[00:00:00] Speaker 03: Good morning, Your Honors. [00:00:03] Speaker 03: I would like to reserve three minutes of time for rebuttal. [00:00:07] Speaker 05: Great. [00:00:08] Speaker 03: Good morning, Your Honors. [00:00:09] Speaker 03: May it please the court. [00:00:11] Speaker 03: Chelsea Haley Nelson on behalf of petitioners, Jose Marito Perez Castillo and Gladys Funes Alvarado. [00:00:18] Speaker 03: The agency below found no incident of persecution in which Mr. Perez Castillo participated, and that membership in a group under the asylum and withholding framework was enough to raise the bar. [00:00:29] Speaker 03: That was air for three reasons. [00:00:31] Speaker 03: Negusitu's reading placing the initial burden on petitioner to disprove the bar was air. [00:00:37] Speaker 03: Second, where the government had the initial burden, mere membership is not enough to invoke the persecutor bar. [00:00:42] Speaker 03: And alternatively, if the court finds that there was proper raising of the bar in this case, it was air to find that Mr. Perez Castillo could not rebut the bar, or it's undisputed that he was forcibly recruited into the Salvadorian military. [00:00:55] Speaker 02: Excuse me a minute. [00:00:57] Speaker 02: What about the finding [00:00:58] Speaker 00: that is not challenged, that he was not credible, and that that's the reason he could not rebut the bar. [00:01:06] Speaker 03: It's true that the immigration judge found that he was not credible. [00:01:09] Speaker 03: However, one, as I stated, one point that is not in dispute is that he was forcibly recruited into the Salvadorian military. [00:01:19] Speaker 00: So despite the fact that the... Well, he did his compulsory military service. [00:01:28] Speaker 00: I mean, he described it as a rather abrupt drafting into the service, but later he also said, everybody does compulsory military service. [00:01:42] Speaker 00: This was mine. [00:01:43] Speaker 00: Is compulsory military service being drafted into the military enough to show that he was forcibly required to do this? [00:01:57] Speaker 03: We believe that it does based on the circumstances that he testified to but but aside from that we're bound by the finding that the immigration judge made which was that He was forcibly recruited into the military and that that evidence that finding there was no evidence. [00:02:15] Speaker 03: Sorry to the contrary or to [00:02:17] Speaker 03: to contradict that. [00:02:18] Speaker 03: And so that finding is one that was affirmed by the board and with all the other findings made by the immigration judge. [00:02:29] Speaker 03: So despite the adverse credibility finding, we're left still with that finding by the immigration judge. [00:02:33] Speaker 01: Can you remind me where that site is? [00:02:36] Speaker 01: Yes. [00:02:36] Speaker 01: I'm forgetting that right now. [00:02:38] Speaker 03: No, that's OK. [00:02:38] Speaker 03: I was actually just looking for it, Your Honor. [00:02:43] Speaker 03: I can in one second. [00:02:46] Speaker 03: So the immigration judge found that he, quote, joined the military in early 1981. [00:02:51] Speaker 03: Consistently, he has claimed that he was forcibly recruited, and there has been no contradictory evidence on that issue. [00:02:57] Speaker 03: That's at AR 77. [00:02:58] Speaker 03: And the board affirmed the IJ's conclusion, including that one. [00:03:02] Speaker 03: So despite the adverse credibility finding, this still stands. [00:03:06] Speaker 03: This is undisputed. [00:03:08] Speaker 03: It's not been challenged at any point. [00:03:10] Speaker 03: And as the immigration judge said, there was no contradictory evidence in the record as to that issue. [00:03:15] Speaker 03: So neither the IJ nor the board reviewed that finding under Duress. [00:03:22] Speaker 00: So let's assume that's true. [00:03:25] Speaker 00: That doesn't necessarily mean that he didn't have to rebut the persecutor's bar. [00:03:35] Speaker 00: I mean, just being forcibly recruited doesn't then [00:03:38] Speaker 00: allow him to continue to engage in what might be persecuting conduct while in the military? [00:03:48] Speaker 03: Correct. [00:03:48] Speaker 03: But I think what the issue here is and the argument that we raise is that there was never a review or consideration of a duress defense in this particular case. [00:03:59] Speaker 02: That's my next question. [00:04:00] Speaker 00: What do you think the status is of a duress defense? [00:04:04] Speaker 03: So we argue, Your Honors, we raised in our 28-J letter to the Court that Loper-Brite changes the framework of the Court's analysis in this case. [00:04:12] Speaker 03: All the briefing was previously done under a Chevron framework, but we believe that post-Loper-Brite, the Court can independently review the persecutor bar and that a proper interpretation includes a duress defense. [00:04:24] Speaker 01: Don't we have to wait for the AG to decide, and I always mispronounce, is it negais, negis? [00:04:32] Speaker 01: Negusi. [00:04:33] Speaker 01: Negusi three. [00:04:34] Speaker 01: Don't we have to wait for that? [00:04:36] Speaker 03: Well, that was the basis of our motion to hold this case in abeyance until there was an agency decision on NGUC3 so that this court could have clear guidance, not only on the burden of proof issue that we argue, but also specifically on duress because we think that is directly on point. [00:04:52] Speaker 03: However, in post-Loper-Brite, again, we believe that the court can interpret the persecutor bar. [00:04:58] Speaker 00: and that a proper interpretation does include a duress defense. [00:05:08] Speaker 00: in Nguzi originally and said, you can't rely on Fedorenko, you can consider Fedorenko, but you, immigration judge, Bureau of Immigration, you have to decide if there's a duress defense under this particular statute. [00:05:34] Speaker 00: And it's still unclear. [00:05:38] Speaker 00: So why would, if the Supreme Court wanted the immigration courts to decide in the first instance whether there was a duress defense, why would we go ahead and decide whether there is or is not one? [00:05:50] Speaker 00: Just because of Loper-Brite. [00:05:52] Speaker 03: Because I believe that the court has the ability to independently evaluate the statute and regulation. [00:05:59] Speaker 03: It doesn't have to defer and no longer needs to defer to the agency post-liberal right. [00:06:05] Speaker 00: But wouldn't we want to know what they think and why they think it? [00:06:09] Speaker 03: Certainly. [00:06:09] Speaker 03: And if the court believes that that is true, that the proper resolution of this case is to wait for the agency to provide some clear instruction as to the duress defense. [00:06:20] Speaker 05: Well, it just might be instructive to us whether or not we have to wait. [00:06:25] Speaker 05: seems like it would be helpful. [00:06:27] Speaker 03: If the court believes that it would be helpful, then the proper remedy would be to remand or again to hold this in abeyance. [00:06:34] Speaker 03: At this point, if I may, as to the dress defense, if the court agrees that it can interpret [00:06:42] Speaker 03: And then I would point the court to the amicus brief that was filed by scholars of international refugee law for substantive argument about statutory interpretation and that proper interpretation leads to a duress defense. [00:06:54] Speaker 03: I would also point out, as Your Honor stated, the Supreme Court did remand to the agency to specifically address whether a duress defense exists. [00:07:03] Speaker 03: And originally the agency found that a duress defense exists. [00:07:06] Speaker 03: That's what we call NGUSI 1 in the 2018 decision. [00:07:09] Speaker 03: That's also a good roadmap for statutory interpretation and that the bar includes a duress defense. [00:07:15] Speaker 03: And I would say that the Ngoosi 2 argument, which is the AG's decision in 2020, finding that a duress defense does not exist in the bar, is an incorrect interpretation. [00:07:26] Speaker 03: One of the core arguments of the AG there was that the Supreme Court, sorry, one of the core arguments there was that no duress defense exists because the word duress is not used. [00:07:38] Speaker 03: or the term voluntary is not used in the persecutor bar. [00:07:42] Speaker 03: But that completely ignores the Supreme Court's decision when it originally remanded for reassessment that said absence of the word duress is not dispositive of a finding of a duress defense in the persecutor bar. [00:07:55] Speaker 03: And as we mentioned earlier, importantly here in this case, [00:08:00] Speaker 03: It's undisputed that Mr. Perez-Castillo was forcibly recruited into the military. [00:08:04] Speaker 03: We have that from the immigration judge's finding, which was affirmed by the board. [00:08:09] Speaker 03: Neither the immigration judge or the board ever assessed the duress defense. [00:08:15] Speaker 03: It wasn't raised or considered or decided by the agency. [00:08:19] Speaker 03: The board specifically states that Mr. Perez-Castillo is unable to rebut the bar due to a duress defense because Nogusitu found there was no exception for duress. [00:08:29] Speaker 02: Let me switch subjects for a moment. [00:08:32] Speaker 00: The immigration judge found three bases for denying relief under NACARA. [00:08:42] Speaker 00: When the board considered it, they only talked about two of them, but there's a third one. [00:08:49] Speaker 00: She found that [00:08:52] Speaker 00: because Mr. Press Castillo committed perjury that he was prohibited from being granted Nicarra relief because he cannot demonstrate good moral character. [00:09:05] Speaker 00: Board didn't discuss it, but the board did cite Bedino, which basically says we agree with the immigration judge. [00:09:15] Speaker 00: Could we [00:09:17] Speaker 00: rely on that finding, not mentioned by the board, to find that he's not entitled to relief because he doesn't have good moral character based on perjury? [00:09:29] Speaker 03: I don't believe that the court can, Your Honor. [00:09:32] Speaker 03: The board affirmed the immigration judge's decision under Bourbonneau, but it also specifically cited the specific basis upon which it was relying, and it didn't include that. [00:09:44] Speaker 03: However, that's also not a basis or a decision that this court could necessarily review. [00:09:51] Speaker 03: I think the argument that we're raising [00:09:53] Speaker 03: Here is that there are legal errors that were committed by the agency below that require reversal and remand. [00:09:59] Speaker 03: So whether or not the court can get to the good moral character assessment is not an issue necessarily before this court. [00:10:09] Speaker 03: If I may get to a second argument, which is that we believe that the agency below based its assessment that the persecutor bar was sufficiently raised in this case based on mere membership. [00:10:24] Speaker 03: And in this case, Mr. Perez Castillo's membership or connection to the Atanal was unclear or inconclusive at best. [00:10:32] Speaker 03: Crucially, the immigration judge didn't find any persecutory act in which Mr. Perez Castillo participated. [00:10:38] Speaker 03: That's at AR 84. [00:10:41] Speaker 03: As there's no specific act of persecution in which he participated, it's impossible to ascertain how he was involved or his personal involvement in any persecutory act and if that amounted to purposeful [00:10:54] Speaker 03: assistance we also can't get to nexus because there's no act to tie it to and that's required under the persecutor bar we must have an act we must have nexus to a protected ground and then we must show that there's genuine assistance or or purposeful involvement in the persecution but more significantly as i mentioned [00:11:13] Speaker 03: Despite recognizing that the issue of whether or not Mr. Perez Castillo was assigned to the Atzanal was important at AR 77, the immigration judge did not definitively find that he was, in fact, a member. [00:11:25] Speaker 03: The board, however, assumes that there was a definitive finding by the immigration judge in affirming the IJ's conclusion and stating that the persecutor bar was raised, quote, based on petitioner's membership in the Atzanal battalion. [00:11:37] Speaker 03: At most, we have on the record [00:11:38] Speaker 03: an unclear relationship of Mr. Perez-Castillo to the Atanel. [00:11:42] Speaker 03: He was either on loan or a member for unknown periods of time. [00:11:47] Speaker 03: There's no specified location, but ultimately it remains unclear. [00:11:52] Speaker 00: And that ain't... But if we find that there was a sufficient amount of evidence in the record to raise the bar, [00:12:03] Speaker 00: he has the burden of proving he wasn't engaged in persecution. [00:12:11] Speaker 00: Correct? [00:12:12] Speaker 03: Correct. [00:12:12] Speaker 03: He would have the burden to then rebut it. [00:12:15] Speaker 00: And he didn't. [00:12:17] Speaker 00: So you're asking about all these specific things, but the government doesn't have to prove all of those specific things. [00:12:23] Speaker 00: They just have to show that there's enough evidence in the record [00:12:29] Speaker 00: to raise the persecutor's bar. [00:12:31] Speaker 00: And clearly, Mr. Perez Castillo knew that that was what the hearing was about, for him to rebut the persecutor's bar, to prove that he was not a persecutor. [00:12:43] Speaker 03: I think that gets to two points. [00:12:45] Speaker 03: First, the first point that we were making in this argument that it's a burden of proof issue and that the burden is on the government. [00:12:52] Speaker 03: And we argue that in this particular case, the immigration judge may have muddled the burden of proof, but the board specifically in reliance on NAGUSI 2 jumped over the government's initial burden and placed the burden squarely on Mr. Perez Castillo to rebut the bar. [00:13:07] Speaker 03: That was a legal error. [00:13:08] Speaker 03: There wasn't enough evidence in this record, as we say, based on mere membership, to have raised the bar, and that's the basis of the board's decision, entirely based on his membership in this group and then implied actions of that group. [00:13:22] Speaker 03: But then I also think it gets back to the duress. [00:13:25] Speaker 03: If it's undisputed that Mr. Perez Castillo was forcibly recruited into the military, [00:13:29] Speaker 03: then the court has to grapple with whether a duress defense exists. [00:13:33] Speaker 03: The agency below never dealt with that, never addressed it, never decided. [00:13:37] Speaker 03: And so in order to resolve this issue, it would need to remand to the agency to address that in the first instance. [00:13:45] Speaker 03: I see that I only have a minute and a half remaining. [00:13:47] Speaker 05: And do either of you have any other questions right now? [00:13:49] Speaker 05: OK, we'll put two minutes on the clock for rebuttal. [00:13:51] Speaker 05: Thank you. [00:14:14] Speaker 05: Morning. [00:14:15] Speaker 06: Good morning, Your Honors. [00:14:17] Speaker 06: May it please the court, Stephanie Hennis, for respondent. [00:14:21] Speaker 06: The petitioner in this case told an immigration officer that during the 1980s he was a member of the Atenal Battalion. [00:14:28] Speaker 06: This was a brutal military unit that indiscriminately mass murdered rural citizens. [00:14:34] Speaker 06: This was part of a military strategy at the time to simply weed out all perceived support for the guerrillas by [00:14:45] Speaker 06: murdering villagers. [00:14:47] Speaker 01: What about the argument of counsel that he was forcibly recruited, a finding apparently supported by the record that the BIA sort of acknowledged? [00:14:57] Speaker 06: So I don't see anything in the record where the board specifically affirmed the IG's forcible recruitment language. [00:15:06] Speaker 01: She indicated AR-77. [00:15:08] Speaker 01: Is that an incorrect site? [00:15:11] Speaker 06: AR-77. [00:15:13] Speaker 06: I think she's referring to, that's the, AR 77 would be the immigration judge's decision. [00:15:20] Speaker 06: So it is true that the immigration judge found that there was forcible recruitment, but what we would need is that finding being affirmed by the Board of Immigration Appeals. [00:15:33] Speaker 06: And I am not aware of anything in the board's decision. [00:15:36] Speaker 06: That would be at AR three to four. [00:15:39] Speaker 06: where that happens. [00:15:40] Speaker 06: But I also want to point out that in Nogusi 1, where the board identified a duress exception, it did not say that forcible recruitment was what was required to show duress. [00:15:53] Speaker 06: They said that this was a very, very, very narrow [00:15:57] Speaker 06: And there were five different things, all of which the applicant needed to show in order to rely on a duress defense. [00:16:06] Speaker 06: These are all very fact-specific. [00:16:09] Speaker 06: The person needed to act under an imminent threat of death, had no reasonable opportunity to escape. [00:16:15] Speaker 06: I won't run through all of them just because they are factual and the adverse credibility finding in this case prevents the petitioner from meeting any burden to show duress in this case. [00:16:35] Speaker 00: get to duress? [00:16:38] Speaker 00: No, Your Honor. [00:16:38] Speaker 00: Because isn't it uncertain the status of the Department of Justice's view as to whether there is a duress defense to this persecutor bar? [00:16:50] Speaker 06: Well, two things. [00:16:51] Speaker 06: One, it's not uncertain right now. [00:16:52] Speaker 06: While the attorney general did recertify Ngoosi to himself, there has not been another decision, and it did not vacate the 2020 Ngoosi decision. [00:17:05] Speaker 06: The 2020 Ngoosi decision does remain good law because it hasn't been vacated. [00:17:13] Speaker 06: But more importantly, for purposes of this case, the petitioner repeatedly emphasizes that the board relied on Naguse when it evaluated the persecutor bar, even when the petitioner was not credible. [00:17:30] Speaker 06: And there is simply no citation to Naguse. [00:17:33] Speaker 06: in that portion of the board's decision. [00:17:36] Speaker 06: There is one paragraph in the board's decision where the Ngoosi decision is cited, and that is where the board says, assuming credibility, he can't show duress because there is no duress exception to the persecutor bar. [00:17:52] Speaker 06: So that's actually the most important thing in this case. [00:17:55] Speaker 06: There's an unchallenged, unreviewable factual issue regarding credibility. [00:18:01] Speaker 06: And the immigration judge not only found the petitioner not credible, he actually made a finding that the petitioner attempted to adjust his testimony based on what he believed would get him relief from removal. [00:18:18] Speaker 05: So while the BIA, of course, cited Burbano, generally signaling that it agrees with the IJ's determination, [00:18:28] Speaker 05: But it, of course, does not mention the IJ's discretionary denial of the Nicarra relief. [00:18:36] Speaker 05: Are we able to remand for the BIA to take a look at that? [00:18:41] Speaker 05: Can we address that, or are we without any ability to address that issue now? [00:18:47] Speaker 06: The court could remand if it determined that the persecutor, the petitioner's inability to meet his burden to show that the persecutor bar did not apply. [00:19:01] Speaker 06: The court could not just order that he be granted NICARA. [00:19:07] Speaker 06: There is a discretionary finding that's required. [00:19:10] Speaker 06: So that would be necessary if the court determined that the [00:19:16] Speaker 06: persecutor bar was not sufficiently raised in this case. [00:19:22] Speaker 06: However, I would like to point out that there were some specific immigration judge findings in this case, and I know the petitioner maintains that there were not findings about his involvement with the Atenal battalion, but at AR 103, [00:19:38] Speaker 06: The immigration judge does say that the petitioner was part of that battalion between 1981 and 83. [00:19:47] Speaker 06: He also said that the petitioner was issued a weapon, an M16, that he was in combat, that he fired during combat, and that he witnessed the results of military atrocities, which included seeing women, children, and the elderly. [00:20:04] Speaker 06: Those are factual findings that the immigration judge made. [00:20:09] Speaker 06: And then the immigration judge also went on to cite Exhibit 7, and Exhibit 7 provided background information about this battalion. [00:20:19] Speaker 06: 1981 to 1983 was the worst period for human rights abuses by this battalion. [00:20:29] Speaker 06: They mass murdered civilians. [00:20:31] Speaker 06: The strategy was to kill all civilians. [00:20:35] Speaker 06: The killing sprees were so effective that they didn't take prisoners. [00:20:39] Speaker 00: Let me interrupt. [00:20:41] Speaker 00: The petitioner claims that the government has to show a specific incident where Mr. Perez Castillo engaged in persecutory conduct. [00:20:55] Speaker 00: Do you agree? [00:20:56] Speaker 06: No, Your Honor, and we discussed this in our brief. [00:21:00] Speaker 06: As Your Honor was talking about this before, all that's necessary and what the agency did in this case was say there needs to be some evidence in this record, evidence to support an inference that the petitioner was engaged in assistance. [00:21:20] Speaker 06: And at that point, he has the burden to show that he did not. [00:21:27] Speaker 06: The notion that he could meet his burden by repeatedly lying to immigration officials would create a perverse incentive to lie about your past involvement with organizations that were involved in persecution. [00:21:45] Speaker 06: But apart from that general policy notion, there's case law that also supports the government's position. [00:21:52] Speaker 06: The Fourth Circuit and Pastora v. Holder, we had a similar situation where the petitioner was part of a unit that was implicated in human rights violations. [00:22:03] Speaker 06: Like the petitioner in this case, he gave one version of his involvement during his Nakara interview. [00:22:09] Speaker 06: As he found out that that became problematic for his case, he provided a new description when he was in immigration court. [00:22:18] Speaker 06: And the Fourth Circuit explains that because he was part of a unit that involved, [00:22:25] Speaker 06: participated in human rights violations at the time and in the place where he was a part of that there wasn't a need for a specific persecutory event that was enough to show that the to indicate that the bar may apply and then the burden shifted to him. [00:22:42] Speaker 00: Let me interrupt again and ask you the same question that I asked counsel for the petitioner and that has to do with the third basis of [00:22:50] Speaker 00: upon which Nakara relief was denied by the immigration judge, which was not discussed in the appeals decision. [00:22:58] Speaker 00: And that is that he committed perjury. [00:23:01] Speaker 00: That prohibits him from being granted Nakara relief because he's not a good moral character. [00:23:10] Speaker 00: What do we make of that when it wasn't discussed? [00:23:15] Speaker 00: Is that a basis upon which the government believes that the decision to deny Nicarra relief can be affirmed? [00:23:24] Speaker 06: Well, at this juncture, the court is limited to what the board affirmed in its decision, and the board did not affirm that portion of the IJ's decision. [00:23:39] Speaker 06: Now, again, this would be relevant if the court were to determine that [00:23:43] Speaker 06: that petitioner met his burden to show that the persecutor bar did not apply, which we maintain is not the case in this situation. [00:23:53] Speaker 06: But if it was, that would be a reason for remand, because it's clear there are other aspects of the petitioner's NCARA eligibility that have to be considered by the agency before he could be granted. [00:24:06] Speaker 00: Specifically, including duress. [00:24:10] Speaker 06: The government maintains that a determination as to duress does not need to be made as long as the agency upholds, as long as the board upholds the adverse credibility finding. [00:24:26] Speaker 06: I mean, I guess the decision on that could be, well, even if there is a duress exception, he doesn't get to establish that because his [00:24:37] Speaker 06: testimony is not credible. [00:24:39] Speaker 06: We really don't know anything about the specific incidents that he would say he engaged in under duress because he's not been forthcoming with the immigration authorities about what he did while he was part of this battalion. [00:25:02] Speaker 00: But he never had it [00:25:03] Speaker 00: But there never was any consideration of duress because at the time that this decision was made, there was no duress exception according to the Department of Justice. [00:25:16] Speaker 06: That's true, Your Honor. [00:25:17] Speaker 06: But again, it would be kind of an exercise in futility because he's not credible. [00:25:25] Speaker 06: And the immigration judge has already determined that he lies. [00:25:28] Speaker 06: The immigration judge actually made a factual finding that he lies based on what would allow him to get relief. [00:25:39] Speaker 06: So the notion that the court would need to go back [00:25:43] Speaker 06: to the agency to have it determined that he's lying about his involvement with this group. [00:25:52] Speaker 05: But I guess it's theoretically possible at least that, I mean, maybe unlikely, but theoretically possible that the immigration judge could find that, you know, he has some credible testimony with respect to duress, even if he wasn't testifying credibly [00:26:09] Speaker 05: I don't know, with respect to everything else. [00:26:11] Speaker 05: I mean, I take your point, but I'm not sure that that's an impossibility, is it? [00:26:19] Speaker 06: Our position is that it is. [00:26:22] Speaker 06: And if you actually look at the credibility law, I don't know if I cited this in my brief, but when someone is found not credible, that can mean that he's not credible in all respects. [00:26:38] Speaker 06: So the idea that again, there should be another opportunity for him to [00:26:45] Speaker 06: established duress. [00:26:46] Speaker 06: And again, looking at the, I mean, this would also require him to have some sort of mea culpa moment, where now he finally comes back to the immigration authorities and admits everything that he did. [00:27:02] Speaker 06: Because in order to show the duress factors that are in the 2018 BIA-Naguse decision, they are very detailed. [00:27:14] Speaker 06: regarding a reasonable opportunity to escape or otherwise frustrate the threat of harm. [00:27:23] Speaker 01: Council, reading the BIA's decision to Judge Thomas's point, the BIA said, we adopt and affirm the determination by the immigration judge that the respondent was not credible. [00:27:38] Speaker 01: and that he's unable to rebut the application of the persecutor bar. [00:27:45] Speaker 01: It might be that the BIA is making a conclusion as to his credibility generally, but it could be that he's making the credibility only as to the persecutor bar, since it's referring to that in the very next portion of the sentence. [00:28:02] Speaker 01: So I guess I feel like I understand what your position is here, but is it also a reasonable interpretation to say, well, maybe they were just referring to the persecutor bar portion of it and not the credibility generally. [00:28:21] Speaker 06: Well, it adopted and affirmed the adverse credibility finding. [00:28:25] Speaker 06: And the immigration judge's adverse credibility finding was that the petitioner is a serial liar who makes up stories based on what he thinks will get him relief from removal. [00:28:39] Speaker 06: So I would say the board adopted and affirmed the adverse credibility finding in total. [00:28:46] Speaker 06: There was also the and in that sentence that you read, so the board is emphasizing that it's adopting the adverse credibility finding and that it is also adopting the analysis as to burden of proof. [00:29:03] Speaker 06: And I realize I have just a few seconds left, so I do want to point out [00:29:07] Speaker 06: that the discussion of burden of proof where the petitioner was not credible did place an initial burden on the government. [00:29:16] Speaker 06: Both decisions talk about how the burden shifted to the petitioner, that the government met its initial burden, and I see my time is up. [00:29:26] Speaker 04: Okay. [00:29:26] Speaker 04: Do either of you have any other questions? [00:29:28] Speaker 04: Okay. [00:29:28] Speaker 04: Thank you very much. [00:29:29] Speaker 06: Thank you, Your Honor. [00:29:40] Speaker 03: Thank you again, Your Honors. [00:29:42] Speaker 03: Just briefly on the burden that the government mentioned, the board below actually did not apply the burden to the government initially as to the persecutor bar. [00:29:57] Speaker 03: It specifically cites to Negusi 2 to state that the petitioner had not successfully rebutted the bar, and then [00:30:07] Speaker 03: It also specifically cites to NGUSI at 154. [00:30:13] Speaker 03: And 154 of NGUSI discusses the burden and states that the initial burden as to the bar is not the government's. [00:30:21] Speaker 03: The non-citizen bears the burden of dispersing the bar's applicability. [00:30:24] Speaker 03: Determination is an evidentiary one that does not stem from any burden on DHS or the government. [00:30:30] Speaker 03: So I think that's an incorrect statement by respondent that both agencies applied the burden initially to the government because that's part of the board's decision in this case. [00:30:39] Speaker 03: As to the factual findings that the respondent points to, it's true that the immigration judge, there is a discussion of other factual issues in the case, but starting at 102, [00:30:52] Speaker 03: of the record, she says, the court can only find that the respondent was in the military in El Salvador beginning in 1981. [00:30:59] Speaker 03: And this is where the confusion starts about his membership, and was at least initially assigned to the 4th Brigade, and then was either on loan to the Atenel or became a part of it when it formed, was either in and out of the battalion. [00:31:12] Speaker 03: So there's a lot of inconclusive language there. [00:31:15] Speaker 03: I don't think that that leads to a finding that he was, in fact, a member of the Atenel. [00:31:21] Speaker 03: And then as to the duress defense and the adverse credibility finding, I do believe that the court's reading, the understanding that the adverse credibility finding was specific to the persecutor bar, what's left is that undisputed finding by the immigration judge that he was forcefully recruited into the military without [00:31:44] Speaker 03: more by the agency. [00:31:48] Speaker 03: There's no discussion of a duress defense because the immigration judge found that it was not available at that time and the board found that it was precluded by NGUSI 2. [00:31:57] Speaker 03: So if the court believes that a duress defense does exist within the bar, it needs to remand back to the agency to determine that issue in the first instance. [00:32:05] Speaker 05: Thank you very much. [00:32:07] Speaker 05: We thank both counsel today for your very helpful arguments. [00:32:11] Speaker 05: This case is submitted and the court is adjourned.