[00:00:06] Speaker 04:
Good morning.

[00:00:08] Speaker 01:
All right.

[00:00:08] Speaker 01:
Good morning, your honors.

[00:00:09] Speaker 01:
Jean Reese, pro bono counsel for petitioner Jose Montoya Gomez.

[00:00:13] Speaker 01:
I'll reserve five minutes for rebuttal.

[00:00:15] Speaker 04:
OK.

[00:00:15] Speaker 04:
Keep your eye on the clock.

[00:00:16] Speaker 01:
I will.

[00:00:16] Speaker 01:
Thank you.

[00:00:17] Speaker 01:
This court should remand this matter for three reasons.

[00:00:22] Speaker 01:
The first is that the Board of Immigration Appeals failed to consider the motion to remand that was submitted.

[00:00:29] Speaker 01:
The Board of Immigration Appeals did not rule on the denial.

[00:00:33] Speaker 01:
The reference to the motion to remand is on page four in a paragraph discussing due process and discussing prejudice.

[00:00:44] Speaker 01:
The board says because Mr. Montoya Gomez did not show prejudice or did not show the outcome of the proceedings would change, remand wasn't warranted.

[00:00:55] Speaker 01:
Mr. Montoya Gomez requested remand due to extreme country condition changes in El Salvador and evidence of the Salvadoran government arresting 58,000 people in eight months, building a 40,000 prison, and evidence that deportees were targeted by the government for torture, for arrest.

[00:01:18] Speaker 01:
And these country conditions directly affect Mr. Montoya Gomez's likelihood of torture if returned to El Salvador.

[00:01:27] Speaker 01:
The country conditions were not addressed.

[00:01:31] Speaker 01:
The motion was not addressed.

[00:01:34] Speaker 01:
And like in Marion where the court, the board failed to consider country conditions of worsening conditions in Fiji, this court should remand.

[00:01:48] Speaker 04:
Your client, starting with the due process comment, he had three previous continuations, asked for a fourth.

[00:01:56] Speaker 04:
I think the IJ very reasonably said, no, we're not for that.

[00:02:00] Speaker 04:
Did you bring up in your opening brief that would likely change standard?

[00:02:05] Speaker 04:
And if so, where in the brief?

[00:02:07] Speaker 01:
Yeah, it would likely change in context of the motion to remand.

[00:02:12] Speaker 01:
No, because that's not the standard.

[00:02:15] Speaker 01:
The standard is prima facie eligibility for relief and that was... And what in this case might that be?

[00:02:23] Speaker 01:
The evidence that shows that deportees are targeted for torture by the government and gangs.

[00:02:32] Speaker 04:
You're a good lawyer, but just remember that when you're talking about country conditions, you've got to have something that's particularized to your client.

[00:02:43] Speaker 04:
And I don't see anything in the record that suggests that your client ever introduced any evidence that showed any change of circumstances with respect to him.

[00:02:53] Speaker 04:
Now, you can have country conditions.

[00:02:55] Speaker 04:
We hear it all the time.

[00:02:56] Speaker 04:
As I'm sure you know, the Ninth Circuit has lots and lots and lots of immigration cases.

[00:03:00] Speaker 04:
We had one yesterday afternoon, somebody arguing very much the same thing that you did, arguably changed country conditions, but nothing.

[00:03:09] Speaker 04:
that tied those to that particular petitioner.

[00:03:11] Speaker 01:
And without that, you've got a problem, don't you?

[00:03:23] Speaker 01:
It cites that individuals deported to the US are targeted by the government and Mr. Jose Montoya Gomez has lived in the US for 40 years as a permanent resident for 30 years would be deported to Salvador, but I think more importantly to your honor is the the board never provided a reasoned explanation and

[00:03:44] Speaker 01:
The board never said he didn't show particularized evidence.

[00:03:48] Speaker 01:
The board was completely silent on the motion to remand.

[00:03:51] Speaker 01:
And like in Movsisian where the court did not have a reasoned cogent denial to review, this court had to remand.

[00:04:03] Speaker 04:
What's your best case that you think is on all fours from your perspective?

[00:04:08] Speaker 01:
I think it's Narian.

[00:04:09] Speaker 01:
Because here we don't have, you don't have a reasoned decision.

[00:04:13] Speaker 01:
I think Marion and Moffisian, but you don't have a reasoned decision.

[00:04:16] Speaker 01:
You just have this one sentence that because he didn't show the outcome proceedings.

[00:04:21] Speaker 04:
But didn't the board adopt the findings of the IJ and not what our case law says?

[00:04:28] Speaker 01:
Well, the board didn't adopt all the findings of the IJ, but the IJ didn't consider the motion to remand.

[00:04:36] Speaker 01:
This was just what the board did.

[00:04:37] Speaker 01:
So the board provides nothing for this court to review as to the reason for the denial, other than potentially the application of the wrong standard under it would likely change.

[00:04:50] Speaker 01:
To the due process argument, and I – your honor had indicated that, you know, you did not think that the continuances were unreasonable, I think, you know, Ari and BWAT both talk about business days, and we're talking about an extraordinary case where you have this kind of COVID pandemic lockdown.

[00:05:10] Speaker 01:
There's 23 business days, ultimately, that Mr. Montoya Gomez was provided.

[00:05:16] Speaker 01:
to find an attorney, and there was potentially an additional 10 days, but he was quarantined for that time.

[00:05:23] Speaker 01:
He stated, we don't have access.

[00:05:25] Speaker 01:
We're in lockdown.

[00:05:25] Speaker 01:
I can't get to the library.

[00:05:27] Speaker 01:
He was Spanish speaking.

[00:05:29] Speaker 01:
He was detained.

[00:05:30] Speaker 01:
And so it was unreasonable in this situation for the court to deny him the opportunity to find an attorney.

[00:05:39] Speaker 03:
He had three months, did he not?

[00:05:42] Speaker 01:
Well, I think if you look at the timing, it's, you know, I calculated it out to be 23 business days.

[00:05:49] Speaker 01:
There could be, okay, let's say 33 with the 10 days, but he was quarantined, so it's unclear how much time of that quarantine he had to find an attorney.

[00:05:58] Speaker 01:
And I think also it's not just his availability, but the attorney's availabilities to, during this lockdown time, take on new clients.

[00:06:10] Speaker 01:
Why this is so important too is this is not a case where you have maybe a recently arrived asylum seeker.

[00:06:19] Speaker 01:
This is a permanent resident for 30 years who is going to have his permanent residence taken away and the government has the burden to show that he has this criminal conviction that's for the grounds of deportability.

[00:06:32] Speaker 01:
Without an attorney, the judge asked him questions and based solely on those questions and no other evidence introduced by the government was he found removable.

[00:06:43] Speaker 01:
And the court did not, the immigration judge did not even tell him the charge against him.

[00:06:49] Speaker 01:
And that's reflected in the ICE attorney's confusion later at the merits hearing about what charge and whether he was found removable.

[00:06:58] Speaker 01:
The denial of the attorney there was at a crucial moment in the pleading stage.

[00:07:02] Speaker 01:
And this is a fundamental constitutional statutory right to an attorney.

[00:07:07] Speaker 01:
The denial of a continuance was unreasonable.

[00:07:09] Speaker 01:
It amounted to the denial of an attorney.

[00:07:13] Speaker 03:
You know, he isn't contesting the fact that he was convicted and served time for a very serious criminal charge, does he?

[00:07:21] Speaker 01:
He's contesting that he wasn't allowed an attorney.

[00:07:24] Speaker 01:
And so the removal proceedings, you know, the pleading stage, the court cannot have jurisdiction, cannot remove anyone without finding removability.

[00:07:37] Speaker 01:
Had the government not been able to meet its burden, he would have been released.

[00:07:43] Speaker 01:
Now, the fundamental kind of procedural, constitutional, and statutory rights here were violated.

[00:07:53] Speaker 01:
And Montes Lopez, beholder, says, prejudice is presumed.

[00:07:57] Speaker 01:
There also is a showing presence.

[00:07:58] Speaker 01:
The outcomes could have been different if the government couldn't have met their burden.

[00:08:02] Speaker 04:
Does he have a constitutional right to have an attorney at an immigration hearing of this nature?

[00:08:08] Speaker 01:
Yes.

[00:08:08] Speaker 04:
So there's a... What's the case you're relying on?

[00:08:10] Speaker 01:
Ari and Biwat talk about the constitutional right to an attorney under the Fifth Amendment Constitutional, so a due process, and not a Sixth Amendment, but under the Fifth Amendment.

[00:08:20] Speaker 04:
Okay, so you're saying you decided for a portion of it, but not all of it?

[00:08:23] Speaker 01:
No, for all of the immigration removal proceedings, yes.

[00:08:28] Speaker 01:
And this is a critical stage because, again, removability, the relief doesn't matter if someone is not removable.

[00:08:36] Speaker 01:
So he is a permanent resident until the government establishes

[00:08:40] Speaker 01:
that he is removable for his conviction.

[00:08:42] Speaker 01:
And during this critical stage, he was not represented by an attorney.

[00:08:46] Speaker 01:
He never waived his right to an attorney, and that was a violation.

[00:08:49] Speaker 04:
I find your position quite remarkable, frankly.

[00:08:51] Speaker 04:
I really do.

[00:08:52] Speaker 04:
It is, as my colleagues point out, your client convicted a serious offense during time in jail.

[00:08:59] Speaker 04:
It's kind of a prima facie case.

[00:09:01] Speaker 04:
Whether you have an attorney or not have an attorney, I don't know what the difference is, frankly.

[00:09:05] Speaker 04:
What would they say?

[00:09:06] Speaker 04:
You know, let's say you're the attorney, I'm the IJ.

[00:09:10] Speaker 04:
What are you going to tell me that excuses your clients the application of the statute that would require him to be removed because of the crime?

[00:09:20] Speaker 04:
What would you say?

[00:09:21] Speaker 01:
I would deny the allegations.

[00:09:23] Speaker 01:
I would contest.

[00:09:24] Speaker 04:
That you've served time and you've been convicted?

[00:09:26] Speaker 01:
Yes.

[00:09:26] Speaker 01:
Just like if I were charged with a crime, I have the right to plead not guilty.

[00:09:30] Speaker 01:
Even if I confess to a police officer, before that, I have the right to plead not guilty and put the government to its burden.

[00:09:38] Speaker 01:
So in this situation, if I were the attorney representing Mr. Montoya Gomez, I would have denied the allegations and contested the charge, put the government to their burden.

[00:09:47] Speaker 01:
At that time, the government would have to introduce evidence.

[00:09:50] Speaker 01:
I would have the opportunity to review it, to make objections.

[00:09:54] Speaker 01:
Then the immigration judge would determine based on that.

[00:09:57] Speaker 04:
And our- Didn't, didn't, didn't, in this case, was no evidence produced that he was convicted and served time?

[00:10:03] Speaker 01:
It had not been admitted until much later.

[00:10:05] Speaker 01:
It had been admitted in October, but this removal proceeding took place in April.

[00:10:11] Speaker 01:
So it had not been admitted into evidence.

[00:10:14] Speaker 01:
And Mr. Montoya Gomez was not provided.

[00:10:19] Speaker 01:
The judge didn't see if he had received those documents, did not provide him the charge.

[00:10:23] Speaker 01:
There was an amended charge.

[00:10:25] Speaker 01:
He didn't ask if he had received the amended notice.

[00:10:28] Speaker 01:
So these are fundamental due process violations.

[00:10:32] Speaker 04:
You read the record a little differently than I do, but you're a good lawyer.

[00:10:35] Speaker 04:
What the heck?

[00:10:36] Speaker 04:
Do you want to save any of your time or you want to, whatever you like?

[00:10:40] Speaker 01:
I would.

[00:10:40] Speaker 01:
I'll just say one thing about the cat.

[00:10:42] Speaker 01:
There is evidence that deportees are targeted.

[00:10:46] Speaker 01:
That evidence was not considered by the IJ.

[00:10:48] Speaker 01:
The evidence was not considered by the board.

[00:10:50] Speaker 01:
The denial was based on the fact that he couldn't identify or name people who would torture him.

[00:10:55] Speaker 01:
That's the wrong standard.

[00:10:57] Speaker 01:
And I'll reserve the rest of my time.

[00:10:58] Speaker 01:
Thank you.

[00:10:59] Speaker 04:
Thank you very well.

[00:11:00] Speaker 04:
All right.

[00:11:01] Speaker 04:
So Ms.

[00:11:03] Speaker 04:
Vick, I believe, right?

[00:11:10] Speaker 00:
Good morning, Your Honors.

[00:11:11] Speaker 00:
Good morning.

[00:11:11] Speaker 00:
Lindsay Vick on behalf of the Attorney General.

[00:11:15] Speaker 00:
I guess I'd like to start with the due process violation that we were just discussing.

[00:11:19] Speaker 00:
I think it's important to note that he ultimately had counsel for his merits hearing.

[00:11:25] Speaker 00:
And also taking a step back at the removable hearing, the conviction records were actually submitted to the IJ in April of 2020.

[00:11:34] Speaker 00:
Those are the conviction records, right?

[00:11:38] Speaker 00:
The conviction records for the attempted rape conviction.

[00:11:42] Speaker 00:
So that's at car five five nine in case in case anyone missed it, but So the IJ did have the benefit of the record of conviction when he made the remove ability finding in June of 2020 and petitioner had had three continuances of

[00:12:00] Speaker 00:
to find counsel before that fourth hearing.

[00:12:03] Speaker 00:
And at that point, the IJ found that it simply wasn't reasonable to keep continuing proceedings indefinitely.

[00:12:11] Speaker 00:
We were in the COVID pandemic.

[00:12:13] Speaker 00:
And at that time, IJs didn't want to keep people in detention forever.

[00:12:17] Speaker 00:
So things needed to move more quickly.

[00:12:20] Speaker 00:
And also, there's no bright line rule for what is a reasonable amount of continuances.

[00:12:28] Speaker 00:
And I think in this case, under this record, it was reasonable to give this respondent three continuances.

[00:12:38] Speaker 00:
And then it was just to complete a preliminary stage of the proceeding.

[00:12:41] Speaker 00:
He there after had more process due to him.

[00:12:46] Speaker 00:
He had several other hearings.

[00:12:48] Speaker 00:
He was continuing to look for counsel.

[00:12:51] Speaker 00:
The IJ continued to let him know about his right to counsel and various procedures.

[00:12:57] Speaker 00:
The I.J.

[00:12:58] Speaker 00:
was very patient with him, and there's no evidence that the I.J.

[00:13:02] Speaker 00:
was interrogating or hostile, such as the I.J.

[00:13:06] Speaker 00:
and Montes Lopez.

[00:13:08] Speaker 03:
I think the final merits hearing was what, the eighth hearing?

[00:13:12] Speaker 00:
Yes, yes it was.

[00:13:14] Speaker 00:
And counsel finally appeared for petitioner at the seventh hearing.

[00:13:19] Speaker 00:
And it was at that hearing that she requested more time.

[00:13:23] Speaker 00:
And I believe it was also at that hearing that the judge said that he would give more time for attorney preparation for the CAT application, for the asylum application.

[00:13:33] Speaker 00:
And she ended up having, I think, two months to prepare before the October merits hearing.

[00:13:40] Speaker 00:
And so I just, I feel like under, even under ARRI fee bar, the court held that the petitioner there was not denied the right to counsel when the IJ had the petitioner proceed pro se at a merits hearing.

[00:13:54] Speaker 00:
And here we're talking about an earlier proceeding.

[00:13:58] Speaker 00:
Also what hasn't been mentioned is that nothing prevented counsel from challenging removability once he had retained that counsel.

[00:14:07] Speaker 00:
Counsel could have moved to withdraw the pleadings.

[00:14:10] Speaker 00:
And in fact, counsel did argue against finding his crime to be particularly serious in pre-hearing briefing, but conceded the ineligibility for asylum.

[00:14:23] Speaker 00:
So there was ample opportunity for his eventual attorney to raise the issues of remittability and his conviction.

[00:14:34] Speaker 00:
And so ultimately, petitioner was not denied a full and fair hearing.

[00:14:41] Speaker 00:
The IJ explained his right to counsel again, numerously, and explained procedures.

[00:14:47] Speaker 00:
Now I'll move to the remand denial issue.

[00:14:51] Speaker 00:
So Petitioner didn't challenge the actual remand denial in their opening briefs.

[00:14:57] Speaker 00:
So our first argument is that it's technically waived.

[00:15:00] Speaker 00:
But in any event, the entire last paragraph of the board's decision actually disposes of the remand motion.

[00:15:08] Speaker 00:
And you have to read it in context with the preceding paragraph, which deals with the board's cat denial.

[00:15:17] Speaker 00:
And so in that proceeding paragraph, the board had just finished explaining how the generalized evidence of country conditions was insufficient for cap protection.

[00:15:28] Speaker 00:
And so it didn't need to particularly reference the additional report that was filed with the remand motion because it was already considering in its remand denial in that paragraph the country conditions evidence that had been submitted in the record and that it found unconvincing.

[00:15:46] Speaker 03:
Unconvincing that returnees are often tortured or arrested upon their return to El Salvador?

[00:15:55] Speaker 00:
I think, well, I mean, I guess more precisely unconvincing that it showed any particularized risk or individualized risk of harm.

[00:16:03] Speaker 03:
Does the country condition say that everybody returned from the U.S.

[00:16:07] Speaker 03:
is detained?

[00:16:08] Speaker 00:
I don't know that it says everybody.

[00:16:10] Speaker 00:
I think it says there's a risk.

[00:16:13] Speaker 00:
But I don't know that the report says every single person.

[00:16:19] Speaker 03:
It doesn't have to be 100%, it just has to be a little over 50%, right?

[00:16:23] Speaker 00:
Sure, sure.

[00:16:24] Speaker 00:
But you also have to look at the rest of the elements and the rest of the evidence here.

[00:16:30] Speaker 00:
And we just, we don't have any evidence that he would be subjected to individualized

[00:16:38] Speaker 00:
Harm that he would be targeted for individualized harm all we have is this generalized evidence Lawful permanent residence since what?

[00:16:50] Speaker 03:
1992 I believe so that's unusual Maybe it's because he went from 1992 to what 2018 before he had his criminal conviction He had been a lawful permanent resident for a long time here in the US and

[00:17:07] Speaker 00:
He had, yes, yes.

[00:17:10] Speaker 00:
And he did have a criminal history prior to the ultimate conviction that rendered him removable, but that's not really relevant for this analysis.

[00:17:20] Speaker 04:
If he had won the right to a new hearing, given the criminal conviction, is there any way he could have, if he will, found a different result, or would it just be more of the same?

[00:17:35] Speaker 00:
I think it would be more of the same because for that particular conviction, I mean, I haven't done a categorical approach analysis of that statute, but I'm fairly certain that no court has found that that conviction does not render someone removable.

[00:17:53] Speaker 00:
And again, no argument.

[00:17:54] Speaker 04:
Let's assume our case law says it meets Taylor and he came right back before the IJ, is there any way that there would have been a different result?

[00:18:05] Speaker 00:
I suppose if it was a question, if it was argued that his conviction did not qualify as a removable conviction, but again that- How could that be?

[00:18:16] Speaker 04:
What would that argument sound like?

[00:18:19] Speaker 04:
What would it be?

[00:18:20] Speaker 00:
Well, I think they would first, what they could have done is file a motion to withdraw the pleadings.

[00:18:25] Speaker 00:
Right.

[00:18:25] Speaker 00:
and then redo the pleadings and then there would be hearing or briefing on removability and it's at that point that they would argue the categorical analysis and look at the record and determine whether his conviction rendered him removable.

[00:18:42] Speaker 04:
So I guess what I'm saying under Taylor is assuming the categorical analysis is not a problem and it's clearly the kind of a crime that warrants removal.

[00:18:52] Speaker 04:
What I struggle with is even if I credit fully what your friend argues, it's just kind of going around in a circle.

[00:19:01] Speaker 04:
He'd be back where he started from but would end up in exactly the same place because that's what the statute requires.

[00:19:06] Speaker 04:
Am I missing something?

[00:19:08] Speaker 00:
I don't think you are.

[00:19:09] Speaker 00:
And his counsel did concede ineligibility for asylum.

[00:19:14] Speaker 00:
And she did argue that it wasn't a particularly serious crime, but she conceded ineligibility for asylum.

[00:19:22] Speaker 00:
She conceded it was an aggravated felony.

[00:19:25] Speaker 00:
And the fact that maybe he doesn't like that that happened, that's a whole different claim.

[00:19:31] Speaker 00:
And that's not a claim that's before this court.

[00:19:39] Speaker 00:
So the other reason why we can see that the whole last paragraph deals, disposes with the motion to remand totally is because the board cites matter of Coelho and says that it determined that petitioner failed to show any of his evidence would change the outcome of the proceedings.

[00:20:02] Speaker 00:
And basically it was saying here that it found insufficient evidence

[00:20:07] Speaker 00:
for any relief that he had requested.

[00:20:09] Speaker 00:
And again, that's guided by the previous paragraph dealing with the CAC relief and the country conditions evidence.

[00:20:19] Speaker 00:
But to the extent there is any error in that remand denial, that error is harmless.

[00:20:27] Speaker 00:
And so the evidence petitioners submitted of one citation to one online article about country conditions in El Salvador is not material to his claim because it didn't show a particularized risk.

[00:20:44] Speaker 00:
And again, the board considered that exact analysis.

[00:20:49] Speaker 00:
And ultimately, it was duplicative.

[00:20:52] Speaker 00:
It was duplicative of the evidence already in the record.

[00:20:55] Speaker 00:
And that article simply doesn't move the needle on the torture analysis.

[00:21:03] Speaker 00:
And also, I'd like to note that with respect to the denial of cat deferral, we have to look at whether,

[00:21:15] Speaker 00:
whether the record does not compel reversal, and here the record does not compel reversal.

[00:21:21] Speaker 00:
The board affirmed the IJ in his decision that Petitioner was not tortured in the past.

[00:21:27] Speaker 00:
He presented a speculative claim of fear in El Salvador of unnamed individuals.

[00:21:35] Speaker 00:
His fear was patently lacking in state action, and the board affirmed... Well, his basis was what he had three uncles,

[00:21:44] Speaker 03:
Some of whom were killed, some were imprisoned, all sort of being anti-government protesters.

[00:21:51] Speaker 03:
And he was saying what?

[00:21:52] Speaker 03:
Because he's a nephew, they're likely to single him out?

[00:21:55] Speaker 03:
Is that sort of his argument?

[00:21:58] Speaker 00:
That's how I understand it.

[00:21:59] Speaker 00:
And without more detail, it's hard to determine how those uncles

[00:22:06] Speaker 00:
were connected, if they were connected, targeted together for the same reason.

[00:22:11] Speaker 00:
It looks more like his uncles each suffered unfortunate circumstances.

[00:22:18] Speaker 00:
And so he fears suffering similar unfortunate circumstances that aren't tied to any particular state action.

[00:22:26] Speaker 00:
And also the harm that they suffered has no relation to any facts or harm that he's been threatened with or has suffered.

[00:22:37] Speaker 00:
He simply shows no connection to those activities.

[00:22:41] Speaker 00:
And he hasn't been in El Salvador for decades.

[00:22:45] Speaker 00:
So it just, it's attenuated at best.

[00:22:51] Speaker 00:
I think it's really reaching.

[00:22:53] Speaker 00:
And so again, the board affirmed the conclusion that his fear of generalized crime and violence in El Salvador is not particular to him and was insufficient for Kat.

[00:23:09] Speaker 04:
Did the board conclude or the IJ conclude that the uncles were basically targets of gangs and criminal activity as opposed to governmental involvement?

[00:23:20] Speaker 04:
Or was it, did the government get involved in some way?

[00:23:23] Speaker 04:
Did you say did the board in other words what the fact finder in this case did they conclude that the uncle to the degree they dealt with it at all.

[00:23:33] Speaker 04:
Talk about the harm that they suffered others was it as a result of criminal activities by gangs or was it an allegation that the government was involved directly.

[00:23:42] Speaker 00:
It's, I believe it's a little bit of both.

[00:23:45] Speaker 00:
If you look at the top first paragraph on its CAR 6, the board talks about how respondent said that his, he fears gangs will hurt him and gang members kill people that refuse to pay money.

[00:24:01] Speaker 00:
And then that's also in conjunction with- That's a criminal activity that's not tied to government.

[00:24:07] Speaker 00:
Right, right.

[00:24:08] Speaker 00:
And then he does mention his fear of, I guess, maybe paramilitaries or government officials who may have killed his uncle for something done in the 80s during the Civil War.

[00:24:20] Speaker 00:
And that's about it.

[00:24:26] Speaker 00:
And again, he does have the country conditions evidence, which shows a very unfortunate circumstance in El Salvador.

[00:24:36] Speaker 00:
There's no doubt about that.

[00:24:38] Speaker 00:
But that alone does not show that someone should get cat deferral.

[00:24:43] Speaker 00:
They have to show particularized risk.

[00:24:47] Speaker 04:
That's the big issue here, I gather, is that there was no showing a particularized threat to him or, for that matter, past persecution.

[00:24:57] Speaker 00:
Correct.

[00:24:58] Speaker 00:
Correct.

[00:24:59] Speaker 00:
And again, he's had several bites at the apple now.

[00:25:03] Speaker 00:
He's had several chances to present evidence, to present briefing.

[00:25:08] Speaker 00:
And at the end of the day, the remand motion, all it included was citation to one article.

[00:25:17] Speaker 00:
It didn't include additional evidence particular to him, which it could have and which it should have when you file a motion to remand.

[00:25:25] Speaker 00:
for relief, you're supposed to attach everything that you would provide on remand.

[00:25:30] Speaker 00:
And so that was not done here.

[00:25:33] Speaker 00:
And I think the board found it unconvincing.

[00:25:36] Speaker 00:
And so that's why it dealt with the remand request as it did.

[00:25:43] Speaker 00:
So if there are no further questions.

[00:25:45] Speaker 04:
Other questions by my colleagues?

[00:25:46] Speaker 04:
I think not.

[00:25:47] Speaker 04:
Thank you very much.

[00:25:49] Speaker 04:
All right.

[00:25:50] Speaker 04:
So Ms.

[00:25:50] Speaker 04:
Reese, you've got a little bit of time left.

[00:25:56] Speaker 01:
The motion to remand and the evidence provided about an extreme change in country conditions since his 2020 hearing is separate from the merits of the cat application that was provided during the

[00:26:11] Speaker 01:
the merits hearing.

[00:26:13] Speaker 01:
The government says there's no materiality, there's no showing of evidence.

[00:26:22] Speaker 01:
Mr. Montoya-Gomez submitted a 94 page human rights report that identified deportees are at risk of torture for

[00:26:29] Speaker 01:
from the El Salvador government.

[00:26:31] Speaker 01:
But the board, the language of the remand follows a string site that says prejudice talks about whether the outcome is likely to change and follows that site with the sentence, because he hasn't shown the outcome is likely to change.

[00:26:47] Speaker 04:
I'm not saying that's the standard, is it not, that it would likely change.

[00:26:50] Speaker 01:
No, the standard is based on a motion to remand based on new evidence is whether or not there's a prima facie eligibility for evidence that's material and hadn't been previously and couldn't have been previously presented.

[00:27:04] Speaker 01:
That's the standard.

[00:27:06] Speaker 01:
And the court doesn't address those documents at all, doesn't address materiality, just says... How do you determine the prima facie?

[00:27:16] Speaker 02:
I mean, the underlying standard is greater than 50%, right?

[00:27:19] Speaker 02:
And so if you're going to show a prima facie case that you can meet the underlying standard, is there a discount on that?

[00:27:27] Speaker 01:
There is.

[00:27:28] Speaker 01:
It's a prima facie.

[00:27:29] Speaker 01:
It's a reasonable likelihood.

[00:27:31] Speaker 02:
And... Right, but I think if I was the I.J.

[00:27:34] Speaker 02:
or the BIA sitting there trying to figure out whether or not there was a prima facie, I'd have to say, well, is there a reasonable likelihood that this petitioner can show a greater than 50% chance?

[00:27:44] Speaker 01:
Is that the way they would have to... The board should have done that, but they didn't.

[00:27:47] Speaker 01:
Well, is there a reasonable likelihood that he could meet the standard?

[00:27:51] Speaker 01:
Yes.

[00:27:51] Speaker 02:
And the standard, but so the greater than 50% standard still comes into play even at the prima facie stage, I assume, right?

[00:27:58] Speaker 02:
Because you're trying to figure out if they...

[00:28:00] Speaker 02:
if they can meet that standard.

[00:28:02] Speaker 02:
I mean, if it was 10 percent or 5 percent, it would be easier to show a prima facie case, right?

[00:28:10] Speaker 01:
I think I understand what you're saying and I think I agree.

[00:28:12] Speaker 02:
Well, I guess what I'm getting at is there's been some discussion here about he's relying on country conditions evidence, right?

[00:28:19] Speaker 02:
And the country conditions, we get this in these cases all the time and I think

[00:28:23] Speaker 02:
My colleague Judge Smith was talking about this, but he's relying on this.

[00:28:27] Speaker 02:
But the problem is, well, it may show some bad things happen.

[00:28:30] Speaker 02:
It doesn't show that that happens over 50 percent of the time.

[00:28:34] Speaker 02:
In other words, like every single other, like more often than not, every person that comes back to, that returns, ends up suffering torture or it's equivalent, you know, death or something.

[00:28:44] Speaker 02:
And that's what he would have to be able to show, is his prima facie, that he had, that he would be able to show that.

[00:28:51] Speaker 02:
I'm struggling to see how the BIA erred in saying, yeah, you can't make your prima facie case because this country conditions evidence, it might be bad, 25% would be really bad, but 25% wouldn't meet his standard, right?

[00:29:05] Speaker 02:
So.

[00:29:05] Speaker 01:
But the BIA never said that.

[00:29:07] Speaker 01:
The BIA never talked about.

[00:29:09] Speaker 02:
It just said he didn't meet his prima facie case.

[00:29:10] Speaker 01:
They didn't.

[00:29:11] Speaker 01:
They just said he couldn't show the outcome of the proceedings would change.

[00:29:16] Speaker 01:
That's all they said.

[00:29:16] Speaker 02:
Well, but for the outcomes of the proceedings to change, he would have to

[00:29:20] Speaker 01:
be able to

[00:29:37] Speaker 01:
It doesn't happen here.

[00:29:39] Speaker 01:
The change of the outcome of proceedings may be for prejudice, may be for a discretionary application, but when you're providing new evidence for a non-discretionary application, there has to be an assessment.

[00:29:52] Speaker 01:
And I don't think that this court is permitted to assume that saying you didn't show the outcome of the proceedings would change means that the court has said,

[00:30:03] Speaker 01:
I'm analyzing Kat and have determined you haven't shown prima facie eligibility based on new evidence.

[00:30:08] Speaker 04:
But you're talking magic words, are you not?

[00:30:10] Speaker 04:
I mean, the reality is, I question whether this is all new evidence anyway.

[00:30:14] Speaker 04:
This has been going on, I've been in the court almost 20 years.

[00:30:17] Speaker 04:
This is not new.

[00:30:18] Speaker 01:
It's been going on and on and on.

[00:30:22] Speaker 04:
You say there was some new stuff.

[00:30:23] Speaker 04:
Maybe there was.

[00:30:24] Speaker 01:
But the state of exception, I think the court could take judicial notice that that happened in 2022 after the merits hearing.

[00:30:30] Speaker 04:
But the reality is this is a continual pattern of allegations of abuse and returnees and so on.

[00:30:36] Speaker 04:
But in this case, as my colleague has pointed out, the reality is, unless you're using magic words, what the BIA looks at is, okay, is there something here that would be particularized to this petitioner

[00:30:53] Speaker 04:
that would change the result, whether it's for prejudice.

[00:30:56] Speaker 04:
They concluded no.

[00:30:58] Speaker 01:
But they didn't conclude no.

[00:30:59] Speaker 04:
Well, you said not.

[00:31:00] Speaker 04:
But I'm just saying that's magic words.

[00:31:01] Speaker 01:
No, but the law requires specific cogent reasons to deny.

[00:31:07] Speaker 01:
And that is not the case here.

[00:31:09] Speaker 01:
The outcome would be different.

[00:31:11] Speaker 01:
Is that due process?

[00:31:13] Speaker 01:
Is that, you know, what is the court talking about?

[00:31:15] Speaker 01:
So I think that's why the question came in.

[00:31:17] Speaker 04:
We have your position.

[00:31:17] Speaker 04:
We thank you both for your argument.

[00:31:19] Speaker 04:
Any other questions by my colleague?

[00:31:21] Speaker 04:
I think not.

[00:31:21] Speaker 04:
We thank counsel for your argument.

[00:31:23] Speaker 04:
The case just argued is submitted.

[00:31:25] Speaker 04:
The court stands adjourned both for today tomorrow and the week.

[00:31:29] Speaker 00:
Thank you All rise This court for this session stands adjourned