[00:00:04] Speaker 00:
Good morning, Your Honors.

[00:00:05] Speaker 00:
May it please the Court, Angela Tohane representing the Petitioners in this case, and I would like to reserve two minutes of my time for rebuttal.

[00:00:12] Speaker 03:
Okay, please watch the clock.

[00:00:14] Speaker 03:
Thank you.

[00:00:15] Speaker 00:
The issues before this court are whether BIA erred in finding that petitioners were firmly resettled in France, ignoring the overwhelming evidence that France was neither safe nor a permanent haven, and whether IJA or BIA failed to properly assess petitioners' claim for asylum, withholding and removal under correct legal standards.

[00:00:34] Speaker 01:
Counsel, the agency relied on the fact that they had received French citizenship, were fluent in French, and had lived there for many years.

[00:00:46] Speaker 01:
Why isn't that substantial enough evidence to support the agency's legal conclusion of firm resettlement?

[00:00:53] Speaker 00:
That's correct, Your Honor, but that's the only first part of the test, and that's not in dispute that they are French citizens.

[00:00:59] Speaker 00:
However, they qualify for restricted residence exception.

[00:01:04] Speaker 01:
So the only persecution that they reported occurred in Strausburg, and the agency found that they could resettle in a different part of France.

[00:01:15] Speaker 01:
If that was an issue, what's your response to that?

[00:01:18] Speaker 00:
Yes, they are saying relocation could be a possibility.

[00:01:21] Speaker 00:
However, simple logic dictates that if these people, these assailants, were able to track the petitioners down all the way from Armenia to France and

[00:01:34] Speaker 00:
that would be way easier for them to track them within.

[00:01:38] Speaker 01:
But if there's no evidence of any persecution other than in Strausburg where they were living, what supports that inference?

[00:01:47] Speaker 00:
Well, petitioners reported their harm four times, and in fact one time she reported to the parliament member.

[00:01:56] Speaker 00:
And instead of getting protection, she faces retaliation.

[00:02:00] Speaker 00:
She gets fired.

[00:02:01] Speaker 00:
So it's such a big, I mean, we're talking about Parliament.

[00:02:05] Speaker 01:
If the Parliament was... So are you accusing the European Parliament of being complicit with the persecutors?

[00:02:13] Speaker 00:
Well, I'm not accusing, but that's what the record says, and we should give appropriate weight to the credible testimony.

[00:02:19] Speaker 01:
The record also showed that they were not forthcoming with the French police as to all of the details regarding why the persecutors might be persecuting them.

[00:02:32] Speaker 01:
What do we do with that finding?

[00:02:33] Speaker 00:
That's correct.

[00:02:34] Speaker 00:
They might have concealed some of the information, but the question is whether they provided sufficient information for the police to start investigation.

[00:02:43] Speaker 01:
And how do we know?

[00:02:43] Speaker 01:
I mean, we know that they admitted that they were not totally forthcoming.

[00:02:47] Speaker 01:
I did not see French police reports in the record, which I wouldn't expect.

[00:02:52] Speaker 01:
So how do I evaluate that in terms of whether there's substantial evidence to support the agency's conclusion that they didn't fully cooperate?

[00:03:02] Speaker 00:
Your Honor, we have two police reports on the record, which details what information they provided to the police.

[00:03:09] Speaker 00:
And they provided more than enough information, which is date.

[00:03:12] Speaker 01:
I thought one of the incidents, the lead petitioner basically told the police that the men had been demanding large sums of money from her, but that was not true.

[00:03:27] Speaker 01:
Is that right?

[00:03:29] Speaker 00:
Well, yes, in a sense that was not true, but does it matter here if they are telling the police that these people have been following them for months?

[00:03:38] Speaker 01:
Well, it does matter, counsel, if they're not being forthcoming with the local authorities, it's going to inhibit the ability of the police to effectively investigate their case.

[00:03:49] Speaker 01:
So you're asking us essentially to overturn the agency's

[00:03:53] Speaker 01:
determination that there was acquiescence on the part of the French government when the record shows that they were not totally forthcoming with the French police as to the motivation of the persecutors.

[00:04:05] Speaker 01:
How does substantial evidence compel the opposite conclusion?

[00:04:10] Speaker 00:
I think they are sufficiently forthcoming, and they are indicating to the police that if we tell all the details, our life will be in danger.

[00:04:18] Speaker 00:
But what it matters, they provided the date, time, location, and the motives of the perpetrators.

[00:04:24] Speaker 00:
That would be more than enough for the police to start investigation.

[00:04:28] Speaker 01:
But one of the motives was false.

[00:04:30] Speaker 01:
That's the problem I'm having with this case.

[00:04:33] Speaker 01:
It's from your standpoint, it's not a clean record.

[00:04:36] Speaker 01:
I mean, I guess they never are.

[00:04:39] Speaker 01:
But you've got some significant factual hurdles to overcome that point in the direction of substantial evidence supports the agency's determination.

[00:04:50] Speaker 00:
Your Honor, even if she's not disclosing all the details, does it really matter in a sense that even if these are regular holy guns, isn't the police supposed to at least take minimum investigatory steps?

[00:05:03] Speaker 01:
It depends on how much legitimate or truthful information they provided the police.

[00:05:08] Speaker 01:
And I'm struggling with trying to determine why the police investigation was not hampered by the fact that your clients were not totally forthcoming when they did report.

[00:05:18] Speaker 00:
Well, Your Honor, my son's report indicates that these people have been following his father and these people are connected to the Armenian government.

[00:05:28] Speaker 00:
So that gives a little bit of motive.

[00:05:31] Speaker 01:
And how did the son know that?

[00:05:33] Speaker 00:
because these perpetrators told us that we are from the Armenian government and in fact the IJA relied on the credible testimony and found that these operatives were Armenian government agents.

[00:05:46] Speaker 00:
That's how she granted the withholding of removal.

[00:05:49] Speaker 00:
It is unclear why the judge did not give the same appropriate weight to the credible testimony when these people expressly admit being in collusion with the police.

[00:06:00] Speaker 04:
Doesn't your case rise and fall though on whether the French government acquiesced?

[00:06:08] Speaker 04:
in the harm that your clients experienced?

[00:06:13] Speaker 00:
That was for cat purposes, Your Honor.

[00:06:16] Speaker 00:
However, we're talking here about firm resettlement.

[00:06:21] Speaker 00:
First of all, this government's role was discussed only within the framework of withholding of removal, which is legally incorrect, because firm resettlement requires a different standard.

[00:06:32] Speaker 00:
Asylum requires a different standard.

[00:06:33] Speaker 00:
And withholding requires only this 50% more likely than not standard.

[00:06:40] Speaker 00:
And the IJA and BIA incorrectly applied that higher standard to firm resettlement and asylum.

[00:06:46] Speaker 00:
The way I read it, firm resettlement requires safety and security in a third country.

[00:06:52] Speaker 00:
However, no reasonable person could conclude that someone is safe in a country where she gets raped twice and the second rape is in front of her children.

[00:07:02] Speaker 00:
after she seeks protection from the government four times.

[00:07:06] Speaker 03:
I'm not sure.

[00:07:06] Speaker 03:
I understand that the police did respond to their inquiry and took down notes.

[00:07:12] Speaker 03:
They were just unable to actually protect them, but we do have cases saying that the government's inability to deal with perpetrators does not show that the government was unable or unwilling to protect them.

[00:07:30] Speaker 00:
That's correct, Your Honor.

[00:07:31] Speaker 00:
And also, there is another case, Lord Jr.

[00:07:33] Speaker 00:
versus Barr.

[00:07:34] Speaker 00:
It holds that some official responsiveness to complaints, although relevant, does not automatically equate to government's ability and willingness.

[00:07:43] Speaker 00:
In this case, first time she reports, the police calls her, follows up to say, we're closing the case.

[00:07:49] Speaker 00:
Following up to close the case is not considered a multiple effort or investigation.

[00:07:54] Speaker 00:
Second time, the Sun report.

[00:07:55] Speaker 01:
What do we do with the situation?

[00:07:57] Speaker 01:
I'm still hung up on how much information she supplied to the police.

[00:08:02] Speaker 01:
If the police got back to her and basically said, based on what you told us, we can't proceed any further because we have no more leads, that doesn't lead to the conclusion that they have acquiesced or have basically blown her off.

[00:08:17] Speaker 01:
It's just a reflection of the fact that we don't have enough to go any further on.

[00:08:21] Speaker 00:
Well, Your Honor, in real life criminal investigations, it is very rarely that the police has all the information up front, right?

[00:08:28] Speaker 00:
But they still take the minimum measures.

[00:08:30] Speaker 01:
But it's also not unusual for police to close out a case because they've exhausted what available leads were given to them and there's nothing else to investigate.

[00:08:40] Speaker 00:
That's for the first time.

[00:08:41] Speaker 00:
How about the third time when they report it, the police tells them, we're sick and tired of you.

[00:08:46] Speaker 00:
If you don't like it in here, go back to your Armenia.

[00:08:49] Speaker 03:
So that was one statement by one police officer, which is probably your best fact.

[00:08:55] Speaker 03:
But the other police took notes, followed up, and were unable to trace the person down.

[00:09:03] Speaker 03:
And the IJ found that the French government didn't cause the harm, was not unable or unwilling to control the assailants, wasn't able to follow up in this particular case.

[00:09:16] Speaker 03:
Why isn't that substantial evidence supporting the IJ's conclusion?

[00:09:21] Speaker 00:
Your Honor, I.J.

[00:09:22] Speaker 00:
concludes that police made multiple efforts and investigated.

[00:09:28] Speaker 00:
Only calling to say that we are closing the case is not considered a multiple effort.

[00:09:32] Speaker 03:
Well, we took notes and investigated.

[00:09:34] Speaker 03:
It wasn't like we were unresponsive.

[00:09:37] Speaker 03:
Right.

[00:09:38] Speaker 03:
I mean, a lot of times the police can't, as we've said in our cases, the police can't solve the crime, as Judge Tallman points out.

[00:09:46] Speaker 03:
It's hard to solve the crime when the victims are giving you false information.

[00:09:51] Speaker 03:
But that was the IJ's finding, and certainly supported by evidence in the record.

[00:09:56] Speaker 00:
What I think, the IG mostly relied on the fact that we're talking about France, which is a more or less safe country.

[00:10:04] Speaker 00:
That could be true for 99% of population, but there remains this 1% like the petitioners that falls into cracks and she didn't report.

[00:10:12] Speaker 00:
The fact is that she reports to the government four times, yet she gets raped after reporting the fourth time.

[00:10:22] Speaker 03:
The IJ also found that did not find that the Armenian government cooperated with the French government.

[00:10:31] Speaker 03:
What was the best evidence that they were cooperating?

[00:10:35] Speaker 03:
Is it the declaration of your clients or is there anything else in the record?

[00:10:38] Speaker 00:
Besides the credible testimony, also the fact that she gets harmed and keeps getting attacked

[00:10:46] Speaker 00:
attacked after she seeks and pleads for help from the government.

[00:10:50] Speaker 04:
Why does that suggest that the two governments are working together?

[00:10:53] Speaker 04:
I mean, look, the facts for your clients are tragic.

[00:10:57] Speaker 04:
I mean, no one's going to dispute that it's not good to have repeated attacks, and maybe they are politically motivated.

[00:11:04] Speaker 04:
But it seems like our question turns on whether the French government acquiesced or whether the French government was unwilling or unable

[00:11:14] Speaker 04:
And when you're dealing with substantial evidence, we don't get to reweigh the evidence and say, oh, we wish that the French government would have done it better.

[00:11:21] Speaker 00:
Your Honor, first of all, the key question here is that this person is not a regular asylum applicant.

[00:11:28] Speaker 00:
This is a high profile political target.

[00:11:31] Speaker 00:
For whom?

[00:11:32] Speaker 04:
Let's assume all that's true.

[00:11:33] Speaker 04:
You still have to comply with the law on this, though.

[00:11:37] Speaker 00:
Yes, and my understanding is this is not only substantial evidence, this is also legal error here by applying the, yes, the IJ concluded a legal error when they incorrectly, although BI agreed with us, the IJ should have analyzed the asylum claim, but they incorrectly found that remand is unnecessary because the government would be able and willing to protect.

[00:11:59] Speaker 00:
But this finding was made only within the framework of withholding of removal relief, which requires 50% of chance.

[00:12:07] Speaker 00:
whereas asylum requires one in 10 chance that a person will be persecuted.

[00:12:11] Speaker 00:
Now, this was a legal error by the BIA to apply the higher standard of withholding to the finding of asylum.

[00:12:25] Speaker 00:
In this case, remand is at least appropriate so that they can analyze asylum.

[00:12:29] Speaker 03:
And so what language in the BIA's opinion are you relying on for that statement?

[00:12:36] Speaker 03:
that they impose the wrong standard.

[00:12:39] Speaker 03:
Can you point me to the language in the BIA decision?

[00:12:58] Speaker 00:
It should be page six of administrator record.

[00:13:08] Speaker 00:
It says, we agree with respondent that there is nothing in the record indicating that firmly settlement bar applies to preclude their applications for asylum from France.

[00:13:18] Speaker 00:
However, remand is unnecessary because we affirm the immigration judge's determination.

[00:13:22] Speaker 00:
The responses did not demonstrate that French government was or would be unable or unwilling to protect them.

[00:13:30] Speaker 00:
But that finding of unwillingness and unableness.

[00:13:33] Speaker 03:
There is that on the page.

[00:13:34] Speaker 03:
I just want to mark it.

[00:13:37] Speaker 00:
Page six.

[00:13:37] Speaker 00:
Page six on each paragraph.

[00:13:40] Speaker 00:
The very first paragraph and then the second one.

[00:13:49] Speaker 03:
And you're saying that's the withholding standard?

[00:13:53] Speaker 03:
Because that's the asylum standard as well.

[00:13:56] Speaker 03:
So for withholding, the only difference between the withholding and the asylum is a reason versus a central reason.

[00:14:09] Speaker 00:
No, also the standards.

[00:14:10] Speaker 00:
The percent.

[00:14:11] Speaker 00:
Where does it say the percent?

[00:14:13] Speaker 00:
No, so BIA here is mostly adopting the IJ's findings and IJ analyzed the government's role within withholding framework, within withholding.

[00:14:26] Speaker 03:
You're almost out of time but we'll give you a minute for rebuttal.

[00:14:35] Speaker 03:
We'll hear from the government.

[00:14:51] Speaker 02:
Good morning, and may it please the court, Jennifer Williams for the Attorney General.

[00:14:57] Speaker 02:
The pivotal question in this case is whether the evidence compels the conclusion that the French government is unable or unwilling to control the unknown assailants who attacked and threatened the petitioners while they were living in France.

[00:15:11] Speaker 02:
Under the facts of this case and the law, the answer is no, the evidence does not compel that conclusion.

[00:15:18] Speaker 02:
As such, petitioners are ineligible for asylum from Armenia as they firmly resettled in France, and they are also ineligible for asylum and withholding of removal as to France.

[00:15:30] Speaker 04:
Can you address the argument we just heard?

[00:15:33] Speaker 04:
Because that was a little bit of a gloss that I hadn't picked up in the briefs and that there was actually legal error.

[00:15:40] Speaker 04:
I'd understood the case like you just presented it, that this is a substantial evidence question.

[00:15:45] Speaker 04:
But she's now arguing that there was legal error at page six of the administrative record.

[00:15:56] Speaker 03:
They applied a more likely than not rather than a 10% chance.

[00:16:04] Speaker 02:
This is the first time I've heard that argument as well.

[00:16:08] Speaker 02:
And I don't think it was presented in her opening brief.

[00:16:11] Speaker 02:
But whether it's the 10% chance versus the 50% goes to the likelihood of the harm happening.

[00:16:21] Speaker 02:
And that's not an issue in this case.

[00:16:23] Speaker 04:
This is only a question of.

[00:16:24] Speaker 04:
So I guess that's, is that the question, because acquiescence

[00:16:31] Speaker 04:
is the CAT standard, acquiescence by the government, unable or unwilling is the asylum standard.

[00:16:38] Speaker 02:
And withholding, yes.

[00:16:38] Speaker 04:
And withholding.

[00:16:40] Speaker 04:
Is there a difference between those two?

[00:16:42] Speaker 02:
No, there's not.

[00:16:43] Speaker 04:
OK.

[00:16:43] Speaker 02:
There's not.

[00:16:44] Speaker 02:
It's the same.

[00:16:45] Speaker 02:
The unable or unwilling standard is the same for asylum and withholding.

[00:16:50] Speaker 02:
And really, it's the same for CAT as well.

[00:16:52] Speaker 02:
But that has nothing to do with the likelihood of harm.

[00:16:55] Speaker 02:
And that's where the difference between the 10%

[00:16:58] Speaker 02:
and the 50% comes in, but that's not an issue in this case.

[00:17:03] Speaker 02:
So as to that claim of legal.

[00:17:07] Speaker 04:
So basically, your position is the BIA never actually got into whether the harm would reoccur.

[00:17:14] Speaker 04:
They just got into whether the French government was unable or unwilling.

[00:17:19] Speaker 02:
That's right.

[00:17:20] Speaker 04:
Yeah.

[00:17:20] Speaker 02:
Yes.

[00:17:21] Speaker 04:
OK.

[00:17:23] Speaker 02:
which is dispositive of both the firm resettlement question as to Armenia, as to the asylum claim from Armenia, and asylum and withholding, NCAT, as to France.

[00:17:40] Speaker 04:
There are some troubling aspects to this case.

[00:17:43] Speaker 04:
I mean, this does sort of fit within a box that you would say

[00:17:47] Speaker 04:
Asylum might actually be warranted here Because I mean if you believe but there was no adverse credibility finding for her, right?

[00:17:55] Speaker 04:
No, there wasn't and and I'm oh, no, sir Well, I was just gonna say she does sort of report this and then gets fired and she's being threatened I guess the government's position is yeah all that's That that that's evidence where you know, we're sympathetic to it, but you still have to show that the French government Was unable or unwilling?

[00:18:16] Speaker 02:
Yes, that is our position.

[00:18:18] Speaker 02:
And in fact, both the IJ and the board recognized the severity of the harm to which all the petitioners were subject and made a finding that the harm was to the level of past persecution and assumed at least that there was a clear probability of future persecution.

[00:18:38] Speaker 02:
But it's still a requirement for both asylum and withholding and CAT that

[00:18:44] Speaker 02:
the petitioners and they bear the burden to show that the government, in this case the French government, is unable or unwilling to control the private actors.

[00:18:54] Speaker 03:
So they have the quote from the police officers saying that they were tired of the army who lost her mind because of her husband and then why didn't she get out of the country?

[00:19:05] Speaker 03:
What do we do with that?

[00:19:08] Speaker 02:
That was, as we recognize in our brief, that was an unfortunate statement.

[00:19:12] Speaker 02:
But it was made by one police officer.

[00:19:14] Speaker 02:
And balanced against that are the actions that are present in the rest of the record, where every time she reported, or her son reported in one instance, an instance of harm, the police made a record.

[00:19:28] Speaker 02:
In some cases, we have evidence that they did investigate, although they weren't able to find the perpetrators.

[00:19:34] Speaker 02:
As to the second two.

[00:19:36] Speaker 02:
incidents which occurred I believe in July of 2021.

[00:19:40] Speaker 02:
The petitioners left France a month later so there is no evidence in the and I don't believe they followed up or at least there's no evidence that they followed up with the police.

[00:19:50] Speaker 02:
So there's just simply a lack of evidence as to what happened after those two reports but what is in the record is that the French police every time made a record there are two police reports in the administrative record and

[00:20:05] Speaker 02:
What's also clear from the administrative record is that every time they reported, they admitted that they did not tell the police what they believed the true motives for the attacks were.

[00:20:20] Speaker 02:
And so during the instance when that one officer made that unfortunate comment, apparently the lead petitioner told him that these assailants were after them because they owed money.

[00:20:32] Speaker 02:
And so it's still an unfortunate comment,

[00:20:35] Speaker 02:
Apparently, they did not tell the police the real reason for the attacks, as they understood them.

[00:20:42] Speaker 04:
Does that matter?

[00:20:44] Speaker 02:
Well, the question is whether the evidence in the record compels the conclusion that the police were unwilling or unable

[00:20:55] Speaker 02:
to control the perpetrators.

[00:20:57] Speaker 04:
What is evidence of unwilling or unable?

[00:21:00] Speaker 04:
I mean, I guess if crime, I mean, because France, we don't deal with a lot of these cases coming out of France, but I assume, I mean, traditionally this comes up in a country where the government is so tied to a gang or just can't control a gang or something like that.

[00:21:17] Speaker 04:
Are there other examples where you could show, could you show that the French government is unable or unable?

[00:21:23] Speaker 02:
Well, I think, and I don't have examples from France in particular, but there are a couple of cases from this court that involved, one was Italy, one was Germany.

[00:21:40] Speaker 04:
And we did find that they were unable or unwilling.

[00:21:42] Speaker 02:
So in one, in the Doe case, the court found that they were unwilling or unable.

[00:21:47] Speaker 02:
But it was because, and I believe Doe was Germany too, although I'm not certain.

[00:21:53] Speaker 02:
In that case, the petitioner was able to identify his attackers to the police, and the police still did nothing.

[00:22:02] Speaker 02:
And apparently, there was also substantial evidence in the record that the assaults were motivated by anti-homosexual bias.

[00:22:10] Speaker 02:
In this case, unlike in the Doe case, they

[00:22:14] Speaker 02:
They both did not know the identity of their assailants and certainly weren't able to convey the information that they didn't know to the police.

[00:22:22] Speaker 02:
And they also, unlike Ndo, where I guess there was evidence of anti-homosexual bias in this case, they didn't tell the police the real reasons for the attacks.

[00:22:31] Speaker 02:
They told them.

[00:22:32] Speaker 04:
It was because they owed money.

[00:22:35] Speaker 02:
Right.

[00:22:36] Speaker 02:
And then there are two other cases.

[00:22:38] Speaker 01:
So that would suggest that the motive was extortion as opposed to political retribution.

[00:22:46] Speaker 02:
That is one possible inference, yes.

[00:22:50] Speaker 02:
What is not in the record is any indication that they ever told the police

[00:22:55] Speaker 02:
what they believe the real reason for the attack.

[00:22:57] Speaker 04:
I guess that's why I'm trying.

[00:22:59] Speaker 04:
I don't know that it matters.

[00:23:00] Speaker 04:
I mean, the asylum claim isn't based on the police officer's understanding of the motive, it seems.

[00:23:08] Speaker 04:
The unabler unwilling is based on

[00:23:12] Speaker 04:
whether the police officers can protect against the harm.

[00:23:16] Speaker 04:
I mean, I don't know.

[00:23:17] Speaker 04:
I guess I've never thought about that.

[00:23:18] Speaker 04:
But it doesn't strike me that just because whether you said I was being extorted or whether you said I'm being politically attacked, that might go to the legal analysis when you come to the BIA or the IJ.

[00:23:33] Speaker 04:
But I don't know why that matters about the police.

[00:23:35] Speaker 04:
The police are either going to go after this or they're not going to go after it.

[00:23:40] Speaker 02:
Well, the claim is that the police were unable to catch the perpetrators.

[00:23:48] Speaker 02:
And presumably... Regardless of the purpose of the perpetration.

[00:23:52] Speaker 02:
Well, but it is reasonable to infer that if they had told the police that these were politically motivated and these were actually agents of the Armenian government attacking them because

[00:24:05] Speaker 02:
because of their ties to Ruben.

[00:24:08] Speaker 02:
No, that they would have had more information with which to potentially find the perpetrators.

[00:24:17] Speaker 03:
So they would know to look for Armenian agents rather than just criminals.

[00:24:24] Speaker 03:
Is that right?

[00:24:24] Speaker 02:
Yes.

[00:24:24] Speaker 02:
I mean, I believe they did say maybe that they thought the assailants were Armenian, but they certainly didn't say that they were

[00:24:35] Speaker 02:
they believed they were agents of the Armenian government, that at least a reasonable inference, and again, the standard is here, the evidence has to compel the conclusion.

[00:24:46] Speaker 02:
So a reasonable inference is that if they had given the police more information about who they believe their attackers were, the police would have had that information and would have been better able to conduct an investigation and find the perpetrators.

[00:25:01] Speaker 02:
And at a minimum,

[00:25:02] Speaker 02:
The fact that they didn't means that the evidence doesn't compel the conclusion that they wanted to.

[00:25:07] Speaker 01:
I mean, it seems to me that it would make a difference if the police knew that there were, for want of a better term, national security implications behind the attack as opposed to simple criminal extortion attempts.

[00:25:23] Speaker 01:
That that would be relevant for the police to know how to investigate the crime.

[00:25:28] Speaker 01:
And in the United States, it would probably trigger a referral to the FBI as opposed to simply handling it as a local extortion case.

[00:25:39] Speaker 02:
I mean, I think that's a reasonable inference.

[00:25:42] Speaker 02:
Again, the record doesn't.

[00:25:43] Speaker 01:
So I'm not sure in response to the question that my brother proposed to you.

[00:25:48] Speaker 01:
I think it might make a difference to the police if they had me known the truth in terms of how they responded to the investigation.

[00:25:58] Speaker 02:
I agree.

[00:25:59] Speaker 02:
And I think, again, given the standard, the standard here, given that they didn't report this information, the fact that the police were not able to catch the perpetrators doesn't compel the conclusion that they were legally unable or unwilling.

[00:26:14] Speaker 04:
Well, we can get caught up in the result, but the result doesn't matter.

[00:26:17] Speaker 04:
That's not the test.

[00:26:18] Speaker 04:
The test isn't you've protected me.

[00:26:20] Speaker 04:
The test is you're unable or unwilling.

[00:26:23] Speaker 04:
And there's a whole series of cases

[00:26:25] Speaker 04:
where you're willing, well, I don't know, maybe Unable gets you there.

[00:26:32] Speaker 04:
Does Unable, does that mean that we do start looking at the results?

[00:26:36] Speaker 04:
I mean, if this had happened 10 times, would we have to say, well, they're Unable?

[00:26:42] Speaker 02:
I mean, the reason that I focus on the results is that that is a big part of the petitioner's argument for Unable or Unbilling, that they weren't able to catch.

[00:26:48] Speaker 04:
Well, I know, and I'm trying to figure out where that fits into our case law.

[00:26:52] Speaker 02:
So I think the court looks at the result

[00:26:55] Speaker 02:
But it looks at it in the context of the other evidence in the record.

[00:26:58] Speaker 02:
So again, in Doe, where they weren't able to catch the perpetrators.

[00:27:03] Speaker 04:
But I can't be just positive.

[00:27:04] Speaker 04:
There has to be something else.

[00:27:06] Speaker 02:
Exactly.

[00:27:06] Speaker 04:
Because if you're out there working 10 hours a day for three straight weeks on this, and you're just like, well, we can't find them, that doesn't necessarily trigger the unwilling or unable.

[00:27:18] Speaker 02:
And I think that's what this case law, this court's case law suggests, that the

[00:27:24] Speaker 02:
It's very fact specific.

[00:27:26] Speaker 02:
It matters in a case where the police were unable to catch the perpetrators.

[00:27:33] Speaker 02:
It matters what information they had, what efforts they made, whether they were hamstrung in their ability to be effective.

[00:27:41] Speaker 02:
I mean, I think the court looks at the effectiveness, but in light of all the other particular facts of the case.

[00:27:47] Speaker 03:
There's no evidence of corruption, that the police are corrupt, and that we sometimes see

[00:27:52] Speaker 03:
cases where the police have a corrupt relationship with the gangs?

[00:27:58] Speaker 03:
But there's no indication of that here, right?

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

[00:28:03] Speaker 02:
A lot of the cases do involve countries where there is a lot of evidence of collusion between the government and the gangs.

[00:28:12] Speaker 02:
There's no evidence?

[00:28:13] Speaker 03:
No, there's not.

[00:28:14] Speaker 03:
OK.

[00:28:17] Speaker 02:
See my?

[00:28:18] Speaker 02:
No other questions.

[00:28:20] Speaker 02:
Oh.

[00:28:20] Speaker 02:
I still have a minute and a half.

[00:28:23] Speaker 02:
The court has nothing further.

[00:28:24] Speaker 03:
Thank you very much.

[00:28:37] Speaker 00:
Well, Your Honor, if we have a murder case where the victim is not able to identify the assailant at all, no information at all, does that mean that the police is not supposed to investigate?

[00:28:49] Speaker 00:
So what I think in this case, it doesn't matter.

[00:28:51] Speaker 01:
We have that all the time.

[00:28:52] Speaker 01:
And so then we look at forensic evidence and circumstantial evidence in order to solve it.

[00:28:57] Speaker 00:
That's correct.

[00:28:59] Speaker 00:
The police looks at some evidence.

[00:29:01] Speaker 01:
The mere fact that the victim is not able to identify the attacker doesn't necessarily mean that the police are acquiescing in the crime.

[00:29:09] Speaker 01:
It may make it more difficult to find out who did it.

[00:29:13] Speaker 00:
but they still take the minimum standard measures, standard measures to investigate.

[00:29:18] Speaker 00:
The record does not show that they took any steps to investigate.

[00:29:22] Speaker 01:
Well, counsel, the problem having with your argument is, and maybe it's because of the uniqueness of a case out of France, but we get, as you know, cases from other countries, like from Central or South America, where the police won't even investigate unless the victim's family pays them a bribe to conduct the investigation.

[00:29:41] Speaker 01:
Or you've got to,

[00:29:42] Speaker 01:
pay money in order to influence the outcome.

[00:29:46] Speaker 01:
I mean, that's not what we have here.

[00:29:48] Speaker 01:
I mean, we have a situation where police actually responded and did something.

[00:29:54] Speaker 01:
The question is whether or not what they did was enough to conclude that the French government was somehow complicit with the Armenian government in turning a blind eye to what was going on.

[00:30:06] Speaker 01:
And the agency, looking at the record, concluded that they had not met that standard.

[00:30:13] Speaker 00:
Well, Your Honor, what I think, if the government were truly able, it would have prevented this horrific crime of second rape.

[00:30:24] Speaker 01:
If the government was willing... I'm not sure you can make that conclusion where the victim is not completely forthcoming as to the real reason behind the attack.

[00:30:36] Speaker 01:
I don't think that matters at this moment, Your Honor, because the fact is... Well, I mean, the question is whether or not there's enough evidence to support the agency's... Is there substantial evidence to support the agency's conclusion or whether the record compels the opposite conclusion?

[00:30:50] Speaker 01:
Isn't that what we're looking at here?

[00:30:53] Speaker 00:
The record compels the opposite.

[00:30:54] Speaker 00:
No reasonable fact finder would think that a person that gets attacked all the time reports to the government four times.

[00:31:03] Speaker 00:
And in fact, this court ruled in favor of asylum seekers after just one or two unresponsive... Did they report it for... Sorry to drag it out, but did they report it four times?

[00:31:13] Speaker 04:
My understanding is there were four attacks, but there were only two reports.

[00:31:17] Speaker 00:
No, there were three police reports, and one time she reported to the Parliament member.

[00:31:22] Speaker 04:
Got it.

[00:31:23] Speaker 04:
Okay.

[00:31:24] Speaker 00:
Okay.

[00:31:25] Speaker 03:
Thank you, Your Honors.

[00:31:27] Speaker 03:
The case of Milconian versus Ponday is submitted, and the next case is Alva Hathaway versus Santa Barbara Unified School District, which is submitted on the briefs, and we are adjourned for this session.