[00:00:00] Speaker 03: The United States Court of Appeals for the Ninth Circuit is now in session. [00:00:07] Speaker 01: Good morning, ladies and gentlemen. [00:00:09] Speaker 01: Welcome to the Ninth Circuit. [00:00:11] Speaker 01: I'm not sure who is exactly there, so I'm making it a broad description. [00:00:16] Speaker 01: Before we go into our oral arguments, we have three cases that are submitted, which I want to take care of at this point. [00:00:24] Speaker 01: They are Lobo de Quintanilla versus Bondi, [00:00:28] Speaker 01: Phillips versus B. Segnano and Unimax Communications LLC versus T-Mobile USA, Inc. [00:00:38] Speaker 01: With that, we'll now hear argument in our first argued case of the day, which is Yesenia Oliva Molina versus Bondi. [00:00:46] Speaker 01: And I believe that Mr. Costa, you're up first. [00:00:51] Speaker 01: Please proceed. [00:00:53] Speaker 00: Thank you, Your Honor. [00:00:54] Speaker 00: Good morning. [00:00:55] Speaker 00: May it please the Court. [00:00:56] Speaker 00: My name is Nicholas Costa, and I represent the Petitioners. [00:00:59] Speaker 00: I would like to reserve three minutes for rebuttal. [00:01:01] Speaker 00: We'll try to help you, but keep your eye on the clock. [00:01:04] Speaker 00: I'm sorry? [00:01:04] Speaker 00: I said, we'll try to help you, but keep your eye on the clock. [00:01:07] Speaker 00: OK. [00:01:08] Speaker 00: Sure thing. [00:01:08] Speaker 00: Thank you. [00:01:09] Speaker 00: Your Honors, our focus today is narrow. [00:01:12] Speaker 00: This case must be decided under the law that now governs, not the law that existed when the agency ruled. [00:01:18] Speaker 00: Intervening legal developments have displaced the framework the Board applied, and under [00:01:22] Speaker 00: INSV Ventura, the agency must apply the current governing standards in the first instance because the denial rests on a superseded legal framework that has never been reassessed under controlling law. [00:01:32] Speaker 00: Remand is required. [00:01:34] Speaker 00: And importantly, Your Honors, that means this court should not reach nexus now because the legal foundation of the denial has been displaced. [00:01:41] Speaker 00: The government is urging this court to affirm a decision rooted in obsolete law, precisely what Ventura forbids. [00:01:48] Speaker 00: First, the government's position effectively asks the court to affirm the denial under the family-based, particular social group framework articulated in matter of LEA 2. [00:01:57] Speaker 00: But LEA 2 is expressly grounded in Chevron deference, on that premise that the agency's interpretation was entitled to controlling weight. [00:02:05] Speaker 00: When the Supreme Court overruled Chevron and Loper-Brite, the Interpretive Foundation for LEA 2 was removed. [00:02:11] Speaker 00: Under Ventura, this court cannot affirm a decision that rests on a legal framework the Supreme Court has now rejected. [00:02:18] Speaker 00: Second, the government framework for family-based PSGs has since been restored in matter of RERM and JDRM. [00:02:25] Speaker 00: In that case, the Attorney General chose to retain the outcome of LEA 2, but only after independently re-evaluating the statute without Chevron. [00:02:34] Speaker 00: The board's decision here predates that Chevron free analysis and never applied it to this family. [00:02:39] Speaker 00: The government responds that Nexus law has not changed, but that misses the sequencing. [00:02:44] Speaker 00: Nexus is step two. [00:02:46] Speaker 00: The agency must first determine PSG cognizability under the restored independent judgment framework. [00:02:52] Speaker 00: That step has never been performed by the BIA in this case. [00:02:55] Speaker 00: Ventura requires that the board conduct that analysis first. [00:02:59] Speaker 00: And RERM makes clear that this reassessment is not optional. [00:03:04] Speaker 00: The attorney general herself recognized that LEA2 relied on Chevron to find the statute ambiguous. [00:03:09] Speaker 00: And only after reevaluating the INA, [00:03:11] Speaker 00: Did she adopt that reading as the best interpretation? [00:03:15] Speaker 00: The decision below never went through that required Chevron free inquiry. [00:03:18] Speaker 00: Under Ventura, that ends the matter. [00:03:21] Speaker 00: The board must apply the correct post-loan standard. [00:03:25] Speaker 04: I thought that here that the agency assumed that the particular social group was cognizable. [00:03:34] Speaker 04: So I guess I'm struggling to understand how this [00:03:40] Speaker 04: this new case really has any bearing here. [00:03:45] Speaker 00: Thank you, Your Honor. [00:03:47] Speaker 00: Assumption is not analysis. [00:03:49] Speaker 00: Ventura requires the agency to make the actual legal determination, not skip it. [00:03:54] Speaker 00: PSG Cognizability informs the Nexus analysis, an assumption made under a now abandoned interpretive methodology that cannot substitute for a required legal finding. [00:04:06] Speaker 00: add the fact that we have, in addition to the change in law, there has been a material change in facts, both independently requires remand. [00:04:14] Speaker 00: I mean, together they both, they make remand unavoidable. [00:04:18] Speaker 00: The board's prior non-political motive finding must be revisited in light of new official evidence that did not exist when it ruled. [00:04:26] Speaker 00: The United States has since designated the cartel network associated with Los Polones as a foreign terrorist organization or FTO. [00:04:34] Speaker 00: The government has taken the position that this designation is irrelevant because it reflects only the US government's view. [00:04:40] Speaker 00: Respectfully, that misunderstands the point. [00:04:43] Speaker 00: We are not arguing that the FTO designation retroactively created a political opinion for the family. [00:04:49] Speaker 00: We are arguing it materially changes the political characterization of the persecutor, and that directly affects how motive must be assessed. [00:04:57] Speaker 00: An FTO is, by definition, an entity whose operations implicate political power, state authority, and public order. [00:05:05] Speaker 00: Opposition to such an entity carries a distinct political dimension, which is the context required for an imputed political opinion under Borja. [00:05:13] Speaker 00: This new classification is material evidence. [00:05:16] Speaker 00: The board is required to consider. [00:05:18] Speaker 01: Under counsel, with respect, you're arguing the merits of the case, basically. [00:05:26] Speaker 01: I gather that your primary point is that in light of the fact from your perspective that the BIA did not specifically address the impact of Chevron, that that's the big issue, that it would be sent back to evaluate some of the merits points that you're making. [00:05:43] Speaker 01: Is that correct? [00:05:45] Speaker 00: That plus this new material evidence. [00:05:48] Speaker 01: Oh, but that's the new material that you're talking about is basically merits based, right? [00:05:52] Speaker 01: Correct, your honor. [00:05:54] Speaker ?: Okay. [00:05:55] Speaker 00: So, yeah, exactly that. [00:05:57] Speaker 00: The agency must apply its expertise to new significant evidence in the first instance. [00:06:01] Speaker 00: Ventura reinforces that requirement here. [00:06:04] Speaker 01: Now, the government's position- And what about Judge Thomas's point that the BIA assumed your point about Nexus and the PSG? [00:06:18] Speaker 01: We've many times in our cases, if you will, sidestepped [00:06:25] Speaker 01: other issues by basically rendering them irrelevant because there's a decision already. [00:06:31] Speaker 01: And since that was in your favor, [00:06:34] Speaker 01: Why is Judge Chomsky's point not correct? [00:06:37] Speaker 00: Because the Nexus analysis is inseparable from how the PSG is conceived under the correct legal standard. [00:06:44] Speaker 00: The legal framework shapes the lens through which motive is evaluated. [00:06:48] Speaker 00: When the legal standard governing PSG shifts, the Nexus evaluation must be reassessed as well. [00:06:53] Speaker 00: The board's Nexus finding was predicated on a superseded framework and must be reevaluated under current law. [00:06:59] Speaker 00: It could be that we get a similar or the same outcome. [00:07:04] Speaker 00: But the framework has changed and so we need to look at that first. [00:07:09] Speaker 00: The government's position is that any procedural error was harmless and that the new evidence is immaterial. [00:07:16] Speaker 00: But that argument assumes the board's mean to an end motive finding was correct. [00:07:20] Speaker 00: The record shows more than information gathering in this case. [00:07:23] Speaker 00: Threats to kill the entire family, the violent beating of the father. [00:07:27] Speaker 00: Those reflect retaliatory and punitive acts against the family as a unit. [00:07:31] Speaker 00: The agency has never evaluated those facts under the correct legal standard, nor with the new FTO evidence. [00:07:36] Speaker 00: And to be clear, we are not asking this court to decide nexus today. [00:07:40] Speaker 00: The point is narrower because the agency applied superseded law and lacked the chance to consider material and new evidence. [00:07:46] Speaker 00: Its nexus finding cannot be treated as reliable. [00:07:48] Speaker 00: That makes the error not harmless and remand is required. [00:07:52] Speaker 00: Before I reserve time, one final point on efficiency. [00:07:57] Speaker 00: A remand is not only legally required, it is the most practical and efficient resolution here. [00:08:02] Speaker 00: Petitioners are now eligible to adjust status based on approved family-based petitions. [00:08:07] Speaker 00: If the agency grants that relief, this case reaches a permanent lawful resolution without further court involvement. [00:08:15] Speaker 00: This would be a targeted remand, Your Honors, limited to applying current law, new material facts, and considering the relief now available. [00:08:22] Speaker 00: That approach both honors Ventura and promotes judicial economy. [00:08:26] Speaker 00: Remand here is not a detour. [00:08:28] Speaker 00: It is the most efficient, fair, and legally proper outcome. [00:08:32] Speaker 00: It allows the agency to do what only the agency can do, apply the correct standards first, and consider the changed circumstances. [00:08:38] Speaker 00: For these reasons, we respectfully ask the Court to grant the motion to remand, vacate the Board's decision, and return the case [00:08:44] Speaker 00: for reconsideration under the correct and current law. [00:08:48] Speaker 00: I will reserve the remainder. [00:08:49] Speaker 00: Okay, very well. [00:08:50] Speaker 01: Thank you. [00:08:51] Speaker 01: All right. [00:08:52] Speaker 01: Next we'll hear from Mr. Tucker from the DOJ. [00:09:02] Speaker 02: Thank you. [00:09:02] Speaker 02: May it please the court, Colin Tucker for the Attorney General. [00:09:06] Speaker 02: With respect to asylum and withholding of removal, the government strongly disagrees that read and is required here. [00:09:12] Speaker 02: Each of petitioners claim straightforwardly fails the nexus requirement. [00:09:16] Speaker 02: The child petitioner cannot show the harm he fears was or will be inflicted on account of political opinion. [00:09:21] Speaker 02: The parent petitioners cannot show the harm they fear was or will be inflicted on account of family membership. [00:09:26] Speaker 02: Regarding the recent decision in JDRM, which reverts to LEA2. [00:09:31] Speaker 03: Council, with regard to family membership, what about the factual findings that Mr. Costa articulated, which is that there were threats to the family unit as a whole, not merely attempts to find the son. [00:09:49] Speaker 02: But Your Honor, I disagree with that characterization of facts, to be blunt about it. [00:09:53] Speaker 02: I believe that there were threats directed to the mother and the father by a gang that made very clear throughout the entirety of its interactions with them that its interest, its sole interest, was in finding the son. [00:10:06] Speaker 02: There's no evidence in this case of animus towards the family per se. [00:10:10] Speaker 02: And we know that from the fact that no other family members were ever targeted, from the fact that the gang, in all of its interactions, stated only that it was interested in recruiting the son. [00:10:19] Speaker 03: I thought that after the father said that the son was no longer there, I thought they said, we know where you live, and we're going to come and kill all of you. [00:10:29] Speaker 02: Well, I think that what they said was that they intended to check and verify whether that was true, that the son was no longer living in that location, Your Honor. [00:10:36] Speaker 02: And what they then did after that is leave the father to himself. [00:10:40] Speaker 02: They never again interacted with him in any way, presumably because they confirmed that the son was no longer there. [00:10:45] Speaker 02: And for that reason, they no longer had any interest in the family members. [00:10:48] Speaker 02: Again, that speaks to the fact that the gang was interested solely in the son and had no animus per se with the family. [00:10:55] Speaker 01: Counsel, you, like your friend on the other side, essentially gone to the merits, but your opponent raised the Chevron issue, claiming that the BIA simply didn't address the Chevron impact on this case. [00:11:12] Speaker 01: What's the government's position on that? [00:11:15] Speaker 02: The government's position, Your Honor, is that Chevron, Chevron itself is really neither here nor there. [00:11:19] Speaker 01: We know that in LEA... We know it's here because we've got it. [00:11:24] Speaker 02: That's fair, Your Honor. [00:11:25] Speaker 02: It is in that sense here, I suppose. [00:11:27] Speaker 02: I guess more accurately stated, the government's position is that Chevron considerations don't warrant remand here because the Nexus analysis has never been questioned from day one. [00:11:39] Speaker 02: It was set forth in LEA1, LEA2, [00:11:42] Speaker 02: accepted LEA 1. [00:11:45] Speaker 02: The third LEA reverted us to the first LEA and JDRM, by taking us back to LEA 2, effectively adopts the nexus analysis from LEA 1. [00:11:57] Speaker 02: I also want to address very quickly, I agree with I think two separate judges now [00:12:03] Speaker 02: indicated that cognizability of a particular social group and nexus are two distinct issues. [00:12:09] Speaker 02: Both the agency and this court have routinely bypassed one of those issues in order to rule solely on the other. [00:12:15] Speaker 02: I don't know of any case law which suggests that the agency can't make a nexus determination without reaching the cognizability of the court. [00:12:22] Speaker 01: Well, you all obviously are not agreeing, you're talking past each other, but [00:12:27] Speaker 01: your opponent, if I understood his argument correctly, saying basically, under current case law, since the BIA did not consider Chevron, you have to remand it for them to consider the merits issues basically on a first come basis. [00:12:47] Speaker 01: That's directly opposite to understand what you're saying. [00:12:50] Speaker 01: Is that correct? [00:12:51] Speaker 02: That's correct, Uron. [00:12:54] Speaker 02: Sorry, as far as Chevron goes, I don't know of any reason why that would require remand here. [00:13:00] Speaker 02: And I note that the board routinely decides nexus and cognizability issues without citing Chevron or going into Chevron analysis one way or the other. [00:13:10] Speaker 02: I don't, to this point, again, know of any cases where that is required remand. [00:13:15] Speaker 01: So from the government's perspective, Chevron really has no impact here because [00:13:21] Speaker 01: Chevron deference never played a role in the law that the BIA applied. [00:13:27] Speaker 01: Is that correct? [00:13:29] Speaker 02: I think that effectively sums it up, Your Honor, yes. [00:13:34] Speaker 02: I know the completely separate issue concerning the temporary board member's appointment that's been briefed quite heavily in this case. [00:13:41] Speaker 02: If the court has questions with respect to that, I'm happy to take them. [00:13:45] Speaker 02: But otherwise, I'm content to rest on the briefs. [00:13:48] Speaker 01: I gather that the government's position on this is that since the attorney general is not specifically named in the regulation, she has the right to name the director on a temporary basis. [00:14:02] Speaker 01: And that's the end of the story. [00:14:04] Speaker 01: Is that correct? [00:14:05] Speaker 02: That is, in one sense, what it boils down to, Your Honor. [00:14:07] Speaker 02: We have a few different points on the issue. [00:14:09] Speaker 02: That is chief among them, I guess we can say. [00:14:12] Speaker 02: And I do think that the language is straightforward. [00:14:14] Speaker 02: The regulation at the time referred [00:14:16] Speaker 02: put constraints on the your director without mentioning the attorney general and the appointments here were pursuant to the attorney general's appointment authority. [00:14:23] Speaker 02: Therefore the regulation is effectively relevant. [00:14:31] Speaker 01: I can conclude if there's nothing else. [00:14:34] Speaker 01: Any other questions by my colleagues? [00:14:36] Speaker 03: No, thank you. [00:14:37] Speaker 03: Thank you. [00:14:38] Speaker 01: I thank you. [00:14:40] Speaker 01: So Mr. Costa, you have a [00:14:42] Speaker 01: Some rebuttal time, a lot of rebuttal time. [00:14:46] Speaker 01: Thank you, Your Honors. [00:14:47] Speaker 00: Just a few brief points in rebuttal. [00:14:51] Speaker 00: With respect to the merits, Your Honors are actually correct. [00:14:55] Speaker 00: The persecutors did point out and said specifically that they were going to kill Petitioner Ulysses Jr. [00:15:03] Speaker 00: and his family. [00:15:05] Speaker 00: add the fact that what was kind of ignored down below, which was kind of infuriating for counsel, was the fact that the age of my client, who was 15 and 16 when he was [00:15:23] Speaker 00: working with these communitarios, volunteering with these auto defenses and police. [00:15:29] Speaker 00: His political opinion wasn't even looked at through the lens of his age in this particular place, or at least not in a way that I think is [00:15:41] Speaker 00: informative to the courtier, certainly. [00:15:44] Speaker 00: And back to the point with these FTO designations is now we have a new lens in which to look at this group. [00:15:51] Speaker 00: It's not just this criminal organization, but rather this could certainly change the analysis on political opinion, which could then change the analysis on family PSG to the point on Chevron. [00:16:05] Speaker 00: You know, the legal framework has structurally changed. [00:16:09] Speaker 00: The BIA's analysis of the PSG and NEXUS took place under a Chevron-based interpretive model. [00:16:15] Speaker 00: After Loper-Brite, the agency must conduct an independent Chevron-free analysis in the first instance. [00:16:20] Speaker 01: And what is the statute or regulation to which you refer when you say that the analysis of NEXUS and PSG was conducted in this case? [00:16:32] Speaker 00: Well, it would be under the, as far as PSG is concerned, it was the BIA that looked through and found that PSG was ambiguous and so that's when they rendered LEA 1 and then LEA 2 to themselves. [00:16:50] Speaker 00: Back to the point of the FTO evidence. [00:16:52] Speaker 00: It's material and outcome relevant. [00:16:54] Speaker 00: The FTO designation is not a mere policy development. [00:16:58] Speaker 00: It alters the legal character of the persecutor. [00:17:00] Speaker 00: The board has never assessed whether opposition to a now designated foreign terrorist organization or its network satisfies the imputed political opinion standard under Borja. [00:17:08] Speaker 00: That analysis belongs to the agency. [00:17:11] Speaker 00: Because the BIA has not applied the correct law to the current factual record, Raymond is not prolonging the case. [00:17:18] Speaker 00: It is the only lawful path forward under Ventura. [00:17:21] Speaker 00: And that is my rebuttal. [00:17:25] Speaker 00: If there's anything else the court would like me to touch upon. [00:17:28] Speaker 00: As far as the temporary BIA members are concerned, honestly, because of the legal shift in this particular case, I think that that issue [00:17:39] Speaker 00: becomes moot after remand, to be perfectly honest with you, and doesn't even need to reach a decision on temporary BIA members now. [00:17:47] Speaker 00: And moot because the regulation has changed in 2024 to allow renewable BIA members. [00:17:54] Speaker 00: So, but again, we don't need to even, the court need not even get to that determination, given the Ventura remand that is required here. [00:18:07] Speaker 01: And then Chair, go ahead Judge Hunt-Thomas. [00:18:09] Speaker 04: I'm sorry, counsel, just assuming just for the sake of argument that we don't agree with you that remand is necessary. [00:18:18] Speaker 04: Are you still asking us to, you know, are you maintaining your argument about the temporary appellate immigration judge just to understand, you know, what your position is? [00:18:28] Speaker 00: Certainly. [00:18:29] Speaker 00: And we would not, we would preserve that, Your Honor, but the court need not reach it because Ventura resolves this case. [00:18:38] Speaker 04: Thank you, Judge Smith. [00:18:41] Speaker 01: Other comments, Mr. Crosley? [00:18:45] Speaker 01: Nothing further. [00:18:45] Speaker 01: Your honors, thank you. [00:18:47] Speaker 01: We thank both counsel for their timely and brief arguments. [00:18:52] Speaker 01: The case of Molina versus Bondi is submitted.