[00:00:00] Speaker 04:
Go ahead, please.

[00:00:01] Speaker 04:
Good morning, your honors, and may it please the court.

[00:00:03] Speaker 04:
My name is Aiza Bajwa, and I'm a law student representing petitioners, Marbelin, Melendez, Landa Verde, and her family.

[00:00:10] Speaker 04:
I'd like to note that petitioners are here today in the audience.

[00:00:14] Speaker 04:
This record is clear.

[00:00:16] Speaker 04:
The Salvadoran authorities could not or would not protect Marbelin and her family.

[00:00:22] Speaker 04:
She sought protection from three police departments, two

[00:00:26] Speaker 04:
did not take a report and did not protect her, and the third wrote a deficient report and also did not act to protect her.

[00:00:35] Speaker 04:
She previously sought protection from a justice of the peace who entirely ignored her allegations of sexual and physical abuse and failed entirely to refer her abuser, Ricardo, to the police.

[00:00:49] Speaker 04:
Instead, the Justice of the Peace issued a mere 90-day restraining order that left Ricardo understanding he would not go punished.

[00:00:58] Speaker 03:
On this record... But you agree that Ricardo never had any direct contact with Ms.

[00:01:03] Speaker 03:
Melendez-Glendaverde after that restraining order until she went to his church while he was presiding over mass, correct?

[00:01:10] Speaker 04:
She did not have direct contact, that is correct, Your Honor.

[00:01:13] Speaker 04:
However, after she, Marblen, and her family saw Ricardo at this mass,

[00:01:18] Speaker 04:
Ricardo escalated his persecution of Marblen and her family by recruiting a notorious transnational gang, MS-13.

[00:01:26] Speaker 03:
Well, when they first came to her, they didn't know who she was, right?

[00:01:29] Speaker 03:
They had to ask her, who are you?

[00:01:30] Speaker 03:
How long have you been here?

[00:01:32] Speaker 04:
Your Honor, the questioning that the gang presented on its first encounter with Marvlyn demonstrates that they were merely confirming her identity rather than trying to figure out who she was.

[00:01:42] Speaker 04:
The questioning was that, who did she have problems with?

[00:01:46] Speaker 04:
Who was, did she have problems with her uncle?

[00:01:49] Speaker 04:
And did she have a restraining order against anyone?

[00:01:52] Speaker 04:
So that indicates that the MS-13 was actually trying to confirm that she was the niece of Ricardo, the person against whom she had a restraining order, rather than, you know, a random individual who they were planning to extort.

[00:02:05] Speaker 02:
Ms.

[00:02:05] Speaker 02:
Barra, what would, what's in the record that would compel us to that finding?

[00:02:10] Speaker 02:
We're on substantial evidence review here of the agency.

[00:02:13] Speaker 04:
Yes, Your Honor, you are on substantial evidence review.

[00:02:16] Speaker 02:
Here, with the police report in particular, there are several facts that compel- Well, I guess the, let me, I'm sorry, let me be more specific, compel a finding that Ricardo recruited the gangs to persecute Ms.

[00:02:34] Speaker 02:
Melendez-Lendeverde.

[00:02:35] Speaker 04:
Your honor, there's only evidence in the record that Ricardo sent MS-13.

[00:02:40] Speaker 04:
The IJ actually misstated the record here in saying it was unclear on this fact.

[00:02:45] Speaker 04:
Edwin testified in his declaration at CAR 667 that on two separate occasions,

[00:02:51] Speaker 04:
The gang mentioned that Ricardo had sent them.

[00:02:54] Speaker 04:
They said that directly to him.

[00:02:56] Speaker 04:
Marblen, in her oral and written testimony, also corroborated this fact.

[00:03:00] Speaker 04:
She said that the gang told her that her uncle sent them, her uncle with whom she had problems and against whom she had a restraint.

[00:03:07] Speaker 03:
Where is that in her transcript?

[00:03:09] Speaker 03:
I don't see her making that explicit statement.

[00:03:13] Speaker 04:
Your Honor, it's in both her declaration and in her... Well, point me to her.

[00:03:18] Speaker 03:
I have her transcript.

[00:03:19] Speaker 03:
Point me to her transcript.

[00:03:21] Speaker 04:
Your Honor, in the transcript at Car 211, she says that she was sure it was Ricardo, and that's her credible testimony.

[00:03:30] Speaker 03:
Right, but let's go back to Judge Johnstone's question.

[00:03:32] Speaker 03:
What compels that conclusion?

[00:03:35] Speaker 04:
Your Honor, the IJ found Marvlyn's testimony credible.

[00:03:39] Speaker 04:
And the only evidence in the record demonstrates that MS-13 was sent by Ricardo.

[00:03:45] Speaker 04:
There is no evidence to the contrary.

[00:03:47] Speaker 04:
So she also testified in her declaration to the fact that she had problems with her uncle and that she had this restraining order.

[00:03:54] Speaker 04:
And that's at CAR 676.

[00:03:55] Speaker 04:
She also testified that that was the only uncle with whom she had problems.

[00:04:00] Speaker 03:
Well, in her testimony, she also says that there was never a police report written.

[00:04:04] Speaker 03:
And that contradicts the record, right?

[00:04:06] Speaker 04:
Your Honor, that might refer to the two other police reports that she tried to file prior to filing a police report with the National Civil Police.

[00:04:16] Speaker 03:
No, it's very clear from the context of the testimony exactly which time she's referring to.

[00:04:22] Speaker 03:
I'm looking at ER 213.

[00:04:24] Speaker 04:
Your Honor, she also did try to file those two other police reports that were not filed.

[00:04:28] Speaker 04:
It's possible that this was a misstatement, but here she did file a police report with the National Civil Police, which you can find at CAR 655.

[00:04:37] Speaker 04:
Turning to the police response more broadly, here the police response was deficient.

[00:04:43] Speaker 04:
The National Police finally did take a report.

[00:04:46] Speaker 04:
However, it demonstrated that the authorities were not even willing to document Marvlyn's complaint.

[00:04:52] Speaker 04:
Here, the police report did not comment on Ricardo's last name.

[00:04:58] Speaker 04:
It also entirely failed to mention that MS-13 was the group persecuting Marvlin.

[00:05:03] Speaker 04:
Instead, it said, people of bad reputation, which is a gross understatement of a notorious transnational gang.

[00:05:11] Speaker 04:
It also did not mention that the death threats came from the gang.

[00:05:16] Speaker 04:
In addition here, the police promised to patrol and investigate.

[00:05:19] Speaker 04:
However, there is no record evidence that they took any action on Marvlyn's complaints.

[00:05:24] Speaker 04:
Marvlyn testified that she did not see the police in the entire month after she made the report.

[00:05:30] Speaker 03:
But she also never followed up, right?

[00:05:32] Speaker 03:
That is correct.

[00:05:33] Speaker 03:
The record doesn't indicate that there was any inquiry that she made or her partner made or anyone made about what the police was doing, right?

[00:05:41] Speaker 03:
So it's only speculation.

[00:05:43] Speaker 03:
about whether the police actually took any action, whether they investigated or not correct.

[00:05:48] Speaker 04:
Your honor, we're bound by the record here, and in the record we have her testimony that she did not see the police for the entire month.

[00:05:54] Speaker 03:
Right, but she also never inquired, right, about the status of any investigation or whether there was any update.

[00:06:01] Speaker 03:
That is true, your honor.

[00:06:02] Speaker 04:
However, per this court's precedent, a petitioner is not required to continue reporting to the police if such reports would be futile.

[00:06:09] Speaker 04:
As they were here, Marblen had a... What's the evidence that compels that any report would be futile?

[00:06:15] Speaker 04:
Here, Your Honor, there is no evidence that the police took any action on Marbellin's complaint.

[00:06:20] Speaker 04:
And so she had no reason to believe that they would take any action going forward on her complaints.

[00:06:26] Speaker 04:
And so per this court's precedent in Bringus Rodriguez, for example, that is sufficient.

[00:06:30] Speaker 04:
Her own subjective view that this would not provide any more fruit is sufficient to demonstrate.

[00:06:36] Speaker 02:
We have kind of an extended record of maybe they didn't respond in the way that petitioner

[00:06:45] Speaker 02:
had hoped at certain times, but there's a record here of several responses by the police.

[00:06:53] Speaker 02:
It may give rise to an inference either way that they were willing and able or unwilling and able to protect the petitioner, but that's not our job to decide between those inferences where there's substantial evidence.

[00:07:07] Speaker 04:
Respectfully, Your Honor, I would disagree that there are two possible inferences here.

[00:07:11] Speaker 04:
Per this court's precedent in JR v. Barr,

[00:07:14] Speaker 04:
some official responsiveness is not enough to demonstrate unwillingness, or rather, willingness and ability.

[00:07:20] Speaker 03:
But that's when the government promised action but taken none.

[00:07:24] Speaker 03:
But here you had a JOP hearing, you had a restraining order, you had a police report.

[00:07:30] Speaker 03:
That's when zero action was taken, correct?

[00:07:33] Speaker 04:
Your honor, I'd point again to JR, where there actually was far more action taken by the Salvadoran government to protect the petitioner.

[00:07:40] Speaker 04:
There, the police investigated.

[00:07:42] Speaker 03:
No, I'm just going to quote it when the government has promised further action, but taken none.

[00:07:46] Speaker 03:
I don't think here you can say there was no action taken by the government.

[00:07:51] Speaker 04:
With respect to the police- Or is that your assertion?

[00:07:53] Speaker 04:
Your assertion is they didn't take any action?

[00:07:55] Speaker 04:
With respect to the police report, Your Honor, that is our assertion, that they took no further action aside from their promise.

[00:08:00] Speaker 03:
But you think the taking of a police report, the creation of a police report, constitutes no action.

[00:08:06] Speaker 03:
That's your position?

[00:08:07] Speaker 04:
Yes, Your Honor.

[00:08:08] Speaker 04:
It does not constitute meaningful action here, because as this court held in Antonio versus Garland, this promise of future action with none taken does demonstrate unwillingness or inability.

[00:08:19] Speaker 02:
Well, I guess it's not quite the way that our cases seem to frame it, right?

[00:08:25] Speaker 02:
We're asking whether they're unwilling or unable or could or would provide protection.

[00:08:29] Speaker 02:
That is, it need not be a certainty.

[00:08:34] Speaker 02:
They do not have to have,

[00:08:37] Speaker 02:
established a record of past showing of protection, but just that they are willing and able to do that.

[00:08:47] Speaker 02:
In terms of trying to understand the level of generality here, we have various actors, Justice of the Peace, we've got the police, different agencies with varying levels of responsiveness.

[00:09:01] Speaker 02:
Can you help me with understanding who needs to be shown?

[00:09:06] Speaker 02:
Is it the government generally or, I mean, you're pointing to the police not being responsive, but the justice of the peace, issued a restraining order with respect to it.

[00:09:15] Speaker 02:
What does the law point us towards in terms of who has to be willing and able and how willing and able they need to be to prevent persecution?

[00:09:25] Speaker 04:
Your Honor, here, pictures only need to show that some actors in the government were unwilling or unable.

[00:09:30] Speaker 04:
It does not have to be the entirety of the government that is unwilling or unable.

[00:09:33] Speaker 02:
Really?

[00:09:34] Speaker 02:
Anyone?

[00:09:34] Speaker 02:
So if the Justice of the Peace is willing to issue another protective order, but the police aren't going to commit to, but may not be visibly responsive to some peace, that's enough to show that the government as a whole is not willing or able to protect its people?

[00:09:54] Speaker 04:
Yes, Your Honor, I'd also take issue with your characterization of the justice of the peace proceeding as demonstrating willingness and ability.

[00:10:01] Speaker 04:
As we argue in our briefing, that proceeding was also unfair and biased such that it does not demonstrate a genuine willingness to take Marvellin's complaint.

[00:10:09] Speaker 02:
Was the protective order violated?

[00:10:12] Speaker 04:
Your Honor, it was not violated during the term.

[00:10:14] Speaker 04:
However, Ricardo did escalate his persecution.

[00:10:17] Speaker 04:
He enlisted the notorious transnational gang, MS-13, to persecute Marblen and her family, terrorizing them with death on three separate occasions after the restraining order.

[00:10:30] Speaker 04:
And so here we have a link between the justice of the peace proceedings and the continuous persecution of Marblen and her family.

[00:10:38] Speaker 03:
You cited Antonio versus Garland, but isn't that distinguishable there because the immigration judge ignored the testimony of the mayor of the petitioner's village of that town that said they would have supported the persecution.

[00:10:49] Speaker 03:
We don't have anything like that here.

[00:10:51] Speaker 03:
That's correct, Your Honor, but we don't have anyone in the government on record here saying, well, I would support the persecution of these petitioners, right?

[00:10:58] Speaker 04:
That is true, however, the standard is unwillingness or inability.

[00:11:01] Speaker 04:
We do not need affirmative statements here that anyone in the government would.

[00:11:06] Speaker 03:
But you would agree that case is distinguishable that you just cited earlier?

[00:11:09] Speaker 04:
Your Honor, in some aspects, but in the key aspect of no future action taken but a promise to, that is very similar here, where in that case, the justice of the peace had promised to refer the action for a criminal proceeding.

[00:11:23] Speaker 04:
However, there was no record evidence that that actually occurred.

[00:11:27] Speaker 04:
And that's where this court found that a promise of future action with none taken demonstrates.

[00:11:33] Speaker 03:
Can we talk about the legal standard?

[00:11:34] Speaker 03:
You argue that the immigration judge got the legal standard wrong.

[00:11:38] Speaker 03:
But when I look at the petitioner's brief to the BIA, it just makes a factual challenge to the actual decision.

[00:11:47] Speaker 03:
And it doesn't challenge the standard at all.

[00:11:50] Speaker 04:
Your Honor, petitioners challenge the standard by citing the correct standard from JR versus Barr.

[00:11:56] Speaker 04:
in their brief to the Board of Immigration Appeals and further the- When is citing the correct standard a challenge to the standard?

[00:12:07] Speaker 04:
Your Honor, here, because the immigration judge had cited the wrong standard, they corrected that in their own briefing.

[00:12:13] Speaker 03:
No, actually, if I look at your brief, ER 46, in this case, the IJ found that there, the government, that's typo, is not unwilling and unable to control Ms.

[00:12:24] Speaker 03:
Melendez's persecutors.

[00:12:26] Speaker 03:
I don't see that.

[00:12:27] Speaker 03:
You're actually making an affirmative statement that the IJ used the right standard, and that's the topic, first sentence of this section.

[00:12:36] Speaker 04:
Your Honor, I'd also just point that the Board of Immigration Appeals adopted and affirmed the IJ's decision with respect to unwilling... And they used the correct standard, correct?

[00:12:45] Speaker 04:
The Board of Immigration Appeals or the immigration judge?

[00:12:47] Speaker 04:
The BIA.

[00:12:48] Speaker 04:
The BIA adopted and affirmed the decision and therefore the same error was made by the Board of Immigration Appeals.

[00:12:56] Speaker 02:
If that's the standard for preserving a challenge to the standard review applied below, every brief filed to us would have to be taken to raise an issue with the district court's application of the standard review, right?

[00:13:11] Speaker 04:
Your Honor, here we're challenging the IJ's application of the standard.

[00:13:15] Speaker 02:
Right, but as between the BIA and the IJ.

[00:13:19] Speaker 02:
All that we have is a recitation of the standard of review, which is what we get in every single one of our briefs.

[00:13:25] Speaker 02:
So why should that be enough to preserve it?

[00:13:27] Speaker 04:
That is correct, Your Honor.

[00:13:28] Speaker 04:
However, because the key issue here is that the Board of Immigration Appeals adopted and affirmed the decision.

[00:13:34] Speaker 04:
So the IJ's decision is what this court is reviewing, especially with respect to unwilling or unable.

[00:13:40] Speaker 04:
And there, they did cite the incorrect legal standard.

[00:13:43] Speaker 04:
And we also have plenty of other legal errors that I'm happy to discuss.

[00:13:46] Speaker 03:
OK.

[00:13:46] Speaker 03:
So throughout this BIA decision, they say the government is unable or unwilling to control the private actors who the respondents claim to fear.

[00:13:54] Speaker 03:
And you're saying we should ignore all of that where they cite the correct standard, the BIA, in its own decision, and only look at the citation to Matt or Bourbono to say, oh, no, they got the standard wrong.

[00:14:07] Speaker 03:
Is that your argument?

[00:14:08] Speaker 03:
That is correct, Your Honor.

[00:14:11] Speaker 02:
How can we take judicial notice of matters that weren't before the agency?

[00:14:17] Speaker 04:
Your Honor, Per Schenn versus Garland, this court can take judicial notice of foreign laws when it is looking at the de jure content of those laws rather than the de facto application of those laws.

[00:14:28] Speaker 04:
And that is exactly what petitioners are asking for here.

[00:14:30] Speaker 02:
Well, but that's that lead.

[00:14:34] Speaker 02:
But if the agency hasn't had a chance even to pass on that question, this is a theory that wasn't

[00:14:40] Speaker 02:
an argument at least that wasn't even, that wasn't passed on by the agency.

[00:14:43] Speaker 02:
So essentially it's introducing, inviting us to rule on a basis that the agency didn't have an opportunity to rule on.

[00:14:52] Speaker 04:
Your Honor, here the petitioners did actually raise the issues that the, excuse me, the request for judicial notice, notices several foreign laws that go towards the arguments of PSG nexus and internal relocation.

[00:15:06] Speaker 04:
And the petitioners did brief those issues before.

[00:15:09] Speaker 04:
the BIA and the IJ.

[00:15:11] Speaker 04:
So they are properly before this court.

[00:15:13] Speaker 04:
Those issues were still argued at each stage in the process, and therefore this court can rule on them, Pershing versus Garland again.

[00:15:20] Speaker 03:
Can I ask you, in my eyes you lose credibility when you say there are at least three or four times where the BIA cites the correct legal standard in its own decision.

[00:15:33] Speaker 03:
But because they cite matter of Burbano, you ignore

[00:15:37] Speaker 03:
three or four correct recitations of the legal standard, and you just assume the wrong standard was adopted, which I actually don't agree that the IJ, they may have phrased it differently, but I think the standard was correct there, or even if, let's assume it was error, to say ignore three or four correct recitations of the standard and just look at where, this is what, and actually let me go back to your matter of Bourbono argument.

[00:16:07] Speaker 03:
You're saying because they cite to matter robano, they've adopted the entire immigration judge's decision, and yet in the BIA decision, it says because government acquiescence is dispositive, I'll just read it.

[00:16:25] Speaker 03:
The above analysis is dispositive of the respondent's asylum and withholding of removal claims, thus it is not necessary to address the remaining appellate arguments.

[00:16:34] Speaker 03:
And so I guess I'm

[00:16:37] Speaker 03:
Still struggling with your position that if you have multiple contrary statements to the BIA, you ignore all of that and just rely on Burbano to assume that you adopt wholesale the IJ's decision.

[00:16:54] Speaker 04:
Your honor, per this court's precedent in Pursmova and Abebe, the BIA is required to explicitly limit its affirmance when it cites to matter of Bourbonneau.

[00:17:05] Speaker 03:
And so here we have... Where is it is not necessary to address the remaining appellate arguments?

[00:17:13] Speaker 03:
Where is that not an explicit enough disavowal of adopting the entire opinion?

[00:17:20] Speaker 03:
What more would they need to say?

[00:17:21] Speaker 03:
How explicit would they need to be?

[00:17:23] Speaker 03:
What language would satisfy your test?

[00:17:26] Speaker 04:
I'm not entirely sure what language here, Your Honor.

[00:17:28] Speaker 04:
However, the key- I'm looking at ER5.

[00:17:30] Speaker 03:
Yes.

[00:17:31] Speaker 03:
It's the fourth paragraph.

[00:17:32] Speaker 03:
I'm just reading the first sentence.

[00:17:34] Speaker 03:
So you're saying that is not an explicit enough.

[00:17:38] Speaker 03:
It's not?

[00:17:38] Speaker 03:
Thus, it is not necessary to address the remaining appellate arguments?

[00:17:43] Speaker 04:
Yes, Your Honor, we do believe that that is not enough, because at CAR 4, where the immigration, rather the Board of Immigration Appeals cites to matter of Bourbonneau, they do not explicitly limit their affirmance there.

[00:17:54] Speaker 04:
They adopt and affirm the decision in its entirety, and then later do have this line.

[00:18:00] Speaker 04:
However, it's unclear that that is a limiting of the Bourbonneau affirmance here.

[00:18:05] Speaker 03:
I think you're almost three minutes over your time.

[00:18:07] Speaker 03:
Apologies, Your Honor.

[00:18:08] Speaker 03:
I'd like to conclude now, unless my colleague has any more questions.

[00:18:13] Speaker 03:
All right, thank you.

[00:18:13] Speaker 03:
Thank you so much for your time.

[00:18:27] Speaker 03:
They're saving for rebuttal, so I think you're next.

[00:18:31] Speaker 03:
No, I think it's a rebuttal, correct?

[00:18:33] Speaker 03:
Yes, it's a rebuttal.

[00:18:46] Speaker 01:
May it please the Court.

[00:18:47] Speaker 01:
My name is Jonathan Robbins.

[00:18:48] Speaker 01:
I'm here on behalf of the United States Attorney General.

[00:18:51] Speaker 01:
Good morning to everyone.

[00:18:53] Speaker 01:
The Court asked the parties to address the two issues in this case that are properly before the Court, whether the Salvadoran authorities would be willing and able to protect the petitioners,

[00:19:03] Speaker 01:
and whether or not the Salvadoran authorities would consent or acquiesce to any potential torture of petitioners under the convention against torture claim.

[00:19:11] Speaker 01:
Now, as the court has already alluded to, the standard by which this court assesses these questions is under the substantial evidence standard of review.

[00:19:19] Speaker 01:
That means the record has to be so compelling, so overwhelming that no reasonable fact finder could have found as the agency did in this case.

[00:19:27] Speaker 03:
Well, after the petitioners filed their police report, the MS-13 gang came again

[00:19:33] Speaker 03:
and threatened their lives.

[00:19:35] Speaker 03:
I don't see how is that a willingness and ability to protect them.

[00:19:39] Speaker 01:
Well, so I think it's important to look at what the petitioners provided to police and then look at the police response.

[00:19:45] Speaker 01:
If you take a look at page 655 in the record, the police report that they filed with the National Civil Police, it didn't really say that much about gang members.

[00:19:54] Speaker 01:
The only reference to gang members in that report that they provided to police

[00:19:58] Speaker 01:
was that the complainant, quote, the complainant also manifested that such man accompanies himself by people of bad reputation, so they fear that something serious might happen to them.

[00:20:07] Speaker 01:
Therefore, she chose to be present in this police unit to file the respective complaint for the corresponding legal proceedings.

[00:20:13] Speaker 03:
So... But they're alleging that the police are protecting MS-13.

[00:20:18] Speaker 03:
Well, there's no... And that's why they didn't identify them as MS-13 and just said people of bad reputation.

[00:20:25] Speaker 01:
What went at the time they filed this report the police given the scan nature of they haven't provided any names any details about these individuals at least according to this report the police said

[00:20:35] Speaker 01:
They took this report.

[00:20:36] Speaker 01:
They said they would investigate.

[00:20:38] Speaker 01:
And they said that they would patrol the area.

[00:20:40] Speaker 01:
Now, Petitioner's argument is entirely based on gaps in the record.

[00:20:44] Speaker 01:
It's based entirely on speculation.

[00:20:46] Speaker 01:
They're speculating that the police are working with the gangs.

[00:20:49] Speaker 01:
But there really isn't any evidence of that.

[00:20:51] Speaker 01:
So at best, you could say that there's a gap in the record.

[00:20:53] Speaker 03:
And when there's a gap in the record... But the Petitioner's husband has seen MS-13 gangs and knows that they are at least working with the uncle.

[00:21:01] Speaker 03:
That's evidence in the record.

[00:21:03] Speaker 01:
That is speculation.

[00:21:07] Speaker 01:
The petitioner's husband speculated that he was working with the gangs.

[00:21:11] Speaker 01:
But even if you credit that notion that the uncle has worked with the gangs, that's not the question.

[00:21:18] Speaker 01:
The question is whether the Salvadoran officials would be willing and able to protect them from those gangs.

[00:21:23] Speaker 01:
And the police were given... But then I go back to the same thing.

[00:21:26] Speaker 03:
They made this police report and the gang showed up again.

[00:21:30] Speaker 01:
Well, look, the police can't provide 24-7 secret service protection in El Salvador, but the question is whether the police response was appropriate to what was being claimed.

[00:21:41] Speaker 01:
The petitioners did not give them any names of any gang members.

[00:21:44] Speaker 03:
Well, they said that they gave the last name of the uncle, but the police chose not to put his last name in and just identify him as Ricardo Ildefonso.

[00:21:52] Speaker 01:
Well, look, I don't know why the last name isn't there, but they did identify him by name, Ricardo El Alfonso.

[00:21:58] Speaker 01:
There's no reasonable argument that that's referring to somebody else.

[00:22:02] Speaker 01:
And again, this is based on speculation, right?

[00:22:06] Speaker 01:
They're speculating that the governmental authorities are working with MS-13, but there isn't really evidence of that.

[00:22:12] Speaker 01:
And in order for the record to compel a contrary conclusion,

[00:22:15] Speaker 01:
You would have to find some piece of evidence that definitively shows that that's the case.

[00:22:20] Speaker 01:
Speculation is not sufficient to meet that burden of proof.

[00:22:23] Speaker 01:
And again, this is not the only response the petitioners received from the Salvadoran authorities, as Your Honors have already discussed.

[00:22:30] Speaker 01:
When they went to authorities regarding the initial problems with the uncle, they received swift and effective response from the authorities.

[00:22:35] Speaker 02:
Mr. Robinson, you have a 12-year pattern of alleged persecution, not from some diffuse set of sources, but from one actor in a way that, as the record suggests, escalates over time.

[00:22:57] Speaker 02:
How can we just take bit by bit in trying to understand whether they're willing or able to protect?

[00:23:02] Speaker 02:
The problem isn't addressed.

[00:23:04] Speaker 02:
Again and again and again, Ricardo is engaging in these acts of persecution.

[00:23:11] Speaker 01:
Well, respectfully, Your Honor, I would push back on the notion that this was a constant escalation.

[00:23:16] Speaker 01:
When the authorities initially filed the restraining order, the petitioner admitted she never had any direct contact with the uncle again.

[00:23:23] Speaker 01:
So the notion that it was escalated with the uncle, I would respectfully push back on that point, that the record shows the exact opposite, in fact.

[00:23:31] Speaker 02:
Well, in which time period is this?

[00:23:32] Speaker 02:
This is just towards the end.

[00:23:34] Speaker 01:
This is after she received the justice of the peace restraining order.

[00:23:39] Speaker 01:
She claims, according to her testimony, she never had direct contact with her uncle again.

[00:23:44] Speaker 02:
She didn't need to if, according to the theory of persecution here, the uncle was able to recruit the gangs to do the work.

[00:23:52] Speaker 01:
Okay, but it's important to understand.

[00:23:55] Speaker 01:
As each situation happens, she goes to the police and gets a particular response.

[00:23:59] Speaker 01:
So when the uncle was the only one that was causing the problem, she went to the authorities, she got a restraining order, never had contact with him again.

[00:24:06] Speaker 01:
Then when it was the gangs, she filed a police report, but the information she gave was much less fulsome than it was when she was before the justice of the peace and the uncle was there.

[00:24:15] Speaker 01:
She didn't provide any names or any details.

[00:24:17] Speaker 03:
The only thing they knew was that this uncle associated- But what in the record, what protection did she get from the police after she filed the police report?

[00:24:25] Speaker 03:
Unless you're arguing that just the taking or creation of a police report, that that's sufficient to satisfy the government willingness and ability to protect.

[00:24:36] Speaker 01:
Well, the police didn't only file a report.

[00:24:38] Speaker 01:
The petitioner testified that the police told her that they were going to investigate and that they were going to patrol the area.

[00:24:43] Speaker 01:
Now, she says because she never saw them, she assumes that this was never done.

[00:24:46] Speaker 01:
But that's only an assumption.

[00:24:48] Speaker 01:
She doesn't actually know that.

[00:24:49] Speaker 03:
But aren't you also speculating the reverse,

[00:24:53] Speaker 01:
Fair enough.

[00:24:54] Speaker 03:
They said they were going to investigate and patrol and they did.

[00:24:56] Speaker 03:
Let's assume it.

[00:24:57] Speaker 03:
That's speculation too.

[00:24:59] Speaker 01:
Fair enough.

[00:24:59] Speaker 01:
But the burden of proof of demonstrating this is on the petitioner.

[00:25:03] Speaker 01:
So when there's speculation either way, it's the person with the burden of proof that the claim fails if there's a gap in proof.

[00:25:10] Speaker 01:
And that's the problem here.

[00:25:11] Speaker 01:
The petitioners are speculating.

[00:25:13] Speaker 01:
The government isn't harmed by the speculation because the burden of proof doesn't lie with us.

[00:25:18] Speaker 03:
But let me just ask you, is it the government's position that just the taking of a police report is sufficient evidence of ability and willingness to protect?

[00:25:29] Speaker 01:
It depends on the circumstances of each case, but I would say not if it's only lip service or if the taking of a report is some sort of sham in some way.

[00:25:40] Speaker 03:
And what evidence is there in the record that that's not the case here?

[00:25:43] Speaker 01:
because the police promised that they would do more than the report.

[00:25:45] Speaker 01:
Again, the petitioner didn't provide any specifics about these gang members.

[00:25:49] Speaker 01:
So how are the police supposed to do anything other than investigate and patrol?

[00:25:53] Speaker 01:
It seems to me that their promised response in this situation was appropriate given the information that they received.

[00:25:59] Speaker 01:
Now, if there was something more here, if the petitioners had followed up or instead, they just left a month and a half later.

[00:26:05] Speaker 03:
How long were they supposed to stay to stick around to see if the police were going to do anything?

[00:26:09] Speaker 01:
Well, Your Honor said that they were threatened again after they filed this report.

[00:26:12] Speaker 01:
If they had gone back to the police and said, hey, we were threatened again, what's going on with this investigation?

[00:26:18] Speaker 01:
Or if they had provided more details about who had threatened them, maybe the police would have responded.

[00:26:23] Speaker 01:
We don't know.

[00:26:23] Speaker 01:
We're simply left with gaps in the record.

[00:26:25] Speaker 01:
We just simply don't know.

[00:26:26] Speaker 01:
And claims which are based on speculation.

[00:26:29] Speaker 03:
But you're also arguing that leaving after a month is not enough time.

[00:26:33] Speaker 03:
So my question is, what is the sufficient amount of time?

[00:26:37] Speaker 03:
that you can draw then the opposite conclusion that there isn't an ability or willingness to protect.

[00:26:45] Speaker 03:
Two months, is it six months, one year?

[00:26:48] Speaker 01:
I don't know that there's no specific set amount of time.

[00:26:52] Speaker 03:
But you know one month is not enough.

[00:26:55] Speaker 01:
It's not a question of what maybe one month might be enough in certain circumstances depending on the nature of the harm that the individual is facing What I'm saying in this case it was reasonable for the IJ to conclude that we don't know enough here about What's going other that the police response was appropriate in these circumstances given what happened But what what evidence is there in the record that one month was not enough here in this case?

[00:27:18] Speaker ?:
I

[00:27:19] Speaker 01:
Well, first of all, the petitioners were never physically harmed.

[00:27:21] Speaker 01:
They were only threatened, and they were threatened multiple times.

[00:27:25] Speaker 01:
So normally when we talk about persecution and whether threats are sufficient to rise to the level of persecution, those threats are usually accompanied by something more severe that shows that there is going to be an end.

[00:27:36] Speaker 02:
Well, why shouldn't we attribute the physical violence of the uncle to the gangs, if the theory is that there's nothing, is there anything else in the record that the gangs

[00:27:47] Speaker 02:
were pursuing Ms.

[00:27:51] Speaker 02:
Melinda Verde for any other reason than the involvement of her uncle?

[00:27:57] Speaker 01:
Well, there's mixed evidence in that regard, Your Honor.

[00:27:59] Speaker 01:
As Judge Koh already alluded to, the initial encounter with the gangs sure made it seem like the gangs didn't know who she was.

[00:28:07] Speaker 01:
That cuts against the notion that these individuals were there at the direction of Ricardo.

[00:28:12] Speaker 02:
Well, we see lots of cases where the contact is addressing things like extortion, other sorts of crime.

[00:28:20] Speaker 02:
This is an encounter where why doesn't the record compel, at least as to this step, that the gang contact was for no other reason but at Ricardo's instance.

[00:28:34] Speaker 01:
Well, even if you said the record compelled that, that's not the question before the court.

[00:28:38] Speaker 01:
The question before the court is whether the Salvadorian authorities would do anything about it, whether the international protection has failed here.

[00:28:45] Speaker 01:
That's the question.

[00:28:46] Speaker 02:
Right.

[00:28:46] Speaker 02:
But now this is to circle back.

[00:28:48] Speaker 02:
OK.

[00:28:48] Speaker 02:
So Ricardo has wielded violence against Ms.

[00:28:56] Speaker 02:
Melendez Landaverde.

[00:28:58] Speaker 02:
There is nothing in the record to support any other reason

[00:29:01] Speaker 02:
for the gang's outreach to the petitioner and her family.

[00:29:06] Speaker 02:
And he's already shown that he's willing to use violence.

[00:29:10] Speaker 02:
So why would we need any, this goes back to the point of the threat, why would we need anything more than, and again this is following up on your point, it gets more to the persecution than the willingness and ability.

[00:29:21] Speaker 02:
But why would we need anything more than those threats and a lack of visible police action to reach the opposite finding as to willingness and ability of the government to protect?

[00:29:31] Speaker 01:
Your Honor, I don't see how lack of visible police action is enough to compel a contrary conclusion.

[00:29:38] Speaker 01:
That's just an assumption.

[00:29:40] Speaker 01:
Again, the petitioners never followed up with the police.

[00:29:42] Speaker 01:
They don't know if they followed through with their investigation.

[00:29:45] Speaker 01:
They don't know if they were patrolling the area.

[00:29:47] Speaker 01:
Just because you didn't see the police doesn't mean that they weren't doing a patrol, right?

[00:29:51] Speaker 01:
I mean, so again, what we're talking about, the record has to be so overwhelming that the agency must have concluded to the contrary.

[00:29:58] Speaker 01:
And the evidence is simply too scant to meet that standard in this case.

[00:30:03] Speaker 01:
I see I have a little bit of time left.

[00:30:04] Speaker 01:
I just want to briefly talk about acquiescence.

[00:30:07] Speaker 01:
And I wanted to address Your Honor's question.

[00:30:09] Speaker 01:
You asked about what sort of level is it that needs to be unwilling or unable or what level needs to acquiesce.

[00:30:18] Speaker 01:
Right.

[00:30:18] Speaker 02:
The individual official, the country,

[00:30:20] Speaker 01:
With acquiescence in the cat protection context, the court's case law is clear that it can be a single local official.

[00:30:28] Speaker 01:
But that can be undermined by relocation.

[00:30:34] Speaker 01:
And you'll note that the board and the immigration judge in this case pointed out that

[00:30:37] Speaker 01:
the petitioners didn't have any problems when they didn't show that they wouldn't be able to relocate.

[00:30:43] Speaker 01:
So that undermines the notion that even if they had a problem with a specific local official, which they didn't show that anyway, but that that would be enough to demonstrate acquiescence of the Salvadoran government.

[00:30:54] Speaker 01:
But to answer your honest question, in the CAT context, it can be as much as a single local official.

[00:31:00] Speaker 01:
In the asylum-withholding context, the law is, I think, a little bit more holistic.

[00:31:05] Speaker 01:
It depends on the circumstances of the case, but if the government is...

[00:31:11] Speaker 01:
I mean, the analyses that I've always seen in that regard have always sort of been the government as a whole or the general authorities, and that if there's a rogue official in that context, that that can be overcome by the general government's ability and willingness to do something.

[00:31:25] Speaker 01:
But that's not true in the CAT context, because the CAT context has specific regulation that I think says a public official.

[00:31:31] Speaker 01:
And so that language in the regulation makes it different for CAT purposes.

[00:31:35] Speaker 03:
In this case, because the BIA didn't reach the issue of relocation, it would be inappropriate for us to rely on that as a basis.

[00:31:41] Speaker 01:
I thought the board did reach the issue of relocation.

[00:31:43] Speaker 03:
No, I'm just looking.

[00:31:44] Speaker 01:
Only in the CAT context.

[00:31:46] Speaker 01:
In the CAT context, I'm on AR6.

[00:31:48] Speaker 03:
I guess I'm looking at AR5.

[00:31:51] Speaker 03:
And at least as to asylum and withholding, they're saying because the state action is

[00:31:59] Speaker 03:
The unwillingness and inability is dispositive.

[00:32:02] Speaker 03:
It's not necessary to address the remaining appellate arguments, including those related to the availability of relocation.

[00:32:08] Speaker 01:
I agree with your honor that relocation is not at issue with respect to asylum withholding removal.

[00:32:13] Speaker 01:
But relocation is actually assessed a little bit differently under cap protection.

[00:32:16] Speaker 01:
And that is in the board's decision.

[00:32:18] Speaker 01:
On page six, in the last paragraph of the big paragraph, in the last sentence of the big paragraph,

[00:32:23] Speaker 01:
The record also reflects that the immigration judge properly considered the respondent's ability to avoid future torture by relocating within El Salvador as one of the factors in determining whether the respondents established that it would be more likely than not that they would be tortured.

[00:32:37] Speaker 01:
It's actually a little bit unusual.

[00:32:38] Speaker 01:
In the CAT context, relocation is assessed a little bit differently than in the asylum context.

[00:32:43] Speaker 01:
In the asylum context, the burden of proof of relocation depends on whether an individual has established past persecution.

[00:32:50] Speaker 01:
In the CAT context, this court actually has a bit of a unique law in that it's nobody's burden on relocation.

[00:32:57] Speaker 01:
It's just simply a factor to be considered in terms of the likelihood of harm.

[00:33:00] Speaker 01:
So relocation, because it's assessed differently with respect to asylum and withholding and with CAT, I think it is preserved in the board's decision with respect to CAT because it expressly says it.

[00:33:10] Speaker 03:
Okay, I agree with you on CAT.

[00:33:12] Speaker 03:
On asylum and withholding, I think it would be inappropriate.

[00:33:14] Speaker 01:
Well, the point that I was trying to make with respect to relocation is that I was talking about why the record doesn't compel reversal of the denial of cat protection.

[00:33:25] Speaker 01:
So just sorry if I wasn't clear about that before.

[00:33:29] Speaker 01:
So I see that I'm in the yellow.

[00:33:30] Speaker 01:
So subject to the court's questions, I don't have anything much more to add, unless Your Honors want to talk about the judicial notice issue or anything else.

[00:33:39] Speaker 03:
No, thank you.

[00:33:40] Speaker 01:
Thank you very much for your time, Your Honors.

[00:34:03] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:34:05] Speaker 00:
Lorena Ortega Guerrero for Petitioners.

[00:34:08] Speaker 00:
I'd like to make a few clarifying points.

[00:34:11] Speaker 00:
First, the IJ stated that the police had patrolled the area on page 106.

[00:34:17] Speaker 00:
And the government similarly engages on these impermissible speculation.

[00:34:23] Speaker 00:
However, we are limited to the record before us today.

[00:34:26] Speaker 00:
And the record demonstrates, the evidence in the record demonstrates that there is no evidence to indicate that the police did patrol.

[00:34:37] Speaker 00:
For example, Marbellin and Edwin both testified that they never saw the police patrolling the month after they said that they would, as indicated on page 213.

[00:34:45] Speaker 00:
This is particularly troublesome given that the point of police patrol is to be seen and deter the perpetrators.

[00:34:53] Speaker 00:
Marbellin and Edwin also worked and lived in the same location, so it is unlikely that they would not have seen them if the police did patrol.

[00:35:01] Speaker 00:
Petitioners were also not aware of the police taking further action to question.

[00:35:05] Speaker 03:
I'm sorry, I'm looking at 106.

[00:35:06] Speaker 03:
I don't see that.

[00:35:08] Speaker 03:
Can you help me out?

[00:35:09] Speaker 03:
Which paragraph is that on?

[00:35:10] Speaker 00:
Of course, Your Honor.

[00:35:12] Speaker 00:
It is on the second full paragraph.

[00:35:16] Speaker 00:
It says, here respondents indicate that the gang made threats in April of 2021.

[00:35:20] Speaker 00:
The police sent a patrol to patrol the area.

[00:35:23] Speaker 00:
However, there is nothing in the record to indicate that this is true.

[00:35:27] Speaker 00:
Rather, the evidence in the record indicates that

[00:35:32] Speaker 00:
that Marblen and Edwin did not see the police patrolling.

[00:35:36] Speaker 00:
Similarly, they never followed up with them as Marblen testified on page 677 of the record.

[00:35:41] Speaker 03:
You know, this is the main, I think, issue here.

[00:35:46] Speaker 03:
It seems like you're asking us to draw different inferences from the record evidence than what the agency did.

[00:35:54] Speaker 03:
And I just don't see how that satisfies the highly differential substantial evidence standard.

[00:36:00] Speaker 00:
Your honor, we are not asking for a different inference.

[00:36:04] Speaker 00:
This is the only inference is that they did not see the police.

[00:36:07] Speaker 00:
There is nothing to support that the police actually came.

[00:36:08] Speaker 03:
Right, but saying I didn't see the police doesn't mean that the police did nothing.

[00:36:12] Speaker 03:
Your client never went back after the third threat or never inquired of the police of after you took my police report, do you have any updates?

[00:36:22] Speaker 03:
What are you doing?

[00:36:23] Speaker 03:
There was no inquiry.

[00:36:24] Speaker 03:
So there is a, I would kind of agree with your opposing counsel.

[00:36:28] Speaker 03:
There is a, there are some gaps in this record.

[00:36:31] Speaker 03:
that do require inferences.

[00:36:34] Speaker 00:
Your Honor, under this court's precedent, an individual is not required to return to the police if following up would be futile.

[00:36:42] Speaker 03:
Here, Marbelin had already had... Okay, what's the evidence that it would be futile?

[00:36:46] Speaker 03:
She went to the police twice... She got a restraining order, did not have any contact with her uncle directly after the restraining order until she went to his church where he was performing mass.

[00:37:00] Speaker 00:
Just to clarify, Your Honor, the evidence doesn't say that this was Ricardo's church.

[00:37:05] Speaker 03:
But it says he was performing mass, correct?

[00:37:07] Speaker 00:
Yes.

[00:37:08] Speaker 00:
He travels around giving mass at different locations.

[00:37:12] Speaker 03:
But they understood that he didn't go to the church looking for her.

[00:37:16] Speaker 00:
Nothing in the evidence indicates that.

[00:37:20] Speaker 00:
However, shortly upon seeing Ricardo at church, MS-13 first approached petitioners.

[00:37:28] Speaker 03:
And they said, who are you?

[00:37:29] Speaker 03:
How long have you been living here?

[00:37:30] Speaker 00:
To Marbelin, they were clarifying who she was.

[00:37:34] Speaker 00:
However, in the two interactions that followed, they did explicitly say to Marbelin that they were there because of an uncle with whom she had problems and an uncle against whom she had a restraining order.

[00:37:45] Speaker 00:
I'd also like to note that Edwin's testimony explicitly says that they said Ricardo's name to him, as indicated

[00:37:52] Speaker 00:
on page 667 of the record.

[00:37:55] Speaker 02:
Ms.

[00:37:55] Speaker 02:
Ortega Guerrero, what are we to do with the fact that the petitioners fled within a month or so of this

[00:38:08] Speaker 02:
gang involvement.

[00:38:11] Speaker 02:
To pick up on Judge Coe's line of questions, how is that enough time to establish that the government is unwilling or unable to protect?

[00:38:21] Speaker 02:
We do have some cases, I think, that suggest that that isn't standing alone enough.

[00:38:28] Speaker 00:
Your Honor, first, MS-13 did return after they had reported and the police had promised to act and threatened them with death and forced them into exile.

[00:38:42] Speaker 00:
I'd like to also point this court to these significant country conditions evidence before the record that indicates that in El Salvador, when MS-13 makes threats, they follow up on these threats, including with death

[00:38:57] Speaker 00:
or other forms of torture.

[00:38:59] Speaker 00:
Here petitioners were aware that they had sought protection and they were not aware that anything had been done to protect them.

[00:39:09] Speaker 00:
Quite the opposite, MS-13 had returned to threaten them again.

[00:39:12] Speaker 00:
Therefore, they reasonably did what they needed to do to ensure

[00:39:17] Speaker 00:
the well-being of their family.

[00:39:20] Speaker 00:
I'd also like to quickly note that petitioners are not speculating that the government is unable or unwilling without support from copious country conditions evidence and I specifically point out the expert reports including page 308 that speaks to the fact that violence against women is regularly ignored by the Salvadorian police as well as police regularly turning a blind eye to gang violence on page 315.

[00:39:47] Speaker 00:
I see I'm out of time.

[00:39:49] Speaker 00:
I apologize if this court has no more questions.

[00:39:52] Speaker 03:
No, thank you.

[00:39:53] Speaker 03:
Thank you very much to all council.

[00:39:54] Speaker 03:
This was an extremely helpful argument.

[00:39:56] Speaker 03:
Thank you.