[00:00:00] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:00:02] Speaker 01: My name is Luca Kola Majek, and I, along with Madison Hill and Professor Evangeline Abrill, represent the petitioner, Jordan. [00:00:08] Speaker 01: Today, I will argue that the board erred when it determined that there was no nexus for asylum and withholding of removal. [00:00:14] Speaker 01: My partner, Madison Hill, will be arguing that the board erred in applying the animus. [00:00:18] Speaker 01: Sorry, that animus was incorrectly applied, and that Jordan's raised claim was exhausted. [00:00:23] Speaker 01: I would like to reserve three minutes for rebuttal. [00:00:26] Speaker 01: In this case, the board's sole reason for denying asylum and withholding of removal [00:00:30] Speaker 01: was that there was no nexus to any protected ground. [00:00:33] Speaker 01: In making this determination, the board made three errors. [00:00:36] Speaker 01: First, the board misstated the holding in Rodriguez-Zuniga, which led to them applying the wrong rule in this case. [00:00:42] Speaker 01: Second, the board erred by not conducting a mixed mode of analysis. [00:00:45] Speaker 01: And third, the board erred by not meaningfully considering the difference between the one central reason standard for asylum and the A reason standard for withholding of removal. [00:00:54] Speaker 01: The board stated that Rodriguez-Zuniga holds that were a persecutor's actual motivation is threatening a person to extort money [00:01:00] Speaker 01: there is no nexus to a protected ground. [00:01:03] Speaker 01: However, this court in Rodriguez Zuniga specifically stated that, our case law permits someone to establish nexus when one of the persecutor's motivations is financial, so long as another motivation is actually motivating the persecutor and is based on the victim's protected characteristic. [00:01:18] Speaker 05: I'm sorry, I'm a little confused because the only site I see in the BIA's opinion to Rodriguez Zuniga says that [00:01:25] Speaker 05: Without clear error, the immigration judge found that there was no demonstration of animus. [00:01:32] Speaker 01: Your Honor, on AR4 in the middle of the paragraph, they cite to it. [00:01:38] Speaker 01: And I believe in parentheses, they include the holding of the case. [00:01:43] Speaker 01: And then they go on to explain that family membership would only be incidental after. [00:01:50] Speaker 05: I see. [00:01:51] Speaker 05: It's okay. [00:01:52] Speaker 05: Keep going. [00:01:53] Speaker 05: I guess I see what you're saying. [00:01:54] Speaker 05: I mean, the site is used though to support the idea that here there was no animus, but you're, you're, you're using the parenthetical to be what you think they were relying on, not the sentence. [00:02:05] Speaker 01: Correct. [00:02:05] Speaker 01: Your honor. [00:02:06] Speaker 01: Um, I believe after they apply the parenthetical, then they go on to say that family membership would not be able to be one central reason or a reason for the asylum and withholding claims because [00:02:18] Speaker 01: of that conclusion. [00:02:22] Speaker 01: However, in our case, we believe that our case is distinguishable from Rodriguez-Zuniga. [00:02:27] Speaker 01: In that case, the petitioner was the mother. [00:02:29] Speaker 01: However, in our case, the petitioner is the child. [00:02:32] Speaker 01: And that's important because in Rodriguez-Zuniga, the court stated that the reasons needed to prove nexus refer to the persecutor's motivations for persecuting the petitioner, and that's not somebody else. [00:02:43] Speaker 01: Therefore, the inquiry is why the petitioner is targeting Jordan in this case. [00:02:47] Speaker 01: and not why they targeted his mother. [00:02:50] Speaker 01: And the evidence shows that but for his relationship to his mother, he would not have faced these death threats. [00:02:56] Speaker 05: So in Rodriguez-Zuniga, there was a son who was twice threatened to get money from the mother. [00:03:04] Speaker 05: And there is a paragraph in the opinion that discusses that and says it's still not in excess. [00:03:08] Speaker 05: How do you deal with that paragraph? [00:03:11] Speaker 01: Your Honor, to my understanding, I think in Rodriguez-Zuniga, it was just one one-time incident. [00:03:15] Speaker 05: It was a one incident, but there were two threats in the same incident, I believe, both targeted at the son. [00:03:20] Speaker 01: Yes. [00:03:23] Speaker 01: So the board found that the mother was not targeted because of her family relationship. [00:03:27] Speaker 01: And the son in that case was just a derivative of her claim. [00:03:31] Speaker 05: So in our case, we're arguing that- So there's a paragraph that starts even assuming, or words like that. [00:03:41] Speaker 05: Let me find it. [00:03:43] Speaker 05: Assuming for the sake of argument, that paragraph. [00:03:46] Speaker 05: Do you remember the paragraph I'm talking about? [00:03:48] Speaker 05: So how do you deal with that paragraph? [00:03:51] Speaker 05: Could you say it again? [00:03:52] Speaker 05: Because I'm not sure it matters that he was derivative because they're looking there at the sun as I understand it. [00:03:57] Speaker 01: Well, the way that we're distinguishing our case is that we believe that that was a one-off crime. [00:04:01] Speaker 01: It was an attempted robbery outside of a bank in public. [00:04:04] Speaker 01: But in our case, we have three different incidents spanning over six months where the same group of perpetrators are coming at Yordan and threatening to kidnap and kill him. [00:04:11] Speaker 01: So our case is not based on random violence. [00:04:16] Speaker 00: Isn't it the case, doesn't Rodriguez Zuniga itself suggest that under the circumstances of this single theft incident outside a bank that it's sort of implicit that [00:04:30] Speaker 00: because the son was with her. [00:04:32] Speaker 00: The son was threatened, but I think they say if it had been a dog with her, if it had been a good friend with her, it was sort of under these circumstances. [00:04:39] Speaker 00: The person engaging in the robbery was going to use whatever leverage was available at that particular moment in that particular circumstance. [00:04:47] Speaker 00: And in fact, it may be that it wasn't even clear. [00:04:51] Speaker 00: It was implied that that was her son, certainly, you know, for the [00:04:56] Speaker 00: They engaged with one another. [00:04:58] Speaker 00: Presumably, the assailant didn't have knowledge of the family relationship between these two. [00:05:03] Speaker 00: So isn't that what Rodriguez, Zuniga itself sort of compares the circumstances to, which I think you would argue are different here? [00:05:10] Speaker 00: Is that right? [00:05:11] Speaker 01: That's correct, Your Honor. [00:05:12] Speaker 01: Specifically, the perpetrators in this case knew that they knew Yordan's mother's name and that she was returning from the United States. [00:05:20] Speaker 01: And they also went to Yordan's grandfather's house in a village in Guatemala. [00:05:26] Speaker 01: Six months after this first incident, the same group of perpetrators showed up to Yordan's father's house, which is two hours away by car in another village. [00:05:34] Speaker 01: And they once again threatened to kidnap and kill Yordan. [00:05:37] Speaker 01: Finally, after Yordan and his mother fled to the United States, the perpetrators returned to the incident of the first location, looking for Yordan and his mother once again. [00:05:47] Speaker 05: That shows that it's not one incident and maybe isn't random. [00:05:52] Speaker 05: I'm still struggling with the idea. [00:05:54] Speaker 05: So in Rodriguez Zuniga, the robber said, I'm going to get your son. [00:06:01] Speaker 05: More than once threatens the son using the word son, as I understand it in a quote. [00:06:07] Speaker 05: So I don't really understand why, for the question of whether [00:06:13] Speaker 05: the relationship doesn't really matter because the point is money. [00:06:17] Speaker 05: Why it matters that it was more than once instead of once for the concept of why you're targeting the son to get money from the mother. [00:06:26] Speaker 01: Your honor, in Corpena Romero, this court cautioned over over reading Rodriguez Zuniga. [00:06:35] Speaker 01: And in that case, it was in addition to [00:06:38] Speaker 01: the father being killed for not paying extortion bribes. [00:06:41] Speaker 01: They started targeting the son because they wanted the son to join the gang. [00:06:46] Speaker 01: So in that aspect, it was them targeting the son as a means in order to make an ends. [00:06:53] Speaker 01: And we believe that Rodriguez Zuniga, in our case, we believe that by the perpetrator specifically targeting Jordan on multiple occasions, it shows that they had an animus against Jordan and his mother, and that they [00:07:08] Speaker 01: wanted to continue and try to kidnap and kill him. [00:07:12] Speaker 01: But for that relationship with his mother, he would not have received these threats. [00:07:15] Speaker 01: And we think that his relationship with his mother is a central reason and a reason he was persecuted. [00:07:22] Speaker 01: Additionally, even if this court doesn't find that it's one central reason, we believe that the board erred by determining that it was not a reason. [00:07:31] Speaker 01: The a reason is a weaker nexus standard, and it's easier to meet than in asylum claims. [00:07:36] Speaker 01: By concluding in two sentences why Jordan's family-based social group was not a reason for the persecution, the board failed to actually analyze whether his family role played a reason. [00:07:46] Speaker 01: Jordan's relationship to his mother was at the very least a reason he was threatened with being kidnapped and killed, as a person may have a reason for doing something that is not one central reason. [00:07:55] Speaker 05: So you said along the way there that you think there was animus against the family. [00:08:00] Speaker 05: Is that needed for your argument here, or are you just trying to say it had something to do with the family, whether there's animus or not? [00:08:06] Speaker 01: That's correct, Your Honor. [00:08:07] Speaker 01: We don't believe animus is required, but we do think animus is a way to establish a nexus. [00:08:11] Speaker 05: And you think there is animus here, even though the agency said there wasn't? [00:08:15] Speaker 01: Yes, Your Honor. [00:08:16] Speaker 05: And what is your best support for that? [00:08:18] Speaker 01: My best support is the repeated attempts to come after the family. [00:08:21] Speaker 01: Even if, in the first instance, they may not have had an animus, Borjas Romero shows that [00:08:28] Speaker 01: During the first attack, when the mother doesn't pay the extortion, then that can create an animus against the family. [00:08:33] Speaker 01: And they kept coming after the same family in order to try and kidnap and kill Jordon as a result of not paying the extortion. [00:08:46] Speaker 05: I know you want to save time for a rebuttal, and you have a colleague who's going to argue. [00:08:49] Speaker 05: So why don't we let her go next? [00:08:51] Speaker 01: Thank you. [00:08:58] Speaker 03: Good morning, your honors, and may it please the court. [00:09:01] Speaker 03: My name is Madison Hill, and as previewed by my co-counsel, Luca Kola Majek, I will be addressing three main points. [00:09:07] Speaker 03: One, the board erred in requiring animus in this case. [00:09:11] Speaker 03: Two, Jordan's race-based claim was exhausted before the board. [00:09:15] Speaker 03: And three, even if Jordan's race-based claim was not properly exhausted, this court may revive the forfeited claim. [00:09:22] Speaker 03: First on the issue of animus, this court does not require a petitioner to demonstrate animus, and the board erred in imposing an animus requirement in this case. [00:09:31] Speaker 03: The word animus does not appear in the relevant sections of the INA pertaining to Jordan's claims, but is rather a creation of the board itself. [00:09:39] Speaker 03: In Rodriguez-Zuniga, this court acknowledged that animus is, quote, an example of the type of nexus that is required for an asylum and withholding claim. [00:09:48] Speaker 03: Again, in Garcia versus Wilkinson, this court referred to animus as merely being sufficient on the issue of nexus rather than a separate requirement. [00:09:56] Speaker 03: To require animus here today would run counter to this court's precedent. [00:10:02] Speaker 00: Is there something beyond, it seems to be the central reason analysis does ask for something beyond but for causation, correct? [00:10:10] Speaker 00: Correct. [00:10:11] Speaker 00: And so I think the BIA has articulated that as animus or a desire to overcome the protected trait. [00:10:23] Speaker 00: under the Ninth Circuit law, what is that something more than but for causation? [00:10:29] Speaker 00: What are we actually evaluating the existence of? [00:10:33] Speaker 03: So there can be either animus or an intent to overcome that could be that something more. [00:10:37] Speaker 03: However, to say that animus and intent to overcome are synonymous in this case is incorrect. [00:10:43] Speaker 03: There are cases where we see an intent to overcome without animus. [00:10:47] Speaker 03: These are cases like female genital mutilation, such as the board's own matter of kasinga. [00:10:52] Speaker 03: In those cases, that's often a trusted community member or a family member that believes they're doing a benevolent service on behalf of the young child. [00:10:59] Speaker 03: And that's an intent to overcome a defining female characteristic without a hatred or animosity towards the child itself. [00:11:06] Speaker 05: And do you think that concept is relevant in this case at all? [00:11:09] Speaker 05: Is there anything about intent to overcome that you could argue might have happened here? [00:11:13] Speaker 03: No, Your Honor, the government is positing that intent to overcome is synonymous with animus in this case. [00:11:18] Speaker 03: However, we would hold that family-based particular social groups imposing an intent to overcome requirement is unworkable. [00:11:26] Speaker 03: An intent to overcome requirement would, on some level, require the perception of the persecutor that the particular social group is surmountable or a choice. [00:11:36] Speaker 03: And this has bad implications for the concept of immutability. [00:11:40] Speaker 05: Well this might be because of the or I'm just confused because of the or though it's animus or intent to overcome right so I'm confused about why we need to worry about intent to overcome in this case at all We would agree your honor that would be our position that intent to overcome is not None relevant in this case and the animus is not a requirement in this case. [00:11:59] Speaker 00: However, then then the question is what is If we don't have intent to overcome an animus is not required but something [00:12:10] Speaker 00: other than simple but for causation, which seems pretty clearly to exist here, is required. [00:12:18] Speaker 00: What is that under the Ninth Circuit's case law? [00:12:22] Speaker 03: So while we are arguing here that animus is not required, that is not to say that we don't have sufficient evidence of animus in this case. [00:12:29] Speaker 03: As my co-counsel explained, Jordan was hunted routinely over a six-month period. [00:12:34] Speaker 03: He was followed from one village to another village two hours away. [00:12:37] Speaker 03: In each incident, he was the only one threatened to be murdered, chopped up, and eaten. [00:12:41] Speaker 02: Before you move away from the legal argument, though, I see you're shifting to trying to show that there was sufficient or even compelling evidence of animus. [00:12:50] Speaker 02: But I think the question really is, [00:12:53] Speaker 02: What are ways to show essential reason other than animus or intent to overcome? [00:13:01] Speaker 02: It seems to me you're arguing there should be at least some other way to prove something beyond an incident, prove that family PSG or any type of protected basis is the essential reason for the targeting [00:13:22] Speaker 02: If we were to agree with you that animus isn't required and that's something beyond other than animus or intent to overcome, what would that other thing possibly be? [00:13:34] Speaker 02: Is there a description for an example for it? [00:13:36] Speaker 02: In the Sixth Circuit, they say given a hypothetical example in which there's sort of a positive view of a particular social group, I think white women, they say, and the positive view [00:13:52] Speaker 02: So not animus right and not intend to overcome is something that they want to exploit essentially and they see that's an example. [00:13:59] Speaker 02: So is there support for that in our case laws. [00:14:01] Speaker 02: It just an open question about whether there's another way to show targeting. [00:14:06] Speaker 02: that amounts to a central reason. [00:14:08] Speaker 03: It appears to be an open question. [00:14:10] Speaker 03: In this case, both animus or an intent to overcome could be sufficient and could be that something else that we are looking for here. [00:14:16] Speaker 03: However, neither one is required on their own and either one could be sufficient on the example of something extra added that is needed to establish nexus. [00:14:24] Speaker 03: The board in its former LEA decision once hinted that there was other circumstances that may amount to this. [00:14:32] Speaker 03: They left that question open. [00:14:33] Speaker 03: And the 10th Circuit in overturning the matter of MRMS alluded to that the board has never correctly asserted what animus means. [00:14:43] Speaker 03: They've never defined it. [00:14:45] Speaker 03: So it's a loose term that doesn't have a whole lot of concrete definition behind it. [00:14:50] Speaker 05: If we were to agree with you that it doesn't need to be animus or intent to overcome, is there some third thing that you think is relevant here that the board didn't consider but should have? [00:15:03] Speaker 03: No, Your Honor, I think that there's no additional thing that could be needed in this case. [00:15:10] Speaker 03: However, we do have sufficient evidence of animus in the record where this court to hold that animus is required in this case. [00:15:18] Speaker 05: I guess I'm wondering if this is a case that gives us any opportunity to consider that question about whether there might be some third thing. [00:15:25] Speaker 05: It doesn't seem like you're arguing that in this case, any third type of way to qualify as a nexus is relevant here. [00:15:33] Speaker 03: It's certainly an unanswered question in this case, Your Honor, so this court would be able to assess that question. [00:15:37] Speaker 05: But is there something we could say that would help your client on that regard? [00:15:41] Speaker 05: The blonde women example in the Sixth Circuit, I don't think helps your client here. [00:15:46] Speaker 05: I don't think there's an argument that there was some positive reason for targeting your client. [00:15:51] Speaker 03: No, Your Honor. [00:15:53] Speaker 05: Is there any other third way that we could help your client by articulating a third way? [00:15:59] Speaker 03: Not that I'm thinking of right now, Your Honor. [00:16:03] Speaker 03: On that note, I would like to turn to the next issue of the exhaustion of the race-based claim. [00:16:09] Speaker 03: The standard for exhaustion is that the issue is raised in the administrative proceedings below, sufficient to put the BIA on notice of what is being challenged. [00:16:17] Speaker 03: However, this does not import a requirement that the challenger themselves be the one to raise the issue. [00:16:23] Speaker 03: Although the issue was not raised by Jordan's brief to the board, the DHS did brief the issue extensively in their motion for summary affirmance, putting the board on notice. [00:16:32] Speaker 03: The board was so sufficiently put on notice of this claim that they acknowledged it and deemed it waived in a footnote. [00:16:37] Speaker 03: In this case, the administrative agencies had the opportunity to rule on the issue at both the IJ and BIA level. [00:16:44] Speaker 03: and no prejudice would be imputed to the government for this court to remand the issue of race. [00:16:50] Speaker 03: The DHS was given the opportunity to brief the issue at every level, and the DHS had an interest in a favorable ruling from the BIA and of the BIA ruling on the issue on the merits. [00:17:01] Speaker 03: Additionally, I'd like to point out the sequence of the briefs in the BIA case. [00:17:05] Speaker 03: Jordan's brief, which did not include the race-based issue, was filed on October 25th, and the DHS's motion was on December 6th. [00:17:12] Speaker 03: So they were on notice that Jordan himself had not raised the issue yet, but the DHS still raised the issue to the board. [00:17:19] Speaker 03: Your Honors, I see that I'm out of time, so I'd like to reserve for the rest. [00:17:22] Speaker 05: Thank you. [00:17:23] Speaker 05: We'll still give you three minutes for a rebuttal, but let's hear from the government. [00:17:26] Speaker 05: Thank you, Your Honor. [00:17:29] Speaker 04: Good morning, Your Honors. [00:17:30] Speaker 04: Sarah Pergolese for the government. [00:17:32] Speaker 04: Can you hear me okay? [00:17:34] Speaker 04: Great. [00:17:34] Speaker 04: I'm at the court. [00:17:36] Speaker 04: I'd like to start by zooming out. [00:17:38] Speaker 04: The court has asked what other thing is required beyond but for cause, beyond animus or an intent to overcome. [00:17:47] Speaker 04: The simple answer is that motivation is required. [00:17:50] Speaker 04: The perpetrator must care about the protected characteristic in a way that motivates them to act. [00:17:58] Speaker 04: And that is where critically we are lacking evidence [00:18:01] Speaker 04: of the family relationship being that kind of motive. [00:18:06] Speaker 04: The petitioners have used the challenge or argument that this assault was not random, but that does not establish that it was motivated by a protected ground. [00:18:17] Speaker 04: If a perpetrator or robber is planning an attack on a wealthy family, that attack is planned, it's not random, but it still may be purely opportunistic. [00:18:27] Speaker 04: And again, that is what has occurred in this case as well. [00:18:31] Speaker 00: I'd also like to so so what is what is again what what is the motive that is required if it is not limited to animus or an intent to overcome I mean. [00:18:45] Speaker 00: It seems clear here that they were motivated by the petitioner's family status. [00:18:52] Speaker 00: That was the very reason they were acting. [00:18:55] Speaker 00: So what do we need sort of to perceive in the heads of the actor with respect to their feeling about that family status if it's not limited to animus or intent to overcome? [00:19:08] Speaker 00: What are we testing for? [00:19:11] Speaker 04: I think the board has [00:19:13] Speaker 04: clearly said that it is an intent to overcome or otherwise prove animus. [00:19:23] Speaker 00: Sorry, but is that the Ninth Circuit law or what is the Ninth Circuit's law in this question? [00:19:30] Speaker 04: The Ninth Circuit, I think it clearly most clearly does say in Rodrigo Zuniga itself that what is critical and what is required is actual motivation, something that [00:19:42] Speaker 04: causes the perpetrator to act, motivates intrinsically the perpetrator to act. [00:19:48] Speaker 04: And of course, these motive questions are always a little bit fuzzy and complicated. [00:19:52] Speaker 04: And I think what might be helpful is to talk, even though it was a mixed motive case, but to talk about the bucket analogy in Alfaro Manzano, because I think it helpfully contextualizes sort of the difference between a question about causation only and a question about motivation. [00:20:12] Speaker 04: In that case, the court [00:20:16] Speaker 04: said that there are basically two ways that an applicant can prove that their protected ground is a sufficient motivation. [00:20:23] Speaker 04: The court uses the language of but for cause, but I prefer to use the language of motivation just to not confuse between causation that may be so attenuated that it isn't a motivation. [00:20:35] Speaker 04: And I do think the buckets analogies actually do support that reading and that refining of the language. [00:20:42] Speaker 04: But the first analogy was [00:20:45] Speaker 04: a circumstance where the hypothetical persecutor had, I think, a hatred of dog owners, but it wasn't enough to motivate them to act. [00:20:57] Speaker 04: And so as the analogy of motivate to act, Judge Oreck used the analogy of it wouldn't tip the bucket of their motivation, right? [00:21:04] Speaker 04: It wouldn't [00:21:05] Speaker 04: cause he might feel that way internally, but it wouldn't cause any external reaction. [00:21:12] Speaker 04: But then he might also dislike a particular person because of their religious faith. [00:21:18] Speaker 04: And even if the hatred of dog owners is quite large, and the feeling against Christians might be very small, if the bucket then both of those things combined tip the bucket, that would be that would render the [00:21:35] Speaker 04: protected reason, the religious hatred, and I don't mean hatred in like animosity or intent to punish, but just as a feeling of opinion, it would still tip the bucket, it would still be cause, it would still be a motive. [00:21:53] Speaker 04: even if it was small, so long as it wasn't more than minor, as long as it wasn't a drop in the bucket. [00:22:00] Speaker 04: So that was sort of one way to show that that protective reason was a sufficient motivation. [00:22:05] Speaker 04: But that wasn't the case at hand in Alfaro Manzano itself. [00:22:10] Speaker 04: The other way was a way that the Ninth Circuit has understood this motive to correct for the overdetermined cause problem. [00:22:19] Speaker 04: But again, in the context of asylum and withholding of removal, [00:22:23] Speaker 04: It's not really cause something that can be so attenuated in the chain that it doesn't matter to the perpetrator, but more over-determined motive problem in this specific context, right? [00:22:33] Speaker 04: And that's that the same perpetrator has a hatred of dog owners. [00:22:39] Speaker 04: That's enough to tip the bucket on its own. [00:22:41] Speaker 04: But then they also had an opinion of somebody for their religious beliefs that also tipped the bucket alone. [00:22:49] Speaker 04: So the fact that the dog ownership [00:22:52] Speaker 04: motive could have tipped the bucket alone did not preclude the fact that the protected motive was also sufficiently a motivation to merit relief. [00:23:03] Speaker 04: And so I think what's important about both of those examples is that we're asking whether it tips the bucket. [00:23:10] Speaker 04: We're asking if that internal belief motivates the perpetrator to act and where the court looks for that evidence of motive, [00:23:19] Speaker 04: is looking at the statements of the perpetrator, but also circumstantial evidence, such as the timeline of events, whether harm increased or changed if a perpetrator became aware of a protected characteristic. [00:23:35] Speaker 04: And again, those sort of looking holistically at the facts in this case, it puts this case more on the side of the spectrum, almost identically to Rodriguez-Veniga. [00:23:46] Speaker 04: And unlike cases like Carpeño-Romero, [00:23:49] Speaker 04: or Naranjo Garcia, or even Alfaro Manzano. [00:23:53] Speaker 04: The perpetrators there told the applicant to stop practicing his religion, which the court understood as sufficient animus against his religion. [00:24:01] Speaker 04: And I think that's also illustrative of what animus means, right? [00:24:06] Speaker 04: Or what intent to overcome means. [00:24:08] Speaker 04: It doesn't necessarily mean we want this person to not be a Jehovah's Witness anymore at all, but to [00:24:15] Speaker 04: act in a way that restricts his practice or stops his practice could be an intent to overcome that practice. [00:24:23] Speaker 05: In the site to Manzano here at AR4 it seems that the BIA was considering the sufficient fill the bucket by itself kind of idea. [00:24:35] Speaker 05: Where do we see that the agency looked at but for cause and well let's start with that and then if they didn't then why isn't that a problem? [00:24:46] Speaker 04: Sure, I do think they did. [00:24:48] Speaker 04: I am having trouble loading my record, a fun circumstance of being here remotely. [00:24:53] Speaker 04: But when the immigration judge and the board in affirming noted the fact that the petitioner had other family members, other group members that were not pursued, I think that helps prove and shows that the agency considered that there was a lack of but for motivation with respect to the family because the [00:25:17] Speaker 04: Petitioners, maternal grandparents who were also present at the first attack in Teogal. [00:25:24] Speaker 04: The petitioner's mother testified that while the gang of people did come back to the house, they never harmed or threatened those parents. [00:25:34] Speaker 04: Those parents are sort of a circumstantial evidence of the [00:25:40] Speaker 04: desire to use the access to the mother for money was not present, but the family membership was present and they were not harmed. [00:25:49] Speaker 04: So I think that that is evidence that the agency also considered that sort of right. [00:25:55] Speaker 04: Absent each motive, absent the money motive, there doesn't appear to be harm with respect to the family membership alone. [00:26:04] Speaker 02: One of the things that troubles me about the agency's reasoning in this case is we want to separate out [00:26:10] Speaker 02: the withholding standard and the asylum standard. [00:26:14] Speaker 02: I think most of what you've discussed addresses the asylum analysis. [00:26:19] Speaker 02: As I'm sure you are aware, the Ninth Circuit is one of those jurisdictions that has held that the withholding standard is lower, the A reason standard. [00:26:30] Speaker 02: And in MRMS, the BIA or the AG acknowledges it's only addressing the central reason standard and that there has to be an independent analysis of nexus in jurisdictions like the Ninth Circuit that apply the lower [00:26:47] Speaker 02: a reason standard for withholding. [00:26:50] Speaker 02: And when I look at the decision here, the BIA essentially affirms the IJ's reasoning and cites Zettino, which is an old case that predates our holding that the causation standards are different. [00:27:04] Speaker 02: And the IJ relies solely on its nexus analysis from the asylum analysis to say essentially for the same reason I'm saying there's no nexus [00:27:16] Speaker 02: for withholding. [00:27:18] Speaker 02: How is that not legal error here? [00:27:20] Speaker 04: So I think that [00:27:24] Speaker 04: Basically, what we're talking about right now is the question of whether something is a motive at all. [00:27:31] Speaker 04: And so that is a threshold inquiry that comes before whether motives meet either mixed motive standard. [00:27:38] Speaker 04: They have to be a motive at all before we put them on the scale and consider them under either standard. [00:27:43] Speaker 02: But the problem is that the whole analysis was really [00:27:48] Speaker 02: And all of the requirement of animus and all those other things is really designed to figure out whether it is a central reason versus merely incidental or tangential. [00:27:59] Speaker 02: But the agency itself recognizes that a tangential or incidental reason could be a reason for the purposes of withholding. [00:28:09] Speaker 02: So I don't think you can just say our asylum analysis to determine whether family or was [00:28:18] Speaker 02: central reason, then determines the nexus analysis we're withholding. [00:28:23] Speaker 02: That's exactly what we said was error in our precedent. [00:28:28] Speaker 02: So I understand the whole analysis, that there needs to be something beyond but for causation when we're trying to figure out whether [00:28:42] Speaker 02: the one central reason standard was satisfied, but that as the board itself has said, there has to be a different analysis when we're determining whether there is a reason and acknowledges that an incidental reason can suffice as a reason. [00:28:59] Speaker 04: This court has never held in a published decision that the a reason standard would be satisfied by just proving causation. [00:29:06] Speaker 04: That would be a big departure and something that would be unique in this case, I think. [00:29:12] Speaker 04: I'm not aware of any case that says that. [00:29:17] Speaker 04: Again, in Barajas Romero itself, the court does cite Zatino and says, right, if there's no motive at all, we don't get to the question of whether this mixed motive analysis occurs. [00:29:29] Speaker 04: I do understand that there's some tension within this circuit's precedent. [00:29:34] Speaker 04: Rodrigo Zuniga kind of blends language that looks more like the mixed motive language from LEA1 [00:29:42] Speaker 04: But that is a no motive case. [00:29:44] Speaker 04: That wasn't a case that parsed out whether something was one central or a reason. [00:29:48] Speaker 04: They found that the petitioner's family membership and her gender were not reasons at all for the robbery that she experienced. [00:29:55] Speaker 04: But I do think that the agencies finding that here and this court approving of that reasoning here would be fully consistent with Rodrigo Zuniga. [00:30:05] Speaker 02: I also want to ask about how you deal with the Supreme Court president. [00:30:10] Speaker 02: I think it's Elias Zacharias in your whole discussion of motive, because the Supreme Court seems to have pretty clearly said, we're not asking really what was the persecutor's motive for acting. [00:30:28] Speaker 02: We're asking why the persecutor selected this particular [00:30:35] Speaker 02: victim, right? [00:30:37] Speaker 02: Because it was the flip here where, you know, it was a guerrilla group with political motivations for, you know, harming other people. [00:30:46] Speaker 02: But they said their political motivation for harming others is not the correct inquiry. [00:30:53] Speaker 02: We have to ask why they picked this particular victim. [00:30:58] Speaker 02: And right, right. [00:31:00] Speaker 02: So here we have essentially the reverse. [00:31:03] Speaker 02: We have a [00:31:04] Speaker 02: financial, pecuniary motivation, criminal motivation for acting, arguably, but a protected ground for picking a particular victim, or at least that's the [00:31:18] Speaker 02: claim. [00:31:19] Speaker 02: Why isn't that the correct analysis under Elias Zacharias? [00:31:23] Speaker 02: Wouldn't we then say the reason why this victim was picked was because of a protected ground? [00:31:30] Speaker 02: In particular, another analogy. [00:31:32] Speaker 02: If I want to go steal from people, but I decide I'm only going to steal from women, or I'm only going to steal from minority groups, or I'm only going to steal from members of a particular religious minority, I think we probably would not have any trouble saying, despite the [00:31:48] Speaker 02: you know, criminal motivation for acting, they're picking victims based on a protected ground, and that would be presumably, you know, satisfied the nexus requirement. [00:32:02] Speaker 04: I see I'm almost out of time. [00:32:04] Speaker 04: Can I, I do have two quick answers, if I can say. [00:32:07] Speaker 05: As long as we keep having questions, you should keep answering. [00:32:10] Speaker 05: So don't worry about the time. [00:32:12] Speaker 04: Great. [00:32:13] Speaker 04: Okay. [00:32:13] Speaker 04: Rodrigo Zuniga does sort of get to this question and says that selection is not sufficient to prove motivation. [00:32:20] Speaker 04: And I do think that there is support in that in Elias Zacharias itself, because Elias Zacharias, the way I read it, says two important things. [00:32:29] Speaker 04: The first one that you mentioned, Judge Sung, absolutely. [00:32:31] Speaker 04: The perpetrators [00:32:33] Speaker 04: general political goals are irrelevant. [00:32:37] Speaker 04: But what's critical then is what is relevant is what protected characteristics the applicant possesses and that those protected characteristics motivate them. [00:32:50] Speaker 04: I think that even in Elias Zacharias, the petitioner even said, oh, I wasn't associated with either the guerrilla group or the government [00:33:00] Speaker 04: Um, I was neutral, but it is, uh, dangerous to be neutral. [00:33:04] Speaker 04: That's kind of an opinion of it in and of itself. [00:33:08] Speaker 04: But the agency found in the court, the Supreme court agreed that the petitioner hadn't provided any evidence that the perpetrator knew about that and cared about it. [00:33:19] Speaker 04: It was indiscriminate in the way that it targeted groups. [00:33:24] Speaker 04: So again, I think. [00:33:26] Speaker 04: The question of selection is certainly relevant, but it's not sufficient to prove motivation. [00:33:34] Speaker 00: Is there a difference in the language of on account of as opposed to conduct undertaken because of something when those phrases are used in the statute in various statutes? [00:33:54] Speaker 04: I hope I have cited it in my brief, but I'm not sure if I did. [00:33:57] Speaker 04: But there definitely is Ninth Circuit precedent that those two phrases are synonymous. [00:34:02] Speaker 04: And I think there's also Supreme Court precedent. [00:34:05] Speaker 04: If I haven't cited it, I'll file it. [00:34:06] Speaker 00: Because hasn't the Supreme Court, at least in the context of Title VII and other such contexts, been telling us that [00:34:14] Speaker 00: If we're thinking about whether there's race discrimination in the context of affirmative action or otherwise, we don't think about motivation. [00:34:22] Speaker 00: All that because of asks is why was the individual selected and subject to disfavorable treatment? [00:34:28] Speaker 00: Has that actually, in some ways, expanded upon the point Judge Sung was making about how one might read the INS versus Elias Thakaria? [00:34:39] Speaker 04: I mean, that is very much not my area of expertise, but I do think that what's important about the difference between these cases and discrimination cases is the whole statutory phrase, which we talked about in our brief that the fact that it has to be persecution on account. [00:34:54] Speaker 04: of a protected ground really does sort of emphasize that motivation is critical, and that it does have to be a motivation connected to a protected ground. [00:35:05] Speaker 04: And the Supreme Court has never strayed from that since Elias Zacharias. [00:35:08] Speaker 05: So following up on the Elias point that you were making, though, about selection, it seems that maybe there, there was no reason to think the selection of neutrality was salient. [00:35:21] Speaker 05: But here, the selection is family. [00:35:22] Speaker 05: And if we are assuming the family [00:35:25] Speaker 05: is a social group because we're assuming past that because it wasn't reached. [00:35:29] Speaker 05: If the family is a social group and the selection is based on family, then why don't we have a satisfied nexus here? [00:35:37] Speaker 04: Again, I think because the selection is only relevant to the extent that it makes that person a viable access to money. [00:35:45] Speaker 04: And again, that sort of is where these family pains are [00:35:50] Speaker 04: Quite difficult and I think a little bit unique when it comes to asylum cases. [00:35:56] Speaker 04: Generally, we all understand that opportunistic crime and extortion just straight opportunistic crime does not really fall under the umbrella of asylum or withholding of removal, but. [00:36:08] Speaker 04: it becomes more complicated where a family member is used as leverage to access that money. [00:36:13] Speaker 00: But would it be the case if a criminal gang were engaged in persecution-like conduct toward all of the Jewish members of a particular community because they wanted to extort the rabbi who had deep feelings for his congregants and was likely to be influenced by the threats and other conduct targeted [00:36:37] Speaker 00: at the members of that community? [00:36:41] Speaker 00: Under this analysis, would it be the case that their Judaism would not be being persecuted on account of their Judaism? [00:36:52] Speaker 04: I think that's right, yeah. [00:36:54] Speaker 04: And there is precedent. [00:36:56] Speaker 04: I know it's in the board, and I am sure there are Ninth Circuit cases, but I don't have them in my Rolodex in my head. [00:37:02] Speaker 04: But there were a bunch of these cases [00:37:05] Speaker 04: decades ago about ethnic, I think ethnic Chinese, Indonesians, people who were ethnically different from the country that they came from, or where they were had were natives and citizens. [00:37:19] Speaker 04: But they were believed by the society at large to be a wealthier class. [00:37:24] Speaker 04: And they were being extorted, they were being physically harmed. [00:37:29] Speaker 04: But the agency and courts of appeals approving those decisions did [00:37:33] Speaker 04: have and did hold that just believing or being interested in them, knowing that protected characteristic theoretically, right? [00:37:42] Speaker 04: Knowing their nationality, their ethnicity, but only caring about it to the extent that it was believed to give them access to more money was insufficient to prove nexus. [00:37:54] Speaker 05: Even under an A reason? [00:37:57] Speaker 05: You said these are old cases. [00:37:58] Speaker 05: Would that help us with A reason? [00:38:00] Speaker 04: They're old cases. [00:38:02] Speaker 04: Again, I don't think so, but it would be breaking new ground. [00:38:06] Speaker 04: And I guess it would, since the Barajas, the Court of Appeals here and the board have not really defined what a reason is. [00:38:16] Speaker 04: They haven't explicitly said that it's less than motivation. [00:38:19] Speaker 04: But again, I do think that saying that, that it would just be causation like this. [00:38:24] Speaker 04: Or if it's a factor in selection, if that is sufficient, [00:38:29] Speaker 04: I think there's room to say that it would be something new, right? [00:38:34] Speaker 04: But I do think if it could be satisfied by causation alone, that would be contrary to the rest of the law of Zacharias. [00:38:41] Speaker 05: Sorry, I think you're distinguishing between a factor in selection and motivation in a way that I'm not sure I'm understanding. [00:38:49] Speaker 05: Am I right that you're thinking those are different? [00:38:51] Speaker 04: And if so, what is the difference? [00:38:54] Speaker 04: You know, I don't know. [00:38:55] Speaker 04: And I thank you for asking that question because I did. [00:38:58] Speaker 04: mean to talk about it, that might be our thing to find a line it that might. [00:39:04] Speaker 04: And that's sort of how I understand the agency's law and even Rodrigo Zuniga, it does, I think, does draw that line. [00:39:17] Speaker 04: By saying that collection is insufficient, but I do think right, like, [00:39:22] Speaker 04: selection is in some ways motivation because it is something that is a factor in why you act or not. [00:39:28] Speaker 04: Maybe that is, you know, that tips the bucket. [00:39:30] Speaker 04: I'm only working from the framework of sort of how I read Rodriguez-Zuniga and the Parth precedent in general. [00:39:39] Speaker 04: But it is a question that might, if the court finds here that it's too fine aligned to Parth, then mixed motive analysis, at least for withholding of removal, would probably be required on remand. [00:39:53] Speaker 05: And that's if we, sorry, we would remand if we think that Rodriguez Zuniga doesn't speak to what exactly? [00:40:05] Speaker 05: I think you just acknowledged there was a question, but I'm not sure what. [00:40:08] Speaker 04: Sorry. [00:40:10] Speaker 04: That even for the purposes of withholding of removal, that selection is not sufficient to prove motivation or the reasons for selecting. [00:40:17] Speaker 04: Yeah. [00:40:19] Speaker 04: If at least if that, let me, [00:40:21] Speaker 04: If you don't mind, I'm going to try to find the exact sentence from Rodrigo Zuniga that I think does say this. [00:40:36] Speaker 04: I'll do it in a funny way. [00:40:38] Speaker 04: I'm not going to be able to do it fast enough. [00:40:40] Speaker 05: I mean, am I right that your primary argument is that Rodriguez Zuniga says that selection is not enough for what you're calling motivation. [00:40:50] Speaker 05: It's not enough for nexus. [00:40:51] Speaker 05: But you're saying that you're acknowledging though that there may be some wiggle room there. [00:40:56] Speaker 04: I'm acknowledging that it's kind of a hard question that when you're asked to press your thumb on it to say why there's a difference. [00:41:03] Speaker 04: between those two things, right? [00:41:04] Speaker 04: Like, I think we're all sort of questioning that right now. [00:41:08] Speaker 04: And I do even judge some your question at first, right? [00:41:11] Speaker 04: Like, if I only want to rob women, that is, I guess there is a, but I'm sorry, this is a little half-baked, but I think it's still not motivation when it comes to withholding if it's like, [00:41:30] Speaker 04: it's just easier for me to pick somebody to rob and have a framework in my own mind if I don't have any like opinion about women or think that they are easier targets or have more money, right? [00:41:43] Speaker 04: Like if it kind of is not connected to why I'm acting, it might not matter. [00:41:48] Speaker 04: But if it is just like, yeah, they tend to have cash because they're going to get their nails done and that's why I'm robbing them. [00:41:58] Speaker 04: Yeah, I don't know. [00:41:58] Speaker 04: But again, I think my primary argument is that Rodriguez Zuniga does say that that selection is insufficient for both. [00:42:04] Speaker 04: That was a no-nexus case that really wasn't kind of getting to whether something could be a reason or on account of. [00:42:11] Speaker 02: Considering the issue presented in Rodriguez Zuniga was really about the mother's [00:42:16] Speaker 02: claim, right? [00:42:17] Speaker 02: And I think what we're trying to figure out is, you know, I think the argument in Rodriguez and Nega was the threat to the son does that show that the reason why the mother was being targeted was her family membership, right? [00:42:31] Speaker 02: And that all that you're saying makes sense, you know, in terms of that question, right? [00:42:38] Speaker 02: That just saying, I'm going to harm your son [00:42:41] Speaker 02: right does not show that the reason why they were targeting Rodriguez and Niga. [00:42:49] Speaker 02: Was because of her status as a member of her family group rated and especially when they just attacked her you know after she left an ATM and happened to be. [00:43:01] Speaker 02: you know, with her son. [00:43:02] Speaker 02: I mean, I think in those circumstances, it does make sense to say, like, she could have been with anybody and they would have threatened them, right, in order to get her to give handover money, right. [00:43:13] Speaker 02: And it doesn't show anything about their motive for targeting her, which is she just left it in ATM, right. [00:43:20] Speaker 02: There's the question here is different, right. [00:43:25] Speaker 02: And a lot of what, you know, [00:43:27] Speaker 02: this court, the agency, others have said about needing something else to show nexus makes sense in the context of when you're trying to determine a central, whether the protected status is one central reason for the alleged persecution. [00:43:53] Speaker 02: To my knowledge, we haven't imported any of those requirements into the withholding analysis under the circumstances of this case. [00:44:02] Speaker 02: Is that correct? [00:44:03] Speaker 04: Again, after Barajas, there hasn't been any case law about what a reason means, or at least I haven't. [00:44:11] Speaker 04: I don't know of any in the board or in this Court of Appeals and published decision. [00:44:17] Speaker 04: There's been a lot of no nexus cases. [00:44:20] Speaker 04: That's sort of our office most generally is defending those no nexus ones, right? [00:44:25] Speaker 04: And if the agency properly parses out the two mismotive analyses. [00:44:29] Speaker 04: But I'm not aware of any case that really parses out what a reason means. [00:44:35] Speaker 04: But I, again, would posit, like if I were king for a day, that it does still have to be a motivation and not simply causation. [00:44:42] Speaker 04: And I do think that some case law from this court post-Boraha [00:44:47] Speaker 04: points to that, right? [00:44:49] Speaker 04: Rodrigo Zuniga itself, there are two points. [00:44:51] Speaker 02: But I'm trying to understand what you mean by motivation instead of causation. [00:44:56] Speaker 02: Because again, if I go back to the Supreme Court's teachings, just the motive to act isn't really the focus of our analysis when we're asking whether someone was persecuted on account of a protected ground. [00:45:14] Speaker 02: Right. [00:45:15] Speaker 04: And again, I think this is where the intent to overcome our animus language does work. [00:45:20] Speaker 04: It explains sort of what's the difference between being motivated by a protected ground and not being. [00:45:26] Speaker 04: Importantly, Rodrigo Zuniga, the applicant made two claims. [00:45:28] Speaker 04: She made a family claim, but she also made a claim on the basis of her gender. [00:45:32] Speaker 04: And she said, oh, like, because I'm a woman, I'm just under protected generally. [00:45:38] Speaker 04: The police are less likely to intervene. [00:45:40] Speaker 04: And that's why this woman chose me. [00:45:43] Speaker 04: and the agency found that she hadn't provided any evidence that the robber in her case was motivated by that fact at all. [00:45:52] Speaker 04: Again, she was of course aware that she was a woman, but she, and maybe the robber herself was also a woman, and so maybe she chose her just because it was physically easier for her to intimidate her, who knows? [00:46:07] Speaker 04: But again, just that awareness is insufficient, and I think [00:46:10] Speaker 04: saying that awareness or selection would suffice would be saying something really radical and really different and expanding the umbrella of asylum in a way that this court hasn't done before. [00:46:23] Speaker 04: I'm sorry, expanding withholding. [00:46:26] Speaker 05: When you said that there isn't case law that talks about the A reason for withholding, why isn't Rodrigo Zuniga case law that is talking about that? [00:46:35] Speaker 05: I mean, there were both claims and it said that it was not a reason either. [00:46:40] Speaker 04: Right, that's right. [00:46:40] Speaker 04: So I think they're not talking explicitly about a reason when you get to mixed motive analysis, but all of those published no nexus cases are, yes, also saying that this isn't a reason to even get to mixed motive analysis. [00:46:55] Speaker 04: Yes. [00:46:58] Speaker 05: In the same kind of posture of targeting the kid to get the money from the parent. [00:47:03] Speaker 04: Exactly, yes. [00:47:04] Speaker 00: Although it is the case, right, that I think is noted, that case involved a single incident and under the circumstances, it certainly would have been reasonable for the agency to conclude on the basis of the evidence that it happened to be her son at that time, if it had been. [00:47:22] Speaker 00: her nephew, if it had been her dog, if it had been a friend's child. [00:47:26] Speaker 00: It very well could have been a friend's child for all the robber knew that it was sort of imputed a family relationship to them. [00:47:35] Speaker 00: So, I mean, aren't those facts relevant in thinking about the scope of what Rodriguez-Zuniga was, the extent there is any holding or language that might be precedent there that doesn't have to be bound to that particular factual set of circumstances? [00:47:51] Speaker 04: In that respect, there's a little air between them, but I would say that the second incident actually does sort of, the fact that the second incident cuts against the petitioner in that respect, because again, the criminals came to the door, they never got inside, but based on the petitioner's father's affidavit, they told the gang that they would get the money and they left, showing that sort of once that [00:48:19] Speaker 04: money motivation was satisfied, they were no longer interested in the family. [00:48:25] Speaker 04: While not in the Ninth Circuit, helpful analogous case is the First Circuit's decision in Aldana Ramos versus Holder. [00:48:39] Speaker 04: And I think this court says something similar in Naranjo Garcia, which is [00:48:44] Speaker 04: I think it's really helpful to contextualize sort of again, if that money motive falls out, the fact that the perpetrator is still interested in the family would be strong and even compelling evidence that [00:49:00] Speaker 04: there was a family motivation at play. [00:49:03] Speaker 04: In Garcia, I think the cartel was interested in a deed to the petitioner's land. [00:49:10] Speaker 04: And even once they gave that deed to the cartel, the cartel continued to pursue the family. [00:49:16] Speaker 04: They killed the patriarch. [00:49:19] Speaker 04: They went to his funeral and threatened the family. [00:49:23] Speaker 04: And again, [00:49:24] Speaker 04: When we're looking at the facts in this case, they're nowhere near analogous to that kind of continued pursuit of the family, even absent that money motivation. [00:49:36] Speaker 02: Again, I agree with that, everything you're saying with respect to the one central reason analysis. [00:49:42] Speaker 02: But why would all of that have to be shown for withholding? [00:49:47] Speaker 02: Because in the Ninth Circuit, it's less. [00:49:52] Speaker 02: For one central reason, certainly it has to be an independent [00:49:56] Speaker 02: It would have had to be independent on its own enough to cause the harm, the persecution act against the petitioner. [00:50:07] Speaker 02: But we've said, a reason is less than that. [00:50:14] Speaker 02: And so to me, then the question is, why is that then [00:50:24] Speaker 02: How can we say that's the same standard that should apply for the withholding claim? [00:50:31] Speaker 04: I see what you mean, right? [00:50:32] Speaker 04: Like, Durango Garcia, the court could have kind of been saying, like, not only is this a reason, it could also be a central reason. [00:50:38] Speaker 04: You have to go back and do all the mixed motive analysis. [00:50:40] Speaker 04: That case was no nexus case, right? [00:50:43] Speaker 04: The agency had found that that evidence was insufficient entirely to prove that family mattered at all. [00:50:50] Speaker 04: And I'm really struggling to find a good case to, like, [00:50:54] Speaker 04: prove this point or help clarify this point. [00:50:57] Speaker 04: And so if you'll, I will send a 28J about this, but it was my best Rolodex of my own cases, right? [00:51:04] Speaker 04: I had a case years ago, after Burrell House Romero, where an applicant was a taxi driver in Central America, and he stopped driving his taxi. [00:51:16] Speaker 04: Um, as before that, when he was driving his taxi, a local gang had made him pay a quota every month to continue to run his taxi and otherwise not be bothered. [00:51:26] Speaker 04: He stopped, um, driving, I think he was ill or something. [00:51:32] Speaker 04: Um, and then the gang came knocking in after the quota, right? [00:51:36] Speaker 04: Um, and threatened to kill him if he did not pay. [00:51:39] Speaker 04: They didn't care that he wasn't driving. [00:51:41] Speaker 04: He, in his application, proposed a particular social group of taxi drivers. [00:51:47] Speaker 04: Now, despite the existence of Matter of Acosta, the agency didn't find anything regarding recognizability of his social group. [00:51:55] Speaker 04: They assumed it, but they found that it wasn't a motive at all, that the gang was only interested in being paid the quota that they believed they were due. [00:52:04] Speaker 04: We defended that decision because there wasn't any evidence that this gang had any opinions about taxi drivers at all. [00:52:11] Speaker 04: And this court affirmed, it denied the petition for review. [00:52:15] Speaker 04: So again, his being a taxi driver was certainly a clear link in the causal train. [00:52:21] Speaker 04: It's exactly why he was in the predicament of being both asked to pay a quota and then retaliated against when he stopped paying that quota. [00:52:30] Speaker 04: But it wasn't a motivation, and that was insufficient for asylum and withholding. [00:52:35] Speaker 05: And is that a published case? [00:52:38] Speaker 04: It's not. [00:52:38] Speaker 04: So again, it's not as helpful, but it [00:52:41] Speaker 04: I can't think of a published one that says exactly what I want to say in this time frame, right? [00:52:46] Speaker 04: But I hope it's helpful. [00:52:48] Speaker 04: The reasoning was conclusive in the opinion. [00:52:51] Speaker 05: I think we have you so much over your time that I need to cut you off unless there's other questions from my colleagues. [00:52:56] Speaker 05: OK. [00:52:57] Speaker 05: Thank you very much for your argument. [00:52:58] Speaker 05: So now we have a puzzle, because you guys should get extra time for rebuttal. [00:53:02] Speaker 05: Let's put five minutes on the clock and see. [00:53:04] Speaker 05: If we're still asking questions, you can keep going. [00:53:06] Speaker 05: But we're going to give you some extra time. [00:53:11] Speaker ?: Sorry. [00:53:13] Speaker 01: So I want to go back and focus on looking at the motivation. [00:53:17] Speaker 01: If we're taking that motivation is important in this case, we're looking at the motivation of why our petitioner was targeted in this case. [00:53:25] Speaker 01: It's not our argument that extortion didn't play a role. [00:53:28] Speaker 01: We think that while there was extortion, the reasons that Jordan was targeted in this case were specifically because of his family relationship. [00:53:36] Speaker 01: The fact that other family members weren't injured on the first incident, the second incident, or the third incident [00:53:42] Speaker 01: shows that the perpetrator specifically cared about the child in this case. [00:53:45] Speaker 01: The fact that on the third incident, when the perpetrators came back, only the grandfather was there. [00:53:51] Speaker 01: They didn't cause any harm to him, specifically because they were targeting Jordon in this case. [00:53:54] Speaker 05: So does that mean the, what is the family group definition here? [00:53:59] Speaker 01: We believe the family group is the child's relationship to his mother. [00:54:02] Speaker 05: And that was the social group that was proposed, just the child and mother, not a family? [00:54:07] Speaker 01: Originally, it was family membership, and then the immigration judge decided that [00:54:12] Speaker 01: It wasn't specific enough, and he was taking it as that the social group was the relationship to the mother. [00:54:22] Speaker 05: The child relationship to the mother, not just family relationship to the mother. [00:54:26] Speaker 01: As far as I'm concerned, the immigration judge just said the relationship to the mother. [00:54:30] Speaker 01: He wasn't expressly saying the child, but we're taking it as the child's relationship to the mother, specifically. [00:54:39] Speaker 05: So in Rodriguez Zuniga, the child was also a relationship to the mother. [00:54:46] Speaker 05: But our court seems to have said that both for asylum and for withholding, that relationship wasn't enough for Nexus, even though that is clearly why the kid is being targeted, because they want money from the mother. [00:55:00] Speaker 05: So how is this different? [00:55:03] Speaker 01: We think in that case, the reason that that child was targeted was because he was right next to the mother. [00:55:08] Speaker 01: In our incidents, in the first, second, and third incident, there's many different people around the mother that are related to her. [00:55:13] Speaker 01: But they're specifically targeting the child because they know about this intimate relationship between the child and the mother. [00:55:20] Speaker 01: It wasn't a random event where the perpetrators came and saw the mother just with the son. [00:55:25] Speaker 01: It was on three separate accounts. [00:55:26] Speaker 01: They were only focusing on Jordan. [00:55:29] Speaker 01: They weren't worried about the other family members. [00:55:32] Speaker 01: We think that the reason that they picked Jordan specifically [00:55:37] Speaker 01: It doesn't have to be the reason they picked him. [00:55:39] Speaker 01: But as long as it's a reason that motivated the perpetrators to target him, at least his family membership would be a reason why they chose him. [00:55:47] Speaker 01: If they showed up for economic reasons, the reasons that they threatened Jordan would still fall into the category of being a reason. [00:55:55] Speaker 01: And Barajas tells us that the a reason standard means at least in part. [00:56:00] Speaker 01: And it's very hard to argue that his family relationship to his mother was not at least a part of the reason that he was targeted. [00:56:06] Speaker 01: when that's front and center of why they picked this child in this case. [00:56:12] Speaker 00: In fact, they first targeted him before he was born, correct? [00:56:15] Speaker 01: Correct. [00:56:16] Speaker 01: In the first incident, the mother was nine months pregnant, and she gave birth two days after that first incident. [00:56:23] Speaker 01: And that also shows that they knew that that was her son. [00:56:27] Speaker 01: As you mentioned in Rodriguez Zuniga, it could have been a lucky guess that it was a son next to the mother. [00:56:32] Speaker 01: But in this case, the perpetrators knew exactly that. [00:56:35] Speaker 01: the child inside of Yordan's mom would be her soon-to-be son. [00:56:44] Speaker 01: I think the board, in concluding that no nexix existed, they didn't apply the A-reason standard as we were discussing earlier. [00:56:55] Speaker 01: They solely focused on the economic extortion, and they didn't take into account the possibility of mixed motives, where the mother's relationship with the child definitely played some role in the reason that he was specifically targeted. [00:57:10] Speaker 05: I'm looking at the IJ's opinion. [00:57:14] Speaker 05: Ar 82 page 8 of the IJ's opinion. [00:57:18] Speaker 05: I think this is where you're talking about where the social group gets defined so It says the court has no doubt with respect to the issue of particular social group that the respondent is considered his mother's son and thus part of her family and Then talks about how there's no animus against the family the only animus is against the mother not against the family I'm not sure where the group gets redefined as something other than family and [00:57:43] Speaker 05: Is that the passage you're talking about? [00:57:45] Speaker 01: Yes, that's the only part where they examine the particular social group. [00:57:57] Speaker 05: It seems like the IJ there is still talking about the family because otherwise I don't know why they're talking about the similarly situated family members have not been harmed. [00:58:06] Speaker 01: Even if we take the family as a whole, they were targeting the child because he is [00:58:13] Speaker 01: You could say that the weakest link to the family. [00:58:14] Speaker 01: So they were picking on him. [00:58:16] Speaker 01: It's still due to the family membership why they were targeting him specifically. [00:58:19] Speaker 01: And that relationship to his mother is front and center of why he was targeted in this case. [00:58:25] Speaker 01: And he's the only petitioner. [00:58:26] Speaker 01: The mother is not a petitioner in this case. [00:58:28] Speaker 01: So the motivation for why he's being targeted is strictly because of his relationship to his mother, regardless of why they targeted that family in general. [00:58:43] Speaker 05: Thank you. [00:58:43] Speaker 05: Okay. [00:58:44] Speaker 05: Well, thank you both sides for the very helpful arguments and thank you especially for taking this case pro bono. [00:58:49] Speaker 05: It's great assistance to our court to have great advocates like you taking on these cases and we're very grateful to you. [00:58:55] Speaker 01: Thank you very much. [00:58:56] Speaker 05: Thank you all. [00:58:56] Speaker 05: This case is submitted.