[00:00:00] Speaker 04:
Good morning, and may it please the court.

[00:00:02] Speaker 04:
My name is Jessica Zhang, and I'm appearing on behalf of the petitioner, Vilma Gira Torres.

[00:00:06] Speaker 04:
I would like to reserve two minutes of my time for rebuttal.

[00:00:09] Speaker 02:
Counsel, please be reminded that the time shown on the clock is your total time remaining.

[00:00:13] Speaker 04:
Yes, Your Honor.

[00:00:14] Speaker 02:
All right.

[00:00:16] Speaker 04:
Because of her prior counsel's ineffective representation, Ms.

[00:00:19] Speaker 04:
Guillera-Torres has never had the chance to fully present her claims for asylum, withholding, and relief under the Convention Against Torture to an immigration judge.

[00:00:28] Speaker 04:
This court can and should ensure that she receives due process in her removal proceedings by granting her petition and remanding her case to the BIA for two reasons.

[00:00:38] Speaker 04:
First, the BIA failed to provide a reasoned explanation for its decision to deny Ms.

[00:00:43] Speaker 04:
Guillera-Torres' motion to remand, and second,

[00:00:46] Speaker 04:
Even its bare conclusory decision, the BIA committed numerous legal errors in denying her motion.

[00:00:52] Speaker 04:
I will turn first to the BIA's failure to issue a reasoned explanation for its decision.

[00:00:56] Speaker 03:
If they had given one example of a strategic decision, would that have been enough?

[00:01:03] Speaker 04:
If there was a strategic example in this case, that would have been enough.

[00:01:07] Speaker 04:
But I don't think that there was here.

[00:01:10] Speaker 04:
Ms.

[00:01:10] Speaker 04:
Gira Torres' prior counsel failed to speak to her, failed to investigate her claim.

[00:01:16] Speaker 04:
failed to review her declaration with her, failed to tell her that she would need to testify in front of the immigration judge, much less prepare her for that testimony.

[00:01:24] Speaker 04:
Under this court's precedent in Lynn and also its unpublished case in De Leon, that together shows ineffective assistance of counsel.

[00:01:32] Speaker 04:
And in both of those cases, this court was clear that those were not tactical decisions.

[00:01:37] Speaker 04:
For example, in Lynn,

[00:01:38] Speaker 04:
Prior counsel also failed to speak to her client, failed to prepare him to testify, failed to find evidence that was clearly available at the time.

[00:01:48] Speaker 04:
And this court held that that was not trial strategy, sound or otherwise.

[00:01:53] Speaker 03:
But where was the prejudice if Johnny didn't tie the violence to his membership in the community group?

[00:02:00] Speaker 04:
So the prejudice is shown through Ms.

[00:02:03] Speaker 04:
Gira Torres' declaration here.

[00:02:05] Speaker 04:
And all that needs to be proven at this stage is that she has a viable claim for prejudice.

[00:02:10] Speaker 02:
A viable claim for relief.

[00:02:12] Speaker 02:
Sorry.

[00:02:13] Speaker 04:
I'm so sorry.

[00:02:13] Speaker 04:
A viable claim for asylum and relief on her underlying merits.

[00:02:18] Speaker 04:
And she's done so with her declaration, which must be taken as true at this stage.

[00:02:23] Speaker 02:
Well, it doesn't have to be taken as true, does it, if it conflicts with the evidence that was actually in the record?

[00:02:30] Speaker 04:
If your honor is talking about the other evidence submitted with the motion to remand, it doesn't conflict.

[00:02:36] Speaker 04:
So Johnny just doesn't mention anything about his community group.

[00:02:39] Speaker 04:
And to the extent that those may be inconsistency, that's proper for the immigration judge to decide.

[00:02:46] Speaker 04:
Uh, once the case is before the immigration judge again, because Ms.

[00:02:49] Speaker 04:
Gira Torres will be able to file, um, a full, uh, application.

[00:02:53] Speaker 04:
Um, Johnny and Ms.

[00:02:54] Speaker 04:
Gira Torres will be allowed to testify in front of the immigration judge.

[00:02:58] Speaker 04:
Um, if Your Honor is, uh, comparing... Fine.

[00:03:00] Speaker 01:
And even if you did fall short, is the proper comparison between what an effective assistance would provide and what you got?

[00:03:10] Speaker 01:
Uh... In other words, you get the benefit, do you not, under the standard of comparing

[00:03:14] Speaker 01:
not how you fell short, but how it would have been done had you had effective assistance.

[00:03:19] Speaker 04:
That's correct, Your Honor.

[00:03:19] Speaker 04:
The standard is whether ineffective assistance may have impacted the outcome of the claim.

[00:03:24] Speaker 04:
And so the comparison is not between Ms.

[00:03:27] Speaker 04:
Geara Torres' declaration here and what was submitted originally in front of the immigration judge, but rather what her claim would be if she had been properly represented.

[00:03:36] Speaker 04:
And here, the evidence she presented with her motion to remand shows that she would have had a viable claim, which is all that is required at this stage.

[00:03:44] Speaker 04:
to grant her motion to remand.

[00:03:49] Speaker 04:
In addition to the evidence relating to prejudice, Ms.

[00:03:52] Speaker 04:
Gira Torres presented legal arguments and filed over 500 pages of evidence with her motion to remand, none of which the BIA discussed or even cited to in its decision.

[00:04:02] Speaker 04:
With her motion to remand, Ms.

[00:04:03] Speaker 04:
Gira Torres alleged that her prior counsel never even spoke to her.

[00:04:07] Speaker 04:
In fact, she never spoke to any attorney until she appeared at her final hearing in front of the immigration judge.

[00:04:13] Speaker 04:
Prior counsel never investigated her claim, such that no attorney representing Ms.

[00:04:17] Speaker 04:
Gira Torres discovered basic facts about her underlying claim.

[00:04:22] Speaker 04:
No one ever reviewed Ms.

[00:04:23] Speaker 04:
Gira Torres' evidence or her declaration or her application with her, even though she had notified prior counsel's office that she could not read.

[00:04:31] Speaker 04:
Prior counsel also never collected any evidence or testimony from witnesses, like Ms.

[00:04:36] Speaker 04:
Gira Torres' partner.

[00:04:37] Speaker 04:
and never told Ms.

[00:04:38] Speaker 04:
Guiratoras that she would need to testify at all, much less prepared her for her testimony in front of the immigration judge.

[00:04:45] Speaker 04:
And with this evidence of ineffectiveness of prior counsel as discussed, Ms.

[00:04:48] Speaker 04:
Guiratoras also presented evidence and legal argument.

[00:04:51] Speaker 03:
Let me ask you, you have filed a 28-J letter with the suspension documents for Mr. LaCombe's bar license.

[00:05:01] Speaker 03:
That's not part of the administrative record.

[00:05:03] Speaker 03:
So how are we to consider that?

[00:05:05] Speaker 03:
Is that a judicial notice request or how do we deal with that?

[00:05:10] Speaker 04:
So it's a published decision by the presiding disciplinary judge of the Arizona Supreme Court.

[00:05:17] Speaker 04:
And so it is a published legal decision.

[00:05:19] Speaker 04:
This court has cited two other Supreme Court disciplinary decisions.

[00:05:25] Speaker 04:
For example, in Morales Apollinar, it's cited to the California bar or Supreme Court bar their published decision.

[00:05:33] Speaker 03:
But this is really more of a fact

[00:05:36] Speaker 03:
an evidence issue.

[00:05:38] Speaker 03:
It's not intervening change in the law as we traditionally think of that.

[00:05:43] Speaker 03:
So if this was a fact that was not before the BIA, is it proper for us to consider it?

[00:05:50] Speaker 04:
I do think so.

[00:05:51] Speaker 04:
I think to the extent that the court isn't willing to accept it as legal authority, it can accept it under judicial notice.

[00:05:57] Speaker 04:
It is a published decision by

[00:05:59] Speaker 04:
another adjudicatory body and is publicly available.

[00:06:04] Speaker 02:
But even when we take judicial notice, we don't take judicial notice of the facts.

[00:06:09] Speaker 02:
We just take judicial notice of the publication of the case.

[00:06:14] Speaker 02:
So how does that help you if we just take judicial notice of the decision but not the facts in the decision?

[00:06:24] Speaker 04:
I think it's relevant to this case that prior counsel has

[00:06:28] Speaker 04:
has engaged in a pattern of misconduct that's relevant to, or that matches the factual pattern of Ms.

[00:06:35] Speaker 04:
Gira Torres' case.

[00:06:37] Speaker 04:
And the Arizona disciplinary judge decided that that did violate a number of ethical requirements under the Arizona bar, which are- But we don't take judicial notice of the facts that are in the opinion, do we?

[00:06:54] Speaker 04:
I think if you take judicial notice, then you can take that under consideration.

[00:07:03] Speaker 03:
The lawyer that actually appeared, I know it was a Zoom hearing, but was this a COVID Zoom hearing?

[00:07:10] Speaker 03:
It was, Your Honor.

[00:07:11] Speaker 03:
Okay, all right.

[00:07:13] Speaker 03:
So the lawyer who actually appeared at the Zoom hearing on behalf of the petitioner did make government acquiescence, internal relocation, certainly made arguments

[00:07:27] Speaker 03:
in support of the asylum petition or application, excuse me.

[00:07:32] Speaker 03:
Would that in any way cure any of Mr. Lacombe's shortcomings?

[00:07:38] Speaker 04:
No, Your Honor.

[00:07:39] Speaker 04:
The attorney who appeared who Mr. Lacombe contracted

[00:07:43] Speaker 04:
still didn't provide effective assistance to cure Mr. Locombe's failings.

[00:07:49] Speaker 04:
Although she did present some legal argument and did have Ms.

[00:07:52] Speaker 04:
Geara Torres testify, the issues with the representation here still remain.

[00:07:57] Speaker 04:
Nobody, no attorney who ever presented a case for Ms.

[00:08:01] Speaker 04:
Geara Torres ever spoke to her or prepared her to testify.

[00:08:04] Speaker 04:
never investigated her claim to discover key facts of her case.

[00:08:09] Speaker 04:
And so even the case that the attorney who appeared presented had major faults in the theory of that case.

[00:08:18] Speaker 04:
In addition to that, she did not present evidence in support of the... But most lawyers do have paralegals do the investigation, don't they?

[00:08:27] Speaker 04:
Yes.

[00:08:27] Speaker 04:
And we're not saying that the issue here is that the paralegals

[00:08:31] Speaker 04:
participated in the preparation.

[00:08:32] Speaker 03:
It sounds like they're the ones that interviewed the petitioner.

[00:08:35] Speaker 03:
They appear to be the ones that drafted the declaration.

[00:08:38] Speaker 03:
This is true.

[00:08:41] Speaker 03:
Is that not a common practice?

[00:08:44] Speaker 04:
Of course, it's a common practice to rely on paralegals to assist with fact gathering and drafting.

[00:08:48] Speaker 04:
However, the ultimate responsibility of representing a client falls with the attorney, and whether the attorney fulfills that obligation by doing the work

[00:08:57] Speaker 04:
themselves or by properly supervising their paralegals, that is an ethical obligation regardless.

[00:09:04] Speaker 04:
And so here, even though the paralegals spoke to Ms.

[00:09:07] Speaker 04:
Gira Torres, nobody, neither the paralegals nor the council themselves, ever investigated Ms.

[00:09:14] Speaker 04:
Gira Torres' claim and presented a claim that just wasn't what happened to her.

[00:09:20] Speaker 04:
They provided a claim that basically

[00:09:24] Speaker 04:
asserted a generalized gang violence claim, which is very clearly not a... But to say no one investigated is a bit of an overreach, right?

[00:09:33] Speaker 03:
A paralegal did the work.

[00:09:35] Speaker 03:
You're just not satisfied with it and you think the lawyer should have had a more active and engaged role in supervision.

[00:09:42] Speaker 03:
I disagree with that, Your Honor.

[00:09:43] Speaker 03:
Under this Court's... You're saying nobody, not even the paralegal, did any investigation?

[00:09:47] Speaker 03:
That just seems... I mean, there was a full application.

[00:09:50] Speaker 03:
It may have been inadequate in many respects, but there was a full application with declarations and whatnot.

[00:09:57] Speaker 04:
Maybe I should be more exact that it's not that no one Investigated but rather no one properly investigated or investigated to the extent that is required by this court's case law and under Lynn It's very clear that even where a prior counsel presented some information or some facts where that those facts do not amount to the actual amount of investigation required and

[00:10:21] Speaker 04:
to discover key facts underlying a client's claim, that is clearly ineffective assistance of counsel.

[00:10:28] Speaker 04:
And this court has been very clear about that under Lin.

[00:10:34] Speaker 01:
I'd like to go back to Judge Koh's first question about whether it would have been enough if even one example had been cited.

[00:10:42] Speaker 01:
A concern that courts perhaps should have when imposing obligations on agencies is that they don't raise the requirements so high that it really shuts down the line for those who are seeking

[00:10:55] Speaker 01:
relief because they're stopping to write these lengthy opinions.

[00:10:59] Speaker 01:
So what do you say to us in terms of how detailed a decision has to be and how we reach the threshold where we say that's an unreasonably short explanation?

[00:11:11] Speaker 04:
Of course, and I do know that that's a tricky balance to make.

[00:11:15] Speaker 04:
However, I think in this case the court doesn't need to even

[00:11:18] Speaker 04:
strike new ground on how much is enough because the BIA did not meet the requirements this court has already set out in its precedent.

[00:11:26] Speaker 04:
So for example, in Maravia Maravia, this court was clear that where the BIA did not discuss any of the evidence presented on prior counsel's actions in denying an ineffective assistance of counsel claim, that was not sufficient reasoning.

[00:11:40] Speaker 04:
Similarly, in Mohammed, when speaking about the BIA's first decision, this court noted that the BIA didn't even indicate that it had considered any of the evidence presented with the motion to reopen.

[00:11:52] Speaker 04:
Under those cases, this BIA's decision is also insufficiently reasoned.

[00:11:56] Speaker 04:
There's no citation to or description of any of the facts that Ms.

[00:12:01] Speaker 04:
Geara Torres presented with her motion to remand.

[00:12:03] Speaker 04:
So I do acknowledge that that's always a tricky question.

[00:12:06] Speaker 04:
This court does not want to impose too many requirements on the BIA.

[00:12:09] Speaker 04:
But I think that this court's precedent is clear that it imposes, even the minimum that it has already imposed, the BIA did not reach that here.

[00:12:21] Speaker 02:
Did you want to say the remaining time for rebuttal counsel?

[00:12:23] Speaker 04:
I will.

[00:12:23] Speaker 04:
Thank you so much.

[00:12:24] Speaker 04:
Thank you.

[00:12:25] Speaker 02:
We'll hear from the government.

[00:12:38] Speaker 00:
Thank you, Honors.

[00:12:39] Speaker 00:
Good morning.

[00:12:40] Speaker 00:
I'll leave the mic where it is unless you can't hear me.

[00:12:42] Speaker 02:
We can hear you.

[00:12:43] Speaker 00:
Thank you.

[00:12:45] Speaker 00:
May it please the court, Peter Gannon, for the United States Attorney General.

[00:12:50] Speaker 00:
The board did not abuse its discretion in denying Petitioner's motion to remand, where it properly found that Petitioner did not establish her prior counsel's actions were unreasonable, even if so that she did not establish prejudice.

[00:13:03] Speaker 00:
The board did not owe her an exegesis on her every contention, but its decision does show that it heard and thought about her motion rather than merely react to it.

[00:13:12] Speaker 00:
Additionally, substantial evidence supports the denial of asylum and statutory withholding

[00:13:17] Speaker 00:
and to the extent that the district council raised cap protection in her argument that has been waived and was not exhausted in the form of any mention in the motion to reinvent.

[00:13:26] Speaker 03:
Let me ask you, how is never meeting with your client

[00:13:32] Speaker 03:
never explaining asylum law to your client in an immigration case, never appearing personally in the case, not getting a declaration or having a primary key corroborating witness provide a letter or come to the hearing.

[00:13:46] Speaker 03:
How are those tactical decisions?

[00:13:50] Speaker 00:
Your Honor, I think distinguishing this case from G. Lynn is the best way to illustrate that.

[00:13:55] Speaker 00:
There are some facial similarities in the

[00:13:58] Speaker 03:
unpreparedness that resulted from that attorney's conduct that is not present here This is more than unprepared right never meeting with the client never explaining the law to the client never telling the client They'll have to testify Not preparing the client for testimony.

[00:14:13] Speaker 03:
I I guess I don't see how these are tactical or strategic

[00:14:17] Speaker 00:
So, Your Honor, I think you alluded to the fact that having paralegals conduct the intake and preparing a lot of the investigation is not an unreasonable thing to have been done.

[00:14:27] Speaker 00:
I think from that, the interview that the paralegals did with the petitioner, we got a declaration from her, some pre-hearing filings from Mr. Lacombe, and a full and fair hearing.

[00:14:40] Speaker 00:
Honestly, if she was not prepared for testimony,

[00:14:44] Speaker 00:
which we can take as true from her declaration, she still provided adequate and sufficient testimony.

[00:14:51] Speaker 00:
She was at times vague and apprehensive, but the immigration judge specifically credited her with always being forthcoming and candid in follow-up questions.

[00:15:02] Speaker 00:
The transcript of her testimony does not read like someone who is completely unprepared for testimony and unable to give testimony, like the petitioner in G. Lynn, who was

[00:15:12] Speaker 00:
unable to give a plausible and coherent account for the basis of his alleged fear, and his testimony was lacking in any detail and insufficient to provide corroboration.

[00:15:20] Speaker 00:
The petitioner's testimony, even taking as true what she says about the preparation that went into her case, put forward a claim, and the immigration judge was able to make a reasoned decision on the merits of that claim, which is what this court found sufficiently wrong.

[00:15:34] Speaker 03:
So the immigration judge thought the lack of a declaration or testimony from Johnny was important.

[00:15:43] Speaker 03:
So why isn't that evidence of prejudice here?

[00:15:47] Speaker 03:
The decision maker thought that that was key evidence that was lacking and the attorney never obtained it, never recommended obtaining it, never recommended that Johnny appear at the hearing.

[00:15:58] Speaker 00:
The short answer is the immigration judge then in turn did not in any way base the denial of her applications on that lack of corroboration.

[00:16:06] Speaker 00:
You're right, both the DHS attorney and the judge asked the petitioner about it, and she said, well, my attorney didn't say I should get any support.

[00:16:14] Speaker 00:
But then, again, unlike G. Lin, which was denied for lack of corroboration, that did not occur here.

[00:16:19] Speaker 00:
The immigration judge relied on the testimony she provided to

[00:16:23] Speaker 00:
make a finding on the, ended up being the dispositive issue of whether the government of Honduras was unable and unwilling to protect her from the 18th Street gang.

[00:16:32] Speaker 03:
But you would agree that's not a tactical decision, right?

[00:16:35] Speaker 00:
Not to... I think it's not unreasonable, Your Honor.

[00:16:41] Speaker 00:
And it's certainly not unreasonable to the extent that it made his representation constitutionally defective.

[00:16:47] Speaker 00:
I guess to the extent that the tactical decision happened somewhere before where it was, you know,

[00:16:53] Speaker 00:
the process he set up at his office for what questions the period was asked at the intake and what they do to prepare a claim, I think.

[00:17:01] Speaker 03:
So what do you think would be ineffective assistance of counsel?

[00:17:05] Speaker 00:
Something like G-Lan, Your Honor, that left that petitioner alone bewildered and unrehabilitated.

[00:17:10] Speaker 00:
That was not what happened here.

[00:17:11] Speaker 03:
Well, there was no redirect.

[00:17:12] Speaker 03:
The lawyer, the employment lawyer who showed up on the day of without talking to this client did no redirect.

[00:17:19] Speaker 03:
So how is that any different?

[00:17:20] Speaker 00:
I think, Your Honor,

[00:17:23] Speaker 00:
That's just one aspect about G-Lynn that is... But it sounds like a pretty comparable one, would you agree?

[00:17:31] Speaker 00:
But I think the testimony that this petitioner gave was substantially different from the testimony that the petitioner gave there, where he did not present a coherent claim or a plausible claim, and redirect would have really done something there.

[00:17:44] Speaker 00:
In this case, the petitioner gave specific testimony about how the police responded to, and at least could have investigated,

[00:17:53] Speaker 00:
each of the incidents that she based her original claim on.

[00:17:57] Speaker 00:
And then the IJ, based on her direct cross-examination, but her testimony, used that to establish under this court's precedent that she could not meet her burden to prove that the government of Honduras was unable or unwilling.

[00:18:12] Speaker 00:
I think it's just from the start, this and G. Lynn are very different cases.

[00:18:17] Speaker 00:
In G. Lynn, the attorney tried to find a sub-counsel to appear that day,

[00:18:23] Speaker 00:
just like Mr. Lacombe did, but the counsel he arranged for did actually appear.

[00:18:28] Speaker 00:
The counsel was more prepared than the attorney in G. Lin.

[00:18:33] Speaker 00:
She was able to lead the petitioner to describe what happened to her on the two relevant occasions involving the 18th Street gang.

[00:18:41] Speaker 00:
And although her claim was eventually unsuccessful, it was not because of a lack of redirect.

[00:18:50] Speaker 03:
Why should we ignore the fact that Mr. Lacombe's bar license was suspended?

[00:18:57] Speaker 00:
I think, Your Honor, 28J is certainly not a mechanism to supplement the administrative record.

[00:19:04] Speaker 00:
And to the extent that the petitioner is trying to do that, this Court should not allow it.

[00:19:09] Speaker 00:
I think even if you look to that fact, though, it really doesn't do too much to answer the question of what did he do in her case.

[00:19:17] Speaker 00:
which was her burden to meet in her motion to remand, which she did not do.

[00:19:21] Speaker 00:
I'm not here to defend Mr. Lacombe.

[00:19:23] Speaker 00:
I'm here to defend the agency's decision.

[00:19:25] Speaker 00:
I'll note that, at least from what I could see in those complaints, each one involved something like a late filing or a completely deficient filing or an actual misrepresentation or fraud that he committed against his client.

[00:19:41] Speaker 00:
None of those things occurred here, at least nothing that was relied on by the agency in ultimately denying the petitioner's applications.

[00:19:52] Speaker 01:
Do you maintain that the BIA used the correct prejudice standard in making this decision?

[00:19:59] Speaker 00:
Yes, Your Honor.

[00:20:00] Speaker 00:
I think the board could have been more clear about the prejudice standard.

[00:20:05] Speaker 00:
But it clearly said that the petitioner did not meet the standard to establish prejudice.

[00:20:09] Speaker 00:
And later in that paragraph, it cited this court's precedent on what constitutes prejudice, that it could have changed the outcome.

[00:20:15] Speaker 00:
And then it also said the general standard for motion to reopen a remand based on prima facie eligibility for a new case.

[00:20:23] Speaker 00:
Had the board said the petitioner did not establish prejudice because she did not establish a reasonable likelihood of success, that would have been error.

[00:20:31] Speaker 00:
That would have been the wrong legal standard.

[00:20:34] Speaker 00:
The way the board did phrase it, they were saying two different standards.

[00:20:38] Speaker 00:
in artfully.

[00:20:41] Speaker 03:
But weren't they also relying on the adequacy of prior counsel versus looking at what could have been done with adequate counsel?

[00:20:51] Speaker 00:
I think the board looked to the issue of unable and unwilling and determined that that resolved the new claims that Petitioner presented

[00:21:03] Speaker 00:
to the extent that they've related to the 18th Street gang and what she presented did not change that finding.

[00:21:12] Speaker 00:
It may have, again, she may have tried to make other claims about other things, but I think when you look at the administrative record, those claims would not have been viable for other reasons.

[00:21:23] Speaker 00:
So you're right, your honor, the board did make some reference to the full hearing that she had in its prejudice paragraph.

[00:21:31] Speaker 00:
I think you're right to be,

[00:21:33] Speaker 00:
reluctant to rely too much on that where it's a bit circular there.

[00:21:37] Speaker 03:
But where in the BIA's decision do they actually analyze what adequate counsel could have done versus whether what prior counsel did was enough?

[00:21:48] Speaker 00:
I think, Your Honor, that's where this court's case law on what detail the board has to go into is what establishes that the board did not abuse this discretion in what it did say.

[00:21:58] Speaker 00:
The board doesn't have to address petitions of every contention.

[00:22:01] Speaker 00:
The board, however, did acknowledge her motion.

[00:22:03] Speaker 00:
It acknowledged in broad strokes the arguments she made in her motion, her complaints about her prior counsel, and it simply said that was not enough to establish that he acted unreasonably, and even if so, it was not enough to establish prejudice.

[00:22:17] Speaker 03:
So you want us to make an inference that they considered what adequate counsel could have done?

[00:22:25] Speaker 00:
Yes, Your Honor.

[00:22:26] Speaker 00:
I mean, I think when they apply the correct legal standard and they

[00:22:31] Speaker 00:
uh... indicate that they heard and thought about the petitioners motion rather than really react to it and the administrative record doesn't suggest otherwise yes your honor i believe you can

[00:22:43] Speaker 01:
Does the Justice Department have institutional concerns about granting relief in cases like this?

[00:22:49] Speaker 01:
I mean, this does not appear to be a case where a person is just disgruntled, unhappy with the outcome, and moves to remand to get another shot, a second bite of the apple, so to speak.

[00:22:59] Speaker 01:
This is something where we have evidence of malpractice.

[00:23:04] Speaker 01:
We have a showing made extensively by the movement and a little bitty explanation addressing it.

[00:23:13] Speaker 01:
So is there an institutional concern that somehow we open the floodgates?

[00:23:18] Speaker 01:
Otherwise, it just seems that justice would support remaining this case and let the case be developed and win or lose.

[00:23:25] Speaker 00:
I think the institutional interests of both this court and the Department of Justice and everyone involved is

[00:23:34] Speaker 00:
the case law that this court and the board has on when to reopen for ineffective assistant counsel.

[00:23:40] Speaker 00:
And what the petitioner put forward here did not meet her burden.

[00:23:44] Speaker 00:
I don't, to the extent that the 28J submits some evidence that Mr. Lacombe is suspended for good reason, that's not what the petitioner put in front of the board in her motion.

[00:23:59] Speaker 00:
She really, from what I can tell,

[00:24:04] Speaker 00:
Complaints boiled down to that he didn't do enough to investigate her claim his apparently didn't specifically ask her about the sexual abuse she experienced in Honduras and That they could have gone to Johnny Johnny for some more information none of those Were unreasonable or would have changed could have changed the outcome in her case like I said she gave a full testimony that the IJ credited with

[00:24:31] Speaker 00:
She struggled at times, but was always forthcoming and candid.

[00:24:34] Speaker 00:
I think the asking specifically about sexual abuse doesn't mean that the questions they did ask her were unreasonable, where the questions that they did ask her led to a full declaration of some pre-hearing filings and a full evidentiary hearing on her claim where the immigration judge was able to make a full decision on the merits of the claim.

[00:24:57] Speaker 00:
And then lastly, Johnny's declaration

[00:25:00] Speaker 00:
is inconsistent with her testimony.

[00:25:02] Speaker 00:
It's inconsistent with the declaration that they provided from the community group leader.

[00:25:08] Speaker 00:
It doesn't do anything to change the outcome of her case, again, where it doesn't establish any flaw in the immigration judge's unable and unwilling determination that was based on her own testimony.

[00:25:29] Speaker 00:
If the court has no further questions about the rest of my time.

[00:25:33] Speaker 02:
It appears not counsel.

[00:25:35] Speaker 02:
Rebuttal.

[00:25:43] Speaker 04:
Thank you, Your Honors.

[00:25:43] Speaker 04:
I have three short points.

[00:25:46] Speaker 04:
So first, Respondent's counsel continues to rely on arguments that the BIA never relied on in its decision.

[00:25:53] Speaker 04:
and thus are foreclosed by Chenery as a matter of due process and basic principles of administrative law.

[00:25:59] Speaker 04:
The court can only evaluate and uphold the BIA's reasoning, BIA based on the reasoning it relied upon in its decision.

[00:26:05] Speaker 04:
So our speculated arguments about how the BIA decided this case, such as which actions prior counsel took that made his representation competent,

[00:26:14] Speaker 04:
whether Johnny's declaration contradicted Mascara Torres' testimony, whether Mascara Torres' underlying claims were viable and why they wouldn't be, and whether Mascara Torres' testimony was sufficient to prove effectiveness of counsel.

[00:26:29] Speaker 04:
Those are not reasons that the BIA relied on in its decision, and therefore they are foreclosed by Chenery.

[00:26:37] Speaker 04:
As to ineffectiveness respondents council has presented no argument as to how prior council's performance was tactical That's the only conclusion that the BA reached here And there are no arguments under this court's precedent for why?

[00:26:52] Speaker 04:
Miscere towards its prior council's failings were tactical here

[00:26:55] Speaker 04:
Finally, as to prejudice, Respondents' Council argues that there's no prejudice because the immigration judge didn't rely on a lack of corroborating evidence.

[00:27:03] Speaker 04:
But the immigration judge did rely on other errors that stem from prior council's ineffectiveness.

[00:27:11] Speaker 04:
These include the lack of argument or evidence presented as to nexus, the incognizability of the particular social groups presented, and the Honduran government's unwillingness and inability to protect mascara torres from persecution.

[00:27:24] Speaker 04:
Respondents Council, importantly, never acknowledged any of the new evidence that Miss Ciara Torres presented as to those claims, showing that there is nexus, that she has particular social group definitions that would be cognizable, and that the Honduran government would be unable and unwilling to protect her.

[00:27:43] Speaker 04:
If the court has no further questions, we ask the court grant the petition and remand to the BIA.

[00:27:49] Speaker 03:
Thank you, counsel.

[00:27:50] Speaker 03:
You're not asking us to make the ultimate merits decision.

[00:27:52] Speaker 04:
Just remand back to the... I think it would be the simplest answer to remand.

[00:27:57] Speaker 04:
This court can obviously weigh in on any of the legal errors that the BIA may have engaged in in its decision as well.

[00:28:04] Speaker 04:
Those are properly before this court.

[00:28:06] Speaker 04:
Thank you.

[00:28:07] Speaker 02:
All right.

[00:28:07] Speaker 02:
Thank you, counsel.

[00:28:08] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:28:11] Speaker 02:
The case just argued is submitted for decision by the court.