[00:00:01] Speaker 04: Your honors, may it please the court, my name is Kelsey Salas, and I, along with Ulysses Solis and Professor Evangeline Abril, represent the petitioner, Ms. [00:00:10] Speaker 04: Guevara Serrano. [00:00:12] Speaker 04: Ulysses and I will each speak for six minutes in respect for your request to reserve three minutes for rebuttal. [00:00:20] Speaker 04: This case is before you because Ms. [00:00:21] Speaker 05: Guevara- I'm sorry, could I just ask, are you dividing issues or are you just dividing the time between the two of you? [00:00:26] Speaker 04: Choose end time. [00:00:27] Speaker 05: Okay, and which ones are, which issues are which of you? [00:00:30] Speaker 04: I will be discussing that the agency erred in finding that Ms. [00:00:34] Speaker 04: Guevara Serrano failed to establish that the Honduran government was unwilling and unable to protect her from her abuser. [00:00:41] Speaker 04: And Luis will be discussing that the agency erred in finding that Ms. [00:00:45] Speaker 04: Guevara Serrano was not persecuted because of her religious beliefs. [00:00:48] Speaker 05: Thank you. [00:00:50] Speaker 04: This case is before you because Ms. [00:00:52] Speaker 04: Guevara Serrano, a native Honduran woman, suffered severe abuse at the hands of her former partner, a gang member named Oscar. [00:00:59] Speaker 04: Ms. [00:00:59] Speaker 04: Guevara Serrano was a minor at the time she entered the relationship. [00:01:03] Speaker 04: After she started to attend church, Oscar began abusing her daily. [00:01:08] Speaker 04: At its worst, she suffered a stab wound to the stomach. [00:01:12] Speaker 04: The I.J. [00:01:13] Speaker 04: denied Ms. [00:01:13] Speaker 04: Guevara Serrano's application for asylum, withholding of removal, and relief under CAD. [00:01:18] Speaker 04: The BIA adopted and affirmed the I.J.' [00:01:21] Speaker 04: 's decision, citing matter of rubano. [00:01:25] Speaker 04: In finding that Ms. [00:01:26] Speaker 04: Guevara Serrano failed to prove that the Honduran government was unwilling and unable to protect her from her former partner Oscar, the agency made three errors. [00:01:36] Speaker 04: First, the agency made a legal error by applying the wrong standard and focusing on Ms. [00:01:41] Speaker 04: Guevara Serrano's failure to report without considering her reasons for reporting, which were that it would have been futile and dangerous. [00:01:48] Speaker 04: Second, the agency aired by failing to consider specific pieces of evidence that would have demonstrated that reporting would have been futile and dangerous. [00:01:58] Speaker 04: Lastly, the BIA made an impermissible finding of fact as to whether Ms. [00:02:02] Speaker 04: Guevara Serrano demonstrated futility. [00:02:06] Speaker 04: The agency aired by focusing on Ms. [00:02:08] Speaker 04: Guevara Serrano's failure to report without considering whether reporting would have been futile and dangerous. [00:02:15] Speaker 04: The Ninth Circuit has held that an applicant who has suffered persecution at the hands of a private party need not report the abuse if they can prove that reporting would be futile or dangerous. [00:02:26] Speaker 04: Although whether an applicant has reported is a factor to be considered, it is not dispositive. [00:02:31] Speaker 05: Could I ask you, so you listed your three issues, and on the second issue, I think you're arguing that the record compels the conclusion that the police were unwilling or unable to help. [00:02:46] Speaker 05: If we agreed with you on that second issue, do we need to reach this first issue? [00:02:51] Speaker 04: As for the legal standard, Your Honor, I believe that there would still be, I believe if you find that it's unwilling and unable, you would not have to find that there was a per se reporting requirement because the argument is that by demonstrating futility and that reporting would have been dangerous, she thereby demonstrated, but if you find that the evidence is enough to compel the conclusion, then you would not need to reach the first issue. [00:03:22] Speaker 02: So if we what did she testify to on this point? [00:03:28] Speaker 04: So as for dangerousness, which was not considered by the IJ or the BIA, she had testified that he had threatened to take her life over to speed over their children. [00:03:37] Speaker 04: And when she attempted to intervene, he stabbed her in the stomach and she had to go to the hospital. [00:03:42] Speaker 02: I understand that, but on the government being unwilling or unable, what did she testify as to that point? [00:03:50] Speaker 04: She testified to a general awareness of the government being of, quote, that the police did not care for what women had to say about these issues. [00:03:59] Speaker 04: She also testified [00:04:01] Speaker 04: about the dangerousness that posed, but on the exact issue of being unwilling or unable, the country conditions support this finding showing that there are high rates of impunity and corruption. [00:04:15] Speaker 04: In fact, citing that 75% of homicide investigations are not investigated and 88% never reach a judicial resolution showing that [00:04:24] Speaker 04: The government has trouble effectively carrying out their laws as well as a site to a U.S. [00:04:31] Speaker 04: Department of State report showing that Honduras ineffectively enforces their domestic violence laws. [00:04:40] Speaker 02: I thought there was evidence that a man had been beaten and the police didn't do anything. [00:04:44] Speaker 04: Yes, there was also that testimony. [00:04:46] Speaker 04: She testified that her persecutor had once before been arrested for a mugging against a male victim, and that she also testified that he had other victims, but others were afraid to report him because they were worried that he would kill them. [00:05:00] Speaker 01: It appeared that the evidence put in the record by the attorney general was very limited on country conditions. [00:05:07] Speaker 01: Do you agree with that? [00:05:09] Speaker 01: Yes, Your Honor. [00:05:10] Speaker 01: And how do we weigh that then? [00:05:12] Speaker 01: If we have a lot of evidence from your side and not much from the other side, how should we weigh that? [00:05:18] Speaker 04: Well, Your Honor, we would ask that this Court find that it was an error for the IJ and BIA not to consider all evidence on the record. [00:05:27] Speaker 04: We find that the IJ conducted a selective analysis of our own evidence in the country conditions as well as the testimony, and this Court has held that the IJ and BIA must consider all relevant evidence on the record pertaining to this issue. [00:05:44] Speaker 04: As for the BIA's impermissible finding of fact, the BIA explicitly said that Ms. [00:05:49] Speaker 04: Guevara Serrano did not establish futility as one of its reasons for agreeing with the IJ. [00:05:54] Speaker 04: And this would be an impermissible finding of fact as the IJ never reached a conclusion on this issue. [00:05:59] Speaker 04: And I see I'm running out of time, so thank you so much. [00:06:01] Speaker 04: Thank you. [00:06:20] Speaker 00: Good morning, your honors, and may it please the court. [00:06:22] Speaker 00: My name is Ulises Olis and I am also representing Ms. [00:06:25] Speaker 00: Guevara Serrano. [00:06:26] Speaker 00: Today, or actually, I'm sorry, here the immigration judge found that Ms. [00:06:30] Speaker 00: Guevara Serrano suffered past harm that rose to the level of persecution because Oscar would regularly verbally abuse her, insult her religion, threaten to kill her, beat her, raped her, and even attempted to kill her when he stabbed her in the stomach. [00:06:41] Speaker 00: which supports that the only remaining issues in this case were that the government's ability to protect Ms. [00:06:48] Speaker 00: Guevara Serrano as discussed by my co-council, Kelsey, and Nexus, which I will be addressing as it pertains to Ms. [00:06:54] Speaker 00: Guevara Serrano's religion as a devout Seventh Day Advent Test. [00:06:58] Speaker 02: Right, because you would agree that simply the partners injuring her and beating her up would not be enough to show any nexus to a protected ground. [00:07:10] Speaker 00: Yes, Your Honor. [00:07:12] Speaker 00: You must show that there is a protected ground. [00:07:14] Speaker 00: There are three reasons why there is a nexus between her persecution and her religion. [00:07:20] Speaker 00: First, the IJ's finding that there was no nexus is not supported by substantial evidence. [00:07:25] Speaker 00: Second, the IJ failed to conduct a proper mixed motives analysis. [00:07:29] Speaker 00: And third, the IJ failed to use the proper standard when they only used the but-for test and failed to conduct the standing alone inquiry in a mixed motives case. [00:07:41] Speaker 05: The government seemed to think that the BIA hadn't even incorporated this part of the IJ's analysis, that Nexus wasn't even a basis for the BIA's ruling, and it seemed like maybe you thought that in your brief as well, but are you reading the BIA as incorporating through the Bourbono reference and the citations to Nexus, reaching the Nexus argument? [00:08:05] Speaker 00: Yes, Your Honor, that is exactly correct. [00:08:09] Speaker 00: While religion and nexus were styled as harmless errors in the opening brief, they were asserted improperly before this court because under the matter of Bourbono, all issues to the IJ are deemed to be raised. [00:08:22] Speaker 00: before the board and are therefore exhausted. [00:08:24] Speaker 05: Oh, I'm not really asking about exhaustion. [00:08:26] Speaker 05: I'm asking about whether the BIA, one of the grounds of the BIA denying the claim was nexus or whether the BIA only reached the unable or unwilling prong. [00:08:40] Speaker 00: They primarily discussed the unable or unwilling to prong, but they did reference the religion and nexus in the footnote. [00:08:47] Speaker 00: I mean, in the parentheticals and footnotes. [00:08:50] Speaker 02: And you think that's enough? [00:08:53] Speaker 00: It's sufficient, Your Honor. [00:08:57] Speaker 00: Substantial evidence does not support the agency's finding that Ms. [00:09:00] Speaker 00: Guevara Serrano's religion was not. [00:09:02] Speaker 02: Well, let me ask you, did the government address that? [00:09:04] Speaker 00: The government chose not to, Your Honor. [00:09:08] Speaker 00: At least not for the brief. [00:09:11] Speaker 00: But they had opportunity and notice since it was fully briefed on our end, Your Honor. [00:09:15] Speaker 00: Substantial evidence does not support the agency's finding that Ms. [00:09:17] Speaker 00: Guevara Serrano's religion was not one central reason for the harm that she suffered because the record is replete with evidence that proves otherwise. [00:09:25] Speaker 00: The immigration judge found that Ms. [00:09:27] Speaker 00: Guevara Serrano provided credible testimony. [00:09:29] Speaker 00: When Ms. [00:09:30] Speaker 00: Guevara Serrano was specifically asked when the abuse started, she testified that the abuse began because she started going to church and she felt, and Oscar stated that she shouldn't be doing that because of that sort of the devil. [00:09:42] Speaker 00: So he started beating her, hurting her and mistreating her. [00:09:45] Speaker 00: and he would tell her not to go. [00:09:47] Speaker 00: And this is on pages 82 and 83 of the record. [00:09:50] Speaker 05: So you argue that the IJ ignored this evidence, but the IJ did say that Oscar would insult her religion and stated that he did not believe in God. [00:10:00] Speaker 05: So it's not like the IJ totally ignored this religion evidence. [00:10:07] Speaker 05: Why should we think that the IJ needed to reference every single bit of the testimony about this? [00:10:13] Speaker 00: Your Honor, by not including the onset or the temporal proximity to when the abuse started, that's substantial evidence that should have been required, given that the onset and temporal proximity can be used as circumstantial evidence as nexus, and that was something that the IJ didn't consider, at least that specific piece in terms of the temporal proximity. [00:10:36] Speaker 05: And so you'd think that the IJ did look at but for but not the sufficient cause analysis. [00:10:46] Speaker 05: But the IJ did say that there's no indication in the record that Oscar was violent with any other Adventists. [00:10:53] Speaker 05: And that sounds a bit like sufficiency causation, like [00:10:57] Speaker 05: The idea would be, if Oscar didn't attack other people of the same religion, that shows that religion wasn't enough on its own. [00:11:03] Speaker 05: How do you respond to that part of the IJ's discussion? [00:11:08] Speaker 00: Yes, Your Honor. [00:11:09] Speaker 00: The IJ did mention that in their decision. [00:11:12] Speaker 00: However, Ms. [00:11:13] Speaker 00: Guevara Serrano doesn't need to prove if he persecuted other Seventh-day Adventists. [00:11:18] Speaker 00: she need only prove whether there's a nexus between her persecution and her practicing as a Seventh-day Adventist, and she does so here. [00:11:26] Speaker 05: I mean, I think for a reason, for withholding, that seems very persuasive, but if we're looking at the asylum standard, where it really needs to be enough on its own, how do we know that it's, how do we know that IJ was wrong to say, [00:11:42] Speaker 05: that the fact that he wasn't attacking other people of the same religion shows that it's not enough on its own as to her. [00:11:50] Speaker 00: Well, it's demonstrated just based on her testimony, Your Honor. [00:11:54] Speaker 00: Again, she provides testimony about the onset of the abuse. [00:11:58] Speaker 00: She provided testimony that her attendance started to decrease from four days to one or two days because she thought that Oscar would kill her if she found out that she was still going to church. [00:12:07] Speaker 00: She even testified that she didn't even feel safe praying at home, which is why she would go to church because that was the only place where she felt safe. [00:12:14] Speaker 00: These facts indicate that religion was a nexus for the persecution that Ms. [00:12:19] Speaker 00: Guevara Serrano suffered. [00:12:20] Speaker 00: I see that I am out of time, Your Honor. [00:12:22] Speaker 00: Thank you. [00:12:24] Speaker 05: Thank you. [00:12:25] Speaker 05: Let's hear from the government. [00:12:33] Speaker 03: Good morning and may it please the court. [00:12:36] Speaker 03: My name is Katherine McKinney and I represent the respondent attorney general in this matter. [00:12:41] Speaker 03: Your honors, this court should deny the petition for review. [00:12:44] Speaker 03: Substantial evidence supports the determination that the petitioners did not demonstrate that the Honduran government was unwilling or unable to control the private actors they feared, petitioners, former partner Oscar. [00:12:56] Speaker 03: No record evidence compels a contrary conclusion. [00:13:00] Speaker 03: This finding is dispositive of the asylum and withholding of removal claims. [00:13:05] Speaker 03: Accordingly, the court should deny the petition for review. [00:13:10] Speaker 03: Substantial evidence supports the agency's finding regarding the government unwilling or unable determination in this case. [00:13:17] Speaker 03: Here, the petitioner did not report the past harm to the police. [00:13:21] Speaker 03: Also, the petitioner did not compellingly demonstrate that it would be futile or dangerous to do so. [00:13:27] Speaker 03: The petitioner in this case had no prior contact with the police. [00:13:30] Speaker 03: There was no prior police harassment of her. [00:13:32] Speaker 03: There was also substantial circumstantial evidence in the record supporting the agency's determination, which the judge identified. [00:13:42] Speaker 03: case, there was a prior arrest of Petitioner's partner Oscar, which the agency found the inference from that circumstantial evidence was that the Honduran government, at least in that locality, was actually willing to address Oscar's crimes. [00:13:58] Speaker 05: How was that a reasonable inference to draw that [00:14:04] Speaker 05: the police would have protected this petitioner though because part of her claim is that violence against women was ignored and the victim in that case was a man. [00:14:13] Speaker 02: And they didn't do anything to him even when he even when he assaulted a man. [00:14:25] Speaker 03: Excuse me. [00:14:26] Speaker 03: I didn't mean to interrupt there. [00:14:28] Speaker 03: Excuse me. [00:14:29] Speaker 03: Yes, the agency drew that inference here, and it's the government's position that it was a reasonable inference. [00:14:34] Speaker 03: Of course, there are other inferences that could be drawn, but for example, we have in some cases, and there's an allegation here, [00:14:41] Speaker 03: that Oscar was affiliated with a gang. [00:14:46] Speaker 03: In some of these other cases, we have indication or there's an allegation that the local police are reluctant to arrest someone with a gang affiliation. [00:14:53] Speaker 03: At least we have here evidence that the local police were willing to arrest him for a different offense, for an assault. [00:15:02] Speaker 05: So that might defeat the idea that the gang affiliation is the problem, but it doesn't defeat all the country-conditioned evidence that violence against women is ignored. [00:15:15] Speaker 03: It goes to whether or not the police were willing to arrest Oscar in this case. [00:15:20] Speaker 03: I take Your Honor's point about the rest of the country conditions. [00:15:26] Speaker 03: And with respect to that, the judge did consider the country conditions evidence that was in the record that consisted of the UNHCR report [00:15:36] Speaker 03: women on the run, but found that evidence inconclusive. [00:15:41] Speaker 05: So while there was some evidence and the judge... But that was only one of many reports that are in this record and some of the others are even worse. [00:15:49] Speaker 05: So how do we deal with the fact that the IGA didn't talk about those? [00:15:54] Speaker 03: So the reports, not to make a distinction between news articles or reports, I think in this record the background country and conditions evidence we have is the UNHCR report and as far as the State Department reports we have the International Religious Freedom Report. [00:16:10] Speaker 03: Some of the sites in petitioners briefed to the State Department Human Rights Report, I believe or just to the footnote in the UNH report that that was a source, footnotes 43 and 44 of the UNHCR report. [00:16:25] Speaker 03: So I don't believe that the petitioners in this case submitted the Human Rights Report for Honduras, but they did submit the UNH [00:16:35] Speaker 03: CR report which the judge does discuss and the judge states that in that report we did have interviews from various women with their experiences but the judge simply found that that evidence was inconclusive and noted the reason why. [00:16:49] Speaker 03: He found that report lacking in objective evidence as to the government's response and it's worth noting as the government noted in their [00:16:59] Speaker 03: brief that this is consistent with similar decisions, other panels of this court, with similar fact patterns and similar background evidence. [00:17:09] Speaker 03: It's strikingly similar to Castro-Perez. [00:17:12] Speaker 03: There we had a Honduran woman, also 17 years old at the time of the harm. [00:17:18] Speaker 03: The ex-boyfriend was also a gang member when we had that allegation here. [00:17:24] Speaker 03: And I do believe there the country conditions reports and the record were from [00:17:28] Speaker 03: 2013 and 2014. [00:17:30] Speaker 03: And we also had the applicant's expression of both fear and belief that the police wouldn't help as a reason for not reporting. [00:17:40] Speaker 03: So the facts and the background evidence were very similar. [00:17:44] Speaker 03: And there, what that panel said was the evidence simply didn't compel the conclusion that the applicant suggested. [00:17:52] Speaker 03: And it's the government's position that that would be the same here. [00:17:57] Speaker 03: Sorry, can you say the name of that case again? [00:17:59] Speaker 03: Sorry, which case was this again that you're talking about now? [00:18:03] Speaker 03: That case that was very similar fact pattern was Castro Perez, and that's cited in the government's brief. [00:18:09] Speaker 03: Also a similar, more recent, although unpublished case is the Reyes case from 2025, although unpublished, it's cited in the government's brief. [00:18:19] Speaker 03: And that was also a Honduran national who did not report the past harm to the police. [00:18:24] Speaker 03: And what that other panel found was they didn't show [00:18:27] Speaker 05: So looking at the published one, because we're not going to talk about the unpublished one as precedent, in Castro Perez, I know that the petitioner was afraid of her father, but I don't recall that there were death threats the way there were here. [00:18:40] Speaker 05: I mean, there's pretty specific testimony here that the abuser threatened to kill her and that other people said that they were worried about his violence as well. [00:18:49] Speaker 05: So I don't, do you think that, can you point to a place where that was true in Castro Perez? [00:18:54] Speaker 03: I believe in Castro, Paris, the fear was from the ex-gang member. [00:18:58] Speaker 03: There were allegations of rape and then also fear from the father. [00:19:02] Speaker 03: I cannot, off the top of my head, point to death threats. [00:19:06] Speaker 03: If that's the one distinguishing factor, the government's position would be that it still wouldn't be compelling record evidence contrary to the agency's determination here. [00:19:18] Speaker 03: Here it's worth noting that, sorry? [00:19:21] Speaker 01: Did the government in this case offer any evidence of country conditions that would reach a different conclusion than what the petitioner has put into the evidence? [00:19:34] Speaker 03: It is the petitioner's burden to meet their burden of proof. [00:19:37] Speaker 03: And I know that the petitioners, as the applicant, submitted the background materials here. [00:19:44] Speaker 03: But it's not the government's burden to rebut anything. [00:19:49] Speaker 03: I think what the judge was tasked with doing was looking at the record presented to her in this case and determining what that background evidence, regardless of which party submitted it, showed. [00:20:02] Speaker 03: And the judge here in this case found that there was some evidence, but that it was inconclusive or insufficient or not enough. [00:20:09] Speaker 03: It's worth noting here that in the judge's 12-page written decision, she does acknowledge the severity of the harm. [00:20:18] Speaker 03: Indeed, she finds that the harm rose to the level that would be necessary for a finding of past harm persecution. [00:20:26] Speaker 03: It's just that the petitioner didn't meet her burden of proof on the other aspects of the case. [00:20:30] Speaker 03: And in discussing that past harm, she does note that the petitioner was threatened repeatedly, and stabbed, and verbally abused. [00:20:38] Speaker 03: The level of harm was severe, but that's not the only aspects in these cases. [00:20:43] Speaker 03: Obviously, for example, in Castro Parrots, where we had also domestic violence and a rape accusation, you still have to meet your burden of proving that the government would be [00:20:52] Speaker 03: unable or unwilling to help you. [00:20:55] Speaker 03: And even if this is a close case, as we've noted, it's similar to cases where other panels of this court have agreed with the agency or at least found that the evidence didn't compel a conclusion contrary to the agency. [00:21:08] Speaker 03: So even if it's a close case, the agency wasn't required to draw the inferences from the record that the petitioners suggest. [00:21:16] Speaker 03: And the evidence here doesn't compel a contrary conclusion. [00:21:20] Speaker 03: I did. [00:21:21] Speaker 05: I'm moving to my time. [00:21:22] Speaker 03: Hold on. [00:21:26] Speaker 05: Even if we thought you might be right, that the evidence didn't compel a conclusion, which I don't know if we'll agree with you or not, but there's a threshold question about whether the agency even applied the right legal test here, because it really seems that the agency treated the failure to report as dispositive, and our case law says that that is wrong. [00:21:44] Speaker 05: So how do you deal with that problem? [00:21:45] Speaker 05: At the very least, it seems like we would have to remand this issue, wouldn't we? [00:21:50] Speaker 03: So the government respectfully disagrees that what the agency did in this case was impose a per se reporting requirement. [00:21:58] Speaker 03: It appears a fair reading of the agency's decision is that both the judge and the board address the government unwilling or unable determination. [00:22:06] Speaker 03: That's the finding they had to make. [00:22:09] Speaker 03: And one factor in considering that is whether or not an individual reported. [00:22:14] Speaker 03: And it appears from this case that what the judge is doing is considering whether or not the applicant had reported as a factor and then goes on to discuss the stated reasons for not doing so, that she didn't believe the police would assist her, goes on to address how the country conditions evidence impacts that, and then the board in affirming [00:22:34] Speaker 03: specifically says that she didn't report and she also didn't show that it would be futile or dangerous to do so, affirming the immigration judge's decision. [00:22:43] Speaker 03: So the board's understanding of that finding is the same as the government's in its brief, that the immigration judge had addressed that she didn't report as factor, but they also addressed reasons for not doing so and made the ultimate determination that she didn't submit enough evidence to meet her burden. [00:23:01] Speaker 02: Well, I'm not sure that that's how to read the agency decision, the board decision, because they say that the respondent did not seek the authority's protection. [00:23:14] Speaker 02: The respondents have not persuasively challenged this determination on appeal. [00:23:19] Speaker 02: As such, we affirm the immigration judge's determination that the respondents have not demonstrated they would be unwilling or unable. [00:23:27] Speaker 02: So it seems to me you can read that they're relying almost exclusively on the failure to report, which we have said is not sufficient. [00:23:41] Speaker 03: I believe if we look at the board's decision, the second page of the board's decision, when they say they're adopting the judge's decision to deny based on the fact that she didn't show that the Honduran government would be unwilling or unable to protect the petitioners. [00:23:57] Speaker 03: And then they go on to say, and as the judge observed, the petitioners did not seek the authority's protection, did not report a former partner to police, and did not demonstrate that reporting would be futile. [00:24:10] Speaker 03: and noting that they hadn't made persuasive arguments on appeal. [00:24:15] Speaker 03: So I think there they're looking both at the fact that the individual applicant didn't report, but also that she didn't demonstrate that reporting would have been futile. [00:24:27] Speaker 03: And then citing back to the IJA's decision. [00:24:31] Speaker 03: So that's what the board is saying, but also the board's understanding of the immigration judge's findings. [00:24:36] Speaker 03: It's the government's position from the context here [00:24:40] Speaker 03: it's clear that the judge was considering not reporting as one factor in its overall analysis and also considering the reasons for not doing so. [00:24:51] Speaker 05: Before you run out of time, could I ask you about the Nexus issue? [00:24:55] Speaker 05: Because Petitioner has argued that the board reached the Nexus issue and you have argued that the board didn't. [00:25:01] Speaker 05: And so what should we do about this? [00:25:03] Speaker 03: Yeah, so it's the government's position that the board, when adopting and affirming and citing Bourbonneau, they're saying they're adopting and affirming the decision to deny based on the government unwilling or unable determination. [00:25:18] Speaker 03: That's the only thing they discuss. [00:25:19] Speaker 03: That's the only analysis. [00:25:21] Speaker 03: And that's dispositive. [00:25:24] Speaker 03: So it was unnecessary for them to reach the other issues. [00:25:26] Speaker 05: If we disagree with you on that issue, though, and so what if we think you're wrong and the record compels the conclusion that the police were unable or unwilling, then what do you think should happen? [00:25:38] Speaker 05: Because it looks to me like the BIA goes on and talks about nexus, but you're saying we should ignore that. [00:25:42] Speaker 05: So what do you want us to do if we disagree with you on the prong you have briefed? [00:25:49] Speaker 03: And okay, so I just want to point out that petitioners also agreed in their opening brief, they specifically say on page, I believe it's page 39, the BIA did not reach the issue of nexus. [00:26:00] Speaker 05: I agree, they said that also. [00:26:02] Speaker 05: So both sides said that. [00:26:03] Speaker 05: And so what should we do now? [00:26:06] Speaker 05: What should we do if we disagree with you on what you have briefed? [00:26:09] Speaker 03: So we do agree that both parties agree that the board didn't reach nexus, at least that's what they said in their opening brief. [00:26:18] Speaker 03: If the court disagrees or finds otherwise, we don't have a board decision on that matter. [00:26:23] Speaker 03: So then it would be more appropriate. [00:26:25] Speaker 03: There's lack of a board decision in the first instance there. [00:26:29] Speaker 03: I don't believe the board is adopting the nexus determination. [00:26:32] Speaker 03: So a remand would be more appropriate if the court finds that that was error, that analysis is lacking. [00:26:39] Speaker 05: And if we read the board differently, is your position what we need to follow though? [00:26:44] Speaker 05: I mean, now that you're saying this here, does that mean that we should just do what you're saying, even if we don't read it that way? [00:26:53] Speaker 03: Well, the government's position would be that the board didn't analyze that, and obviously that wasn't discussed in the government's brief because the petitioners in their opening brief, when they had an opportunity to address this issue, said that the board didn't reach it. [00:27:07] Speaker 03: So they were conceding, or at least agreeing that the board didn't read it, and although they did go on to argue merits, they said they were doing so in order to establish that any error wasn't harmless. [00:27:17] Speaker 03: which is obviously different than what I believe they're saying today or saying in the reply brief, that somehow the citation to Bourbonneau, which I believe that's their argument, that by citing Bourbonneau that the board was adopting the decision as a whole or at least as a whole with the exception of what the board said had been unexhausted or waived. [00:27:36] Speaker 03: And we just disagree with that interpretation, but we also note that from reading the opening brief that our understanding of their arguments would be that they all, [00:27:46] Speaker 03: that nexus hadn't been reached. [00:27:48] Speaker 03: But if the court disagrees, yes, it would be the government's position that it would be best to let the board address that on the merits because we don't have a board decision or analysis on that. [00:27:59] Speaker 03: I believe that the board was just adopting unwilling or unable determination because that was dispositive and it would be unnecessary for them to reach issues that are unnecessary for them to do so. [00:28:13] Speaker 03: So for the foregoing reasons and for the reasons noted in the government's brief, we would request that the court affirm the agency decision and deny the petition for review. [00:28:25] Speaker 03: If the court has no further questions. [00:28:28] Speaker 05: Thank you. [00:28:29] Speaker 05: We have some time saved for rebuttal. [00:28:37] Speaker 04: Hello, Your Honors. [00:28:38] Speaker 04: On rebuttal, I'd like to make three points. [00:28:40] Speaker 04: The first point, as for the arrest, we are not asking for a different inference to be drawn from Oscar's arrest. [00:28:46] Speaker 04: We're merely asking the court to consider all evidence when considering the arrest. [00:28:51] Speaker 04: The country condition report shows that 200 women had similar experiences in which they reported their abuse to the police, their abusers were arrested for 24 hours and released, as well as another woman who had reported her abuser to the police who was affiliated with a gang, and that the police officer handed this report over to the gang, which shows that this could have been dangerous and futile because the response would not have been sufficient to protect Ms. [00:29:19] Speaker 02: Guevara Serrano. [00:29:21] Speaker 04: AR 171 was the two experiences from the Honduran women who had reported and saw their abuser released. [00:29:30] Speaker 04: And it's in the Women on the Run article. [00:29:32] Speaker 04: And as for the other one, it is on page, one moment, I'm so sorry. [00:29:41] Speaker 04: It is also in the Women on the Run article, and that would be on page AR165. [00:29:47] Speaker 04: And then as for dangerousness, this also showed that it was dangerous considering the evidence of the multiple threats, the attempt on her life, the threats that he would use his gang connections to hurt her, and he said that they would take his orders, which she interpreted to mean kill her. [00:30:02] Speaker 04: And so considering all of the evidence on the record with this one arrest, this shows that [00:30:07] Speaker 04: Any response from the government would have been futile and led to more danger for Miss Guevara Serrano. [00:30:13] Speaker 04: Second, as for Castro Perez, [00:30:15] Speaker 04: That case is distinguishable from our case. [00:30:18] Speaker 04: That case was about a Honduran woman. [00:30:21] Speaker 04: However, the court found that the Honduran government treats rape and domestic violence as two separate crimes. [00:30:28] Speaker 04: And they had found that the Honduran government in that case had enforced laws against rape. [00:30:35] Speaker 04: But they had not found that domestic violence laws had been effectively implemented. [00:30:39] Speaker 04: And in this case, this is about domestic violence, not rape. [00:30:42] Speaker 04: And as for the third. [00:30:43] Speaker 04: It's about both, right? [00:30:45] Speaker 04: Yes, there is still rape. [00:30:47] Speaker 04: But I wouldn't say that it's exclusively rape. [00:30:49] Speaker 04: It is both. [00:30:49] Speaker 04: And so the courts did not find that domestic violence was effectively. [00:30:54] Speaker 04: So one is a subset of the other, I suppose. [00:30:56] Speaker 04: Yes. [00:30:57] Speaker 04: Yes, Your Honor. [00:30:58] Speaker 04: And as for the third, again, the IJ and the BIA failed to mention futility and dangerousness. [00:31:04] Speaker 04: And so that is the incorrect legal standard failing to consider her reasons for not reporting. [00:31:08] Speaker 04: And Arnelis Chavez versus Gonzalez [00:31:10] Speaker 04: This court found that it was error for the IJ and BAA to focus on the petitioner's credible testimony that he had not reported while disregarding all of the reasons for why he did not report such as the indifference he suffered from the police. [00:31:25] Speaker 04: I see I'm running out of time. [00:31:26] Speaker 02: Would you just tell us what your position is with respect to Nexus and whether the board reached it or not? [00:31:36] Speaker 04: Because of the site to Burbano and because the BIA did not expressly show any disagreement with the IJ and IJ's decision we would say that it was in front of the BIA and for those reasons it would be proper to bring it up here. [00:31:54] Speaker 02: All right. [00:31:55] Speaker 04: Thank you so much. [00:31:56] Speaker 05: Thank you both sides for the helpful arguments. [00:31:58] Speaker 05: This case is submitted. [00:31:59] Speaker 05: And thank you very much for taking on this pro bono representation. [00:32:03] Speaker 05: We really appreciate it. [00:32:04] Speaker 05: And it's very helpful to our court to have great representation like this.