[00:00:00] Speaker 02:
Council, before you begin, we would like to thank you for taking this case and representing this petitioner from the clinic.

[00:00:08] Speaker 02:
We appreciate it so very much.

[00:00:10] Speaker 03:
Thank you so much, Your Honor.

[00:00:12] Speaker 03:
I appreciate it.

[00:00:17] Speaker 03:
Okay.

[00:00:17] Speaker 03:
Good morning, Your Honors.

[00:00:18] Speaker 03:
May it please the court?

[00:00:20] Speaker 03:
My name is Priscilla Benzor, and I represent the petitioner, Eric Omar Lepe Estrada, and I'd like to reserve two minutes for rebuttal.

[00:00:26] Speaker 02:
All right, counsel, please be reminded that the time showing is your total time remaining.

[00:00:31] Speaker 02:
Okay, I will.

[00:00:32] Speaker 02:
Thank you so much.

[00:00:37] Speaker 03:
Reasonable fear proceedings are designed to weed out frivolous claims to fear made by non-citizens in summary removal proceedings.

[00:00:46] Speaker 03:
The petitioner's claims

[00:00:48] Speaker 03:
are meritorious, and he provided more than enough evidence necessary to meet the threshold inquiry at this stage, and he merits the opportunity to be heard at a full hearing for withholding and cat relief.

[00:01:01] Speaker 03:
Here the IJ erred as to procedure and substance when he summarily affirmed the asylum officer's negative reasonable-hear determination.

[00:01:09] Speaker 01:
Counsel, if you wouldn't mind distinguishing the Canales case for us.

[00:01:15] Speaker 01:
The government relies on canalis on this procedural point Maintaining that it indicates there's no real reversible error.

[00:01:24] Speaker 01:
Do you distinguish canalis?

[00:01:28] Speaker 03:
Yes, your honor So

[00:01:36] Speaker 03:
So in Canales, the IJ, the immigration judge in that case, briefly articulated the incorrect standard at the end of the reasonable review hearing.

[00:01:48] Speaker 03:
But he articulated, or they articulated the correct standard in their written decision.

[00:01:52] Speaker 03:
They've used language throughout the hearing that indicated that they were applying the appropriate standard of review.

[00:02:00] Speaker 03:
This is not what the IJ did in Petitioner's case.

[00:02:04] Speaker 03:
In this case,

[00:02:06] Speaker 03:
The IJ didn't provide any reasoning in the written decision, nor did he provide any reasoning throughout the hearing.

[00:02:14] Speaker 03:
If you review the transcript of the hearing, there's nothing to really indicate why the IJ is ultimately coming to the conclusion that he does.

[00:02:22] Speaker 03:
And I provided that in Tadevosian, in an analogous setting, this court has required the BIA to provide a minimum degree of clarity and dispositive reasoning when the BIA summarily affirms an IJ's decision.

[00:02:37] Speaker 03:
So similarly here, an IJ should be required to provide reasoning and provide clarity as to the decision that he took.

[00:02:46] Speaker 03:
But that's just not in the record.

[00:02:47] Speaker 03:
And that's not in the written decision.

[00:02:48] Speaker 03:
The written decision is only six sentences, which is typical in these types of proceedings.

[00:02:52] Speaker 03:
They are very short.

[00:02:54] Speaker 03:
But at minimum, he could have provided some reasoning to really demonstrate that he heard petitioner's claim and that he really thought through how this applied to the appropriate laws.

[00:03:05] Speaker 03:
And he didn't do that.

[00:03:06] Speaker 02:
Council, is it enough for the IJ to say that it has reviewed the record and that it agreed with the

[00:03:14] Speaker 03:
Officer Not necessarily your honor because while the IJ did say that he was going to review the asylum officer's decision it is

[00:03:28] Speaker 03:
It should be required of an IJ to provide that clarity, that reasoning, that really demonstrates how he thought through the claim.

[00:03:36] Speaker 03:
Because, for example, in the section about past persecution, he doesn't... About withholding and why the petitioner hadn't established that he provided a reasonable possibility of facing persecution.

[00:03:49] Speaker 03:
He doesn't explain why the petitioner just showed up.

[00:03:51] Speaker 02:
Counsel, do you have a case in the context of a reasonable fear interview?

[00:03:56] Speaker 02:
that sets forth those standards, as opposed to a full-blown asylum hearing?

[00:04:03] Speaker 03:
Not necessarily, Your Honor.

[00:04:06] Speaker 02:
So there's a little bit of a difference between an asylum hearing and a reasonable fear that proceedings are intentionally truncated.

[00:04:14] Speaker 02:
Would you agree for reasonable fear?

[00:04:18] Speaker 02:
Yes.

[00:04:20] Speaker 02:
import into that truncated procedure the same standards that we have for full-blown immigration hearings?

[00:04:28] Speaker 03:
Well, no, Your Honor, and you're correct.

[00:04:30] Speaker 03:
They are very distinct.

[00:04:31] Speaker 03:
They're very distinct in nature.

[00:04:33] Speaker 03:
And at a full-blown hearing,

[00:04:36] Speaker 03:
an IJ's decision can be very many pages long because they're going over an extensive record.

[00:04:41] Speaker 03:
They're going through the credibility of the testimony of the witness and potentially other witnesses that will be brought to the stand.

[00:04:49] Speaker 03:
But it's only six sentences that the IJ provided in his written decision.

[00:04:53] Speaker 03:
So one of those sentences could have had more.

[00:04:55] Speaker 03:
So he erred us to procedure, but he also erred us to substance because

[00:05:01] Speaker 03:
Extensive proof isn't needed to establish a reasonable possibility of persecution or torture He needs to you know one of the arguments that you make is that?

[00:05:11] Speaker 04:
The IJ didn't use the reasonable possibility standard, but do you agree that the asylum officer did with regard to torture?

[00:05:20] Speaker 03:
With regard to torture well the asylum officer made

[00:05:26] Speaker 04:
had misapplication of the law throughout the... But I'm looking at the applicant also failed to establish a reasonable possibility that a public official would consent or acquiesce to his cartel Jalisco Nueva Generación harming him.

[00:05:41] Speaker 04:
This is insufficient to establish a reasonable possibility that the police would consent or acquiesce, etc.

[00:05:46] Speaker 04:
So it does appear at least that the asylum officer used the right standard of proof on torture.

[00:05:53] Speaker 03:
Well, the asylum officer also misapplied the facts.

[00:05:56] Speaker 03:
So the asylum officer also states that the applicant believes that the police would not help him.

[00:06:01] Speaker 03:
But let's just stay on the standard of proof.

[00:06:03] Speaker 04:
OK, yes.

[00:06:04] Speaker 04:
OK.

[00:06:04] Speaker 04:
So you agree that the asylum officer did use the correct standard of proof for torture?

[00:06:10] Speaker 04:
I mean, he has the reasonable possibility, or she has a reasonable possibility language twice.

[00:06:17] Speaker 03:
The reasonable possibility language is in there.

[00:06:19] Speaker 03:
That is true.

[00:06:20] Speaker 04:
And then if the IJ then said, I concur,

[00:06:23] Speaker 04:
in the DHS reasonable fear determination, then why does that not incorporate by reference that correct standard of proof as to torture?

[00:06:33] Speaker 03:
So this court has held that the IJ's decision can incorporate the asylum officer's decision.

[00:06:38] Speaker 03:
That is true.

[00:06:39] Speaker 03:
But when reviewing the asylum officer's decision, that was when it was incumbent on the IJ to realize that it was incorrect.

[00:06:47] Speaker 03:
That what was incorrect?

[00:06:48] Speaker 03:
The application, well first the application of the facts as to that decision because like I mentioned, the asylum officer states that petitioner, that the applicant believes that the police would not help him.

[00:06:59] Speaker 03:
That's not what the petitioner stated.

[00:07:01] Speaker 03:
Throughout the hearing, the petitioner talked about police corruption and a concerted effort between the police and the cartel

[00:07:09] Speaker 03:
to persecute petitioner.

[00:07:10] Speaker 03:
So that's distinct from saying that he just believes that the police won't do anything.

[00:07:15] Speaker 04:
So are you then walking away from your standard of proof argument?

[00:07:20] Speaker 04:
Because that seems like a different argument.

[00:07:24] Speaker 03:
Yes, that is a different argument.

[00:07:25] Speaker 03:
But as to the reasonable possibility standard, it's still when the IJ in his six sentence decision applied reasonable possibility, he didn't apply reasonable possibility.

[00:07:37] Speaker 03:
He said likely.

[00:07:38] Speaker 03:
He used the word twice.

[00:07:40] Speaker 03:
And likely is sufficiently higher than reasonable possibility.

[00:07:44] Speaker 04:
And you say likely is more than 50%.

[00:07:46] Speaker 04:
So you're equating likely with more likely than not.

[00:07:51] Speaker 04:
And that's not inherently the case, is it?

[00:07:55] Speaker 04:
Why is likely always the same as more likely than not?

[00:08:00] Speaker 03:
Well, when we look at the word likely and we just give a plain language understanding of what that word means.

[00:08:05] Speaker 03:
Merriam-Webster's dictionary discusses that word as having a high probability of occurring, that it is very probable.

[00:08:11] Speaker 03:
And that's very distinct from reasonable possibility, because reasonable possibility is a 10% chance.

[00:08:16] Speaker 03:
And it's a 10% chance that if the facts are taken as true, that the petitioner may face persecution or torture.

[00:08:24] Speaker 04:
Let me ask about your 28-J letter.

[00:08:28] Speaker 04:
Riley applies here Does there need to be an equitable tolling analysis and who should do that if that's the case?

[00:08:35] Speaker 03:
I may answer your question and reserve for a bottle.

[00:08:38] Speaker 03:
Yes, okay.

[00:08:38] Speaker 03:
Thank you so as to the 28 a letter It doesn't apply in petitioners case necessarily because what Riley says is that the 30-day tolling window the date the 30-day window for

[00:08:56] Speaker 03:
submitting a petition for review to the relevant court of appeals needs to be done upon the issuance of a final administrative removal order, which is distinct but is similar enough in this setting for a reinstatement order, because those are very similar.

[00:09:10] Speaker 03:
That's why I brought the decision to the court's attention, because it does suggest that the deadline begins to toll at the moment, or the deadline begins to run at the issuance of the reinstatement order.

[00:09:25] Speaker 03:
But at the time that petitioner submitted his PFR, it was well-established law in Alonso Juarez v. Garland that the 30 days begins to run at the end of the withholding process.

[00:09:38] Speaker 03:
So at the moment that petitioner submitted his PFR, it was timely.

[00:09:42] Speaker 03:
And I think that whether or not there should be a tolling is a question for petitions that are submitted after Riley was enacted or made law.

[00:09:55] Speaker 02:
I thank you, counsel.

[00:09:57] Speaker 02:
We'll give you a minute or two for rebuttal.

[00:09:59] Speaker 03:
Thank you so much, Your Honors.

[00:10:00] Speaker 03:
I appreciate it.

[00:10:11] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:10:13] Speaker 00:
Anthony Nardi on behalf of the Attorney General.

[00:10:15] Speaker 00:
Your Honors, two main points today.

[00:10:17] Speaker 00:
First, petitioners failed to demonstrate that the record compels reversal of the agency's negative reasonable fear finding, and second,

[00:10:24] Speaker 00:
There are no procedural irregularities in the record that require this court to remain on due process concerns.

[00:10:29] Speaker 00:
I'm happy to answer any of the court's questions, but I wanted to turn first to Judge Fitzwater's question regarding the use of likely and the procedural consequences of that.

[00:10:40] Speaker 00:
Primarily, we still agree that, yes, Canales controls here.

[00:10:42] Speaker 00:
I think it's... Canales can't control.

[00:10:44] Speaker 00:
It's unpublished.

[00:10:47] Speaker 00:
Excuse me, Your Honor.

[00:10:47] Speaker 00:
I agree.

[00:10:47] Speaker 00:
It doesn't control.

[00:10:48] Speaker 00:
However, it's a good example of how this court looks to the totality of the circumstances

[00:10:52] Speaker 00:
when looking at the use of that language.

[00:10:55] Speaker 00:
And in particular, though, I'd also like to point to Judge Koh's question regarding the use of likely.

[00:11:00] Speaker 00:
As this court said in Bartolome, which does control here, the reasonable possibility standard is equivalent to the likelihood of future harm standard in the asylum context, which typically in that context, the word likely is often used to refer to that future harm.

[00:11:16] Speaker 00:
So again, it seems here that the IJ was referring to that exact standard

[00:11:20] Speaker 00:
which this court has held is equivalent to the reasonable possibility standard.

[00:11:25] Speaker 00:
Additionally, just addressing the 28-J letter and Riley, the government's position here is that the court is free to address the merits of this case and adjudicate the case on the merits without addressing Riley.

[00:11:35] Speaker 04:
Let's say we disagree with you that likely is the same thing as reasonable possibility.

[00:11:43] Speaker 04:
In the asylum officer's decision, it doesn't even say what standard of proof is being applied.

[00:11:51] Speaker 04:
I mean, at least as to torture, the officer uses reasonable possibility.

[00:11:55] Speaker 04:
So we don't even know.

[00:11:56] Speaker 04:
And then the IJ says, well, I'm concurring with the AO's determination, and then says, likely to be persecuted hasn't been shown.

[00:12:09] Speaker 04:
I just don't see how that's the correct standard of proof.

[00:12:12] Speaker 00:
Your Honor, at the beginning of the immigration judge's decision, it does state the correct standard, the reasonable possibility standard for both.

[00:12:18] Speaker 04:
That's just the check the box.

[00:12:20] Speaker 04:
The actual reasons and this judge's individual contribution says likely twice.

[00:12:31] Speaker 00:
Your Honor, I agree.

[00:12:32] Speaker 00:
Those are the words that were used.

[00:12:33] Speaker 00:
However, I don't think this court has ever applied a magic words test to this analysis.

[00:12:36] Speaker 00:
It's looked to the totality of the circumstances.

[00:12:38] Speaker 00:
And again, I would point to Canales as an example

[00:12:41] Speaker 00:
There, I agree that the IJ in that case used more likely than not on two occasions, which clearly references a different standard of review and a much higher threshold that had to be met.

[00:12:50] Speaker 00:
However, the court said looking at everything there, that did not demonstrate that the IJ was improperly applying the incorrect standard of review or burden of proof.

[00:13:00] Speaker 00:
And here, I think it's also clear that the IJ specifically stated on the record that he had reviewed all of the asylum officer's notes.

[00:13:08] Speaker 00:
He had reviewed the additional evidence.

[00:13:09] Speaker 00:
He took new testimony.

[00:13:11] Speaker 00:
And then, yes, he perhaps inartfully used likely, but again, that likely.

[00:13:15] Speaker 04:
Yeah, I think this is actually different than in Canales, the immigration judge used the correct reasonable possibility standard in her written decision, used language indicating her reliance on the reasonable possibility standard throughout the hearing, and affirmed the AO's decision, which had the correct legal standard.

[00:13:40] Speaker 04:
So all of those don't seem to be present here.

[00:13:42] Speaker 00:
Your honor, specifically with respect to the likelihood of future harm.

[00:13:48] Speaker 00:
Yes, the asylum officer does not use that standard in that section of the decision.

[00:13:52] Speaker 00:
However, the asylum officer does cite to the correct standard the reasonable possibility standard in the torture analysis.

[00:13:58] Speaker 04:
Right, but you would concede on persecution, the asylum officer does not invoke the right standard of proof.

[00:14:06] Speaker 04:
There's no evidence of that.

[00:14:08] Speaker 00:
Your Honor, the asylum officer doesn't state any specific standard that's to be used.

[00:14:11] Speaker 04:
Right, so that would be a distinction from canalis, right?

[00:14:15] Speaker 00:
I agree, Your Honor, and I only point to Canalys to show the overarching point that it's not, the court doesn't look individually at specific words that are used in different places.

[00:14:23] Speaker 00:
They look to the record as a whole to determine whether the correct sentence is correct.

[00:14:26] Speaker 04:
Right, so let's see the other bases on which the Canalys Court and Judge

[00:14:31] Speaker 04:
Rawlinson is correct.

[00:14:32] Speaker 04:
It's a MemDISPO anyway, so it's not controlling.

[00:14:35] Speaker 04:
But OK, so the AO didn't use the correct standard.

[00:14:38] Speaker 04:
We have no evidence of that.

[00:14:40] Speaker 04:
The immigration judge didn't use language indicating reliance on the right standard throughout the hearing.

[00:14:46] Speaker 04:
And the written decision doesn't articulate the correct standard.

[00:14:52] Speaker 04:
So I guess I'm not seeing how Canales is persuasive here.

[00:14:58] Speaker 00:
Your Honor, fundamentally, I think the IJ did

[00:15:01] Speaker 00:
At the end of it, check the box next to the correct standard at the beginning of his decision.

[00:15:05] Speaker 00:
And again, I think that really what it comes down to is the fact that under this court's case law, there is no distinction in the standard between reasonable possibility and likelihood of future harm.

[00:15:15] Speaker 00:
As this court in Bartolome said, to give meaning to reasonable possibility, it said that that is directly referencing the asylum standard for future persecution, which again is typically referred to as a likelihood of future harm.

[00:15:29] Speaker 00:
So I think I agree that,

[00:15:31] Speaker 00:
There is not the exact word reasonable possibility in the IJ decision, but it seems like he's referencing the correct standards that were also articulated in the cases that are cited directly after Zettino.

[00:15:42] Speaker 04:
You didn't file a response to the 28-J letter.

[00:15:45] Speaker 04:
Is the government waiving any timeliness argument?

[00:15:48] Speaker 00:
Your Honor, the government is not waiving the timeliness arguments here.

[00:15:50] Speaker 00:
However, we think as other panels of this court and courts around the country have done post-Reilly in these reinstatement or Farrow cases, we think the court can reach the merits of the

[00:16:00] Speaker 00:
decision adjudicated on the merits here.

[00:16:02] Speaker 04:
Okay, so you're not going to be pressing for any kind of timeliness?

[00:16:09] Speaker 00:
Your Honor, candidly, I think everyone recognizes that Riley is a seismic change.

[00:16:13] Speaker 04:
Intervening, yeah, intervening.

[00:16:15] Speaker 04:
Okay, thank you.

[00:16:16] Speaker 04:
Thank you for taking that reasonable position.

[00:16:19] Speaker 01:
I'm wondering if from a policy standpoint this panel ought to insist that these kinds of errors be corrected at the best place where they can be corrected.

[00:16:31] Speaker 01:
I mean, I am a little surprised by the

[00:16:35] Speaker 01:
sort of the callous use of the standards.

[00:16:38] Speaker 01:
It would seem like the standards are extremely important in the decision making.

[00:16:42] Speaker 01:
Would you care to address that, whether it's really better for us to insist on accuracy at the place where it can be corrected?

[00:16:52] Speaker 00:
the agency should be accurate in those standards.

[00:16:55] Speaker 00:
But again, I think fundamentally our position is that there is actually no distinction, as this court in Bartolome said.

[00:17:01] Speaker 00:
Bartolome directly links the reasonable possibility standard with the well-founded fear future standard in asylum, which is the exact same analysis.

[00:17:10] Speaker 00:
So again, I agree that the IJ didn't exactly use that language, but it's the language that this court has endorsed as being identical and being the appropriate analysis.

[00:17:19] Speaker 00:
So I don't think there is

[00:17:23] Speaker 00:
Perhaps inartful, but not incorrect.

[00:17:24] Speaker 00:
And just to judge code to your question, I want to be very clear that we are not conceding timeliness in this case.

[00:17:30] Speaker 00:
However, we think the panel can get to the merits here.

[00:17:33] Speaker 00:
And if the court has no further questions.

[00:17:37] Speaker 02:
It appears not, counsel.

[00:17:38] Speaker 02:
Thank you.

[00:17:39] Speaker 02:
Thank you, Your Honors.

[00:17:41] Speaker 02:
Let's have two minutes for rebuttal.

[00:17:43] Speaker 02:
Two minutes.

[00:18:02] Speaker 03:
Thank you, Your Honors.

[00:18:04] Speaker 03:
The use of the word likely in the IJ's decision was not just in our full, but it was incorrect.

[00:18:11] Speaker 02:
And to... But does the record compel us to conclude that it was incorrect?

[00:18:20] Speaker 02:
It does.

[00:18:20] Speaker 03:
Because when we are doing a review of the totality of the circumstances, when we're looking at the actual hearing and we're looking at the transcript of what the IJ is discussing with the petitioner,

[00:18:32] Speaker 03:
There's just nothing to suggest that he was applying the appropriate standard of review.

[00:18:37] Speaker 03:
He said, yes, I'll look at it, and that's all we have.

[00:18:39] Speaker 03:
there's nothing to really indicate that he was reviewing this case to ensure that it was a threshold screening.

[00:18:45] Speaker 03:
Because ultimately, at the end of the day, that's what this is.

[00:18:48] Speaker 03:
It is a screening tool that's designed to ensure that people who have strong claims are going to be heard at a full hearing.

[00:18:57] Speaker 03:
And that is exactly what the petition provided.

[00:18:59] Speaker 04:
But what's your response to the government's argument that they have a case that says likely is the same as reasonable possibility?

[00:19:09] Speaker 04:
I think that's what your opposing counsel just said.

[00:19:12] Speaker 03:
Right.

[00:19:12] Speaker 03:
I did hear the opposing counsel.

[00:19:14] Speaker 03:
I just am not... You've never seen that case.

[00:19:17] Speaker 03:
I'm not aware of it.

[00:19:18] Speaker 03:
When we talk about the likelihood of future harm in asylum or in asylum cases, which are distinct from withholding cases, but if we're going to be using that case or that precedent, then it is 10%.

[00:19:32] Speaker 03:
It is a reasonable possibility standard.

[00:19:38] Speaker 04:
But there's no case that's as likely as 10%.

[00:19:41] Speaker 04:
Correct.

[00:19:46] Speaker 03:
And to your point, Judge Koh, the only time that the IJ articulated the reasonable possibility standard was in the checkbox on this forum decision.

[00:19:57] Speaker 03:
But petitioners' unrebutted and credible testimony provided more than enough at this stage.

[00:20:03] Speaker 03:
I see that my time is up.

[00:20:04] Speaker 03:
Yes.

[00:20:05] Speaker 03:
Please complete your thought, though.

[00:20:07] Speaker 03:
Thank you so much.

[00:20:08] Speaker 03:
Yes, his unrebutted credible testimony suffices for the 10% threshold.

[00:20:14] Speaker 03:
He has enough to get through the door.

[00:20:16] Speaker 03:
He has enough to be heard at a full hearing on withholding and cat relief.

[00:20:20] Speaker 03:
And with that, I submit your honest.

[00:20:22] Speaker 02:
All right.

[00:20:22] Speaker 02:
Thank you, counsel.

[00:20:23] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:20:26] Speaker 02:
And again, we convey our thanks to the Thomas and Mack Legal Clinic for representing this petitioner.

[00:20:31] Speaker 02:
Thank you so much.

[00:20:33] Speaker 02:
This case, the case just argued, is submitted for decision by the court.