[00:00:03] Speaker 03: Okay, pleased to be here. [00:00:06] Speaker 03: Thank you, Your Honors, for this privilege, actually, to talk to you about this important case. [00:00:14] Speaker 03: If I may, I'm going to start with a short paragraph written by none other than the DHS. [00:00:23] Speaker 03: The DHS, by and through undersigned attorneys, responds to the respondent's multiple concurrent filing motions to reopen. [00:00:34] Speaker 03: DHS, out of abundance of caution, has no objection to the cases of Miss Aditha, her child Angelina, being remanded so that Miss Aditha may present an asylum claim, but does not agree nor stipulate that ineffective assistance counsel have occurred. [00:00:55] Speaker 02: So you want to go directly to the motion to reopen here? [00:00:58] Speaker 03: Yes, Your Honor. [00:00:59] Speaker 02: So if we're going to look at the motion to reopen, [00:01:04] Speaker 02: Isn't my standard in that situation abuse of discretion? [00:01:10] Speaker 03: Yes, Your Honor, and arbitrary. [00:01:12] Speaker 02: And what case says that if the government doesn't object, the BIA must grant the motion? [00:01:23] Speaker 02: That's what you're going to argue. [00:01:25] Speaker 02: You're saying the government didn't object, so the BIA should have granted the motion. [00:01:32] Speaker 02: But I look for a case to help you. [00:01:34] Speaker 02: And I couldn't find one. [00:01:36] Speaker 03: The BIA case of matter of, I'm trying to say the name, Jan Swanson sets this precedent for its own ruling. [00:01:46] Speaker 02: But what that case doesn't say is the BIA is stuck when the government does that. [00:01:54] Speaker 02: In fact, the BIA has given discretion in that particular case, even with that particular case. [00:02:03] Speaker 02: the so i'm trying to find the case and i couldn't find it so then not having founded i guess i'm trying to figure out [00:02:15] Speaker 02: what your argument really is. [00:02:16] Speaker 02: Maybe we just need to go the true argument here about motion to reopen and whether you've got a case to make. [00:02:25] Speaker 03: Very enough. [00:02:26] Speaker 03: So may I then jump to the ineffective assistant of council, the Losada. [00:02:31] Speaker 03: We met all the requirements of Losada. [00:02:34] Speaker 02: Well, I'm not sure you've met them all. [00:02:37] Speaker 02: Well, may I walk through them? [00:02:39] Speaker 03: Sure, you can go through them. [00:02:41] Speaker 03: So, Lazada says you have to prevail on that. [00:02:46] Speaker 03: Respondent, Ms. [00:02:47] Speaker 03: Adifa, has to write a declaration setting forth her relationship with her prior attorney, which she did. [00:02:54] Speaker 03: She has to give notice to the attorney, which she did. [00:02:58] Speaker 03: And she has to file a complaint with the bar, which she did. [00:03:02] Speaker 02: But the notice letter to the attorney was dated 1-18-24. [00:03:09] Speaker 02: And your motion was filed 122-24, which really didn't give the attorney any chance to respond. [00:03:15] Speaker 02: Judge Smith, I appreciate that question. [00:03:18] Speaker 02: Well, it's a question because the BIA focused on it. [00:03:23] Speaker 03: October 30, the BIA decided to deny Mr. Aditha's motion, right? [00:03:29] Speaker 03: October 30. [00:03:30] Speaker 02: Yeah. [00:03:30] Speaker 03: By the time they found me was around November 20th. [00:03:34] Speaker 03: They already went to their attorneys, lost faith, said, OK, we better check another attorney. [00:03:39] Speaker 03: 20th, November 20th. [00:03:41] Speaker 03: CAR, I filed my petition, obviously, within 30 days. [00:03:44] Speaker 03: We had a few days left. [00:03:47] Speaker 03: CAR arrives in my office on December 19. [00:03:51] Speaker 03: How else would I know? [00:03:52] Speaker 03: FOIA was filed, nothing on my desk. [00:03:55] Speaker 03: CAR arrives on December 19. [00:03:59] Speaker 03: Holidays, Christmas, vacation. [00:04:01] Speaker 03: By the time I met with them was January 3. [00:04:05] Speaker 03: The petition to reopen is due by January 28th. [00:04:10] Speaker 03: I had 20 days to file two motions to reopen for him and her. [00:04:14] Speaker 03: There is no rule that says I have to give her enough time. [00:04:19] Speaker 03: I would love to have given her enough time, but you've got to understand how on the ground it works. [00:04:24] Speaker 02: OK, let's overlook that a little bit. [00:04:28] Speaker 02: One in the record says that Rodriguez has an independent claim. [00:04:35] Speaker 02: I look through the record for an independent claim. [00:04:38] Speaker 02: The only record that I have is that her claims are the same as her husband's. [00:04:43] Speaker 03: Perfect. [00:04:44] Speaker 03: Thank you, Judge Smith. [00:04:46] Speaker 03: Well, I'm hitting right on the issue. [00:04:48] Speaker 03: She has no claim. [00:04:49] Speaker 03: She's not even married to him. [00:04:51] Speaker 03: There is nothing for her. [00:04:53] Speaker 03: So the lawyer completely screwed up. [00:04:56] Speaker 03: That is, she's not married to her husband. [00:04:59] Speaker 03: So she had nothing. [00:05:02] Speaker 03: The former lawyer showed up with nothing to the court. [00:05:06] Speaker 03: They got to order her deported, death penalty to Honduras with nothing, not a day in court. [00:05:11] Speaker 03: She's never been heard. [00:05:13] Speaker 03: So because she was not married, she had nothing. [00:05:16] Speaker 03: Does that answer your question? [00:05:17] Speaker 02: Well, really not, because I looked through the record to find out what would be the substance of her independent claim, if she had any, and I could not find any. [00:05:28] Speaker 03: Well, let me, if I may. [00:05:32] Speaker 03: Can you take the child out, please? [00:05:37] Speaker 03: If I... Just answer my question. [00:05:40] Speaker 03: Let me tell you this. [00:05:41] Speaker 03: She has her own claim because she was a victim. [00:05:48] Speaker 03: It is in this record because I made it in this record. [00:05:50] Speaker 03: It's part of my motion to reopen your honor for Aditha with the BIA. [00:05:55] Speaker 03: She's a victim of domestic violence, three, four times beating a week by a stepfather. [00:06:02] Speaker 03: that made her mom strip naked and be beaten in front of the kids. [00:06:05] Speaker 03: Domestic violence is the ground for persecution, number one. [00:06:08] Speaker 03: Number two, her stepfather killed a MARA 18 member. [00:06:15] Speaker 03: They were pursuing them. [00:06:17] Speaker 03: MARA 18 came actually, and obviously I could get to that, what happened. [00:06:22] Speaker 03: So she had her own dependent claim. [00:06:24] Speaker 03: It was never asked. [00:06:26] Speaker 03: Former counsel never asked her. [00:06:29] Speaker 03: That's all she had to do. [00:06:30] Speaker 01: Mr. Ballou, I guess if I could come to the question of the deadline on the motion to reopen, you did file it within 90 days. [00:06:40] Speaker 01: And yet, as to the core claims, you asserted only a changed country conditions claim, even though you're entitled to, within 90 days, to reopen it generally. [00:06:54] Speaker 01: I'm looking at the last page of your brief. [00:06:58] Speaker 01: Do you understand that you're only, what was the basis of your motion to reopen? [00:07:03] Speaker 01: We see it, but it's kind of hard to parse here. [00:07:07] Speaker 01: It's not subject to a filing deadline, though you met the 90-day filing deadline, and the board should treat this motion as timely filed pursuant to the statute, even though you did so. [00:07:18] Speaker 01: So is your motion to reopen with respect to the core claims simply based on the changed country conditions that you allege? [00:07:27] Speaker 03: Judge Johnston, we have two motions to reopen. [00:07:30] Speaker 01: I don't want to focus on the IAC one. [00:07:33] Speaker 01: I'm more concerned with the asylum. [00:07:36] Speaker 03: So your question is, did we have 90 days to file a motion to reopen? [00:07:41] Speaker 03: Yes, we met that deadline and we introduced new evidence that was never [00:07:45] Speaker 03: discovered before because- Right, right. [00:07:48] Speaker 01: I'm talking about the procedure here now. [00:07:52] Speaker 01: The new evidence you frame only within the deadline-free standard for changed country conditions. [00:08:02] Speaker 01: I just want to clarify, that is the basis of your claim, so in order to reopen on that motion, [00:08:10] Speaker 01: As we should understand it, your sole argument there is that it is based on changed country conditions under 240C7 of the INA. [00:08:19] Speaker 03: That's one, and they did get married. [00:08:23] Speaker 03: So he has, he's a derivative to his wife's now asylum claim and his wife has her own fear. [00:08:30] Speaker 03: Mara. [00:08:30] Speaker 01: Okay. [00:08:31] Speaker 01: But, but that would not, you understand that that generally would not qualify as a changed country conditions claim. [00:08:37] Speaker 01: Um, it doesn't appear you gave the board an opportunity to address that claim, at least in this reopening motion I'm seeing. [00:08:44] Speaker 03: We did submit Bedeeth as his wife's declaration. [00:08:48] Speaker 01: But where did you exhaust the legal claim that you were reopening under the general reopening deadline as opposed to the time-barred reopening that relies only on changed country conditions outside of your client's control? [00:09:05] Speaker 03: Oh, got it. [00:09:05] Speaker 03: Got it. [00:09:05] Speaker 03: OK, thank you. [00:09:08] Speaker 03: to file a motion based on change country condition, Your Honor. [00:09:12] Speaker 03: Yes, we're not time barred. [00:09:14] Speaker 03: However, you have to file within a reasonable time. [00:09:19] Speaker 01: But you filed within the deadline. [00:09:20] Speaker 01: You were entitled to all the benefit. [00:09:22] Speaker 01: You could have reopened with any evidence. [00:09:24] Speaker 01: But that's not what you presented to the board, right? [00:09:28] Speaker 03: I presented to the board the fact that the same people who [00:09:35] Speaker 03: committed the murder at the car wash, came back about 90 days after the IJ decided the case. [00:09:47] Speaker 03: The IJ decided the case on April, 2022. [00:09:50] Speaker 03: They came back and killed the uncle. [00:09:54] Speaker 01: I understand that. [00:09:54] Speaker 01: I'm just trying to understand the procedural posture of it. [00:09:56] Speaker 01: And it sounds like we're agreed that you were bringing it only under the 240C7 for changed circumstances. [00:10:03] Speaker 03: Yes, and obviously the change, yes, and he's a derivative now on top of that. [00:10:09] Speaker 02: Do you want to address the regular claim rather than the motion to reopen? [00:10:17] Speaker 02: Sure. [00:10:18] Speaker 02: I know you went directly the motion to reopen, but you've got some more time here. [00:10:23] Speaker 02: Let's talk about your past treatment claim. [00:10:28] Speaker 02: In order to get to past persecution, you've got to have treatment which rises to the level of persecution on one of the protected grounds and then committed by the government or forces the government cannot control. [00:10:44] Speaker 02: And it seems to me that before us, you're arguing about the treatment and about the persecution committed [00:10:54] Speaker 02: by the government or forces the government cannot control. [00:10:58] Speaker 02: That past persecution raising to the level of persecution, if I look at the past treatment claim, again, I have to give a lot of discretion, don't I, to the BIA and their decision in that decision-making process? [00:11:19] Speaker 03: You have to show that, yes, they have [00:11:22] Speaker 02: They have to show that they had substantial evidence to sustain what they did. [00:11:28] Speaker 02: Yes. [00:11:29] Speaker 02: Okay, so I have here that they're on October 20. [00:11:33] Speaker 02: He was threatened by Christian if he said anything to the police. [00:11:38] Speaker 02: Shortly thereafter, he sent a letter to Garcia while he was gone. [00:11:43] Speaker 02: He sent it to the siblings of Rodriguez at that time. [00:11:49] Speaker 02: And then in June 2021, he pulled a gun and threatened to kill him if he spoke to the police. [00:12:00] Speaker 02: The BIA says, well, this is bad. [00:12:10] Speaker 02: There's no question, but he was never harmed. [00:12:14] Speaker 02: The threats were vague, not menacing, didn't suffer any harm. [00:12:22] Speaker 02: They were over an eighth month period. [00:12:25] Speaker 02: He was gone during some of that time and there was no follow-through and so therefore not enough for past persecution Now given my standard of review, which is extremely deferential Don't I have to uphold this decision? [00:12:44] Speaker 03: well [00:12:45] Speaker 02: no you don't your honor because where where do we go that this evidence has no way to [00:12:55] Speaker 02: to support their decision on past treatment. [00:12:59] Speaker 02: I mean, if I throw in the extra evidence you added on the motion to reopen, that would be a different story. [00:13:06] Speaker 02: But we're back in the first petition. [00:13:10] Speaker 02: And now I'm trying to decide what to do here. [00:13:13] Speaker 02: If I have to deferentially give that, [00:13:19] Speaker 02: decision maker, some help, then it doesn't seem to me there's much to do. [00:13:25] Speaker 02: In fact, even if I went to Novo, it doesn't seem to me that there's really a lot to say that I would come out different on this basis. [00:13:37] Speaker 02: Throw in the extra affidavits, that's a different question. [00:13:40] Speaker 02: But they're not here. [00:13:42] Speaker 02: So then I would be stuck with his decision on past persecution, wouldn't I? [00:13:47] Speaker 03: Well, we have a Christian who murdered somebody else, testified to the police that he saw a Christian, although the judge says otherwise. [00:13:59] Speaker 03: I gave you that. [00:14:04] Speaker 03: The police did nothing. [00:14:06] Speaker 03: He ran away, came back in eight months, Christian is free. [00:14:09] Speaker 03: He just told the police the man shot somebody and committed a murder. [00:14:14] Speaker 02: So what do you mean? [00:14:15] Speaker 02: All you're doing is explaining to me your best story. [00:14:19] Speaker 02: But I have to, I can't take your best story. [00:14:22] Speaker 02: I have to look at it as is there anything in this record which would give some credit to what the BIA said and what I might not even agree. [00:14:34] Speaker 02: I would have to help them. [00:14:36] Speaker 02: Then I could move on to future persecution. [00:14:41] Speaker 02: And with future persecution, I understand there, if we don't have past persecution, we don't have anything that says we have a little leg up. [00:14:57] Speaker 02: It seems to me that what you're suggesting is they didn't really concentrate on the country conditions evidence and really tell us what they thought, and so therefore we shouldn't believe that. [00:15:07] Speaker 02: Is that your argument? [00:15:09] Speaker 03: Well, the BIA said nothing, as you know, Judge Smith. [00:15:12] Speaker 03: They just relied on the IJ, and the IJ said, I don't believe you told the police about Christian, very conveniently. [00:15:19] Speaker 02: So if that... Did they say anything about the country conditions? [00:15:25] Speaker 03: Well, they said it's under control. [00:15:27] Speaker 03: I mean, the judge said that it's under control and so on. [00:15:29] Speaker 03: And that is, in fact, Honduras is the biggest, I mean, the most homicide in any country outside of a war zone. [00:15:38] Speaker 03: So. [00:15:39] Speaker 02: So what do I do with these cases that say, [00:15:45] Speaker 02: Even when the country condition evidence is contradictory or ambiguous, the decision maker can decide what evidence to believe and what not to believe. [00:15:56] Speaker 02: So that was Hernandez versus Ashcroft. [00:15:59] Speaker 02: What do I do with that kind of stuff? [00:16:02] Speaker 03: You have to now consider, I understand you're concentrating on the initial asylum case handled by an effective assistant of counsel, in my view. [00:16:12] Speaker 02: His declaration- Well, I'm not talking about motion to reopen now. [00:16:15] Speaker 02: I'm talking about the original. [00:16:18] Speaker 02: If we've talked about the motion to reopen, I'm going back to the original. [00:16:22] Speaker 02: You want to give up on the original and just go with the motion to reopen? [00:16:26] Speaker 03: I would tell you that being afraid for your life [00:16:31] Speaker 03: is sufficient persecution. [00:16:33] Speaker 03: Somebody doesn't have to shoot you. [00:16:35] Speaker 03: Somebody doesn't have to always follow you. [00:16:37] Speaker 03: It's enough to know that you are threatened by a gun by someone who you just witnessed committed a murder. [00:16:43] Speaker 03: I believe this is sufficient past persecution. [00:16:46] Speaker 02: That's a great argument. [00:16:49] Speaker 02: But my standard of view is not just to believe what you said, it's to look at the evidence and see if anything supports what the BIA said about it, which I think there is. [00:17:03] Speaker 02: So that's why I went to future persecution. [00:17:07] Speaker 03: And that was my position on that, or our position, that past persecution has been established by mere virtue of him being threatened by a criminal who the authority let loose. [00:17:18] Speaker 01: Mr. Ballou, you're now two minutes over. [00:17:20] Speaker 01: We've taken quite a bit of your time with questions, so I'll give you your full five-minute rebuttal unless my colleagues have any other questions. [00:17:27] Speaker 02: No, I know. [00:17:28] Speaker 01: Okay. [00:17:29] Speaker 02: Appreciate it. [00:17:29] Speaker 01: Thank you. [00:17:31] Speaker 01: Ms. [00:17:31] Speaker 01: Pino. [00:17:36] Speaker 00: Good morning, Your Honors. [00:17:38] Speaker 00: May it please the court, Tatiana Pino, for the Attorney General. [00:17:41] Speaker 00: This court should respectfully deny the petition for review. [00:17:45] Speaker 00: The board did not abuse its broad discretion in denying the motions to reopen based on alleged ineffective assistance of counsel or changed country conditions. [00:17:55] Speaker 00: And under this court's highly deferential substantial evidence standard, which Judge Smith highlighted, the record does not compel reversal of the agency's denial of asylum, withholding of removal, or cap protection because the factual findings underlying those denials are entirely consistent with this court's precedent and are reasonable on this record. [00:18:17] Speaker 00: To begin, let's begin with past persecution. [00:18:19] Speaker 01: Ms. [00:18:19] Speaker 01: Pinot, what's our standard of review for past persecution? [00:18:22] Speaker 00: It is the highly differential substantial evidence standard. [00:18:25] Speaker 01: Don't we have cases suggesting that it's a mixed question and recent guidance from the Supreme Court that also suggests we should view this as a mixed question and perhaps de novo? [00:18:35] Speaker 00: Your honors, this court has decades of precedent that are still remain good law, saying that very clearly that the standard is past persecution, there has been a difference of opinion amongst the judges recently. [00:18:48] Speaker 00: However, the case law [00:18:50] Speaker 00: remains good precedent and that stems from the 1990s and it also stems from the Supreme Court's case in Elias Zacharias from 1992 making very clear that that is the standard and the case law also highlights that it is the inquiry is highly factual in fact that comes from a recent case in 2021 that's [00:19:14] Speaker 00: The Sharma v. Garland case highlights that as the standard as well. [00:19:19] Speaker 00: And so it's a fact-bound endeavor, and this court must apply a case-by-case comparison analysis. [00:19:26] Speaker 01: Well, that's just it, Ms. [00:19:28] Speaker 01: Pinot. [00:19:28] Speaker 01: Because that is the mode of analysis that we go over, it does seem like we develop, particularly with respect to threats, a kind of common law. [00:19:37] Speaker 01: with respect to what sorts of threats amount to it. [00:19:40] Speaker 01: And a lot of the authorities that the government relies on seem distinguishable in various ways from the concrete threat backed by force and a firearm and a later attack made against the petitioner. [00:20:05] Speaker 00: Well, Your Honor, these cases are never going to be identical, so there's always a way that you can find distinguishing facts. [00:20:10] Speaker 00: However, under the substantial evidence standard, the question is, under the existing precedent, if the agency's finding is reasonable, then it must withstand the standard. [00:20:23] Speaker 00: And I'd like to just point out a few cases that would make the agency's finding reasonable, the first being Sharma V. Garland. [00:20:32] Speaker 00: And again, that's a very recent 2021 decision. [00:20:35] Speaker 00: The court held past persecution was not compelled in arguably worse circumstances. [00:20:40] Speaker 00: That is, where the police threatened the petitioner several times over many months, detained him once for 20 hours, and most significantly, while he was locked in a room, beat him repeatedly, slapped him with a police baton, shoved him for hours. [00:20:55] Speaker 01: But in Sharma, the victim didn't change their behavior. [00:21:00] Speaker 01: This is a case where the alleged threats forced the petitioner in hiding for the better part of a year. [00:21:08] Speaker 00: Your honor, that's a common occurrence that we see throughout. [00:21:11] Speaker 00: That fact exists in almost every asylum case where there's repeated. [00:21:17] Speaker 01: So give me another. [00:21:19] Speaker 00: Let's see. [00:21:20] Speaker 00: So we have... Ms. [00:21:22] Speaker 02: Pinot, before you cite all those cases, and I'm sorry to interrupt, but my worry about citing these cases [00:21:31] Speaker 02: on one side or the other side is that for years we've used this substantial evidence standard to review and so therefore even though there have been tough cases either way if the IJ and the BIA came down a certain way with those tough cases [00:21:52] Speaker 02: based on our standard review, we had to sustain what they did because that was all we could do until we got this new idea that it might be the novel review. [00:22:03] Speaker 02: And so I'm trying to say when you're looking at these cases, you're citing the IJ or the BIA come out the way we did. [00:22:11] Speaker 02: And did we just substantially [00:22:16] Speaker 02: sustain what they did under the standard review because as I looked at the cases to try to find cases de novo review which would change the result here I couldn't find any that would change the result on de novo review that was dead on this is what happened this is how it happened and we came out a different way it was all about the standard review [00:22:43] Speaker 00: as it, that should always be the first, that should set the tone for the court's review, as you all know, and it is a highly deferential standard, and it's under that standard, it's a high bar for reversal, and that is the court can reverse only if no reasonable fact finder, that is no other immigration judge in the country could have found as the immigration judge did here. [00:23:07] Speaker 01: Again, it's- Granted, but okay, grant the substantial evidence, but [00:23:12] Speaker 01: One rationale for substantial evidence is that, in this case, the decision maker, the IJ, is considering all the evidence. [00:23:20] Speaker 01: And some of the things that they rely on, I mean, first of all, the idea that this is a vague threat, isn't that a mischaracterization of what happened, a vague threat where you have the means, the motive? [00:23:39] Speaker 01: And it's communicated to the petitioner? [00:23:42] Speaker 01: How is that vague? [00:23:44] Speaker 01: I guess our concern where substantial evidence starts to give way is that the IJ doesn't seem to be fully appreciating the record in their decision that we have to review. [00:23:57] Speaker 00: Well, Your Honor, the record shows that the two threats that were made were, the first one was, you will be next if you speak with police. [00:24:07] Speaker 00: And the second was, there will be great consequences. [00:24:09] Speaker 01: Wait, you will be next, you will be next what? [00:24:11] Speaker 01: What do you think next refers to there? [00:24:14] Speaker 00: We will kill you. [00:24:15] Speaker 00: It was on the heels of the murder at the carnival. [00:24:18] Speaker 01: And that was vague and not credible, even though the person had just murdered someone. [00:24:23] Speaker 00: Well, we know that that same assailant approached him a second time eight months later, allowed eight months to go by, approached him a second time, had the opportunity to carry out a threat. [00:24:34] Speaker 01: And did the IJ appreciate why eight months had gone by? [00:24:38] Speaker 01: Because in fact, the petitioner had gone into hiding in another town? [00:24:42] Speaker 00: Your Honor, I'm not even sure that that's an established fact of the record. [00:24:47] Speaker 01: It is the testimony of the petitioner in front of the IJ. [00:24:51] Speaker 00: Well, perhaps the reasons for the eight months were not expressly discussed in the decision. [00:24:59] Speaker 00: But again, that's a fact that we see in countless asylum cases. [00:25:05] Speaker 00: And that fact is not dispositive one way or another that they were supposedly in hiding during this time. [00:25:12] Speaker 00: And the fact remains that he was confronted a second time with a gun and was told there will be grave consequences because he spoke with police. [00:25:23] Speaker 00: And then all that happened was there was a shove. [00:25:27] Speaker 00: He fell to the ground and cut his eyebrow and didn't require medical attention. [00:25:31] Speaker 00: That's all the harm he personally experienced in Honduras. [00:25:37] Speaker 00: And again, under this court's deferential standard, [00:25:41] Speaker 00: It doesn't compel reversal, given the case law. [00:25:45] Speaker 00: And I will also point out, even if this court were to disagree with the agency's findings of fact, mere disagreement is insufficient to compel reversal. [00:25:57] Speaker 00: That's clear from Elias Zacharias, from Sharma. [00:26:00] Speaker 00: And even Gove Holder from 2011 says, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. [00:26:12] Speaker 00: So you may disagree with the past persecution analysis, but that in itself is not sufficient to compel reversal. [00:26:19] Speaker 00: Again, it's a very high standard. [00:26:21] Speaker 00: And as long as it's reasonable under the precedence, which we have cited multiple, [00:26:25] Speaker 00: which it is, the conclusion cannot be reversed. [00:26:30] Speaker 01: Well, you're right. [00:26:31] Speaker 01: There's disagreement and then there's a suspicion that the IJ did not kind of fully or accurately characterize the record that had been presented before them. [00:26:43] Speaker 01: Yes, the first concern is not enough to grant a petition, but the second is. [00:26:47] Speaker 01: We have cases suggesting that the job of the IJ is to review the record and develop it, and that's what merits a substantial evidence review. [00:26:57] Speaker 01: And so I guess that's where the concern comes from on the threat. [00:27:01] Speaker 01: What about the other questions about government acquiescence? [00:27:07] Speaker 01: How does that play into this? [00:27:09] Speaker 00: Well, there's got, acquiescence is for cat and then there's the unable and unwilling, which is for asylum and withholding of removal. [00:27:16] Speaker 02: Let's go to unwilling and unable. [00:27:19] Speaker 00: Okay, they're very similar. [00:27:19] Speaker 02: The only thing that the IJ said is they didn't report the incident to the police because they thought the police would not help him. [00:27:29] Speaker 02: And country condition evidence submitted was not sufficient. [00:27:33] Speaker 02: That's the only thing the IJ said. [00:27:35] Speaker 02: Now, I looked all over to see what the IJ meant when he said country condition evidence submitted was not sufficient, and I couldn't find anything. [00:27:45] Speaker 02: In fact, I don't know what that means. [00:27:48] Speaker 02: I don't know what the IJ was saying. [00:27:50] Speaker 02: I know what the government argued. [00:27:52] Speaker 02: They made a great argument. [00:27:53] Speaker 02: They came up with all kinds of things, but it wasn't in the IJ's decision. [00:28:00] Speaker 02: Is there any sight? [00:28:02] Speaker 02: to a specific place in this record that I can see what the IJ meant when he said, country condition evidence submitted was not sufficient. [00:28:15] Speaker 02: I can see all the things you write, which would give him lots of stuff, but he never wrote it nor said it. [00:28:23] Speaker 00: You're right, there is no citation. [00:28:25] Speaker 00: This was an oral decision. [00:28:27] Speaker 00: Typically, you don't see some sort of citation. [00:28:29] Speaker 02: Well, he ought to come up with something in this country conditions, or I can't even review to help him out. [00:28:35] Speaker 02: I better send it back. [00:28:37] Speaker 00: Well, again, the standard is the highly deferential substantial evidence standard. [00:28:40] Speaker 02: No, that is not. [00:28:41] Speaker 02: The standard is he's got to give me something to look at so that I can see that he had something to which I can give some deference. [00:28:51] Speaker 02: I didn't see anything. [00:28:53] Speaker 00: He broadly referenced the country conditions evidence. [00:28:56] Speaker 00: You're right that there's no citation. [00:28:58] Speaker 02: Country condition evidence submitted was not sufficient. [00:29:00] Speaker 02: That's as broad as you could come up with. [00:29:03] Speaker 02: He didn't come up with anything that was in the country condition report. [00:29:07] Speaker 02: He didn't say anything about it. [00:29:09] Speaker 02: So I went to Hernandez versus Ashcroft. [00:29:12] Speaker 02: which suggests that when the evidence is contradictory, ambiguous, that we can give to the decision maker to decide what evidence to believe in. [00:29:24] Speaker 02: But here, he doesn't say anything, so I can't put Ashcroft in here. [00:29:30] Speaker 02: I guess I'm trying to figure out why don't I send this back and get a good decision so I'll know what do I have to agree with or not. [00:29:38] Speaker 00: Because your honor, it would be futile to send it back. [00:29:41] Speaker 02: Why futile? [00:29:42] Speaker 00: Because the country conditions evidence that was presented that we discussed. [00:29:46] Speaker 02: Because the country condition evidence that you cited in your brief is sufficient? [00:29:50] Speaker 02: Is that what you're saying? [00:29:51] Speaker 02: We don't even know if the IJ agrees with that. [00:29:54] Speaker 00: We can we we can we take his words broadly and we we can assume that he looked at every report and this is an immigration judge and this is we're talking about Honduras these are cases that come up all the time the country conditions evidence are likely repeated case by case and. [00:30:10] Speaker 00: he may know them by the back of his hand. [00:30:15] Speaker 00: And so there's no reason to send it back because the outcome would not be any different. [00:30:21] Speaker 01: Well, so I guess this comes back to the reopening point. [00:30:27] Speaker 01: We've talked through the original threat evidence. [00:30:32] Speaker 01: Now we have murder, right, by the alleged sources of the threat of their family members. [00:30:41] Speaker 01: That doesn't change the picture or the threat? [00:30:46] Speaker 00: To start from the top, we're talking about abuse of discretion, number one. [00:30:55] Speaker 00: much because it doesn't rebut any of the two dispositive grounds that... That they were vague threats. [00:31:04] Speaker 01: The murder of petitioner's family member doesn't rebut the dispositive finding on past persecution by the IJ that these threats were vague. [00:31:16] Speaker 00: Your Honor, under Tamang V. Holder, this court has said that [00:31:20] Speaker 00: past harm to close relatives in the home country cannot substitute for harm against the petitioners who are outside of the country when those harms occur. [00:31:32] Speaker 00: And so you cannot equate them to harm against the petitioners. [00:31:36] Speaker 00: And that's number one. [00:31:38] Speaker 00: And number two, none of this new evidence rebutts the substantially supported finding that the Honduran government did not show that it was unable or unwilling to control the private gang members. [00:31:52] Speaker 02: But again, when I look at the unwilling or unable to control, [00:31:56] Speaker 02: I see the same kind of general language that I see when I'm looking at that up under the first idea. [00:32:03] Speaker 02: There's no specific as to what the IJ or the BIA looked at. [00:32:09] Speaker 02: The second intermotion reopen the BIA looked at to say that the country conditions were enough. [00:32:16] Speaker 02: I don't know what they looked at. [00:32:18] Speaker 02: I looked at the decision. [00:32:21] Speaker 02: It does not tell me what they're really saying. [00:32:23] Speaker 02: There are plenty of things in the country conditions that I could seize on, which would say there's plenty in there to say that what the petitioner said is right. [00:32:34] Speaker 02: But because the BIA didn't tell me what they were looking at, only the government in their brief tries to cite what they think it ought to be, I say to myself, why should I deal with that? [00:32:45] Speaker 02: Why don't I just send it back and let the BIA deal with it? [00:32:48] Speaker 00: Your honor, there's not just country conditions evidence at issue here. [00:32:52] Speaker 00: It's also petitioners own testimony that rebuts any inclination that the enduring government is unable or unwilling to control gang members. [00:33:00] Speaker 00: And we see that because he testified immediately after the 2020 murder at the at the car wash. [00:33:08] Speaker 00: the police immediately responded, investigated, and in fact interviewed him. [00:33:12] Speaker 00: And so that is individualized evidence that substantially supports the Unable and Unwilling conclusion, in addition to the country conditions evidence, which shows that the Honduran government is taking active steps to combat gangs. [00:33:27] Speaker 00: It may be imperfect, but the imperfect effort does not equate to [00:33:32] Speaker 00: being unable or unwilling, and that comes from Hussein v. Rosen, Velasquez Gas Bar, and several other presidential cases from this court. [00:33:41] Speaker 01: But I guess, Ms. [00:33:42] Speaker 01: Pinot, the board there, to the extent it references police action or report, again, as I agree with my friend Judge Smith on this, I think you've argued the record very well, but the BIA did not give us those grounds to review, to the extent it talks about [00:33:58] Speaker 01: reports to the police. [00:34:00] Speaker 01: It says that it seems to decide this largely on the fact that there wasn't a police report, but we've I think clearly said that that can't be the sole factor for rejecting the motion. [00:34:13] Speaker 00: It wasn't the sole factor. [00:34:14] Speaker 00: Well, you're right that failure to report is not outcome determinative. [00:34:19] Speaker 00: This court has said that in Bringus Rodriguez. [00:34:22] Speaker 00: In the same decision, though, it says that when you're looking at a case where there's a failure to report, you look at prior interactions with authorities. [00:34:31] Speaker 00: And in this case, there is evidence that petitioners- How do we know the board looked at that? [00:34:37] Speaker 01: I know we did. [00:34:37] Speaker 01: You've brought it up. [00:34:38] Speaker 01: How do we know the board looked at that in their decision? [00:34:42] Speaker 00: The board is affirmed without opinion, the immigration judge's decision, so you really look at the immigration judge's decision for that. [00:34:52] Speaker 02: For the underlying petition, right? [00:34:54] Speaker 00: Yes, we're talking about the merits, the claims, yes. [00:34:59] Speaker 00: And so, yeah, go ahead. [00:35:01] Speaker 02: Go ahead, if you've got more to say to his question. [00:35:04] Speaker 01: And I guess I was taking us back to the motion to reopen in the court's decision. [00:35:07] Speaker 00: Oh, I'm sorry, I didn't realize that. [00:35:09] Speaker 01: Yeah, so the board's decision, they don't mention, none of this comes into it. [00:35:15] Speaker 01: They just say, well, there wasn't a police report, even though we have a death certificate. [00:35:20] Speaker 00: Yes, OK, so yes, I'll address that. [00:35:22] Speaker 00: So what the board ended up saying was there's no evidence that these are materially changed country conditions. [00:35:30] Speaker 00: The board itemizes every piece of evidence and really finds there's no persuasive evidence. [00:35:35] Speaker 00: And with the death certificate, for example, all we have is a death certificate indicating there was a death, but there was no indication of the cause for death. [00:35:44] Speaker 00: There's also no hospital records, and there's no police report. [00:35:49] Speaker 00: to corroborate the allegation that the uncle was shot because these gang members shot him. [00:35:56] Speaker 00: And I'll also point out, these are all changed personal circumstances, and those alone do not equate to changed country conditions. [00:36:05] Speaker 00: Well, what about? [00:36:06] Speaker 02: They do. [00:36:06] Speaker 02: In Carvey Garland, they do. [00:36:09] Speaker 02: Your honor what happens so change change personal circumstances can be relevant Let me tell you carby rail carby garland our our case in 2021 said the change in personal Circumstances was entirely out of the control of the petitioner thus the events here could be changed country conditions [00:36:32] Speaker 02: That's what we said in Carr. [00:36:35] Speaker 02: And the motion has to be filed within the 90 days. [00:36:40] Speaker 02: And it was. [00:36:41] Speaker 02: And so they could find a change in country conditions based only on personal circumstances. [00:36:48] Speaker 00: the personal circumstances have to relate to broader changes in the country. [00:36:52] Speaker 00: It's essentially what this court says in Rodriguez v. Garland, also from 2021. [00:36:57] Speaker 00: And I'll know Rodriguez-Torarez from 2021 as well says, references to continuing or remaining problems are not evidence of changed country conditions. [00:37:08] Speaker 00: In this case, what we see is alleged evidence of continued harm by the same people for the same reasons, that is, [00:37:17] Speaker 00: the gang coming after petitioners looking for them. [00:37:22] Speaker 00: Why? [00:37:22] Speaker 00: Because the male petitioner witnessed a murder back in 2020. [00:37:26] Speaker 00: It is a continuation of their original claim. [00:37:29] Speaker 00: And for that reason, the board did not abuse its discretion in finding this new evidence was immaterial because it was not persuasively indicative of changed country conditions. [00:37:39] Speaker 00: And that is squarely consistent. [00:37:41] Speaker 00: It cannot be contrary to law. [00:37:43] Speaker 01: Can we look at it under the broader non-time barred standard because he filed within the 90 days or are we left with just a changed conditions theory because the petitioner failed to exhaust the broader category of 90 day reopening? [00:38:00] Speaker 00: The way he has framed it, he has framed it solely as a change to country conditions based motion to reopen. [00:38:07] Speaker 01: We've taken you five minutes over and we greatly appreciate your help with this. [00:38:12] Speaker 01: I want to ask my colleagues if they have any further questions. [00:38:15] Speaker 01: Ms. [00:38:15] Speaker 01: Pinot, thank you. [00:38:16] Speaker 00: Thank you. [00:38:16] Speaker 00: Respectfully, we request that you deny the petition. [00:38:18] Speaker 00: Thank you. [00:38:18] Speaker 01: Thank you. [00:38:22] Speaker 01: Mr. Blum. [00:38:25] Speaker 03: I just have one thing to say. [00:38:28] Speaker 03: It's not going to take five minutes. [00:38:30] Speaker 03: futile to remand. [00:38:33] Speaker 03: Really? [00:38:34] Speaker 03: To protect a family? [00:38:40] Speaker 03: That sentence is not futile. [00:38:45] Speaker 03: Far from it, your honors. [00:38:48] Speaker 03: Give Aditha a chance, is all I ask. [00:38:53] Speaker 03: reopened this case because we showed how the government is unwilling and unable to control this Mara. [00:39:00] Speaker 03: They killed twice at the same location, same car wash. [00:39:05] Speaker 03: First shooting, second shooting. [00:39:07] Speaker 03: Three people the second time. [00:39:09] Speaker 03: That's all I got to say, Your Honor. [00:39:10] Speaker 03: It's not futile. [00:39:11] Speaker 03: This has to go back. [00:39:13] Speaker 03: Thank you. [00:39:15] Speaker 01: Thank you, Mr. Ballou. [00:39:15] Speaker 01: Thanks to both counsel again for your arguments today and the cases submitted.