[00:00:04] Speaker 00:
Good morning and welcome to the Ninth Circuit.

[00:00:08] Speaker 00:
I'm Bridget Beatty.

[00:00:09] Speaker 00:
I have my chambers here in Phoenix and I'm very pleased to welcome Judge Ken Lee and Judge Susan Graber to sit with me this morning here in Phoenix.

[00:00:18] Speaker 00:
We have submitted several cases.

[00:00:19] Speaker 00:
We have two cases for argument this morning.

[00:00:22] Speaker 00:
The first is Rios Rocha versus Bondi.

[00:00:26] Speaker 00:
It's number 19-73287.

[00:00:30] Speaker 00:
And I see we have one attorney on video.

[00:00:34] Speaker 00:
Before we start, Mr. Pryby, you were here earlier this week on video.

[00:00:38] Speaker 00:
Can you hear us?

[00:00:41] Speaker 03:
Yes, Your Honor.

[00:00:42] Speaker 03:
Can you hear me?

[00:00:43] Speaker 00:
Yes, we can hear you as well.

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

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

[00:00:46] Speaker 00:
Councilman, if you're ready to proceed.

[00:00:48] Speaker 01:
Good morning.

[00:00:53] Speaker 01:
May it please the court?

[00:00:54] Speaker 01:
My name is Liz Bradley.

[00:00:56] Speaker 01:
I'm counsel for petitioner Mr. Roberto Rios Rocha.

[00:00:59] Speaker 01:
I'd like to reserve three minutes of my time for rebuttal, and I will watch my clock.

[00:01:05] Speaker 01:
This case involves one simple and egregious legal error, the exclusion of a potentially dispositive expert report in a cancellation of removal case.

[00:01:16] Speaker 01:
I will discuss three reasons why this was a legal error, but you only need one to grant relief.

[00:01:23] Speaker 00:
I'm sorry to stop you so soon before you even got to list the three reasons, but why is this a legal error rather than an evidentiary decision that we would review for an abuse of discretion?

[00:01:36] Speaker 01:
Generally, evidence is reviewed for abuse of discretion unless there is a legal error underlying that abuse of discretion.

[00:01:43] Speaker 01:
If evidence is excluded for an improper reason, and particularly when there's expert evidence excluded for improper reason, Castillo says that is a legal error that is per se reversible.

[00:01:54] Speaker 00:
You'll have to remind me of Castillo.

[00:01:56] Speaker 00:
I thought that was when the IJ did not consider evidence.

[00:02:03] Speaker 00:
That was legal error, not an issue of an evidentiary ruling.

[00:02:07] Speaker 01:
Yes, that's when an immigration judge does not consider an expert report.

[00:02:11] Speaker 01:
In this case, the expert report was not even admitted.

[00:02:14] Speaker 01:
And therefore, by necessity, it was not considered.

[00:02:16] Speaker 01:
And the reasons it was not admitted and considered all are improper.

[00:02:20] Speaker 01:
And those, in each, I'll go over three reasons why that was a legal error.

[00:02:24] Speaker 04:
As I understand it, the IJ did not explain the exclusion.

[00:02:29] Speaker 04:
Am I missing something there, or was it only the BIA that filled in reasons?

[00:02:33] Speaker 01:
You are absolutely correct, and that was the first threshold legal error in this case, and this court may remand on that basis alone.

[00:02:40] Speaker 01:
Under Lin, if an immigration judge is going to exclude evidence, it must articulate a legitimate and articulable basis and provide specific and cogent reasons for the exclusion.

[00:02:52] Speaker 01:
And here, if you look at AR 18 through 19, there's a very short exchange.

[00:02:56] Speaker 01:
DHS objected to the Dr. Werner's report, and the immigration judge sustained the objection and excluded the evidence, but provided no reason for doing so.

[00:03:05] Speaker 00:
I mean, I agree with you.

[00:03:05] Speaker 00:
The immigration judge didn't state reasons, but it's clear from reading the transcript that the reason the immigration judge excluded the testimony is because the doctor wasn't present to testify in person and available for cross-examination, which may very well be error to exclude on that basis.

[00:03:22] Speaker 00:
But it does seem that the record does show us why and what the immigration judge was thinking.

[00:03:26] Speaker 01:
Respectfully, Your Honor, there's a few reasons that were proffered by the department, but because the judge actually made no finding.

[00:03:33] Speaker 00:
I mean, I agree with you to that point, but there was an exchange.

[00:03:37] Speaker 00:
It's not like nothing happened.

[00:03:38] Speaker 00:
You said there was an objection that was sustained.

[00:03:40] Speaker 00:
That's not exactly what happened.

[00:03:42] Speaker 00:
But at any rate, assuming we agree with you that this was an error to exclude the declaration,

[00:03:51] Speaker 00:
Why do we not then review to see if there was any prejudice and if it was harmless error?

[00:03:57] Speaker 01:
The court may reach the constitutional issue if it so chooses.

[00:04:00] Speaker 01:
But under Udo, when the agency makes a legal error by excluding or refusing or failing to consider evidence, and this court may remand on that legal error alone, it does not need to reach the prejudice issue.

[00:04:15] Speaker 01:
It does not need to consider whether that legal error also was a due process violation.

[00:04:20] Speaker 01:
But if this court would choose to reach the constitutional issues, then I believe Cruz Rendon is instructive here.

[00:04:30] Speaker 01:
There the immigration judge, the court held that the immigration judge had violated due process and prejudice respondent by precluding testimony regarding her and her husband's medical and educational issues

[00:04:42] Speaker 01:
in a cancellation of removal case, just like this one.

[00:04:45] Speaker 01:
And though there were some evidence in the record on those issues, the court held that had Cruz Rendon been permitted to offer more detail about the petitioner's husband in that case, medical and educational issues, the immigration judge's conclusion might have been different.

[00:05:01] Speaker 01:
And that may or might is important here because the prejudice prong, you don't need to conclusively show there would have been a different decision, but thus that it may or might have been different.

[00:05:11] Speaker 00:
So it would have to be somewhere between just speculation that it could be different and certainty that it would be different, applying this somewhat subjective standard.

[00:05:20] Speaker 00:
And here, we don't have to speculate about what additional evidence might have been offered or the detail that could have been provided, because we're talking about a declaration.

[00:05:29] Speaker 00:
So we know exactly what the evidence would be.

[00:05:32] Speaker 00:
And it's the doctor's statement that the removal of the petitioner could cost

[00:05:37] Speaker 00:
stress to the younger son that could exacerbate his asthma.

[00:05:41] Speaker 00:
That's it.

[00:05:42] Speaker 00:
That's the totality of what would have come in.

[00:05:45] Speaker 00:
So we would have to conclude that that could have made a difference given the rest of the record.

[00:05:49] Speaker 00:
All the other information about the younger son's health history, his asthma, days of school he's missed or not missed, and the other findings the agency made with respect to the younger son still receiving medical care.

[00:06:06] Speaker 00:
that that would not be impacted.

[00:06:08] Speaker 00:
Against that backdrop, we would have to conclude this would make a difference.

[00:06:13] Speaker 00:
At least it is likely that the immigration judge would have done something different.

[00:06:17] Speaker 00:
And I'm having a hard time seeing that that standard is met.

[00:06:20] Speaker 04:
Is the standard likelihood or possibility when evidence was not considered?

[00:06:28] Speaker 01:
I believe the standard is that it could potentially have made a difference.

[00:06:31] Speaker 01:
So I don't think that's even a likelihood standard.

[00:06:34] Speaker 01:
It could potentially have made a difference, the may or the might standard, not that it conclusively would have made a difference.

[00:06:40] Speaker 04:
Had any other evidence come in discussing the issues with aggravated asthma and the effect potentially on the mother?

[00:06:52] Speaker 01:
Yes, Your Honor.

[00:06:53] Speaker 01:
There were several evidence that were not considered.

[00:06:56] Speaker 01:
And again, the court doesn't need to reach the prejudice prong because there are several legal errors.

[00:07:01] Speaker 04:
I'm sorry.

[00:07:01] Speaker 04:
I may not have been clear.

[00:07:04] Speaker 04:
Beyond this expert's declaration, was there other evidence in the record about the mother's ability to keep a job?

[00:07:13] Speaker 01:
Yes, one prudent piece of evidence in the record is that the BIA never mentioned or addressed is the wife has a diagnosis of PTSD.

[00:07:23] Speaker 01:
She's had some pretty severe symptoms in the past as a result of her severe prior abuse by her former partner.

[00:07:32] Speaker 01:
The immigration judge mentions emotional hardship and passing, but the BIA never considers the future potential psychological hardship.

[00:07:40] Speaker 01:
on the mother or the child.

[00:07:42] Speaker 01:
Also the elder son also has some prior trauma from his biological father's prior severe abuse.

[00:07:48] Speaker 01:
That evidence is at 228 for the PTSD diagnosis and 249 for the son's prior trauma.

[00:07:55] Speaker 01:
There also was a

[00:07:57] Speaker 01:
report by a licensed clinical social worker, Luz Bernal Harvey, who said that based on the particular family's history and specific circumstances, Mr. Rios' removal will severely and traumatically affect his family in the future.

[00:08:12] Speaker 01:
And under Sukovnich, I believe it was, the failure to address potential psychological hardships in a hardship analysis under the cumulative assessment is also a legal error that is grounds for remand.

[00:08:28] Speaker 02:
We can go back to whether it was proper for the IJA to exclude the doctor.

[00:08:33] Speaker 02:
Looking at the transcript here, the DHS attorney mentions that she's not the treating doctor, but then she says the doctor had allegedly mischaracterized some of the treatment notes.

[00:08:43] Speaker 02:
They're calling the asthma moderate, but then DHS attorney says, well, there's other things that another doctor said it was actually intermittent.

[00:08:55] Speaker 02:
And then the judge asks,

[00:08:57] Speaker 02:
the attorney, is she gonna testify?

[00:09:00] Speaker 02:
Says no, she's gonna testify through affidavit.

[00:09:02] Speaker 02:
Then that's when the IJ excludes the expert testimony.

[00:09:06] Speaker 02:
Why isn't that a legitimate basis?

[00:09:08] Speaker 02:
The IJ is saying there's potential inconsistency in the notes and her affidavit.

[00:09:18] Speaker 02:
I really don't know how to assess that.

[00:09:20] Speaker 02:
And she's not gonna testify, so she can't explain it.

[00:09:23] Speaker 02:
So I'm gonna exclude that affidavit.

[00:09:27] Speaker 01:
So there are two reasons why that was still improper.

[00:09:30] Speaker 01:
First, the immigration judge and the BIA also just credited DHS's assertion that there was a mischaracterization without conducting their own independent assessment of the record to make sure that was true.

[00:09:40] Speaker 02:
But I mean, I guess with an IJ, I mean, that's why you need the expert to testify to explain it rather than have lawyers explain medical issues or the IJ trying to guess and figure out medical issues.

[00:09:50] Speaker 02:
That's why you have experts.

[00:09:51] Speaker 02:
And I guess it's not unreasonable for the IJ to say, well, there's a

[00:09:57] Speaker 02:
potential inconsistency.

[00:09:59] Speaker 02:
I don't know how to explain it.

[00:10:00] Speaker 02:
Maybe I might have a hunch, but I'm not the expert.

[00:10:02] Speaker 02:
So if that person's not going to testify and can't explain it, I'm not going to consider it.

[00:10:07] Speaker 01:
First, there was actually no inconsistency in the record.

[00:10:11] Speaker 01:
The judge never bothered to even look.

[00:10:14] Speaker 01:
Had he done so, he would have seen that the son's diagnosis is and has always been moderate persistent asthma.

[00:10:21] Speaker 01:
It shows up over a dozen time in the medical records reviewed by Dr. Werner.

[00:10:26] Speaker 01:
and also submitted into the record.

[00:10:28] Speaker 01:
In the bottom of each El Rio medical record, every single visit, it says problem list, asthma, moderate persistent.

[00:10:35] Speaker 01:
The banner medical records say impression, asthma, moderate persistent with poor control.

[00:10:40] Speaker 01:
The alleged inconsistency was readily verifiable in the record.

[00:10:44] Speaker 01:
It's unclear what the doctor would have testified to besides, I did not mischaracterize the diagnosis.

[00:10:51] Speaker 01:
You got it wrong.

[00:10:52] Speaker 04:
Then counsel, as again,

[00:10:56] Speaker 04:
The IJ never explicitly said, I'm doing this because the affidavit contains factual errors.

[00:11:03] Speaker 04:
Only the BIA said that directly, correct?

[00:11:06] Speaker 01:
That's correct, and that is also a legal error.

[00:11:08] Speaker 01:
The immigration judge needs to provide reasons.

[00:11:10] Speaker 04:
And that's a finding of fact, whether the affidavit contains factual errors is a finding of fact.

[00:11:16] Speaker 01:
That's correct.

[00:11:17] Speaker 01:
It is an impermissible finding a fact the board is not permitted to do.

[00:11:20] Speaker 01:
When an immigration judge does not make a factual finding, the board under the regulation is not permitted to supplant their own judgment and make a factual finding in the IJ's absence.

[00:11:28] Speaker 00:
So let me ask you about this issue in a slightly different way.

[00:11:33] Speaker 00:
Suppose the IJ had admitted the declaration and then said, I'm giving it zero weight.

[00:11:41] Speaker 00:
It's in, but I'm not considering it because I'm not considering it.

[00:11:45] Speaker 00:
Then what?

[00:11:48] Speaker 00:
Would you still be arguing this was legal error?

[00:11:51] Speaker 01:
The judge would have to provide a legitimate and articulable basis.

[00:11:54] Speaker 01:
Under Cole and Costillo, this

[00:11:58] Speaker 01:
If the agency, and under matter JGT as well, if the immigration judge is going to reject expert testimony, they must state a reason for disagreeing with expert in the record.

[00:12:09] Speaker 01:
Otherwise it is legal error that is per se reversible.

[00:12:12] Speaker 01:
The immigration agency has wide discretion what weight to give, but they still need to articulate the reasons for discrediting or rejecting expert testimony.

[00:12:21] Speaker 01:
And here they provided none.

[00:12:23] Speaker 01:
So it wouldn't just be okay to say,

[00:12:25] Speaker 01:
I admit it, but give it no weight.

[00:12:27] Speaker 01:
You'd have to look at the reasonings why the agency gave it no weight.

[00:12:31] Speaker 01:
And here we have no reasoning.

[00:12:34] Speaker 01:
With that, I'd like to reserve my time.

[00:12:36] Speaker 01:
All right.

[00:12:36] Speaker 01:
Thank you.

[00:12:37] Speaker 01:
Thank you.

[00:13:01] Speaker 03:
May it please the court, Christopher Pryby for the Attorney General.

[00:13:06] Speaker 03:
May I request that the clock be displayed on my screen?

[00:13:15] Speaker 03:
Thank you.

[00:13:21] Speaker 03:
The question of whether the diagnosis was mischaracterized and whether the affidavit had inaccuracies

[00:13:29] Speaker 03:
this is a factual issue that this court has no review over.

[00:13:32] Speaker 04:
Well, Counsel, that's exactly the problem because the IJ, you are correct that that is a factual question, but the IJ never made any factual finding, only the BIA did, and that is counter to the regulations.

[00:13:48] Speaker 04:
The IJ heard argument, but didn't even literally say

[00:13:55] Speaker 04:
I think that this contains factual errors specifically mischaracterizing the asthma type.

[00:14:04] Speaker 04:
Only the BIA said that.

[00:14:07] Speaker 04:
So why isn't that the end of the issue?

[00:14:09] Speaker 04:
It doesn't mean that the petitioner would win.

[00:14:12] Speaker 04:
That isn't really the question in front of us.

[00:14:16] Speaker 04:
It's just whether the BIA followed its own regulations.

[00:14:21] Speaker 03:
I do not see in the brief, in the blue brief, where this issue of improper fact-finding was raised by the petitioner.

[00:14:29] Speaker 03:
So the issue might be forfeited.

[00:14:30] Speaker 03:
And besides that, did you argue that in your brief?

[00:14:38] Speaker 03:
We did not need to, Your Honor, because if it was first raised in the gray brief, which was late filed and which we did not have an opportunity to respond to.

[00:14:47] Speaker 03:
So this would be our first opportunity to respond to that.

[00:14:51] Speaker 04:
And so in your view, OK, I understand your argument.

[00:14:56] Speaker 04:
And also, is that a fact finding that is supported by the record would be the next question for you, I guess?

[00:15:08] Speaker 03:
Well, that is not a question that this court may review.

[00:15:11] Speaker 03:
Under 8 USC 1252A to B, this court may not review any judgments relating to

[00:15:21] Speaker 03:
findings of fact, at least for the cancellation of removal cases.

[00:15:28] Speaker 03:
So this comes in through Wilkinson and Gonzales-Juarez.

[00:15:33] Speaker 03:
So you're allowed to, you have substantial evidence review over the application of facts to the EEUH standard, but you do not have review over whether the facts themselves are, what the facts themselves are.

[00:15:49] Speaker 04:
Indirectly though, let me just ask this.

[00:15:53] Speaker 04:
If it is clear that the expert affidavit should have been considered but was not, why is that not a legal error of failing to consider all the hardship factors in the aggregate as is required?

[00:16:13] Speaker 03:
So first of all, I want to address one other

[00:16:18] Speaker 03:
response I had to your previous question, which is why is this not an improper fact-finding, besides any potential forfeiture problems under long-standing administrative law principles, when an agency decision is reasonably discernible, even if it's not entirely clear, this court should not reverse based on

[00:16:44] Speaker 04:
And in this case, because the IJ... How is that compatible with the regulation that says the Board will not engage in fact finding in the course of deciding cases?

[00:16:57] Speaker 04:
That's a quote.

[00:16:59] Speaker 04:
And how is that consistent with our cases saying that if the Board fails to follow that regulation and makes factual findings, it has committed an error of law that we correct?

[00:17:12] Speaker 03:
I'm talking about the IJ, not the board, Your Honor.

[00:17:14] Speaker 03:
Here the IJ sustained an objection after an explanation of the legal, of the factual and legal deficiencies with the affidavit.

[00:17:24] Speaker 03:
The reasonable understanding is that these were the reasons that the IJ sustained the objection.

[00:17:30] Speaker 03:
And then one of those is a factual issue, one of them is a legal issue, and then the board affirmed that for those reasons.

[00:17:38] Speaker 04:
Okay, would you then answer my question about whether

[00:17:41] Speaker 04:
If it is clear that there was an error of law in failing to consider the affidavit at all, why isn't that a legal error of failing to consider all the hardship factors as is required?

[00:17:57] Speaker 03:
Although failing to consider the affidavit if it were required to be considered would be a legal error, in this case it was not required to be considered.

[00:18:06] Speaker 03:
Under the unreviewable fact, which is that it is

[00:18:11] Speaker 03:
there was a non-treating doctor who was incorrectly characterizing the diagnosis, there is no probative value to that piece of evidence.

[00:18:24] Speaker 03:
And therefore, if it's not probative, it does not satisfy the admissibility standard of probative and fundamentally fair.

[00:18:32] Speaker 04:
So if we were to disagree with you about its relevance or probative value,

[00:18:39] Speaker 04:
I understood you to concede that it would be legal error to fail to consider all the hardship factors.

[00:18:47] Speaker 03:
In general, that is a true statement, but there is also the question of prejudice, which this court would also, uh, in Zamorano, for example, uh, this court.

[00:18:57] Speaker 04:
How do we have, how do we have authority to do that when there's been a legal error?

[00:19:02] Speaker 04:
Don't we have to under SEC versus Chenery have to send something back if there's a legal error?

[00:19:09] Speaker 04:
It doesn't mean, sending something back doesn't mean petitioner necessarily wins.

[00:19:14] Speaker 04:
It just means that the agency has a do over when it's made a mistake.

[00:19:20] Speaker 04:
I have a hard time understanding why the government is fighting so hard against this, honestly.

[00:19:28] Speaker 03:
Under Zamorano, this court must take into account the principle of harmless error.

[00:19:36] Speaker 03:
And in this case, if there's no prejudice, then there's no harmless error.

[00:19:39] Speaker 04:
You think under INS v Ventura, we get to do that?

[00:19:44] Speaker 04:
INS versus?

[00:19:45] Speaker 03:
Yes.

[00:19:46] Speaker 04:
Okay.

[00:19:47] Speaker 03:
I believe Zamorano is relatively recent, so it would also post-state all these other cases that I believe you've mentioned.

[00:19:54] Speaker 04:
They were Supreme Court cases, so if they say what I think they say, it doesn't matter what we've said, does it?

[00:20:06] Speaker 03:
Under this court's rules, no, you have to follow binding panel case law until it's been either overruled or completely undermined by subsequent Supreme Court precedent or by this court en banc.

[00:20:21] Speaker 03:
In any case, there is no prejudice for two reasons.

[00:20:25] Speaker 03:
First of all, the blue, again, there's a forfeiture problem.

[00:20:29] Speaker 03:
The blue brief does not address in any meaningful way what prejudice

[00:20:34] Speaker 03:
was caused by this, by excluding the affidavit.

[00:20:40] Speaker 03:
There are only two instances I found that said this, that even addressed it.

[00:20:45] Speaker 03:
It said generally that failing to properly consider all hardship in aggregate and the future implications of his medical problems and their impact on the family, and that the affidavit went directly to the heart of the extreme and unusual hardship that would be inflicted.

[00:21:03] Speaker 03:
But none of that explains why it's just generalities.

[00:21:08] Speaker 03:
It doesn't cite anything specific in the record, which this court requires.

[00:21:12] Speaker 03:
Look at Hernandez, 47F4908, PIN site 916.

[00:21:19] Speaker 03:
Because there's not enough there to really explain what the problem would be with what is the thing that having this affidavit in the

[00:21:30] Speaker 03:
record would have allowed petitioner to argue, that's a forfeited argument.

[00:21:36] Speaker 03:
So it's not properly before this court.

[00:21:40] Speaker 03:
And in any case, the board itself found the exclusion to be harmless.

[00:21:46] Speaker 03:
The board explained that even considering the affidavit, other factors predominated.

[00:21:52] Speaker 03:
The board cited pages nine and 10 of the IJ's decision, which are AR 57 and 58.

[00:21:58] Speaker 03:
And so again,

[00:22:01] Speaker 03:
looking at the factors that are considered on those two pages related to this decision, we have things like the amount of school missed was not abnormal.

[00:22:10] Speaker 03:
The petitioner would be able to work and send money home.

[00:22:15] Speaker 03:
The child would be able to get Arizona state-sponsored healthcare and food stamps.

[00:22:21] Speaker 03:
And the records did not indicate that asthma was serious.

[00:22:28] Speaker 03:
And the agency,

[00:22:30] Speaker 03:
Okay, so there we have four unreviewable factual findings by the IJ.

[00:22:35] Speaker 03:
And then, based on those factors, the board could reasonably find that the affidavit's evidence would not have changed the outcome.

[00:22:51] Speaker 03:
And the board does have de novo review over balancing factors, if I recall the regulation correctly.

[00:23:05] Speaker 03:
Additionally, petitioner brought up failure to consider the psychological, academic, professional, and long-term health effects.

[00:23:15] Speaker 03:
Those were first mentioned in the gray brief.

[00:23:17] Speaker 03:
So again, those are forfeited.

[00:23:18] Speaker 03:
They should have been addressed earlier on for this court to have them before the court.

[00:23:26] Speaker 03:
Again, this is also with the talking about the PTSD for the mother.

[00:23:35] Speaker 03:
the brothers issues, the licensed clinical social worker, and so forth.

[00:23:44] Speaker 03:
All right.

[00:23:48] Speaker 03:
All right.

[00:23:51] Speaker 03:
If the court has no further questions.

[00:23:57] Speaker 00:
Thank you very much, Mr. Prady.

[00:23:59] Speaker 03:
The attorney general respectfully requests that this court deny the petition for review.

[00:24:03] Speaker 03:
Thank you.

[00:24:13] Speaker 01:
Thank you, Your Honors.

[00:24:14] Speaker 01:
There's a few issues brought up by my opposing counsel that I'd like to address.

[00:24:19] Speaker 01:
First, on the question of forfeiture for the fact finding, in the opening brief at page 18, the petitioner clearly argued that the immigration judge did not identify any inconsistency and that the BIA had erred in asserting there was a factual error.

[00:24:34] Speaker 01:
While they didn't say the words improper fact finding, this issue was squarely put before the court.

[00:24:41] Speaker 01:
And second,

[00:24:42] Speaker 01:
If this were a case that was just about the judgment under factual findings underlying the judgment of exceptional extremely unusual hardship, that is one question.

[00:24:51] Speaker 01:
But the separate issue is on Lemus Escobar, even post Wilkinson, held whether the agency disregarded evidence or misapplied the law remains a question of law that is reviewed de novo.

[00:25:03] Speaker 00:
Let me ask you, your opposing counsel made a point of noting that the BIA's decision goes on to say at the top of page AR4, even if this evidence had been admitted, and then the BIA goes on to reach a conclusion.

[00:25:25] Speaker 00:
So even if they, if we accepted everything you've said in your argument and thought that there was an improper

[00:25:34] Speaker 00:
the IJ to exclude the evidence and the BIA to affirm that.

[00:25:39] Speaker 00:
The BIA then goes on and says, even if considered, here's the problem.

[00:25:44] Speaker 00:
So doesn't that alternative finding undercut your argument?

[00:25:49] Speaker 00:
I mean, if the evidence were considered, they consider it, and then they say why they wouldn't grant cancellation of removal.

[00:25:56] Speaker 01:
To the extent that the BIA considered factors that the IJ never addressed, that also smacks of improper fact-finding.

[00:26:02] Speaker 01:
But even if it were able to reweigh the evidence before the IJ ever did, my opposing counsel points to only three factors that the agency actually considered.

[00:26:14] Speaker 01:
The current economic situation, educational situation, and current medical status of the son.

[00:26:21] Speaker 01:
Under the matter of Monorail's cumulative hardship assessment, that is wholly insufficient because there's other evidence in the record specifically addressed by Dr. Werner and the other record evidence that talk about the psychological impacts of removal that was never addressed by the BIA.

[00:26:37] Speaker 01:
That also is legal error under Tukovnish, not considered that in a hardship analysis.

[00:26:42] Speaker 01:
The First Circuit in Cortez recently also remanded on a similar legal error.

[00:26:47] Speaker 01:
And second,

[00:26:50] Speaker 00:
Just to be clear, when you talk about psychological evidence, you're talking about the petitioner's wife's issues.

[00:27:00] Speaker 01:
from her prior abuse.

[00:27:01] Speaker 01:
And also the stress that removal will cause to the sons in light of their family's specific circumstances.

[00:27:07] Speaker 01:
The other independent evidence in the record is a medical study that talks about acute and chronic stress in children exacerbates asthma and leads to higher morbidity of asthma in children.

[00:27:18] Speaker 00:
So is it your position that the agency needed to list that evidence because they did conclude that while the family members were

[00:27:29] Speaker 00:
experienced stress and anxiety and emotional injuries from petitioners removal, it was no more than what you would expect.

[00:27:39] Speaker 00:
So they did address it.

[00:27:40] Speaker 01:
But they never addressed the experts' predictive opinions.

[00:27:43] Speaker 01:
And the Fourth Circuit recently remanded in a similar case, a cancellation case, where they said that even where the agency had considered some evidence in the record from a testimony, I believe, from a social worker, the agency's failure to address an expert's predictive opinions, because a future hardship analysis is necessarily future-looking, the failure to address future hardships is a legal error under this court's precedent, Enfir-Guroa, and the Fourth Circuit similarly remanded on that issue.

[00:28:10] Speaker 00:
Okay, so you're a bit over if you want to just wrap up.

[00:28:17] Speaker 01:
For these reasons, Your Honors, we ask that the court grant the petition for review remand this case to the BIA with instructions that it remand to the IJ for the immigration judge to consider the expert's testimony in the first instance.

[00:28:31] Speaker 01:
Thank you.

[00:28:32] Speaker 00:
Thank you.

[00:28:33] Speaker 00:
Thank you, counsel, both for your arguments this morning.

[00:28:36] Speaker 00:
Ms.

[00:28:36] Speaker 00:
Bradley, I see that you're appearing pro bono.

[00:28:38] Speaker 00:
We appreciate your service to the court.

[00:28:41] Speaker 00:
And Mr. Pryby, I understand that the government is shut down, and so we appreciate your

[00:28:47] Speaker 00:
participation in being here this morning during those difficult circumstances.

[00:28:51] Speaker 00:
And this case is submitted.