[00:00:06] Speaker 02:
height challenge like me.

[00:00:08] Speaker 04:
I know, not even wearing heels.

[00:00:09] Speaker 04:
I was looking at the last man and I thought, well, I'm going to have to figure this out.

[00:00:12] Speaker 04:
But I'm not tech savvy.

[00:00:14] Speaker 02:
You can just pull the mic stand closer to you.

[00:00:17] Speaker 04:
I will lean in.

[00:00:18] Speaker 04:
All right.

[00:00:18] Speaker 04:
Good morning, Your Honors.

[00:00:19] Speaker 04:
I'm Hilary Walsh.

[00:00:20] Speaker 04:
I'm here for petitioner.

[00:00:22] Speaker 04:
I'd like to request or reserve five minutes for rebuttal, please.

[00:00:25] Speaker 02:
Counsel, please be reminded that the time shown on the clock is your total time remaining.

[00:00:30] Speaker 04:
Yes, ma'am.

[00:00:31] Speaker 04:
Thank you.

[00:00:33] Speaker 04:
We've been at this for 11 years.

[00:00:34] Speaker 04:
This is an asylum case that's been litigated for 11 years.

[00:00:37] Speaker 04:
We've got a robust record before the court, but I have good news for you.

[00:00:42] Speaker 04:
This case can be disposed of by resolving one single question, and that is, what is the meaning of the word all?

[00:00:49] Speaker 04:
I say this because the applicable rule here is that, and this is from Coluby.

[00:00:54] Speaker 04:
This is when the court was sitting en banc.

[00:00:56] Speaker 04:
This is in 2004 when this court articulated this rule.

[00:01:00] Speaker 04:
that the board abuses its discretion when it fails to consider all relevant factors in deciding discretion.

[00:01:10] Speaker 04:
And so the court has to ask or ask itself and to resolve, what does all mean?

[00:01:15] Speaker 04:
Does it mean, as the government suggests, that all relevant evidence is whatever the board puts in its opinion?

[00:01:22] Speaker 04:
Is all the relevant evidence that's necessary for determining discretion?

[00:01:27] Speaker 04:
Or is it what all means in a practical sense?

[00:01:30] Speaker 04:
in what all means when this court was sitting on Bonk and Coluby, which is that if a single factor is missing from the board's analysis, remand is necessary.

[00:01:40] Speaker 02:
Factor or fact?

[00:01:41] Speaker 02:
That makes a huge difference.

[00:01:43] Speaker 02:
A factor may not be missed, but a fact isn't necessarily required to be specifically discussed.

[00:01:51] Speaker 02:
And so specifically, I want to ask you on the facts of this case, what relevant evidence

[00:01:58] Speaker 02:
do you say was not considered in the determination?

[00:02:01] Speaker 04:
Yes, Your Honor.

[00:02:03] Speaker 04:
And I will even go farther to say it's not my position what were relevant factors or facts that weren't considered.

[00:02:10] Speaker 04:
We can simply look to the IJ's most recent decision, the third IJ decision affirming relief.

[00:02:17] Speaker 04:
And I presented it to the extent it might be handy later on.

[00:02:21] Speaker 02:
But the BIA decision is really the governing decision.

[00:02:23] Speaker 02:
So the fact that an IJ may disagree

[00:02:27] Speaker 02:
with what the BIA decides does not make you prevail.

[00:02:32] Speaker 04:
I understand, Your Honor.

[00:02:34] Speaker 04:
We can also look to BIA opinions to see what factors are supposed to be considered.

[00:02:40] Speaker 04:
But I want to get directly to your question when you're saying, what are the factors that weren't considered?

[00:02:44] Speaker 04:
And those are three main factors.

[00:02:46] Speaker 04:
Let me get my notes here.

[00:02:48] Speaker 04:
First, age at entry and length of residence.

[00:02:52] Speaker 04:
Neither of those factors were considered in this opinion.

[00:02:55] Speaker 02:
Okay, so were those issues raised?

[00:02:58] Speaker 04:
Yes.

[00:02:59] Speaker 02:
Age at entry and what was the other one?

[00:03:02] Speaker 04:
Length of residence.

[00:03:03] Speaker 02:
Length of residence.

[00:03:05] Speaker 02:
And so you are aware that everything doesn't have to be discussed to be considered, correct?

[00:03:11] Speaker 02:
Yes, Your Honor.

[00:03:12] Speaker 04:
And, you know, the court, I think that's really an important thing for this court to resolve because that's where we're going to go is does the court have to give a recitation of every single factor that's considered?

[00:03:21] Speaker 04:
And that would be, frankly, it's untenable and we would be up and down all over again kind of like we've already been with this case.

[00:03:28] Speaker 04:
And this court has already instructed on how to handle this and the board is super familiar with how to handle addressing all factors considered because it has to do so under Cole versus Holder which government council actually cited in its brief

[00:03:41] Speaker 04:
where the board is required to address all evidence related to future torture.

[00:03:48] Speaker 04:
So it's already used to providing reasoned analysis on what is and isn't considered.

[00:03:55] Speaker 04:
The board does this every single day.

[00:03:58] Speaker 04:
And it doesn't just do this in the context of asylum discretion, it does it constantly in the context of when you apply for a green card in immigration court, an adjustment of status, and discretion is a factor there too.

[00:04:11] Speaker 01:
I'm sorry, we have also precedent that says, unless there is a reason to believe otherwise, we presume that the BIA considered all the facts.

[00:04:19] Speaker 04:
A simple conclusion like that is not sufficient under Colubi.

[00:04:24] Speaker 04:
And here's why, Your Honor.

[00:04:26] Speaker 01:
Well, okay, let's just go back to these.

[00:04:28] Speaker 01:
So you're saying age, entry, and length of?

[00:04:30] Speaker 04:
Age and length, age at entry, and length of residence.

[00:04:33] Speaker 01:
So what do you mean, age at entry?

[00:04:35] Speaker 04:
age at entry.

[00:04:37] Speaker 01:
So he was what when he entered last time?

[00:04:39] Speaker 04:
15 years old.

[00:04:40] Speaker 01:
No, when he entered the last time when he lied.

[00:04:43] Speaker 04:
When he made the alleged misrepresentation.

[00:04:45] Speaker 01:
I'm sorry, my bad.

[00:04:47] Speaker 04:
I don't want to be disrespectful, but I think he was 26, something like that.

[00:04:54] Speaker 01:
So how does age help you?

[00:04:55] Speaker 04:
That's different because he's been a lawful permanent resident this whole time.

[00:04:58] Speaker 04:
The court's never taken into consideration

[00:05:00] Speaker 04:
his age at the most recent entry.

[00:05:03] Speaker 02:
Why is that relevant?

[00:05:05] Speaker 02:
Why is the age at the initial entry relevant evidence for this particular scenario?

[00:05:14] Speaker 04:
Because this is a kid who grew up in a refugee camp in Pakistan and came to the United States in 2002.

[00:05:20] Speaker 04:
When he started the process for immigrating here, he was nine years old, and it took until he was 15 to get here.

[00:05:25] Speaker 02:
That's all in the record.

[00:05:27] Speaker 04:
Yes, ma'am.

[00:05:27] Speaker 02:
That was all before the board.

[00:05:31] Speaker 02:
The focus was on, I'm sorry, none of that was what?

[00:05:35] Speaker 04:
None of that was addressed in its analysis on the positive factors.

[00:05:38] Speaker 04:
Not a single word of that was addressed.

[00:05:42] Speaker 02:
The difficulty here is that at the time that the board was focusing on, he was an adult.

[00:05:51] Speaker 02:
And so I'm not sure that I'm persuaded that the board had to focus

[00:06:00] Speaker 02:
on an earlier time when considering what happened in this most recent entry.

[00:06:07] Speaker 04:
Coluby and the court in all of its cases has never distinguished between what factors, when we have a set of factors, Coluby actually cites, and I think it's footnote three, Coluby cites to a Seventh Circuit Court case that has a recitation of what factors the board commonly considers in determining discretion cases.

[00:06:29] Speaker 04:
So these are factors that are out there.

[00:06:31] Speaker 04:
This isn't like we're pulling things out of thin air.

[00:06:33] Speaker 04:
This is factors that the board consistently applies.

[00:06:35] Speaker 04:
And age and length of residence in the United States is one of those.

[00:06:39] Speaker 04:
And I really want to get to what I think is more important.

[00:06:44] Speaker 00:
The difficulty with your argument seems to me the dissent, the BIA dissenting member brought up some of these things.

[00:06:51] Speaker 00:
So it's a little hard for, this is an unusual case.

[00:06:54] Speaker 00:
It's rare that we see three immigration judges all

[00:06:58] Speaker 00:
affirmatively saying that asylum relief should be granted as a matter of discretion, and two BIA reversals and remands, and then it comes back a third time.

[00:07:08] Speaker 00:
With a case like this, I think the presumption holds even stronger that the board considered all of these relevant factors because of that lengthy history that it had.

[00:07:18] Speaker 00:
And you have a dissenter mentioning some of this stuff, so it's a little hard to believe that the BIA didn't consider

[00:07:25] Speaker 00:
the positive factors.

[00:07:26] Speaker 00:
I guess your argument seems to be more that they needed to give a more reasoned explanation behind the positive factors.

[00:07:33] Speaker 04:
Yes, Your Honor, and respectfully, I think that when we have to reasonably conclude or wonder, if this Court even has an indication of wonder of whether the Board considered it or not, it's not been a well-reasoned opinion and cannot stand under Coluby.

[00:07:46] Speaker 02:
But we presume that the Board considered all the relevant evidence.

[00:07:51] Speaker 02:
And as Judge Sanchez said, if there is a dissent that points that out,

[00:07:55] Speaker 02:
The majority has read the dissent, and so that presumption is even stronger.

[00:08:00] Speaker 02:
So you have an uphill battle to persuade us that the presumption should be rebutted in this case.

[00:08:08] Speaker 04:
I think Colubie really, Colubie is a more recent case, and it was an en banc decision, so it's a more recent case than the, I think it's Lopez that you're citing, Your Honor.

[00:08:19] Speaker 04:
And that's a 2004 case, and I think the other one's in the 90s.

[00:08:23] Speaker 02:
So if we disagree with you,

[00:08:25] Speaker 02:
and decide that Colubie does not compel what you are suggesting to us, then do you lose?

[00:08:34] Speaker 04:
Yes, Your Honor, we do.

[00:08:36] Speaker 04:
All right.

[00:08:36] Speaker 00:
Can I ask this?

[00:08:37] Speaker 00:
I mean, the thing that I thought was a little bit of a closer question is that the board has its precedent in matter of PULA and others that talk about or set forth a standard that when you have this serious risk of future harm, you can't, let me see if I come up, you know, the danger of future persecution will outweigh all but the most egregious adverse factors.

[00:09:02] Speaker 00:
Could the board have not applied or erred by not applying its precedent in considering or discussing matter of Pula?

[00:09:11] Speaker 00:
And I think it got repeated in Kasinga as well.

[00:09:14] Speaker 04:
Yes, Your Honor.

[00:09:14] Speaker 04:
We don't know what or how.

[00:09:16] Speaker 04:
I mean, its own precedent wasn't even the Pula and these other cases weren't even cited in the decision.

[00:09:21] Speaker 04:
But we don't know why are these convictions the most egregious factors.

[00:09:26] Speaker 04:
The board clearly wants to give them full weight.

[00:09:28] Speaker 04:
It gives two sentences explaining why it needs to give them full weight.

[00:09:31] Speaker 04:
And it felt like the IJ hadn't done so.

[00:09:34] Speaker 04:
But I absolutely agree that the board failed to apply its own precedent.

[00:09:38] Speaker 04:
And then especially when we look into the context of whether this court has applied the board's decisions, it fails.

[00:09:45] Speaker 01:
But, counsel, considering Pula, though, do we also consider the fact that he would never be sent back to Afghanistan?

[00:09:50] Speaker 04:
Never doesn't mean never.

[00:09:53] Speaker 04:
So with a withholding, yes sir, just like all here apparently if we take the government's position doesn't necessarily fit all.

[00:09:59] Speaker 04:
And I do not, I remember all of us were probably around the same age in the 90s when Bill Clinton was wondering what the word is meant.

[00:10:07] Speaker 01:
I do remember that.

[00:10:07] Speaker 04:
And this is a little bit of that throwback where what does all mean?

[00:10:11] Speaker 04:
When we look at Coluby, I want to draw the court's attention to

[00:10:14] Speaker 04:
recency of criminal conduct.

[00:10:15] Speaker 04:
Wait, wait, you never explained why he would never be, why he was never... Oh, withholding of removal and convention against torture.

[00:10:22] Speaker 04:
The government can move to reopen those cases at any time and can try to argue that country conditions have changed.

[00:10:29] Speaker 01:
So this isn't... And then you would have recourse at that point, though, if that were to happen.

[00:10:32] Speaker 04:
We would have this all over again, Your Honor.

[00:10:34] Speaker 04:
We would.

[00:10:35] Speaker 04:
And there is a sense of finality.

[00:10:37] Speaker 04:
when we can have a reasoned decision, if the board had actually considered all factors, and one that I really want to draw the court's attention to is the recency of criminal conduct.

[00:10:50] Speaker 04:
The board specifically states, and this is where I think we have winner-winner chicken dinner,

[00:10:56] Speaker 04:
When the board specifically states he has a long and lengthy criminal history starting in 2007, it doesn't make any observations related to the positive factor that the last Criminal Conduct Act was in 2013, and this case was before the board in 2020.

[00:11:11] Speaker 04:
Here we are, Your Honors, in 2025 and in 2023 he had to pass his background checks and so it's an inference that he's not got anything new on his criminal record.

[00:11:20] Speaker 04:
And that is a positive factor that every single board decision is required to consider and the board didn't do it here.

[00:11:27] Speaker 04:
And this isn't just a fact, it is a factor because it helps us see the dangerousness and the egregiousness of the conduct

[00:11:34] Speaker 04:
And that goes again to your honor Sanchez about Pula.

[00:11:37] Speaker 02:
Would you point me to the language in Colubi that you think is winning language for you?

[00:11:43] Speaker 04:
Yes, ma'am.

[00:11:49] Speaker 04:
It is a couple sentences.

[00:11:50] Speaker 04:
It's a one sentence.

[00:11:53] Speaker 02:
What page are you on?

[00:11:55] Speaker 04:
I don't have that written down, but I have the quote.

[00:11:57] Speaker 04:
So I'll have to, maybe we can do a control find.

[00:12:01] Speaker 04:
But the sentence starts with we have consistently, if that helps, your honor.

[00:12:06] Speaker 04:
I apologize.

[00:12:07] Speaker 02:
Go ahead and read the sentence.

[00:12:08] Speaker 02:
I'll find it.

[00:12:09] Speaker 04:
Yes, ma'am.

[00:12:10] Speaker 04:
We have consistently required the BIA to state its reasons and show proper consideration of all factors when weighing equities and denying relief.

[00:12:21] Speaker 00:
It's at 1140.

[00:12:23] Speaker 02:
Thank you.

[00:12:23] Speaker 02:
Yeah, I'm looking at it.

[00:12:25] Speaker 02:
That's a very general statement.

[00:12:28] Speaker 02:
And so how are you thinking that that compels us to rule in your favor?

[00:12:37] Speaker 04:
In Colubie, the underlying court found, or the underlying board I should say, found that he was denied relief, right?

[00:12:45] Speaker 04:
He was denied on discretion.

[00:12:47] Speaker 04:
There was one single factor that the board had not addressed and the Ninth Circuit en banc remanded for reconsideration of one factor.

[00:12:58] Speaker 04:
And that's what I asked for the court to do here where recency of criminal conduct, I filed a 28J letter yesterday, I'm so sorry it was so late.

[00:13:05] Speaker 04:
but of a multitude of unpublished BIA decisions, all considering recency of criminal conduct in their decisions.

[00:13:13] Speaker 02:
The problem with your argument, I think, that the context of Colubie was an adverse credibility determination, which is pivotal in the cases.

[00:13:24] Speaker 02:
And this is a discretionary decision with multiple factors to be considered.

[00:13:29] Speaker 04:
I want to contextualize this, Your Honor.

[00:13:31] Speaker 04:
And the reason being, they denied on discretion

[00:13:35] Speaker 04:
So Leon discretion because they had not been able to find an adverse credibility.

[00:13:39] Speaker 04:
They had not been able to

[00:13:41] Speaker 04:
enter adverse credibility on the merits of the case itself.

[00:13:45] Speaker 04:
Specifically, the court goes on to say, in the conclusion of Colubie, it says, you may not like the batting record, right?

[00:13:52] Speaker 04:
And that's because you couldn't enter an adverse credibility finding.

[00:13:54] Speaker 04:
So you brought it over here and used these statements against him.

[00:13:58] Speaker 04:
And then there was a second, I guess, part two in the decision that talked about the factors that were or were not considered.

[00:14:07] Speaker 04:
And that's where these, you know,

[00:14:09] Speaker 04:
It may be a general statement that I'm bringing to your honor, but that case is on point.

[00:14:13] Speaker 01:
But Council, you're not reading the next sentence immediately after that.

[00:14:17] Speaker 01:
This means that the BIA must explain what factors it has considered or relied upon sufficiently that we are able to discern that it is harrowed, considered, and decided.

[00:14:27] Speaker 01:
They're not interpreting and saying that you must recite every factor presented.

[00:14:33] Speaker 01:
It's saying which factors did the BIA rely on.

[00:14:36] Speaker 01:
That's all they have to say.

[00:14:38] Speaker 01:
There's none of this tick mark, check mark requirement which you seem to suggest.

[00:14:43] Speaker 04:
No, Your Honor.

[00:14:43] Speaker 04:
What I would suggest is that there is no question that the board considered as a negative factor the lengthy and extensive criminal history.

[00:14:50] Speaker 04:
The board's words, substantial criminal history starting in 2007.

[00:14:54] Speaker 04:
and did not consider the positive factor of no criminal history from 2013 to 2020.

[00:15:00] Speaker 04:
And that is a factor that the board considers every single time it weighs the criminal conduct in front of it.

[00:15:05] Speaker 04:
And that factor is not included.

[00:15:07] Speaker 04:
I'm over time, Your Honor.

[00:15:08] Speaker 02:
Well, you're not.

[00:15:09] Speaker 02:
You have 12 seconds left, but we'll give you a couple minutes for rebuttal.

[00:15:11] Speaker 02:
I think that's supposed to include my rebuttal, so I apologize.

[00:15:13] Speaker 02:
Any questions?

[00:15:15] Speaker 02:
All right.

[00:15:15] Speaker 02:
Thank you, counsel.

[00:15:16] Speaker 02:
We'll hear from the government.

[00:15:25] Speaker 03:
Good morning, Your Honors.

[00:15:26] Speaker 03:
May it please the court?

[00:15:27] Speaker 03:
Sana Lee, representing the Attorney General.

[00:15:30] Speaker 03:
Your Honors, in this case, the board's decision listed what it believed were the most relevant factors.

[00:15:40] Speaker 03:
And there's no proof in the record that it disregarded relevant factors.

[00:15:48] Speaker 03:
In fact, in Colubie,

[00:15:50] Speaker 03:
the court said that the board has discretion to determine the relevance of the factors and the weight to place on those relevant factors.

[00:16:02] Speaker 03:
And here, the board did not abuse its discretion.

[00:16:07] Speaker 03:
The petitioner has to point out or show that the board's decision was arbitrary or irrational or contrary to law.

[00:16:18] Speaker 03:
And here,

[00:16:19] Speaker 03:
He has clearly not done that.

[00:16:21] Speaker 03:
The board reasonably discussed what it believed were the most negative and positive factors.

[00:16:30] Speaker 03:
But there's no proof in the record or no showing that the board ignored something that was relevant.

[00:16:38] Speaker 03:
And in Sianzi, I don't know how to pronounce it, S-Z-O-N-Y-I, a nine circuit case,

[00:16:48] Speaker 03:
The court stated that the court generally presumes that the BIA thoroughly considers all record relevant evidence in the record.

[00:17:00] Speaker 03:
And here that's what the board did.

[00:17:03] Speaker 00:
Could you address the concern that I raised with your opposing counsel about

[00:17:08] Speaker 00:
whether the board ignored matter of Pula and Kasinga, the notion that when you have this risk of future harm, all but the most egregious adverse factors, that it'll outweigh all but the most egregious adverse factors.

[00:17:24] Speaker 00:
Sometimes we discuss that the board acts arbitrarily if it ignores its own prior precedent.

[00:17:31] Speaker 00:
Did that happen here?

[00:17:33] Speaker 03:
No, Your Honor.

[00:17:34] Speaker 03:
It did not ignore Pula.

[00:17:37] Speaker 03:
It did mention that the IJ considered a risk of persecution because, you know, the IJ did grant withholding.

[00:17:50] Speaker 00:
But it doesn't, you know, obviously it looked at a risk of persecution, but it didn't cite the PULAS standard of you have to have some really egregious factors to overcome this

[00:18:02] Speaker 00:
risk of future persecution.

[00:18:04] Speaker 00:
It didn't apply it.

[00:18:06] Speaker 00:
And there may be answers to it, and you may come up with them, but that's not the same thing as noting that there's a risk of future persecution in my mind.

[00:18:15] Speaker 03:
Well, I think in this case, Your Honors, as we have argued in our brief, that

[00:18:21] Speaker 03:
there is no risk of persecution.

[00:18:25] Speaker 00:
Because of withholding?

[00:18:27] Speaker 03:
The grant of withholding of removal to Afghanistan or from Afghanistan.

[00:18:34] Speaker 03:
He also has protection under the Convention Against Torture.

[00:18:39] Speaker 00:
And so... And what about what Council raised, you know, that the government could reopen to readjust the granting of withholding of removal for certain factors?

[00:18:51] Speaker 00:
I mean, I was looking at that yesterday.

[00:18:53] Speaker 00:
One of the factors under the regulation is that there's a reasonable grounds to believe the alien is a danger to the security of the United States.

[00:19:04] Speaker 00:
So there is, I suppose, a possibility that the government could reassess whether

[00:19:09] Speaker 00:
it should vacate withholding and potentially send them back to Afghanistan, or is that remote in your mind?

[00:19:17] Speaker 03:
Well, Your Honor, I have not heard anything from the Department of Homeland Security about anything like that in this particular case, although I can't predict what they will do in the future.

[00:19:34] Speaker 03:
As far as I'm concerned in this case,

[00:19:39] Speaker 03:
If the government does that, petitioner will get the process.

[00:19:45] Speaker 03:
He would have to have voted.

[00:19:48] Speaker 00:
I would hope so.

[00:19:50] Speaker 03:
Yes, Your Honor.

[00:19:50] Speaker 03:
The regulation states that he would have to receive notice and procedures before the immigration court.

[00:20:04] Speaker 03:
if the Department of Homeland Security were to decide to send him back to Afghanistan.

[00:20:10] Speaker 03:
But in this case, that is not, I think, relevant to the main issue as far as whether the board abused its discretion, looking at the factors in that record.

[00:20:29] Speaker 03:
But I hope I answered your question.

[00:20:31] Speaker 00:
I mean, to some extent, I take the point.

[00:20:34] Speaker 00:
I mean, I think the board obviously weighed the evidence in a different way than the IJs had.

[00:20:42] Speaker 00:
But it doesn't mention the PULAS standard and wrestle with it in a sense and explain why it's unnecessary here because we've granted withholding of removal and cat relief.

[00:20:54] Speaker 00:
And so it raises the question, at least for me, whether

[00:20:56] Speaker 00:
there might be an abuse of discretion with the Board not engaging with that legal standard that it has put upon, you know, for itself, even if there might be an answer to it, you know, through the withholding relief or otherwise.

[00:21:10] Speaker 00:
And so I think that's the concern that comes up for me is just the absence of any discussion of that in the decision.

[00:21:19] Speaker 03:
Your Honor, we would respectfully argue that the Board did not abuse its discretion by not

[00:21:28] Speaker 03:
fully discussing all of that factor.

[00:21:34] Speaker 03:
But I think because the board knew that Petitioner has withholding, the board reaffirmed the immigration judge's grant of withholding and CAT, so the board was well aware that he cannot be sent back to Afghanistan.

[00:21:53] Speaker 00:
And I think the board actually, on remands, prompted the IJs to consider withholding these other claims as well.

[00:22:00] Speaker 03:
Right.

[00:22:01] Speaker 03:
In its second decision, the board ordered to the immigration judge to specifically address withholding of removal and cap protection.

[00:22:11] Speaker 03:
And so the board is definitely aware that he has protection from being sent back to Afghanistan.

[00:22:23] Speaker 03:
The board did consider that the IJ considered the possibility of persecution.

[00:22:31] Speaker 03:
But in this case, and under the case law, the Ninth Circuit has said there is no risk of persecution when a petitioner has been granted withholding of removal and or cap protection.

[00:22:47] Speaker 03:
And so just going back to the board's

[00:22:54] Speaker 03:
consideration of the relevant factors, the board listed the relevant factors which were his lengthy and substantial criminal history.

[00:23:03] Speaker 03:
So he has at least four convictions and an additional drug offense.

[00:23:12] Speaker 03:
So starting in 2007,

[00:23:14] Speaker 03:
every few years he has a different offense.

[00:23:19] Speaker 00:
Miss Lee, I guess, so what do you, because I think we're all familiar with his record, what do you, how would you respond to counsel's point that if it's raising this lengthening substantial history it should have done more to discuss the positive factors that no conviction since 2013 and that

[00:23:40] Speaker 00:
those positive factors to counterbalance against what it did raise.

[00:23:46] Speaker 03:
Your Honor, the board has discretion to determine what are the relevant factors.

[00:23:54] Speaker 03:
So in this case, the board is aware of the criminal history as it laid it out, but it wasn't persuaded.

[00:24:08] Speaker 03:
that the last conviction was in 2015 because the seriousness of the convictions outweighed the positive factors.

[00:24:22] Speaker 03:
And so as Your Honors have stated, the board does not need to recite every specific single fact in this case.

[00:24:35] Speaker 03:
The court presumes that the

[00:24:38] Speaker 03:
board considers all the relevant factors.

[00:24:42] Speaker 03:
And so the fact that the last conviction was in 2015, it wasn't, it did not outweigh any positive, I'm sorry, it didn't outweigh his, the whole negative history.

[00:24:57] Speaker 03:
So the board did consider what it believes to be the relevant factors and laid them out in its decision.

[00:25:05] Speaker 03:
And it was not required to mention

[00:25:08] Speaker 03:
his age at entry and I think in this case it wasn't that relevant where he did reenter at age 26 and at that point as an adult he lied to customs and border officials about the identity of his true mother, his biological mother.

[00:25:37] Speaker 03:
In addition, he also has the conviction for violating the protective order which is based on his former partner's statements that he pushed her and he threatened her which is a serious conviction.

[00:25:57] Speaker 03:
And the DUI conviction where it was based on alcohol and drugs and he was driving 60 miles per hour at that time.

[00:26:07] Speaker 03:
He has a federal felony conviction for accessory after the fact, relying to immigration officials.

[00:26:14] Speaker 03:
And the board properly considered the family in the United States, which is Petitioner's brother.

[00:26:21] Speaker 03:
And the board mentioned that the brother did assist the United States.

[00:26:27] Speaker 03:
The board mentioned the drug treatment program, which he was ordered to do by the court.

[00:26:33] Speaker 03:
The petitioner finished it.

[00:26:35] Speaker 03:
The courts have also ordered him to pay fees and fines, the criminal courts, and he did that as required.

[00:26:45] Speaker 03:
The board mentioned these positive factors, but it was not persuaded that these positive factors outweighed the negative factors, which was his criminal history.

[00:26:58] Speaker 03:
And the board has wide discretion to determine what is relevant and

[00:27:05] Speaker 03:
to give those factors.

[00:27:07] Speaker 03:
And the board here did not abuse its discretion.

[00:27:12] Speaker 03:
Do you have any other questions?

[00:27:15] Speaker 02:
It appears not.

[00:27:16] Speaker 02:
Thank you, Council.

[00:27:18] Speaker 02:
Let's have a minute for rebuttal.

[00:27:25] Speaker 04:
Two points, Your Honors.

[00:27:29] Speaker 04:
Council stated that the board knew he had withholding and so they didn't need to talk about the matter of PULA standard.

[00:27:34] Speaker 04:
But that's not actually what the board held.

[00:27:36] Speaker 04:
The board specifically weighed as a positive factor.

[00:27:39] Speaker 04:
that he faced a danger if he were to be removed.

[00:27:42] Speaker 04:
This is by contrast in the cases like Hulubi, like the other two cases that the government has cited, where the Jun Ming and Hussaini, where the board specifically says, hey, we're going to deny asylum on discretion because you have withholding of removal in CAT and so you don't face a risk of harm.

[00:28:01] Speaker 04:
But that's not what the board did here.

[00:28:03] Speaker 04:
I know that's what the government wishes that it had done, but that's not what the board did here.

[00:28:07] Speaker 04:
The board still considered the risk of harm as a positive factor but did not go on to say why this criminal history is so egregious that compared to the risk of harm, which frankly is almost certain, it's definitely over 51%, why are these criminal history factors, why is it so egregious?

[00:28:24] Speaker 04:
The board didn't say that and PULA requires it.

[00:28:27] Speaker 04:
And then the second point, if I can have just a moment,

[00:28:30] Speaker 04:
is that council says the board wasn't persuaded that his last conviction was in 2013 was relevant.

[00:28:36] Speaker 04:
I would love to see that in the decision.

[00:28:38] Speaker 04:
The council says that, but it's not here.

[00:28:40] Speaker 04:
Why make this assertion if this fact doesn't matter, if this fact or weren't of relevance?

[00:28:46] Speaker 04:
And we don't have to wonder what the board considers to be relevant.

[00:28:49] Speaker 04:
The federal rules of evidence tells us what is relevant.

[00:28:52] Speaker 04:
The board doesn't just get to willy-nilly decide what it is.

[00:28:55] Speaker 04:
It's a very low standard.

[00:28:57] Speaker 04:
Please remand.

[00:28:57] Speaker 04:
This man deserves a fair, full, fully articulated decision on this very important issue of discretion on asylum.

[00:29:06] Speaker 04:
All right.

[00:29:06] Speaker 04:
Thank you, counsel.

[00:29:07] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:29:11] Speaker 02:
The case just argued is submitted for decision by the court.

[00:29:14] Speaker 02:
The next case on calendar for argument is Solomon versus LVMPD.