[00:00:02] Speaker 01:
Good morning.

[00:00:03] Speaker 01:
Welcome to the Ninth Circuit.

[00:00:05] Speaker 01:
My colleague Judge Graber and I would like to welcome and thank Judge Lefkoe, who is sitting with us for several days this week.

[00:00:12] Speaker 01:
It would be very hard for us to do our job unless we have people like Judge Lefkoe who are willing to sit with the Ninth Circuit.

[00:00:18] Speaker 01:
So thank you.

[00:00:20] Speaker 01:
We have several cases that have been submitted on the briefs.

[00:00:23] Speaker 01:
Gonzalez Loera versus United States is submitted on the briefs.

[00:00:27] Speaker 01:
Wathagama of the United States is submitted on the briefs.

[00:00:31] Speaker 01:
yamene versus toolbox is submitted on the briefs.

[00:00:34] Speaker 01:
We have three cases set for argument today.

[00:00:37] Speaker 01:
The first one is Nava Patrizio versus Garland.

[00:00:42] Speaker 01:
And I believe the Council for the Government is appearing by video.

[00:00:47] Speaker 01:
Yes.

[00:00:48] Speaker 03:
But I don't see them.

[00:00:53] Speaker 00:
Yes, Your Honor.

[00:00:55] Speaker 00:
Great.

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

[00:00:56] Speaker 01:
Okay.

[00:00:56] Speaker 01:
Can you hear us okay?

[00:00:58] Speaker 00:
Yes, very well.

[00:00:59] Speaker 00:
Thank you.

[00:00:59] Speaker 00:
All right.

[00:01:00] Speaker 01:
So we'll hear from petitioner.

[00:01:08] Speaker 02:
Good morning, may it please the court.

[00:01:10] Speaker 02:
Siobhan Ayala on behalf of Mr. Navapatricio.

[00:01:14] Speaker 02:
We ask that the court grant this petition for review and send the case back to the immigration judge for further development of the record.

[00:01:24] Speaker 02:
The immigration judge engaged in a

[00:01:29] Speaker 02:
a faulty review of the underlying claim.

[00:01:33] Speaker 02:
The judge was confused about his role in what he was doing.

[00:01:40] Speaker 02:
He didn't conduct a de novo review.

[00:01:42] Speaker 02:
He said the court will only review the testimony provided to the asylum office.

[00:01:48] Speaker 01:
But then he proceeded to do something that's totally inconsistent with that.

[00:01:54] Speaker 01:
He talked to your client.

[00:01:56] Speaker 01:
He asked questions of your client.

[00:01:57] Speaker 01:
He asked your client.

[00:01:58] Speaker 01:
whether he had anything to add.

[00:02:00] Speaker 01:
He asked your client if he had been truthful and complete to the asylum officer.

[00:02:05] Speaker 01:
So I agree.

[00:02:07] Speaker 01:
And I'm going to be asking your friend about that remark, but the judge didn't proceed that way.

[00:02:14] Speaker 02:
Well, your honor, he didn't ask the petitioner very much about, it was a very short hearing.

[00:02:23] Speaker 02:
And he said, for instance, the petitioner said,

[00:02:28] Speaker 02:
I don't have a lawyer, but I plan to get a lawyer and I also have proof with me of what happened and the judge doesn't even respond to that.

[00:02:35] Speaker 02:
He doesn't even ask what kind of proof he has.

[00:02:40] Speaker 03:
This is outside the record, but I'm curious as to whether the material that he had went beyond what he told the asylum officer.

[00:02:51] Speaker 03:
Do we have any way to know that?

[00:02:53] Speaker 02:
Yes, it was.

[00:02:55] Speaker 02:
It was a death certificate of his uncle.

[00:02:58] Speaker 02:
It was articles about the town.

[00:03:00] Speaker 02:
And then it was also that letter from the prosecutor from that town.

[00:03:06] Speaker 01:
So why that's basically the city attorney.

[00:03:10] Speaker 01:
And he told the asylum officer that that went to harm in general, not his specific case.

[00:03:16] Speaker 01:
So was that letter?

[00:03:18] Speaker 02:
Yes, it was that letter.

[00:03:19] Speaker 02:
Additionally, he did testify.

[00:03:22] Speaker 02:
It's at AR 30.

[00:03:23] Speaker 02:
that the police weren't doing much in his town, that it was corrupt.

[00:03:27] Speaker 02:
So all of that goes to whether or not he could potentially have a claim under protection of the convention against torture.

[00:03:34] Speaker 01:
So for those other documents beside the municipal council letter, why didn't he give them to the asylum officer?

[00:03:40] Speaker 02:
Well, he didn't have them at the time, my understanding is at the asylum office level.

[00:03:47] Speaker 02:
He tried to give the document from the prosecutor's office to the asylum office.

[00:03:53] Speaker 02:
However, the asylum office didn't even accept it.

[00:03:56] Speaker 02:
The asylum, the reasonable fear interview is conducted by phone.

[00:04:02] Speaker 02:
So it's not even possible for him to hand that stuff over to the asylum office.

[00:04:11] Speaker 01:
And you're saying that he tried to give it to the asylum office and they refused to take it?

[00:04:18] Speaker 02:
Yes, he did mention it during the interview.

[00:04:20] Speaker 01:
Well, he mentioned the council letter.

[00:04:22] Speaker 01:
He didn't mention the other thing.

[00:04:23] Speaker 02:
He didn't mention the other evidence.

[00:04:25] Speaker 02:
I'm not sure if he had that other evidence at the time of the asylum office interview, but the courts have said that if there is more evidence, then the immigration judge has the authority to

[00:04:42] Speaker 02:
consider that evidence.

[00:04:43] Speaker 02:
And if the evidence is probative, it's an abuse of discretion not to consider it.

[00:04:48] Speaker 02:
Another issue, I think, is that he wasn't asked if he wanted a continuance for an attorney.

[00:04:54] Speaker 02:
The hearing with the immigration judge was only four days after he got the decision from the asylum office.

[00:05:05] Speaker 02:
And the judge doesn't ask him even if he wants a continuance.

[00:05:08] Speaker 02:
And he does say he wants an attorney.

[00:05:11] Speaker 02:
importantly, the IJ decision, just on its face, it doesn't even explain what possible grounds were considered and it doesn't mention the protection of the convention against torture.

[00:05:25] Speaker 01:
Is the IJ required to do that?

[00:05:27] Speaker 01:
Isn't it perfectly appropriate for the IJ to say, I've looked at what the asylum officer said and I agree with what the asylum officer said and why?

[00:05:39] Speaker 02:
Well, the only, there was about four words that the judge said in his decision.

[00:05:44] Speaker 02:
It said no PSG or protected ground.

[00:05:46] Speaker 02:
And so, um, it didn't even mention, like I said, protection of the convention against torture.

[00:05:52] Speaker 02:
This, uh, decision is subject to review.

[00:05:55] Speaker 03:
So I think implicitly would not include, uh, uh, cat relief because, uh, protected ground is not required for cat relief.

[00:06:07] Speaker 03:
Right.

[00:06:08] Speaker 03:
or a particular social group.

[00:06:10] Speaker 03:
Exactly.

[00:06:11] Speaker 01:
Are there magic words that the asylum officer has to use?

[00:06:20] Speaker 02:
You mean the judge?

[00:06:21] Speaker 01:
Yes, I'm sorry.

[00:06:22] Speaker 01:
The judge.

[00:06:22] Speaker 02:
Yeah.

[00:06:23] Speaker 02:
Um, well, I mean, just to let the court know that he considered protection under the convention against torture.

[00:06:30] Speaker 02:
I mean, it's not even listed as something that he considered.

[00:06:33] Speaker 01:
Well, but it says here at

[00:06:35] Speaker 01:
Page five of the transcript, I guess that's nine.

[00:06:39] Speaker 01:
My job is to review what the asylum officer did and determine whether or not their decision was correct.

[00:06:45] Speaker 01:
They appear to have done a diligent job.

[00:06:48] Speaker 01:
I find they reached the proper conclusion in the context of controlling laws for the reasons articulated.

[00:06:55] Speaker 01:
Is there any case that says the judge is required to do more than that?

[00:07:01] Speaker 02:
Yes, for instance, in Ojeda,

[00:07:05] Speaker 02:
Um, the court found that the judge, it was an abuse of discretion for the judge not to consider new evidence that was brought up at the, it was a non-exercise of discretion because similar to here, the judge seemed to think that no new matters could be brought up.

[00:07:27] Speaker 03:
Exactly.

[00:07:27] Speaker 03:
At least it, you know,

[00:07:30] Speaker 03:
Part of what I, maybe I should save this for opposing counsel, but it seems to me that when there's a pro se litigant, when someone says, I'm only going to review what you gave to the asylum officer, I mean, I wouldn't try to put in anything else.

[00:07:48] Speaker 02:
Right.

[00:07:48] Speaker 02:
Exactly.

[00:07:49] Speaker 02:
I mean, the judge could have asked prudent questions about the fact that he had a family member that was murdered.

[00:07:56] Speaker 02:
The asylum office didn't even ask follow up questions.

[00:08:00] Speaker 02:
He said, the asylum office asked, do you think you are in danger because of your, I'm paraphrasing here, because of your family relationship.

[00:08:09] Speaker 02:
And he said, I'm not sure.

[00:08:11] Speaker 02:
So the standard is not 100% that he be sure, but it is 50%.

[00:08:19] Speaker 02:
And the asylum office, they didn't ask, do you have any physical

[00:08:24] Speaker 02:
resemblance to your uncle, how close were you to your uncle, was your uncle well known in the town?

[00:08:30] Speaker 02:
So there's lots of questions that are left for a full merit hearing that he should be given the opportunity to present, which he wasn't.

[00:08:40] Speaker 02:
So I have two and a half minutes left.

[00:08:43] Speaker 02:
I just wanted to reserve that for rebuttal.

[00:08:45] Speaker 01:
That's fine.

[00:08:46] Speaker 01:
Okay, thank you.

[00:08:47] Speaker 01:
We'll hear from the government.

[00:08:48] Speaker 02:
Okay.

[00:08:53] Speaker 00:
May it please the court, Brooke Maurer for the attorney general.

[00:08:57] Speaker 00:
I wanted to start and address specifically the proffering of evidence that petitioner, if you notice in both the opening brief and the reply brief, petitioner failed to demonstrate or identify any of the evidence that she had intended to present.

[00:09:11] Speaker 00:
And for the first time before the court indicated there was a death certificate and articles, we know why does that matter?

[00:09:18] Speaker 03:
Because the petitioner said,

[00:09:21] Speaker 03:
I have proof with me.

[00:09:22] Speaker 03:
I have more information with me.

[00:09:24] Speaker 03:
And it seems to me that this was just simply rebuffed without any, you know, is it new?

[00:09:35] Speaker 03:
Is it different?

[00:09:36] Speaker 03:
Is it important?

[00:09:37] Speaker 03:
Nothing.

[00:09:38] Speaker 03:
But I read what the IJ said as reasonably understood to mean I'm not going to look at anything that the asylum officer didn't already look at.

[00:09:51] Speaker 03:
So why would a pro se petitioner argue with that?

[00:09:57] Speaker 03:
I mean, know that they're supposed to make a record of what they have with them.

[00:10:04] Speaker 00:
I think that it's that he was like blocked from putting anything there.

[00:10:07] Speaker 00:
There's nothing in the record that showed that he even tried.

[00:10:10] Speaker 00:
And I understand what you're saying.

[00:10:11] Speaker 00:
And the asylum officer even identified and addressed the statement from the council in the municipality where he lived, stating that it was a document that was created that basically fortified the statements that he was making, that there was, in fact, the Los Ordelos gang.

[00:10:27] Speaker 00:
It was, in fact, like in the town.

[00:10:29] Speaker 00:
And they took that as credible, just as they took his testimony as being credible.

[00:10:33] Speaker 01:
So I don't, I'm sorry, you can go ahead and finish your answer.

[00:10:37] Speaker 00:
No, no.

[00:10:37] Speaker 00:
And I just said, I mean, it's outside of, it would be in augmentation, but the same as the same credible testimony that he was providing to the asylum officer and to the immigration judge.

[00:10:48] Speaker 01:
So I, I'm concerned about the statement by, uh, the IJ, uh, at AR seven, while the court has a regional review over the side, the asylum officer's decision.

[00:11:00] Speaker 01:
The court will only review the testimony provided to the asylum officer in reaching his or her decision.

[00:11:07] Speaker 01:
Now, that statement is an incorrect statement of what the law requires.

[00:11:11] Speaker 01:
Yes?

[00:11:12] Speaker 00:
That is correct.

[00:11:12] Speaker 00:
I believe that that was not properly stated.

[00:11:15] Speaker 00:
And then the immigration judge clearly went forward and addressed everything that was presented and then asked Petitioner if there were additional things that he wanted to submit

[00:11:26] Speaker 00:
in addition to what he had stated to the asylum officer.

[00:11:28] Speaker 01:
Well, I mean, I agree with you that what he did was inconsistent with his statement, but with a pro se petitioner, with this incorrect statement of law, why shouldn't we send it back to allow the petitioner to have a hearing untainted by this possible legal error?

[00:11:54] Speaker 00:
Well, I believe that what the asylum officer did in like his analysis and the claim that was presented for them was far sufficient and that sending it back would, you know, not present any type of different.

[00:12:04] Speaker 01:
No, but my, my concern is the legal error that is inherent, which I think you've candidly said was a wrong statement at page AR seven.

[00:12:14] Speaker 01:
And for a pro se then respondent, why wouldn't the respondent have taken this

[00:12:23] Speaker 01:
at its face, that the IJ is saying, all I can look at, all I, the IJ, can look at is what you told or gave the asylum officer.

[00:12:33] Speaker 01:
And so if he had this death certificate or something else with him, a pro se litigant could have reasonably assumed, there's no point in my saying anything other than I have something because he's already told me he wouldn't look at it.

[00:12:44] Speaker 00:
I believe the government doesn't take the view that this was foreclosed because he kept repeatedly asking him if there is anything in addition that he would present.

[00:12:53] Speaker 03:
But that's contradictory.

[00:12:54] Speaker 03:
At least it's murky.

[00:12:56] Speaker 03:
And it certainly seems that it's a little bit like a lawyer who's told definitively, I will not accept this evidence.

[00:13:07] Speaker 03:
And usually, you drop it.

[00:13:09] Speaker 03:
You can raise it on appeal, but you don't keep asking the same thing.

[00:13:13] Speaker 03:
I have another concern, too, and that is the immigration judge's order at AR1, I believe.

[00:13:23] Speaker 03:
And it says the immigration court concurs in the DHS reasonable fear determination because no protected ground or PSG meaning particular social group.

[00:13:34] Speaker 03:
Um, that ruling on its face can't be about a potential cat claim because it doesn't require either a protected group or a PSG.

[00:13:49] Speaker 03:
So why isn't this,

[00:13:51] Speaker 03:
an incomplete order on its face because it doesn't demonstrate that cat relief was considered.

[00:14:02] Speaker 00:
Even full reading of it, if you look at it, it says, you know, obviously it says he's not been persecuted on the basis of a protected ground or a reason.

[00:14:08] Speaker 00:
And then it says, comma, or a reasonable possibility that the non-citizen would be tortured in the country of removal.

[00:14:13] Speaker 01:
Doesn't, doesn't that what you just read?

[00:14:16] Speaker 01:
Doesn't that mean no cat?

[00:14:18] Speaker 00:
Yes, that would be correct.

[00:14:19] Speaker 00:
So that would be an extension.

[00:14:21] Speaker 00:
It would be both.

[00:14:22] Speaker 01:
And he checked both boxes, right?

[00:14:24] Speaker 01:
I mean, he checked the box.

[00:14:26] Speaker 00:
Yes, he checked the order that basically stated that he has not established that first box.

[00:14:30] Speaker 00:
And then that second one was basically the on account of determination that there wasn't anything for withholding with removal.

[00:14:42] Speaker 00:
If there's no further questions, the government can rest on its briefs.

[00:14:46] Speaker 01:
All right, thank you.

[00:14:47] Speaker 01:
You have some time left for rebuttal.

[00:14:52] Speaker 02:
We would just continue to argue that even though the box was checked in the order, that it doesn't adequately consider what happened.

[00:15:01] Speaker 02:
And I understand the court's points about the fact that there was a conversation.

[00:15:08] Speaker 02:
However, the immigration judge, if you read his summary of the events, it is

[00:15:15] Speaker 02:
Word for word from the reasonable fear interview.

[00:15:19] Speaker 02:
So he doesn't actually get his information from the response or from the petitioner.

[00:15:25] Speaker 02:
He gets it from the reasonable fear interview.

[00:15:30] Speaker 01:
Well, I mean, isn't that just because he says he's heard you, he knows he said, I heard you.

[00:15:35] Speaker 01:
I know that you have a fear, but I think the asylum officer got it right.

[00:15:41] Speaker 01:
And then he discusses some of the reasons, right?

[00:15:43] Speaker 02:
Well, the reasons, right?

[00:15:44] Speaker 02:
He just basically gives a summary, the summary that the asylum officer gave.

[00:15:48] Speaker 02:
And so he repeats the summary from the asylum officer.

[00:15:51] Speaker 01:
But isn't that what he's supposed to do?

[00:15:53] Speaker 01:
Yes, de novo review.

[00:15:54] Speaker 01:
But if he thinks the asylum officer got it right, isn't it OK to say, I think the asylum officer got it right?

[00:16:02] Speaker 02:
How would he know that the asylum officer got it right without having a meaningful conversation with the petitioner?

[00:16:10] Speaker 02:
which he doesn't really engage in.

[00:16:11] Speaker 02:
Another issue is in the summary that the immigration judge does, which he says his uncle was murdered, but he doesn't say that the petitioner is afraid because of the uncle being murdered, and the petitioner is

[00:16:40] Speaker 02:
is clearly afraid because the uncle was murdered so.

[00:16:43] Speaker 02:
If that's that I just don't have any more.

[00:16:47] Speaker 01:
All right.

[00:16:48] Speaker 01:
Thank you.

[00:16:48] Speaker 01:
We thank counsel for their arguments and the case just argued is submitted.