[00:00:00] Speaker 03: The next case on for argument is Jose Angel Ortiz Gutierrez versus Pamela Bondi. [00:00:09] Speaker 03: And is someone going to come? [00:00:13] Speaker 03: Oh, we have a remote person on this, right? [00:00:16] Speaker 03: Okay, here we got it. [00:00:18] Speaker 03: We're ready on the okay. [00:00:21] Speaker 03: And appearing remotely on this case is, is it Mr. Baker? [00:00:31] Speaker 04: Yes, that's correct. [00:00:32] Speaker 03: Can you see and hear us? [00:00:34] Speaker 03: Okay. [00:00:35] Speaker 04: Yes, I can. [00:00:36] Speaker 03: Okay. [00:00:37] Speaker 03: Are you able to see Mr. verbi? [00:00:40] Speaker 03: Okay. [00:00:41] Speaker 03: Do you have. [00:00:43] Speaker 04: Sure, I can see the chairs. [00:00:44] Speaker 04: Is he there in person or is he remote? [00:00:47] Speaker 03: No, he's there in person. [00:00:49] Speaker 03: I don't know if he's going to come to the podium. [00:00:54] Speaker 03: So I think when he comes to the podium, you'll be able to see him. [00:00:57] Speaker 04: Oh, okay. [00:00:57] Speaker 04: He must be the other deal. [00:00:58] Speaker 04: Yeah, I can see everyone. [00:00:59] Speaker 04: That's fine. [00:01:00] Speaker 03: Okay, you'll see him when he talks. [00:01:03] Speaker 03: I don't let people talk from their chairs. [00:01:05] Speaker 03: So you'll be okay. [00:01:06] Speaker 03: Okay, so each side has 10 minutes total. [00:01:10] Speaker 03: And if you want to reserve any time for rebuttal, Mr. Baker, that includes that's within your 10 minutes. [00:01:17] Speaker 03: So [00:01:18] Speaker 03: We'll go ahead and start with the petitioner. [00:01:22] Speaker 04: OK, thank you, Your Honor. [00:01:23] Speaker 04: Good morning. [00:01:23] Speaker 04: This is, again, William Baker on behalf of Jose Ortiz Gutierrez. [00:01:28] Speaker 04: Yeah, this is a removal case. [00:01:30] Speaker 04: He applied for asylum, withholding, and cat. [00:01:34] Speaker 04: It was denied. [00:01:35] Speaker 04: I'm asking Your Honors today to remand at least the cat portion of his claim back to immigration court, and I'll explain that to you in a minute. [00:01:46] Speaker 04: Starting with the asylum withholding, counsel did a good job in briefing and pointing out, I guess, several defects in my case, which I more or less agree with. [00:01:56] Speaker 04: Number one, at the immigration court level, the particular social group was never really specifically articulated. [00:02:07] Speaker 04: We didn't really grapple with that. [00:02:09] Speaker 04: This case is a bit old. [00:02:10] Speaker 04: I don't remember it, to be honest. [00:02:12] Speaker 04: I did go back and read the [00:02:15] Speaker 04: Record of proceedings and the briefing and stuff, but for whatever reason, I don't remember. [00:02:21] Speaker 04: That never came up during the trial either by me or the immigration judge or the DHS trial attorney. [00:02:29] Speaker 04: This was back in 2017 things were a bit more. [00:02:32] Speaker 04: I guess informal. [00:02:34] Speaker 04: There was a specification of a particular social group at the BIA level. [00:02:40] Speaker 04: But again, I don't necessarily disagree with counsel's argument that there was no real meaningful analysis of any nexus to maybe the lately specified group. [00:02:53] Speaker 04: Apart from that, back in the immigration court, the judge did deny the asylum for the one-year claim. [00:03:00] Speaker 04: And again, I don't really have any [00:03:02] Speaker 04: Again, real beef with that decision. [00:03:05] Speaker 02: So, so you're conceding that the asylum claim is forfeited. [00:03:08] Speaker 02: Is that correct? [00:03:10] Speaker 04: Yes, we can just yeah, that's fine. [00:03:13] Speaker 04: However, you should remember the cat. [00:03:15] Speaker 04: That's that's my. [00:03:17] Speaker 02: Request today and and and I want to ask you about the withholding claim because it seems to me that There is a clearly articulated argument with respect to the nexus that was not addressed by the BIA because There there is information about the fact that this particular to look to look us to Lucas family [00:03:46] Speaker 02: contacted and threatened his family and that seems pretty clearly articulated by your client such that there would still be a reason for remand with respect to the withholding claim. [00:04:03] Speaker 02: Do you agree with that? [00:04:05] Speaker 04: Yes, I do. [00:04:06] Speaker 04: And I did argue that with the VIA. [00:04:08] Speaker 04: They just kind of rejected the argument. [00:04:09] Speaker 03: But wait a second, Ortiz testified that the Toluca's attacks began because of a water access dispute and ended after the water access dispute was resolved. [00:04:21] Speaker 03: Am I right about that? [00:04:23] Speaker 04: Yes, as to his family there in Michoacan. [00:04:27] Speaker 03: And what I heard you say before Judge Desai's question was that in front of the IJ, there was no really articulated PSG that you basically raised that for the first time in front of the BIA. [00:04:45] Speaker 03: And so isn't it reasonable to conclude that the Chalukyas attacked Ortiz's family because of the water access dispute and not because of any [00:04:53] Speaker 03: distinct animus towards the Ortiz family? [00:04:57] Speaker 04: Well, no. [00:04:57] Speaker 04: They tried to murder the whole family, remember, Your Honor? [00:05:00] Speaker 03: Well, I guess what I'm not understanding is what I heard you say before Judge Desai asked you a question. [00:05:08] Speaker 03: You said that the government raised good points that asylum was barred. [00:05:13] Speaker 03: And that raised good points that on the withholding, that you didn't really articulate a PSG at the immigration IJs level. [00:05:24] Speaker 03: It was basically brought up for the first time on appeals. [00:05:27] Speaker 03: So you were saying, I think what I have left is cat. [00:05:34] Speaker 03: But now then after Judge Desai asked you a question, which I certainly respect your ability to pivot, [00:05:42] Speaker 03: saying, well, maybe don't you have something on the withholding? [00:05:45] Speaker 03: You said, well, OK, yeah, maybe I do. [00:05:49] Speaker 04: Well, am I reading that wrong? [00:05:50] Speaker 04: That's correct. [00:05:52] Speaker 04: My strongest argument here for your honors is the cat claim. [00:05:57] Speaker 02: Counsel, I'm really looking at the record. [00:05:59] Speaker 02: I'm less interested in sort of the back and forth. [00:06:02] Speaker 02: And I'm looking at the record because the standard here is substantial evidence whether or not the record supports the claim and and it's and [00:06:11] Speaker 02: When I look at the record, it seems to me that it compels the finding that there's at least a familial relationship as the central reason that your client was targeted and persecuted by this gang family. [00:06:25] Speaker 02: So I just want to, you know, understand from you because I think you've stated it both ways and regardless I guess of the fact that you can't make up your mind here in oral argument as to what position you're taking, I'm just going to the record. [00:06:40] Speaker 04: Yes, the record, I believe, compels the conclusion this family was attacked because of their family relationship. [00:06:47] Speaker 04: They ambushed my client. [00:06:50] Speaker 04: They shot his two brothers. [00:06:51] Speaker 04: He escaped that. [00:06:52] Speaker 04: They attacked the father with the machete. [00:06:55] Speaker 04: They went back to the house to finish the job. [00:06:57] Speaker 04: They didn't get killed there. [00:06:58] Speaker 04: but then they caught my guy later and beat him and left him for dead. [00:07:02] Speaker 04: He didn't die, luckily for him, and that's about when he came over here. [00:07:07] Speaker 04: So he's still terrified of going back there because of the lawlessness. [00:07:12] Speaker 04: And yeah, I think there is still a viable withholding claim, but I still also agree at the same time that cat claim deserves a remand. [00:07:23] Speaker 04: I think given the [00:07:25] Speaker 04: The events, it's time for a paradigm shift in the analysis of these Mexico asylum cases, especially for Michoacan. [00:07:34] Speaker 04: The president, for instance, just a couple months ago, he designated six Mexican cartels as terrorist groups. [00:07:42] Speaker 04: And he's not wrong, but I don't think he went far enough. [00:07:45] Speaker 04: They're not just terrorist groups. [00:07:48] Speaker 04: Warlords is what they are they control various parts of Mexico including Michoacan where my client lives and The Mexican government allows that counsel I apologize. [00:08:02] Speaker 01: This is judge de Alba. [00:08:03] Speaker 01: I I just want to make sure I understand something because there has been a lot of back-and-forth and You sort of answer a question, and then you kind of talk over yourself So I just want to make sure is it your position that your client mr. Ortiz is [00:08:18] Speaker 01: the fact that it's his relationship to his father, that that was the primary reason why he was being attacked. [00:08:26] Speaker 04: Yes, as part of a family unit, basically. [00:08:30] Speaker 04: I'm not sure it's necessarily his father, but the Toluco gang, whoever they are, wanted to exterminate my client's family, maybe for the water, maybe for animus. [00:08:40] Speaker 04: There's a lot of reasons there, I guess, but they wanted to kill the whole family. [00:08:45] Speaker 04: If they wanted to just kill the father, they wouldn't have ambushed the three brothers, and they wouldn't have attacked my guy [00:08:53] Speaker 01: Alone to they try to kill him while he was by himself, and they almost did it so let me ask you this for your client What was the reason that the Lucas or what is your position or your clients position that the Lucas were going after him? [00:09:05] Speaker 01: Is it because of the water or because of his ties to his family? [00:09:11] Speaker 04: It's it's hard to understand [00:09:13] Speaker 04: I think it's the water that ties to the family. [00:09:18] Speaker 04: And I think more importantly, they know they can do it because the police aren't going to do anything. [00:09:23] Speaker 04: I think that's the main thing here. [00:09:26] Speaker 04: It's just completely lawless there. [00:09:28] Speaker 04: It's a failed state. [00:09:30] Speaker 04: And I was giving a good example. [00:09:31] Speaker 04: It's as if the MS-13 or the mafia or the Hells Angels took over the state of Arizona. [00:09:39] Speaker 04: And then the United States did nothing to stop that. [00:09:41] Speaker 03: So where's your client now? [00:09:43] Speaker 03: Is he a Mishra Khan? [00:09:45] Speaker 04: No, he's here still. [00:09:46] Speaker 04: He's here in the United States. [00:09:48] Speaker 04: I mean, this case has taken a while for some reason, but no, he's still here. [00:09:53] Speaker 04: He's afraid to go back. [00:09:55] Speaker 04: That's why we're still trying to fight this, Your Honors. [00:09:58] Speaker 04: But you should remand for the withholding. [00:10:03] Speaker 04: You should remand for the cat. [00:10:05] Speaker 04: And could I maybe save a minute left for rebuttal if necessary, or do you have questions? [00:10:10] Speaker 03: Sure. [00:10:11] Speaker 03: Yeah, you can save the balance of your time. [00:10:14] Speaker 03: Okay. [00:10:14] Speaker 03: Thank you. [00:10:16] Speaker 03: All right, we'll hear from the government. [00:10:21] Speaker 00: Good morning. [00:10:22] Speaker 00: May it please the court? [00:10:23] Speaker 00: Russell Verby for the Attorney General. [00:10:25] Speaker 00: It appears that asylum is now off the table, so we're down to withholding. [00:10:30] Speaker 00: And with withholding of removal, you still have to properly exhaust your claims. [00:10:36] Speaker 00: And there was never a particular social group of family stated before the immigration judge, and that has been conceded in this court again. [00:10:44] Speaker 00: Even though the petitioner discussed his family When the questioning originally started it was they didn't like us living in the neighborhood but as DHS council and the immigration judge questioned some more it came out about the water dispute and the water dispute became clearly the motivator in this case now family and [00:11:06] Speaker 00: and water if they were in conjunction together could perhaps under the withholding standard because of the A reason language versus one central reason language. [00:11:15] Speaker 00: However, you still have to exhaust the claim properly and board precedent which holds sway in the immigration court requires the petitioner to specifically and clearly designate his particular social group so that the immigration judge can render the proper factual findings that would make up the legal holding that could then go to the board to be reviewed. [00:11:35] Speaker 00: The board has no authority and had no authority to issue factual rulings with respect to a particular social group. [00:11:43] Speaker 00: And if we ignore the waiver and the failure to exhaust in this situation, which while not jurisdictional, is mandatory if the Attorney General raises it. [00:11:52] Speaker 02: I just want to stop you for one second. [00:11:53] Speaker 00: Yes, please, Your Honor. [00:11:53] Speaker 02: And take you back to something you just said, and I just want to confirm. [00:11:57] Speaker 02: that you agree that to establish an access that the applicant must show that the protected ground was at least one central reason? [00:12:05] Speaker 00: If we're in the asylum, but asylum's been waived, we're in withholding. [00:12:08] Speaker 00: So withholding, it's just a reason. [00:12:09] Speaker 00: So it can be among several reasons. [00:12:11] Speaker 02: I'm sorry, I misspoke. [00:12:13] Speaker 00: Absolutely. [00:12:13] Speaker 02: So a reason, which means that at this point, you're... So hone in on what your argument is with respect to the withholding issue, that it was not properly exhausted? [00:12:24] Speaker 00: The spam, the particular social group, which is what you have to raise, [00:12:28] Speaker 00: to become a reason. [00:12:29] Speaker 00: And in this case, he wanted to raise his family. [00:12:31] Speaker 00: You have to actually raise it before you can get it to the BIA to be ruled on legally after the immigration judge does a factual inquiry into it. [00:12:41] Speaker 00: In fact, this petitioner, while in the immigration court, in front of the immigration judge, the immigration judge said, I do not see your client as being in a particular social group. [00:12:55] Speaker 00: Petitioner and counsel said nothing. [00:12:58] Speaker 00: So there was no social good way. [00:13:00] Speaker 00: But if there was, Your Honor, and because of the way this developed, I kind of had to come up with an example in my mind. [00:13:06] Speaker 00: And I apologize for it. [00:13:08] Speaker 00: It's kind of a morbid example. [00:13:10] Speaker 00: But you can have the water dispute be the motivation and the family just be a happenstance and not a reason for the harm in the withholding context. [00:13:27] Speaker 00: And I'm going to apologize for the example. [00:13:29] Speaker 00: Lee Harvey Oswald shot President Kennedy because he was the president. [00:13:33] Speaker 00: He just happened to be a member of the Kennedy family. [00:13:35] Speaker 00: Sirhan Sirhan shot RFK because he was about to become president and was a member of the Kennedy family. [00:13:43] Speaker 00: So in one instance you have two A reasons for withholding and the other one you have a reason or the motivator and a happenstance. [00:13:50] Speaker 00: And I'm sorry for that. [00:13:52] Speaker 03: Motivation that example, but that's the only way to come up with when the way this unfolded Ortiz testified that the Tolukos attack Began because of a water access dispute and ended after the water access dispute was resolved so isn't it reasonable to conclude that the Tolukos attacked Ortiz's family because of the water access dispute and not because of any distinct animus towards the Ortiz family or [00:14:21] Speaker 03: Or on the other hand, you argue that Ortiz failed to exhaust any challenge to the no nexus family, but you're saying because in the BIA brief, Ortiz articulated that he had already suffered past persecution because the Toulikos had vowed to exterminate his family. [00:14:43] Speaker 03: So isn't that sufficient to exhaust I don't know you know that's where I'm gonna maintain my exhaustion argument, but I was kind of going into just in case we get there But you're right your honor. [00:14:54] Speaker 00: I think the very good fact the fact that the Water dispute ended and the attacks on the family ended showed it was not the family. [00:15:02] Speaker 00: That's the animus. [00:15:03] Speaker 00: It's the water dispute That's the animus, but on the other side. [00:15:05] Speaker 00: I'll just remind the court [00:15:06] Speaker 00: that just saying to the Board of Immigration Appeals, oh, and by the way, I now have a PSG claim being my family, that puts the board in an incredibly difficult position. [00:15:16] Speaker 00: Because what are they to do then? [00:15:18] Speaker 00: They have no ability to enter factual findings. [00:15:21] Speaker 00: They would have to remand to the immigration judge. [00:15:23] Speaker 00: So what you'd be encouraging is a petitioner to hold back a PSG claim and throw it out there in the last minute and get that remand. [00:15:30] Speaker 00: You're putting them in a Catch-22. [00:15:31] Speaker 03: So are there other Ortiz family members that are in Mexico? [00:15:36] Speaker 00: At this point here whether has anyone else experienced problems with the Tolukos the only I'm not a hundred percent sure I don't want to but the only thing I've I've heard is that the problems stopped in around 2002 or four you'd have to ask mr. Baker I think you'd be more up to what the family situations I just remember that from the record that it ended about 20 some odd years ago with no further harm I don't know how many of the family members are still there well so what about the cat now he's saying cat [00:16:02] Speaker 00: Well, Your Honor, you know, the board saw the cat claim is waived because there was no fulsome attack on the immigration judges reasoning. [00:16:13] Speaker 00: It was just a restatement of the claim and a statement about the dreaded future that the petitioner feared in Mexico. [00:16:20] Speaker 00: And I understand the problems of the cartels. [00:16:22] Speaker 00: My heart goes out to him, but that's not the standard. [00:16:25] Speaker 00: The standard in this case, since it were involving the Tolucos family, would be whether or a cartel of some sort would be whether [00:16:32] Speaker 00: A third party is going to commit torture, and then would the government of Mexico turn a blind eye to it with the acquiesce? [00:16:39] Speaker 00: And they reported it to the police. [00:16:41] Speaker 00: The police did arrest the Toluco's family, although they let them go. [00:16:44] Speaker 00: We don't know why they let them go. [00:16:46] Speaker 00: But there was reaction from the police, so that shows some police willingness to help this family. [00:16:51] Speaker 00: On top of that, just putting out evidence of terrible crimes and horrific abuses in Mexico, as this court's president will show, is insufficient to carry a cat claim. [00:17:02] Speaker 00: As our claims that the police are ineffective in their efforts, we don't measure it by the results. [00:17:07] Speaker 00: We measure whether there's acquiescence. [00:17:09] Speaker 00: And acquiescence would be telling the Fulicos family or somebody else, go ahead and torture Mr. Ortiz, or knowing it's happening and not doing anything about it on purpose. [00:17:17] Speaker 00: That's the test. [00:17:18] Speaker 00: And nothing in this record would compel that finding. [00:17:24] Speaker 00: So if there are no further questions from the court, [00:17:27] Speaker 00: The Attorney General simply asked that this petition for review be denied. [00:17:31] Speaker 00: Thank you, Your Honor. [00:17:31] Speaker 03: Thank you. [00:17:35] Speaker 03: All right. [00:17:36] Speaker 03: Mr. Baker, we're back to you. [00:17:38] Speaker 03: And the representative from the government said, since the IJ hearing, have Ortiz family members in Mexico experienced any further problems with the Chalukos? [00:17:50] Speaker 04: up to 2017 when the hearing was held? [00:17:54] Speaker 04: No, you know, I'm not sure 2017 to 2025. [00:17:58] Speaker 02: I think the situation in general in Mexico, in Michoacán in particular, has gotten... Has the dispute between your client's family and the Toluca's family been resolved? [00:18:10] Speaker 04: The water issue has apparently because the bad guys won, because the police will not control them. [00:18:15] Speaker 04: That's his fundamental fear here. [00:18:18] Speaker 04: He's at the mercy of these people because they can do what they want with impunity. [00:18:22] Speaker 04: And I agree, again, somewhat with counsel, there was a muddled designation of a particular social group, but the law has changed since then. [00:18:32] Speaker 04: The law now is you have to, at the trial court level, immigration court level, articulate the group, otherwise it's waived. [00:18:40] Speaker 04: the law, direct law back in 2017 when we had this case. [00:18:43] Speaker 04: So I think on that basis alone, you may want to remand. [00:18:46] Speaker 04: Let's go back there. [00:18:47] Speaker 04: Let's update things. [00:18:49] Speaker 04: Things have gotten worse, not better. [00:18:52] Speaker 04: And especially since the president has designated the Mitch McConnell family, which is obviously Mitch McConnell terrorist group, we're sending this man potentially to his death. [00:19:01] Speaker 04: That's why he's he's doing it, your honor. [00:19:03] Speaker 01: So, counsel, let me ask you this. [00:19:05] Speaker 01: You stated earlier that the Lucas won the water fight because they get what they want. [00:19:09] Speaker 01: So is your client then still afraid to return? [00:19:13] Speaker 04: Yes. [00:19:14] Speaker 04: Why? [00:19:14] Speaker 04: He watched his two brothers get shot and almost murdered. [00:19:18] Speaker 04: He watched himself get almost murdered. [00:19:20] Speaker 04: His father got hacked up with the machete. [00:19:22] Speaker 01: So was that due to the water? [00:19:24] Speaker 01: I mean, now that they have the water, is there still a concern? [00:19:30] Speaker 04: Yes. [00:19:31] Speaker 04: because I think there's grievances, there's like family feuds, oddly enough, and the criminals are in control, not the government. [00:19:38] Speaker 04: And I think this is terrorism. [00:19:40] Speaker 04: If it was just a water dispute, okay, not to be flippant, murder the father. [00:19:45] Speaker 04: That'll get your point across. [00:19:47] Speaker 04: They wanted to murder the whole family. [00:19:49] Speaker 04: Probably because if you murder the father then they're gonna afraid my client and his brother's gonna murder them So this it's like a self-fulfilling monster. [00:19:57] Speaker 04: It was a family dispute because I guess they have to Exterminate like you said the whole family to prevent the family from reprisals and things are calm They were at least back in 2017. [00:20:10] Speaker 04: But again, it's my contention [00:20:12] Speaker 04: because the bad guys won they shot the two brothers they hacked the father with the machete they tried to murder my guy they went to jail and the police just let him go that's odd yeah we never really got to the bottom of that but it's my client's belief [00:20:28] Speaker 04: that the police are corrupt and they work with the terrorist, the cartels. [00:20:33] Speaker 04: He didn't specifically put these Toluco people in the Michoacan family. [00:20:39] Speaker 04: He did think he was the word gangs. [00:20:42] Speaker 03: Okay, you've gone over. [00:20:43] Speaker 03: Let me find out if my colleagues have any additional questions. [00:20:47] Speaker 03: We do not. [00:20:48] Speaker 03: So I'm going to bring this to a close, then. [00:20:50] Speaker 03: We gave you a couple extra minutes. [00:20:52] Speaker 03: So thank you, Mr. Baker. [00:20:55] Speaker 03: Thank you. [00:20:55] Speaker 03: Thank you, counsel, for the government, Mr. Verbi. [00:21:02] Speaker 03: And this matter will stand submitted.