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

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

[00:00:03] Speaker 01:
The next case on the oral argument calendar is Rupapia-Castro versus Bondi, 24-1271.

[00:00:34] Speaker 01:
Yes, whenever you're ready.

[00:00:35] Speaker 01:
It's fine.

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

[00:00:40] Speaker 04:
Good morning, your honors.

[00:00:41] Speaker 04:
May it please the court.

[00:00:42] Speaker 04:
Sean Quirk on behalf of petitioner Mr. Rapiah Castro.

[00:00:46] Speaker 04:
I'd like to reserve three minutes for rebuttal.

[00:00:48] Speaker 01:
Sure.

[00:00:49] Speaker 04:
The agency denied Mr. Rapiah Castro the two pillars that make a hearing fair, his witness and his lawyer.

[00:00:56] Speaker 04:
Each violation independently requires remand.

[00:01:00] Speaker 04:
He exhausted the witness issue before the BIA and the right to counsel claim

[00:01:05] Speaker 04:
is not subject to the usual exhaustion requirements.

[00:01:08] Speaker 04:
Starting with the first point, remand is necessary due to the IJ's failure to accommodate petitioners corroborating witness Ms.

[00:01:15] Speaker 04:
Hilda Carmen Valdez-Valdez.

[00:01:18] Speaker 04:
The translated testimony of Ms.

[00:01:19] Speaker 04:
Valdez-Valdez was highly probative as it corroborated Mr. Rupiah Castro's persecution by Colonel Victor Julio Ramos and his brother, their efforts, quote, to do anything they could, end quote, to torture him in prison, and their effort

[00:01:34] Speaker 04:
to order him to be killed because that's what they have done.

[00:01:37] Speaker 04:
Walk me through how this issue was exhausted.

[00:01:40] Speaker 04:
Yes, Your Honor.

[00:01:41] Speaker 04:
This issue was exhausted.

[00:01:43] Speaker 04:
He was appearing pro se before the BIA.

[00:01:46] Speaker 04:
And so we construe his notice of appeal to the BIA liberally.

[00:01:50] Speaker 04:
And his arguments do not have to be artful under Nolasco and Maya.

[00:01:54] Speaker 04:
He stated to the BIA that the IJ erred in invalidating his witness.

[00:02:00] Speaker 04:
He wrote, quote,

[00:02:01] Speaker 04:
The IJ was wrong in invalidating my witness testimony when he wasn't able to get a hold of her a second time, even though in the prior call she had given consistent and corroborating testimony.

[00:02:12] Speaker 04:
of the evidence I had submitted."

[00:02:14] Speaker 04:
End quote.

[00:02:15] Speaker 02:
Okay, so I mean, clearly he's exhausted something.

[00:02:17] Speaker 02:
Yes.

[00:02:18] Speaker 02:
The question is, are you making a different argument about whether the rules for witnesses were provided in a foreign language that your client didn't understand?

[00:02:30] Speaker 02:
Because that part of it, I question whether it was exhausted, even giving the liberal construction to the notice of appeal for a pro se client.

[00:02:38] Speaker 04:
Yes, Your Honor.

[00:02:39] Speaker 04:
I understand.

[00:02:40] Speaker 04:
For the exclusion of the witness, we represent it's absolutely exhausted.

[00:02:44] Speaker 04:
Not only did he present this in his notice of appeal, but the BIA then ruled on it at AR 3 explicitly addressing the invalidation, the exclusion of the witness argument, and it's properly before the court.

[00:02:56] Speaker 02:
Well, that's true.

[00:02:56] Speaker 02:
The BIA did address something.

[00:02:58] Speaker 02:
What is the scope of your argument then on this point?

[00:03:01] Speaker 02:
Because maybe that would be helpful.

[00:03:02] Speaker 02:
I understand you think the witness was not sufficiently regarded, cut off, other things like that.

[00:03:07] Speaker 02:
Is there more to your claim?

[00:03:09] Speaker 04:
The witness here, Ms.

[00:03:10] Speaker 04:
Valdez Valdez, fully corroborated his testimony.

[00:03:14] Speaker 04:
And so the argument is that the exclusion of her testimony was not fundamentally fair under Ashodi is the standard for whether

[00:03:23] Speaker 04:
a petitioner receives a fair hearing.

[00:03:25] Speaker 02:
Well, in what sense was the testimony excluded?

[00:03:27] Speaker 02:
I mean, she was able to provide some testimony, and wasn't it not considered?

[00:03:31] Speaker 02:
It was not considered at all, Your Honor.

[00:03:33] Speaker 02:
The I.J.

[00:03:34] Speaker 01:
completely... But, Counsel, I think that's because she wasn't available for cross-examinations.

[00:03:37] Speaker 01:
Yes.

[00:03:37] Speaker 01:
I think you're going to have to grapple with that.

[00:03:39] Speaker 04:
Yes, absolutely, Your Honor.

[00:03:40] Speaker 04:
Okay.

[00:03:42] Speaker 04:
The technical issues that occurred, to your point, Judge Bress, about the translation error,

[00:03:46] Speaker 04:
were of the court's own making, which is just another more.

[00:03:51] Speaker 01:
It's very concerning that the instructions weren't translated.

[00:03:54] Speaker 01:
Yes.

[00:03:55] Speaker 01:
Absolutely.

[00:03:56] Speaker 01:
But they got the witness on the phone.

[00:03:58] Speaker 01:
Yes, Your Honor.

[00:03:59] Speaker 01:
So what happens to your argument given that they got the witness on the phone?

[00:04:02] Speaker 04:
They got the witness on the phone, Your Honor, but then the evidence shows that the call dropped.

[00:04:08] Speaker 04:
The IJ found that she was uncooperative, and he construed the call dropping as her hanging up.

[00:04:14] Speaker 04:
But I'd like to point you.

[00:04:15] Speaker 04:
But I mean, she wasn't that cooperative, right?

[00:04:17] Speaker 04:
I don't think there's evidence, Your Honor, of her being uncooperative.

[00:04:22] Speaker 04:
There's evidence of translation issues.

[00:04:25] Speaker 04:
I believe there are about 70 or so untranslated marks in the transcript.

[00:04:29] Speaker 04:
So wasn't that because she was talking really fast and was told not to do that?

[00:04:33] Speaker 04:
It does appear that she was talking too quickly, Your Honor.

[00:04:37] Speaker 04:
But there's no evidence of her being uncooperative in the sense of not answering the IJ's questions.

[00:04:43] Speaker 04:
I point the court to AR 198, which is the critical point in which the call drops.

[00:04:49] Speaker 04:
She says, quote, I have to step out of the house, end quote.

[00:04:53] Speaker 04:
And that was due to apparent background noise.

[00:04:55] Speaker 04:
The IJ asks her, who are you talking to?

[00:04:57] Speaker 04:
Are you talking to me?

[00:04:58] Speaker 04:
So there's apparent background noise.

[00:04:59] Speaker 04:
She says she's going to step out of the house.

[00:05:01] Speaker 04:
And then she says, quote, I'm going to go ahead and answer you from the outside.

[00:05:05] Speaker 04:
She provides one answer to the question about why the petitioner would still be subject to torture despite Colonel Ramos's death.

[00:05:12] Speaker 04:
Then the call drops.

[00:05:13] Speaker 04:
The record reflects, Judge Bress, that either she had a technical issue with her cell phone or she just simply lost signal because she stepped outside.

[00:05:22] Speaker 04:
The result, however, was that the IJ completely excluded this highly corroborative, highly probative evidence because the IJ tried to call her back.

[00:05:31] Speaker 03:
Is that really highly probative?

[00:05:32] Speaker 03:
I mean, she essentially got the gist of it.

[00:05:34] Speaker 03:
And basically, her claim was colonel's sibling, one who's an accountant, and his wife, who's a seamstress, somehow has friends in the police department and are going to get him killed.

[00:05:49] Speaker 03:
I mean, it seemed pretty speculative.

[00:05:51] Speaker 03:
And the IJ seems skeptical of it and says, why would and how could an accountant do this, especially when the colonel himself is dead?

[00:05:59] Speaker 04:
Yes, Your Honor.

[00:06:00] Speaker 04:
Ms.

[00:06:00] Speaker 04:
Valdes Valdes corroborated not only that his prosecution and his torture in prison was at the behest of Colonel Ramos, but also the assaults that occurred after he was released.

[00:06:10] Speaker 04:
So she said, quote, that Colonel Ramos sent, quote, lower ranking people, end quote, from the police force to beat him up.

[00:06:18] Speaker 04:
To the IJ's question on this point of whether the threat still existed because Colonel Ramos has passed away, she said that the sister, Martha, and the brothers are

[00:06:29] Speaker 04:
quote, friends of the police and they know each other, end quote.

[00:06:32] Speaker 04:
Every single time that they have any problems, they go to the police.

[00:06:35] Speaker 04:
So this is exactly the testimony that Mr. Rapai Castro presented, that the threat clearly remains.

[00:06:42] Speaker 04:
I do want to get to an important issue that cascaded throughout this entire proceeding.

[00:06:48] Speaker 04:
And that's, of course, the lack of counsel.

[00:06:51] Speaker 04:
So had Mr. Rapai Castro had an attorney, he would

[00:06:57] Speaker 04:
he or she, the attorney, would have been able to provide or facilitate the translation of the pre-hearing statement order to get the WebEx link that was required by the court to have her testify, to facilitate her testimony, to Judge Bress's point, to instruct her that she needs to speak slowly, that the IJ will not speak Spanish, and that there will be translation.

[00:07:17] Speaker 04:
All that did not occur because the court denied him his right to counsel.

[00:07:22] Speaker 02:
So how was this issue exhausted before the BIA?

[00:07:25] Speaker 04:
Your honor, this issue is not subject to the normal exhaustion requirements because it arises under the Fifth Amendment due process clause for right to counsel and of course the statutory right of a petitioner to have counsel in his proceedings.

[00:07:38] Speaker 01:
I think the hearing was continued three times so that it could get counsel.

[00:07:42] Speaker 01:
And initially it indicated that he wanted counsel, that he at one point had counsel, but in the last hearing there was an express, right, the second to the last, that I think the IJ said we're going to go forward next time if you don't have counsel.

[00:07:53] Speaker 01:
And then said at the final hearing, OK, you're here.

[00:07:56] Speaker 01:
You don't have counsel.

[00:07:59] Speaker 01:
I'm paraphrasing, but essentially asked him if he wanted to go forward without counsel.

[00:08:02] Speaker 01:
And he said, I think unambiguously, said yes.

[00:08:04] Speaker 04:
There were two continuances, Your Honor, and then the third time the river was found.

[00:08:10] Speaker 04:
We represent that this case is exactly similar to Usabeckinoff, including the time frame.

[00:08:15] Speaker 04:
Here there were two continuances over eight weeks.

[00:08:17] Speaker 04:
In Usabeckanov, there are two continuances over seven weeks.

[00:08:20] Speaker 01:
But I think you're referring to the case where there was a change of venue, right?

[00:08:24] Speaker 04:
And there's no change of venue here.

[00:08:27] Speaker 04:
He was moved from Arizona.

[00:08:29] Speaker 01:
I think you're analogizing to a case where it was very clear that when the petitioner showed up without a lawyer, that's because they were anticipating a change of venue.

[00:08:39] Speaker 01:
But in this case, we don't have that.

[00:08:44] Speaker 04:
Mr. Subekhanov appeared before the same IJ and asked for two continuances because he was struggling to get his attorney to appear.

[00:08:52] Speaker 04:
And then the third time was said, we're proceeding without one.

[00:08:56] Speaker 02:
How about with respect to the... Well, go ahead and finish your point.

[00:08:58] Speaker 04:
Well, Your Honor, also Hernandez-Gill also presents a very similar situation.

[00:09:05] Speaker 04:
The court found denial of counsel where the IJ refused to continue a hearing as the petitioner

[00:09:10] Speaker 04:
I think in both Tawadris and Castro-Ryan is highly relevant here because of course the IJ found waiver at this third hearing.

[00:09:29] Speaker 04:
So the

[00:09:31] Speaker 04:
The analogy for Castro-Orion, this colloquy was found to be insufficient.

[00:09:35] Speaker 04:
Quote, you are here today by yourself.

[00:09:37] Speaker 04:
That is, you don't have an attorney with you.

[00:09:39] Speaker 04:
Does that mean you intend to speak for yourself today?

[00:09:42] Speaker 04:
Answer, yes, I do.

[00:09:43] Speaker 04:
Question, all right.

[00:09:45] Speaker 04:
End quote.

[00:09:46] Speaker 04:
Here on our record, it was the same sort of laconic answer that the Ninth Circuit has found to be insufficient.

[00:09:53] Speaker 04:
The colloquy here was, quote,

[00:09:54] Speaker 04:
I see that you're here again today without an attorney.

[00:09:57] Speaker 04:
Do you want to represent yourself now?

[00:09:59] Speaker 04:
Answer, that's right."

[00:10:00] Speaker 04:
End quote.

[00:10:01] Speaker 04:
That's not a knowing and voluntary waiver.

[00:10:03] Speaker 02:
And he did continue by his actions to represent himself without further requesting counsel.

[00:10:08] Speaker 04:
Yes, your honor.

[00:10:09] Speaker 04:
But Tawadris requires that the knowing and voluntary waiver be presented to the IJ.

[00:10:17] Speaker 04:
And silence is not a knowing and voluntary waiver.

[00:10:20] Speaker 04:
So the fact that he did not affirmatively state

[00:10:22] Speaker 04:
at subsequent hearings that he still wanted an attorney is insufficient to find, to find waiver.

[00:10:27] Speaker 02:
And what I was also wondering is how was this properly exhausted before the BIA?

[00:10:35] Speaker 04:
Two points, your honor, on the exhaustion point.

[00:10:38] Speaker 04:
One is that because it's a constitutional issue, JEFM versus Lynch says that it's not subject to the same requirements for exhaustion because it's a constitutional issue.

[00:10:50] Speaker 02:
And then secondly, I mean, how broad is that any constitutional issue?

[00:10:54] Speaker 04:
I think the denial of counsel, the right to counsel, your honor, is unique.

[00:10:57] Speaker 04:
It presents a certain irony here, which goes to the second point that not only is it constitutional,

[00:11:04] Speaker 04:
but it is impossible to exhaust without counsel.

[00:11:08] Speaker 02:
The right exists... Well, I'm not sure about that.

[00:11:11] Speaker 02:
Why couldn't he have put in his notice of appeal, I was wrongly denied my counsel?

[00:11:16] Speaker 04:
He wasn't represented before the BIA by counsel, Your Honor, and so the right exists that a petitioner has counsel to navigate exactly this kind of legal obligation.

[00:11:26] Speaker 01:
He shouldn't accept any waiver of counsel unless the petitioner is represented by counsel when he waives counsel.

[00:11:32] Speaker 04:
The fact that he did not have an attorney before the BIA inhibited his ability to articulate.

[00:11:38] Speaker 01:
I appreciate that, but my question really was a yes or a no, and I want to make sure I'm following your punch line where it leads.

[00:11:45] Speaker 01:
It sounds to me like what you're saying is if somebody is unrepresented when they waive counsel, then that's per se not a valid waiver of counsel.

[00:11:53] Speaker 04:
My point, Your Honor, is more to the exhaustion to the BIA.

[00:11:56] Speaker 04:
There can be a knowing and voluntary waiver if the implications of the waiver

[00:12:00] Speaker 04:
are clearly articulated, which is what Tawadris requires.

[00:12:04] Speaker 04:
The IJ needs to find a knowing and voluntary waiver, and so that, of course, can be done, pro se.

[00:12:10] Speaker 04:
Here, that short, laconic answer is insufficient under Castro-O'Brien and under Tawadris.

[00:12:16] Speaker 02:
Let me just make sure.

[00:12:17] Speaker 02:
I think I'm following you.

[00:12:20] Speaker 02:
As a case law matter, have we ever said that if somebody is in front of the IJ, and they don't have counsel, and they've raised this issue before the IJ, and they then have to proceed pro se, and they go to the BIA, and they don't raise the counsel issue in front of the BIA, that they can nonetheless come here and raise that issue?

[00:12:40] Speaker 02:
Because the BIA didn't touch this issue at all, because it wasn't raised.

[00:12:44] Speaker 04:
It's a really interesting point, Your Honor, and there's obviously an irony here.

[00:12:47] Speaker 04:
The answer in the case law, so for Toadris, Hernandez-Gill, Rios-Barreros, and Usabeckanoff, the counsel was retained before the BIA, and they raised the fact that the petitioner did not have counsel before the IJ.

[00:13:03] Speaker 04:
And Castro-Ryan, to answer your question, the petitioner lacked counsel before the BIA.

[00:13:08] Speaker 04:
And it's unclear, but it seems like it was not raised.

[00:13:11] Speaker 04:
Yet the court reached the issue, and we represent that the case is highly unpointed.

[00:13:15] Speaker 02:
I mean, I'm not aware of a case that we've said that.

[00:13:17] Speaker 02:
You may be right that that should be the law, but I don't think we've said this before.

[00:13:22] Speaker 04:
I do not think it's clearly articulated, Your Honor, but it is presented in the procedural history of certain denial of counsel cases.

[00:13:30] Speaker 04:
I would also point, aside from Castro-Ryan, I'd point the court to Ram v. Mukasey, where there's no argument

[00:13:39] Speaker 04:
facts about whether the issue was raised, but they find that there was a denial of counsel before the IJ, and there's no mention of the BIA ever mentioning the denial of counsel.

[00:13:48] Speaker 02:
It just seems to me, if this is true as a matter of course, we see a lot of cases where somebody did not have counsel before the IJ, did not have counsel before the BIA, and then they come to us and they do have counsel.

[00:13:59] Speaker 02:
including counsel like yourself, who are kind enough to represent this client.

[00:14:02] Speaker 02:
But then we don't usually go around and say, well, let's now go back into the record for this lack of counsel issue when it wasn't even presented to the BIA.

[00:14:11] Speaker 04:
Singh V. Ashcroft says that the exhaustion requirements in a petition like this do not apply when it's impossible or futile.

[00:14:19] Speaker 04:
We would represent, Your Honor, that when the court appointed me counsel in this case, I was the first person to inform Mr. Appiah Castro of his right to counsel and the denial

[00:14:28] Speaker 04:
before the agency.

[00:14:29] Speaker 04:
He was unaware of the rights that he had and that were violated.

[00:14:34] Speaker 04:
And so for the court to explicitly endorse the government's position here, as we said in our briefs, it's enshrining a Catch-22 that just doesn't exist in the case law.

[00:14:44] Speaker 01:
Did you want to reserve some time?

[00:14:45] Speaker 04:
Yes, Your Honor.

[00:14:46] Speaker 04:
Thank you.

[00:14:46] Speaker 01:
All right.

[00:14:46] Speaker 01:
You bet.

[00:14:54] Speaker 00:
Good morning.

[00:14:55] Speaker 00:
May it please the court, Shires is the guy for the attorney general.

[00:14:58] Speaker 00:
The only issue before the court today is the agency's denial of deferral of removal under the Convention Against Torture.

[00:15:05] Speaker 00:
And the record evidence does not compel reversal of this decision.

[00:15:08] Speaker 01:
Counsel, could you speak up just a little bit?

[00:15:10] Speaker 01:
Yeah, of course.

[00:15:11] Speaker 01:
Big courtrooms, so that would help me.

[00:15:12] Speaker 01:
Of course.

[00:15:13] Speaker 01:
Did you want me to repeat what I just said?

[00:15:14] Speaker 01:
No, I got that part.

[00:15:14] Speaker 01:
I'm just having to lean in, so thank you.

[00:15:18] Speaker 00:
The record evidence does not compel reversal of the agency's denial of cat deferral in this case.

[00:15:22] Speaker 00:
The petitioner's cat claim in this case was based on his claim that the colonel's family would

[00:15:28] Speaker 00:
seeks to harm him upon return, and also he claims that he would be at risk of torture because of his sexual orientation and political activities.

[00:15:36] Speaker 00:
And assessing the cat-deferral claim, the agency considered all risks of harm individually and also in the aggregate.

[00:15:43] Speaker 00:
There were three independently dispositive determinations in denying the cat-deferral claim.

[00:15:48] Speaker 00:
This includes the insufficient corroboration, the failure to establish a clear probability of torture, and also the failure to show that any future torture would be with the consent

[00:15:57] Speaker 00:
or acquiescence of the Peruvian government.

[00:16:00] Speaker 00:
And I will discuss each of these for the court.

[00:16:02] Speaker 00:
The insufficient corroborations, specifically while he did provide some evidence, his evidence failed to establish or show to any capacity that the Colonel was linked to the incidents that he experienced in prison and then after his release.

[00:16:17] Speaker 00:
Specifically, he submitted a letter from his attorney in Peru.

[00:16:21] Speaker 00:
This letter, however, does not substantiate his claims of what happened in prison.

[00:16:26] Speaker 01:
I think that the corroboration is problematic for him, but what about the telephone call that dropped?

[00:16:32] Speaker 01:
Of course.

[00:16:33] Speaker 01:
I think Judge Lee's knowledge, and I think I'll just speak for myself, I think to the extent she testified, she was corroborative.

[00:16:41] Speaker 00:
Well, she did provide some testimony.

[00:16:43] Speaker 00:
It was her claim that there were two members of the Colonel's family who could possibly hurt the petitioner or seek to harm him.

[00:16:50] Speaker 00:
However, she didn't provide any more details, and she also provided a statement, which didn't really provide any information.

[00:16:56] Speaker 01:
The reason I thought it was helpful to him, I guess, was a couple, including that the person who, the Colonel, I guess, has passed away.

[00:17:03] Speaker 01:
And so one would otherwise conclude that he doesn't face any risk at all if he's returned to Peru, and she's explained that there are three brothers, and so on and so forth, and that they knew the police, as opposing counsel has summarized.

[00:17:16] Speaker 01:
And that does seem to me to be corroborative.

[00:17:19] Speaker 00:
There was certainly some evidence that she provided, but other than just the claim that they may harm him, there was nothing further that he points to that really significantly could link any future torture to the actual kernel family members.

[00:17:37] Speaker 00:
some speculation that they might harm him.

[00:17:40] Speaker 01:
Well, I think it's a little more than that.

[00:17:42] Speaker 01:
I think that the government has a pretty strong argument that we don't have a reason to think he would land back in prison, but he also alleges that these same brothers or some combination of brothers arranged for him to be harmed after he had been released from prison.

[00:17:57] Speaker 00:
Right.

[00:17:57] Speaker 00:
He did make that allegation as well, but again, his evidence did not really

[00:18:03] Speaker 00:
support that.

[00:18:04] Speaker 00:
You know, he did submit some evidence from his sisters and there was no mention of anything about the Colonel.

[00:18:09] Speaker 01:
And the others didn't mention the Colonel or the... They didn't mention anything regarding the crime or the... Right, but it kind of cuts both ways.

[00:18:16] Speaker 01:
I think you're right.

[00:18:17] Speaker 01:
I don't see other corroborative evidence.

[00:18:20] Speaker 01:
So what that does, though, is it makes this one witness who was cut off that much more important.

[00:18:25] Speaker 01:
She's pretty critical to his case.

[00:18:27] Speaker 01:
And the call was dropped.

[00:18:29] Speaker 01:
So that's confounding, because on the one hand, I've already said I'm just one of three up here, but I find it very concerning that those directions about how to arrange a witness weren't translated, because I think everything else was translated.

[00:18:42] Speaker 01:
So that's problematic.

[00:18:44] Speaker 01:
There's a real preservation issue about whether this argument was preserved.

[00:18:48] Speaker 01:
the BIA did lean in.

[00:18:50] Speaker 01:
He didn't file a brief with the BIA, and so they're gleaning issues, I think, from a notice of appeal.

[00:18:56] Speaker 01:
I'll certainly give you that.

[00:18:58] Speaker 01:
But I don't know what to make of this transcript.

[00:19:00] Speaker 01:
I've really squinted hard at it to figure out whether or not she was ... Did she hang up?

[00:19:04] Speaker 01:
Was she cut off?

[00:19:06] Speaker 01:
I know they tried to call back one time, but what do we do with that given that she was so important to his case?

[00:19:13] Speaker 00:
Your Honor, I understand the concern and the record in this particular case reflects that the immigration judge did take steps to reach out to the witness, you know, as indicated in the transcript, he did try to call her, the witness did not answer and ultimately there's no indication that anything that, and she did provide some evidence, you know, in support of him, but there's nothing significant that would have

[00:19:39] Speaker 00:
really altered his case.

[00:19:41] Speaker 01:
Can you tell us anything?

[00:19:42] Speaker 01:
I didn't see anything, forgive me for interrupting, but I didn't see anything in the record that tells us whether it's the government's routine practice to translate these, especially for folks for whom English is a second language if they're not, or perhaps not a language if they don't speak English and are unrepresented.

[00:19:59] Speaker 01:
So what's the government's, what's the immigration court's practice?

[00:20:03] Speaker 00:
Well, I understand that in this particular case, there was a Spanish translator who was always available.

[00:20:08] Speaker 00:
I don't know specifically in terms of whether the English version of this document was provided to him.

[00:20:13] Speaker 01:
Well, it was up to him, since he didn't have a lawyer.

[00:20:15] Speaker 01:
That's why I think opposing counsels talk about a cascading problem.

[00:20:19] Speaker 01:
He didn't have a lawyer.

[00:20:21] Speaker 01:
We've gone over the transcript of the, he was asked if he wanted a lawyer.

[00:20:24] Speaker 01:
And there were, I think, a couple of different continuances.

[00:20:27] Speaker 01:
But on hearing number three, he goes forward.

[00:20:30] Speaker 01:
And of course, if those directions aren't translated,

[00:20:33] Speaker 01:
Having a translator to translate Spanish to English, of course, is terribly helpful, but he's got to line up his witness.

[00:20:41] Speaker 01:
So that's the problem.

[00:20:43] Speaker 01:
Are those directions typically made available to people who are representing themselves so they can have their witnesses available?

[00:20:50] Speaker 00:
I believe they would be.

[00:20:52] Speaker 00:
And there's no indication in this case that it wasn't provided to him.

[00:20:55] Speaker 00:
And I think ultimately the fact that he didn't raise this, that that's problematic, that he didn't raise this to the board.

[00:21:03] Speaker 00:
Ultimately, this wasn't addressed by the board.

[00:21:06] Speaker 00:
If there was an issue with the document, the board could have addressed this at that level.

[00:21:10] Speaker 01:
I think this is what Judge Bress was alluding to.

[00:21:13] Speaker 01:
The board is gleaning an argument and has exhausted something, as Judge Bress put it.

[00:21:17] Speaker 01:
And I think it's the argument that his witness, really his primary witness, was improperly excluded.

[00:21:23] Speaker 01:
The question is sort of how much do we pack into that, right?

[00:21:26] Speaker 01:
And they got her on the phone.

[00:21:29] Speaker 01:
Then there was this dropped call.

[00:21:31] Speaker 01:
for whatever reason, dropped or hung up or whatever, an attempt to call back.

[00:21:36] Speaker 01:
So what's your best argument that we should not consider this argument in support of the issue that he did raise to be unexhausted?

[00:21:48] Speaker 01:
In other words, it seems to be part and parcel, and I just wanted to hear your response to that.

[00:21:53] Speaker 00:
I'm sorry, your honor, your question is why should it be considered on the system?

[00:21:57] Speaker 01:
I don't know how you could possibly have gleaned a question out of what I just said.

[00:22:00] Speaker 01:
So here, let me just try it again.

[00:22:01] Speaker 01:
The issue that he preserved is, hey, you improperly excluded my witness.

[00:22:07] Speaker 01:
And part of that, it seems to me, is that when the call dropped, because I didn't have these directions translated, I couldn't get her back.

[00:22:14] Speaker 01:
So has he fairly exhausted this issue about the untranslated instructions?

[00:22:21] Speaker 00:
I don't believe so in his notice of appeal.

[00:22:24] Speaker 00:
I don't believe that that was, I mean, there's nothing specific that was raised regarding that or anything that would just generally refer to any issue.

[00:22:30] Speaker 01:
Is there anything to indicate that the BIA recognized this issue?

[00:22:33] Speaker 00:
I don't read the BIA's decision as recognizing the issue to any extent.

[00:22:38] Speaker 00:
And just the fact that the transcript of all the hearings indicate that there was a Spanish translator.

[00:22:43] Speaker 00:
There was no issues with him understanding what was being provided to him, any instructions.

[00:22:48] Speaker 00:
At no point did he indicate

[00:22:50] Speaker 00:
that he had any trouble understanding anything that he was provided.

[00:22:54] Speaker 01:
The IJ thought the witness was uncooperative, and there's certainly a transcript that indicates many passages weren't translated, and there are times when they ask her to slow down, because the translator did anyway.

[00:23:07] Speaker 01:
Correct.

[00:23:07] Speaker 01:
And I think the IJ did at one point, because he couldn't keep up with her.

[00:23:11] Speaker 01:
Is there anything else other than her speaking really fast, apparently too fast, to indicate that she was uncooperative?

[00:23:19] Speaker 00:
Mainly the fact that the IJ at some point did let her know as well that, you know, if she continues not following the direction of the interpreter and slowing down, that, you know, they would not be able to continue the hearing.

[00:23:32] Speaker 00:
And she indicated that she understood.

[00:23:33] Speaker 00:
So I think basically she was given several opportunities.

[00:23:37] Speaker 00:
Ultimately, she dropped the call.

[00:23:38] Speaker 00:
And then the IJ followed up with the call.

[00:23:41] Speaker 01:
I don't know if she dropped the call.

[00:23:42] Speaker 01:
I can't tell.

[00:23:42] Speaker 01:
But the call dropped.

[00:23:43] Speaker 01:
I know that.

[00:23:44] Speaker 01:
I just can't tell if she hung up or if it dropped.

[00:23:46] Speaker 01:
I was just trying to get at whether or not she did anything else that could be deemed, fairly described as uncooperative, like not answering the question that was asked or something along those lines.

[00:23:58] Speaker 01:
What I see in the record is that she just kept talking really fast.

[00:24:01] Speaker 01:
Is there anything else?

[00:24:02] Speaker 00:
I think ultimately, the last part, right before the call dropped, she was asked several times, why would

[00:24:08] Speaker 00:
why would the family of the Colonel pursue anything, you know, the Colonel's dead, and there was not really much response.

[00:24:14] Speaker 00:
So it just seems like they were trying to get more information about this claim of how the family members and why they would be interested, and there just didn't seem to be any substantive response based on the record.

[00:24:26] Speaker 00:
Excuse me, do you have any other questions?

[00:24:27] Speaker 02:
I was going to ask about the council issue and exhaustion.

[00:24:32] Speaker 02:
So how should the law work

[00:24:34] Speaker 02:
in a case like this where somebody didn't have counsel in the IJ, they then don't raise that issue in front of the BIA and then they come here and do raise that issue.

[00:24:45] Speaker 02:
Are there circumstances under which that would be exhausted or is it never exhausted?

[00:24:50] Speaker 02:
How does the government see that?

[00:24:52] Speaker 00:
Well, this is a due process claim regarding an issue that the board could have addressed.

[00:24:58] Speaker 00:
It's a procedural issue that could have been

[00:25:00] Speaker 00:
addressed by the board and corrected at that level and it should have been raised at that level and if in this particular case if you look at the entire record it reflects that he was given multiple opportunities if you wanted to seek counsel.

[00:25:13] Speaker 00:
There's no indication that he was deprived of this opportunity or brought this to the attention of the immigration judge.

[00:25:20] Speaker 02:
So Mr. Quirk would say, or he did say that, you know, his client did not understand this counsel issue so there was no

[00:25:28] Speaker 02:
ability really for him to raise it in front of the BIA either.

[00:25:31] Speaker 02:
Have you addressed that?

[00:25:33] Speaker 00:
Well, in the record, it reflects that the immigration judge expressly asked him, you know, do you waive your right to counsel?

[00:25:41] Speaker 00:
And he said yes, and he was given the chance to ask for further time.

[00:25:45] Speaker 00:
He never did.

[00:25:46] Speaker 00:
If there had been any indication in the record that there was any problem with him obtaining counsel or that he required more time, perhaps it would be a different situation.

[00:25:55] Speaker 00:
But just the fact that he had the translator, he indicated that he understood everything at all points and was given opportunity every single time that he required it to explore the attorney.

[00:26:07] Speaker 00:
And I think at some point he did actually have representation for filing the asylum application in this case.

[00:26:13] Speaker 00:
So there's, it seems to be a murky area because it seems that he did have some assistance and he indicated, you know, I do have legal counsel who didn't actually enter appearance.

[00:26:25] Speaker 00:
a little bit unclear if he actually did have assistance here.

[00:26:29] Speaker 02:
So is it your position in evaluating the exhaustion issue that what we ought to do is go back to the record and try to make an evaluation of essentially how knowing the council waiver was and if we think it's sufficiently knowing then he really had an obligation to raise it in front of the BIA and if we think there was just not enough in there to make it knowing then maybe he didn't?

[00:26:51] Speaker 00:
That would be the position.

[00:26:52] Speaker 00:
First and foremost is the fact that this is a procedural due process issue that the board should have addressed and could have addressed if it was raised properly.

[00:27:00] Speaker 00:
But the second point would be that yes, if there was any indication in the record that there was a problem, then that could perhaps be the next level of review if there was an issue with representation and seeking representation at that point.

[00:27:15] Speaker 01:
Judge Lee, any other questions?

[00:27:17] Speaker 01:
I don't think we have any other questions.

[00:27:19] Speaker 00:
Did you want to wrap up your remarks?

[00:27:20] Speaker 00:
Sure, of course.

[00:27:22] Speaker 00:
Your Honours, there's no record evidence that would compel reversal of the agency's denial of Caterpillar in this case based on insufficient corroboration as well as the absence of any indication that there's a clear probability of torture as mentioned.

[00:27:36] Speaker 00:
The Colonel has passed, there's no indication that there's any threat.

[00:27:39] Speaker 00:
It's been 20 years since they've had any interaction with the Colonel's family members.

[00:27:43] Speaker 00:
There's also been no indication that there's any link between his experiences and the Colonel's family members.

[00:27:50] Speaker 00:
Specifically, they've never mentioned the incidents that the incidents were linked to the Colonel.

[00:27:56] Speaker 00:
And the victim as well was not mentioned during any of the incidents.

[00:28:00] Speaker 00:
And finally, with respect to his claim of a risk of torture based on his political activity and sexual orientation.

[00:28:06] Speaker 00:
the agency probably found that to be speculative because he hasn't shown that he would be at a particularized risk of harm based on that.

[00:28:14] Speaker 00:
And if there are no further questions, thank you very much.

[00:28:16] Speaker 00:
Thank you for your argument.

[00:28:19] Speaker 01:
Madam Clerk, could you put two minutes on the clock, please?

[00:28:21] Speaker 01:
Thank you.

[00:28:24] Speaker 04:
Thank you, Your Honor.

[00:28:27] Speaker 04:
Judge Christian, just to jump in on the point about how critical Ms.

[00:28:31] Speaker 04:
Valdez was to his case.

[00:28:34] Speaker 04:
We absolutely agree that she was highly corroborative, not only of the torture that occurred in prison, but of the attacks that occurred afterwards.

[00:28:45] Speaker 04:
My friend on the other side said that there's been no interaction with the family for 20 years.

[00:28:49] Speaker 04:
Of course, that's not true.

[00:28:51] Speaker 04:
The assailants were sent by the family.

[00:28:53] Speaker 04:
He was receiving death threats by men, police officers that were sent by the family.

[00:28:59] Speaker 01:
What's the most recent interaction?

[00:29:01] Speaker 04:
The most recent interaction was April 2022, a few months before he came to the United States to seek asylum, to seek refuge.

[00:29:11] Speaker 04:
And that was an assault in Juan Cayo, his hometown, after he left Lima because of two other assaults.

[00:29:16] Speaker 01:
Well, but he has a couple of different incidents where he, after he was released from prison, where he claims that he was assaulted and whatnot, and his sisters were nearby, and they did not describe it this way.

[00:29:27] Speaker 01:
I just want to be clear that I don't see corroboration there.

[00:29:30] Speaker 01:
Do you think I'm missing it?

[00:29:31] Speaker 04:
The, Your Honor, we think that the letters talk about his character, the letters from his sister, but they do not talk about these incidents.

[00:29:39] Speaker 04:
This is a great point at which counsel for petitioner could have talked to the sisters.

[00:29:44] Speaker 01:
What about his counsel from Peru?

[00:29:46] Speaker 01:
He had a criminal defense attorney who chimed in here and did not mention this mistreatment in prison.

[00:29:53] Speaker 04:
Our understanding is that this is a public defender that represented him at his sentencing in Peru.

[00:29:59] Speaker 04:
There's no contact or representation Since 2006 or so and when he was sentenced so she had no reason to know of anything that had happened since okay So you're just coming to it.

[00:30:10] Speaker 01:
I want to make sure we give this case all the consideration It is due so let me just tell you I don't see any other corroboration except for this witness Do you think I'm missing anything else?

[00:30:20] Speaker 04:
I mean his his there's his written testimony which was exactly on point with his his oral testimony and

[00:30:26] Speaker 04:
The IJ found him to be credible.

[00:30:28] Speaker 04:
The government's brief acknowledges that the corroboration requirement was under the IJ finding him to be credible.

[00:30:36] Speaker 04:
And so Ms.

[00:30:37] Speaker 04:
Valdez-Valdez was the critical piece of the case, Your Honor.

[00:30:41] Speaker 04:
And just to conclude, I see I'm out of time.

[00:30:44] Speaker 04:
Castro-Ryan, we again insist, is the most on point here to Judge Press's concerns about the constitutional exhaustion issue as well.

[00:30:52] Speaker 04:
There, the court held

[00:30:54] Speaker 04:
Quote, lacking the counsel he had asked for, Castro lacked what has been said to be indispensable and missing in totalitarian countries, a clear-minded ally who knows the law.

[00:31:03] Speaker 04:
No one was there to help him tell his story.

[00:31:05] Speaker 04:
His case was seriously prejudiced by the lack of legal assistance that Congress has mandated.

[00:31:10] Speaker 04:
We represent, Your Honor, that the board's fundamental error here was to affirm a decision in a hearing marred by denial of counsel.

[00:31:18] Speaker 04:
We ask that the court grant Mr. Pai Castro's petition.

[00:31:21] Speaker 01:
Thank you.

[00:31:22] Speaker 01:
Arguments both of you and for your patience with our questions.

[00:31:25] Speaker 01:
We'll take that case under advisement counsel I want to thank you also for your pro bono representation very helpful to the court will take that case under advisement