[00:00:05] Speaker 01:
Thank you.

[00:00:05] Speaker 01:
Thank you.

[00:00:05] Speaker 01:
May please the court.

[00:00:05] Speaker 01:
My name is David Landry.

[00:00:07] Speaker 01:
I represent the petition.

[00:00:08] Speaker 01:
Mister Martin reserved 2 minutes for.

[00:00:13] Speaker 01:
Can you bring the mic a little closer?

[00:00:15] Speaker 01:
I'm sorry.

[00:00:16] Speaker 01:
I'm sorry.

[00:00:18] Speaker 02:
No, it's not.

[00:00:19] Speaker 02:
Go ahead.

[00:00:19] Speaker 01:
Okay.

[00:00:20] Speaker 01:
Should I begin again?

[00:00:22] Speaker 01:
Sure.

[00:00:22] Speaker 01:
My name is David Landry.

[00:00:23] Speaker 01:
I represent the petitioner.

[00:00:25] Speaker 01:
Mister Martin.

[00:00:26] Speaker 01:
I've reserved 2 minutes for

[00:00:34] Speaker 01:
is before the court and requesting essentially two different things.

[00:00:39] Speaker 01:
First, the petitioner believes that the court should remand the case to the IJ level for the IJ to apply for the first time the board's decision in matter Fernandez.

[00:00:51] Speaker 01:
In matter Fernandez, the board decided that a notice to appear, which is the document that places the person into removal proceedings, if it's defective, if it lacks certain information,

[00:01:03] Speaker 01:
the alien can object to it, and would give the option of the government, DHS, either refiling or allowing the case to be terminated.

[00:01:13] Speaker 04:
May I ask you about that?

[00:01:14] Speaker 04:
Because as you know, we've determined that the notice to appear is not jurisdictional, although that was, I appreciate, argued in your brief.

[00:01:27] Speaker 04:
from reading the briefs, it seems that you didn't really exhaust the matter Fernandez argument.

[00:01:34] Speaker 01:
Well, you're correct, Your Honor.

[00:01:36] Speaker 01:
The matter Fernandez came out, was issued about a month after petitioner filed his brief with the board.

[00:01:43] Speaker 01:
And the board doesn't allow for supplemental briefing.

[00:01:46] Speaker 01:
So there was no physical way for the petitioner to say to the board, hey, look at Fernandez, I considered under these circumstances because that's not an option at the board.

[00:01:55] Speaker 04:
But it was an argument that could have been made before.

[00:01:58] Speaker 04:
I mean, the jurisdictional argument was kind of SOL given the precedent.

[00:02:04] Speaker 04:
But it could have made the matter of Fernandez' argument, could you not?

[00:02:08] Speaker 01:
I did.

[00:02:09] Speaker 01:
The petitioner moved to terminate it at the IJ level.

[00:02:14] Speaker 01:
And in fact, the petitioner did it, although it's correct to say that at the very first hearing, the petitioner did, or I shouldn't say the very first hearing, but ultimately before

[00:02:24] Speaker 01:
Perea was issued, the petitioner did essentially admit the factual allegations because he filed this by 589.

[00:02:32] Speaker 01:
However, Perea was issued in June of 2018.

[00:02:35] Speaker 01:
And the petitioner moved to terminate in December of 2018.

[00:02:39] Speaker 01:
And there were no proceedings between those two moments.

[00:02:45] Speaker 01:
So from the petitioner's perspective, the petitioner did move to terminate as soon as possible after Perea was issued.

[00:02:51] Speaker 01:
It would be our position that prior to the issuance of Perea, because of regulation controlled, the petitioner shouldn't have been held to need to file for the motion to terminate.

[00:03:03] Speaker 01:
Here I'm relying upon the Supreme Court's case and Reid v. Ross because at that time, before Perea issued its decision, the idea that the NTA would somehow be able to be challenged was really truly novel and it wouldn't be reasonable

[00:03:22] Speaker 01:
to under existing law at the time to expect the petitioner to have filed the motion to terminate.

[00:03:29] Speaker 01:
This issue actually was recently addressed by the board in a case of Larios Gutierrez, issued in November of this year.

[00:03:37] Speaker 01:
And I think the petitioner would assert that that decision is incorrect.

[00:03:42] Speaker 01:
Petitioners asking the court to issue a remand with language that clearly defines when it is

[00:03:51] Speaker 01:
that an alien needs to object to.

[00:03:55] Speaker 01:
What is the time objection?

[00:03:58] Speaker 01:
Fernandez gives us the wording of prior to the termination of the proceedings.

[00:04:03] Speaker 01:
But what does that mean?

[00:04:05] Speaker 01:
Does it mean termination throughout the proceedings, or does it mean on the day of that proceedings?

[00:04:10] Speaker 01:
Now, in Lloris Coutieres, the board acknowledged that in matter of Rosales Vargas, which was from 2020,

[00:04:21] Speaker 01:
Petitioner, the alien in that case, he objected on the day of the individual hearing.

[00:04:28] Speaker 01:
And the board found it to be fine that that was a timely objection.

[00:04:32] Speaker 01:
Now, Laureus Gutierrez goes on to say, well, that was kind of dicta, and we're not really bound by it.

[00:04:39] Speaker 01:
But I think it isn't.

[00:04:41] Speaker 01:
And it follows the rule under Reid v. Ross of the Supreme Court that

[00:04:47] Speaker 01:
You can't expect the petitioner, the alien in this case, to make that objection prior to knowing that this was even an option.

[00:04:55] Speaker 01:
So we would ask the court to remand with an order defining this, and we would assert that the definition should be any time after Perea was issued.

[00:05:06] Speaker 01:
Because it's reasonable to believe that once the Supreme Court wrote, hey, this regulation is ultra-virus.

[00:05:14] Speaker 01:
That opened up the door then for other aliens to say, OK, now I have an opportunity to argue this before a judge.

[00:05:23] Speaker 01:
And that's exactly what the petitioner did.

[00:05:26] Speaker 03:
Could you entertain a question?

[00:05:29] Speaker 03:
I'm focusing now on the religious area, which I find of great interest in most all of these cases.

[00:05:37] Speaker 03:
But in looking, you can see that there is no evidence in the record that Martin was actually targeted

[00:05:45] Speaker 03:
because of his mon race?

[00:05:47] Speaker 03:
Would you can see that?

[00:05:52] Speaker 01:
No.

[00:05:53] Speaker 03:
Where is it in the record?

[00:05:55] Speaker 03:
I didn't find it.

[00:05:58] Speaker 01:
I can appreciate that, Your Honor.

[00:05:59] Speaker 01:
When you're looking at these types of circumstances, the courts have told us we have to look at the totality of the circumstances as it exists in that country.

[00:06:10] Speaker 01:
Petitioner is a member of a very, very, very small indigenous tribe.

[00:06:15] Speaker 01:
Less than 5% of the Guatemalan population speaks the language that he speaks.

[00:06:20] Speaker 01:
And because of that, because he's a member in this indigenous tribe, he was denied a proper education, which limited his ability to earn a living.

[00:06:30] Speaker 01:
So he was basically brought down to either doing manual labor and or driving.

[00:06:35] Speaker 01:
In his case, he chose the driving.

[00:06:37] Speaker 01:
He's really too old

[00:06:38] Speaker 01:
He testified that he's really too old to be doing manual labor now upon return to Guatemala.

[00:06:45] Speaker 01:
When you look at the circumstance of Guatemala, you'll learn that the majority of the people travel by bus.

[00:06:53] Speaker 01:
It's not like in the United States where everyone drives by car.

[00:06:56] Speaker 03:
I understand, but not specifically.

[00:06:58] Speaker 03:
There isn't anything of the record that because he was a monk that he was being targeted.

[00:07:07] Speaker 03:
I didn't find anything.

[00:07:08] Speaker 03:
Maybe it doesn't matter, but it strikes me as an important part of your argument.

[00:07:13] Speaker 01:
I understand, Your Honor.

[00:07:15] Speaker 01:
The premise would be that the circumstance that he found himself in, because he was mom, because he suffers pervasive discrimination, Guatemala, being a member of the indigenous tribes, because he was denied an education,

[00:07:32] Speaker 01:
It created the circumstance where he was persecuted because he was a mom cab driver.

[00:07:37] Speaker 03:
So what you're saying is there's nothing in the record specifically saying that it's by this chain of argument you get to that point and that's what you're going to have to rule out?

[00:07:47] Speaker 01:
Yes, you are correct, Your Honor.

[00:07:50] Speaker 04:
So what you're really saying is

[00:07:52] Speaker 04:
Because he was limited in his occupation.

[00:07:55] Speaker 04:
And of course, an occupation can change, unlike his mom identity.

[00:07:59] Speaker 04:
You're saying it basically collapses in this case as a matter of practicality?

[00:08:03] Speaker 01:
It does, Your Honor.

[00:08:04] Speaker 01:
And the board denied the petitioner's claim and sort of the IJ based upon the board's decision in matter of Acosta.

[00:08:11] Speaker 01:
In matter of Acosta, it dealt with cab drivers in El Salvador.

[00:08:16] Speaker 01:
And the court said, well, he could do something else.

[00:08:20] Speaker 01:
He could be something other than being a cab driver.

[00:08:23] Speaker 01:
And in fact, the petitioner in Acosta said, well, I'm not even going to do that anymore because it doesn't pay anymore.

[00:08:29] Speaker 01:
But the situation is very different for the petitioner in Acosta than it is here for this petitioner.

[00:08:38] Speaker 01:
Because we're obviously different countries, so we have to look at the conditions in that particular country.

[00:08:43] Speaker 01:
And like I was saying before, in Guatemala, the primary form of transportation is by bus.

[00:08:51] Speaker 01:
alternatively, it's by motorcycle.

[00:08:54] Speaker 01:
So there are very, very, very few people that own cars in Guatemala.

[00:08:59] Speaker 01:
So, and it really driving a bus and or driving a car is a really a specialized skill.

[00:09:06] Speaker 01:
And here I bring the court to the night circuits case in Contra, plenty art, so say from 2022.

[00:09:14] Speaker 01:
In that case, it dealt with a Mexican nurse

[00:09:19] Speaker 01:
And the cartels had taken the Mexican nurse and used the Mexican nurse's skills to help heal some cartel members.

[00:09:26] Speaker 01:
And in that case, the court said, well, although it's true that she could change her profession, but even if she changes her profession, she's still a nurse because it is a specialized skill.

[00:09:39] Speaker 01:
Petitioner would assert that being a bus driver and or cab driver in Guatemala really is a specialized skill.

[00:09:46] Speaker 01:
Very, very, very few people do it.

[00:09:49] Speaker 01:
the application.

[00:09:50] Speaker 01:
The petitioner would be returning to his mom speaking area in total Santos.

[00:09:54] Speaker 01:
And it's true in his application that is 3.19.

[00:09:57] Speaker 01:
He does say that upon return, he his options would either be farming or working driving people.

[00:10:04] Speaker 01:
Driving people around giving people a ride.

[00:10:09] Speaker 01:
But an application working on a farm doesn't pay

[00:10:20] Speaker 01:
I'll give that site in just a second.

[00:10:22] Speaker 01:
Here we go, page 360 of the record.

[00:10:25] Speaker 01:
So he's no longer physically capable of doing the manual labor that he did before.

[00:10:32] Speaker 01:
He doesn't have the education, because he's been denied an education because of his indigenous status.

[00:10:42] Speaker 01:
So he really only has this one option, and that one option places him in danger, as it has every time he's ever done that job.

[00:10:50] Speaker 01:
And with that, we'll submit.

[00:10:52] Speaker 02:
And I'll go ahead and give you 2 minutes for a rebuttal.

[00:10:53] Speaker 01:
Thank you.

[00:11:08] Speaker 00:
Good morning, Your Honors.

[00:11:09] Speaker 00:
May it please the Court, Roberta Roberts, on behalf of the Attorney General of the United States of America.

[00:11:18] Speaker 04:
have an attorney general.

[00:11:19] Speaker 00:
Is there an attorney general right now or we have an acting attorney.

[00:11:34] Speaker 00:
So, your honor, this record does not compel a contrary conclusion to the agency's findings on several dispositive grounds, any of which the court could and should use to deny the petition.

[00:11:51] Speaker 00:
First, starting with petitioners' argument about demonstrating a nexus between his race and the harm that he suffered.

[00:12:03] Speaker 00:
Petitioner did not meet his burden to demonstrate that his being mom was the reason why he was targeted.

[00:12:12] Speaker 00:
Instead, the record evidence shows that he was targeted because he was a cab or bus driver, but not specifically because he was mom.

[00:12:23] Speaker 00:
Indeed, the record evidence shows that cab and bus drivers in Guatemala are often targeted for extortion and for robberies.

[00:12:34] Speaker 00:
So what we have here is the targeting is not because of a protected ground of race, but because of someone working in the transportation sector.

[00:12:49] Speaker 00:
As was discussed, working in the transportation sector, a person's occupation is not an immutable characteristic.

[00:12:58] Speaker 00:
It is something that can be changed.

[00:13:01] Speaker 04:
What would happen if the only people who were bus drivers or cab drivers were mom?

[00:13:07] Speaker 04:
Would the standard change?

[00:13:10] Speaker 04:
And in effect, you would collapse the racial issue with the occupational issue.

[00:13:17] Speaker 00:
Your Honor, the petitioner would have to show that the drivers were being targeted also because they are mom.

[00:13:26] Speaker 00:
Even if it turned out that all of the cab drivers or bus drivers were of a particular race, it has to be shown that they are targeted because of their race and not just because of their occupation.

[00:13:41] Speaker 00:
And here, we don't have that distinction.

[00:13:46] Speaker 00:
Here, it is clear that he is being targeted because of his occupation as a cab and bus driver.

[00:13:52] Speaker 00:
Now, two petitioners example about the case where the nurse was targeted because of the specialized skills that she had as a nurse.

[00:14:08] Speaker 00:
That, in that case, it's clear that the Nexus was because of her specialized skills, because she was targeted to use her nursing skills to heal or to provide medical assistance to the cartel members.

[00:14:24] Speaker 00:
However, here, we don't have that same situation.

[00:14:28] Speaker 00:
The petitioners, quote unquote, specialized skills, if we were to consider driving to be a specialized skill,

[00:14:35] Speaker 00:
The petitioner was not targeted because he could drive.

[00:14:38] Speaker 00:
The people who took his money did not require his special skills of driving for some other purpose.

[00:14:47] Speaker 00:
Instead, it was simply a matter of taking the money that Petitioner had because Petitioner was driving the bus or driving the cab.

[00:14:57] Speaker 00:
Indeed, Petitioner also testified to an instance where 35 other bus passengers were also robbed during this incident.

[00:15:06] Speaker 00:
And that also goes to show that unfortunately there is just generalized societal crime

[00:15:13] Speaker 00:
that occurs in Guatemala, specifically also on public transportation.

[00:15:19] Speaker 00:
But again, that does not show that Petitioner was targeted because of his race.

[00:15:27] Speaker 00:
Also, the 35 passengers that were also robbed on the bus, there's no mention

[00:15:32] Speaker 00:
that they were of the mom race as well.

[00:15:34] Speaker 00:
Additionally, petitioners' testimony does not indicate that the people who robbed them said anything about his mom race or ethnicity, or it doesn't say that they made any disparaging remarks about his mom race or ethnicity as well.

[00:15:49] Speaker 00:
So the record just does not show any nexus between race and the harm that he suffered.

[00:15:58] Speaker 00:
And that also goes to the issue of whether a petitioner proffered a cognizable particular social group

[00:16:08] Speaker 00:
Again, mom, cab, and bus drivers would not be a cognizable particular social group because being a cab or bus driver is a mutable characteristic, as has already been established.

[00:16:22] Speaker 00:
And indeed, petitioner has already changed his occupation.

[00:16:25] Speaker 00:
He is no longer a cab or bus driver.

[00:16:28] Speaker 00:
in the United States, he has done manual labor even in his 60s.

[00:16:34] Speaker 00:
He was in his 60s at the time of the hearing and he was doing gardening work and, you know, laying pavement and patios and gardening.

[00:16:41] Speaker 00:
So even still he actually has shown that he has other skills other than bus driving and indeed could use other skills if

[00:16:54] Speaker 00:
return to Guatemala.

[00:16:56] Speaker 00:
So that also is additional record evidence that shows that petitioner did not meet his burden to show that it would be unreasonable to expect him to return to Guatemala.

[00:17:08] Speaker 00:
Additionally, to touch on a question.

[00:17:13] Speaker 03:
I don't mean to interrupt while you're on this particular subject is something that was

[00:17:24] Speaker 03:
which is a Spanish-speaking country.

[00:17:27] Speaker 03:
As I understand, he does not speak Spanish.

[00:17:30] Speaker 03:
And he only speaks his own native language.

[00:17:37] Speaker 03:
I just want to make sure I understand your relationship.

[00:17:41] Speaker 03:
Quite obviously, he has a problem getting a job because he doesn't speak Spanish.

[00:17:50] Speaker 03:
But he does have a problem in a certain sense.

[00:17:56] Speaker 03:
So does his inability to speak Spanish limit his work opportunities in Guatemala?

[00:18:05] Speaker 03:
And if so, is this really a part of the analysis?

[00:18:11] Speaker 03:
Where do you see it doesn't fit that he should receive the benefits because he is unable to work due to his Hmong language?

[00:18:20] Speaker 03:
And one is a religious position for him that isn't going to change.

[00:18:28] Speaker 03:
I'm not sure I made that clear because I didn't understand it too well myself.

[00:18:32] Speaker 03:
But it strikes me that it's a point that I'd like to have your view on.

[00:18:37] Speaker 00:
Your Honor, a petitioner has actually stated before that he does speak Spanish.

[00:18:43] Speaker 00:
Indeed, when he testified to the incident where he was robbed driving the cab, he stated that he did speak Spanish.

[00:18:54] Speaker 00:
When he drove the taxis and the buses, that was in Guatemala City, which is not a

[00:19:00] Speaker 00:
you know, solely indigenous area.

[00:19:03] Speaker 00:
So the passengers and all they would have been speaking Spanish as well.

[00:19:07] Speaker 00:
So he has been able to function in the Spanish speaking society.

[00:19:13] Speaker 00:
So petitioner actually does have a history of speaking Spanish.

[00:19:18] Speaker 00:
You know, his native language is mom, but he has

[00:19:22] Speaker 00:
in Guatemala all of those years in a predominantly Spanish-speaking society.

[00:19:29] Speaker 00:
Additionally, this issue of whether a petitioner could internally relocate within Guatemala, the court does not need to reach that issue even because the court could deny the petition for the previous reasons stated such as that petitioner has not demonstrated a nexus between protected ground

[00:19:51] Speaker 00:
and the harm he suffered, in this case, his mom race or a cognizable particular social group.

[00:19:58] Speaker 04:
But he also raises an issue we hadn't talked about yet, and that is his father's sale of the land.

[00:20:05] Speaker 04:
And he claims that it wasn't so much a for sale, but because the father was mom and they were targeted in the Civil War, that it was tantamount to a for sale because he had to flee and he had to sell the land.

[00:20:22] Speaker 04:
what kind of cognizance does the BIA give to that argument?

[00:20:29] Speaker 00:
Your Honor, the evidence for that argument is not clear because petitioner also testified that he does not know how the land was sold.

[00:20:40] Speaker 00:
Petitioner also did not elaborate on

[00:20:44] Speaker 00:
what specifically was the reason that the land was sold.

[00:20:47] Speaker 00:
Indeed, there were other reasons provided for the land being sold, including that petitioner's father left in 1982 to Mexico because of the Civil War in Guatemala.

[00:20:59] Speaker 00:
That affected everyone living in the country and many people went to Mexico instead.

[00:21:05] Speaker 04:
There was some evidence in the various human rights reports that

[00:21:11] Speaker 04:
the indigenous communities were targeted during that civil war, right?

[00:21:16] Speaker 00:
Your Honor, I see that I am out of time.

[00:21:19] Speaker 02:
You can ask the question.

[00:21:21] Speaker 00:
Yes, Your Honor.

[00:21:23] Speaker 00:
Yes, that is so.

[00:21:25] Speaker 00:
However, the record evidence still does not demonstrate that this in particular was because of Petitioner's father being mom.

[00:21:36] Speaker 00:
Indeed,

[00:21:37] Speaker 00:
It seems to be that petitioner more so is speculating about possible reasons for the sale.

[00:21:43] Speaker 00:
We don't have any evidence from petitioners father about the sale of the land and, you know, recognizing

[00:21:53] Speaker 00:
I'm over time here.

[00:21:55] Speaker 00:
But again, the record does not have sufficient evidence to show why exactly the land was sold.

[00:22:04] Speaker 00:
And there are other reasons for the land being sold in the evidence, such as that petitioner's father moved in 1982.

[00:22:11] Speaker 00:
He sold the land in 1986, presumably because he wasn't living on the land anymore.

[00:22:16] Speaker 00:
And that is not related to a protected ground.

[00:22:19] Speaker 00:
And to summarize and to end, Your Honors, the case also should not be remanded for matter of Fernandez because petitioner's argument on that issue is unexhausted, as is further explained in respondent's brief.

[00:22:37] Speaker 00:
Also, even if it were to be remanded, petitioner would not be eligible for any relief under matter of Fernandez because he did not

[00:22:46] Speaker 00:
the claim process.

[00:22:47] Speaker 00:
And that is when it would be considered timely raise the claims processing issue before the close of proceedings, which is when it would be considered timely.

[00:22:54] Speaker 00:
So for the reason stated in respondent's brief and here today's argument of respondent would request that the petition for review is denied.

[00:23:04] Speaker 01:
Thank you.

[00:23:16] Speaker 01:
The petitioners already addressed the issue on Fernandez and the remand and why it is that the petitioner, that this court should issue a bright line rule that provides everyone with an understanding of what it is that it means by before the expiration of those proceedings.

[00:23:34] Speaker 01:
And that bright line rule should be one that requires it after the issuance of the PREA because of the regulation control before that.

[00:23:43] Speaker 01:
As for the sale of the land,

[00:23:45] Speaker 01:
The Human Rights Report does explain to us that during the Civil War, the indigenous communities were particularly targeted by the Guatemalan government for persecution because there was an implication that the indigenous community were the ones that were supporting the revolution, the guerrillas as they called them at the time, an application that wasn't true.

[00:24:10] Speaker 01:
So individuals like Petitioner's father had to flee to Mexico in this case because they were being persecuted by the Guatemalan government because this implied or you could say imputed political belief that they were supportive of the guerrillas.

[00:24:28] Speaker 01:
So I respectfully disagree.

[00:24:30] Speaker 01:
I think there is good evidence.

[00:24:32] Speaker 01:
It's even in the DHS or the State Department's human rights report.

[00:24:39] Speaker 01:
It's correct to say that the petitioner wasn't there and didn't speak to his father when his father sold the property.

[00:24:45] Speaker 01:
But that doesn't mean there isn't relevant information in the record that supports the petitioner's position.

[00:24:53] Speaker 01:
Can you imagine an indigenous community that's already being

[00:24:57] Speaker 01:
denied education, denied food.

[00:25:03] Speaker 01:
Malnutrition is extremely, most people die of malnutrition in these indigenous communities.

[00:25:08] Speaker 01:
In fact, that's where his father died was of malnutrition because he was an indigenous member living in an indigenous community.

[00:25:15] Speaker 01:
And with that, I'll submit, Your Honor.

[00:25:17] Speaker 02:
I thank you, Council.

[00:25:18] Speaker 02:
Thanks to both of you for your briefing and argument in this case.

[00:25:21] Speaker 02:
Very well done.

[00:25:22] Speaker 02:
This matter is submitted and we'll move on to the next case on our calendar this morning.