[00:00:00] Speaker 01:
Your Honor. Okay, great. Can you hear me? Yes. Ms. Evans-Schroeder? Thank you, Your Honor. You may begin when you're ready. Thank you.

[00:00:08] Speaker 03:
I will attempt to reserve five minutes for any rebuttal.

[00:00:11] Speaker 01:
Okay, please watch your own clock. Thank you.

[00:00:14] Speaker 03:
May it please the court, Jesse Evans-Schroeder on behalf of Petitioner Jose Galvan-Sanchez. Your Honors, to be clear, we are not asking the court to decide what level of deference applies to the agency's battery or extreme cruelty standard.

[00:00:29] Speaker 03:
We aren't asking the court to evaluate the underlying facts of this case at all. We're asking for a remand so that the agency can articulate the correct legal standard and adequately explain why the facts of this case do or do not meet the legal standard. The VAWA claim will be the focus of my time, but I'll note that the failure to engage the record also infected the exceptional and extremely unusual hardship analysis and the way that the hearing was conducted in general.

[00:01:02] Speaker 03:
Your Honors, the VAWA statute is disjunctive. The agency has to evaluate whether the applicant has been battered and or subject to extreme cruelty.

[00:01:15] Speaker 03:
An applicant can show one or the other or both.

[00:01:19] Speaker 03:
And this court's precedent, in Your Honor's case, Santos v. Holder, indicates that the agency must evaluate the pattern and tactics of violence and or coercive control over the course of the relationship.

[00:01:34] Speaker 03:
But the immigration agency does have to evaluate both.

[00:01:39] Speaker 03:
The problem in this case began with the immigration judge.

[00:01:43] Speaker 03:
He didn't cite a standard at all.

[00:01:46] Speaker 03:
He cited some but not all of the relevant facts of the abuse.

[00:01:51] Speaker 03:
And in his analysis, which is a separate paragraph, he simply says the respondent hasn't met his burden. He explains, there's a passage of time since the abuse. There are childcare and financial arrangements in place. There's a continued legal marriage. Therefore, this doesn't meet the standard.

[00:02:13] Speaker 03:
If we set aside what the government calls extraneous comments, what we would call extra statutory factors, then all this court is left with is this doesn't meet the standard.

[00:02:25] Speaker 03:
What the standard is is unclear. and how the facts were evaluated in relation to this mysterious burden are also opaque, is also opaque, excuse me.

[00:02:37] Speaker 03:
The board did cite the standard, but it didn't cure the error. The board said there were two incidents of physical assaults that were not violent physical abuse requiring medical attention. Again, that is contrary to this court's precedent in Lopez-Birueta. But then the board went on to cite extra statutory factors that are strikingly similar to the factors cited by the immigration judge.

[00:03:04] Speaker 03:
The board said the passage of time, the fact that there was no lasting harm, which we believe is a mischaracterization of the record, and what the board mischaracterized as an amicable relationship with the petitioner's wife. Excuse me, I'm inclined to say respondent because I'm always saying respondent in immigration court.

[00:03:26] Speaker 03:
An amicable relationship with the petitioner's wife leads them to the conclusion that he, again, didn't meet the burden. The burden of violent physical abuse or extreme cruelty, they say.

[00:03:38] Speaker 00:
Well, the burden isn't violent physical abuse, is it? No. So, I've got two questions on that point. One is, that's only one of the requirements for VOA. Right. And we just don't know whether or not your client would succeed under the other requirements.

[00:03:56] Speaker 00:
Under the other requirements, because the Board never reached them.

[00:03:59] Speaker 03:
Exactly our position.

[00:04:00] Speaker 00:
So, what you want us to do is send it back for reconsideration, not say that your client is entitled to relief.

[00:04:08] Speaker 03:
That's right.

[00:04:09] Speaker 00:
And that leads to my next question. The statute says, was battered.

[00:04:14] Speaker 00:
And a lot of the briefing focuses on whether somebody was the subject of a battery. Do they mean the same thing?

[00:04:25] Speaker 03:
I think so.

[00:04:26] Speaker 00:
Well, let me see. I'm not sure that you need to make this argument, but let me tell you what troubles me in trying to read this. We all know that, particularly from having dealt with categorical cases all the time, that a battery can be committed by an unwelcome offensive touching, including, you know, a slight shove or a touch. Is that kind of battery enough to qualify under VAWA, or is there is a slightly higher burden.

[00:04:57] Speaker 00:
I hear there's injuries, and I'm not sure it makes a difference, but I'm interested in your view about the statute.

[00:05:03] Speaker 03:
I understand. I mean, as I read this court's both precedent and unpublished decisions, I do see that there's sort of a distinction. You know, there was the one case where the gentleman was kind of bopped on the head, I don't know, and his glasses fell off or his glasses broke.

[00:05:20] Speaker 03:
But I think the bottom line, Your Honor, and I'm not really in a position to answer that, I think the agency is, is that we're looking at the totality of the circumstances.

[00:05:29] Speaker 03:
So there might be offensive touching that's not sufficient, but in the context of the entire relationship, perhaps it is a part of the battery.

[00:05:38] Speaker 00:
I'm also interested in your argument about, I guess, what I would call ordinary cancellation of removal.

[00:05:45] Speaker 00:
the regular basis for doing so. Tell me why you think the agency erred in concluding that your client hadn't established the requisite hardship to the qualifying relatives.

[00:05:56] Speaker 03:
Well, I think the agency correctly articulated that parental child separation is a common or ordinary result of deportation. Where it's different here is that neither the IJ or the BIA engaged with the core fact that the separation between petitioner and his two children would be permanent and complete. And in fact, you know, I think this is sort of where it bleeds into the battery in extreme cruelty. It's not ordinary in the sense that that permanent and complete separation is a result of the wife's coercive control and using the children as an instrument of punishment or control over the petitioner.

[00:06:42] Speaker 03:
Now, I will also say, Your Honor, that You know, this court has time and again said hardship to the children, failure to consider hardship to the children can be reversible error. But I think that there's a case that's very analogous to what the agency did here. In this court's case, Santana Figueroa v. INS, the board considered that the petitioner in that, that the applicant in that case would suffer, they acknowledged he will suffer economic detriment if he is returned to Mexico.

[00:07:14] Speaker 03:
But this court said, no, what he will suffer is abject poverty, and they failed to consider that. And I think that's very analogous to, oh, there's separation from the children, that's a common result, versus, no, they may never see their father again because of this relationship and the wife's control over the children.

[00:07:39] Speaker 03:
So I'll go back to...

[00:07:44] Speaker 03:
You know, our position is that the board failed entirely to address the extreme cruelty prong. I mean, these things do have to be evaluated together. There were punctuations of physical violence, and there was injury.

[00:07:56] Speaker 00:
Does that matter if we conclude that the board erred on the battered prong?

[00:08:02] Speaker 03:
Well, I think that the absolute absence of analysis of the extreme cruelty prong is the most troubling to me.

[00:08:10] Speaker 00:
Well, but I guess I want to ask the same question again. Let's assume we agree with you that the board erred on considering the battered prong and we send it back. For all we know, the next time through, the board will make a complete analysis of the other prong. So I'm just not sure why we need to analyze it ourselves in advance of a board decision.

[00:08:33] Speaker 03:
I mean, if you agree that there was an error in the battery prong and you agree to remand, then I don't think we have to go into extreme cruelty. I think that we have to talk about the absence of the extreme cruelty analysis.

[00:08:49] Speaker 00:
Well, I mean, I would like the board to have specific... Of course, you'd like us to tell them to treat you more kindly on remand, but I'm not sure that's our job.

[00:08:59] Speaker 03:
No, I don't think that they need to treat us more kindly. I think they simply need to articulate the standard and evaluate the facts in the record and apply those facts to the standard and explain their conclusions, which they did not do.

[00:09:12] Speaker 01:
If we remand on the basis that the facts in the record compel conclusion that your client was subject to battery, can you tell me what it is that you think needs, what further analysis needs to occur, either by our court in a decision or by The board on remand? I think I misunderstood your question, Your Honor. If we find that the facts in the record here compel the conclusion that your client was battered, then what more analysis do we need to undertake in our decision, or does the agency need to do on remand, in your view?

[00:09:52] Speaker 03:
I don't think that you have to go further than that. I think that that meets the threshold standard of being a victim of battery.

[00:09:58] Speaker 00:
And then they have to turn to the other elements of VAWA relief. Right. And they may as well say, you don't qualify for one of those. Right. And that would be true.

[00:10:06] Speaker 01:
So are you talking about the good moral character, not being inadmissible for certain specified reasons, and extreme hardship? Are those the other elements?

[00:10:13] Speaker 03:
I think it's really the extreme hardship that was missing. I mean, the immigration judge never touched on that. The board passed on that.

[00:10:21] Speaker 03:
Sorry, I'm not remembering if he made a good moral character determination. It's implicit because he said he qualified for both of these forms of relief.

[00:10:32] Speaker 01:
I don't read the decision as punting on those other elements and only finding that there was a failure to satisfy the battery or extreme cruelty. I find that I at least read the decision, and perhaps your friend on the other side can speak to this, with respect to their interpretation, but I read the decision as really turning entirely on the issue of the battery.

[00:10:58] Speaker 03:
I do too, but I do think, to be fair, that there is no discussion of just the bare extreme hardship discussion.

[00:11:08] Speaker 00:
Wouldn't the analysis of the other factors be exactly the same whether you qualified under the battery or extreme hardship? Exceptional yes, right the board would still have to go on to address these three other factors and so We'd be exactly in the same situation right if the board had if we said the board should have found exceptional, right?

[00:11:33] Speaker 03:
Okay, I Think that that's all that I have for now pass it over to okay.

[00:11:42] Speaker 01:
We'll reserve the balance of your time for rebuttal. Thank you Mr.. Nardi

[00:11:53] Speaker 04:
Morning, Your Honors. May it please the court. Anthony Nardi on behalf of the Attorney General. I did just word out, Your Honor, during my friend's argument, the camera zoomed in on the podium, so I'm no longer able to see my time.

[00:12:04] Speaker 04:
But the timer, what? Oh, perfect. Thank you. And so just moving on.

[00:12:13] Speaker 04:
First, I wanted to turn to the post-briefing developments in this case, particularly with respect to this court's decision in Gonzalez-Larez, where the court cited to Wilkinson And the Third Circuit's decision on remand from Wilkinson found that the appropriate standard of review for exceptional and extreme unusual hardship is for substantial evidence.

[00:12:32] Speaker 02:
Excuse me, counsel. The standard of review for legal error, that is, whether the correct analysis was done, is different, is it not?

[00:12:47] Speaker 04:
Correct, Your Honor. The standard of review for a legal error would be de novo, right? My point is that when reviewing battery and extreme cruelty under the VAWA statute, our belief, because of the analysis of Gonzalez-Varez, looking at a mixed question of fact and law, wherein the factual elements predominate over the legal ones.

[00:13:04] Speaker 02:
Well, counsel, the issue here, as I see it, is whether the agency was legally incorrect in requiring physical harm and requiring present-day battery. And those kinds of questions are purely legal questions, are they not?

[00:13:29] Speaker 04:
Your Honor, no. I think in our view that applying the substantial evidence standard review to the fact finding, there is some deference owed to the agency's weighing of the facts based on, this is the U.S. Bank analysis, the Supreme Court's laid out looking at there is deference owed to the agency because the IJ is physically present, well, not always physically present, but gets firsthand experience with the testimony. Yes, there is some legal element. Because it is a mixed question, obviously there is a legal analysis.

[00:14:00] Speaker 02:
No, I'm asking, I think we're talking past each other. The question of whether battery has to be present tense or can be past tense is a legal question.

[00:14:13] Speaker 02:
apart from when it occurred when it occurred is a factual question but what the requirement is for when it occurred is a legal question and similarly for violence or physical the extent of physical injury if it has to be present or it doesn't that seems like a legal question and then factually what happened is separate so I think we're kind of talking past each other but it seems to me that what what the appellant is arguing is that there were legal errors.

[00:14:49] Speaker 04:
Your Honor, I think with respect to turning first to the battery prong, because this is a disjunctive analysis, I think all the facts that the agency relied on were about the two instances of physical harm, both in the past. Their first, when Pichon was slapped three times in the face, and the second where he was pushed, his shirt was ripped and his back was scratched.

[00:15:08] Speaker 00:
Okay, and your contention...

[00:15:11] Speaker 00:
is that that doesn't constitute battery, right? Exactly right. And isn't that illegal? Those facts are undisputed. Isn't the question of whether those facts constitute battery a legal question?

[00:15:27] Speaker 04:
No, Your Honor.

[00:15:28] Speaker 00:
Well, you keep saying no, but we've reviewed it any number of times in the past, and then it seems to me the statute means nothing. I understand your argument as to exceptional circumstances.

[00:15:41] Speaker 00:
what's exceptional is in the eye of the beholder, and that may well be a discretionary decision by the agency. But as to whether someone was battered, it's a question of taking the facts as found by the agency and applying the legal standard of what battered is. And under your view, if somebody were beaten to a pulp and the agency said, we don't think that's battery, you would have to say we have no evidence jurisdiction whatsoever to review that finding?

[00:16:15] Speaker 04:
No, Your Honor. So to be clear, and to answer the question you asked my friend on the other side earlier, we don't think battery or battered within the meaning of the statute maps onto the state law or federal law definition of battery.

[00:16:27] Speaker 00:
No, I understand that what legal standard we apply to it, you're perfectly free to argue. You're free to argue anything, but I have great difficulty understanding an argument that whatever standard we would apply is irrelevant because we just can't review the agency's determination that this petitioner wasn't battered, was battered.

[00:16:51] Speaker 04:
But again, Your Honor, I think similar to how this court analyzes exceptional, extreme, and unusual hardships, The court has to – because of the jurisdictional bar reviewing of discretionary facts, the court can't decide what fact was or was not found. However, this court is free.

[00:17:06] Speaker 01:
I think here the difference is there's agreement about what the facts are. I don't think those are in dispute. I heard you agree with Judge Hurwitz when he stated the facts. Those are the facts. So now I think what you're arguing for is – really just a heightened injury requirement. You think that there should be a different standard, but our case law, and Hernandez in particular, makes clear that any act of physical abuse constitutes battery. And here the IJ found that the petitioner was subject to physical abuse.

[00:17:40] Speaker 01:
So if you want to argue that there should be a different legal standard, I think that that is essentially where you're going. But the facts are not in dispute, and we have a case that very clearly says that any physical abuse is enough to establish battery.

[00:17:54] Speaker 04:
I want to answer that in two parts. First, with respect to the legal standard itself. We don't disagree. We think within a mixed question of fact and law, there is both factual elements and legal analysis.

[00:18:06] Speaker 00:
Okay, then we can review if there's no dispute about the facts, correct?

[00:18:11] Speaker 04:
Correct. I think the way other courts have analogized this, there's a stack of bricks, which are the facts, and you're measuring them up against a signpost, which is the legal standard. We don't think the court gets to review what the facts are as found, but we think the court gets to review.

[00:18:25] Speaker 02:
We're not, we don't need to, we don't need to because they're agreed upon. So then why isn't Hernandez controlling?

[00:18:34] Speaker 04:
With respect to Hernandez, I think first off, to be clear, Hernandez itself is not a case about battery. As the court there noted at the time, the statute required the harm to occur within the United States, but it was clear that the harm had not occurred in the United States. Now, Also, to be clear, the harm there was the spouse had broken a chair over a petitioner's back, and the court said this clearly meets the standard of battery. We agree. However, the remainder of the analysis in Hernandez is particularly looking at the distinction between what types of acts can constitute battery and what types of acts can constitute extreme cruelty.

[00:19:08] Speaker 04:
The court there says it's that physical touch line that distinguishes between battery and extreme cruelty. However, I think looking at the past 20 years of courts citing to and applying Hernandez, there's numerous examples of this court, and I think Petitioner, my friend on the other side, cites to one of them, where citing to Hernandez, there is clearly an instance of a physical touching that's in G. Gang Wang, where, again, Petitioner starts... Those are unsightable dispositions.

[00:19:39] Speaker 00:
They're not only mem dispositions, but we have a rule... that says if amendment disposition was issued before January 1st, 2007, it is unsightable. Were you aware of that rule?

[00:19:53] Speaker 00:
Your Honor, we're not citing them. Were you aware of that rule?

[00:19:56] Speaker 00:
I am, yes, Your Honor. So how can you cite them?

[00:20:00] Speaker 04:
Your Honor, we're not citing them for their... You cited them.

[00:20:04] Speaker 00:
I'm not asking for what purpose you cited them. Our rule says those decisions are, I'm quoting now, unsightable. You cited them. Didn't you violate the rule?

[00:20:17] Speaker 04:
Your Honor, then I apologize. Again, our position is simply to note that there is this long history, and I agree they are all unpublished decisions. There are no way binding on the panel today.

[00:20:25] Speaker 01:
Do you have any precedential authorities for your proposition that two incidents of minor physical violence over the course of even years are not sufficient to demonstrate battery? Because I agree with Judge Hurwitz that you've cited only these two unpublished memorandum in violation of our rule. for a proposition that I can't find any precedential authorities for. Do you have any?

[00:20:47] Speaker 04:
Your Honor, no, I'm unaware of any published decision of this court finding no battery in one of these valid cases.

[00:20:55] Speaker 00:
Even an unsightable memorandum, even a sightable memorandum disposition, because you can cite memorandum dispositions to us published after that date. We may not have to give them precedential value, but we can regard them for whatever persuasive value you have. So let me expand Judge Desai's question. Do you even have a memorandum disposition that supports your position?

[00:21:19] Speaker 04:
No, Your Honor. To my knowledge, every case in which the court has reviewed VAWA battery analysis of the VAWA cancellation that finds battery was published. Those are the two decisions in Lopez-Guerrero and Hernandez.

[00:21:31] Speaker 01:
And doesn't Lopez actually refute the very notion of a heightened injury requirement that you're arguing for here? We've rejected the argument that you are making here, that somehow there is a heightened injury requirement.

[00:21:46] Speaker 04:
Your Honor, I agree. Lopez does say that, yes, there is. But again, the harm at issue in Lopez is the petitioner's spouse drunkenly beating their two young children multiple times a week, leaving welts. It seems in every case that is unpublished in this court, looking at the battery analysis, there are instances where this court has found that even physical harm done upon the petitioner is not sufficient to rise to the level of battery. And I think these two different sets of cases look at, there clearly is a line where some harm does rise to the level of battery, another harm does not rise to the level of battery.

[00:22:19] Speaker 04:
And in all of these unpublished decisions, the line has not been merely physical touching. I think that's the distinguishing factor. But to answer your question directly, Your Honors, no, I'm unaware of any published case where this court has held that type of harm does not rise to the level of battery.

[00:22:32] Speaker 01:
Okay, so can you answer the question that I asked your friend on the other side, which is assuming that we find the facts in the record compel a conclusion that petitioner satisfied the battery requirement. What is the appropriate remedy?

[00:22:49] Speaker 04:
Your Honor, I think it would help me to be remanded back to the agency. I would agree with Your Honors, the premise of your question, that yes, the IJ seemed to agree that all of the other elements of the claim were met. However, I think that the board would still have the opportunity to review those findings on appeal, and particularly with respect to the discretionary element the board would review that de novo. So I think there is still meaningful analysis for the agency to conduct, even if the court finds that the battery element isn't met.

[00:23:13] Speaker 00:
Let me ask a question about that. Your position is that the IJ did address the other elements?

[00:23:21] Speaker 04:
Your Honor, I don't think the IJ did a meaningful analysis of them. However, based off the IJ's discussion and limiting the scope of testimony, saying that, yes, the only need to articulate facts with respect to battering extreme cruelty for VAWA and then for exceptional and extreme and unusual hardship for normal cancellation. It seems that the IJ was indicated that he would have granted if those two legal thresholds had met, yes.

[00:23:43] Speaker 00:
See, the reason I ask the question is it might, if we agree with your friend's position, it might affect our directions on remand. In other words, if we think the IJ already addressed those issues, then we'd remand for the BIA to consider which it plainly did not, those elements are the IJ's decision. If we think the IJ didn't direct them, the BIA, we probably have to say, you should go back to the IJ to address the other elements. So that's why I'm, your position is that the IJ actually did address those other elements and ruled against the petitioner?

[00:24:23] Speaker 04:
Your Honor, our position is that the board never had the opportunity to address those things because the IJ ultimately denied on these two discrete grounds. However, I'm merely responding to Your Honor's questions about how the IJ's decision reads. I think it's undeniable that because of the types of questions that the IJ was asking, and particularly the colloquy with petitioner's counsel, that her testimony really only needed to focus on these two discrete legal issues. I think it's clear that the IJ was going to grant, and he actually made some statements on the record saying that Discretion is not an issue in this case.

[00:24:55] Speaker 04:
I believe you said good moral character is not an issue in this case.

[00:24:57] Speaker 00:
Yeah, so I guess it's enough for your purposes that if we remand somebody at the agency level, we'll have to address these other three issues, and we shouldn't worry about whether it's the IJ or the board.

[00:25:11] Speaker 04:
Correct. And to be clear, at the end of the day, Yes, while the IJ may have addressed these other elements of both the VAWA and cancellation claim, the board clearly did not. The board rested only on the two dispositive grounds that the IJ cited. If the court has no further questions, just briefly returning to the standard review, we do think the court should take this opportunity, look into the same legal framework this court analyzed in Gonzalez-Juarez, should apply the substantial evidence standard to review of battery and extreme cruelty for the questions.

[00:25:46] Speaker 04:
Thank you, Your Honors.

[00:25:48] Speaker 01:
Thank you very much, Counsel.

[00:25:53] Speaker 03:
Your Honors, I appreciate you clarifying and sort of narrowing the issues. I think that if the remand is simply on battery, then that is sufficient. I do defer to the court in terms of the court's interpretation of the IJ's instructions to simply focus on battery extreme cruelty and exceptional and extremely unusual hardship.

[00:26:18] Speaker 00:
But... Well, let me ask you a question on the battery front because it seems to me there are two possibilities here.

[00:26:28] Speaker 00:
One is that we say You applied the wrong legal standard in determining whether there was battery and sending it back so that you can apply the correct legal standard without relying on these, I think, three impermissible elements that the Board identified. Or we could say, as Judge Desai suggested, given the undisputed facts, the record compels the conclusion that there was battery and therefore you need to go back and look at the other elements of VAWA relief.

[00:26:58] Speaker 00:
I know it's one you'd rather, but I'm trying to figure out what do you think is the appropriate thing for this court to do?

[00:27:05] Speaker 03:
I mean, in light of this court's precedent, I do think that the record compels the conclusion that he was subject to battery. And, you know, it is different in kind than the cases that this court has passed on.

[00:27:19] Speaker 03:
There is actually, I mean, it's not the most egregious thing that you've ever seen. Of course, with these cases, we see a lot of horrible stuff, but there is actual physical injury. I realize it didn't require medical attention, but neither did the injury in Lopez-Birueta. It was Welts, and he had scratches. So I think that the record compels under this court's precedent that the agency determine that this is battery. But if it doesn't, then I would prefer that the records remanded for both an analysis of whether it's battery under the court's precedent and an analysis of the extreme cruelty, because I think that's there as well.

[00:27:57] Speaker 01:
Nothing else? I think there are any other questions. Thank you. Thank you, counsel.

[00:28:02] Speaker 01:
Thanks for the helpful argument in this case, which is now submitted. And we will hear argument next in U.V. ByteDance.