[00:00:16] Speaker 00:
Good morning, Your Honor.

[00:00:20] Speaker 00:
My name is Joan Del Valle and I represent petitioners Yesenia Ramirez de Paz and her minor son Joshua.

[00:00:30] Speaker 00:
Ms.

[00:00:30] Speaker 00:
Ramirez and her son have challenged the November 15, 2023 decision of the Board of Immigration Appeal to dismiss their appeal of the immigration judge from May 12, 2022, denying their application for asylum, withholding of removal and protection under the Convention Against Torture.

[00:00:50] Speaker 00:
Both the immigration judge and the board did not dispute Mrs. Ramirez's credible testimony and that she was raped on multiple occasions in Guatemala or that she and her family suffer many incidents of violence that they report to the police and with which they receive no meaningful assistance.

[00:01:08] Speaker 05:
So where did the board go wrong?

[00:01:10] Speaker 00:
I'm sorry?

[00:01:11] Speaker 05:
Where did the board go wrong?

[00:01:13] Speaker 00:
I think that the board error when they affirmed the immigration judge denial and solely because the immigration judge did not hold that the respondent did not show that reporting the rapes and persecution that Ms.

[00:01:27] Speaker 00:
Ramirez suffered will be futile in the case.

[00:01:31] Speaker 04:
So can I ask you about that?

[00:01:32] Speaker 04:
Because my concern is, we have a prior case, Velazquez-Gaspar versus Barr, issued in 2020, where we considered this also in Guatemala.

[00:01:45] Speaker 04:
And we concluded that substantial evidence supports the agency's determination that had Velazquez-Gaspar reported her abuse, the Guatemalan government could have protected her from Gonzalez.

[00:01:56] Speaker 04:
And so what I'm concerned about, and we walked through in that case the country reports

[00:02:03] Speaker 04:
I mean, you seem to be relying on saying that, hey, the government isn't doing anything about this.

[00:02:12] Speaker 04:
Could you explain to me why we would not be bound by Velázquez-Gaspar in that?

[00:02:19] Speaker 04:
Meaning, if we ruled for you, wouldn't we be violating our own president?

[00:02:25] Speaker 00:
Your Honor, yes.

[00:02:29] Speaker 00:
I discussed in my brief the situation with Velasquez-Gaspar.

[00:02:36] Speaker 00:
And the fact is that Guatemalan law criminalized rape and domestic abuse, and officials investigate and prosecute cases under those laws.

[00:02:45] Speaker 00:
But the conviction rates are exceptionally low, and officers often face a lack of resources and training

[00:02:52] Speaker 00:
We cannot limit our analysis to whether the government can control the attackers.

[00:02:57] Speaker 00:
We also have to look whether it protected the attacker.

[00:03:00] Speaker 00:
In this particular case, she actually did file complaints.

[00:03:04] Speaker 00:
Actually, she didn't file the complaints with the police directly of what happened, but she even went to the labor board to request

[00:03:14] Speaker 00:
Past earnings when she was fired from the work where she was free never filed a complaint with the police.

[00:03:20] Speaker 04:
Is that correct?

[00:03:21] Speaker 00:
She did not yeah, she did not your honor because In there in their mind if she wasn't heard on the Labor Commission, which is something Let's talk about the Labor Commission because I mean first of all, that's a civil claim

[00:03:35] Speaker 04:
But help me understand.

[00:03:37] Speaker 04:
I was trying to look into it.

[00:03:38] Speaker 04:
It seems like she actually did get heard.

[00:03:41] Speaker 04:
The problem was she just couldn't collect.

[00:03:44] Speaker 04:
Her employer wouldn't pay.

[00:03:46] Speaker 04:
So help me understand why.

[00:03:48] Speaker 04:
I mean, it seems like, I mean, we have that in the United States where a plaintiff brings a claim and they might even get a judgment.

[00:03:54] Speaker 04:
But if they can't collect, is that what happened here?

[00:03:57] Speaker 04:
Is she got a judgment but just couldn't collect?

[00:03:59] Speaker 04:
Or was there more to it?

[00:04:00] Speaker 00:
When they went in front of the labor board, the person that was harassing, the person that raped her, that was the person that was there, promised that he was going to pay.

[00:04:11] Speaker 00:
But obviously, just to say in front of the board, when it went out, she tried to collect, and then he went back and says, OK, you have sex with me, and I will pay you back.

[00:04:22] Speaker 00:
The same situation that happens.

[00:04:23] Speaker 00:
When she tried to go back and explain.

[00:04:25] Speaker 00:
How did the how did oh sorry you were going to say she went back to the you went back to the labor to the war and say hey it was just here he pretended that he was going to do anything is not that he don't can pay the money is that he's you know asking other what was the board supposed to.

[00:04:44] Speaker 04:
do issue another order.

[00:04:45] Speaker 04:
They did give her an order, didn't they?

[00:04:49] Speaker 00:
Coming into contempt.

[00:04:51] Speaker 00:
No, because obviously there was an agreement, a friendly agreement in front of the board.

[00:04:56] Speaker 04:
So they never issued an order.

[00:04:58] Speaker 04:
They just thought it was going to be taken

[00:04:59] Speaker 00:
is what's going to be taken care of.

[00:05:01] Speaker 00:
When she said, hey, what we get agreed here, nothing happened.

[00:05:05] Speaker 00:
He didn't agree.

[00:05:06] Speaker 00:
So why we don't bring him back and force him and give an order on that?

[00:05:10] Speaker 00:
They ignore her.

[00:05:11] Speaker 00:
You have to sort it out.

[00:05:12] Speaker 00:
This is not much money.

[00:05:14] Speaker 00:
Move on.

[00:05:15] Speaker 00:
Next one.

[00:05:16] Speaker 00:
So if that happened just on the Labor Board, why she will go and accuse him on the police when the Labor Board that she was just asking for money ignore her claims?

[00:05:28] Speaker 00:
What did she think that was going to be different on the police?

[00:05:32] Speaker 04:
So I guess coming back to Velázquez-Gaspar, you know, you make a case that we need to look at the enforcement, not just the laws on the books.

[00:05:44] Speaker 04:
But I, you know, that seems, the dissent in Velázquez-Gaspar sort of

[00:05:51] Speaker 04:
accepted your claim, but the fact that a majority rejected it, I guess I'm still stuck with why is that distinguishable and how can we rule in your favor?

[00:06:01] Speaker 04:
If we were writing on a blank slate, maybe it would be different.

[00:06:05] Speaker 00:
I understand, but we have to go focus specifically on what happened to Ms.

[00:06:10] Speaker 00:
Ramirez de Paz.

[00:06:12] Speaker 06:
Yes, I thought we looked at the record in each case.

[00:06:15] Speaker 00:
Correct.

[00:06:16] Speaker 06:
So in the record, that's what the board looks at.

[00:06:18] Speaker 00:
Correct.

[00:06:19] Speaker 00:
In this case, the board just focused on one thing, but didn't consider all the compelling evidence that was presented.

[00:06:27] Speaker 00:
That's part of our argument, that they just went by just one report and ignore all the other secondary evidence that was provided.

[00:06:37] Speaker 04:
So that seems to be a different argument.

[00:06:39] Speaker 04:
that argument is they ignored you're right we also have precedent that says you you can't ignore that evidence but we also have precedent that says we presume that they considered it so what what is your first of all what's the evidence that was ignored and what's tell us why that wasn't considered because the decision by itself doesn't mention anything whatsoever such as

[00:07:03] Speaker 00:
such as when the board is bringing up the evidence, it just goes back to the decision of the judge that the country report states that there are laws that protect women.

[00:07:15] Speaker 00:
But then don't consider a lot of other evidence that was presented that while the laws are there, doesn't mean that are implemented.

[00:07:23] Speaker 04:
Is there any evidence outside of the implementation that you think the board did not consider?

[00:07:30] Speaker 00:
The facts, again, that overall, there's many studies and many reports that reflects that the police doesn't do anything, but more of that, when a woman goes and complain about sexual assault or sexual abuse, whether it's from the work or whether it's on a relationship, it's completely ignored and it's considered like it's a domestic situation that you have to sort it out on your own.

[00:07:57] Speaker 04:
So basically all that fits within the implementation.

[00:08:00] Speaker 04:
Is there any evidence post-2020?

[00:08:03] Speaker 04:
Is there new country report evidence between 2020 and whenever the board's decision was that you think was disregarded?

[00:08:18] Speaker 06:
It has to be evidence that was in the record.

[00:08:23] Speaker 00:
Yeah, I'm sorry?

[00:08:25] Speaker 06:
It has to be evidence that was in the record.

[00:08:28] Speaker 00:
I'm so sorry.

[00:08:29] Speaker 00:
I cannot hear half of my, I'm losing the ear on this, so I didn't hear you.

[00:08:34] Speaker 06:
It has to be evidence that was in the record.

[00:08:36] Speaker 00:
Correct.

[00:08:37] Speaker 06:
So was there any, I think that's what my colleagues was referring to, Judge Nelson was referring to.

[00:08:46] Speaker 06:
The country reports in the record.

[00:08:51] Speaker 06:
Which ones are they?

[00:08:53] Speaker 00:
Well, there is an updated country conditions that explain clearly that the efforts and the corruption that have been going on in Guatemala and particularly how women are treated in Guatemala and how this has been ignored and there is updated information after the Velasquez case that is being referred here.

[00:09:20] Speaker 04:
Okay.

[00:09:21] Speaker 04:
Do you want to reserve time?

[00:09:22] Speaker 04:
Yes, please.

[00:09:23] Speaker 04:
Okay.

[00:09:35] Speaker 01:
Good morning, Your Honors.

[00:09:35] Speaker 01:
May it please the Court?

[00:09:36] Speaker 01:
Good to see you again.

[00:09:38] Speaker 01:
Nice to see you again.

[00:09:38] Speaker 01:
Your Honors, in this case, opposing

[00:09:45] Speaker 01:
petitioners council says that the board ignored evidence but it's not clear what evidence that was.

[00:09:53] Speaker 01:
She's not making that really clear or pointing to anything specific in the record.

[00:09:58] Speaker 04:
But I think the stronger argument she's making, I'd like to hear, she does cite I think to the Madrigal case which does say that we have to look beyond just

[00:10:11] Speaker 04:
the fact that these laws are on the books, we have to actually look at enforcement.

[00:10:16] Speaker 04:
Did the BIA comply with its obligation under that?

[00:10:20] Speaker 01:
Yes, Your Honor.

[00:10:22] Speaker 01:
The fact is that the petitioner did not report the claims of sexual abuse or the life attack.

[00:10:32] Speaker 04:
We don't require a report.

[00:10:33] Speaker 04:
I mean, it's a consideration, but that

[00:10:35] Speaker 04:
But you can't win, I think, just by saying she didn't report.

[00:10:39] Speaker 04:
I mean, we still look to futility.

[00:10:41] Speaker 04:
And that seems to me the question that we're trying to answer is, well, was it futile to report in Guatemala?

[00:10:50] Speaker 01:
No, it would not have been futile and she hasn't made that showing.

[00:10:55] Speaker 01:
As you noted, the petitioner did bring that labor claim and apparently the court or board did help her, that labor board.

[00:11:09] Speaker 01:
Whether or not it was a specific decision or some kind of agreement, it's not clear from the record.

[00:11:16] Speaker 01:
They don't offer much

[00:11:19] Speaker 01:
detail about that but it sounds like that body did help the petitioner pursue her claim of back pay but the problem with the heart of her claim though is the allegations of sexual abuse rape what right and that she she points and she points to the laws

[00:11:39] Speaker 06:
I mean, as Judge Nelson said, there are laws that Guatemala has adopted to protect women.

[00:11:46] Speaker 01:
Right.

[00:11:46] Speaker 06:
But the record here, I mean, if you go to the record and she lays it all out in her briefs, the record here, there's on the ground, so to speak.

[00:11:57] Speaker 06:
There's not much going on.

[00:11:59] Speaker 06:
Well, I mean, according to what's in the record and where the board doesn't really even acknowledge that.

[00:12:06] Speaker 01:
Well, the board affirmed the immigration judge's decision and the immigration judge did point to the country conditions evidence.

[00:12:17] Speaker 01:
The board also cited the record pointing to the pages where the country conditions evidence is.

[00:12:25] Speaker 06:
Does that report to the specific pages that council report cites to in her brief?

[00:12:31] Speaker 06:
Well, her whole point is, yeah, they did acknowledge that the laws, and they did acknowledge that Guatemala has taken steps to protect women.

[00:12:41] Speaker 06:
But on the ground and in the practices, they've not said, you know, it doesn't really mean anything.

[00:12:50] Speaker 01:
The board did cite to the pages, including the evidence that, yes, the Guatemalan government is not

[00:13:00] Speaker 01:
able to convict and arrest every single person who has committed a crime against women or sexual abuse or domestic violence, but that's not what's required.

[00:13:15] Speaker 01:
The government of Guatemala does make efforts to arrest people who perpetrate crimes against women.

[00:13:24] Speaker 01:
They have convicted people and in Velasquez,

[00:13:29] Speaker 01:
The court determined that based on the evidence of Guatemalan country conditions, which are very similar to these country conditions in the record, that the government was willing and able to protect, would have been able to protect her.

[00:13:50] Speaker 01:
if that petitioner had reported the abuse.

[00:13:53] Speaker 04:
Is there something in the record beyond what Velasquez, was it in the record in Velasquez-Gaspar?

[00:13:59] Speaker 04:
Meaning, I mean, she sort of, your opposing counsel said there was additional information.

[00:14:06] Speaker 04:
Is there updated country conditions information that we did not consider in Velasquez-Gaspar?

[00:14:13] Speaker 04:
Or a better question that was not in the record,

[00:14:17] Speaker 04:
Is there evidence in the record here that would distinguish this case from Velazquez-Caspar as far as country conditions are concerned?

[00:14:25] Speaker 01:
The evidence that the court looked at in that case was from 2014.

[00:14:29] Speaker 01:
The country report in this record is 2020.

[00:14:34] Speaker 01:
It is slightly different.

[00:14:38] Speaker 03:
I guess that's the question then.

[00:14:40] Speaker 03:
Is there anything that would change that analysis?

[00:14:44] Speaker 01:
Well, Your Honor, I don't know the specific numbers in the 2014 report, but... So the government continues to pursue these cases in Guatemala of arresting persons, and they also provide support to the victims, counseling and also restraining orders, which I'm not sure was mentioned in

[00:15:11] Speaker 01:
the the Lasquez case and also a distinguishing fact in the Lasquez is that the petitioner in that case said she didn't report the abuse because she she was afraid that the abuser would harm her and in this case there's no testimony like that so I'm not sure whether that matters I mean the end of the day seems to me that

[00:15:40] Speaker 04:
to question it, you know, they're similar in the sense that there was no abuse reported to the police.

[00:15:47] Speaker 01:
Well, she also had to show that it would have been futile or dangerous.

[00:15:51] Speaker 01:
Well, right.

[00:15:51] Speaker 01:
And in that case, she was saying it would have been dangerous.

[00:15:53] Speaker 04:
That's what we're trying to answer.

[00:15:55] Speaker 04:
I'm just trying to figure.

[00:15:56] Speaker 04:
Oh, I see.

[00:15:57] Speaker 04:
I see.

[00:15:58] Speaker 04:
In that case, she was saying danger.

[00:15:59] Speaker 04:
Although that didn't seem to be what the opinion relied on.

[00:16:03] Speaker 04:
I mean, that might be a factual distinction, but the opinion addressed futility.

[00:16:06] Speaker 04:
So what I'm trying to figure out is, is there something

[00:16:10] Speaker 04:
that would allow us to distinguish Velasquez-Gaspar.

[00:16:16] Speaker 01:
There's a report that the board referred to which let's see it's a report about domestic violence which I'm not sure if that was in the record in the Velasquez case.

[00:16:33] Speaker 04:
And what does that report in this case say?

[00:16:37] Speaker 01:
The Guatemalan government has laws against femicide and it describes that legislation and how the government provides comprehensive assistance to victims of domestic violence.

[00:16:59] Speaker 01:
There's support hotlines.

[00:17:01] Speaker 04:
And when was that report written, do you know?

[00:17:06] Speaker 04:
Can you give me the record sites on that?

[00:17:07] Speaker 01:
595 is where it starts.

[00:17:12] Speaker 01:
It was dated, the report is dated 2012, but I'm not sure if that was in the other record in the last case.

[00:17:22] Speaker 01:
So that might be one of the differences.

[00:17:27] Speaker 01:
So unlike the case Velasquez, the petitioner in this case didn't make any attempt.

[00:17:35] Speaker 06:
We lost.

[00:17:36] Speaker 06:
Did we lose Judge Lasnik?

[00:17:43] Speaker 02:
Judge Lasnik, you there?

[00:17:45] Speaker 02:
Judge Lasnik has dropped from the call.

[00:17:46] Speaker 02:
Please stand by.

[00:17:47] Speaker 02:
OK.

[00:17:48] Speaker 04:
All right.

[00:17:50] Speaker 04:
Bear with us.

[00:17:51] Speaker 04:
We've got our experts on that.

[00:18:18] Speaker 02:
Here comes Judge.

[00:18:25] Speaker 02:
Yeah.

[00:18:26] Speaker 02:
Come on and help.

[00:18:27] Speaker 02:
Thanks.

[00:18:28] Speaker 02:
Thank you.

[00:18:28] Speaker 02:
I think we've got Judge Lasnik back.

[00:18:31] Speaker 02:
I'm sorry about that.

[00:18:32] Speaker 02:
Thank you.

[00:18:33] Speaker 02:
I had a technical issue here.

[00:18:34] Speaker 02:
So thank you.

[00:18:35] Speaker 02:
No, no problems.

[00:18:38] Speaker 01:
Your Honor, the court should

[00:18:43] Speaker 01:
Like Ann Velasquez determined that the petitioner failed to show that it would have been futile to report her abuse and the knife attack.

[00:18:54] Speaker 01:
She made no attempt to do that and she never explained why she didn't report those incidents other than to say that while the police or the authorities didn't help

[00:19:08] Speaker 01:
her family with these other, you know, other vague instances of harm that were not based on the claims of her being sexually abused or the knife attacks.

[00:19:22] Speaker 01:
So those other claims where her family members were somehow harmed by neighbors, she didn't provide enough evidence or details about those incidents

[00:19:37] Speaker 01:
or what exactly happened after making any reports to the police.

[00:19:45] Speaker 01:
And she didn't show that any of that is connected to her workplace harms, the sexual harassment that she suffered.

[00:19:57] Speaker 01:
And so basically she just, the record doesn't compel the conclusion here.

[00:20:04] Speaker 01:
that it would have been futile to report her harm.

[00:20:08] Speaker 01:
And that's what the standard she has to meet is very high.

[00:20:12] Speaker 01:
And in this case, she didn't meet that standard of compelling the conclusion that the government of Guatemala would not have helped her or would have been unable to help her.

[00:20:25] Speaker 01:
And as far as the cat claim goes, the petitioner failed to show any particularized harm, threat of harm that she faces.

[00:20:39] Speaker 01:
There's no evidence that anyone is searching for her or has threatened her.

[00:20:47] Speaker 01:
That is dispositive of her cat claim, as well as the acquiescence is also another factor that the agency relied on that she didn't share.

[00:21:00] Speaker 04:
You're overtime counsel, so yeah.

[00:21:02] Speaker 04:
No, we thank you for your argument.

[00:21:03] Speaker 01:
Thank you.

[00:21:10] Speaker 00:
Thank you, Your Honor.

[00:21:11] Speaker 00:
Quickly, because I don't have more time.

[00:21:14] Speaker 00:
I want to say that the fact that the family has provided reports to the police and nothing has happened, making Foothill for her, that is a woman.

[00:21:23] Speaker 00:
So if they don't hear my father, they're not going to hear me.

[00:21:27] Speaker 00:
The mere existence of laws making crimes such as rape, illegal, and claiming to assist the victim of crime do not establish that meaningful government protection can be obtained.

[00:21:37] Speaker 00:
And that's discussed on Brigham's Rodriguez.

[00:21:40] Speaker 00:
It is well recognized that a country's laws are not always reflective of actual country condition.

[00:21:46] Speaker 00:
Ample evidence demonstrates that reporting will have been futile and dangerous in her case, Your Honor.

[00:21:51] Speaker 00:
And there is evidence when the victim is a woman,

[00:21:56] Speaker 00:
that was presented to the court and is not discussed either by the judge or by the board.

[00:22:01] Speaker 00:
Also, the report about Guatemala domestic violence, including the legislation and the lack of protection against women.

[00:22:09] Speaker 00:
So either way, it didn't matter whether she went to the report to the police or not.

[00:22:16] Speaker 00:
Nothing was going to change.

[00:22:17] Speaker 00:
And she tried.

[00:22:19] Speaker 00:
It's not something that, oh, I'm going to go to the United States and jump.

[00:22:22] Speaker 00:
She tried.

[00:22:22] Speaker 00:
She stayed there for a long period of time and supported this abuse that she had and tried the best.

[00:22:30] Speaker 00:
And she has no help.

[00:22:31] Speaker 00:
If she didn't have help from the Labor Commissioner, how does she think that it's going to be helped by the police or the government?

[00:22:36] Speaker 04:
Okay.

[00:22:37] Speaker 04:
Thank you, counsel.

[00:22:38] Speaker 04:
Thank you to both counsel for your arguments in the case.

[00:22:41] Speaker 00:
Thank you, Your Honor, to all of you.

[00:22:42] Speaker 00:
Hope you have a fantastic day.

[00:22:44] Speaker 04:
Thank you.

[00:22:45] Speaker 04:
Thank you.

[00:22:46] Speaker 04:
The case is now submitted and we'll move on to