[00:00:00] Speaker 04:
24-9566, Bonilla Espinosa versus Bondi, and Mr. Ryan, if you would proceed.

[00:00:11] Speaker 02:
Thank you, Your Honors.

[00:00:13] Speaker 02:
It may have pleased the Court.

[00:00:14] Speaker 02:
Brendan Ryan, on behalf of the Petitioner, I would like to ask for two minutes for a bottle, if possible.

[00:00:22] Speaker 02:
Your Honors, this case concerns a 29-year-old man whom the agency found to be fully credible and who was repeatedly

[00:00:35] Speaker 02:
and imputed to him his mother's anti-police pro-human rights activism.

[00:00:41] Speaker 02:
Over the course of five years, he and his family were repeatedly harassed by police, both on the streets and in their store.

[00:00:48] Speaker 02:
He was arrested and imprisoned three separate times, despite being innocent of all charges.

[00:00:54] Speaker 02:
And during each of those detentions, he was beaten, abused, and tortured.

[00:01:00] Speaker 02:
And perhaps most importantly,

[00:01:05] Speaker 02:
in government for more than three years, and he has no idea whether they are still alive.

[00:01:10] Speaker 02:
Yet, despite these unrebutted facts, the agency denied all relief to petitioner on asylum withholding and cap.

[00:01:19] Speaker 02:
That was error for at least three reasons.

[00:01:23] Speaker 02:
First, the agency ignored material evidence supporting his asylum claim based upon political opinion.

[00:01:30] Speaker 02:
How do we know that?

[00:01:32] Speaker 01:
Council, how do we know they ignored it?

[00:01:35] Speaker 01:
Because don't we start with the presumption that they didn't?

[00:01:41] Speaker 02:
So we start with the presumption that they didn't, Your Honor, except when we see no evidence in the actual decision that they considered that evidence, it raises a really important question of whether they did.

[00:01:52] Speaker 01:
Well, how do we square that argument with our authority that says they don't have to write everything down in the decision?

[00:01:59] Speaker 02:
So I think you square that, Your Honor, with the authority from this court

[00:02:09] Speaker 02:
That is legal error.

[00:02:11] Speaker 02:
And here, Your Honor, there was very important material evidence that was not dealt with at all in either the IJ's decision or in the agency's, the board's decision on appeal.

[00:02:22] Speaker 00:
And we believe that that... What was the material evidence?

[00:02:26] Speaker 00:
He had testified that he never said anything at these meetings.

[00:02:30] Speaker 00:
He just accompanied his mother.

[00:02:32] Speaker 00:
So what is the material evidence that was disregarded?

[00:02:36] Speaker 02:
So two categories of material evidence, Your Honor.

[00:02:38] Speaker 02:
The first is evidence that directly ties the police's actions to both his, but I think most importantly, Your Honor, his mother's political activism, including evidence.

[00:02:53] Speaker 02:
I'll give you a couple of examples.

[00:03:04] Speaker 02:
asked both him and his mother and his family at their store where his mother displayed, I think quite proudly, her FASFAD diploma.

[00:03:13] Speaker 02:
He explained how his mother pushed back against police abuse, telling officers to behave, to respect people's rights, and I think also went into the community and actually defended members of the community when the police were overreaching.

[00:03:26] Speaker 02:
And I think

[00:03:31] Speaker 02:
in September of 2021, that was his second arrest, his mother came to the scene and advocated for him and told the police to respect his rights and the police ignored her and then arrested him and told him that he was lucky that she was there otherwise they would have no idea where he was.

[00:03:49] Speaker 02:
And so we think that that shows quite persuasively that the police were aware of who his mother was, that she was a community activist, that she defended people in the

[00:04:05] Speaker 02:
but also to him.

[00:04:07] Speaker 01:
But there was other evidence as well, right?

[00:04:11] Speaker 01:
Other evidence that would cut the other way and suggest that he was treated this way because of suspected gang membership and that many people in the community were treated the same way as him, which would cut against the idea that this was based on his mother's activism.

[00:04:30] Speaker 02:
There was other evidence, Your Honor.

[00:04:34] Speaker 02:
That is correct.

[00:04:39] Speaker 02:
the IJ and the agency had considered the evidence that I just articulated and also the country conditions.

[00:04:46] Speaker 02:
But that gets us back.

[00:04:47] Speaker 02:
How do we know they didn't?

[00:04:50] Speaker 02:
Because they said nothing about it, Your Honor.

[00:04:52] Speaker 02:
And we think this was really important evidence for the agency to consider.

[00:04:56] Speaker 02:
And I want to just touch briefly on the country conditions evidence that shows that what the police are doing here, it's all pretextual.

[00:05:05] Speaker 02:
And we think that's really important, too.

[00:05:13] Speaker 02:
somebody, what they will do is they will charge somebody with something called illicit association.

[00:05:18] Speaker 02:
And it's really just a pretext to harass and detain whomever they want.

[00:05:22] Speaker 02:
And we think that that is exactly what happened here.

[00:05:25] Speaker 02:
He testified both in his affidavit, and I think at the hearing as well, but that's what the police do.

[00:05:31] Speaker 02:
They charge you with illicit association whenever, and I think you use the words, whenever they have nothing else to charge you with.

[00:05:38] Speaker 02:
And we think that that is.

[00:05:40] Speaker 02:
That was very, no, I'm sorry.

[00:05:42] Speaker 00:
I didn't mean to talk over you.

[00:05:46] Speaker 02:
We think that that was something that the agency needed to consider.

[00:05:50] Speaker 02:
If the agency was going to take the position that the only reason why he was being targeted was because they suspected him of gang affiliation, they needed to deal with the countervailing evidence which suggested that this was all just a

[00:06:09] Speaker 02:
and requires remand.

[00:06:11] Speaker 00:
The problem that I have struggled with, Mr. Ryan, and if you could address it, both with regard to the perceived membership in a gang, and on your first point, the failure to consider his political opinion or political participation in FISPAD, is not only did he fail to timely file a notice of appeal, that even if you were to entertain the notice of appeal,

[00:06:37] Speaker 00:
even though it had not been timely filed, my recollection is that he never made any argument, any of the two arguments that you started with.

[00:06:47] Speaker 00:
He never argued that there was a failure to consider mixed motive, that perception that he was tied to his mother's integral role in FSPAD or the perceived gang membership.

[00:06:59] Speaker 00:
The IJ determined that, but he never included that, not only in his, not only if you,

[00:07:06] Speaker 00:
I mean, even if you disregard the timeliness, it's not in the Notice of Appeal.

[00:07:10] Speaker 00:
Am I incorrect about that?

[00:07:12] Speaker 02:
So his Notice of Appeal, Your Honor, I think the Notice of Appeal itself was timely.

[00:07:16] Speaker 02:
I think what happened was he tried to file a brief.

[00:07:18] Speaker 02:
The brief.

[00:07:19] Speaker 02:
Sorry.

[00:07:20] Speaker 00:
Yeah.

[00:07:20] Speaker 02:
Sorry.

[00:07:20] Speaker 02:
You're right.

[00:07:22] Speaker 00:
He never included the substance of the argument to the BIA, so they never were able to consider it.

[00:07:27] Speaker 00:
Right.

[00:07:28] Speaker 02:
Yeah.

[00:07:29] Speaker 02:
As I understand it, Your Honor, he filed that brief late in the

[00:07:42] Speaker 02:
But relatedly, one of the things that he said in his notice of appeal was that he didn't believe that the that the IJ had taken his evidence serious.

[00:07:51] Speaker 02:
And then he cited a couple different pieces of evidence that he thought were really important, including the fact that he had been arrested multiple times for, I think, what he said, no, no legal reason.

[00:08:01] Speaker 02:
And also,

[00:08:07] Speaker 02:
disappeared for the last three years.

[00:08:09] Speaker 04:
It just seems to me that you're making some interesting arguments.

[00:08:15] Speaker 04:
and saying that the BIA, in particular, didn't address these.

[00:08:20] Speaker 04:
And boy, that puts a burden on the BIA to take that one paragraph and say, oh, he's arguing this protected activity, this protected status, et cetera, and you didn't pay attention to it.

[00:08:32] Speaker 04:
And the BIA's got to read minds and be very creative in deciding what sort of issues might be encompassed by that notice of appeal.

[00:08:42] Speaker 04:
That's an impossible burden for the BIA, isn't it?

[00:08:47] Speaker 02:
I don't think it is, Your Honor.

[00:08:49] Speaker 02:
And I think the fact that the BIA then took the time to actually write out a decision, a short one, dictates or, you know, shows that they understood what he was saying, that he was saying that there was evidence taken.

[00:09:05] Speaker 04:
Well, I think...

[00:09:10] Speaker 04:
Yeah.

[00:09:11] Speaker 04:
We have cases saying if you want to say it's preserved because of what is addressed in the BIA opinion, the BIA opinion does not satisfy the requirements for preservation by the BIA opinion.

[00:09:24] Speaker 04:
You agree on that, don't you?

[00:09:27] Speaker 02:
I do, Your Honor.

[00:09:29] Speaker 02:
Yeah.

[00:09:29] Speaker 02:
Here's, I think that there is.

[00:09:33] Speaker 04:
You have some interesting arguments.

[00:09:36] Speaker 04:
If they've been made to the BIA, they'd be things we have to deal with.

[00:09:42] Speaker 04:
But to expect the agency to respond to the detailed, well-developed arguments in your brief in response to a one-paragraph notice of appeal is just

[00:10:01] Speaker 04:
Asking a lot of the agency.

[00:10:03] Speaker 04:
I mean, that.

[00:10:06] Speaker 02:
Yeah, well, I will note one other thing, your honor.

[00:10:09] Speaker 02:
The agency could have accepted his actual late filed appeal.

[00:10:14] Speaker 04:
And if we had to.

[00:10:16] Speaker 04:
Yeah, they could have to.

[00:10:18] Speaker 02:
But they could have.

[00:10:19] Speaker 02:
If we had that in the record, we could have taken a more serious look at whether he had exhausted those issues.

[00:10:27] Speaker 02:
I will note.

[00:10:34] Speaker 02:
CAD and due process.

[00:10:37] Speaker 02:
And I think there's a well articulated strand of law that says that when you're dealing with a pro se detained prisoner, we literally construe the things that they file.

[00:10:51] Speaker 02:
And I think that that also supports the reason why exhaustion has been met here.

[00:10:57] Speaker 02:
And so for those reasons, we think that the court ought to consider the arguments that we're making here today.

[00:11:03] Speaker 02:
I do want to cover a couple more issues, if I may, Ron.

[00:11:08] Speaker 02:
One of them, I think, really importantly being the fact that we think that the agency committed legal error when it categorically rejected the particular social group individuals perceived to be gang members without performing any of the analysis required by law.

[00:11:27] Speaker 04:
Well, let me ask about that.

[00:11:29] Speaker 04:
I want to hear your third also.

[00:11:30] Speaker 04:
But that's the one that I thought was particularly difficult to see how the DIA was going to address that and explain its view.

[00:11:41] Speaker 04:
Because you just don't see that in the notice of appeal.

[00:11:44] Speaker 04:
And I'm not sure you'd see that even in the proceedings before the IJ.

[00:11:53] Speaker 02:
Go ahead.

[00:11:54] Speaker 02:
Well, so the issue, Your Honor, there is that when the IJ can

[00:12:14] Speaker 02:
This court's holding an SBIA.

[00:12:15] Speaker 04:
It may be totally wrong, but you have to ask the BIA and tell them.

[00:12:20] Speaker 04:
And then they might well have a good reason for rejecting that as a classification that's entitled to protection.

[00:12:32] Speaker 04:
But to it, well, go ahead and get your brain out of the time, and I shouldn't be asking too many questions.

[00:12:39] Speaker 04:
What's your third issue?

[00:12:41] Speaker 02:
Well, so I think you all understand that issue, and I think

[00:12:51] Speaker 02:
and also apply incorrect legal standards in connection with that.

[00:12:55] Speaker 02:
I'll just note two related points.

[00:12:59] Speaker 02:
One, there was a mischaracterization and downplaying of the actual evidence of torture that the petitioner provided.

[00:13:06] Speaker 02:
We think, in the opinion that the IJA issued and was affirmed by the agency, you can see an escalation in treatment, in the type of treatment he was receiving, in the evidence that he provided with regard to past tort

[00:13:32] Speaker 01:
So what was, I mean, as I read his testimony before the IJ, I felt like she was trying to get out of him details of what was done to him and that she received in return

[00:13:50] Speaker 01:
answers that were vague and not necessarily responsive.

[00:13:54] Speaker 01:
It was inhumane.

[00:13:55] Speaker 01:
They tortured me.

[00:13:56] Speaker 01:
I mean, what did he testify to?

[00:14:00] Speaker 01:
What acts of torture did he testify to?

[00:14:04] Speaker 02:
So, yeah, so a few examples, Your Honor.

[00:14:06] Speaker 02:
One, he talked about how he was beaten up several times and treated like an animal.

[00:14:12] Speaker 01:
But that's vague.

[00:14:14] Speaker 01:
They beat me up and treated me like an animal.

[00:14:17] Speaker 01:
I think I'm

[00:14:19] Speaker 01:
uh, interested in testimony that would be more to the effect of they repeatedly punched me in the face and blacked both of my eyes and knocked two of my teeth out.

[00:14:30] Speaker 02:
Uh, yeah.

[00:14:31] Speaker 01:
And I'm not, I'm not suggesting that's the proper level of severity, but that would be more of the level of detail, wouldn't it?

[00:14:38] Speaker 02:
Yes.

[00:14:39] Speaker 02:
And he, well, he did provide testimony about

[00:15:05] Speaker 01:
So let me ask you a quick question about that, if Judge Harts will indulge me.

[00:15:11] Speaker 01:
Assume that the prior instances of alleged torture were too vague for us to rely on.

[00:15:24] Speaker 01:
And we're just at the one where they caused him hearing damage.

[00:15:29] Speaker 01:
Is that one incident by itself under the case law going to be enough to establish that he was tortured and entitled to relief?

[00:15:38] Speaker 02:
I think it could be, Your Honor, enough to create a reputable presumption of future torture because of the experience that he

[00:15:57] Speaker 02:
we think that that's sufficient.

[00:15:59] Speaker 01:
Do you have an analogous case that I could look at?

[00:16:04] Speaker 02:
Your honor, I don't have one off the top of my head, but we'd be happy to provide one to the court.

[00:16:09] Speaker 02:
Okay.

[00:16:10] Speaker 02:
If your honors would like.

[00:16:13] Speaker 01:
I appreciate it.

[00:16:13] Speaker 01:
Sorry for running over.

[00:16:15] Speaker 04:
Thank you counsel.

[00:16:18] Speaker 04:
Mr. Kelch.

[00:16:23] Speaker 03:
Good morning.

[00:16:24] Speaker 03:
May I please the court?

[00:16:26] Speaker 03:
My name is Gregory Pelch, representing the United States Attorney General.

[00:16:30] Speaker 03:
I'll begin by apologizing for any echo you may be hearing.

[00:16:34] Speaker 03:
We have several hearings happening this morning, and unfortunately, I could not get one of the preferred rooms.

[00:16:40] Speaker 04:
We're hearing you fine right now.

[00:16:41] Speaker 03:
Oh, thank you.

[00:16:42] Speaker 03:
That's good to know.

[00:16:43] Speaker 03:
Also, I do want to remind the court that there is a companion case that's currently before this court, number 259552, BIA's denial of a motion to reopen.

[00:16:57] Speaker 03:
And so some of these due process arguments you will be hearing again in that future case.

[00:17:06] Speaker 03:
I think I want to begin with a couple of points.

[00:17:08] Speaker 03:
And the first I want to make is that

[00:17:10] Speaker 03:
Immigration court hearings are like other court hearings.

[00:17:14] Speaker 03:
They're adversarial in nature.

[00:17:16] Speaker 03:
And remember that the Department of Homeland Security also has a right of appeal.

[00:17:20] Speaker 03:
It's not the role of an impartial judge to be creating legal theories for the alien, for the unrepresented alien.

[00:17:29] Speaker 03:
The judge's role, which judges will typically do, is to help the alien, the pro se alien, present his own claim.

[00:17:40] Speaker 03:
The claims that he presented before the immigration judge were first political opinion persecution.

[00:17:48] Speaker 03:
Well, the problem with his political opinion argument is that his problems with the police began before he and his mother joined FSPAP.

[00:17:56] Speaker 03:
He testified that he started having problems with the police in 2017.

[00:18:00] Speaker 03:
They would stop him asking for information.

[00:18:03] Speaker 03:
They would beat him sometimes.

[00:18:05] Speaker 03:
One point, they arrested him and held him for nine months.

[00:18:09] Speaker 03:
before he was exonerated in court.

[00:18:11] Speaker 03:
It was then that he and his mother joined Fedspad.

[00:18:15] Speaker 03:
So he had these problems before he became politically active.

[00:18:18] Speaker 03:
Stands to reason that this political activism did not have motivated his mistreatment.

[00:18:24] Speaker 00:
Well, his argument, I would assume his rejoinder would be

[00:18:29] Speaker 00:
Well, that's exactly what he means in referring to a mixed motive.

[00:18:33] Speaker 00:
He's arguing that there was not only a persecution and potentially torture based on his affiliation with FISPAD, but also because of his perceived gang membership, which preceded his involvement with FISPAD, accompanying his mother.

[00:18:54] Speaker 03:
Well, those are two separate grounds, so let me take them each in turn.

[00:18:59] Speaker 03:
First with political opinion.

[00:19:01] Speaker 03:
The immigration judge asked him in court, how did you express your political opinions?

[00:19:07] Speaker 03:
And his testimony referred back to his participation in FezPAT, which again began in 2018 after his arrest and detention for nine months in 2017.

[00:19:19] Speaker 03:
Then that brings us next to political social group.

[00:19:24] Speaker 03:
Fine, yes, Judge, back around.

[00:19:27] Speaker 03:
So that brings us next to a particular social group.

[00:19:30] Speaker 03:
And as this court is aware, there are a million different ways for one to craft one's particular social group.

[00:19:37] Speaker 03:
And how one crafts that group does matter.

[00:19:40] Speaker 03:
I think what the immigration judge did here is she took the claim as a whole.

[00:19:45] Speaker 03:
She took his claim.

[00:19:46] Speaker 03:
What was the gist of his testimony before the court?

[00:19:50] Speaker 03:
And the gist of his testimony was that he lived in an area, an impoverished area, where you have gang crime on the one hand, gang control on the one hand, and an overzealous, heavy-handed police force on the other.

[00:20:02] Speaker 03:
And he was asking if he could get asylum for that backpack.

[00:20:06] Speaker 03:
The problem was that he testified repeatedly, over and over again, that the police treat everyone in his neighborhood this way.

[00:20:13] Speaker 03:
He wasn't being singled out.

[00:20:15] Speaker 03:
This is just what they do.

[00:20:17] Speaker 03:
They stop people on the streets and ask them for information.

[00:20:20] Speaker 03:
And when innocent people don't have the information, then they become beaten and sometimes arrested and charged with collaborating with criminals.

[00:20:28] Speaker 03:
And unfortunately, it is my job to remind the court that asylum isn't a catch-all remedy for the hardships that people outside the United States are experiencing.

[00:20:41] Speaker 03:
It's a very limited and specific remedy.

[00:20:44] Speaker 03:
It has to be taught to have a nexus

[00:20:46] Speaker 03:
to a protected ground like a particular social group.

[00:20:50] Speaker 00:
Mr. Kelch, let me probe that just a little bit.

[00:20:54] Speaker 00:
You argue, as I understand it, that it didn't satisfy the ground for a particular social group because the characteristic was so widespread, the government perceived everyone to

[00:21:10] Speaker 00:
as gang members.

[00:21:13] Speaker 00:
But that's not what the IJ said.

[00:21:15] Speaker 00:
The IJ said that not because it was too widespread, it was because perceived gang membership, ipso facto, cannot be a particularized social group, period.

[00:21:30] Speaker 00:
Right?

[00:21:32] Speaker 03:
Well, so first of all, what the judge said is technically correct.

[00:21:35] Speaker 03:
It's not unprotected ground.

[00:21:37] Speaker 03:
Technical grounds are race, religion, nationality, membership in a particular social group.

[00:21:40] Speaker 00:
Well, yeah, he was saying that it cannot qualify as I remember it.

[00:21:45] Speaker 00:
It cannot qualify as a particularized social group, perceived gang membership.

[00:21:50] Speaker 00:
Period.

[00:21:52] Speaker 00:
Presumably, because if you're a perceived gang membership, that's good, not bad.

[00:21:57] Speaker 00:
But obviously there are some circuits that have said to the contrary, that if a foreign government uses pretext to improperly characterize with a broad brush a whole wide group of people as gang members, that that could be a particularized social group.

[00:22:20] Speaker 00:
But the IJ decided that Sue Espante,

[00:22:23] Speaker 00:
Mr. Bonilla hadn't challenged that, but she did decide that, right?

[00:22:29] Speaker 03:
Well, I don't know that she did.

[00:22:30] Speaker 03:
So I'm looking at the judge's decision on pages 20 to 29 of the administrative record.

[00:22:36] Speaker 03:
And on page 28, she says, first, the court considers on account of a political opinion.

[00:22:42] Speaker 03:
And then there's much discussion about political opinion.

[00:22:44] Speaker 03:
Then we come to the next page where we have this sentence that you note.

[00:22:49] Speaker 03:
And then she ends that sentence after saying it's on a protective ground.

[00:22:54] Speaker 03:
This does not support a finding that anything he suffered was on account of any political opinion or imputed political opinion.

[00:23:02] Speaker 03:
And then she says, next, the court considers membership in a particular social group.

[00:23:08] Speaker 03:
So I'm not quite sure what the immigration judge was getting at quite there.

[00:23:12] Speaker 03:
I will say that.

[00:23:14] Speaker 03:
But I think that if you continue reading the decision on pages 29 and 30, where she does talk about particular social group, what she's saying is that,

[00:23:23] Speaker 03:
This is how the police treated everybody in the neighborhood.

[00:23:26] Speaker 03:
He's not being singled out and targeted for any particular characteristic.

[00:23:31] Speaker 03:
The police are doing this to a very wide swath of the population that unfortunately includes his mothers and others outside of his age group and gender.

[00:23:42] Speaker 03:
And I think that's what the immigration judge was getting at.

[00:23:46] Speaker 03:
What was the claim that he was presenting to the immigration court?

[00:23:51] Speaker 03:
It wasn't an argument about pretext.

[00:23:54] Speaker 03:
He also did not define a particular social group.

[00:23:56] Speaker 03:
He did not claim imputed gang membership.

[00:23:58] Speaker 03:
His claim over and over again was that this is what they're doing to everybody.

[00:24:03] Speaker 03:
The heavy-handed police in my neighborhood do this to everybody.

[00:24:08] Speaker 03:
And what the immigration judge reasonably held was, well, that does not qualify him for asylum because it's not connected to a protected ground.

[00:24:19] Speaker 01:
And I think- Let me break in here and ask you a question.

[00:24:23] Speaker 01:
I think you've made that point.

[00:24:26] Speaker 01:
Assume for a moment he had raised his hand and said, oh, I have a social group, a particular social group judge.

[00:24:37] Speaker 01:
It's the, that they're imputing that I'm a member of a gang.

[00:24:41] Speaker 01:
And that's why I'm being singled out.

[00:24:46] Speaker 01:
And the judge says, no such thing.

[00:24:50] Speaker 01:
We don't recognize that.

[00:24:51] Speaker 01:
Thanks.

[00:24:53] Speaker 01:
You lose on that.

[00:24:54] Speaker 01:
Would the judge have been right?

[00:25:00] Speaker 03:
So are you asking about cognizability or are you asking about nexus?

[00:25:04] Speaker 03:
Like, what was the motivation for the police?

[00:25:07] Speaker 01:
I'm asking whether it's cognizable at all.

[00:25:10] Speaker 03:
OK.

[00:25:10] Speaker 03:
Because she indicated that it wasn't, right?

[00:25:17] Speaker 03:
I'm not quite sure what the immigration judge was saying there, quite frankly, because she ends it with a political opinion.

[00:25:24] Speaker 03:
I don't know if she just misspoke.

[00:25:26] Speaker 03:
She was thinking about opposition to gangs as not a political opinion.

[00:25:30] Speaker 01:
Well, it's this.

[00:25:31] Speaker 01:
It's this.

[00:25:31] Speaker 01:
Included gang membership is consistently held not to be a protected ground for purposes of asylum.

[00:25:40] Speaker 03:
Well, it's not a protected ground.

[00:25:41] Speaker 03:
I just listed them.

[00:25:42] Speaker 03:
There's five grounds.

[00:25:44] Speaker 03:
We think maybe she's referring to a particular social group, but maybe she's also referring to a political opinion.

[00:25:51] Speaker 03:
I recognize the issue is there, but when we go on in the next paragraph, now there's analysis about what motivated.

[00:26:02] Speaker 04:
Regardless of what the IJ said, does it satisfy

[00:26:09] Speaker 04:
imputed membership in a gang, does it satisfy the requirements for particular social group?

[00:26:14] Speaker 04:
Is there an immutable characteristic?

[00:26:16] Speaker 04:
Is it something you can look at the person and readily identify or somehow readily identify the people?

[00:26:23] Speaker 04:
Does it fit those requirements?

[00:26:25] Speaker 03:
Respectfully, Judge Hartz, we stand by a matter of EAG.

[00:26:29] Speaker 03:
I know it's not been well received in the Circuit Courts of Appeal, but we stand by that.

[00:26:35] Speaker 03:
Criminal gangs, criminal street gangs are not particular social groups.

[00:26:39] Speaker 04:
I'm not talking about that.

[00:26:40] Speaker 04:
I'm not talking about gangs being.

[00:26:42] Speaker 04:
It's imputed membership in a game.

[00:26:46] Speaker 04:
And is that something you can tell?

[00:26:48] Speaker 04:
How do you tell whether someone fits that description?

[00:26:53] Speaker 04:
And is that something immutable?

[00:26:56] Speaker 03:
Well, it isn't immutable.

[00:26:58] Speaker 03:
It is what?

[00:27:00] Speaker 03:
It is not immutable.

[00:27:01] Speaker 03:
Of course, someone cannot drop out of the gang.

[00:27:05] Speaker 03:
Former gang membership can be immutable because once you have that label, you'll never be able to shake it.

[00:27:12] Speaker 03:
But no, we don't think that gang membership has an immutable characteristic.

[00:27:16] Speaker 03:
On that thinking, the point I wanted to make was

[00:27:20] Speaker 03:
The BIA and many courts have recognized that taxi cab drivers are not a cognizable particular social group because your profession is not immutable.

[00:27:30] Speaker 03:
So if taxi cab drivers are not a particular social group, it stands to reason that imputed membership in a group defined as taxi cab drivers would not qualify one for asylum.

[00:27:40] Speaker 03:
And by that same thinking, we would say, well, then imputed membership

[00:27:45] Speaker 03:
in a group called criminal gangs ought not to qualify one for asylum either.

[00:27:51] Speaker 03:
But now at this point, I would bring the court back to the notice of appeal.

[00:27:55] Speaker 03:
We're having this conversation because the notice of appeal said the agency didn't take my evidence seriously.

[00:28:02] Speaker 03:
You know, I can give you my argument.

[00:28:05] Speaker 03:
I hope the court recognizes that the BIA cannot be expected to jump down these rabbit holes

[00:28:11] Speaker 03:
when all they were trying to do was just review the decision that the immigration judge gave and find that it was reasonable.

[00:28:21] Speaker 00:
Mr. Kelch, could I probe that just a bit?

[00:28:25] Speaker 00:
I'm sensitive to that argument.

[00:28:27] Speaker 00:
I think it has a great deal of appeal.

[00:28:30] Speaker 00:
I will tell you the question that I struggle with

[00:28:37] Speaker 00:
is that he didn't, as I recall, Mr. Ryan may disagree with this, and I may be wrong, that he didn't include that in the notice of appeal.

[00:28:48] Speaker 00:
I don't think he included it even in his brief that was not timely filed.

[00:28:52] Speaker 00:
And so, the BIA could very well have said, as we frequently do, well, Mr. Bonilla has waived any challenge to what the immigration judge said with regard to characterization of perceived gang membership as a particularized social group, but the BIA did not say that.

[00:29:12] Speaker 00:
The BIA echoed what the IJ said.

[00:29:15] Speaker 00:
as I recall, I could be wrong, that said that perceived gang membership is not a particularized, does not qualify as a particularized social group.

[00:29:24] Speaker 00:
And so it seems that it implicates some of our case law that says even when someone doesn't challenge something, if the adjudicator decides it, well, the adjudicator decide it rather than, so in any event, could you address that?

[00:29:43] Speaker 03:
Well, the problem that you've also held is that when you take that concept too far, what you do is you scare the agency away from saying anything in its decisions.

[00:29:53] Speaker 03:
You know, here we have a man who's a pro se alien.

[00:29:56] Speaker 03:
As Mr. Ryan noted, his English is not his first language.

[00:30:00] Speaker 03:
He's representing himself.

[00:30:01] Speaker 03:
He filed a notice of appeal.

[00:30:03] Speaker 03:
Yeah, the BIA could have written a one paragraph and said,

[00:30:07] Speaker 03:
Well, hey, this isn't specific enough and therefore we're just going to dismiss your entire petition.

[00:30:13] Speaker 03:
They made an effort.

[00:30:14] Speaker 03:
They tried to do the right thing here.

[00:30:17] Speaker 03:
They looked at the immigration judge's decision and made a review of it.

[00:30:23] Speaker 03:
But does that mean that now we can also fault them because they didn't talk about pretextual arrests?

[00:30:29] Speaker 03:
They didn't talk about different particular social groups?

[00:30:33] Speaker 03:
And today he's talking about imputed gang membership.

[00:30:36] Speaker 03:
It could have been family membership.

[00:30:39] Speaker 03:
It could have been membership in FezPad, young men in his neighborhood.

[00:30:43] Speaker 03:
You can define these groups a million different ways.

[00:30:46] Speaker 03:
It's not reasonable to expect the VIA to go down all those rabbit holes.

[00:30:52] Speaker 03:
And if I, with my 30 seconds remaining, I do want to make clear with regards to cap protection, one agency recently found he can avoid future harm by relocating to another area of El Salvador.

[00:31:04] Speaker 03:
He has to show a clear probability of torture, not just a possibility.

[00:31:09] Speaker 03:
So that was reasonable.

[00:31:10] Speaker 03:
And also, I do want to point out to the court, this was not, what he described was not rise level of torture.

[00:31:15] Speaker 03:
But even if it did, there is no presumption of future torture in cat protection law.

[00:31:20] Speaker 03:
It's only one factor of a need to consider.

[00:31:23] Speaker 03:
And with that, I will conclude.

[00:31:24] Speaker 03:
Thank you all very much.

[00:31:26] Speaker 04:
Thank you, counsel.

[00:31:28] Speaker 04:
I know you wanted to have a couple more minutes.

[00:31:31] Speaker 04:
This happens all the time.

[00:31:32] Speaker 04:
I'm sure you are aware of that.

[00:31:35] Speaker 04:
But I think we got your arguments.

[00:31:38] Speaker 02:
I understand, your honor.

[00:31:40] Speaker 02:
I appreciate that.

[00:31:41] Speaker 02:
Thank you for indulging us.

[00:31:43] Speaker 02:
I appreciate it.

[00:31:44] Speaker 04:
Thank you.

[00:31:45] Speaker 04:
Cases submitted and counsel are excused.