[00:00:08] Speaker 04:
Good morning.

[00:00:08] Speaker 04:
Good morning to the honorable panel.

[00:00:11] Speaker 04:
Thank you for hearing me today.

[00:00:13] Speaker 04:
My name is Matthew G. Holt.

[00:00:14] Speaker 04:
I'm here for the petitioners.

[00:00:16] Speaker 04:
Based on the record before the immigration judge and us today, the immigration judge clearly and inexplicably assigned an incorrect particular social group instead of developing the record by requesting the petitioners delineate the particular social group themselves.

[00:00:32] Speaker 04:
Doing as he did, deprived the petitioners of a full and fair hearing, thereby violating their due process.

[00:00:38] Speaker 04:
alternatively but we have counsel there the council check to say anything when uh... the i j uh... read the order decision no he reserved appeal it's been my experience being in the immigration courts for many many times that after the decision is been read aloud which is one of the hardest things the immigration judges have to do the oral

[00:01:08] Speaker 04:
decision that Issues are reserved for appeal at that point I would think that if it was the wrong social group council would say something that's pretty key to the analysis Yes, but I think key to the analysis would have been the immigration judge themselves asking in the first place What the social group was because the Board of Immigration is appeals had said?

[00:01:34] Speaker 04:
in January of 2018, 11 months before this case was decided, that the particular social group needed to be delineated before the decision and that the immigration judge had a responsibility to ensure that the specific grouping analyzed was included in their decision.

[00:01:55] Speaker 03:
But who would know better than the people that are involved?

[00:01:58] Speaker 03:
I guess I would say, I think you claim that

[00:02:03] Speaker 03:
that the law has changed, but at best, while the agency may have vacillated on whether a family can be a PSG, has it ever held that a family could not be a PSG?

[00:02:18] Speaker 03:
I don't think it has.

[00:02:21] Speaker 04:
There is a period of time between LEA 1 and LEA 2, which then got held and then remanded in 2021.

[00:02:29] Speaker 04:
There was a time where it appeared that the

[00:02:33] Speaker 04:
the Department of Justice would not accept family.

[00:02:37] Speaker 02:
But that was three days after the IJ already issued its decision because LEA 1, which said that family can serve as a basis of PSG, was May of 2017.

[00:02:47] Speaker 02:
This hearing before the IJ and IJ's decision was July 26 of 2019.

[00:02:52] Speaker 02:
It was only until July 29, so three days later, that LEA 2 came out saying family groups are not PSGs.

[00:03:01] Speaker 02:
So at the time of this hearing,

[00:03:04] Speaker 04:
Petitioners council could have argued for a family-based PSG based on lea1 which had been issued two years before lea2 came in and then It got held and then it was vacated and returned to lea1, but that wasn't until 2021 Let me ask you this council because it's not clear to me your motion for remand

[00:03:28] Speaker 01:
Do you intend for that to be read as a motion to reopen, a motion for reconsideration or both?

[00:03:35] Speaker 01:
Because given the references to the IJ fail to develop the record, that reads to me like a motion to reopen.

[00:03:47] Speaker 04:
I wasn't the attorney at the Immigration Court.

[00:03:50] Speaker 04:
I was not the attorney at the Board of Immigration Appeals.

[00:03:52] Speaker 01:
But what's your position on how this reads?

[00:03:56] Speaker 01:
Your opening brief, if I understand it correctly, essentially says that the law as to family-based group was in flux, and when it got settled, you sought a remand.

[00:04:07] Speaker 01:
But the problem is, I am reading the motion for remand.

[00:04:11] Speaker 01:
If it is to be characterized as a motion for reconsideration, there's no reference to

[00:04:16] Speaker 04:
matter of LEA No, there's not the I think and the the attorney that wrote the motion to remain is now an immigration judge And I have court with him next week, and I want to be careful how I speak I would not have handled this the same way.

[00:04:34] Speaker 04:
I would have been very clear about what the social group was from the beginning they chose to

[00:04:40] Speaker 01:
After I think that's the difficulty that we're struggling with right I'm sure you can appreciate that motion for reconsideration is different than a motion to reopen and normally it basically cites to the law that got changed assuming you know getting past Judge Cole's questions assuming that that there was a change in the lawn you want to take advantage of that the the law requires that

[00:05:03] Speaker 01:
The basis for reconsideration be laid out and so as I read this I'm like this is not a reconsideration Motion based on a change in the law at all because there's no reference to the purported change in the law So what do I do with that you're right my emotions to a man typically come with new evidence or something new or something compelling here instead of filing a BIA appeal brief which

[00:05:27] Speaker 04:
the attorney had indicated they would, they instead filed this remand because they believed that the lower court had mischaracterized the social group by failing to account.

[00:05:37] Speaker 03:
But is there any new evidence or previously undiscovered evidence that's being offered here?

[00:05:43] Speaker 04:
I've repeatedly spoken with the petition there.

[00:05:45] Speaker 04:
There is not new evidence at this time.

[00:05:48] Speaker 02:
there was that would be a separate motion to reopen to the board and not before this and the reason this motion to remand looks like a motion to reopen to me is that the very first sentence asked to remand her case to the immigration judge to fully develop the record and So it's you know further You know opening up evidentiary hearing taking in more evidence to develop the record so that's not a reconsideration is it no

[00:06:16] Speaker 04:
I would consider it more as a improperly phrased brief of addressing this is the issue that we want to get back in front of the judge for further fact-finding.

[00:06:30] Speaker 04:
And I think that that's what they were trying to do.

[00:06:33] Speaker 01:
Given that, how do we fault the BIA for the way they construed this motion as a reopening motion but not accompanied by any additional facts that would be presented before the IJ?

[00:06:48] Speaker 04:
I'm suspicious of how that was phrased by the board, because the board did invite further discussion.

[00:06:55] Speaker 04:
During the time where prosecutorial discretion was more robustly applied through the Department of Justice, they were issuing notices.

[00:07:04] Speaker 04:
And there's a notice in this file regarding prosecutorial discretion if anything else had changed, if anything else wanted to be filed.

[00:07:11] Speaker 04:
So it appears that the board was willing to accept filings all the way up until they issued that notice in 2024.

[00:07:21] Speaker 03:
Here's my problem, and I'm just going to put it out plainly that it is, I don't know how the BIA could have done anything differently there, but it looks like to me that your client lost, put on a case, lost, and now basically what your client's asking for,

[00:07:41] Speaker 03:
is a redo, I'd like to try again because what I did first didn't work, and you're not giving me any good reason for that.

[00:07:50] Speaker 03:
I'm not seeing an error as far as that goes.

[00:07:53] Speaker 03:
So that's, you know, of course it's not, and I'm not really seeing any path for relief for your particular client.

[00:08:03] Speaker 03:
Anyway, I try to look at it.

[00:08:07] Speaker 04:
So to be clear, and the reason why we want this case remanded for further fact finding is because we believe it was improper for the immigration judge to construct a social group that the respondent did not advocate for

[00:08:22] Speaker 04:
Respondents attorney did not advocate for we want it remanded because we don't believe that immigration judges Should take on the role of advocate and create their own social group.

[00:08:30] Speaker 02:
You know I read this hearing transcript And I just don't see how any of the cases you cite are implicated here Because she was counseled she specifically testified multiple times that her husband was targeted because he had money and

[00:08:47] Speaker 02:
She said that if she and her daughter went back to Guatemala, they would be targeted because they were perceived to have money having come from the United States.

[00:08:55] Speaker 02:
I'm just unclear.

[00:08:56] Speaker 02:
And she said, I've had no contact with my husband.

[00:08:59] Speaker 02:
He is the primary one to apply for asylum.

[00:09:03] Speaker 02:
But he returned to Guatemala because his mom was sick.

[00:09:06] Speaker 02:
And he's been there since February of 2018.

[00:09:07] Speaker 02:
I've had no contact with him.

[00:09:10] Speaker 02:
So I just, I mean,

[00:09:14] Speaker 02:
Understand petitioner would like to pin the blame on the IJ But there's a lot of case law that says as soon as the petitioner testifies such that the petitioners ineligible for relief The IJ doesn't have to do anything else and that's the way this testimony reads There's no nexus here to a PSG.

[00:09:32] Speaker 02:
It's not even clear that she's a member of a PSG She has no contact with the only person that was extorted for money It seems to me that the the panel

[00:09:46] Speaker 04:
wants to place the onus on a woman who had a sixth grade education.

[00:09:52] Speaker 02:
She has counsel.

[00:09:54] Speaker 02:
She has counsel.

[00:09:54] Speaker 02:
All the cases you cited are pro se litigants.

[00:09:58] Speaker 02:
So pro se litigants.

[00:09:59] Speaker 02:
And it doesn't say that the IJ gets transformed into counsel for the applicant.

[00:10:04] Speaker 02:
It says you can explore relevant facts.

[00:10:07] Speaker 02:
You can provide an opportunity, a reasonable opportunity to present your own narrative.

[00:10:11] Speaker 02:
And I guess I don't, from this hearing transcript, tell me where,

[00:10:16] Speaker 04:
She was precluded from providing a reasonable opportunity to provide our own narrative or where the IJ didn't ask for relevant facts The immigration judge didn't ask what the social group was and didn't take into account The the IFA the asylum application lists the motive it lists why they were targeted before it lists Why she's afraid to go back the immigration judge failed?

[00:10:40] Speaker 01:
Completely failed to consider the future harm argument from the actually says that she fears that the gang will assume we have money because we're returning from the US I suppose if you really kind of scour the record and You know inference after inference, then you could sort of read a family-based group there, but the more obvious PSG is a wealth-based PSG and that's what the IJ went with and council didn't say anything about it and

[00:11:10] Speaker 04:
They weren't wealthy then, they're not wealthy now.

[00:11:12] Speaker 04:
They're not perceived to be wealthy.

[00:11:14] Speaker 04:
He had money in his pockets.

[00:11:17] Speaker 04:
But the I-589, the asylum application itself says, I fear the Los Chapas gang will kill us for not paying the extortion money and leaving.

[00:11:26] Speaker 02:
Well, isn't that nexus, then, to

[00:11:28] Speaker 02:
criminal gain for extortion money?

[00:11:30] Speaker 02:
That's not, I mean, I'm looking at, this is her own counsel's examination.

[00:11:34] Speaker 02:
Are you afraid of returning to Guatemala?

[00:11:37] Speaker 02:
Yes.

[00:11:38] Speaker 02:
Why?

[00:11:38] Speaker 02:
She specifically says because they knew that perhaps we would be coming over here that we would have money.

[00:11:44] Speaker 02:
I mean, she says, I'm going to quote it.

[00:11:47] Speaker 02:
Well, I think that if they know that we are here in the United States, they will think that we have money, a lot of money.

[00:11:53] Speaker 02:
Is there any other reason you believe they went after your husband?

[00:11:56] Speaker 02:
No, just for the money.

[00:11:57] Speaker 02:
I mean, these are her own council's examination questions that she repeatedly says, you know, he thought they had money and they wanted him to give money.

[00:12:06] Speaker 02:
Why did the gang exhort your husband?

[00:12:08] Speaker 02:
That was her answer.

[00:12:09] Speaker 02:
So it's like repeatedly throughout here, the nexus is not to a family-based PSG.

[00:12:19] Speaker 04:
It is a simple trial transcript, very simple in my opinion, too simple in my opinion, which is why I believe it should be remanded.

[00:12:27] Speaker 04:
But I want this court to please consider that the immigration judges should have a duty to develop the record in all cases, not just pro se cases, like the Fourth Circuit did.

[00:12:39] Speaker 04:
The Fourth Circuit said all cases, the immigration judges have a duty in all cases to develop the record.

[00:12:43] Speaker 03:
Well, it seems like you're asking that the IJ develop the record in a winning way.

[00:12:49] Speaker 03:
And that's different than developed.

[00:12:50] Speaker 03:
I don't see anything here that requires that.

[00:12:53] Speaker 03:
But let me find out.

[00:12:54] Speaker 03:
You're over your time.

[00:12:55] Speaker 03:
Let me find out if my colleagues have any additional questions.

[00:12:59] Speaker 03:
Thank you.

[00:13:00] Speaker 03:
All right.

[00:13:00] Speaker 03:
They don't.

[00:13:01] Speaker 03:
I'll give you one minute on rebuttal, even though we've already gone over.

[00:13:03] Speaker 03:
Thank you.

[00:13:05] Speaker 03:
All right.

[00:13:05] Speaker 03:
We'll hear from the government.

[00:13:08] Speaker 00:
Thank you honor Zachary Hugh banks for the respondent and may have please the court.

[00:13:13] Speaker 00:
These consolidated petitions should be denied because the board did not air and declining to remand proceedings to give petitioner a 2nd opportunity, a 2nd bite the apple to present a legal argument that she could have made before the immigration judge, but did not despite being represented by counsel.

[00:13:28] Speaker 00:
1st, as your honors have noted the board correctly recognize that despite.

[00:13:33] Speaker 00:
filing a motion to remand, which follows the same constructions as a motion to reopen.

[00:13:38] Speaker 00:
The position did not present any new or reasonably unavailable evidence in support of this new legal argument.

[00:13:44] Speaker 01:
And second, independently dispositive, the board recognized that position did not demonstrate a reasonable likelihood of success because- Council, what do you make of the argument that there was a change in the law, that the family-based PSG was in flux and then matter of LEA came out?

[00:14:02] Speaker 01:
I know that we had discussed with counsel the fact that the motion to Remian really reads more like a motion to reopen for additional factual development.

[00:14:12] Speaker 01:
But in the briefing waiver, its petitioners were much more specific about the need to develop the record as to a family-based PSG siding to LEA 3.

[00:14:26] Speaker 00:
Yes, sir.

[00:14:27] Speaker 00:
I do acknowledge that before the board positioners did reference matter of a three, I will acknowledge that in the briefing waiver, as you said, but I disagree that this is the agencies, the attorney general's evolving understanding of family based claims represents a change of law, much less some kind of fundamental change of law that may warrant reopening, remand reconsideration, however you want to describe it.

[00:14:53] Speaker 00:
And there's multiple reasons for that.

[00:14:56] Speaker 02:
Let me ask you, how does that actually work?

[00:14:58] Speaker 02:
Because LEA 1 is May 24, 2017, and it says, we agree with the parties that the members of an immediate family may constitute a particular social group.

[00:15:07] Speaker 02:
So LEA 1 was in favor of the petitioner, and it was decided more than two years before her hearing and before the IJ decision.

[00:15:16] Speaker 02:
If anything, the law got worse after her hearing.

[00:15:20] Speaker 02:
So I'm unclear on why this is a,

[00:15:23] Speaker 02:
change in the law that created new opportunities for this petitioner to make new legal arguments.

[00:15:29] Speaker 02:
She had the law in her favor.

[00:15:31] Speaker 02:
Remember, 2017, this was during the Biden administration.

[00:15:36] Speaker 02:
No, it was not.

[00:15:37] Speaker 02:
It was not.

[00:15:38] Speaker 02:
It was not.

[00:15:38] Speaker 02:
It was not.

[00:15:39] Speaker 02:
But this law was in her favor, and then it only got changed in 2019 after the IJ decision.

[00:15:47] Speaker 00:
Your honor, I completely agree.

[00:15:48] Speaker 00:
And as we note in our brief, even separate from agency precedent, this court has considered family still as a quintessential particular social group.

[00:15:57] Speaker 00:
That's Rios versus Lynch.

[00:15:59] Speaker 00:
And I believe it cites Sanchez Trujillo versus the INS, which is from 1986.

[00:16:03] Speaker 00:
This court has a long reign of precedent.

[00:16:06] Speaker 00:
And as your honor just noted, even to my colleague on the other side's point of the interim order staying LEA 1,

[00:16:14] Speaker 00:
That was still the most relevant precedent.

[00:16:16] Speaker 00:
And there's this bevy of Ninth Circuit precedent that helped her.

[00:16:19] Speaker 00:
So I don't fully understand when matter of LEA 2 did not come out until after the IJ's decision and matter of LEA 2 itself did not foreclose the possibility of a family claim.

[00:16:31] Speaker 00:
It was always petitioner's burden to present this argument.

[00:16:33] Speaker 00:
And she could have, regardless of the law, but as Your Honor noted, the law was more favorable to her at her hearing than it would have been days later.

[00:16:42] Speaker 03:
In your view, is there, you know, I think obviously we don't like to be hard-hearted in the way that if someone really does have a path to relief and it's somehow present, is there, do you see that in this record at all?

[00:17:04] Speaker 00:
Respectfully no, your honor, because as the board noted.

[00:17:08] Speaker 00:
When petitioner can't demonstrate this reasonable likelihood of success because of the immigration judges.

[00:17:13] Speaker 00:
Nexus finding so petitioner could have presented.

[00:17:16] Speaker 00:
Several particular social groups or other protected grounds.

[00:17:20] Speaker 00:
None of those get past the immigration judges fact finding based off petitioners own testimony of why she feared returning to Guatemala and this court has precedent that being a returning immigrant or being someone who's perceived to have access to.

[00:17:35] Speaker 00:
Money or wealth that doesn't give rise to protection under our immigration laws.

[00:17:41] Speaker 00:
Again, I do not want to sound cold hearted myself, but.

[00:17:45] Speaker 00:
With that immigration judge's actual finding, there doesn't, petitioner's arguments wouldn't get there.

[00:17:51] Speaker 00:
And that's what the board recognized by saying there's no reasonable likelihood of success even with this new legal argument.

[00:17:57] Speaker 02:
But if we construe what she filed her motion as a motion for reconsideration, then we have to reverse.

[00:18:06] Speaker 02:
Because then that was error to treat it as a motion reopen.

[00:18:11] Speaker 00:
I think that would be taking an argument that petitioner didn't fully advance in the briefing, your honor.

[00:18:16] Speaker 00:
I don't, I don't think the court should sue Espante by and re-characterize.

[00:18:22] Speaker 02:
It's in a waiver briefing.

[00:18:23] Speaker 02:
Why isn't that enough?

[00:18:27] Speaker 00:
Well, I think the board adequately responds to the arguments and that's kind of the due process issue.

[00:18:32] Speaker 00:
I don't think the board needed to do a separate analysis considering this as a motion to reconsider, especially again with the context.

[00:18:42] Speaker 00:
This wasn't a final board decision.

[00:18:44] Speaker 00:
She was seeking to reconsider what petitioner wanted is a second bite of the apple to create a new talk about.

[00:18:52] Speaker 02:
I don't see it at all.

[00:18:56] Speaker 00:
I don't think the board had to address specifically I'm saying petitioner's argument at bottom is that she wanted to create a new particular social group.

[00:19:04] Speaker 00:
So, again, she may bring out this new precedent, but that doesn't.

[00:19:10] Speaker 00:
Get her anywhere and I think that's I think the board kind of construe that a little bit in the due process analysis as well as there's no error and there's no prejudice here.

[00:19:18] Speaker 00:
So I think it's all wrapped together.

[00:19:20] Speaker 00:
And again, even if we tried to reconstruct this motion now, despite petitioner not particularly advancing this theory before this court, it doesn't get petitioner anywhere.

[00:19:30] Speaker 00:
Even if we, it would be frankly almost futile if we send it back to the board, change how you view this motion, given all the context of at the IJ hearing,

[00:19:43] Speaker 00:
The law was incredibly favorable to her and matter of ability to hadn't coming out had not come out yet.

[00:19:48] Speaker 00:
Yeah, there are no further questions.

[00:19:54] Speaker 00:
The government would rest on our brief.

[00:19:57] Speaker ?:
We have any further questions.

[00:19:59] Speaker ?:
All right.

[00:19:59] Speaker 00:
Thank you.

[00:20:00] Speaker 00:
Thank you.

[00:20:00] Speaker 00:
You're honest.

[00:20:12] Speaker 04:
So there were eight months between when LEA 1 was automatically stayed and when the petitioners had their individual hearing.

[00:20:24] Speaker 04:
It was a few days later that it was vacated.

[00:20:27] Speaker 04:
And then approximately one month after the 2021 decision in LEA, they filed the motion.

[00:20:39] Speaker 04:
seem to be a motion based on this change in law or this clarification of the law.

[00:20:46] Speaker 04:
I don't think they want another bite at the apple.

[00:20:48] Speaker 04:
I think they want one bite at the apple.

[00:20:50] Speaker 04:
They just want to be able to say what their social group is and not have an immigration judge decide it for them.

[00:20:56] Speaker 04:
And that's whether they had an attorney that was doing their job or not.

[00:21:00] Speaker 04:
Sometimes attorneys aren't perfect.

[00:21:03] Speaker 04:
Attorneys make mistakes.

[00:21:05] Speaker 04:
And sometimes judges do too.

[00:21:07] Speaker 04:
And this is an opportunity for us to right that wrong, send it back down, give them an opportunity to say that the nuclear family group is a social group that should be considered.

[00:21:21] Speaker 03:
All right.

[00:21:21] Speaker 03:
Thank you for your argument in this matter.

[00:21:23] Speaker 03:
This case will stand submitted.

[00:21:25] Speaker 03:
And this court is in recess.