[00:00:00] Speaker 01:
Good morning, your honors.

[00:00:02] Speaker 01:
May it please the court, my name is Jalissa Ramirez, certified law student on behalf of the petitioner, Dennis Rivera-Trigueros.

[00:00:08] Speaker 01:
I would like to reserve five minutes for rebuttal, which my colleague will deliver, and we will keep track of our time.

[00:00:13] Speaker 03:
Could you pull the mic down?

[00:00:15] Speaker 01:
Yes.

[00:00:17] Speaker 05:
Well, although, I'm sorry, but you have a total of, OK, so your time is set for the 10 minutes, not counting the rebuttal.

[00:00:24] Speaker 05:
OK, go ahead.

[00:00:27] Speaker 01:
The BIA abused its discretion in denying Mr. Rivera-Trigueros's motion to reopen based on evidence that the conditions in El Salvador had significantly deteriorated under the state of exception.

[00:00:39] Speaker 01:
The BIA made two overarching errors.

[00:00:41] Speaker 01:
First, it erred in its finding that the conditions in the country had not changed, and second, it erred in its prima facie finding.

[00:00:48] Speaker 01:
Turning first to the BIA's first error, to show materially changed country conditions, Mr. Rivera-Trigueros only needs to show that the conditions in 2024 were qualitatively different from the conditions in 2022.

[00:01:02] Speaker 01:
And under Reyes-Garrado, this is a low threshold because the change need not be drastic, especially if the conditions were already severe at the time of the original hearing.

[00:01:14] Speaker 01:
And here, Mr. Rivera-Trigueros' evidence showed several material changes, any one of which is sufficient to require reopening.

[00:01:22] Speaker 01:
And I'd like to focus primarily on the change in Mr. Rivera-Trigueros' detention status.

[00:01:28] Speaker 01:
In 2022, the immigration judge found that Mr. Rivera-Trigueros' evidence had failed to show that he would come into the custody of Salvadoran officials.

[00:01:39] Speaker 01:
In fact, the immigration judge believed that at most, Mr. Rivera-Trigueros would face, quote, additional screening and surveillance.

[00:01:47] Speaker 01:
In contrast, by 2024, the BIA found that Mr. Rivera-Trigueros is now likely to be detained in El Salvador under the current state of exception.

[00:01:57] Speaker 01:
And I think it's important for me to highlight what detention entails in Salvadoran detention.

[00:02:04] Speaker 01:
The 2024 evidence, which the BIA was required to accept as true, showed that Salvadoran detainees are subject to torture that is, quote, inflicted upon thousands of persons detained under the state of exception regime.

[00:02:19] Speaker 01:
And that same Pristolsha report at page 252 describes that this torture is, quote, widespread and systematic, and it is part of a policy of punishment that is perpetrated by the prison guards.

[00:02:29] Speaker 05:
If I can ask you to go back for just a moment to the question of the probability that he will be detained.

[00:02:38] Speaker 05:
My understanding of the record in 2022 was that you submitted evidence that

[00:02:47] Speaker 05:
They were targeting people with tattoos.

[00:02:49] Speaker 05:
He has tattoos that are perhaps indicative of gang affiliation and that the Salvadoran authorities were targeting people with such tattoos.

[00:03:00] Speaker 05:
What is the change in the evidence on the likelihood of detention from what you had already then to what you have now?

[00:03:10] Speaker 01:
The BIA's finding that his likelihood of detention has changed is itself a change because the conditions in El Salvador have changed and they reflect the change in the Salvadorian government's treatment of individuals like Rivera-Trigueros.

[00:03:22] Speaker 01:
Although the state of exception was in place in 2022, that in and of itself does not prohibit this court from finding a change because

[00:03:34] Speaker 01:
The comparison here is to look also at the evidence of how the conditions in confinement themselves significantly worsened and how that materially affects, specifically, Mr. Rivera-Trigueros' claim.

[00:03:45] Speaker 05:
And do you understand the, I mean, I may ask this at the government as well, do you understand the board to have made a finding that the likelihood that Rivera-Trigueros will be detained is different now than it was in 2022?

[00:04:01] Speaker 01:
Yes, Your Honor, and I think the BIA's own citations on this are informative.

[00:04:05] Speaker 01:
The BIA, in making that finding, specifically cited to what was respondent's brief at pages 9 through 10, and that corresponds to our record at page 39 through 40.

[00:04:15] Speaker 05:
This is the portion... I'm sorry, this is in the new order or the old order?

[00:04:18] Speaker 01:
In the new BIA order.

[00:04:20] Speaker 01:
Okay.

[00:04:20] Speaker 01:
At car five.

[00:04:22] Speaker 05:
Okay.

[00:04:23] Speaker 05:
Okay.

[00:04:23] Speaker 01:
And that portion of the motion to reopen exclusively discussed the changes in El Salvador.

[00:04:30] Speaker 01:
Specifically, it discussed the changes in that now there had been a report of over 70,000 arrests.

[00:04:35] Speaker 01:
And it specifically also discussed that the president of El Salvador, by that point, had also been re-elected unconstitutionally for a second consecutive term, thereby solidifying the permanent status of the state of exception and affecting Mr. Rivera-Tigueros' likelihood of detention.

[00:04:52] Speaker 01:
And once detained, again, the evidence also demonstrates that there was a significant change in the severity and prevalence of torture within prisons, specifically.

[00:05:02] Speaker 01:
For instance, at page 1118 of the record, which is the 2022 evidence, the Crystal Salt Human Rights Organization reported there had been five worrying deaths in custody under the state of exception.

[00:05:18] Speaker 01:
By 2024, Dr. McNamara

[00:05:22] Speaker 01:
highlighted at page 132 that there had been over 132 deaths, sorry, and over 400 detainee deaths.

[00:05:29] Speaker 01:
And crystal cell in a separate report reported on 153 detainee deaths, all of which showed a, quote, common pattern of lacerations, hematomas caused by beatings, wounds with sharp objects and signs of choking, and most commonly death by mechanical asphyxiation.

[00:05:46] Speaker 01:
So the severity and prevalence within the prisons themselves changed, and that is a material change under CAR and under Reyes-Garrado.

[00:05:56] Speaker 03:
So I'd like to ask you a couple of questions with respect to what the BIA said about detention and the sentence that follows that.

[00:06:07] Speaker 03:
Does it make a difference that the board said that he has demonstrated a reasonable likelihood that he could be detained as opposed to he would be detained?

[00:06:19] Speaker 01:
Not necessarily, Your Honor.

[00:06:20] Speaker 01:
And I think, as you mentioned, the sentence that proceeds that is informative as to what the board was reaching there as well.

[00:06:28] Speaker 01:
It found that he could be detained in El Salvador, but the evidence did not show that he would more likely than not then be tortured.

[00:06:34] Speaker 01:
And so I think it's reasonable to infer that what they meant by could is that he would more likely than not now be detained.

[00:06:42] Speaker 03:
So the following sentence goes on to say that,

[00:06:47] Speaker 03:
Given the number of suspected gang members detained during the state of exception, the evidence does not show a reasonable likelihood that he would be able to establish that it is more likely than not that he would be tortured.

[00:07:07] Speaker 03:
In other words, I gather what they're saying is the numbers are great that you can't really say

[00:07:14] Speaker 01:
with any kind of certainty that he would be tortured.

[00:07:33] Speaker 01:
252 notes that the most common form of torture is the practice of collective torture upon arrival.

[00:07:39] Speaker 01:
And again, at this point, the BIA has acknowledged that he will be detained.

[00:07:43] Speaker 03:
And page 534 notes that... Let me just add another comment to that.

[00:07:50] Speaker 03:
In other words, I guess what I'm getting at is to what extent or degree of certainty do you have to show at this stage in order to meet your burden on a motion to reopen?

[00:08:01] Speaker 01:
At this stage, there only needs to be a reasonable likelihood that he would more likely than not be subjected to torture.

[00:08:09] Speaker 01:
And this court has held in Tadavosian that a reasonable likelihood is met where the facts alleged satisfy the court that it would be worthwhile to develop the issues further at a new hearing.

[00:08:20] Speaker 01:
And especially here where Mr. Rivera-Torgeros has now

[00:08:24] Speaker 01:
shown that he will likely be detained, it is especially important to have this new hearing where he can show this new evidence, not only that he is not likely to be detained, but that once in detention, the evidence is unequivocal that individuals specifically matching Mr. Rivera-Tujeros' profile are subjected to torture in the prisons.

[00:08:45] Speaker 01:
And I would point the court to page 534 that notes that with respect to the situation of prisoners and the condition in detention centers, the Salvador state has adopted a systematic policy of torture towards all those detained under the state of emergency on a mere suspicion of being a gang member.

[00:09:04] Speaker 01:
Additionally, the record describes that this torture includes electric shocks, beatings, lack of breathable air, choking and strangling, and lacerations.

[00:09:14] Speaker 01:
as well as the use of blunt instruments and batons by prison guards, digging detainees into the gravel until they bleed, asphyxiation, and penetrating injuries.

[00:09:24] Speaker 05:
And is it, I mean, the more likely than not standard, which here, I guess, is filtered through the reasonable probability of more likely than not.

[00:09:33] Speaker 05:
But nonetheless, the more likely than not standard is a difficult one for you.

[00:09:41] Speaker 05:
Is it the systematically part of the report that you're citing that's doing the work in getting you to more likely than not?

[00:09:49] Speaker 01:
Yes.

[00:09:50] Speaker 01:
And I would push back a little on that this is a hybrid.

[00:09:52] Speaker 01:
And because it is at the motion to reopen, it is only a reasonable likelihood.

[00:09:56] Speaker 01:
And so that is a lower threshold than the more likely than not.

[00:10:00] Speaker 01:
And here, it is both the systematic evidence, but it's also Dr. McNamara's evidence at page 148.

[00:10:07] Speaker 01:
And because it's a motion to reopen, that had to have been taken as true by the BIA.

[00:10:13] Speaker 01:
And there he noted that it would be extremely dangerous for individuals with criminal histories, former gang members, and or individuals with tattoos to be deported to El Salvador as members of each group would face a greater than 50% chance of torture.

[00:10:27] Speaker 01:
I do see I'm running into my rebuttal, but I would like to emphasize that Mr. Rivera-Trigueros matches each of these profiles.

[00:10:33] Speaker 01:
And in disregarding this evidence, the BIA abused his discretion.

[00:10:36] Speaker 05:
Thank you We'll hear from the government

[00:10:56] Speaker 02:
Good morning, Your Honors.

[00:10:57] Speaker 02:
May it please the Court.

[00:10:58] Speaker 02:
Christopher Giger for the Attorney General.

[00:11:00] Speaker 02:
I have two points.

[00:11:01] Speaker 02:
First, the conditions in El Salvador during the petitioners May 2024 motion to reopen or April 2024 motion to reopen is not qualitatively different than they were on May 31st, 2022, more than two months into the state of exception.

[00:11:16] Speaker 02:
And second, Mr. Rivera hasn't shown a reasonable likelihood

[00:11:21] Speaker 02:
that he would be subjected to a particularized, non-speculative risk of torture upon removal.

[00:11:27] Speaker 02:
And to begin, I would like to highlight here that the conditions on May 31st, 2022, this was occurring more than two months into the state of exception.

[00:11:38] Speaker 02:
And they did show, particularly as my friends on the other side discussed the detention status, that this does not demonstrate or rebut the agency's initial basis for denying relief.

[00:11:50] Speaker 02:
As this court has noted in Reyes-Corrado, in order for a change to be material, that change has to rebut the agency's basis.

[00:11:59] Speaker 02:
And indeed, the initial agency decisions, they made two findings in this regard.

[00:12:06] Speaker 02:
The first being that, as this court noted, that the petitioner

[00:12:09] Speaker 02:
would be under surveillance, but not necessarily that that fear overall was speculative.

[00:12:14] Speaker 02:
And secondly, which is the dispositive basis for denying relief, that Mr. Rivera didn't demonstrate that he would more likely than not be subject to torture if he were removed to El Salvador.

[00:12:24] Speaker 03:
What do we do with the board that I went over with a council, I mean with Ms.

[00:12:32] Speaker 03:
Ramirez?

[00:12:34] Speaker 03:
With the board's

[00:12:36] Speaker 03:
Finding, I guess it's a finding or a statement where they said the respondent has demonstrated a reasonable likelihood that he could be detained.

[00:12:47] Speaker 03:
Doesn't that suggest that they did see that the evidence was different in some way?

[00:12:52] Speaker 02:
In some way, Your Honor, yes, and I think that change is one of degree.

[00:12:57] Speaker 02:
It's not a fundamental change.

[00:12:59] Speaker 03:
Well, our case law says it doesn't have to be

[00:13:01] Speaker 02:
Completely radically different, you know significantly different seems to be sufficient in certain cases in certain cases as so long as it rebuts the initial basis for the denial of relief and I think we see this clearly in cases like Malty and Salem where the initial evidence and I'll use Malty as an example were there the petitioner had only initially showed evidence of discrimination and persecution but then the new evidence demonstrated that there would be that there were specific

[00:13:29] Speaker 02:
instances of persecution against Coptic Christians, which is the harm he claimed, or he claimed harm from that group, and not only generally, but also specifically against him.

[00:13:39] Speaker 03:
And so that's a good example of a fundamental... You know, when I was reading the IJ's decision, I kind of noted that, you know, at some point the IJ says that, well, you know, this state of exception has only been in existence for a few months.

[00:13:55] Speaker 03:
There's a lot of opposition to it in the Salvadoran public.

[00:13:59] Speaker 03:
And that might be sufficient that things are going to change.

[00:14:03] Speaker 03:
And by the time you're removed, state exception may be gone.

[00:14:08] Speaker 02:
Your Honor, that was specific.

[00:14:09] Speaker 03:
We know now with this new evidence that conditions have changed.

[00:14:14] Speaker 03:
The board reflects it in its statement here.

[00:14:17] Speaker 02:
Well, the immigration judge, that specific portion of the immigration judge's decision was referring to discounting the first expert, Dr. Gonzalez's testimony.

[00:14:26] Speaker 02:
And then as the board reviewed that IJ decision in December 2022,

[00:14:30] Speaker 02:
It referred to the temporary nature of the state of exception, again only in discounting Dr. Gonzalez's testimony and explaining that Dr. Gonzalez wasn't aware vis-a-vis of the number of arrests of those deported and tortured under the state of exception.

[00:14:49] Speaker 03:
Don't we know now as a result of the new evidence they submitted?

[00:14:52] Speaker 02:
that you know the state of exception has been extended at least if they say here 22 times I guess that's even longer now because it's still in existence today no your honor because even in the 2024 evidence there is I recognize the crystal report does state that this is effectively a permanent measure because of these extensions

[00:15:12] Speaker 02:
But the crystal report first doesn't mention that there's any fundamental change in the state of exception, being that it is still a nature, a creature of the Salvadoran constitution, subject to extension only by the legislative assembly.

[00:15:23] Speaker 02:
And I'll point, which we do know on page 38 of our brief, that Dr. McNamara in the 2024 evidence referred to the state of exception still as a temporary measure.

[00:15:33] Speaker 02:
He suggested that it would still be, and this is on pages,

[00:15:37] Speaker 02:
129 and 130 of the record, he still referred to the state of exception as temporary and suggested that it would be, he predicted that it would be extended through 2024 and that he expressly said that if the Salvadorian government viewed, had the view that it was controlling the gangs in El Salvador, then the state of exception would end.

[00:16:01] Speaker 02:
And so that's in the 2024 evidence.

[00:16:03] Speaker 02:
And that doesn't, and so even the petitioner's new expert referred to this still as a temporary measure.

[00:16:09] Speaker 04:
But this is all to say that- Not in the same degree.

[00:16:11] Speaker 04:
I mean, the IJ in the first hearing said, there's no reasonable likelihood that this is going to remain when he's deported, when he's removed.

[00:16:24] Speaker 04:
I mean, basically the IJ credited, I know your, I understand your,

[00:16:29] Speaker 04:
qualification that he was rebutting the expert, but basically the IJ said, I'm quoting, even if the respondent were removed, the powers may not be in effect at the time of such removal.

[00:16:41] Speaker 04:
And they said, well, we recently extended it for 30 days.

[00:16:44] Speaker 04:
Future extensions are uncertain as they're going opposition.

[00:16:49] Speaker 04:
So I mean, qualitatively, it's quite different from a permanent.

[00:16:53] Speaker 02:
Well, I would respectfully disagree, your honor, because when the board reviewed that evidence, the basis for the board's denial wasn't hinged on the temporary nature of the state of exception.

[00:17:09] Speaker 02:
And as this court has explained, in order for a change to be material and qualitatively different,

[00:17:14] Speaker 02:
It does have to rebut that dispositive basis for relief.

[00:17:18] Speaker 05:
Do you think that the initial denial turned in part on the idea that it was speculative whether he would even come to the attention of the authorities and be detained?

[00:17:30] Speaker 02:
I think that was part of the decision, but it wasn't the dispositive basis.

[00:17:33] Speaker 02:
That was a finding that the initial agency decisions made.

[00:17:38] Speaker 02:
But they only found that it was speculative that he would be under surveillance.

[00:17:43] Speaker 02:
But the dispositive and the reason for denial is hinged on the fact that Mr. Rivera didn't demonstrate that he would more likely than not be subject to a particularized, non-speculative risk of torture.

[00:17:55] Speaker 05:
I guess where I'm going with this is that's the ultimate conclusion.

[00:18:00] Speaker 05:
Is he more likely than not to be tortured?

[00:18:04] Speaker 05:
And they said no.

[00:18:07] Speaker 05:
The assessment of that ultimate probability is really a product of the probabilities of the two intermediate steps in the chain.

[00:18:15] Speaker 05:
Will he be detained?

[00:18:17] Speaker 05:
And then if detained, will he be tortured?

[00:18:20] Speaker 05:
And it seems like when you look at the first board order and the second one, the first one said, well, the first step in this chain is speculative.

[00:18:31] Speaker 05:
The second one said,

[00:18:33] Speaker 05:
We think he's shown the first step in that chain or maybe could have shown it or

[00:18:39] Speaker 05:
So that seems like a material change.

[00:18:42] Speaker 05:
So how do you respond to that?

[00:18:45] Speaker 02:
Well, I think it would be similar to, as I've stated, Your Honor, that as you've mentioned, the overall conclusion is that he would less likely not be subject to torture.

[00:18:56] Speaker 02:
But the second link of the chain is the dispositive finding that he was not subject to a particularized and speculative, he has a speculative fear of torture.

[00:19:09] Speaker 02:
And so as you mentioned, there are two different links to the chain, but the overall, the dispositive basis for denying is that second link.

[00:19:17] Speaker 02:
And even if this court were to find that based on this change,

[00:19:23] Speaker 02:
that is material, the court should still deny the petition because Mr. Rivera hasn't demonstrated a reasonable likelihood that he would more likely than not be subjected to a particularized non-speculative risk of torture.

[00:19:37] Speaker 02:
Mr. Rivera's arguments ultimately hinge on the fact that the assertions that he would be subject to specific prison conditions without showing that he would be particularly subject to them and also

[00:19:51] Speaker 02:
individual instances of torture, but as this court has said, cannot substitute for the qualitative evidence, which is what CAT requires.

[00:20:00] Speaker 02:
And beginning with the prison conditions, Your Honor, on pages 40 and 41 of the opening brief, Mr. Rivera relies predominantly on individual instances and on specific conditions in specific prisons, particularly the

[00:20:16] Speaker 02:
terrorism confinement center, referred to as the CICOT, and also conditions in the Izalco and Mariano prisons.

[00:20:24] Speaker 02:
And as it relates to the CICOT, on page 309 of the record, there's an article that specifically states that the CICOT was designed and built to house the high-ranking gang members

[00:20:37] Speaker 02:
And there's no evidence that Mr. Rivera is a high ranking gang member and he's actually testified to the contrary that he hasn't been a member of a gang in over a decade.

[00:20:48] Speaker 02:
And so I recognize the petitioner's point in the gray brief that he doesn't necessarily need to show, that it would be too much of a burden to demonstrate that if he goes, that he has to show exactly what prison he would be sent to in an entire country.

[00:21:04] Speaker 02:
But when the petitioner is relying on specific conditions that are specific to only certain confinement centers, then the petitioner does have to demonstrate that he would more likely than not be subject to those specific conditions.

[00:21:17] Speaker 03:
What do we do with Professor McNamara's declaration?

[00:21:22] Speaker 03:
The board didn't seem to discount her or anything.

[00:21:25] Speaker 03:
They just don't discuss it.

[00:21:27] Speaker 02:
Now, I disagree, Your Honor.

[00:21:28] Speaker 02:
The board on page four of the record did specifically refer to Dr. McNamara's, the new expert report and the petitioner's contention based on these new reports, but ultimately found that, and if we're still in the prima facie portion, ultimately found that he still did not demonstrate a reasonable likelihood that he would be subject.

[00:21:48] Speaker 03:
I think Dr. McNamara talks about a systemic

[00:21:54] Speaker 03:
conditions in the prisons throughout.

[00:21:57] Speaker 02:
On page 132, Dr. McNamara does make the broad statement that the prisons are intended to inflict physical and psychological pain, but I'll note that that

[00:22:11] Speaker 02:
that specific reference on page 132, there's no citation to where he's getting that, so it reasons from reading the whole report that that's still coming from the individual instances of torture that he is reporting about.

[00:22:27] Speaker 02:
And as this court has noted in Benedicto, individual instances of torture don't substitute for the quantitative data.

[00:22:33] Speaker 02:
And here the quantitative data show that there is still less than a 1% risk of death if Mr. Rivera is deported to El Salvador under the state of exception.

[00:22:43] Speaker 02:
And that is exactly the type of evidence that was before the agency initially and that this court upheld during the first petition for review.

[00:22:54] Speaker 02:
And so here, it does follow that, although the petitioner asserts that we rely too much on this data, the most specific data in the record indicates that the overall risk is still less than 1% if Mr. Rivera is sent back.

[00:23:08] Speaker 02:
And again, I'll highlight Benedicta.

[00:23:10] Speaker 03:
It wasn't just the risk of death, which there is.

[00:23:14] Speaker 03:
There was evidence of that, but overcrowding conditions, lack of food, other means of making life very difficult for the prisoners.

[00:23:26] Speaker 02:
Certainly, Your Honor, and that evidence was also before the agency and the court in the initial proceedings.

[00:23:32] Speaker 02:
As we know in our brief, overcrowding was at some facilities six times in the May 2022 evidence.

[00:23:40] Speaker 02:
There was evidence that there was inadequate food.

[00:23:42] Speaker 02:
There was evidence that medical symptoms or medical treatment would be withheld.

[00:23:47] Speaker 02:
And this is all in the May 31st, 2022 evidence.

[00:23:51] Speaker 02:
And the agency and this court still found that the most specific data on the risk of torture was the statistics as it related to the risk of death.

[00:24:00] Speaker 02:
And so using that exact data now for the prima facie analysis, it still supports the agency's determination that the overall risk to Mr. Rivera is still low.

[00:24:12] Speaker 02:
And I will note that,

[00:24:14] Speaker 03:
So what we should take from your argument is that, okay, so the board did say that he could be detained, but we don't know really what that means.

[00:24:26] Speaker 03:
Is that right?

[00:24:27] Speaker 02:
That's correct, Your Honor.

[00:24:28] Speaker 03:
No, they may put him up in a, you know, swanky place.

[00:24:33] Speaker 02:
I don't know if I would use that, if I would quite say that, but he, for all we know, as you mentioned, the board said he could be detained.

[00:24:41] Speaker 02:
We don't know exactly what that means, but even assuming it does mean that he will be confined to a detention facility, whichever it may be, he hasn't shown that he would be subject to a particularized risk of torture.

[00:24:53] Speaker 04:
And... The McNamara Declaration is, you know, fairly specific.

[00:24:59] Speaker 04:
as to general conditions in El Salvador, and it says they're intended to inflict physical and psychological pain on inmates as a form of punishment that goes beyond the deprivation of liberty, and then goes on to say 400 people have died in captivity.

[00:25:16] Speaker 04:
Well, isn't that enough to get through the door on a motion or two?

[00:25:19] Speaker 04:
It's not deciding the case, but it may be enough.

[00:25:22] Speaker 02:
Mainly because, Your Honor, this is not different.

[00:25:26] Speaker 02:
This is the same type of evidence that was before the agency in the first, between the IJ and the board and before this court.

[00:25:34] Speaker 02:
There's still less than 1% risk of death, still evidence of overcrowding, evidence of frankly deplorable conditions throughout, but the petitioner's arguments ultimately

[00:25:46] Speaker 02:
assert that whether any deportee from the United States to El Salvador that has tattoos, any deportee that has criminal history, and any deportee that has former gang allegiances will be tortured.

[00:26:00] Speaker 02:
And as Judge Miller, you've noted, Congress has set a very high bar for cataphoral.

[00:26:06] Speaker 02:
And here, the petitioners, the board did not abuse this discretion.

[00:26:10] Speaker 02:
I'll stay on with any more questions.

[00:26:12] Speaker 05:
Thank you, Mr. Giger.

[00:26:13] Speaker 02:
Thank you.

[00:26:23] Speaker 05:
Ms.

[00:26:23] Speaker 05:
Herrera.

[00:26:28] Speaker 00:
Good morning and may it please the court.

[00:26:30] Speaker 00:
Adriana Herrera on behalf of Petitioner.

[00:26:32] Speaker 00:
I have two points on rebuttal and I'd like to begin by addressing the government's erroneous contention that Mr. Rivera-Trigueros has not demonstrated a particularized risk of torture in Salvadoran prisons.

[00:26:42] Speaker 00:
Both under this court's precedent and the record, it is clear that Mr. Rivera-Trigueros has demonstrated the required particularized risk.

[00:26:49] Speaker 00:
There are two cases in particular

[00:26:51] Speaker 00:
that we feel are instructive on this point.

[00:26:53] Speaker 00:
Both Wynn V. Holder and Hosseini V. Gonzalez establish that we're an individual can demonstrate that they are a member of a group which is facing torture in the country of removal and the government will be able to identify them as a member of that group.

[00:27:06] Speaker 00:
They have met the requisite particularized risk of torture in the country of removal.

[00:27:11] Speaker 00:
And the record supports this finding as well.

[00:27:13] Speaker 00:
Mr. Rivera-Trigueros, it is undisputed, will be arriving to El Salvador as a former gang member with a gang-related tattoo and a criminal record.

[00:27:22] Speaker 00:
All of these points place him at a nearly guaranteed risk of detention upon arrival in El Salvador.

[00:27:30] Speaker 00:
That's the record at 147.

[00:27:31] Speaker 00:
And it is clear that Mr. Rivera-Trigueros will be detained, as the BIA found,

[00:27:37] Speaker 00:
upon arrival in El Salvador and will subsequently be tortured upon that detainment.

[00:27:43] Speaker 00:
I'd like to secondly address the government's contention that prison conditions are not widespread and Mr. Rivera-Trigueros has not demonstrated a risk of being detained in two or three particular prisons.

[00:27:54] Speaker 00:
Firstly, that has never been the standard for whether or not an individual will be tortured in a particular prison upon removal.

[00:28:00] Speaker 00:
Hosseini and Nguyen, as I mentioned, both demonstrate that if an individual will be

[00:28:05] Speaker 00:
removed to a country identified as a member of a group which will face torture.

[00:28:10] Speaker 00:
They do not need to demonstrate that they will be subjected to a particular prison.

[00:28:14] Speaker 05:
But secondly... I'm sorry.

[00:28:17] Speaker 05:
They do need to show that it's more likely than not that they, as an individual, will be tortured.

[00:28:22] Speaker 05:
And so if the evidence is... I mean, maybe the answer is the evidence isn't confined to particular prisons, but insofar as there is evidence about particular prisons,

[00:28:31] Speaker 05:
That's only relevant if there's evidence that those are the prisons he's going to go to, isn't it?

[00:28:35] Speaker 00:
Correct, Your Honor, but the record is clear that the torture is widespread and systematic, affecting all prisons in El Salvador.

[00:28:42] Speaker 00:
The record at 252 makes clear that it is, quote, widespread and systematic, and it is, quote, part of a policy of punishment which is carried out by officials of the prison administration across El Salvador.

[00:28:53] Speaker 00:
more broadly.

[00:28:54] Speaker 00:
And secondly, it is also unclear even within El Salvador who is being held within each particular prison.

[00:29:00] Speaker 00:
The record at 209 makes clear that the government itself has no record of where any detainee under the State of Exception is.

[00:29:07] Speaker 03:
Is there any evidence in the record that suggests that U.S.

[00:29:12] Speaker 03:
detainee, you know, people who are removed from the United States to El Salvador are treated harsher

[00:29:22] Speaker 03:
than local gang members who are arrested and imprisoned?

[00:29:27] Speaker 00:
Your Honor, yes.

[00:29:29] Speaker 00:
Dr. McNamara's report makes clear that individuals who are arriving as deportees from the United States will face a significant risk of harm or death by state actors upon arriving in El Salvador.

[00:29:39] Speaker 03:
But is that greater than what local gang members in El Salvador might face?

[00:29:45] Speaker 03:
Or is it just the same?

[00:29:46] Speaker 03:
They're just treated as gang members?

[00:29:50] Speaker 00:
Your Honor, the risk is different for Mr. Rivera-Trigueros because he is arriving as a deportee from the United States.

[00:29:56] Speaker 00:
Firstly, because upon arrival to El Salvador, DHS has an information sharing program.

[00:30:02] Speaker 00:
This is the record at 131, paragraph 88, where the United States government will share information about Mr. Rivera-Trigueros' prior convictions and prior gang affiliation.

[00:30:14] Speaker 00:
making it almost certain, nearly guaranteed per the record, that he will be detained upon arrival in El Salvador.

[00:30:19] Speaker 00:
And that's different from an individual who might be in El Salvador.

[00:30:22] Speaker 00:
It could possibly be swept up in police activity more generally.

[00:30:27] Speaker 00:
But Mr. Rivera.

[00:30:27] Speaker 03:
I guess my question was, is there anything in the record that suggests, well, he might go to Facility X as opposed to Facility A that is worse?

[00:30:37] Speaker 03:
Is there anything like that in the record?

[00:30:39] Speaker 00:
Your Honor, that's not in the record because the Salvadoran government specifically and intentionally conceals information about where individuals are held in the state of exception.

[00:30:47] Speaker 00:
Again, the record at 209 makes clear that the government itself intentionally conceals this information.

[00:30:52] Speaker 00:
Individuals who are already living in El Salvador are unable to locate where their family members who are detained in El Salvador are being held.

[00:30:59] Speaker 00:
And this is an intentional policy on behalf of the Salvadoran government in order to carry out an authoritarian state of exception for individuals like Mr. Rivera-Chigarro.

[00:31:11] Speaker 00:
Okay.

[00:31:13] Speaker 00:
We respectfully ask that this court remand to the BIA with instructions to reopen according to the points we've made today.

[00:31:20] Speaker 00:
Thank you.

[00:31:21] Speaker 05:
Thank you.

[00:31:22] Speaker 05:
So Ms.

[00:31:22] Speaker 05:
Herrera and Ms.

[00:31:23] Speaker 05:
Ramirez, you're representing your client pro bono through the court's pro bono program and the court thanks you for your service.

[00:31:31] Speaker 05:
We thank all counsel for their helpful arguments and the case is submitted.

[00:31:34] Speaker 00:
Thank you.