[00:00:00] Speaker 01:
You may proceed.

[00:00:01] Speaker 02:
Thank you, Your Honors.

[00:00:02] Speaker 02:
May it please the Court?

[00:00:03] Speaker 02:
My name is Aliyah Carmali on behalf of Petitioner Santa, Geronimo de Ramos, and her daughter, Dalen.

[00:00:10] Speaker 02:
The main issue in this case is whether or not the agency, the Board of Immigration Appeals, properly found that Petitioner was not a credible witness, and whether or not that was supported by substantial evidence.

[00:00:23] Speaker 02:
The lower courts here erred in a courting Petitioner's declaration and testimony 08.

[00:00:30] Speaker 02:
without substantial evidence to sustain an adverse credibility finding.

[00:00:34] Speaker 01:
Well, okay, so let's walk through it because, I mean, we get these all the time.

[00:00:39] Speaker 01:
I struggle with these because sometimes it does feel a little bit like a technicality or whatever, but, I mean, our law says if there's, our president says if there's

[00:00:51] Speaker 01:
any evidence that supports that, or then we have to generally affirm that, because that would satisfy substantial evidence.

[00:01:00] Speaker 01:
So the BIA and the IJ found discrepancies in Ramos' description of her fluency in Spanish.

[00:01:11] Speaker 02:
That is a predominant issue, yes, Your Honor.

[00:01:13] Speaker 02:
And it is substantial evidence.

[00:01:14] Speaker 02:
It's not any evidence.

[00:01:16] Speaker 04:
And it's also that it's not, I mean, we have abandoned the notion

[00:01:21] Speaker 04:
That just one is good enough, right?

[00:01:24] Speaker 04:
So it has to be some substantial contradictions if you're relying on contradictions.

[00:01:32] Speaker 02:
Exactly, Your Honor.

[00:01:33] Speaker 02:
And I think here there was clear error because, as we've stated in our brief, there were seven or eight instances in which petitioner testified over and over again to the judge, you know, this is how I learned Spanish.

[00:01:46] Speaker 02:
I learned Spanish by watching television.

[00:01:49] Speaker 02:
in my neighbor's house.

[00:01:51] Speaker 02:
This was for eight years off and on.

[00:01:53] Speaker 02:
She watched Spanish language programming.

[00:01:56] Speaker 00:
I mean, but the IJ weighs all of this.

[00:01:59] Speaker 00:
I mean, she claimed not to have a significant facility in Spanish, but the IJ pointed out, you know, one of the things in the record is a two hour psychological interview that was done in the Spanish language.

[00:02:12] Speaker 00:
So there were, I mean, you have explanations for that, but the IJ gets to weigh this and,

[00:02:19] Speaker 00:
took a different view of it, and don't we have to give deference to that?

[00:02:23] Speaker 02:
Well, you don't actually have to give deference anymore to the BIA's agency decision under Loper-Bright, Your Honor.

[00:02:29] Speaker 01:
Well, no, that's not true.

[00:02:31] Speaker 01:
I mean, in fact, Loper-Bright doesn't touch this at all because this is not a legal determination that Loper-Bright might address.

[00:02:38] Speaker 01:
This is exactly within the IJ's purview, which is a factual determination of a witness's credibility.

[00:02:46] Speaker 02:
Being going back to what Judge Collins was saying about the psychological evaluation that actually militates in favor of petitioner if she was able to speak in Spanish for that amount of time, I think what we're concerned with is there were a number of instances- When she was here, after she got here.

[00:03:02] Speaker 04:
That's correct.

[00:03:02] Speaker 04:
And she said that after she got here, her Spanish improved.

[00:03:05] Speaker 02:
That's correct.

[00:03:06] Speaker 02:
It was two years, I believe, Your Honor, after she arrived in the United States.

[00:03:09] Speaker 04:
It's either irrelevant or substantial to her testimony as to her

[00:03:14] Speaker 04:
That's the fact that she learned her Spanish mostly after she got here.

[00:03:18] Speaker 04:
But she did testify that while she was at home, she understood fairly complicated sentences.

[00:03:35] Speaker 02:
Yes, Your Honor.

[00:03:36] Speaker 02:
Yeah.

[00:03:37] Speaker 02:
Many of the programs that she launched dealt with really intense topics, such as detention, arrest, death.

[00:03:44] Speaker 02:
I mean, these are all very common issues, unfortunately, in Guatemala.

[00:03:49] Speaker 02:
Of course, some of the other things she watched were very innocuous and banal, you know, shampoo commercials, hygiene commercials.

[00:03:55] Speaker 04:
But I think... To me, a larger question is why, you know, why would she lie about this?

[00:04:00] Speaker 04:
If she, in fact, did not understand... did understand Spanish well, she could have just said so and it wouldn't have changed anything about her story.

[00:04:11] Speaker 02:
Right.

[00:04:11] Speaker 01:
And I think that's what we were shocked by as well, Your Honor, that this decision... And I understand that, but you have to agree that whether we agree with it or not, the statute clearly says it doesn't have to be relevant, that inconsistencies or adverse credibility findings don't have to go to the heart of the matter, correct?

[00:04:30] Speaker 02:
Not about whether or not this is a material issue, Your Honor.

[00:04:34] Speaker 02:
What we're saying is that

[00:04:36] Speaker 02:
You know, the IJ largely substantiated his findings on the fact that he didn't consider her reasonable explanations.

[00:04:43] Speaker 02:
It's also the circuit precedent that omissions, you know, are not enough to substantiate credibility, adverse credibility findings under the substantial evidence.

[00:04:52] Speaker 00:
One factor the IJ noted is, you know, if this, the theory of danger, the credibility that that was the motivation is undercut by the fact that she left two of the children behind.

[00:05:03] Speaker 02:
Well, she has an explanation for that, Your Honor.

[00:05:05] Speaker 00:
She doesn't have to accept that explanation.

[00:05:07] Speaker 00:
I mean, at some point he gets to weigh the testimony.

[00:05:13] Speaker 00:
And under Ming Dai versus Garland, you know, we have to give that deference.

[00:05:19] Speaker 00:
And the standard is, it has to be that every reasonable adjudicator would be compelled to accept the explanation.

[00:05:29] Speaker 00:
Do you meet that high standard?

[00:05:30] Speaker 02:
Well, petitioners position yes, Your Honor, is that there is a number of pieces of evidence, expert information, amended declarations, amended applications, that were not considered at the lower level.

[00:05:44] Speaker 02:
Had they been considered .

[00:05:45] Speaker 02:
.

[00:05:45] Speaker 04:
.

[00:05:45] Speaker 04:
The country reports basically weren't considered at all, and they're quite extensive.

[00:05:49] Speaker 02:
That's true as well, Your Honor.

[00:05:51] Speaker 04:
As to the question that Judge Collins asked, she

[00:05:58] Speaker 04:
The child she took with her was the daughter, right?

[00:06:01] Speaker 02:
That's correct, Your Honor.

[00:06:02] Speaker 04:
There were two sons.

[00:06:03] Speaker 02:
Yes.

[00:06:04] Speaker 04:
Her claimed social group, quite substantiated by the country conditions, was women or indigenous women.

[00:06:13] Speaker 04:
That's correct, Your Honor.

[00:06:15] Speaker 04:
So it certainly makes sense that she was more concerned about the girls than the boys.

[00:06:20] Speaker 02:
Yes, Your Honor.

[00:06:23] Speaker 02:
Going back to the administrative record, as I was saying, the petitioner did not testify that she comprehended Spanish.

[00:06:32] Speaker 02:
She watched Spanish for eight years, I believe.

[00:06:36] Speaker 02:
Her husband also testified to that.

[00:06:37] Speaker 04:
Well, her husband testified that she knew in words, which is inconsistent with what she said.

[00:06:41] Speaker 04:
So I don't know how much that matters or whether the IJ perhaps could just rely on that, although we didn't believe anything else he said.

[00:06:49] Speaker 04:
So I'm not sure why.

[00:06:50] Speaker 04:
I could believe that.

[00:06:51] Speaker 02:
What's really concerning here is, well, Your Honor, is that the IJ posits a number of false dichotomies over and over and over again between implausibility, that, you know, petitioner doesn't understand Spanish, it couldn't possibly have understood any words that her persecutor said to her in Spanish, and malingering, you know, that she lied about not knowing Spanish, testifying that she knew only a little.

[00:07:15] Speaker 02:
So this is a false binary that's unnecessary and reaches illegal error because both things could possibly be true.

[00:07:21] Speaker 02:
You know, it's very possible and plausible that petitioner in her eight years of watching Spanish television could understand the Spanish word for woman, that she could understand the Spanish word for indigenous, that she could understand the Spanish word for rape.

[00:07:36] Speaker 02:
And those were the three things that were overheard, that she overheard that were communicated to her on at least two separate instances.

[00:07:43] Speaker 02:
But unfortunately, the IG doesn't address any of these issues.

[00:07:46] Speaker 04:
Do you want to talk about some of the mistakes?

[00:07:49] Speaker 04:
I mean, there were clear factual mistakes that the IG and the BIA made.

[00:07:54] Speaker 02:
Yeah.

[00:07:55] Speaker 02:
I mean, with respect to petitioners' gender, she did testify that she overheard her assailants saying that they wanted to harm her because she was an indigenous woman.

[00:08:05] Speaker 02:
And she did testify to that.

[00:08:08] Speaker 02:
That's at CAR 176.

[00:08:10] Speaker 02:
But the judge drew an adverse credibility inference here because the statement was not included in her declaration.

[00:08:16] Speaker 02:
If this decision stands, anybody who adds additional detail at their merits hearing could potentially be found not credible simply because they're adding.

[00:08:26] Speaker 01:
But we already have a president that says just that.

[00:08:29] Speaker 01:
I mean, that is a consideration that the IJ can take into account is whether information was presented at the first possible time or whether it came in after the fact.

[00:08:41] Speaker 01:
So I'm not sure.

[00:08:42] Speaker 01:
I mean, I understand your position, which is it's not fair in this circumstance, but that's really no different than we hear in hundreds of others of these cases.

[00:08:51] Speaker 01:
And I mean, if we go down your road,

[00:08:55] Speaker 01:
Our work is going to come to a screeching halt because we're never going to be able to rely on anything that the IJ says.

[00:09:01] Speaker 01:
We're always going to have to do an independent analysis.

[00:09:03] Speaker 01:
And Congress seems to have said that's not how this is going to work.

[00:09:07] Speaker 02:
I think, Your Honor, I mean, in our situation, Petitioner was not saying, I forgot that this happened to me.

[00:09:15] Speaker 02:
Let me add that.

[00:09:17] Speaker 02:
She wasn't adding instances of harm.

[00:09:19] Speaker 02:
She wasn't adding

[00:09:21] Speaker 02:
very material information.

[00:09:23] Speaker 02:
These were very minute details that any petitioner should be allowed to add on their testimony because it augments their claim.

[00:09:31] Speaker 02:
It actually goes to veracity.

[00:09:32] Speaker 02:
It actually corroborates consistent testimony.

[00:09:36] Speaker 01:
But you would agree that if there were some very relevant information that went to the heart of the matter, and it were not in the initial application, and then it were brought up later,

[00:09:47] Speaker 01:
At a minimum, the I.J.

[00:09:48] Speaker 01:
would be within the right to question, wait, why didn't you say that initially?

[00:09:53] Speaker 02:
Are you coming up with a post-hoc?

[00:09:54] Speaker 02:
We're not disagreeing with that.

[00:09:56] Speaker 01:
Okay, well, then why doesn't that answer this question?

[00:09:58] Speaker 02:
Well, the I.J., that's not what's at issue in this case.

[00:10:00] Speaker 02:
We're not talking about whether or not these omissions were material or not.

[00:10:03] Speaker 02:
We're talking about whether or not the substantial evidence in the record supports an adverse credibility finding.

[00:10:09] Speaker 02:
And there's numerous things that the I.J.

[00:10:12] Speaker 02:
misstated, as Judge Bearsland was saying,

[00:10:15] Speaker 02:
and frankly didn't include whether it comes to country conditions.

[00:10:19] Speaker 02:
The expert report, our psychological expert report said over and over that, you know, Petitioner was evaluated in a manner that was consistent with other survivors.

[00:10:29] Speaker 02:
She was evaluated forensically.

[00:10:31] Speaker 02:
The evaluator noted that she had a scar on her leg from one of the instances in which she was attacked.

[00:10:37] Speaker 02:
This was barely mentioned if at all in the IG report.

[00:10:40] Speaker 02:
in the IJ decision, nor in the BIA's decision, and that's very concerning to petitioner.

[00:10:45] Speaker 02:
I mean, the other issue is whether or not the agency's decision to discredit the testimony of petitioner's non-testimony, testimonial evidence, witnesses was supported by substantial evidence.

[00:10:59] Speaker 02:
And here the IJ repeatedly says that

[00:11:01] Speaker 02:
There's a number of implausibilities in petitioner's record, predominantly looking at the auxiliary reports, because petitioner did report multiple instances to the auxiliary authorities.

[00:11:16] Speaker 02:
And again, the IJ focuses on whether or not those individuals spoke Spanish or spoke an indigenous language.

[00:11:22] Speaker 02:
It frankly seems to be a red herring in this case.

[00:11:27] Speaker 02:
It's plausible that you can have a native language and speak a secondary language.

[00:11:31] Speaker 02:
It's very common for people throughout the world, and in Guatemala specifically, 40% of the population is indigenous, but they live in a Spanish-speaking dominated society and culture.

[00:11:44] Speaker 02:
So it's completely plausible that they speak possibly more than two languages even, considering there are multiple dialects of different indigenous languages in Guatemala.

[00:11:55] Speaker 02:
The IJ then turns his decision to the husband and concerns himself with the fact that Petitioner's husband wasn't present in Guatemala to witness the harm.

[00:12:03] Speaker 02:
However, this isn't required under the Real ID Act, nor under the FRE.

[00:12:08] Speaker 04:
Well, more than the husband.

[00:12:09] Speaker 04:
The other witnesses, they said, didn't see it, but they heard it, and they were there right afterwards, and they completely discounted them, even though they were obviously corroborating the witnesses who had knowledge of the circumstances.

[00:12:22] Speaker 02:
That's correct, Your Honor.

[00:12:23] Speaker 02:
Petitioner's father, I believe, heard her screaming when individuals attempted to drag her into the trees outside their home.

[00:12:31] Speaker 02:
and rape her.

[00:12:33] Speaker 02:
So while he didn't see them physically doing that, he did hear her screams and that is why he came to her aid.

[00:12:39] Speaker 02:
So, I mean, those are, you know, hearsay exceptions under FRE 403 and 803 present-sense impression.

[00:12:46] Speaker 02:
There's multiple other exceptions that we argue.

[00:12:49] Speaker 02:
in our brief, but the IJ doesn't touch on this whatsoever and simply discredits the husband's testimony and letters of support because he wasn't an eyewitness.

[00:12:59] Speaker 02:
And that doesn't import with the Real ID Act.

[00:13:02] Speaker 02:
With respect to petitioner's children, there was another issue as to whether or not her child Brandon heard one of their persecutors calling out his name on their land.

[00:13:15] Speaker 02:
And the IJ misconstrued this issue because petitioner testified that she heard the assailant call out to Brandon.

[00:13:22] Speaker 04:
She never said his name.

[00:13:23] Speaker 04:
She never said it wasn't his name.

[00:13:25] Speaker 04:
Right.

[00:13:25] Speaker 04:
That's correct.

[00:13:26] Speaker 04:
Could have said little boy or who knows what.

[00:13:28] Speaker 04:
Right.

[00:13:28] Speaker 02:
Or you.

[00:13:29] Speaker 02:
We don't know exactly what it was.

[00:13:29] Speaker 02:
Or whatever.

[00:13:31] Speaker 02:
Right.

[00:13:31] Speaker 02:
So again, this is not an inconsistency.

[00:13:33] Speaker 02:
This shouldn't go to credibility.

[00:13:35] Speaker 02:
But it does become the focus of the IJ's decision.

[00:13:39] Speaker 02:
You know, overall, in looking at the auxiliary letters again, the IJ says that they're not authenticated and therefore, you know, offers diminished weight to them simply because they're not notarized even though they are signed.

[00:13:53] Speaker 02:
And in the Ninth Circuit, the failure to authenticate documents under Shire does not constitute sufficient evidence for an adverse credibility finding.

[00:14:01] Speaker 01:
There's a number of- Do you want to reserve any time, counsel?

[00:14:05] Speaker 02:
Yes.

[00:14:06] Speaker 02:
Five minutes, Your Honor.

[00:14:08] Speaker 01:
Oh, did we already?

[00:14:09] Speaker 02:
Over rebuttal?

[00:14:10] Speaker 01:
Oh.

[00:14:10] Speaker 01:
Yeah.

[00:14:11] Speaker 01:
Did you?

[00:14:11] Speaker 01:
No.

[00:14:12] Speaker 02:
Or two minutes.

[00:14:13] Speaker 01:
I think you got one minute left.

[00:14:15] Speaker 02:
OK.

[00:14:16] Speaker 02:
The other issue of concern to petitioner is the analysis in the IEJ's decision with respect to disfavored group.

[00:14:21] Speaker 02:
He seems to hang his hat on the analysis that petitioners should meet a higher burden under the individual.

[00:14:28] Speaker 04:
The problem is that if they get credibility,

[00:14:32] Speaker 04:
finding stands, then she was not singled out, and the disfavor group issue isn't going to apply, right?

[00:14:39] Speaker 04:
Those are two separate analyses, Your Honor.

[00:14:41] Speaker 04:
Well, it's separate, but you still need some singling out.

[00:14:44] Speaker 04:
And if you don't believe what she said at all, then where's the singling out?

[00:14:47] Speaker 02:
Well, the country conditions establish that there is a pattern in practice of violence.

[00:14:51] Speaker 02:
That's different.

[00:14:52] Speaker 04:
Pattern of practice is different.

[00:14:54] Speaker 02:
Right.

[00:14:54] Speaker 02:
And so if there's a pattern in practice that's been established, then there's

[00:14:58] Speaker 02:
a lesser need for an individualized showing, which is main circuit precedent.

[00:15:02] Speaker 04:
Well, then there's no need if it's a pattern or practice.

[00:15:04] Speaker 02:
Essentially, yes.

[00:15:05] Speaker 02:
And the IJ flipped that analysis, Your Honor.

[00:15:08] Speaker 04:
Well, as I understand it, the BIA never addressed the pattern or practice question at all.

[00:15:13] Speaker 02:
The BIA did adopt the IJ's analysis and focused specifically on an individualized.

[00:15:20] Speaker 04:
I thought that you just never addressed it at all.

[00:15:22] Speaker 02:
Yes.

[00:15:24] Speaker 04:
I mean, never addressed it, even by adopting the IJ's.

[00:15:28] Speaker 02:
That's correct your honor and the country conditions show I mean over and over again that there was a civil war that raged in Guatemala from 1960 until 1996 and that the bulk of the victims of state violence were indigenous.

[00:15:43] Speaker 02:
I believe it's approximately 83% of the victims.

[00:15:46] Speaker 02:
That legacy continues to this day.

[00:15:48] Speaker 01:
We can give you one minute for rebuttal.

[00:15:51] Speaker 01:
Thank you.

[00:16:06] Speaker 03:
Good morning, and may it please the court, Jennifer Williams, for the respondent.

[00:16:11] Speaker 03:
The agency denied petitioners applications based on the numerous material inconsistencies and omissions between her testimony, her husband's testimony, and other documentary evidence.

[00:16:21] Speaker 04:
What was there other than the Spanish issue and maybe the money?

[00:16:26] Speaker 04:
Other than that, there were no documented inconsistencies, I don't think.

[00:16:31] Speaker 03:
Well, there were a number, and I can list them as found by the IJ and affirmed by the board.

[00:16:36] Speaker 03:
There was her ability to speak Spanish, inconsistencies as to whether the auxiliaries had policing powers.

[00:16:43] Speaker 04:
Well, that wasn't inconsistent.

[00:16:45] Speaker 04:
I mean, he said that she said that all they did was organize events, but that's definitely not what she said.

[00:16:50] Speaker 04:
That's what she said in the record.

[00:16:54] Speaker 04:
That's not what she said.

[00:16:55] Speaker 04:
She said that they basically were kind of a neighborhood patrol.

[00:17:02] Speaker 04:
And she said they didn't have authority to arrest except if there were no orders.

[00:17:10] Speaker 04:
And she said they organized events as something else they did, but she didn't say that's what they did.

[00:17:15] Speaker 04:
And it clearly wasn't what they did.

[00:17:16] Speaker 04:
I mean, everybody was calling them for a reason not to organize events.

[00:17:21] Speaker 03:
Well, but that is the inconsistency in the record, the immigration judge says.

[00:17:25] Speaker 03:
So what they did was to organize events, and she said yes.

[00:17:29] Speaker 04:
Yes, among other things.

[00:17:30] Speaker 03:
But the record doesn't indicate that she said, among other things.

[00:17:34] Speaker 04:
Well, she did, because she said before that one sentence, she said several times that they did other things.

[00:17:41] Speaker 04:
And that's just not held up by the record.

[00:17:45] Speaker 03:
Which goes to a bigger point.

[00:17:47] Speaker 03:
In order to make out an asylum claim, she has to show that the authorities were unable or unwilling to help her.

[00:17:52] Speaker 03:
A theme throughout her testimony is that the Guatemalan police were unable or unwilling to help because she is indigenous.

[00:18:00] Speaker 03:
And so she went to the auxiliaries.

[00:18:02] Speaker 04:
Which is completely substantiated by several of the country conditions reports, that rural indigenous people have very little access to police.

[00:18:14] Speaker 03:
Well, but she can't have it both ways.

[00:18:16] Speaker 03:
She also relies on the auxiliary reports, which use the word authority as evidence that they did.

[00:18:29] Speaker 03:
They did assist.

[00:18:32] Speaker 03:
I mean, either they had policing power.

[00:18:34] Speaker 03:
So either there was no inconsistency.

[00:18:36] Speaker 03:
If there was no inconsistency, it's because she testified.

[00:18:39] Speaker 04:
They've had authority to figure out who the person was and then go to the

[00:18:43] Speaker 04:
authorities to get authority to arrest them or to get someone else to arrest them.

[00:18:48] Speaker 04:
But all she said was that they can't arrest people without orders.

[00:18:53] Speaker 03:
But the fact still is that three of the people, three of the, we could discuss whether they were eyewitnesses or not.

[00:18:59] Speaker 03:
The government's position is that they were not.

[00:19:01] Speaker 04:
But the three people who reported the events.

[00:19:03] Speaker 04:
If somebody is standing right nearby and hears her screaming and comes and sees her hysterical and sees somebody running around, that's not an eyewitness.

[00:19:10] Speaker 03:
Well, they never saw the attackers.

[00:19:12] Speaker 03:
I think that's clear from the record.

[00:19:14] Speaker 03:
They came after the fact.

[00:19:15] Speaker 03:
They may have heard, but they never saw the attackers, which is another element of an asylum claim to show motive.

[00:19:20] Speaker 04:
Well, it's not corroborating that they heard her screaming and they came and saw her at what we would call a, in hearsay, there's a phrase for,

[00:19:36] Speaker 04:
you know, an immediate reaction, and therefore should there be discounted entirely?

[00:19:42] Speaker 03:
Well, one thing it doesn't corroborate is who the attackers were, that there were Ladinos and non-indigenous Spanish speaking men.

[00:19:50] Speaker 04:
Okay, that's one thing it doesn't corroborate, but it corroborates that somebody attacked her, that she was very upset and that they couldn't find them.

[00:19:56] Speaker 04:
It corroborates that much.

[00:19:57] Speaker 04:
And there were three different people like that.

[00:20:00] Speaker 03:
But one thing she has to show, and a central element of her asylum claim,

[00:20:04] Speaker 03:
is that she was attacked.

[00:20:05] Speaker 04:
But that's not the point.

[00:20:06] Speaker 04:
The point is that they just didn't give them any credence about anything.

[00:20:13] Speaker 03:
No, the immigration judge, the agency made an adverse credibility finding and then properly and separately looked at whether the documentary evidence on the record was sufficient.

[00:20:22] Speaker 04:
Right, and they said that this documentary evidence is not worth anything.

[00:20:25] Speaker 03:
No, I don't believe that's what the immigration judge said.

[00:20:27] Speaker 03:
The immigration judge said it wasn't sufficient.

[00:20:29] Speaker 03:
And part of the reason those letters from the witnesses in particular were not sufficient is that they don't corroborate the requisite nexus element.

[00:20:39] Speaker 03:
They don't corroborate who the attackers were, that they were Ladinos.

[00:20:44] Speaker 03:
The immigration judge went through all of the documentary evidence in the record and specified why, in his opinion,

[00:20:52] Speaker 03:
they weren't sufficient, but I think in this case the burden of proof is important and the standard of review.

[00:20:57] Speaker 03:
It's petitioner who bears the burden and the standard of review is the evidence has to compel the conclusion.

[00:21:03] Speaker 03:
I think we're disagreeing about... Just a minute.

[00:21:06] Speaker 04:
These documents from the witnesses were relevant for at least two reasons, right?

[00:21:13] Speaker 04:
One of them is to corroborate her credibility and the other is separately if she's already declared in

[00:21:22] Speaker 04:
not credible to determine whether there's separate evidence by itself.

[00:21:28] Speaker 04:
But for the first purpose, certainly these people were pertinent and should have been paid attention to rather than written out.

[00:21:38] Speaker 03:
But many of the inconsistencies involved the question of nexus, and they involved the question of whether the Guatemalan police or the auxiliaries were unable or unwilling to protect her.

[00:21:50] Speaker 03:
Those are two central elements of her asylum claim.

[00:21:53] Speaker 03:
And a lot of the inconsistencies, like her ability to speak Spanish, like the policing powers of the auxiliaries, go to those required elements.

[00:22:03] Speaker 03:
And so while, I mean, under the Real ID Act, the inconsistencies do not have to go to a central element of the claim.

[00:22:10] Speaker 03:
In this case, a lot of them do.

[00:22:12] Speaker 03:
Some of them are more peripheral.

[00:22:13] Speaker 03:
But at least the major ones go to central elements of her asylum claim.

[00:22:23] Speaker 04:
And I wanted to address... Did the BIA address at all the pattern and practice issue?

[00:22:33] Speaker 03:
We believe it did.

[00:22:34] Speaker 03:
It did not say pattern and practice, but it's cited to the pages of the immigration judge's decision that talked about

[00:22:41] Speaker 03:
pattern or practice.

[00:22:42] Speaker 00:
Is there a legal distinction between a disfavored group analysis and a pattern and practice analysis?

[00:22:48] Speaker 00:
Are those different or are those two ways of discussing the same thing?

[00:22:51] Speaker 03:
No, they're different.

[00:22:52] Speaker 03:
For the disfavored group analysis, the applicant still has to show some individualized risk of harm.

[00:22:58] Speaker 03:
And pattern and practice, they don't have to show any individualized risk of harm.

[00:23:03] Speaker 03:
But the burden to show the pattern or practice is much greater than showing a disfavored group.

[00:23:10] Speaker 03:
So, and our position here is, I mean, the IJ addressed both.

[00:23:14] Speaker 03:
The board used the words disfavored group, but specifically cited to the section of the IJ's decision discussing pattern and practice.

[00:23:20] Speaker 04:
Can you show me where that is in the BIA opinion?

[00:23:24] Speaker 03:
And we cite the pages in our brief that the board, the pages of the IJ's decision that the board cited to discussing pattern or practice.

[00:23:34] Speaker 03:
But what's clear is that the agency, looking at the two decisions as a whole,

[00:23:38] Speaker 03:
It did consider the country conditions report.

[00:23:41] Speaker 03:
It recognized a history of discriminatory behavior against indigenous people in Guatemala, but it also recognized that they have some representation now in the government and it found that

[00:23:54] Speaker 03:
The evidence did not compel the conclusion.

[00:23:57] Speaker 01:
In response to where it is at the BIA, is this at page 5 of the BIA decision?

[00:24:04] Speaker 01:
It says, we affirm that IJ's denial of protection under CAT, we acknowledge reports of human rights abuses in Guatemala.

[00:24:12] Speaker 01:
However, in the absence of credible testimony or independent corroboration by the respondent's claim, this generalized evidence is insufficient to demonstrate the respondent's eligibility

[00:24:22] Speaker 01:
for cap protection.

[00:24:23] Speaker 01:
Is that the same thing or is it somewhere else?

[00:24:30] Speaker 04:
It's somewhere else because that's not, doesn't happen.

[00:24:33] Speaker 03:
Well, as we discuss in our brief, so we say to page seven of the administrative record, the board says it affirmed the IJ's denial of asylum and withholding under the INA, but it referenced pages 85 to 87 of the IJ's decision in which the IJ found no pattern or practice of persecution.

[00:24:52] Speaker 03:
And then it expressly acknowledged the reports in the record of discrimination and harm against indigenous individuals in Guatemala.

[00:24:59] Speaker 03:
And then after that, that was a quote.

[00:25:01] Speaker 03:
The board again specifically referenced the pages of the IJ's decision discussing the country conditions evidence in the context of his no pattern or practice finding.

[00:25:09] Speaker 03:
Again, this was, so the administrative record at six is the board's decision.

[00:25:15] Speaker 04:
And it references... They acknowledged reports of human rights abuses in Guatemala, but she had claimed

[00:25:21] Speaker 04:
She was claiming specific particular social groups, most notably women in Guatemala and indigenous women in Guatemala.

[00:25:30] Speaker 04:
And I hope you've read the reports, but I did read them and they are replete and repetitive on the notion that women are

[00:25:42] Speaker 04:
the subject of, now not just in the past, the subject of serious violence in Guatemala and that rural indigenous women in particular have essentially no access to protection, even though the government is in other respects trying to correct the situation, but not in a way that is helpful to rural indigenous women.

[00:26:09] Speaker 04:
And what we have about all of that, which just goes on for many pages and seven or eight different reports, we acknowledge reports of human rights abuses in Guatemala, period.

[00:26:22] Speaker 03:
Well, in the context, I assume we're talking in the context of a pattern or practice claim where the only evidence she can rely on is the country conditions.

[00:26:31] Speaker 04:
Or as corroborating her own evidence.

[00:26:34] Speaker 04:
I mean, if you read these reports and what she said,

[00:26:37] Speaker 04:
They're pretty closely allied.

[00:26:42] Speaker 03:
Yes, but if we're talking about anything where she has to show an individualized risk of persecution, and we accept her testimony that the auxiliaries do have some policing power, that their job is not just to organize events in the town, then the record evidence shows that in her case, they did respond.

[00:27:02] Speaker 03:
The auxiliaries responded, and they did some police-like things.

[00:27:06] Speaker 03:
They at least looked around.

[00:27:08] Speaker 03:
They responded, and they looked around.

[00:27:11] Speaker 01:
And at page four of the BIA decision, I guess this may be the corollary to what I read before.

[00:27:16] Speaker 01:
Maybe this is more.

[00:27:18] Speaker 01:
analogous.

[00:27:19] Speaker 01:
However, it does recognize, as Judge Berzon noted, the record of discrimination and harm against indigenous individuals in Guatemala.

[00:27:29] Speaker 01:
However, such generalized reports do not show that the respondent experienced past persecution or that she has a particularized risk of future persecution.

[00:27:39] Speaker 01:
Isn't I mean that that's basically what the BIA said was we can look at these generalized reports But you still have that just because the country conditions report says these are the conditions that doesn't mean that every person who?

[00:27:52] Speaker 01:
fits within that Is subject to facing they still have a duty to come forward with some evidence that they've been facing that they do and that's that's the analysis that applied comes back to the adverse credibility, right?

[00:28:04] Speaker 03:
Yes

[00:28:05] Speaker 03:
So the only claim for which she wouldn't have to show any individualized risk of persecution is a pattern or practice claim.

[00:28:13] Speaker 03:
But that's a much higher burden.

[00:28:14] Speaker 01:
So I'm still trying to find where the pattern or practice is addressed.

[00:28:19] Speaker 03:
Well, our position is that the board addresses it because it cites to the page.

[00:28:23] Speaker 03:
The agency addresses it.

[00:28:24] Speaker 03:
The IJ specifically discusses pattern or practice at pages, I think it's now 85 to 87 of the administrative record.

[00:28:31] Speaker 03:
And the board does not say pattern or practice.

[00:28:34] Speaker 03:
But it talks about the country conditions evidence in the record.

[00:28:38] Speaker 01:
So basically the stuff I'm reading is shoehorning in the pattern of practice.

[00:28:43] Speaker 03:
Yes, and the specific site to the pages of the IJ's decision that does talk about pattern or practice.

[00:28:48] Speaker 04:
And there's lots of case law that the board... After saying that they're discussing just favored group.

[00:28:55] Speaker 04:
I mean, the board specifically says... They held that there was no just favored group, but they cited the pages where the just favored group was decided by the IJ, and you're saying that

[00:29:02] Speaker 04:
They, therefore, also were deciding on the pattern or practice, which, as you say, has different standards in which they never mentioned.

[00:29:09] Speaker 03:
Well, but the standard is even, as we say in our brief, the standard for pattern or practice is even higher than disfavorite group.

[00:29:14] Speaker 04:
Yes, but they have reason for finding that she wasn't eligible for a disfavorite group is that she had no individualized proof.

[00:29:22] Speaker 04:
And for pattern or practice, you don't need individualized proof.

[00:29:24] Speaker 04:
So they never addressed that.

[00:29:26] Speaker 03:
Well, but they also do visit the board.

[00:29:28] Speaker 03:
I mean, the IJ does.

[00:29:29] Speaker 03:
But the board also specifically discusses the country conditions evidence.

[00:29:33] Speaker 03:
and says, while it shows discrimination, it doesn't show persecution.

[00:29:41] Speaker 03:
And we think it's a fair reading of that that it encompasses.

[00:29:43] Speaker 01:
What the IJ says, and this is at ER 86, page 13 of the IJ's report, says this respondent did not testify credibility.

[00:29:55] Speaker 01:
So again, I mean, we've got the credibility threshold we have to overcome.

[00:29:59] Speaker 01:
She's not established past persecution or that she has a special role within the indigenous community likely to come to the attention of any potential persecutors.

[00:30:08] Speaker 01:
I mean, is that?

[00:30:09] Speaker 01:
I'm still looking for the pattern of practice.

[00:30:12] Speaker 03:
Well, excuse me.

[00:30:18] Speaker 01:
I mean, this seems to be a different analysis, which is she doesn't have an individualized role that would bring her into that risk.

[00:30:30] Speaker 01:
Oh, here we go.

[00:30:30] Speaker 01:
Essentially, the court would liken her burden to needing to show a pattern in practice of persecution.

[00:30:36] Speaker 03:
To the indigenous community to respond it has not established this that's what you're relying on right yeah Okay But again the only claim for what she doesn't have to show any Individualized risk for which the adverse credibility determination would not be relevant as pattern or practice for every other claim It is relevant.

[00:31:04] Speaker 03:
It's supported by substantial evidence in the record

[00:31:07] Speaker 03:
And the documentary evidence is not sufficient to independently sustain her burden of proof.

[00:31:15] Speaker 03:
I see my time has expired.

[00:31:16] Speaker 03:
Thank you.

[00:31:17] Speaker 01:
You got one minute for rebuttal.

[00:31:25] Speaker 02:
Your Honors, I do want to note with respect to pattern and practice that the husband whose declaration was admitted, although given diminished weight,

[00:31:34] Speaker 02:
did corroborate the fact that there were individuals outside their home on at least one occasion that attempted to harm respondent because of her race and her gender.

[00:31:45] Speaker 02:
Similarly, the auxiliary letters were admitted.

[00:31:47] Speaker 02:
Even though they were given diminished weight, they do also corroborate that respondent was potentially almost raped on at least two occasions.

[00:31:58] Speaker 02:
that goes to gender.

[00:32:02] Speaker 02:
And with respect to the issue of whether or not petitioner testified that the auxiliary authorities do anything other than organize events, she says, and this is at CAR 169, the auxiliary mayor helps a bit with any problems.

[00:32:19] Speaker 02:
Not like the police, but they don't have the power to punish, unlike the police who are Ladino and speak Spanish.

[00:32:27] Speaker 02:
So she doesn't just say that they organize events.

[00:32:29] Speaker 02:
She does say that they help with other problems.

[00:32:33] Speaker 02:
These are civil authorities.

[00:32:34] Speaker 02:
These are not criminal authorities.

[00:32:36] Speaker 02:
The two can be true, that they organize events and they attempt to resolve disputes in the town apart from the police.

[00:32:45] Speaker 01:
Okay.

[00:32:46] Speaker 01:
Thank you so much.

[00:32:47] Speaker 01:
Thank you to both parties for your arguments in the case.

[00:32:51] Speaker 01:
The case is now submitted.