[00:00:00] Speaker 00:
Good morning, your honor.

[00:00:01] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:04] Speaker 00:
Good morning.

[00:00:05] Speaker 00:
May it please the court.

[00:00:07] Speaker 00:
My name is Sean Perdomo, and I represent the petitioner, Pompilio Hernandez-Umana.

[00:00:11] Speaker 00:
Mr. Hernandez-Umana respectfully requests the court remand his removal proceedings for a new hearing before a new immigration judge based on explicit bias, the prejudice, the outcome of his proceedings.

[00:00:24] Speaker 00:
This court has the legal authority to consider his constitutional due process claim because to ignore the blatant bias in his proceedings will result in manifest injustice.

[00:00:33] Speaker 01:
Can you identify what's specific, what's the most egregious bias that you can identify from the record?

[00:00:38] Speaker 00:
It's at the outset of the proceedings when the immigration judge asked him where he worked and the petitioner responded that he worked at the Home Depot Company.

[00:00:47] Speaker 00:
The immigration judge then proceeded to ask, is that where you go to the parking lot and they pick you up for jobs?

[00:00:53] Speaker 00:
That's the most egregious example of bias that we have.

[00:00:55] Speaker 00:
And then from there, he responds that he owns a home.

[00:00:58] Speaker 00:
And the immigration judge almost incredulously asks him, do you have a mortgage?

[00:01:03] Speaker 00:
To which he responded, yes.

[00:01:05] Speaker 00:
Those statements were unnecessary to be asked by the immigration judge because they were contained within his I-589.

[00:01:12] Speaker 00:
His home address was listed on there.

[00:01:14] Speaker 00:
And there was also a letter in support from his friends that were in evidence, one from his mortgage lender.

[00:01:19] Speaker 00:
to verify that he did in fact own a home.

[00:01:22] Speaker 00:
So at the outset of the proceedings, you could already tell that there was a taint of bias in how the immigration judge was viewing this.

[00:01:28] Speaker 01:
But they were going back and forth with the government's attorney as well, weren't they?

[00:01:33] Speaker 01:
I'm sorry, who was going back and forth?

[00:01:35] Speaker 01:
Well, the judge, right?

[00:01:36] Speaker 00:
No, Your Honor.

[00:01:38] Speaker 00:
The way I recall the testimony coming in, the testimony was constantly redirected.

[00:01:44] Speaker 01:
Well, hold on, the question, and because I read your position with regards to the due process allegations, I wanted to make sure, I went through the record, I wanted to make sure that I understood it as a whole.

[00:01:59] Speaker 01:
And one of the things, one of the exchanges that I found telling, which was important to me, was when

[00:02:06] Speaker 01:
The judge asked Mr. Young, which was the government's attorney, as I understand, says, we're in a finite circumstances here and I understand that we've got some time today and we're fortunate in that respect, but just ask a question that furthers the dialogue and I'll welcome you that.

[00:02:26] Speaker 01:
That's all.

[00:02:26] Speaker 01:
That's all I'm saying.

[00:02:28] Speaker 01:
The exact question that was posed, it was posed by me.

[00:02:32] Speaker 01:
He answered it.

[00:02:33] Speaker 01:
I thought he answered it clearly.

[00:02:35] Speaker 01:
I don't know.

[00:02:35] Speaker 01:
He's on the bus.

[00:02:36] Speaker 01:
The guy's on the street writing parking tickets.

[00:02:39] Speaker 01:
In other words, I signal this particular exchange because it sounds like it's a frustrated judge that's wanting to move things forward, and he's giving it to the government as well.

[00:02:50] Speaker 00:
Yes, Your Honor.

[00:02:50] Speaker 00:
There are points where the immigration judge is directing the testimony, and that is the problem here, is that the immigration judge is aggressively

[00:02:58] Speaker 00:
redirecting the testimony to reach the particular conclusion that he wants in this case.

[00:03:03] Speaker 00:
He's not letting the testimony come in as a judicial officer will.

[00:03:07] Speaker 04:
I have a question.

[00:03:07] Speaker 04:
Was this issue raised before the BIA?

[00:03:15] Speaker 00:
No, Your Honor, it was not.

[00:03:17] Speaker 04:
Isn't that a problem?

[00:03:18] Speaker 00:
Yes, that is a problem, Your Honor.

[00:03:22] Speaker 00:
Just because it was not exhausted before the administrative agency, before the board, doesn't mean that this court cannot consider it.

[00:03:29] Speaker 04:
Why not?

[00:03:30] Speaker 00:
Because in this case, I'm sorry, the precedent that we rely on here is Hall v. City of Los Angeles.

[00:03:36] Speaker 00:
And in Hall v. City of Los Angeles, which is not an immigration case, so I understand like the

[00:03:41] Speaker 00:
the look that you're giving me.

[00:03:42] Speaker 00:
It's a 1983 civil case where an issue with due process was not exhausted.

[00:03:47] Speaker 00:
In that case, there was a coerced confession in 1983 of litigation that was not raised below.

[00:03:53] Speaker 00:
But the judicial courts, when they reviewed it... Yeah, but that's very different, as you know.

[00:03:57] Speaker 04:
I mean, something isn't raised before the agency.

[00:04:01] Speaker 04:
And the government, the respondent notes then, which they did here, and then I think, aren't we just...

[00:04:10] Speaker 04:
without authority to decide that.

[00:04:12] Speaker 04:
I mean, this is couched as a due process argument.

[00:04:16] Speaker 04:
But our case law says that if it's a due process argument, but one that you could have raised procedurally, then you have an exhaustion problem.

[00:04:27] Speaker 00:
Yes, Your Honor.

[00:04:27] Speaker 00:
But not all is lost, because this court can consider constitutional due process claims in the first instance.

[00:04:33] Speaker 00:
The jurisprudence that has to do with the Board of Immigration Appeals being able to review and correct its own errors

[00:04:40] Speaker 00:
It doesn't apply necessarily to constitutional due process claims.

[00:04:45] Speaker 04:
Although it could- But it largely applies to constitutional due process claims.

[00:04:48] Speaker 00:
Largely.

[00:04:49] Speaker 00:
But in this instance, this isn't like a violation of a regulation or a statute that wasn't raised before that the board would clearly have authority to go and correct.

[00:04:58] Speaker 00:
In this instance, it is solely a due process claim.

[00:05:00] Speaker 00:
And this isn't something that's cloaked in constitutional garb to get it before this court.

[00:05:05] Speaker 00:
It's actually being raised in the first instance here.

[00:05:07] Speaker 00:
And it is purely a due process claim because it is based on invidious discrimination.

[00:05:12] Speaker 00:
And it would be a manifest injustice for this court not to consider such blatant bias that was demonstrated by the immigration judge on the record.

[00:05:21] Speaker 00:
This also goes to the reputation of the judiciary.

[00:05:25] Speaker 00:
And in this case, the immigration courts.

[00:05:26] Speaker 04:
Do you have any other arguments that you want to raise?

[00:05:29] Speaker 00:
Yes, Your Honor.

[00:05:31] Speaker 00:
When you look at, I understand that the issue here is that

[00:05:35] Speaker 00:
it was not exhausted before the board and that's perhaps why you cannot review the bias but you can also look at the conduct of proceedings and the other argument that I would like to bring up here and you can see how this bias does affect the conclusions that were reached and how they were flawed.

[00:05:49] Speaker 00:
There was clear legal error here in the past persecution analysis.

[00:05:53] Speaker 00:
When you look at the past persecution analysis that was

[00:05:58] Speaker 00:
done by the court.

[00:06:00] Speaker 00:
In this instance, three pages are devoted to describing the incident where there was an altercation.

[00:06:06] Speaker 00:
It does not mention the mental health evidence.

[00:06:09] Speaker 00:
It doesn't mention whether there's threats.

[00:06:11] Speaker 01:
But Counsel, again, going back to a question about raising these issues, those issues, the NTA issue and the asylum claim issues, those issues were not addressed to the BIA, right?

[00:06:22] Speaker 00:
The one issue here, Your Honor, which I do want to raise is the past persecution issue, which also goes to the withholding of removal.

[00:06:29] Speaker 00:
And that one does survive all exhaustion in this case.

[00:06:32] Speaker 00:
So aside from the biased argument that we had raised in our briefs, when you look at the past persecution analysis, there is clear legal error here that under the ordinary remand rule, once that clear error has been discovered, it should be remanded.

[00:06:46] Speaker 00:
But wait.

[00:06:46] Speaker 03:
Go ahead.

[00:06:48] Speaker 03:
I was just going to ask if that issue matters, if there isn't a cognizable social group

[00:06:52] Speaker 00:
Okay, so with the cognizable social group, this was also error.

[00:06:58] Speaker 00:
The Board of Immigration Appeals said that there was insufficient evidence to find that there was social distinction within that particular social group, and it relied on the immigration judge's analysis.

[00:07:08] Speaker 00:
Here, the immigration judge

[00:07:10] Speaker 00:
Contrary to the evidence in the record stated, it wasn't done in any public way or in any public circumstance.

[00:07:15] Speaker 00:
He is misstating the records evidence that's before the court there to make his conclusions.

[00:07:21] Speaker 00:
That shows that he's committing legal error as he's going through each one of the elements for disposing of the asylum claim.

[00:07:28] Speaker 00:
So it's not just the bias, it's also cutting the petitioner off.

[00:07:32] Speaker 00:
It's reaching conclusions that aren't supported by the record.

[00:07:34] Speaker 00:
It's misstating.

[00:07:34] Speaker 03:
What evidence do you think was overlooked?

[00:07:36] Speaker 00:
I believe, going back to past persecution, I'm not trying to dodge.

[00:07:39] Speaker 03:
Well, no, I'm asking about social group.

[00:07:41] Speaker 03:
Your answer to my social group question was something about missing the evidence in the record.

[00:07:45] Speaker 03:
I don't know what you are referring to.

[00:07:46] Speaker 00:
The country conditions evidence, points out that there's violence against women and that it's not taken very seriously in El Salvador.

[00:07:53] Speaker 00:
Additionally, there is evidence that he was targeted because he had intervened in this domestic violence incident.

[00:08:00] Speaker 00:
There's a statement in the record that he makes.

[00:08:02] Speaker 00:
Also, when you're looking at the analysis... What do you mean by that?

[00:08:07] Speaker 00:
what I mean by that is is that he told he was told by his wife and That he was being targeted because he had intervened in this domestic violence But does that mean that there's a group of people who?

[00:08:22] Speaker 03:
Intervene in domestic violence who are targeted and recognized in this country or just that there was a vendetta in this particular instance okay, so staying with the particular social group claim your honor and

[00:08:32] Speaker 00:
Here, there is a distinct group that is set aside.

[00:08:35] Speaker 00:
Even the government's brief points out that people that intervene in domestic violence incidents are so few in this country that people seek out gang leaders to intervene in these incidents.

[00:08:45] Speaker 00:
It shows that within El Salvador, people that actually take a stand against domestic violence and intervene are set aside and distinct.

[00:08:53] Speaker 03:
And where is that in the record?

[00:08:54] Speaker 00:
And that is on page 635, Your Honor.

[00:08:58] Speaker 00:
And I'll come up on rebuttal and correct myself if I find out that was the wrong citation.

[00:09:02] Speaker 00:
But it's also cited within the government's brief when they're addressing this very issue.

[00:09:06] Speaker 00:
Yes, it's 635.

[00:09:07] Speaker 00:
And then you can also look at 196 through 197 for the country conditions reports that talk about violence against women in El Salvador.

[00:09:18] Speaker 03:
And sorry, where on 635 does it say something about people recognizing the people who intervene?

[00:09:23] Speaker 00:
I'm sorry, for 635, that is the gang leaders, how people seek out gang leaders to intervene in disputes.

[00:09:29] Speaker 00:
And from there, there's an inference that people within the El Salvadoran society view people who intervene in domestic violence instances as somehow set aside or socially distinct.

[00:09:40] Speaker 04:
I don't understand.

[00:09:40] Speaker 04:
The gangs are asked to intervene against the people who protect against domestic violence, or they're asked to

[00:09:53] Speaker 04:
get involved in protecting against domestic violence or what?

[00:09:59] Speaker 00:
Yes, because society views people who intervene in domestic violence incidents as set aside or somehow distinct.

[00:10:05] Speaker 04:
And so what does the gangs have to do with this?

[00:10:07] Speaker 00:
Because they seek out people that are non-official government entities.

[00:10:10] Speaker 00:
They don't rely on the police.

[00:10:11] Speaker 00:
They look for people in the community.

[00:10:13] Speaker 04:
In order to help oppose domestic violence.

[00:10:17] Speaker 00:
That's correct, Your Honor.

[00:10:18] Speaker 00:
And because these people are so few, they're seen as distinct in that society.

[00:10:22] Speaker 00:
And that's why that fact is so relevant.

[00:10:24] Speaker 00:
In this instance, he did intervene, something that goes against the culture there, as it's described in the country conditions evidence.

[00:10:32] Speaker 03:
But aside from those- We have you over your time, so we'll still give you two minutes for rebuttal.

[00:10:48] Speaker 02:
Good morning.

[00:10:49] Speaker 02:
Christopher Pryby for the Attorney General.

[00:10:51] Speaker 02:
May it please the court?

[00:10:53] Speaker 02:
I would like to make three points in response to the reply brief that we didn't have the opportunity to address.

[00:11:02] Speaker 02:
The first one is about the bias and its exhaustion.

[00:11:08] Speaker 02:
There is binding case law that actually says even straight due process claims that have to deal with bias have to go through exhaustion.

[00:11:15] Speaker 02:
There's not this constitutional exception for them.

[00:11:18] Speaker 02:
That would be Sanchez-Cruz, VINS, 255, F3rd,

[00:11:23] Speaker 02:
Pinsite 779 through 780 and it's a 2001 case.

[00:11:33] Speaker 02:
It's also as to exhaustion in general in response to Judge Mendoza's question about whether there were any other issues that didn't need to be exhausted by being raised to the board, council did not indicate that the

[00:11:53] Speaker 02:
NTA Issue was one such issue so I that is a concession by council that that issue didn't in fact need to be exhausted and was not exhausted in this instance in any case the baby case cited in the government's brief that forecloses any argument that raising an issue in the notice of appeals in the notice of appeal to the board

[00:12:15] Speaker 02:
suffices for exhaustion when that issue is then left out of the merits brief to the board.

[00:12:23] Speaker 02:
And then finally, in response to his points that Sarmati, or Sarmati v. INS allows him to seek review of the motion to reconsider without having to file a PFR that

[00:12:46] Speaker 02:
that case did not consider as whether a petition for review of the original boards, the original dismissal of the petitioner's appeal was still pending before saying whether it had to be consolidated or not.

[00:13:01] Speaker 02:
Moreover, the statute requires that the petitioner actually seek review before case is consolidated.

[00:13:08] Speaker 02:
And here, no petition for review was filed under Federal Rules of Appellate Procedure 15.

[00:13:14] Speaker 02:
That is how he would

[00:13:15] Speaker 02:
would have to seek review in this court of a board order, of an agency order.

[00:13:20] Speaker 02:
And moreover, there's no response in petitioners' reply brief to the attorney general's citation of the Andea case, which also says a separate PFR is required of a denial of a motion to reopen or reconsider.

[00:13:38] Speaker 02:
Unless the court has any further questions.

[00:13:42] Speaker 02:
Attorney General requests that the petition for review be denied.

[00:13:45] Speaker 02:
Thank you very much.

[00:13:46] Speaker 03:
Thank you.

[00:13:48] Speaker 00:
We have two minutes for rebuttal I'll make this brief but the particular social group just picking up on that conversation where we left off when you look at the immigration judge's analysis and that's really what we're taking issue with here is how he conducted the analysis when he addresses the particular social group he doesn't actually

[00:14:09] Speaker 00:
use the legal standards.

[00:14:10] Speaker 00:
He doesn't determine whether or not this particular group was set aside or somehow socially distinct.

[00:14:15] Speaker 00:
Instead, what he does is he recounts the incident that he finds so egregious that there was this physical altercation and he cites at 242 the immediate out punishment against the person responsible for the DV incident.

[00:14:27] Speaker 00:
He doesn't really go into how the group may be set aside or socially distinct or set apart.

[00:14:33] Speaker 00:
He goes back to the incident just to paint him

[00:14:36] Speaker 03:
in the worst possible light as a criminal and... Aren't we looking at the BIA though and the BIA says that the group is not socially distinct at AR4?

[00:14:46] Speaker 00:
They do, but these just say that there's insufficient evidence and they otherwise agree with the immigration judge's decision, so it incorporates the immigration judge's analysis as part of their decision.

[00:14:56] Speaker 00:
It doesn't go into great detail as to whether or not that particular social group on the evidence was set aside or somehow socially distinct.

[00:15:04] Speaker 00:
And you can see this throughout the immigration judge's decision because when you look at the past persecution, that's where you'll see, if the court reaches that question, that the judge didn't even look at the evidence cumulatively

[00:15:15] Speaker 00:
He looked at single instances and in that particular portion of the decision when you review it, it's about three pages and three pages of him reciting what had happened at the restaurant.

[00:15:26] Speaker 00:
It doesn't discuss whether the PTSD was taken into consideration, whether or not the threats that continued visits to his home, any of those things contributed to it.

[00:15:36] Speaker 00:
There's also evidence in the record that his house was shot at three times and it wasn't even developed within the testimony as to where those shots came from.

[00:15:46] Speaker 00:
it kind of demonstrates why the judge did not apply the correct legal standard.

[00:15:50] Speaker 00:
And under the ordinary remand rule, it should get remanded back.

[00:15:53] Speaker 00:
And even the government's brief concedes that if this court does reach those issues on past persecution, well-founded fear, nexus, and internal relocation, that it should be sent back down for a proper analysis before the board.

[00:16:06] Speaker 00:
So without hearing any further questions, I submit.

[00:16:09] Speaker 03:
Thank you very much.

[00:16:10] Speaker 03:
Thank you both sides for the arguments.

[00:16:12] Speaker 03:
This case is submitted.