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

[00:00:05] Speaker 00:
Yan Zhao on behalf of the petitioner.

[00:00:09] Speaker 00:
May it please the Court.

[00:00:11] Speaker 00:
We received this Court's focus order, and we really appreciate it.

[00:00:16] Speaker 00:
As Honors know, this case involves a variety of issues.

[00:00:20] Speaker 00:
We stand on our position on all those issues, as stated in our briefs.

[00:00:25] Speaker 00:
But for today's hearing, I'd like to focus my time on the questions posed in the focus order, which concerns the country conditions evidence.

[00:00:34] Speaker 00:
The country conditions evidence alone, independent of the petitioner's testimony, could justify cat relief.

[00:00:42] Speaker 00:
and must be given recent consideration.

[00:00:46] Speaker 00:
The BIA has not done so, and the government has waived any argument to the contrary.

[00:00:52] Speaker 00:
Therefore, we ask that this case be remanded so that the BIA could properly consider the evidence in the first instance.

[00:01:01] Speaker 00:
I'd like to go into detail as to each question in the focus order.

[00:01:07] Speaker 00:
First, the expert testimony as the documentary evidence compels the finding that the petitioner will likely be tortured either by or with the acquiescence of the government if he returns to Mexico.

[00:01:22] Speaker 00:
And the evidence also compels the finding that there is no safe place in Mexico for the petitioner to relocate to.

[00:01:30] Speaker 00:
And before I get to why, I'd like to emphasize that this court need not and should not reach this issue under the Supreme Court's decision in INS Vivintura.

[00:01:43] Speaker 00:
That is because this court should not weigh the evidence in the first instance when the BIA has not properly done so.

[00:01:53] Speaker 00:
But putting that aside, I'd like to explain the three buckets of evidence that when considered in totality

[00:02:01] Speaker 00:
shows the likelihood of torture.

[00:02:04] Speaker 00:
The first and most important bucket of evidence concerns the place that, the first bucket of evidence shows that the Mexican place either acquiesce or actively facilitate torture of people with gang-related tattoos.

[00:02:22] Speaker 00:
As Dr. Slack and Dr. Campbell explained in their testimony and in their written report, the Mexican police is plagued with corruption.

[00:02:33] Speaker 00:
They would work for certain cartels, and they get paid for doing so.

[00:02:37] Speaker 00:
One thing they would do is that they would identify suspicious people, including people with gang-related tattoos,

[00:02:45] Speaker 00:
and hand them over to the cartels that the police work for.

[00:02:50] Speaker 00:
And those cartels would then brutalize or even kill those people.

[00:02:54] Speaker 00:
And this can be found in the records on pages 879 and 893.

[00:03:01] Speaker 04:
But Council, why isn't that not just the generalized country conditions that we've said is not enough to grant a petition?

[00:03:10] Speaker 00:
No, that is not generalized evidence.

[00:03:12] Speaker 00:
I can give you an example of what generalized evidence looks like.

[00:03:17] Speaker 00:
And that is the Vackeray case, which is cited in the government's brief.

[00:03:23] Speaker 00:
And the citation for that is 558 F3, 1049.

[00:03:30] Speaker 00:
In that case, there were evidence that

[00:03:34] Speaker 00:
Torture happens in Indonesia, I believe, including against detainees in military or police custody.

[00:03:46] Speaker 00:
But the petitioner did not present evidence that shows why he will likely end up in military or police custody.

[00:03:55] Speaker 00:
So there is a disconnect between the likelihood of torture showed by the generalized evidence

[00:04:01] Speaker 00:
as the petitioner's condition.

[00:04:03] Speaker 00:
But here, we have evidence that shows on the one hand, the police facilitate torture of people with gang-related tattoos, and then on the other hand, it is undisputed that our client is covered with tattoos that is perceived to be related to the Sereno's gang in Mexico.

[00:04:22] Speaker 02:
Council, I have a different question, if I may.

[00:04:24] Speaker 02:
I'm puzzled, I think, by your reference to INS versus Ventura, because in this case, the BIA specifically held, and I'm quoting, the applicant has not established, independent of his own non-credible testimony, that it is more likely than not that he will be tortured by, or at the instigation of, or with the consent or acquiescence of a public official upon removal to Mexico.

[00:04:51] Speaker 02:
even considering the country conditions.

[00:04:54] Speaker 02:
That's a quotation from page four of the decision of the BIA.

[00:05:00] Speaker 02:
So the BIA looked at this issue on the merits.

[00:05:04] Speaker 02:
So why would we be precluded from looking at the issue on the merits?

[00:05:10] Speaker 00:
Well, that is because we not only need to look at the BIA's conclusion, we also need to look at whether the BIA gave reasoned consideration to the country conditions evidence.

[00:05:23] Speaker 02:
But that's somewhat of a lesser issue.

[00:05:27] Speaker 02:
They made a decision about the ultimate question.

[00:05:31] Speaker 02:
It's not like they said we need not decide X because we've decided Y, which is dispositive, and so we don't reach X. That's the sort of situation I think that Ventura was talking about.

[00:05:44] Speaker 02:
I don't understand how it applies here.

[00:05:47] Speaker 00:
Your Honor, I'd like to appoint the court's attention to the COVID Holder case, which is published at 659 F.

[00:05:57] Speaker 00:
3rd, 762.

[00:05:59] Speaker 00:
In that case, the BIA similarly considered the country conditions evidence.

[00:06:05] Speaker 00:
But this court held that because there are indications

[00:06:09] Speaker 00:
that the BIA did not properly consider all of the evidence before it.

[00:06:15] Speaker 00:
This court ended up remand this case for the BIA to reconsider the evidence in the first instance.

[00:06:22] Speaker 02:
Right, I understand it's permissible, but I don't understand why it's required.

[00:06:28] Speaker 00:
It is required because the BIA has the legally mandated role as the fact finder, and when it has not properly done so, this court should not step in and weigh the evidence for the BIA.

[00:06:43] Speaker 00:
Instead, this court should serve as service role for judicial review, and review this case only after the BIA has properly considered the evidence.

[00:06:56] Speaker 04:
Council, the BIA, as I understand it, made an alternate finding that even if there's a likelihood of torture, that he could relocate within Mexico to avoid future torture.

[00:07:07] Speaker 04:
As I see it, nothing that Mr. Slack or Dr. Slack or Dr. Campbell contradict that.

[00:07:14] Speaker 04:
Don't you agree?

[00:07:16] Speaker 00:
No, I don't agree with that.

[00:07:18] Speaker 00:
And first of all, I want to emphasize that the government has waived any argument on internal relocation in the CAT context, because the government did not discuss this issue at all in its answering brief.

[00:07:31] Speaker 00:
But to answer your honor's question, there is evidence that shows why he could not safely relocate, and that is in Dr. Slack's testimony.

[00:07:41] Speaker 02:
Actually, at AR 396 and 97, he's asked specifically if there was anywhere in Mexico that your client could go to avoid the problem, and he said no.

[00:07:52] Speaker 02:
So there is evidence on that.

[00:07:54] Speaker 02:
Is there contrary evidence that shows that he could safely relocate if it's not waived?

[00:08:03] Speaker 00:
So Your Honor is asking if there is evidence showing that he could safely relocate.

[00:08:09] Speaker 02:
Yeah, because there's evidence that he could not.

[00:08:11] Speaker 02:
So I'm asking if there's contrary evidence also.

[00:08:15] Speaker 00:
The contrary evidence would be the petitioners that spent a few years in Quintana Roo in Mexico.

[00:08:22] Speaker 00:
And during the few years, the only incident that happened to him was that he was shot by cartel members because that's pretty good.

[00:08:30] Speaker 04:
Contrary evidence also didn't, um, on eight 70 of the record, Dr. Slack said that Quinta Quintana Rue has largely avoided much of the major conflicts.

[00:08:41] Speaker 04:
Referring to the cartel conflicts.

[00:08:44] Speaker 00:
Well, but the expert also testified that Quintana Roo is actually a key transition point for the transportation of cocaine that came from South Africa.

[00:08:56] Speaker 04:
So, but there's a conflict even within his own testimony, right?

[00:09:01] Speaker 00:
Yes, but I'd like to point this court to another piece of very important evidence in Dr. Slack's testimony.

[00:09:11] Speaker 00:
He testified that the Sereno scan to which the petitioner is a suspected member has a close affiliation with a broader cartel called the Gulf Cartel.

[00:09:23] Speaker 00:
And the Gulf Cartel has been at war with other major cartels in Mexico

[00:09:28] Speaker 00:
And that has cost hundreds of thousands of lives in the past decades.

[00:09:33] Speaker 00:
So everywhere the petitioner goes in Mexico, he will very likely run into enemies of the Serenius or the Gulf cartels or the police who work for them.

[00:09:44] Speaker 04:
But isn't the fact that he lived in Quintana Roo for how many years?

[00:09:48] Speaker 04:
Do you know how many years he was there?

[00:09:50] Speaker 00:
I think it's about five or six years.

[00:09:52] Speaker 04:
And according to his own testimony, there was no targeted violence.

[00:09:56] Speaker 04:
The only violence was accidental, right?

[00:09:59] Speaker 00:
It was accidental, but the chance of this accident be reoccurring is pretty high because that's just speculative.

[00:10:07] Speaker 04:
And if he lived there for five years and nothing happened to him, why isn't that enough to support the BIA's relocation decision?

[00:10:15] Speaker 00:
Because the circumstances have changed, at the time he stayed at Quinta Naju, he was under the wing of his uncle.

[00:10:23] Speaker 00:
He was living with his uncle, and he was working at the ranch of his uncle.

[00:10:27] Speaker 00:
And that afforded him protection.

[00:10:30] Speaker 00:
But now his uncle has cut ties with him.

[00:10:32] Speaker 00:
So if he returns to Quinta Naju, he would no longer have any family supporting him.

[00:10:36] Speaker 04:
We would have to accept the credibility.

[00:10:38] Speaker 04:
We would have to overturn the credibility findings to find that, though, right?

[00:10:42] Speaker 00:
Well, if we were talking about what happened to the petitioner or what didn't happen to the petitioner in Quintana Roo, we would have to look at the adverse credibility determination.

[00:10:57] Speaker 00:
But if even we put that aside, the expert testified that because of his visible tattoos, everywhere he goes in Mexico, that would attract violence to him.

[00:11:09] Speaker 04:
I'm sure you saw the motion to dismiss filed on Friday.

[00:11:12] Speaker 04:
Do you have any additional thoughts on that?

[00:11:14] Speaker 04:
Are you in contact with the petitioner?

[00:11:18] Speaker 00:
Yes, we were in contact with the petitioner and we have filed a response to that motion yesterday.

[00:11:23] Speaker 04:
I saw that, but I guess it didn't say whether or not you were in contact with the petitioner and why did he not respond to the order to surrender?

[00:11:37] Speaker 00:
Your Honor, I'd like to explain.

[00:11:38] Speaker 00:
So we recently learned of the fact that our client is in custody, and we managed to contact the public defender who is representing him in that criminal case.

[00:11:50] Speaker 00:
And we learned that we confirmed that he is in custody in San Francisco.

[00:11:55] Speaker 00:
And because the motion was just filed two court days before this hearing, we have not had a chance to speak with our client to learn the facts that happened over two years ago.

[00:12:06] Speaker 04:
That's reasonable, okay.

[00:12:08] Speaker 04:
Do you have any other questions?

[00:12:08] Speaker 04:
Do you want to reserve some time for rebuttal?

[00:12:11] Speaker 00:
Yes, I'd like to reserve two minutes for the rest of my time for rebuttal.

[00:12:16] Speaker 00:
Thank you.

[00:12:33] Speaker 03:
Good morning your honors may please court Andrew and singha on behalf the attorney general To begin briefly on the fugitive dis entitlement act petitioner does not counsel before you get to that Why didn't the government waive that argument by?

[00:12:49] Speaker 02:
exceeding to the Motion for a stay of removal and by briefing this case and

[00:12:59] Speaker 02:
This is an event that happened two and a half years ago before the government agreed that he could stay in the United States up until the mandate issues and briefing on the merits.

[00:13:14] Speaker 02:
Was respect your honor the government never puts fugitive Disentitlement as far as I know in breeze because it almost always occurs outside of the mayor That's not that's not the point of my question and perhaps my question wasn't clear you had all the information Necessary to make this motion more than two years ago when this individual did not show up for the appointment that he was supposed to show up for and

[00:13:41] Speaker 02:
And after that occurred, you didn't make the motion.

[00:13:46] Speaker 02:
Instead, you didn't oppose a stay of removal.

[00:13:52] Speaker 02:
And more years passed, and you briefed it on the merits.

[00:13:57] Speaker 02:
Why isn't that a waiver of this argument?

[00:14:00] Speaker 02:
And if it isn't a waiver, why isn't it at least something we should take into account when exercising our discretion under this doctrine?

[00:14:09] Speaker 03:
Well, to first of all, your honor, Department of Homeland Security certainly was aware that he failed to show up.

[00:14:15] Speaker 03:
Of course, there is always difficulty as petitioners opposition points out that difficulty of liaising liaison easing with your client.

[00:14:24] Speaker 02:
And that, of course, applies just as equally to Petitioner, who did not... I don't understand how this is responsive to my question about why this isn't a waiver when the government knew that he didn't show up and then did all these affirmative things to bring this case to this panel on the merits.

[00:14:42] Speaker 03:
Well, again, waivers are only an argument about a discussion about being in a brief, that something has to be raised in a brief.

[00:14:50] Speaker 02:
So you think we couldn't hold that the government has waived this because

[00:14:55] Speaker 02:
that it wasn't briefed.

[00:14:57] Speaker 02:
I don't even understand that.

[00:14:59] Speaker 03:
The Fugitive Disentitlement Act is an equitable consideration, Your Honor.

[00:15:03] Speaker 03:
Your Honor can, of course, consider that as a factor.

[00:15:06] Speaker 03:
But I'm unaware and petition has pointed to no rules suggesting a mandatory waiver or abandonment of an equitable concept.

[00:15:15] Speaker 01:
Ordinarily, though, a party that is invoking the Court's equitable discretion

[00:15:21] Speaker 01:
is expected to act with due diligence, acting equitably themselves.

[00:15:27] Speaker 03:
I understand that the difficulty of filing such a motion late in the process, but the difficulty here is, yes, there are concepts of equity, but Petitioner himself has not been harmed in any way by the late filing of this motion.

[00:15:41] Speaker 01:
This is a discretionary doctrine, right?

[00:15:43] Speaker 01:
Yes, Your Honor.

[00:15:45] Speaker 01:
Suppose we were convinced that

[00:15:51] Speaker 01:
90% likelihood that Mr. Bucancarnacion would, in fact, be tortured and probably killed upon return to Mexico.

[00:16:04] Speaker 01:
Could we take that into consideration in deciding how to exercise our discretion?

[00:16:10] Speaker 03:
I'm not aware of any case which suggests the court can't consider various things.

[00:16:15] Speaker 01:
Or cannot.

[00:16:16] Speaker 03:
Sorry?

[00:16:17] Speaker 01:
Can or cannot.

[00:16:18] Speaker 03:
I'm not aware of any decision that would suggest the court can't consider anything it wants.

[00:16:25] Speaker 01:
Cannot.

[00:16:25] Speaker 03:
Cannot, correct, Your Honor.

[00:16:27] Speaker 03:
That it may consider various concerns in making this determination.

[00:16:31] Speaker 03:
But what Petitioner Eds does not meaningfully dispute is that Petitioner filed a habeas petition to avoid re-detention by Department of Homeland Security.

[00:16:40] Speaker 03:
The TRO granted by the District Court prevented Department of Homeland Security from detaining him.

[00:16:46] Speaker 03:
Then, when the District Court denied the motion preliminary injunction, that allowed DHS to issue the notice to appear for custody determination.

[00:16:56] Speaker 03:
He did not show up.

[00:16:57] Speaker 02:
Well, there's no dispute about that.

[00:16:59] Speaker 02:
I don't think.

[00:17:01] Speaker 02:
The question is, what, if anything, can we do about it or should we do about it if we even can?

[00:17:08] Speaker 02:
I mean, if the petitioner's lawyer had come up with some new theory last Friday, I'm pretty sure you'd be arguing that we couldn't consider it legitimately.

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

[00:17:18] Speaker 03:
It depends on what it would have been.

[00:17:20] Speaker 02:
So you would have been fine with them bringing up a whole new theory for their claim Last week with respect your honor.

[00:17:28] Speaker 02:
They have brought up a new theory, which is a wholly independent argument that they've now presented the first well That is not not correct as I read the briefs There's a whole section on looking at the evidence apart from his testimony

[00:17:45] Speaker 02:
in the opening brief.

[00:17:46] Speaker 03:
With respect, Your Honor, the government disagrees with that suggestion, but at the end of the day... Well, it's more than a suggestion, Counsel.

[00:17:54] Speaker 02:
There's a whole section of the brief that has the title, country conditions evidence demonstrated that Mr. Uck will likely be tortured if returned to Mexico.

[00:18:04] Speaker 02:
Independently, country conditions can play a decisive role, etc.

[00:18:08] Speaker 02:
So they've made that argument in their opening brief.

[00:18:11] Speaker 02:
So

[00:18:12] Speaker 02:
Would you have, if they hadn't, you would be arguing as you are here that they couldn't bring it up last week, and I'm asking why it isn't good for the goose as well as the gander.

[00:18:24] Speaker 03:
On a merits issue, yes, Your Honor, that would be correct, that those would need to be raised in a brief.

[00:18:28] Speaker 03:
But while this, take for example, a jurisdictional matter, a purely jurisdictional.

[00:18:32] Speaker 02:
Not jurisdictional.

[00:18:33] Speaker 03:
Undeniably, Your Honor.

[00:18:34] Speaker 02:
That is a whole separate ballgame.

[00:18:36] Speaker 03:
It is a separate ballgame.

[00:18:37] Speaker 03:
But so is equitable considerations about whether this court's order would have any meaning at this point, frankly, for either side.

[00:18:44] Speaker 03:
Because if this court sends this case back,

[00:18:47] Speaker 03:
Now, petitioners suggest maybe they found their client.

[00:18:51] Speaker 03:
Maybe.

[00:18:52] Speaker 03:
But how are we supposed to have a removal proceeding when petitioner does not want to show up to legal proceedings?

[00:18:58] Speaker 04:
And what's certain- Can you address that?

[00:18:59] Speaker 04:
If it is true that he's in custody this whole time and so therefore couldn't respond, does that alleviate your concerns?

[00:19:07] Speaker 04:
Would that negate the motion to dismiss?

[00:19:11] Speaker 04:
No, Your Honor, because- Go ahead, why not?

[00:19:14] Speaker 03:
Well, as this court explained terribly in, which is a somewhat different case, but there, the petitioner actually, excuse me, the criminal defendant had actually been caught.

[00:19:22] Speaker 03:
They were in FBI custody.

[00:19:24] Speaker 03:
There was no doubt that if this court granted or denied the criminal appeal, that the government could bring that criminal defendant to court.

[00:19:33] Speaker 03:
But here we know that, well, we don't know what can possibly happen.

[00:19:39] Speaker 03:
And that's fundamentally a problem.

[00:19:40] Speaker 03:
What Petitioner has explicitly demonstrated is he will use the judicial processes, as he did in the habeas, to prevent his detention.

[00:19:48] Speaker 03:
And then when he loses, he will not show up.

[00:19:52] Speaker 04:
Well, that's what I'd understand.

[00:19:53] Speaker 04:
If he's in custody, he can't show up.

[00:19:55] Speaker 04:
Assuming that's all true.

[00:19:57] Speaker 03:
The difficulty is, Your Honor, again, that while I agree the government should have better systems in place to liaison with the Department of Homeland Security to find the millions of people we must manage, petitioners, councils have one client here.

[00:20:14] Speaker 04:
And what we know is... I mean, the DHS is not considered part of the, the whole of DHS is not considered part of the U.S.A.

[00:20:23] Speaker 04:
litigating party, team, right?

[00:20:26] Speaker 04:
No, Your Honor.

[00:20:27] Speaker 04:
So we can't charge their knowledge to you?

[00:20:30] Speaker 04:
No.

[00:20:33] Speaker 03:
I think, again, this was an equitable concept to suggest that when Judge Graber is concerned about you, that my office was unaware, I personally was unaware.

[00:20:44] Speaker 03:
The government can litigate with the information in front of it.

[00:20:48] Speaker 03:
To the best of my knowledge, and Petitioner does not dispute this, that Petitioner was arrested in San Francisco in September of 2024.

[00:20:55] Speaker 04:
Oh, that's recent.

[00:20:57] Speaker 04:
So nothing explains the lack of showing up from the past.

[00:21:01] Speaker 02:
Exactly.

[00:21:01] Speaker 02:
What is your response to the argument in the written response, that there's been no demonstration that he received the notice that required him to appear, because there is no return receipt

[00:21:15] Speaker 02:
or other evidence proving that the notice was effective.

[00:21:22] Speaker 03:
I think that argument only underscores the problem of what's going on in this proceeding, Your Honor.

[00:21:27] Speaker 03:
Petitioner had a lawyer in the habeas proceeding.

[00:21:31] Speaker 03:
Undeniably, that lawyer was aware and she was litigating on behalf of petitioner in a district court on habeas to prevent detention.

[00:21:39] Speaker 03:
But what petitioners are suggesting is why would we possibly suggest that petitioners' lawyers have to maintain contact with their clients?

[00:21:48] Speaker 03:
Well, because that's really a crux of how legal proceedings work.

[00:21:53] Speaker 03:
If this court sends a criminal defendant's cases out on bond back to, say, another trial, and no one knows where they are, how are we supposed to have a criminal hearing, Your Honor?

[00:22:02] Speaker 03:
We can't.

[00:22:04] Speaker 03:
How are we supposed to have a remote hearing?

[00:22:05] Speaker 02:
That's a long answer, but it actually, you don't dispute, as I understand it, that there is no direct proof that the petitioner received actual notice that he was supposed to show up.

[00:22:17] Speaker 02:
I mean, lawyers mess up sometimes.

[00:22:20] Speaker 02:
Maybe the lawyer didn't tell him.

[00:22:23] Speaker 03:
Well, Your Honor, at this point, if all we're doing is speculating on behalf of Petitioner, then you're right.

[00:22:28] Speaker 03:
I don't have an answer to such speculation.

[00:22:31] Speaker 04:
But Petitioner has used the... Is actual notice even the standard that we apply to notice provided to aliens?

[00:22:39] Speaker 03:
No, Your Honor.

[00:22:39] Speaker 03:
The difficulty, again, is this is not a legal concept.

[00:22:43] Speaker 03:
This is an equitable concept.

[00:22:44] Speaker 03:
And the court, of course, can consider that concern.

[00:22:47] Speaker 03:
But again, it only underscores that Petitioner, then, doesn't maintain contact with his lawyers, period.

[00:22:54] Speaker 03:
That's what we know.

[00:22:55] Speaker 04:
And just to clear it up, when did you learn that he didn't respond to that order?

[00:23:00] Speaker 04:
Thursday morning.

[00:23:02] Speaker 02:
That's you.

[00:23:03] Speaker 02:
But when did the government learn, two and a half years ago, when he didn't show up?

[00:23:09] Speaker 04:
But isn't waiver only by the lawyers, not by... I've just never seen the whole of government being charged with waiver.

[00:23:20] Speaker 03:
I agree, Your Honor.

[00:23:20] Speaker 03:
I think the difficulty is this is, again, an equitable concept.

[00:23:24] Speaker 03:
It suggests the government was somehow inequitable when it can't detain one out of millions of people.

[00:23:31] Speaker 03:
And there are legitimate difficulties in tracking people, and particularly when Petitioners' Council apparently lost track.

[00:23:39] Speaker 03:
I mean, we can listen to the verbs used.

[00:23:41] Speaker 03:
We were in contact with our client.

[00:23:44] Speaker 03:
Well, when did you cease to be in contact with your client?

[00:23:48] Speaker 03:
Petitioners come to this court with four lawyers who can't identify clearly to this court when any of this occurred.

[00:23:56] Speaker 03:
I agree, Your Honor, that it would always be better if the Department of Homeland Security and DOJ had better systems to track the millions of people we must track.

[00:24:05] Speaker 03:
But particularly where criminals tend to abscond, and in this case have reflected that they will not be bound by the judgments of the judiciary, this is where the federal, this is where the fugitive dis- entitlement doctrine comes into play.

[00:24:19] Speaker 02:
When is the last time this court applied that doctrine in an immigration case?

[00:24:24] Speaker 02:
I could not find anything more recent than maybe 12 or 15 years ago.

[00:24:31] Speaker 02:
Are you aware of any more recent application in this context?

[00:24:36] Speaker 03:
I'm unaware.

[00:24:37] Speaker 03:
That does not mean that it does not exist.

[00:24:40] Speaker 03:
The government fairly regularly does rely on these motions.

[00:24:44] Speaker 03:
In fact, I personally have filed one more recently in this court, but I don't remember when it was, to be honest with you, Your Honor.

[00:24:53] Speaker 03:
It's hard to keep track of hundreds of cases.

[00:24:58] Speaker 03:
But if petitioner wants to complain, well, it hasn't done recently, well,

[00:25:03] Speaker 03:
commonality.

[00:25:04] Speaker 02:
Complaint.

[00:25:04] Speaker 02:
I'm asking a question about the exercise of our court's discretion over time.

[00:25:12] Speaker 03:
Well, obviously from the court's decision in Tereblian, it just did this last year in a criminal case.

[00:25:19] Speaker 03:
And again, that case, yeah, is it?

[00:25:22] Speaker 02:
That's a criminal.

[00:25:22] Speaker 02:
That's where the doctrine originated, correct?

[00:25:24] Speaker 02:
That's where it originated?

[00:25:26] Speaker 03:
Yeah.

[00:25:26] Speaker 03:
But it continues to be.

[00:25:27] Speaker 02:
And that's where it's often applied.

[00:25:29] Speaker 03:
It's where it's often applied.

[00:25:30] Speaker 02:
That's why I was asking about immigration cases specifically.

[00:25:34] Speaker 03:
I understand, Your Honor.

[00:25:35] Speaker 03:
It certainly is applied—it stems, obviously, from, if I remember correctly, a nineteenth-century Supreme Court decision, but courts have routinely applied this in the immigration context.

[00:25:48] Speaker 03:
And the rationale applies pretty straightforward for the exact same reasons, that

[00:25:53] Speaker 03:
If a litigants not going to be bound by the consequences of decisions that they make and the lawsuits of the decisions of this court Then it really unders undermines this court's authority to issue meaningful orders But there is again a flip side of that which is it's this court were to send this case back as petitioners asking How is the government supposed to do a removal proceeding when petitioner doesn't show up and

[00:26:21] Speaker 03:
These are really pride basis this would this be the first time there's been a removal proceeding where someone is in custody under another sovereign No, your honor, but I we don't know a way to do that right there is now a way to do it if he is detained and I need and that's the difficulty is when petitioners come to court saying we finally found our client and

[00:26:45] Speaker 02:
I also don't understand why there would be another hearing.

[00:26:49] Speaker 02:
I think what counsel has argued is that this has to go back to the BIA for a re-analysis of the existing record.

[00:26:59] Speaker 02:
So I'm not really sure why it matters whether this person is in custody in a California jail or not.

[00:27:11] Speaker 03:
Well, Your Honor, because sometimes that would require remand to the immigration judge, depending on what petitioner is actually arguing.

[00:27:17] Speaker 01:
Could I ask you to comment on, apropos of this question, about the extraordinary level of heat and friction in the hearing here?

[00:27:30] Speaker 01:
I think the immigration judge said it was the worst that judge, the most extreme example that judge had ever encountered.

[00:27:40] Speaker 03:
Yes, Your Honor, undeniably, there was tension between the petitioner's prior counsel and the immigration judge.

[00:27:46] Speaker 03:
As illustrated in the brief, petitioner's counsel tended to would get objections overruled, raise the objection again, the immigration judge would overrule her.

[00:27:58] Speaker 03:
And I think at least what we can understand as litigators, for example, in AR 488, when the IG repeatedly overrules this attorney, and then she says, well, I don't care.

[00:28:08] Speaker 03:
I'm going to argue anyways.

[00:28:10] Speaker 01:
there at some point does becomes very difficult for any judge whether an article three judge or And one of the things frankly that concerns me is that that tension and the confusion Generated for the petitioner in this case as somebody who was not he's not even comfortable in Spanish, right?

[00:28:32] Speaker 01:
That's not his native language.

[00:28:34] Speaker 01:
He made the decision to testify in Spanish sure Do you have Mayan translators?

[00:28:40] Speaker 03:
Yes.

[00:28:41] Speaker 03:
Yeah, we have, Your Honor, the immigration judge has access to a translation system that can do languages with auditors I've never heard of.

[00:28:50] Speaker 03:
So yes, they could have done it in any language he wanted.

[00:28:52] Speaker 03:
So this post hoc assertion that I don't speak Spanish, that's not on the government, Your Honor.

[00:28:56] Speaker 01:
He's not saying he doesn't speak Spanish, but I'm trying to picture the experience of somebody in his role in this proceeding as his lawyer and the judge

[00:29:10] Speaker 01:
or arguing in English and he probably has no clue what's going on.

[00:29:14] Speaker 01:
You're extremely disconcerting.

[00:29:16] Speaker 03:
Well, if he has no clue what's going on, Your Honor, then how can this argument about bullying in any be relevant?

[00:29:23] Speaker 03:
He doesn't understand what's going on at all.

[00:29:27] Speaker 03:
Well, that's the initial answer, but yes, the reality is this is just POCOS post hoc assertions of appellate counsel that simply don't appreciate the complexity of the factual record.

[00:29:37] Speaker 04:
You're two minutes over if you want to wrap up.

[00:29:39] Speaker 04:
Yes, your honor.

[00:29:40] Speaker 03:
Although we've focused largely on a fugitive Disentitlement Act, the reality is that petitioners... Act?

[00:29:48] Speaker 01:
Excuse me.

[00:29:48] Speaker 01:
I don't find that one.

[00:29:49] Speaker 03:
No, I agree, your honor.

[00:29:51] Speaker 03:
The government wouldn't mind an act based on it, but it is simply a doctrine at this point.

[00:29:56] Speaker 03:
Even disregarding the fugitive dis-entitlement doctrine, Your Honors, the record doesn't compel reversal of the adverse credibility determination.

[00:30:02] Speaker 03:
And what petitioner argument to this Court today, and there really is no need to go into it, is no matter how a petitioner argues it, they run into the adverse credibility determination.

[00:30:12] Speaker 03:
The experts relied on his testimony and evidence.

[00:30:15] Speaker 03:
He's relied on it.

[00:30:16] Speaker 03:
Everywhere a petitioner turns to try to swerve and change the argument, they run into the adverse credibility determination.

[00:30:21] Speaker 04:
That raises an interesting question that the experts did rely on his testimony to give their testimony.

[00:30:28] Speaker 04:
If the BIA found him or the IJ found his testimony unreliable, what do we do with experts' testimony?

[00:30:36] Speaker 03:
Because there's nothing independent of his testimony and statement.

[00:30:40] Speaker 04:
Is there a case that says that we would strike those parts?

[00:30:44] Speaker 03:
well and i've i'm not aware of a specific case on that but i mean they would seemingly be baked into the concept of the fruit of a poisonous tree essentially well not even relate some sort of like again equitable concept but just simply the concept how can their testimony on say gang involvement well to some extent their testimony was not based on his testimony for example they relied on his visual appearance which was was what it was and his mind

[00:31:13] Speaker 03:
ancestry and his name and things not related to his testimony relied on everything see the petitioners I think the interesting phrase petitioner wants to say is bucket

[00:31:26] Speaker 03:
But the problem is this is not about buckets of identities.

[00:31:29] Speaker 03:
This is the experts used a bucket of identity issues and to talk about gang issues, tattoos.

[00:31:37] Speaker 02:
But that's why I'm saying the identity is apart from his testimony.

[00:31:41] Speaker 02:
I don't think that there was any quarrel on the part of the government that he's of Mayan ancestry and his name demonstrates it and that he has facial tattoos and these other

[00:31:53] Speaker 02:
Facts that are unrelated to what he said.

[00:31:56] Speaker 03:
Well, first of all, I mean, I apologize.

[00:31:58] Speaker 03:
We are far over First of all, the facial tattoos is part of the average credibility determination In fact petitioner doesn't seem to have a consistent explanation to this court

[00:32:09] Speaker 02:
He has the tattoos, though, and what the experts said is a person with those tattoos will be killed if people notice those tattoos.

[00:32:17] Speaker 02:
It doesn't matter why he has them, does it?

[00:32:20] Speaker 03:
Your Honor, I'm not aware of it.

[00:32:21] Speaker 03:
Someone suggesting that someone with a gang tattoo is automatically killed, it reflects the difficulty when someone comes to court.

[00:32:26] Speaker 02:
It's shorthand, but what I'm saying is the fact of his visual appearance is a fact apart from his testimony.

[00:32:33] Speaker 02:
Is it not?

[00:32:34] Speaker 03:
It is, but the meaning of it, because Petitioner, in fact, in the reply brief suggests, well, these aren't gang tattoos because they weren't put on me by my uncles.

[00:32:45] Speaker 03:
That's noticeably wrong because on AR 823, paragraph 49, he specifically said the gang did put these tattoos on me.

[00:32:52] Speaker 04:
Well, did the expert independently look at the facial tattoos and opine that they're gang tattoos?

[00:32:59] Speaker 03:
he said they were likely gang tattooed.

[00:33:01] Speaker 03:
I believe it was Professor Slack said they were gang tattoos.

[00:33:05] Speaker 04:
The difficulty is... We would take that.

[00:33:07] Speaker 04:
Yes.

[00:33:08] Speaker 03:
The difficulty though is there's no what will happen, torture must happen on account of, or not on account of, based on all of them.

[00:33:17] Speaker 04:
You're well over time.

[00:33:18] Speaker 03:
Thank you very much, counsel.

[00:33:18] Speaker 03:
Thank you.

[00:33:28] Speaker 00:
Your Honors, I'd like to make three points.

[00:33:31] Speaker 00:
The first point is that the government argued there is no country conditions evidence independent of the petitioner's testimony.

[00:33:39] Speaker 00:
We disagree with that.

[00:33:41] Speaker 00:
The expert gave their testimony on the gun violence and the police corruption in Mexico based on their years of academic studies, and that is independent of the petitioner's testimony.

[00:33:53] Speaker 00:
And also the petitioner's viral appearance, his gang-related tattoos, are also independent of his testimony.

[00:34:03] Speaker 00:
And his Mayan identity and his Mayan accent, which will make him stand out in Mexico, is also independent of his testimony.

[00:34:11] Speaker 00:
And those evidence should be given in recent consideration, regardless of whether he is found to be credible.

[00:34:19] Speaker 04:
Council, if we were to agree with that, wouldn't that mean that anytime any petitioner has a gang tattoo on their face that they'd be entitled to relief against removal?

[00:34:32] Speaker 00:
No, that is not the case.

[00:34:35] Speaker 00:
This should still be analyzed on case-by-case basis.

[00:34:38] Speaker 00:
For example, if a petitioner with gang-related tattoos has a powerful family in Mexico who could afford them protection, then that would make it less likely that this person will be tortured in Mexico.

[00:34:52] Speaker 00:
But here, our client has no family support in Mexico.

[00:34:56] Speaker 04:
And according... Again, that's dealing with the credibility determination, right?

[00:35:00] Speaker 04:
We're not looking at that.

[00:35:01] Speaker 00:
as we're not looking at that.

[00:35:03] Speaker 00:
And also, it also depends on whether the tattoos could be easily removed so that they could safely go back to Mexico.

[00:35:11] Speaker 00:
But here, the petitioner testified that he could not afford the expensive procedure of removing the tattoos.

[00:35:19] Speaker 00:
And also, there are country conditions evidence independent of his credibility that shows tattoo removal

[00:35:26] Speaker 00:
Requires repeated sessions and can be extremely painful and they may not be completely Removed depending on the size and the shape of the tattoos and here it is Undisputed that the petitioner is covered all over his body with those tattoos and that would make removal extremely that someone with a different ethnic background might be treated differently and

[00:35:53] Speaker 02:
Someone who is not Mayan by origin, is there evidence in the country conditions report that's specific to Mayan ancestry?

[00:36:06] Speaker 02:
I believe the- All from Dr. Slack and Dr. Campbell.

[00:36:10] Speaker 00:
Those are from Dr. Slack and Dr. Campbell.

[00:36:14] Speaker 00:
I believe the evidence speaks to the difficult situations for indigenous people in general, but I don't think the evidence is specific to Mayan ethnics.

[00:36:26] Speaker 02:
And if I could just, I'd like to hear your other two points if I could.

[00:36:30] Speaker 00:
Thank you, Your Honor.

[00:36:32] Speaker 00:
My second point is that the government argues that our client didn't show up and would not show up in the future, but the government has not met its burden to prove that our client

[00:36:43] Speaker 00:
received the extra notice.

[00:36:46] Speaker 00:
The government pointed to the fact that our client was represented by counsel in his detention case.

[00:36:53] Speaker 00:
But in the joint status report, which was co-signed by the petitioner's counsel, that report only says, counsel received notice.

[00:37:03] Speaker 00:
It didn't say the petitioner actually received notice.

[00:37:07] Speaker 00:
And it is onerous on the government to prove that our client received the actual notice.

[00:37:13] Speaker 00:
And I'd like to move to my third point, which is to Your Honor's point that this fugitive dis-entitlement doctrine is rarely applied in the immigration context.

[00:37:27] Speaker 00:
And the only case the government cited in their brief

[00:37:31] Speaker 00:
applied this doctrine under the extreme circumstances where the petitioner had simply disappeared and no one including their counsel was in contact with the petitioner.

[00:37:43] Speaker 00:
But here that's not the case.

[00:37:45] Speaker 00:
We have been in contact with our client periodically throughout this case and admittedly it takes- Why didn't he show up to that hearing?

[00:37:54] Speaker 04:
I still haven't heard a reason for that.

[00:37:56] Speaker 00:
Your Honor, as we explained, we have not had a chance to discuss this with our client, and it is the government's burden to show that our client was actively evading justice.

[00:38:10] Speaker 04:
Well, why can't you do a presumption that if his lawyer got the notice, presumably he was in contact with his lawyer then?

[00:38:20] Speaker 00:
Your Honor, this is pure speculation whether he was or was not in contact with his lawyer, as the government cannot meet their burden based on pure speculation.

[00:38:30] Speaker 01:
Would this be an appropriate topic for a fresh hearing?

[00:38:35] Speaker 00:
the fugitive dis-entitlement issue.

[00:38:41] Speaker 00:
It could be depending on whether this courts would love it.

[00:38:45] Speaker 00:
And our position is that equitable considerations here weigh against having an independent hearing on this issue.

[00:38:53] Speaker ?:
Why?

[00:38:54] Speaker 00:
Because to invoke this equitable doctrine, the government has to exercise its own due diligence.

[00:39:01] Speaker 00:
And the government has not done so.

[00:39:03] Speaker 00:
And it only brought up this old incident just a few days before this hearing.

[00:39:09] Speaker 04:
So what do we the council represented that he just found out about this on Thursday.

[00:39:13] Speaker 04:
He filed it on Friday.

[00:39:14] Speaker 04:
Why is that not diligent enough?

[00:39:17] Speaker 00:
What kind of could have found out about it much earlier and the status report is publicly available and the government could have found out about that public filing to eat two years ago.

[00:39:33] Speaker 04:
Do you think we should charge the party here with all of the government's knowledge?

[00:39:40] Speaker 00:
Sorry, Your Honor, I didn't get this question.

[00:39:42] Speaker 00:
Could you?

[00:39:43] Speaker 04:
The litigating attorneys here should be charged with the knowledge of the whole government.

[00:39:52] Speaker 00:
Well, admittedly, that would be too burdensome to our colleague on the other side.

[00:39:57] Speaker 00:
There should be some reasonableness, right?

[00:40:01] Speaker 00:
Yes, there should be some reasonableness.

[00:40:03] Speaker 00:
And the simple phone call two years ago when the case started would be reasonable.

[00:40:10] Speaker 00:
For those reasons, we ask that this case be remanded, at least for the reconsideration of the country conditions evidence for the CATS relief.

[00:40:19] Speaker 00:
Thank you.

[00:40:20] Speaker 04:
Thank you, counsel, and thank you very much for handling this case pro bono, well argued on both sides.

[00:40:25] Speaker 04:
Thank you.