed killings and intimidation of police, which is the exact issue that

[00:09:11] Speaker 00:
We're talking about where he went to the police and police told him, MS-13 is going to find out about this report.

[00:09:16] Speaker 00:
You better leave the country, disappear.

[00:09:19] Speaker 00:
And again, the IJ fails to consider any of this evidence from within the report.

[00:09:27] Speaker 00:
And that kind of selective reading of the record just is legal error and requires remand.

[00:09:37] Speaker 00:
Turning to Mr. Funez's cat claim,

[00:09:42] Speaker 00:
The IJ, again, failed to consider the statement to the police, which is, or is the statement that the police made to him, which is leave the country, disappear, MS-13 has a way of quickly finding this out, and failed to consider the country conditions evidence.

[00:09:58] Speaker 00:
And for those reasons, the cat claim also needs to be remanded.

[00:10:12] Speaker 00:
And if there are no further questions, I'd like to reserve the remaining of my time for rebuttal.

[00:10:17] Speaker 02:
You got it.

[00:10:18] Speaker 02:
We'll round to five, Bonnie.

[00:10:20] Speaker 02:
We'll go five minutes.

[00:11:02] Speaker 04:
Good morning, Your Honors.

[00:11:03] Speaker 04:
May it please the court?

[00:11:05] Speaker 04:
Nancy Pham on behalf of the Attorney General.

[00:11:09] Speaker 04:
Your Honors, the court should deny this petition for review because the record does not compel the conclusion that the Honduran government was or would be unable or unwilling to control the private actors that petitioners fear.

[00:11:25] Speaker 04:
To start, I would just like to note that

[00:11:28] Speaker 04:
The precise testimony of petitioner during the hearing before the immigration judge at AR 194 to 195 is the guy that was filling out the paperwork told him, the best thing for you

[00:11:45] Speaker 04:
would just be to leave the country.

[00:11:47] Speaker 04:
And the other part of that is that the statement that the petitioner disappeared because they have a way of quickly finding things out.

[00:11:59] Speaker 04:
So what petitioner said in his own words was they.

[00:12:01] Speaker 04:
There's no mention of MS-13 specifically in the statement.

[00:12:05] Speaker 04:
So just to clarify that point.

[00:12:08] Speaker 04:
And framing a review is the substantial evidence standard.

[00:12:13] Speaker 04:
His testimony, the facts in his testimony, those are all factual findings that the agency made.

[00:12:20] Speaker 04:
And the standard of review, substantial evidence, means that the only question before you is whether any reasonable adjudicator could have found as the agency did.

[00:12:32] Speaker 04:
So in other words, whether the agency's finding qualifies as one

[00:12:36] Speaker 04:
of potentially many reasonable possibilities.

[00:12:40] Speaker 04:
And put just another way, Your Honors, every other reasonable fact finder had to decide the opposite way as the agency.

[00:12:48] Speaker 04:
And so that's the standard.

[00:12:49] Speaker 04:
It's highly deferential.

[00:12:50] Speaker 04:
I know Your Honors are familiar with it.

[00:12:53] Speaker 01:
Well, it does seem like a pretty bad fact that the police told him that he should leave, right?

[00:13:00] Speaker 01:
I mean, why is there not some evidence that they are unwilling to protect him?

[00:13:07] Speaker 04:
That is not the greatest fact, but it is the police acknowledging, they're not ignoring that there are issues, you know, in the country.

[00:13:17] Speaker 04:
But from petitioner's own testimony, what he said was that the police took the report and that they were willing to investigate.

[00:13:25] Speaker 04:
You know, in cross-examination from the DHS attorney, they asked again, you know, essentially why would you make the report if you didn't think that they would be helpful?

[00:13:35] Speaker 04:
And he testified that,

[00:13:38] Speaker 04:
he went to him because he thought that they could help, and that they communicated to him a willingness to help.

[00:13:43] Speaker 01:
Right, if you thought that they could help, but then they said you should just leave, it's better for you to disappear.

[00:13:48] Speaker 01:
That's not really much help, is it?

[00:13:55] Speaker 04:
It's acknowledging that there are issues, so the government would argue that that is more realistic than just ignoring the problems that exist.

[00:14:06] Speaker 04:
But again, the police communicated, they took the report and they communicated that they would investigate it.

[00:14:13] Speaker 04:
and petitioner concedes that they were willing to help him.

[00:14:17] Speaker 03:
And does one, a remark by one police employee, is that remark imputed to the entire country's law enforcement system?

[00:14:30] Speaker 04:
Yes, Your Honor.

[00:14:31] Speaker 03:
Do you understand, how would the IJ approach that?

[00:14:35] Speaker 04:
Right, and that's a factual finding, and that's a determination that the agency is best fit to make, and that determination, you know, is reviewed under the substantial evidence standard.

[00:14:46] Speaker 03:
So the fact that... So then, my apologies for interrupting you, but could the...

[00:14:53] Speaker 03:
immigration judge have made that finding implicit in the order below?

[00:15:00] Speaker 03:
Does he have to set forth every single credibility finding?

[00:15:05] Speaker 03:
Or under the substantial evidence standard, can we just deny the petition on this issue, given what's in the record?

[00:15:22] Speaker 04:
The government's position is that under the substantial evidence standard, this evidence in the record does not compel the opposite conclusion.

[00:15:31] Speaker 04:
So facts such as, you know, whether one employee at the police department or police office's response means that the entire government is unable and unwilling, that's a determination that the agency makes.

[00:15:48] Speaker 04:
And government, the government would argue that under the substantial evidence standard, that is, the evidence doesn't compel the opposite conclusion.

[00:16:00] Speaker 01:
But counsel, isn't there a responsibility of the IJ to consider all the material evidence, significant material evidence?

[00:16:07] Speaker 04:
Yes, your honor.

[00:16:08] Speaker 01:
And wouldn't you agree that that statement, the police, for him to leave is a significant material piece of evidence?

[00:16:16] Speaker 04:
Yes, Your Honor.

[00:16:16] Speaker 04:
It is a material piece of evidence.

[00:16:19] Speaker 04:
An immigration judge explicitly mentions it in the record at AR 91.

[00:16:23] Speaker 04:
I believe, Your Honor, referenced it earlier that the police advised him to leave the country.

[00:16:28] Speaker 01:
But he didn't include that in the analysis of whether, you know, the unwilling prong.

[00:16:32] Speaker 01:
That's the problem I have with it.

[00:16:35] Speaker 04:
Yes, Your Honor.

[00:16:37] Speaker 04:
The court, the immigration judge explicitly mentioned it in the factual background at AR91.

[00:16:43] Speaker 04:
There's no requirement under this circuit's precedent.

[00:16:47] Speaker 04:
that the judge repeated in all the pieces of his later analysis under the different prongs.

[00:16:54] Speaker 04:
The fact that the immigration judge explicitly mentioned it tells your honors that the immigration judge considered it.

[00:17:02] Speaker 04:
Specifically, Lopez v. Ashcroft, the agency is not required to write an exegesis on every contention.

[00:17:10] Speaker 04:
But what the immigration judge has told you and told us is that,

[00:17:15] Speaker 04:
He considered that piece of information because it's specifically written in his opinion.

[00:17:20] Speaker 01:
The problem, though, his analysis is somewhat misleading, right?

[00:17:24] Speaker 01:
He says, to the contrary, the lead respondent testified the local police took his report and told him the matter would be investigated.

[00:17:30] Speaker 01:
Lead respondent then left Honduras and has not inquired about the status of the investigation.

[00:17:34] Speaker 01:
Seems like a material omission to not mention that the police told him to leave.

[00:17:41] Speaker 04:
Your honor the government's position is that the immigration did consider it as the immigration judge explicitly mentioned it at ar-91 And just making the point that the exhaustion point the government Doesn't weigh that point your honors essentially

[00:18:05] Speaker 04:
In the brief before the board, there's no mention that petitioner, that the agency, excuse me, that the agency did not consider the statements that the police told petitioner to leave the country.

[00:18:20] Speaker 04:
While exhaustion isn't applied formulaically or formalistically under this circuit, Gonzalez Castillo, V. Garland, states that,

[00:18:30] Speaker 04:
An applicant for immigration relief need not use precise language or terminology or provide a well-developed argument to support his claim, but he must put the issue before the board such that it had the opportunity to correct the error.

[00:18:46] Speaker 04:
And specifically in that case it was a pro se petitioner And the court further went on to reason that the court construes filing submitted by a pro se applicant liberally But even in this context general contentions are only sufficient where they put the board on notice of the contested issues and the brief before the board

[00:19:09] Speaker 04:
Focuses on due process rights to attorney the immigration judge's questioning of petitioner and whether that was sufficient They made very specific arguments to raise legal issues before the board, but they did not specifically

[00:19:27] Speaker 04:
Discussed the issue of this testimony and whether the agency considered it So the government's position is that it is not exhausted And therefore the court should not consider the issue Another case on this point is al-bidarni v bondi and in that case

[00:19:52] Speaker 04:
The petitioner actually raised the general issue of translation before the board, but specifically didn't raise the issue with the interpreter who had assisted in his removal hearing.

[00:20:07] Speaker 04:
And there the court held that he had to specifically raise that issue.

[00:20:13] Speaker 04:
And that due process challenge was dismissed because there was a lack of jurisdiction.

[00:20:21] Speaker 04:
So the government's position is that that point is not exhausted.

[00:20:32] Speaker 04:
So the government would argue that under the unable or unwilling to control prong, the evidence we have in the record is that petitioner made only one report and that one report the police took

[00:20:47] Speaker 04:
and the police indicated that they would investigate it, and they indicated that they would help him.

[00:20:52] Speaker 04:
And those are his own words.

[00:20:54] Speaker 04:
That's the evidence we have in the record.

[00:20:57] Speaker 04:
The country conditions reports, well, and the agency recognized that it reflected widespread criminal violence.

[00:21:08] Speaker 04:
There are also indications of the government curtailing or correcting that violence.

[00:21:14] Speaker 04:
And just to frame the country conditions report, it's one report, 28 pages.

[00:21:18] Speaker 04:
It speaks in generalities, and MS-13 is only mentioned once.

[00:21:25] Speaker 04:
And that mention is gangs like MS-13.

[00:21:32] Speaker 04:
So it is not specific.

[00:21:35] Speaker 04:
It's not specific to Petitioner's village or town that he lived in.

[00:21:38] Speaker 04:
And the court's precedence on this point go the holder.

[00:21:45] Speaker 04:
explains that the board may give specific evidence greater weight than general information contained in a country report.

[00:21:53] Speaker 04:
So it was well within the board's discretion and the agency's discretion to give the specific weight petitioner's testimony that the police took the report and indicated a willingness to investigate to give that more weight than a country conditions report that had general information and just one mention of MS-13.

[00:22:18] Speaker 04:
And as to the cat issue, the government argues that the substantial evidence supports the agency's conclusion that petitioner failed to establish a likelihood of future torture by or with the acquiescence of the Honduran government.

[00:22:37] Speaker 04:
And the case law under this circuit is very clear that imperfect police work is not sufficient to meet this standard.

[00:22:49] Speaker 04:
In Macias Padillo v. Sessions, the petition was denied because one unsatisfactory experience with the police is not compelling evidence that the government would more likely than not acquiesce in future torture.

[00:23:05] Speaker 04:
And that is the situation we have here, one unsatisfactory remark from the police.

[00:23:11] Speaker 04:
But on the other hand, the police indicating that they would, that they took the report and that they were willing to investigate it.

[00:23:23] Speaker 04:
In addition, Pimentel Estrada v. Garland, that petition was denied because the record contained country conditions evidence that some police officials in Mexico are corrupt and work with cartels.

[00:23:39] Speaker 04:
But that did not compel the conclusion that it is more likely than not that he will be tortured.

[00:23:44] Speaker 04:
And that's what we have here, just general information of corruption.

[00:23:48] Speaker 04:
And that's not sufficient to compel the opposite conclusion.

[00:24:00] Speaker 04:
And the government would just like to address some of the cases that petitioner mentioned, for instance, JR, Diaz v. Bondi, and Antonio v. Garland.

[00:24:10] Speaker 04:
I will take them each in turn.

[00:24:12] Speaker 04:
But the overarching point here is that the analysis of the court is extremely factual.

[00:24:19] Speaker 04:
And that tells us that the standard for review is substantial evidence there.

[00:24:27] Speaker 04:
So in JR, and this is at respondents brief, pages 27 to 30, but in JR, one must look at all the factual underpinings in the case.

[00:24:42] Speaker 04:
In that case, gang members cut off two of JR's fingers.

[00:24:47] Speaker 04:
The gang members shot him seven times, causing the loss of one lung.

[00:24:52] Speaker 04:
They murdered his son at home.

[00:24:54] Speaker 04:
And then after reporting that murder and agreeing to cooperate with prosecutors, he received death threats, and the government withdrew protection after he testified.

[00:25:05] Speaker 04:
That's a very factual analysis, and that's what's underpinning that unable or unwilling, unable and unwilling finding in that case.

[00:25:17] Speaker 04:
In Diaz v. Bondi, the cartels murdered Petitioner's brother and his grandmother.

[00:25:24] Speaker 04:
The family then received death threats for several years.

[00:25:30] Speaker 04:
And then after Petitioner returned to Mexico, her partner was abducted, beaten, and tortured.

[00:25:39] Speaker 04:
And specifically, there was a home invasion in 2016.

[00:25:44] Speaker 04:
And what was driving the legal error in that case was that the board and the agency didn't find that the home invasion was tied to the prior violence and threats of the cartel.

[00:26:00] Speaker 04:
And so in that case, because they completely ignored that evidence, that was what was driving the legal error.

[00:26:06] Speaker 02:
All right.

[00:26:07] Speaker 02:
Thank you, counsel.

[00:26:08] Speaker 02:
Time's up.

[00:26:09] Speaker 02:
Appreciate it.

[00:26:58] Speaker 00:
I just want to address a few points that counsel for the government made.

[00:27:03] Speaker 00:
First, the government focuses on the substantial evidence standard, but this ignores the legal error that we're discussing.

[00:27:12] Speaker 00:
And even if this court does not hold that substantial evidence compels the conclusion on the government unable and willing prong, which we think it does, there's still the legal error that the government does not address at all.

[00:27:26] Speaker 00:
Not in their briefs, not in argument,

[00:27:28] Speaker 00:
And the legal error is the failure to mention all of the relevant evidence.

[00:27:35] Speaker 00:
And here, the government argues that the police took the report and said that they would investigate.

[00:27:44] Speaker 00:
But as your honors noted, the police in the very same breath said, leave the country, disappear.

[00:27:50] Speaker 00:
MS-13 is going to find out about the report.

[00:27:53] Speaker 00:
And so I think this,

[00:27:57] Speaker 00:
And the government agrees that this is a significant statement.

[00:28:01] Speaker 00:
This is key testimony in this case.

[00:28:03] Speaker 00:
And the IJ just does not consider it.

[00:28:08] Speaker 00:
There's that one passing mention which Diaz v. Bondi tells us that's not enough.

[00:28:13] Speaker 00:
Diaz v. Bondi also holds that it's legal error when the agency failed to give reasoned consideration to the evidence, which is exactly what we have here.

[00:28:23] Speaker 00:
They make that passing statement.

[00:28:26] Speaker 00:
But as your honors noted, when they actually are evaluating the claim, they say, he was able to make a report.

[00:28:34] Speaker 00:
The police said he would investigate.

[00:28:35] Speaker 00:
We hold that he can't meet the government-unable unwilling prong.

[00:28:39] Speaker 01:
I do think you have a strong argument there.

[00:28:41] Speaker 01:
But if you brought that to the BIA, I have a hard time seeing how the BIA would have been a notice that that's the legal error you're claiming.

[00:28:52] Speaker 01:
Because the argument, I think, in the brief is only under Aguiman, right, that he failed to elicit enough information, right?

[00:29:00] Speaker 01:
That's not the same thing as saying the IJA did not consider significant material information.

[00:29:07] Speaker 00:
Yes.

[00:29:08] Speaker 00:
And to that point, and the government's point, we think that this issue was raised.

[00:29:16] Speaker 00:
The exact testimony was in front of the BIA.

[00:29:22] Speaker 01:
It was the BIA's legal... The problem is it was a different legal error that was raised, right?

[00:29:27] Speaker 01:
Wasn't the error raised for the BIA that the IJ failed to elicit enough information?

[00:29:34] Speaker 00:
I think that was part of it.

[00:29:39] Speaker 00:
But as the BIA in evaluating this prong made the same mistake as the IJ and held that

[00:29:52] Speaker 00:
Because the petitioner, Mr. Funes, was able to make a police report, that he was not able to meet the government-unable unwilling prong.

[00:30:04] Speaker 00:
But that's not the law in the Ninth Circuit.

[00:30:06] Speaker 00:
We have to look beyond that to the police's response to the report.

[00:30:10] Speaker 01:
And... No, but I agree with that.

[00:30:12] Speaker 01:
But how was the BIA on notice that that's the error you were complaining about?

[00:30:19] Speaker 00:
I think...

[00:30:20] Speaker 00:
As I said, the testimony was in front of them, and they relied on the police report being pending as evidence that the government was able and willing to protect Mr. Funes.

[00:30:35] Speaker 00:
But that's not enough, especially given the fact that the BIA did reach this prong.

[00:30:40] Speaker 00:
They did not reach many of the other portions of his asylum claim.

[00:30:44] Speaker 00:
They upheld it on the government-unable, unwilling prong.

[00:30:50] Speaker 00:
I think I raised this earlier, but a petitioner is not required to raise an issue in precise form during the administrative proceeding.

[00:30:58] Speaker 00:
And general contentions are enough.

[00:31:00] Speaker 00:
Here, when he raised the unable, unwilling prong to the BIA, that was enough to put them on notice that there was a legal error in making this determination.

[00:31:19] Speaker 00:
Council for the government also talks about some of the cases and the harm that the petitioners face there I just want to note that the harm that the petitioners face has no bearing on the government unable unwilling prong and those cases are relevant for the proposition that the that The police taking a report is not enough and that official responsiveness is not enough we have to look beyond that to the police's response and

[00:31:49] Speaker 00:
This was also not one bad experience with the police where they couldn't find the assailants the police told him leave the country Disappear ms-13 is going to find out about the report if there are no further questions Nothing further so first.

[00:32:05] Speaker 02:
I want to thank counsel the work from mrs. Akili did I get that right?

[00:32:09] Speaker 02:
Thank you for stepping in and counsel do you have special guests in the courtroom today?

[00:32:12] Speaker 00:
I do not

[00:32:14] Speaker 02:
No, no, no, just you.

[00:32:16] Speaker 02:
Okay.

[00:32:17] Speaker 02:
Okay, got it.

[00:32:18] Speaker 02:
I thought there may have been some family members in the courtroom today.

[00:32:20] Speaker 02:
Anyway.

[00:32:21] Speaker 02:
Although you are, there we go.

[00:32:25] Speaker 02:
I can't see over the banner.

[00:32:26] Speaker 02:
Well, thank you again for everything you do in this case.

[00:32:28] Speaker 02:
I want to thank government counsel for making the trip in light of everything that's going on.

[00:32:32] Speaker 02:
We'll take this matter of submission and this particular panel is done for the day.

[00:32:36] Speaker 02:
I want to thank Judge LaBerti, even though it was a short time today.

[00:32:38] Speaker 02:
Thank you for taking time out of your busy schedule.

[00:32:40] Speaker 02:
You've got a trial coming up.

[00:32:41] Speaker 02:
I do, next week.

[00:32:42] Speaker 02:
So thank you for taking the time.

[00:32:44] Speaker 02:
Thank you.

[00:32:44] Speaker 02:
Thank you, your honor.

[00:32:45] Speaker 02:
So I'm blessed to see you tomorrow.