[00:00:01] Speaker 02:
Okay, we have a third case on the calendar this morning, and we'll ask counsel to please come up.

[00:00:06] Speaker 02:
I know we have one attorney appearing remotely.

[00:00:09] Speaker 02:
This case is case 24-6081.

[00:00:15] Speaker 02:
It's Martinez Rodriguez versus Bondi.

[00:00:19] Speaker 02:
So Mr. Siegel, I see we have you here, and we have counsel by video as well.

[00:00:26] Speaker 02:
Okay, I can't see him yet.

[00:00:32] Speaker 02:
Okay, Council, who's on video, can you go ahead and just appear by video?

[00:00:37] Speaker 02:
Turn on your video for us.

[00:00:41] Speaker 05:
Yes, Your Honor.

[00:00:42] Speaker 05:
I will turn on the video in just one second.

[00:00:44] Speaker 02:
Okay, thanks.

[00:00:44] Speaker 02:
I'd like you to be... Just want to be able to see you on video, but have you on mute, okay?

[00:00:49] Speaker 02:
So just go ahead and get that set up.

[00:00:52] Speaker 05:
Will do, Your Honor.

[00:01:00] Speaker 02:
Mr. Siegel, let's just give...

[00:01:03] Speaker 02:
Council for the government a chance to get set up here.

[00:01:05] Speaker 02:
Your honor, thank you.

[00:01:19] Speaker 02:
Okay, there we go.

[00:01:20] Speaker 02:
Thank you, sir.

[00:01:20] Speaker 02:
Good to see you by video and we'll ask you just to go ahead and mute your device and we'll go ahead and hear from Mr. Siegel.

[00:01:27] Speaker 02:
Good morning, sir.

[00:01:28] Speaker 03:
Good morning, your honors.

[00:01:29] Speaker 03:
May it please the court, Josh Siegel.

[00:01:31] Speaker 03:
I represent the petitioner

[00:01:33] Speaker 03:
Maria Heidi Martinez Rodriguez in this case.

[00:01:39] Speaker 03:
I would like to reserve two minutes for rebuttal, if possible.

[00:01:43] Speaker 03:
I also represent the petitioner's son, Gerardo Jose Mamaya Martinez, who's a minor.

[00:01:49] Speaker 03:
He's 10 years old now.

[00:01:51] Speaker 03:
And I only mention him because the lead petitioner was a minor at the time she had sexual relations with the father of Gerardo.

[00:02:02] Speaker 03:
She gave birth a month after she turned 18.

[00:02:06] Speaker 03:
She's, you know, that's commonly known as statutory rape.

[00:02:12] Speaker 03:
It's the same in El Salvador.

[00:02:14] Speaker 03:
El Salvador has an age of consent of 18 years old.

[00:02:18] Speaker 03:
And there are stiff penalties for violating that statute.

[00:02:22] Speaker 03:
I only mention this now because it encapsulates the main issue in this case.

[00:02:29] Speaker 03:
And there's really only one main issue, and that is whether the government of El Salvador is both willing and able to control the persecution of private actors.

[00:02:39] Speaker 03:
That's basically the only issue.

[00:02:41] Speaker 02:
Well, there's also this issue of your request to amend the notice to appear, which I did want to hear from you on as well.

[00:02:48] Speaker 02:
Sure, yes.

[00:02:51] Speaker 03:
Yes, that is the second issue.

[00:02:56] Speaker 03:
There are two parts to that main issue.

[00:02:58] Speaker 03:
And the first is and this court has said that the board, the agency errors when it only looks at the first part of that question but not the second.

[00:03:10] Speaker 03:
That is it only looks at whether a government is willing to control the persecutors and not also able to.

[00:03:18] Speaker 03:
And that's error if the board does that.

[00:03:21] Speaker 03:
This court has also said that if the court,

[00:03:26] Speaker 03:
or the agency ignores provative evidence of either of those issues, that's error two.

[00:03:34] Speaker 03:
And it has to be provative and it has to be, you know, or highly provative, potentially dispositive, but it can't just ignore the evidence.

[00:03:44] Speaker 03:
And that's the problem here is the board and the agency simply ignored the second part of that question.

[00:03:52] Speaker 03:
They looked at whether the government of El Salvador was willing to control

[00:03:56] Speaker 03:
persecuted, private persecutors, perpetrators of domestic violence.

[00:04:01] Speaker 03:
And then they stopped the inquiry.

[00:04:04] Speaker 03:
They looked and they said, well, El Salvador has laws against domestic violence.

[00:04:10] Speaker 03:
There were some hotlines set up during COVID for domestic abuse.

[00:04:15] Speaker 03:
If women felt they were being abused, they could call these hotlines.

[00:04:19] Speaker 03:
They bring up some statistics about women in government positions that

[00:04:25] Speaker 03:
The majority of prosecutors, the majority of public defenders in El Salvador are women, and almost half the judges are women.

[00:04:32] Speaker 03:
Then they stop.

[00:04:33] Speaker 03:
They don't go into the other evidence that addresses the specific issue of whether, well, that's great.

[00:04:40] Speaker 03:
El Salvador has rules against domestic violence, but are they actually able to enforce those rules?

[00:04:45] Speaker 03:
Are they able to control the private persecutors?

[00:04:50] Speaker 03:
And they ignore the swathes of evidence in doing it.

[00:04:54] Speaker 03:
The easiest to point out is that our own Department of State report, the United States Department of State, which has said that, yes, while there are laws against domestic violence, they are poorly enforced, it remains a widespread problem throughout the country, and it's a serious problem.

[00:05:14] Speaker 03:
Now, it's hard to see why the board would not even mention it, let alone sort of address that, which,

[00:05:23] Speaker 03:
At least, it's probative evidence.

[00:05:26] Speaker 03:
At most, it's dispositive.

[00:05:27] Speaker 03:
Like, our own Department of State is saying El Salvador is unable to control this problem.

[00:05:32] Speaker 03:
It's widespread.

[00:05:33] Speaker 03:
It's rampant.

[00:05:34] Speaker 01:
That's... Counsel, am I missing something?

[00:05:37] Speaker 01:
Your brief, you know, Section 1B specifically says, you should be... adjudicator would be compelled to conclude that it's unwilling to insert itself

[00:05:52] Speaker 01:
And then I would be looking then for a next section which says, is unable to.

[00:05:57] Speaker 01:
And I don't find that in the brief.

[00:05:59] Speaker 01:
Am I missing a page or?

[00:06:00] Speaker 03:
No, Your Honor.

[00:06:02] Speaker 03:
The brief sort of melds it both together and says that the agency should have looked at all of the evidence and didn't.

[00:06:15] Speaker 03:
It kind of stopped at the first part.

[00:06:17] Speaker 03:
And upon looking at it and sort of

[00:06:20] Speaker 03:
Digesting it and reviewing the case law and everything else This is the reality of these courts decisions So yeah, I apologize.

[00:06:30] Speaker 02:
I didn't articulate it as I should have in the brief can I ask you about this this issue with the The parole document yes, so what first of all what are you asking for here?

[00:06:41] Speaker 03:
so

[00:06:43] Speaker 03:
The notice to appear was mischarged.

[00:06:46] Speaker 03:
That's the charging document.

[00:06:48] Speaker 03:
One of the allegations is that she entered without being admitted or paroled.

[00:06:51] Speaker 03:
That just wasn't true.

[00:06:53] Speaker 03:
That wasn't found out until after she pled and conceded the charge in the immigration court.

[00:06:59] Speaker 03:
So at the final hearing, all of a sudden it came to light that there's a parole stamp in her record that shows that she was paroled for humanitarian purposes.

[00:07:09] Speaker 01:
There's a parole stamp on a piece of paper

[00:07:12] Speaker 01:
that doesn't have her name on it.

[00:07:15] Speaker 01:
At the bottom of it, it says I-94, but it's clearly a copy of one page of a multi-page or a two-sided document.

[00:07:28] Speaker 01:
Now, I'm not saying that it was forged or where it came from, but I take it from the record that there's no indication other than, oh, I found it in the record.

[00:07:39] Speaker 01:
of what that is.

[00:07:41] Speaker 03:
A couple things, Your Honor.

[00:07:42] Speaker 03:
First, that's how DHS gives those parole stamps, humanitarian parole.

[00:07:47] Speaker 03:
They don't put the name on it, which I find is odd, too.

[00:07:50] Speaker 01:
So they don't give them an I-94?

[00:07:52] Speaker 03:
Not an official I-94 that someone would get if they come in on a visa or things like that.

[00:07:56] Speaker 03:
That stamp, there's a little note on it that says that is an I-94.

[00:08:03] Speaker 03:
I don't know why they do it that way.

[00:08:04] Speaker 01:
I mean, I have it here.

[00:08:06] Speaker 01:
Is there something you said that says it's not an I-94?

[00:08:10] Speaker 03:
No, I think in the government's brief they mention that it's not an official I-94.

[00:08:14] Speaker 03:
I think it is.

[00:08:15] Speaker 03:
It's just done in a different way under 212 D-5.

[00:08:18] Speaker 01:
And that's where the BIA says the record does not contain a copy of the respondent's form I-94.

[00:08:28] Speaker 03:
The administrative record does contain it in two places at pages 80 and 444.

[00:08:33] Speaker 01:
80 is the thing that has the stamp on it.

[00:08:37] Speaker 03:
Yes.

[00:08:37] Speaker 03:
So the only thing in the immigration judge's record is the

[00:08:42] Speaker 03:
is the testimony that he reviewed it in court and said, yes, I see that this is a parole stand.

[00:08:48] Speaker 01:
And what's the other page reference you said, page 44?

[00:08:50] Speaker 01:
444.

[00:08:51] Speaker 02:
That's the same thing.

[00:08:53] Speaker 01:
It's the same document.

[00:08:54] Speaker 01:
OK.

[00:08:54] Speaker 02:
So this was provided to you by your client?

[00:08:57] Speaker 02:
I'm sorry?

[00:08:57] Speaker 02:
This was provided to you by your client?

[00:08:59] Speaker 02:
That's how we have this?

[00:09:00] Speaker 01:
Well, you don't even say that, do you?

[00:09:02] Speaker 01:
As I read the record, it says, I found it in the file.

[00:09:05] Speaker 03:
Well, it was a- I mean, I don't know if it was you, whoever was at- It was me, but it was-

[00:09:10] Speaker 03:
documents provided on the day of her final hearing.

[00:09:14] Speaker 01:
Provided by?

[00:09:16] Speaker 03:
By the government.

[00:09:18] Speaker 03:
By the government?

[00:09:18] Speaker 02:
No, by the petitioner.

[00:09:19] Speaker 03:
Okay, by your client.

[00:09:20] Speaker 03:
So I didn't get anything from the government.

[00:09:21] Speaker 03:
This was all from the petitioner.

[00:09:23] Speaker 01:
And going through it, at the last second... Was she in court?

[00:09:28] Speaker 01:
She was.

[00:09:29] Speaker 01:
You could have asked her where did this come from?

[00:09:32] Speaker 03:
Well, by then, testimony was closed.

[00:09:35] Speaker 02:
I guess I could have recalled her, but... So what did the IJ have to say when this was raised?

[00:09:41] Speaker 03:
He said that that was evidence of her conditional parole under Section 236, which is not correct.

[00:09:51] Speaker 03:
Under the cases and under how parole is viewed, a humanitarian parole under 212D5 is a parole which allows her to, it opens up certain avenues for her.

[00:10:04] Speaker 03:
So for instance, if she happened to marry somebody or

[00:10:08] Speaker 03:
had another person who could petition her.

[00:10:10] Speaker 01:
It's only temporary, right?

[00:10:11] Speaker 01:
So what does the expiration of the 60 days that it's temporary for mean?

[00:10:17] Speaker 01:
Because she didn't even apply for asylum within the 60 days, right?

[00:10:22] Speaker 03:
It's humanitarian parole.

[00:10:24] Speaker 03:
It's different in every case.

[00:10:26] Speaker 03:
But typically, it's done until the adjudication of their asylum application.

[00:10:32] Speaker 01:
even though that's not what it says there.

[00:10:34] Speaker 03:
Yes, they do it for humanitarian purposes.

[00:10:38] Speaker 03:
A lot of times if a woman is pregnant or has a young child with them, they don't want to just sort of put them into incarceration right then.

[00:10:48] Speaker 01:
They want to kind of parole them.

[00:10:51] Speaker 01:
shall not be, such parole of an alien, I'm reading 1182 5A, shall not be regarded as an admission of the alien, and when the purposes shall, in the opinion of the secretary, have been served, the alien shall forthwith return or be returned to the custody.

[00:11:11] Speaker 01:
So wouldn't that mean that that's what should have happened after the 60 days that said that this expired?

[00:11:19] Speaker 03:
Yes, though there are alternatives to incarceration.

[00:11:23] Speaker 01:
Okay, I'm not saying that it had to be, but that it clearly ended.

[00:11:27] Speaker 01:
I mean, I have had cases, one of which went to the Supreme Court with Mary Alito's, who were paroled and the parole was good indefinitely.

[00:11:37] Speaker 01:
Oh, yes.

[00:11:37] Speaker 01:
But this was not.

[00:11:39] Speaker 01:
No.

[00:11:39] Speaker 01:
So the effect of it being temporary should have some effect, shouldn't it?

[00:11:44] Speaker 03:
Yes, but she was paroled.

[00:11:49] Speaker 03:
The notice to appear as charged was incorrect.

[00:11:51] Speaker 03:
It wasn't that she came in without admission or parole.

[00:11:56] Speaker 03:
She legally was paroled.

[00:11:57] Speaker 03:
So the charge is wrong.

[00:11:59] Speaker 03:
And you think this notice... Sorry, go ahead.

[00:12:01] Speaker 01:
I was going to say, we'll ask your colleague, do they agree that she was paroled in the sense of a 60-day parole?

[00:12:11] Speaker 01:
And does that make any difference?

[00:12:13] Speaker 01:
But your answer is yes.

[00:12:17] Speaker 01:
The stamp is good and the fact of parole may help her somewhere down the road in something completely different.

[00:12:26] Speaker 01:
That's correct.

[00:12:29] Speaker 02:
That was my question.

[00:12:30] Speaker 02:
So you want the notice to appear to be amended because what will happen?

[00:12:38] Speaker 02:
You know, it says that she's an alien president of the United States who's not been admitted or paroled.

[00:12:43] Speaker 02:
You think she has been paroled based on this document, and so then what will happen if we change this?

[00:12:47] Speaker 02:
What is she going to get?

[00:12:49] Speaker 03:
Well, if she has any other option, and I haven't had an in-depth discussion with her, but if she had any other option, for instance, if she was married to a United States citizen, that person could petition her, and then she could apply for a green card inside the United States.

[00:13:04] Speaker 03:
And, you know, she may need a waiver if she has a removal order, but that's how it would affect her case.

[00:13:13] Speaker 02:
So is this box otherwise usually checked?

[00:13:15] Speaker 02:
I guess we can ask the government this.

[00:13:17] Speaker 02:
When somebody enters the country unlawfully?

[00:13:21] Speaker 02:
Do you mean the box at the top?

[00:13:22] Speaker 02:
No, the second box.

[00:13:23] Speaker 02:
It says, you're an alien present in the United States who has not been admitted or paroled.

[00:13:27] Speaker 03:
Yes.

[00:13:27] Speaker 03:
So the box that should have been checked was the top box.

[00:13:30] Speaker 03:
She's an arriving alien.

[00:13:31] Speaker 03:
She's an applicant for admission.

[00:13:33] Speaker 02:
OK.

[00:13:34] Speaker 02:
We'll put some time on the clock.

[00:13:35] Speaker 02:
We'll put two minutes on the clock for rebuttal.

[00:13:37] Speaker 02:
OK, great.

[00:13:38] Speaker 02:
And let's hear from the government.

[00:13:54] Speaker 05:
May it please the court.

[00:13:55] Speaker 05:
My name is Andrew Oliveira on behalf of the respondent, the attorney general.

[00:14:00] Speaker 05:
First, to address the question of asylum and withholding of removal, the evidence in the record does not compel reversal of the immigration judge's determination as upheld by the board that the government of El Salvador was unable or unwilling to control the private actors.

[00:14:20] Speaker 05:
The immigration judge considered the entire record

[00:14:23] Speaker 05:
and ultimately concluded that petitioners did not meet their burden of proof.

[00:14:30] Speaker 05:
On appeal, the board reviewed that evidence and reached the same conclusion.

[00:14:37] Speaker 05:
While the immigration judge specifically cited to certain aspects, there's nothing to indicate that the immigration judge ignored the rest of the evidence in the record.

[00:14:55] Speaker 05:
With respect to the remand question, since that had the majority of the questions, the boards, as they addressed it, there is no evidence that was presented to the board that this was petitioners I-94.

[00:15:15] Speaker 05:
That was very explicitly what the board held.

[00:15:20] Speaker 05:
And as we point out in the brief, we compare and contrast what

[00:15:26] Speaker 05:
was petitioner's brother's I-94 and what she submitted for herself.

[00:15:31] Speaker 04:
Counsel, you didn't make that incompleteness argument to the board, did you?

[00:15:38] Speaker 04:
I'm sorry?

[00:15:40] Speaker 04:
You didn't make that incompleteness argument to the board.

[00:15:43] Speaker 04:
I mean, the board said nothing about the stamp being there.

[00:15:48] Speaker 04:
It said that it didn't have the I-94 form, but it didn't say anything about the

[00:15:52] Speaker 04:
the stamp that actually has an indication that it's the I-94 form.

[00:15:57] Speaker 04:
And that was never addressed by number one, never addressed by either the BIA or frankly, the government never made that argument.

[00:16:08] Speaker 05:
Well, the board specifically said they didn't have her I-94.

[00:16:14] Speaker 05:
And then they also addressed the motion for administrative closure

[00:16:21] Speaker 05:
which is the motion that had the stamp.

[00:16:26] Speaker 05:
So I wouldn't say that it's not fair to say that the board ignored it.

[00:16:31] Speaker 05:
It's simply that the board concluded that what was submitted didn't establish that she was paroled in.

[00:16:41] Speaker 02:
Go ahead.

[00:16:42] Speaker 02:
Well, I guess a couple of questions.

[00:16:45] Speaker 02:
I mean, first of all, is it your contention that this form of document

[00:16:51] Speaker 02:
Is just not itself a I-94 or parole document?

[00:16:58] Speaker 02:
Setting aside for a second whose document this is.

[00:17:01] Speaker 02:
Is that what you're saying?

[00:17:04] Speaker 05:
No, Your Honor.

[00:17:06] Speaker 05:
We recognize that the form has a stamp.

[00:17:09] Speaker 05:
It has I-94 on it.

[00:17:13] Speaker 05:
There's nothing to indicate that it is petitioners I-94.

[00:17:18] Speaker 01:
That is, what would a, quote, real I-94 have some kinds of forms and boxes that said, you know, this is your name, this is your birth date, this is your country of origin?

[00:17:31] Speaker 01:
I mean, I tried to go on the web and find I-94s, and everything on the web seemed to have that, but I don't know what this form was supposed to look like.

[00:17:42] Speaker 01:
I mean, it looks like the back of something that there's a front for, but I don't know.

[00:17:47] Speaker 01:
You're the expert.

[00:17:49] Speaker 05:
Correct, Your Honor.

[00:17:51] Speaker 05:
And I would also point out that in other cases where they prove identity by submitting their passport, you'll notice that every page of this passport is copied and the original is presented to the immigration judge so the immigration judge can confirm that the copy.

[00:18:11] Speaker 05:
So page one might have their name and identifying information and page three might have their entry stamp

[00:18:19] Speaker 05:
Uh, for here, we just have the stamp and the board, uh, correctly concluded that that evidence wasn't sufficient to, um, alter her previous admission that she entered without inspection.

[00:18:36] Speaker 04:
Well, the board didn't, the board didn't say that, right?

[00:18:39] Speaker 04:
The board didn't say that the board said that there's no, I mean, I read the language, you have the language of the board.

[00:18:45] Speaker 04:
It says that there's no I 94, uh,

[00:18:49] Speaker 04:
document there, but it didn't address the fact that there is a stamped document that's presented that has I-94 on it.

[00:18:59] Speaker 04:
It didn't address that argument, did it?

[00:19:06] Speaker 05:
It did not specifically use the word stamp, but it did address the fact that there's not her I-94 in the record.

[00:19:17] Speaker 02:
Yes, well finish finish.

[00:19:19] Speaker 05:
I didn't mean to interrupt you finish what you were going to say and then I have a question Well, as we've said it While the board didn't expressly say the word spam and Analyze that they did explicitly say that her I-94 is not in the record Okay, so The IJ seemed to have a different

[00:19:47] Speaker 02:
take on this, the IJ wasn't necessarily saying, I don't know what this document, whose document this is or what, the IJ seemed to be saying, this is just not the type of parole that would qualify you to get the notice to appear changed.

[00:20:02] Speaker 02:
Do you agree with that?

[00:20:06] Speaker 05:
The issue with that is the immigration judge was shown something that was not entered into the record.

[00:20:15] Speaker 05:
We are assuming that it's the same stamp that was submitted with the motion for administrative closure.

[00:20:23] Speaker 02:
Let's assume that.

[00:20:29] Speaker 02:
I'm not aware of what other document the IJ would be looking at, but let's just assume that.

[00:20:35] Speaker 02:
Is it correct then to say this type of parole is not the kind of parole we're talking about when we're looking at the notice to appear, or was the IJ mistaken there?

[00:20:45] Speaker 05:
That's why it's key to to recognize that the decision that we're reviewing here is the board's decision.

[00:20:53] Speaker 05:
And the board did not rely on the IJs.

[00:20:56] Speaker 05:
No, no.

[00:20:56] Speaker 02:
I appreciate that.

[00:20:57] Speaker 02:
I'm just trying to understand.

[00:20:58] Speaker 02:
We have different pieces of the administrative process saying different things, right?

[00:21:03] Speaker 02:
I read the IJ to be saying, this is just not the kind of parole that we mean by parole.

[00:21:09] Speaker 02:
And I read the board is saying, we don't have the right documents in front of us.

[00:21:12] Speaker 02:
And I hear you on the second piece.

[00:21:15] Speaker 02:
I'm trying to figure out, was the IJ on the first piece correct?

[00:21:21] Speaker 05:
Based on his citation, it does not appear that the IJ was entirely correct about the conditional versus the 212 parole.

[00:21:33] Speaker 05:
But again, it's hard to say given that he was shown something and nothing was admitted into the record.

[00:21:44] Speaker 05:
Which is why the board focused on the lack of evidence in the record

[00:21:50] Speaker 05:
and to determine what happened.

[00:21:56] Speaker 05:
And it would also be pointed out that the Department of Homeland Security would have the evidence of her parole and would charge her as not entering without admission or parole.

[00:22:14] Speaker 01:
And... Well, because the notice to appear wasn't

[00:22:20] Speaker 01:
I'm filed until like six weeks after the entry something like that correct your honor so you're saying that if the bureaucrats did what they should and if this was a legitimate stamp that was hers then they would have known to put parole because they did file before the parole expired

[00:22:50] Speaker 05:
Correct.

[00:22:51] Speaker 05:
My understanding is that the parole then would have terminated with the filing of a notice to appear.

[00:23:02] Speaker 01:
So... I'm sorry, that it would have terminated with the filing of the notice to appear because the... I mean, the statement is that it would last for 60 days and the notice to appear was filed before that time was up.

[00:23:18] Speaker 01:
I'm not saying which way it ought to mean, but as a factual matter, I have the timeline.

[00:23:24] Speaker 01:
Wasn't the notice to appear filed before the expiration of this particular piece of paper?

[00:23:32] Speaker 05:
Yes.

[00:23:32] Speaker 05:
And the decision that was the immigration judge cited actually explains the process of the humanitarian parole.

[00:23:39] Speaker 05:
And one of the points the board makes is that the parole can be terminated early

[00:23:46] Speaker 05:
including by the filing of a notice to appear.

[00:23:49] Speaker 01:
Oh, so there's a case that says that it terminates automatically with the filing of the notice to appear or simply that it can be?

[00:23:58] Speaker 05:
I believe it is automatically, Your Honor, but I'm not entirely sure.

[00:24:07] Speaker 01:
I would have to go to look to the case that the judge cites.

[00:24:12] Speaker 05:
Yes, it would be

[00:24:15] Speaker 01:
Okay.

[00:24:15] Speaker 05:
On page 109.

[00:24:18] Speaker 01:
Okay, I can do that.

[00:24:20] Speaker 02:
What would be the import of that in this case?

[00:24:26] Speaker 05:
The determination of parole?

[00:24:28] Speaker 02:
Yeah.

[00:24:31] Speaker 05:
With respect to the asylum and withholding aspect, none whatsoever.

[00:24:36] Speaker 05:
As petitioners council has pointed out, this debate over the parole is

[00:24:43] Speaker 05:
a potential issue down the line.

[00:24:49] Speaker 02:
If she gets... I fully understand the IJ's statement that this does not alter her removability.

[00:24:56] Speaker 02:
If she's not entitled to asylum or withholding of removal, she is removable based on this record.

[00:25:04] Speaker 02:
And the only issue we're debating here is should the notice to appear have said something different to give her some possible

[00:25:11] Speaker 02:
you know, rights later, should her circumstances change and should she not, should she remain in this country?

[00:25:21] Speaker 05:
That would be, that would be the correct summation of it, that this is about potential future hypotheticals.

[00:25:30] Speaker 05:
And there's nothing in the record to suggest that this is in any way, shape or form imminent.

[00:25:39] Speaker 05:
So,

[00:25:41] Speaker 05:
In that regard, remand ultimately would be futile because there's nothing that would be able to be done.

[00:25:53] Speaker 01:
Although, if that's true, what's the harm?

[00:25:57] Speaker 01:
What's the harm to the government in at least

[00:26:01] Speaker 01:
I mean, does it delay the government in any way?

[00:26:05] Speaker 01:
If strictly on the remand we said, we can't figure this out, we'll remand to let the agency decide whether to amend the NTA.

[00:26:16] Speaker 01:
Does that hurt the government in any way?

[00:26:19] Speaker 05:
It does, Your Honor, because it simply delays the enforcement of the removal order.

[00:26:27] Speaker 02:
Why though?

[00:26:28] Speaker 02:
Why?

[00:26:29] Speaker 02:
I mean, this is just a document issue, but if there's no dispute, she's removable.

[00:26:38] Speaker 05:
Correct, but it's the government's position that, one, there's no need to remand, and two, remand would be futile, even for such a ministerial action.

[00:26:54] Speaker 02:
Yeah, that last part I'm not following.

[00:27:00] Speaker 05:
Well, it's the government's position, just simply that any delay is benefiting her even if it doesn't ultimately alter her removal.

[00:27:09] Speaker 01:
But kind of where's the delay?

[00:27:10] Speaker 01:
The government seems to be pretty active in removing removable people these days.

[00:27:17] Speaker 01:
And conversely, if there's something that delayed her removal on other grounds,

[00:27:23] Speaker 01:
cert petitions, I don't know, but I thought people were removable even if cert petitions were going on.

[00:27:31] Speaker 01:
I'm just trying to figure out, is there any delay unless the government chooses to make it a delay?

[00:27:36] Speaker 01:
If we were to say, hypothetically,

[00:27:39] Speaker 01:
that you lose, that you win on the removability issue.

[00:27:44] Speaker 01:
But we're going to remand for the sole purpose of the agency deciding whether to alter the NTA.

[00:27:52] Speaker 01:
And this does not affect removability in any way.

[00:27:55] Speaker 01:
If we wrote that, where's the harm to the government?

[00:27:59] Speaker 05:
Well, Your Honor, it would have to go back and there'd have to be an entirely new removal order.

[00:28:04] Speaker 05:
Because what they're asking is that the NTA be rewritten

[00:28:08] Speaker 05:
with a new charge, which then has to be adjudicated.

[00:28:12] Speaker 01:
So changing the word not admitted to paroled would require that any amendment to an NTA requires a new hearing?

[00:28:28] Speaker 01:
Is that the position?

[00:28:30] Speaker 05:
Um, if in this situation, yes, because the, you're asking for the amendment to be, is the amendment is being done after the immigration proceedings have been completed.

[00:28:41] Speaker 02:
I mean, what if we direct otherwise?

[00:28:43] Speaker 02:
I don't see why just checking a different box.

[00:28:47] Speaker 02:
I mean, I understand her interests in just.

[00:28:49] Speaker 02:
you know, some long-term interest, some hypothetical interest, but nonetheless, it's a document that says something that's inaccurate that could prejudice her.

[00:28:56] Speaker 02:
I don't see why we'd have to redo all of this if that box was simply checked in a different way.

[00:29:04] Speaker 02:
I'm not aware of any case law that would suggest that.

[00:29:08] Speaker 05:
I'm not aware of any case law, but I would note that the immigration judge decision, the board decision, is predicated on her being removable under 212A6, which is

[00:29:19] Speaker 05:
entrance without admission or parole.

[00:29:23] Speaker 05:
And if you remanded it back on the basis that you believe she's paroled, then that would have to be a new charge.

[00:29:30] Speaker 05:
And it's not simply just a matter of checking a box.

[00:29:40] Speaker 02:
Okay, I think we understand your position.

[00:29:42] Speaker 02:
Let's hear from Mr. Siegel in rebuttal.

[00:29:49] Speaker 02:
Why don't you pick up, sir, where we're just leaving off, which is, what is the import in the administrative process if this box is checked in a different way?

[00:29:58] Speaker 02:
Does it all need to be redone somehow?

[00:30:02] Speaker 03:
Well, I would agree with that.

[00:30:06] Speaker 03:
I would argue yes, because it's a new charge.

[00:30:10] Speaker 03:
They would be charged as an arriving alien.

[00:30:13] Speaker 03:
It's possible that this court could craft a

[00:30:19] Speaker 03:
a memorandum that could avoid that.

[00:30:22] Speaker 03:
But the bottom line is, if this is all true, the agency made an error.

[00:30:29] Speaker 03:
And they should have provided the immigration court with the proper documentation to support the charge.

[00:30:36] Speaker 03:
They never did any of that.

[00:30:38] Speaker 03:
I understand the court's concern about it because, yeah, we want to get it right.

[00:30:43] Speaker 03:
We want to have the documents right.

[00:30:45] Speaker 03:
And they're just not in this case.

[00:30:46] Speaker 03:
And that's fine.

[00:30:48] Speaker 03:
I still, I don't want to switch gears too much, but I just wanted to talk a little bit about the evidence that the court never considered.

[00:30:57] Speaker 03:
And I understand the judge issued a catch-all phrase saying, I've reviewed all the evidence.

[00:31:03] Speaker 03:
Catch-all phrases can be sufficient, but they're not always sufficient, particularly when there's highly probative evidence that hasn't been looked at.

[00:31:12] Speaker 03:
Now, in this case, this court has said it's not, when somebody

[00:31:18] Speaker 03:
doesn't report something to the police.

[00:31:20] Speaker 03:
That's not necessarily dispositive of whether the government is unwilling or able to control.

[00:31:25] Speaker 03:
You can fill that gap with background documentation.

[00:31:28] Speaker 03:
There's hundreds of pages of background documentation here.

[00:31:30] Speaker 03:
The judge or the board did not look at all of that.

[00:31:33] Speaker 03:
They didn't look at the fact that in 2019, El Salvador had the highest femicide rate other than Honduras in Latin America.

[00:31:40] Speaker 03:
They didn't look at the petitioner's own circumstance that she was a victim of statutory

[00:31:46] Speaker 03:
And she never, no one was ever prosecuted.

[00:31:48] Speaker 03:
Where were the school officials, where were the medical providers who were watching her during her pregnancy?

[00:31:55] Speaker 03:
None of that was looked at.

[00:31:57] Speaker 03:
No one was ever prosecuted.

[00:31:58] Speaker 01:
Our own Department of State has said... Well, when you say no one was prosecuted, it was never raised as to who there was to prosecute.

[00:32:05] Speaker 03:
It was never raised at all by anyone.

[00:32:07] Speaker 03:
No one ever inquired... Well, including her.

[00:32:10] Speaker 03:
Well, she was pregnant, she was underage, she was a teenage girl in a hospital.

[00:32:15] Speaker 03:
At least, I would hope that, at least here in the States, somebody would have questioned it and said, hey, this seems like a crime was committed.

[00:32:23] Speaker 03:
Who's the father?

[00:32:24] Speaker 03:
Yeah.

[00:32:24] Speaker 03:
I mean, if she was definitely under 18, what she was.

[00:32:28] Speaker 01:
Does El Salvador have a Romeo and Juliet law?

[00:32:31] Speaker 01:
In an American hospital, a lot of times there'd be no crime.

[00:32:35] Speaker 03:
They don't have that.

[00:32:37] Speaker 03:
At least in the record now, they don't have it.

[00:32:39] Speaker 03:
The only thing in the record is the statutory age of consent, which is 18.

[00:32:45] Speaker 03:
In addition to a bunch of other information that essentially establishes that the government might be willing to control persecutors of domestic violence, but they aren't able to.

[00:32:58] Speaker 03:
They don't have the resources.

[00:33:00] Speaker 03:
They're understaffed.

[00:33:02] Speaker 03:
There's corruption, and all of that is in the documentary record, in the background evidence that this court says is a way to fill that gap when somebody does not report to the police.

[00:33:13] Speaker 03:
I just wanted to get that out there for you guys to consider.

[00:33:17] Speaker 02:
Okay, we let you go over your time.

[00:33:21] Speaker 02:
I'm going to see if my colleagues have further questions for you.

[00:33:25] Speaker 02:
Okay, Mr. Siegel, thank you very much.

[00:33:27] Speaker 02:
Thank you, Your Honor.

[00:33:29] Speaker 02:
Ms.

[00:33:29] Speaker 02:
Alvera, thank you very much.

[00:33:30] Speaker 02:
This case is submitted.

[00:33:32] Speaker 02:
And that concludes our calendar for this morning.

[00:33:34] Speaker 02:
We'll stand in recess until tomorrow at 9 AM.

[00:33:38] Speaker 00:
All rise.

[00:33:48] Speaker 01:
It's good to have a little computer.

[00:34:03] Speaker 00:
This court for this session now stands adjourned.