[00:00:20] Speaker 04:
Good morning, Your Honors.

[00:00:21] Speaker 04:
May it please the court, Tracy Crowley on behalf of Petitioner Johan Soto Cedeno.

[00:00:28] Speaker 04:
Reasonable fear proceedings require a low standard of proof.

[00:00:32] Speaker 04:
This process was only meant to screen for frivolous fear claims.

[00:00:36] Speaker 04:
And so the burden of proof is reasonable possibility of persecution or torture, which has been held to be akin to a one in 10 chance.

[00:00:46] Speaker 04:
Petitioner met this low standard of proof

[00:00:49] Speaker 04:
and we're asking the court to reverse the immigration judge's decision and vacate the asylum officer's finding of no reasonable fear of persecution and torture.

[00:01:00] Speaker 04:
But prior to discussing my client's fear of return to Venezuela, I would like to talk about the denial of the statutory right to counsel.

[00:01:12] Speaker 04:
Reasonable fear respondents are entitled to counsel at no expense to the government.

[00:01:18] Speaker 04:
The parties are in agreement that this applied to a petitioner, but the parties disagree whether there was a waiver of that right on the record.

[00:01:27] Speaker 02:
So can I ask you, as I looked at that question, one of the issues I had was exhaustion.

[00:01:33] Speaker 01:
It's a little bit complicated in this context, because as you point out, this is a truncated proceeding.

[00:01:41] Speaker 02:
as i understand and correct me if i have the facts wrong there was an initial hearing where that i'd jay said you have a right to counsel uh... you don't go would you go figure out if you want it explain that then they had a new hearing was it what three days later four days later three days three days later and he said you you remember our conversation about a right to counsel

[00:02:08] Speaker 02:
Are you ready to proceed?

[00:02:09] Speaker 02:
And your client said, yes.

[00:02:13] Speaker 02:
Your client never said, hey, I was denied a right to counsel or I have a right to counsel.

[00:02:19] Speaker 02:
I want it.

[00:02:20] Speaker 02:
And usually we require exhaustion so that the agency can correct the error.

[00:02:26] Speaker 02:
But there was never a suggestion.

[00:02:30] Speaker 02:
that the IJ might have aired.

[00:02:32] Speaker 02:
So why, and I couldn't really find any case law, at least in this context of this truncated proceeding.

[00:02:38] Speaker 02:
I mean, normally you could go back to the BIA and raise your issue and exhaust it, but here you can't.

[00:02:44] Speaker 01:
So how do we grapple with that exhaustion question here?

[00:02:49] Speaker 04:
I would point the court to Zuniga v. Barr, which had a similar colloquy between the court and petitioner.

[00:02:55] Speaker 02:
But that was before the BIA, right?

[00:02:57] Speaker 04:
No, that was before this.

[00:02:59] Speaker 02:
And it was on a truncate, it was before the IJ on a truncated proceeding?

[00:03:02] Speaker 04:
Correct, a reasonable fear proceeding being reviewed.

[00:03:06] Speaker 04:
In that case, the immigration judge advised the petitioner of his right to counsel, did not specifically inquire whether the petitioner in that case wanted to

[00:03:23] Speaker 04:
exercise that right or not and then just proceeded with the case and it's similar here where the immigration judge mentions the prior continuance to consult with an attorney and then says are you ready to proceed there is no specific inquiry as to whether petitioner wanted to proceed pro se and that's there's no dispute that he was

[00:03:49] Speaker 00:
advised of his statutory right to have an attorney assist him in these proceedings.

[00:03:54] Speaker 00:
Everybody agrees with that.

[00:03:56] Speaker 04:
I agree he was properly advised that his question.

[00:03:58] Speaker 00:
The question here is whether or not they obtained a proper waiver.

[00:04:02] Speaker 04:
Correct.

[00:04:03] Speaker 00:
Right?

[00:04:03] Speaker 00:
And so it makes little sense to say that that needs to be exhausted when it was the court's obligation to ask.

[00:04:15] Speaker 00:
OK, now you understand that by proceeding today or moving forward, I think you used the word moving on.

[00:04:20] Speaker 00:
If we move on today, you're giving up your right to have counsel.

[00:04:24] Speaker 04:
Precisely, the court has held since Tawadris v. Ashcroft in 2004 that the burden is on the immigration judge.

[00:04:34] Speaker 02:
Correct.

[00:04:34] Speaker 02:
Well, I agree with you.

[00:04:36] Speaker 02:
Tawadris, if I have the case name right, says the burden's on the immigration judge to get the voluntary waiver.

[00:04:44] Speaker 02:
That's true.

[00:04:45] Speaker 02:
But we're dealing with an exhaustion issue.

[00:04:48] Speaker 02:
And I guess I'm wondering, can we rule in your client's favor without reading the exhaustion rule out of existence?

[00:04:55] Speaker 02:
Maybe we should.

[00:04:56] Speaker 02:
But I don't know that we've ever done that.

[00:05:00] Speaker 02:
And as I read the regulation, it says you have to exhaust in any

[00:05:06] Speaker 02:
if you know at the where you have a an opportunity to do so as of right and the question is how do we interpret as of right because i mean your argument is well she never had the opportunity and i i take that but the only the only hearing as of right that your client had because this was a truncated proceeding was before the ij so i'm wondering whether the obligation wasn't

[00:05:35] Speaker 02:
on, for exhaustion purposes, wasn't on your client to at least indicate, no, you told me I needed an attorney, I need to take another look at it.

[00:05:48] Speaker 04:
Right.

[00:05:48] Speaker 04:
This court has never held that the burden is on the petitioner to... No, for exhaustion, we clearly have.

[00:05:55] Speaker 04:
But Zuniga v. Barr, there was just an inadequate inquiry by the immigration court, no objection, no request for a continuance, and that was held to be...

[00:06:06] Speaker 04:
a denial of counsel.

[00:06:08] Speaker 00:
It strikes me as kind of odd based on my experience of taking waivers.

[00:06:13] Speaker 00:
It would be odd for us to say, hey, Mr. Petitioner here, or Mr. Non-Citizen, hey, you need to tell the judge that he needs to ask me whether or not I'm waiving my right, my opportunity to have an attorney represent me.

[00:06:33] Speaker 00:
That strikes me as a little bit odd.

[00:06:35] Speaker 04:
Right, it flies in the face of reason to require a pro se petitioner to affirmatively object in the face of the immigration judge doing an improper inquiry.

[00:06:50] Speaker 01:
Well, but we require pro se immigrants to exhaust all the time.

[00:06:57] Speaker 04:
when they have the right to appeal to the BIA when they have subsequent hearings in front of the same immigration judge.

[00:07:06] Speaker 02:
I understand that.

[00:07:06] Speaker 02:
That's why I'm asking.

[00:07:08] Speaker 02:
I mean, the only way it seems to rule for you is to read the exhaustion requirement out there.

[00:07:15] Speaker 04:
I don't think the court has to go that far.

[00:07:17] Speaker 04:
I think this is the first instance review.

[00:07:20] Speaker 02:
Well, he clearly didn't exhaust.

[00:07:23] Speaker 02:
He clearly didn't exhaust.

[00:07:25] Speaker 02:
So we either have to say you didn't need to exhaust, maybe we should, but I'm not sure what, I mean, that seems to be carving new ground to say you don't need to exhaust.

[00:07:38] Speaker 02:
I understand the reasons why we might want to.

[00:07:40] Speaker 04:
If the court sees the only path forward as reading out an exhaustion requirement in terms of giving a knowing and voluntary waiver,

[00:07:53] Speaker 04:
then that should be the course that the court takes today, because otherwise it renders meaningless all these decades of case law.

[00:08:04] Speaker 02:
Can I ask you real quick on the government involvement?

[00:08:09] Speaker 02:
I think your strongest argument here is that the IJ

[00:08:16] Speaker 02:
might have misstated the legal standard because the IJ said well there was no participation involvement, there was no government involvement and it's clear that our cases

[00:08:32] Speaker 02:
say, I mean, the standard itself is acquiescence or involvement.

[00:08:36] Speaker 02:
But what I'm wondering is, can involvement be read broadly to include acquiescence?

[00:08:41] Speaker 02:
I mean, is this an error?

[00:08:43] Speaker 02:
Is this a technical legal error that doesn't really have any import?

[00:08:49] Speaker 04:
No, Your Honor, because

[00:08:52] Speaker 04:
uh... the case was clear that the government officials don't even have to have direct knowledge of the torturous activity they just have to have general awareness that this activity occurs and then breach their legal responsibility no i don't think that's correct uh... eight c a far section two oh eight point one eight eight seven eight seven says

[00:09:16] Speaker 02:
acquiescence requires that a public official prior to the activity constituting torture have awareness of such activity.

[00:09:24] Speaker 04:
Awareness of such activity, but they don't need to have direct knowledge of the activity affecting petitioners.

[00:09:32] Speaker 02:
Right, but I guess that's my question is, isn't awareness ultimately ... I mean, this is confusing because we've got cases, even our court,

[00:09:40] Speaker 02:
Sometimes we say acquiescence is different than involvement, and other times we're not as careful, even on our court.

[00:09:46] Speaker 02:
We have plenty of cases where we just look at involvement, and I'm wondering why we're exacting a higher standard.

[00:09:55] Speaker 02:
I get that it might be technically incorrect, but I just wonder if it's a difference that matters at the end of the day.

[00:10:06] Speaker 04:
It matters because petitioner alleged acquiescence.

[00:10:09] Speaker 04:
He reported... I agree.

[00:10:12] Speaker 02:
And so you think we need to send it back so that the IJ can say, okay, there's no... Not only was there no involvement, but there was no acquiescence.

[00:10:19] Speaker 04:
Right.

[00:10:19] Speaker 02:
Okay.

[00:10:20] Speaker 04:
And I was hoping no reserve... Yeah, we'll give... Don't worry, we took you over.

[00:10:23] Speaker 02:
Okay.

[00:10:24] Speaker 02:
And I don't mean to cut off any of my... Either of my colleagues have questions, but we'll give you time for rebuttal.

[00:10:28] Speaker 04:
Okay, thank you.

[00:10:52] Speaker 03:
May it please the court.

[00:10:54] Speaker 03:
My name is Jacqueline Shea for the Attorney General of the United States.

[00:10:58] Speaker 03:
This is a reinstatement case.

[00:11:00] Speaker 03:
Petitioner was removed and illegally reentered a month later.

[00:11:04] Speaker 03:
His prior moveable order was reinstated and he was placed in regional fear.

[00:11:09] Speaker 03:
rescreening procedures.

[00:11:10] Speaker 03:
As this court has recognized, these proceedings are to be efficient, expedited, and they were not intended to be full evidentiary hearings.

[00:11:19] Speaker 03:
The process was meant to quickly identify and resolve for religious claims to protection without duly disrupting the streamline removal process.

[00:11:29] Speaker 02:
Okay, so I agree with you and that makes this a little different, but there's still a right to counsel even in these proceedings, right?

[00:11:37] Speaker 03:
Yes, Your Honor.

[00:11:38] Speaker 02:
And there's still a need to get a clear and voluntary waiver, correct?

[00:11:42] Speaker 03:
I disagree, Your Honor, respectfully.

[00:11:44] Speaker 03:
In Orozco v. Lopez, that was the case at issue where it was a reasonable reinstatement case.

[00:11:52] Speaker 03:
And the court made clear in that case that non-citizens are entitled to counsel at no expense to the government.

[00:11:58] Speaker 03:
However, the court cabined that right as only being notified of the right to counsel and to be given the opportunity to obtain counsel, which here the petitioner clearly knew his right to counsel.

[00:12:11] Speaker 03:
He received written and oral notice advising him of his right to counsel, and he had an opportunity here to consult counsel.

[00:12:18] Speaker 03:
Petitioner was informed on two separate occasions, at least two separate occasions.

[00:12:24] Speaker 03:
He was provided the notice of referral, and it was read to him in his native language of Spanish, and that had the clear advisal there.

[00:12:31] Speaker 02:
Okay, so we've got the first issue, which is, and I'll need to look at it, what's the case citation on that one?

[00:12:36] Speaker 02:
I'm not sure I've looked at it.

[00:12:37] Speaker 03:
Orozco v. Lopez, Your Honor.

[00:12:40] Speaker 02:
And do you have the, we can look it up, but was it cited in your brief?

[00:12:46] Speaker 03:
That that case was cited in our brief.

[00:12:48] Speaker 02:
Yes, your honor and the fact that it's cabined with an attend a requirement to complete this hearing actually in that case Let's assume that that's so that would be one way you win is by saying, okay We've held that you only have a right to notice.

[00:13:02] Speaker 02:
There's no voluntary and an opportunity So if so, let's assume that it is there that we find there is a requirement for a voluntary and

[00:13:16] Speaker 02:
Actual waiver actually Has that been complied with here under Todd Toddress Yes, your honor and I think there is obviously an argument here that there was a clear waiver from the record Your exhaustion argument again that you raised previously that would be another way to go at it Okay, but help me with the exhaustion requirement because yes, I mean judge Pias raises a good point which is

[00:13:44] Speaker 02:
What's the point of having an exhaustion requirement here if he doesn't have another opportunity before the BIA?

[00:13:52] Speaker 02:
I mean, I don't know how exhaustion applies here.

[00:13:56] Speaker 03:
Well, Your Honor, here, he never indicated he had two separate hearings before the IJ in this case.

[00:14:01] Speaker 03:
He never indicated that he wanted to have an attorney present with him.

[00:14:06] Speaker 03:
He only said that he wanted to consult counsel.

[00:14:08] Speaker 03:
And he never complained at the second occasion when the same immigration judge before him asked him if he was ready to continue.

[00:14:16] Speaker 03:
And he said he was clearly, I mean, it's unequivocal.

[00:14:18] Speaker 00:
Yes, he wanted to proceed.

[00:14:20] Speaker 00:
You don't think the immigration judge had any obligation whatsoever to say, hey, do you understand by going forward

[00:14:25] Speaker 00:
You're giving up any opportunity to have an attorney.

[00:14:28] Speaker 03:
No, Your Honor, because again, going back to Arroz O. V. Lopez, the only requirement is the notice of the right to counsel and the given the opportunity to counsel.

[00:14:36] Speaker 00:
The statutory right comes from the regulation, right?

[00:14:39] Speaker 00:
Or the right, it comes from a regulation.

[00:14:43] Speaker 00:
Is that right?

[00:14:44] Speaker 03:
Well, the statutory right... Let me ask you this.

[00:14:48] Speaker 00:
The right to have counsel in one of these proceedings, reasonable fear determination proceedings, the source of that right is grounded where?

[00:14:58] Speaker 03:
Zunka, Your Honor, that decision of this court is what, that was a reasonable fear case.

[00:15:03] Speaker 03:
That was not a reinstatement case.

[00:15:05] Speaker 03:
Reinstatement case here is slightly different.

[00:15:08] Speaker 03:
So the case on point for here would be a Roseau v. Lopez.

[00:15:11] Speaker 00:
There's reinstatement.

[00:15:12] Speaker 00:
And then if you raise a question about reasonable fear.

[00:15:16] Speaker 03:
No, they're different, sir.

[00:15:17] Speaker 03:
No, Your Honor.

[00:15:18] Speaker 03:
Reasonable fear proceedings in general are kind of like all types of proceedings.

[00:15:22] Speaker 00:
And there's a specific separate reinstatement case.

[00:15:28] Speaker 00:
all types of proceedings, as you just said.

[00:15:30] Speaker 00:
They must come from the same source.

[00:15:32] Speaker 00:
That is the right to counsel.

[00:15:35] Speaker 03:
The right to counsel... It's a statutory right, right?

[00:15:39] Speaker 03:
The right to counsel is... It comes from... No, this court actually found that 8 CFR 2831, temporary limitations, which is the regulatory requirement of the 10-day requirement for the hearing to be conductive,

[00:15:55] Speaker 03:
that it was cabined by that right.

[00:15:57] Speaker 03:
But this court in Zunka is the one, that was a reasonable fear case, Your Honor.

[00:16:02] Speaker 03:
And just to be clear, a reinstatement case is a specific type of reasonable fear case.

[00:16:07] Speaker 03:
They're different.

[00:16:08] Speaker 03:
Because a restatement case like this, he already reentered

[00:16:11] Speaker 03:
You know, he already had his previous proceeding and had his second.

[00:16:14] Speaker 04:
Yes, Your Honor.

[00:16:15] Speaker 03:
And I think the exhaustion argument that counsel had said that there's no exhaustion or relied on Zunka, that case.

[00:16:23] Speaker 03:
And that case, again, the knowing involuntary, I mean, I'm sorry, she relied on that case, Your Honor, for a knowing voluntary waiver.

[00:16:30] Speaker 03:
And the present case is distinguishable from Zunka because, again, that was not a reinstatement case.

[00:16:37] Speaker 03:
And actually, the issue of a knowing and voluntary waiver didn't even come up because it was not before the court in that case.

[00:16:43] Speaker 03:
The government actually conceded that there was not an issue there.

[00:16:47] Speaker 00:
Let me ask you this.

[00:16:49] Speaker 00:
When we're outside of the reinstatement and reasonable fear proceedings, however you want to characterize them, when we're just in a regular

[00:16:55] Speaker 03:
A full evidentiary hearing, Your Honor?

[00:16:56] Speaker 00:
Just a regular immigration proceeding.

[00:16:59] Speaker 00:
The right to counsel in those proceedings is based on a statute or regulation.

[00:17:05] Speaker 00:
Is that correct?

[00:17:05] Speaker 03:
It is different.

[00:17:06] Speaker 03:
Yes, Your Honor.

[00:17:07] Speaker 00:
It's a full... Why is it different?

[00:17:10] Speaker 00:
Why is that different than this?

[00:17:11] Speaker 03:
Because this is an expedient... Again... No, no, no, no.

[00:17:15] Speaker 00:
What I'm trying to get at is the basis for the right.

[00:17:18] Speaker 00:
Does it cut across all these different proceedings?

[00:17:23] Speaker 03:
Well, Your Honor, this Court has made clear that this is not a full, evidentiary hearing.

[00:17:27] Speaker 00:
I'm asking you, is the fundamental right, the right that we're dealing with here, does it cut across all the various kinds of immigration removal proceedings or whatever they may be?

[00:17:38] Speaker 00:
I mean, in the reasonable fear context, is there a specific statute that says you have a right to have counsel at these reasonable fear proceedings at no expense to the government?

[00:17:52] Speaker 00:
And by the way, that's it.

[00:17:56] Speaker 00:
Is there a separate regulation or statute that says that?

[00:17:59] Speaker 03:
Yes, Your Honor.

[00:18:00] Speaker 03:
1362 is the right to counsel requirement in these reasonable fear proceedings.

[00:18:06] Speaker 03:
But this court defined what that right to counsel looks like in Zunka and it as well as in Oroso v. Lopez.

[00:18:14] Speaker 03:
And the court is saying, oh, go ahead, Your Honor.

[00:18:16] Speaker 02:
I just want to make sure I understand.

[00:18:17] Speaker 02:
So you're saying the right to counsel

[00:18:20] Speaker 02:
does exist and does apply, but how it applies is different based on the context.

[00:18:25] Speaker 03:
Exactly, Your Honor.

[00:18:26] Speaker 03:
And the context here is we are, you know, you have 10 days to remove the, for the, for the whole reasonable fear review proceeding to be conducted.

[00:18:33] Speaker 03:
And in this case, we are on day nine.

[00:18:35] Speaker 03:
when the actual review hearing happened.

[00:18:38] Speaker 03:
And it's clear from his response, he was ready to proceed.

[00:18:41] Speaker 03:
So I think this court could find it was no involuntary waiver if you go that route.

[00:18:45] Speaker 03:
But again, the government's saying you don't need to go that route.

[00:18:47] Speaker 02:
The problem is Toddress.

[00:18:49] Speaker 02:
I mean, whether, you know, Toddress seems to put a high bar on this, which is fine.

[00:18:53] Speaker 02:
It's a right to counsel.

[00:18:55] Speaker 02:
I mean, I agree with you.

[00:18:55] Speaker 02:
I read this and I read it as saying he knew he had a right.

[00:18:59] Speaker 02:
He didn't invoke it.

[00:19:01] Speaker 02:
But Toddress seems to say you have to actually inform them

[00:19:06] Speaker 02:
And I'm not sure that extra step was taken here.

[00:19:08] Speaker 03:
Well, Your Honor, in that case, and I would say, again, go back to a Rose Ovi Lopez, because in that case, there was too specific.

[00:19:15] Speaker 02:
Well, I need to look at that.

[00:19:17] Speaker 02:
But that's a different argument.

[00:19:18] Speaker 02:
That argument is saying you actually don't have to do that tawdrous step.

[00:19:23] Speaker 02:
I mean, if that case says what it says, then

[00:19:27] Speaker 02:
You don't have to take the Tautress step.

[00:19:29] Speaker 02:
You only have to notify of a right.

[00:19:31] Speaker 02:
And that's interesting.

[00:19:33] Speaker 02:
And I could see why we would adopt that rule in these expedited proceedings.

[00:19:37] Speaker 03:
And again, Tautress, that case too that you're talking about, Your Honor, that was a full evidentiary hearing case.

[00:19:42] Speaker 02:
Again.

[00:19:43] Speaker 02:
No, I understand.

[00:19:44] Speaker 02:
But that's the question, is whether that standard gets applied here.

[00:19:48] Speaker 02:
And if it is applied here, I'm not sure that it was complied with, technically.

[00:19:54] Speaker 00:
Could you just briefly address the cat claim?

[00:19:58] Speaker 03:
Yes, your honor.

[00:20:02] Speaker 03:
Your honor, this court concluded that he did not have a reasonable fear of torture by the government actor, and the record evidence does not compel the conclusion that more likely than not petitioner would be tortured.

[00:20:14] Speaker 03:
So the immigration judge did not necessarily need to explicitly address the government acquiescence for cap protection.

[00:20:20] Speaker 03:
I think, Your Honors, when you look at the record here in the immigration judge hearing when he was before him, the conclusion of the hearing is clear that his credibility finding was dispositive of all of those things.

[00:20:34] Speaker 02:
So if you have any issue- Wait, so you think that the credibility finding was dispositive of the cat claim as well?

[00:20:40] Speaker 02:
It is, Your Honor.

[00:20:41] Speaker 02:
I didn't see you making that argument in your brief.

[00:20:43] Speaker 03:
Your honor, I think it was raised by both separate things.

[00:20:46] Speaker 03:
Substantial evidence was argued on the merits of the cat claim as well as substantial evidence in support of the adverse credibility.

[00:20:54] Speaker 02:
I understand substantial evidence, but the adverse credibility, I was interested in this issue because the adverse credibility finding technically only went to the, as I understood it, only went to the nexus prong from the IJ.

[00:21:09] Speaker 03:
No, Your Honor, there's case law in this court that it would basically dispositive of the withholding claim as well as the cat claim here.

[00:21:17] Speaker 03:
And I think the basis of his order in this case was clear.

[00:21:20] Speaker 02:
What case would you cite for that proposition?

[00:21:24] Speaker 03:
I can't think of it one off hands, Your Honor, but I could 28J that for you.

[00:21:28] Speaker 00:
So you don't put any stock in the, or you would just disregard the fact that the IJ

[00:21:37] Speaker 03:
made them applied the wrong standard or describe the standard in it in an inappropriate way you know your honor i don't think he needed to it just specifically dress the government acquiescence again on discord has found that you know you don't have to address all the issues well but i'm in the clean okay but that uh... so that but that's because this isn't in your view that's because this is an expedited context of expedited proceeding yes your honor i mean it uh... look it's it's a tough question for me because

[00:22:05] Speaker 02:
I do think, I mean, you would agree that the standard is legally, I mean, there's two points.

[00:22:12] Speaker 02:
Number one, you don't have to address it.

[00:22:13] Speaker 02:
But if you do address it, you can't be incorrect.

[00:22:15] Speaker 02:
And you would agree that the standard is technically incorrect, right?

[00:22:20] Speaker 03:
I think it is confusing, Your Honor, yes, what is put out there.

[00:22:22] Speaker 03:
But again, you don't just look at the IJ's order.

[00:22:24] Speaker 03:
You also look to the asylum officer's explanation.

[00:22:28] Speaker 03:
And I think there's enough there.

[00:22:30] Speaker 02:
Did the asylum officer talk about acquiescence?

[00:22:32] Speaker 03:
He kind of, yes, Your Honor, in his decision he did also mention that, but it also is clear from the asylum officer's decision that there was no harm here, rising past harm or to rise to past torture here.

[00:22:46] Speaker 03:
So that's an alternative way that this court could find because the only instance here was the one-time harm that he had in this case and there was no evidence at all of government being involved in the harm.

[00:22:58] Speaker 03:
His testimony as well was

[00:23:00] Speaker 03:
that he wasn't sure during the asylum interview that the government was even working together with this group.

[00:23:09] Speaker 03:
And then looking again at the asylum, the adverse credibility finding here, Your Honors, I mean, he was clearly inconsistent about the criminal group he feared.

[00:23:17] Speaker 03:
This was not a minor omission.

[00:23:19] Speaker 03:
He said two different groups, and in multiple times in the asylum office interview, he actually said the group, the Tojanas, 52, 53, 58.

[00:23:28] Speaker 03:
Additionally, the testimony was, when his explanation was that he didn't know if the, that the groups, during the testimony for the IJ, he said, oh, they work together.

[00:23:40] Speaker 03:
But that was, again, conflicted his previous testimony in his asylum office interview in 56.

[00:23:44] Speaker 03:
He also was inconsistent and lacked in very little detail.

[00:23:47] Speaker 03:
I'm sorry your honor.

[00:23:48] Speaker 02:
I I'm just gonna point out you're over I know we've taken you over, but I think you mean I mean we're yeah if you if you want to Yes, sir.

[00:23:55] Speaker 03:
Can I briefly conclude with that would that be okay?

[00:23:57] Speaker 03:
Okay?

[00:23:58] Speaker 03:
Yes

[00:24:00] Speaker 03:
In summary, substantial evidence supports the immigration judge's conclusion that Petitioner did not establish a regional fear of persecution or torture.

[00:24:08] Speaker 03:
Petitioner's statutory right to counsel was not violated because he had an opportunity to retain counsel, and he failed to do so.

[00:24:14] Speaker 03:
And the other due process challenges are without mayor.

[00:24:17] Speaker 03:
Therefore, we ask this court to deny the petition for review.

[00:24:19] Speaker 03:
Thank you, Your Honors.

[00:24:21] Speaker 02:
We'll give you three minutes for rebuttal.

[00:24:34] Speaker 04:
Opposing counsel relies on Orozco-Lopez v. Garland for the proposition that the statutory right to counsel is altered because this is a truncated proceeding, but that was not the holding by this court in that case.

[00:24:50] Speaker 04:
That court mentioned the time requirement of the 10 days, but it also explicitly says a non citizen may waive the right to counsel during a reasonable fear interview but the waiver must be knowing and voluntary in order for it to be knowing and voluntary.

[00:25:06] Speaker 04:
the Roscoe Lopez Court cited to address, which gives us the two steps of the specific inquiry and the affirmative response.

[00:25:16] Speaker 04:
And so regardless of the right being cabin by a time constraint, it is not altered in that the immigration court does not have the burden to elicit a knowing and voluntary waiver.

[00:25:30] Speaker 04:
They come from the same statute.

[00:25:32] Speaker 04:
It's the same statutory right.

[00:25:35] Speaker 04:
in these proceedings as a full removal proceeding.

[00:25:37] Speaker 04:
I would like to address the credibility finding.

[00:25:45] Speaker 04:
Credibility findings are due deference when they're supported by the record.

[00:25:51] Speaker 04:
Substantial evidence does not support the immigration judge's determination that respondent or petitioner did not testify credibly.

[00:26:01] Speaker 02:
Why not though?

[00:26:03] Speaker 02:
Because, I mean, he clearly relied on two different gangs.

[00:26:09] Speaker 02:
I mean, he gave an explanation.

[00:26:11] Speaker 02:
But the IJ did what he needed to do.

[00:26:13] Speaker 02:
He said, hey, you said this gang, you told the asylum officer that this gang was the problem, and now you're saying this other gang is the problem.

[00:26:22] Speaker 02:
Can you explain that?

[00:26:23] Speaker 02:
And he said, well, they work together.

[00:26:25] Speaker 02:
Correct.

[00:26:27] Speaker 02:
So I don't understand why that doesn't meet substantial evidence.

[00:26:31] Speaker 04:
The immigration judge viewed this as an inconsistency, but any reason.

[00:26:36] Speaker 04:
It's an inconsistency.

[00:26:37] Speaker 02:
He gave an explanation, and the immigration judge

[00:26:41] Speaker 02:
didn't credit that explanation, but it seems to me the immigration judge did exactly what he was supposed to do, which is recognize the inconsistency and gave him an opportunity to address it.

[00:26:52] Speaker 02:
If he hadn't have given him the opportunity to address it, that would have been a problem, but he didn't do that.

[00:26:56] Speaker 04:
I would disagree with the term inconsistency because petitioner, but that's your, that's your argument is this isn't an inconsistency and omissions, which at worst petitioner did not mention Trendel Ragwa during his interview, but during his come from, sorry, where did that, where did that, that name come from?

[00:27:21] Speaker 04:
Trendel Ragwa.

[00:27:22] Speaker 00:
Yeah.

[00:27:22] Speaker 00:
How did it, how did it surface during the hearing?

[00:27:25] Speaker 04:
It's not transcribed or translated.

[00:27:27] Speaker 04:
Uh, the first mention is by the immigration judge.

[00:27:31] Speaker 04:
So we're not, there is no record as to why petitioner brought this up.

[00:27:36] Speaker 04:
But when asked by immigration judge, he explained Los Tocoyanos work together with these gangs.

[00:27:44] Speaker 04:
And so his fear of Tocoyanos is the source of his fear of Trendel Ragwa.

[00:27:50] Speaker 04:
due to his belief that they work together.

[00:27:52] Speaker 00:
And how did the immigration judge respond to that explanation?

[00:27:57] Speaker 04:
He simply repeated that Petitioner was changing the group that he fears during his hearing from the group that he feared during his interview.

[00:28:08] Speaker 04:
But review of the record reveals that that's not accurate.

[00:28:11] Speaker 00:
But he feared both.

[00:28:12] Speaker 04:
He fears both.

[00:28:13] Speaker 04:
And so he omitted his fear of Trento Aragua during his interview.

[00:28:18] Speaker 04:
And omissions are not given the same significance, particularly when the applicant is not represented and does not speak English.

[00:28:29] Speaker 04:
The I would also ask the court to consider the limited ability of the petitioner to testify and provide corroborating evidence as part of the totality.

[00:28:38] Speaker 02:
I think you better go to Congress with that one.

[00:28:42] Speaker 02:
I mean, it's tough.

[00:28:43] Speaker 02:
It's a 10 day proceeding.

[00:28:45] Speaker 04:
Just in reviewing the credibility determination, the first

[00:28:49] Speaker 04:
Instance fact-finder was the asylum officer He had a very limited ability to testify before the immigration judge.

[00:28:57] Speaker 02:
Okay, I think we have both counsel's arguments very interesting case Thank you for both of you for your help in helping us understand it The case is now submitted and that concludes our arguments for the day.

[00:29:08] Speaker 04:
Thank you very much

[00:29:32] Speaker 04:
This court for this session stands adjourned.