[00:00:00] Speaker 00:
We'll begin with the first case, which is 24-9507, Garcia-Botello versus Garland, counsel for appellant, if you would make your appearance, and then proceed.

[00:00:14] Speaker 01:
Good morning, and may it please the court.

[00:00:27] Speaker 01:
My name is Carolyn Welter and I'm here on behalf of Petitioner Javier Garcia.

[00:00:31] Speaker 01:
I would like to reserve three minutes for rebuttal.

[00:00:38] Speaker 01:
Mr. Garcia is here today because his mental disabilities, which stem from a life-altering car accident, cause him to act erratically and run afoul of the law.

[00:00:48] Speaker 01:
If removed to Mexico, where he will have no family and no treatment, Mr. Garcia will come into contact with the authorities

[00:00:56] Speaker 01:
and be tortured.

[00:00:56] Speaker 01:
That is what the evidence showed, and yet the agency reached a different conclusion by committing three crucial errors.

[00:01:05] Speaker 01:
As the court knows, a CAT applicant must show that he is first, more likely than not to be tortured, and second, that his tortures will have the represent mental culpability.

[00:01:17] Speaker 01:
The agency's first legal error, which speaks to mental culpability, is that it collapsed the disjunctive standard

[00:01:24] Speaker 01:
for specific intent and acquiescence and replaced it with its own incorrect standard.

[00:01:30] Speaker 01:
Specifically, the agency required that the entire Mexican government either specifically intend or acquiesce to Mr. Garcia's torture, which is- Well, to get to acquiescence, we have to find that you satisfied your burden on torture, right?

[00:01:44] Speaker 01:
Correct.

[00:01:45] Speaker 02:
So how have you done that here?

[00:01:50] Speaker 01:
Yes, Your Honor.

[00:01:52] Speaker 01:
Mr. Garcia presented uncontradicted, unrebuttable, credible evidence that were he to be removed to Mexico, he would have no access to medication and housing, that he would act combatively and come to the attention of authorities, and that he would then be detained or institutionalized.

[00:02:13] Speaker 01:
Despite this credible evidence, the immigration judge found that

[00:02:18] Speaker 01:
Mr. Garcia had not established this hypothetical chain of event.

[00:02:24] Speaker 01:
And the immigration judge and the board could only reach that conclusion by asserting their own opinion and by ignoring uncontradicted evidence.

[00:02:34] Speaker 03:
And this... Well, didn't they do both?

[00:02:39] Speaker 03:
First said, don't really think you've proved this chain of events are more likely than not to happen, but even if they're more likely not to happen, it's not torture, it's a lack of resources.

[00:02:56] Speaker 01:
Yes, Your Honor, the immigration judge on whether it's torture kind of

[00:03:02] Speaker 01:
combine its analysis of specific intent.

[00:03:04] Speaker 01:
And so I think we would need to look to the specific intent and acquiescence piece in order to determine whether the third chain in that hypothetical events is likely to occur.

[00:03:17] Speaker 01:
Can you expand on that, what do you mean?

[00:03:20] Speaker 01:
Yes, Your Honor, the IJ concluded that Mr. Garcia

[00:03:25] Speaker 01:
even if he could satisfy the hypothetical chain of events, that his tortures would not act with the requisite specific intent or acquiescence.

[00:03:38] Speaker 03:
And you keep saying his tortures.

[00:03:40] Speaker 03:
The finding was there was no torture.

[00:03:43] Speaker 01:
Yes, Your Honor.

[00:03:44] Speaker 01:
His potential tortures would be, in this case, prison guards, police officers, employees at mental health institutions, and members of criminal organizations.

[00:03:54] Speaker 01:
that's established on page 43 and 62 of volume two and also page 400 and 467 of volume one.

[00:04:05] Speaker 01:
So we're talking about these four potential sources of torture.

[00:04:09] Speaker 00:
I think the, at least what I understood to be the position of the BIA and somewhat segueing from Judge McHugh's questions is that even if

[00:04:24] Speaker 00:
you have this chain of events such that he ends up in a detention facility or he ends up in a mental health institution, the fact that he would be subject to conditions that in the United States perhaps would be viewed as horrific does not mean that he has been tortured.

[00:04:42] Speaker 00:
And that is the problem.

[00:04:43] Speaker 00:
I mean, it seems to be in your case, at least one of them, which is that the fact of squalor, the fact of

[00:04:53] Speaker 00:
some form of treatment that would not be deemed to be appropriate in the United States, doesn't mean that he's been tortured.

[00:05:01] Speaker 00:
I mean, the BIA in his presidential decision, JRGP, was pretty clear on that.

[00:05:09] Speaker 00:
And so, you need to help us out.

[00:05:12] Speaker 00:
I mean, the fact that even whether your chain of events occurs or not doesn't answer the question, does it?

[00:05:19] Speaker 01:
Your Honor, Mr. Garcia presented evidence that

[00:05:23] Speaker 01:
In addition to these substandard conditions that his anticipated tortures will have the specific intent to torture.

[00:05:32] Speaker 01:
Specifically for police and military and prison guards, Mr. Garcia presented evidence that they will engage in beatings, electric shocks, asphyxiation in order to extract confessions and punish Mr. Garcia.

[00:05:46] Speaker 02:
So is your position that

[00:05:49] Speaker 02:
a lobotomy, for instance, which is in the record as something that could happen in a mental institution in Mexico, is per se satisfying the standard of what constitutes torture?

[00:06:05] Speaker 02:
I think I understood that to be your argument, but I didn't really see you develop that, so if you could help me with that.

[00:06:11] Speaker 01:
I don't know if it's per se.

[00:06:13] Speaker 01:
I think the applicant must present evidence that

[00:06:17] Speaker 01:
the lobotomies are committed for a prescribed purpose.

[00:06:21] Speaker 01:
So in this case, Mr. Garcia presented evidence that lobotomies are oftentimes performed to coerce certain non-aggressive behavior.

[00:06:30] Speaker 01:
That's found on page 402 of the record.

[00:06:33] Speaker 01:
And by demonstrating that Mr. Garcia has satisfied the burden that lobotomies are performed for a specific intent.

[00:06:44] Speaker 00:
Okay, and so lobotomies as a means to correct behavior.

[00:06:51] Speaker 00:
Okay.

[00:06:52] Speaker 00:
Well, why isn't that consistent with the notion that they have different medical practices that we might deem to be reflect a lack of education, lack of sophistication, all of those things.

[00:07:06] Speaker 00:
Why isn't that just segue into the notion that that's not designed to infect

[00:07:13] Speaker 00:
pain to inflict pain.

[00:07:15] Speaker 00:
It's not designed to do these things for reasons that would seem to be within the contemplation of what the convention is about, but they're just practical means to run a medical facility.

[00:07:28] Speaker 00:
And if they are just practical means to run a medical facility, granted means that we would never employ here, then why is that torture?

[00:07:38] Speaker 01:
Your Honor, there is evidence that Mr. Garcia presented that employees at these mental health institutions will engage in acts for non-therapeutic justification, or with no therapeutic justification.

[00:07:51] Speaker 01:
So specifically on page seven of volume two, there's evidence that individuals at these mental health institutions will often physically abuse patients.

[00:08:01] Speaker 01:
There is no therapeutic justification for such conduct.

[00:08:04] Speaker 01:
The conduct like lobotomies where they might be done for some alternative reason other than to punish or inflict pain, arguably the actor is intending to inflict pain and suffering.

[00:08:21] Speaker 01:
They may be intending to inflict pain and suffering as what they see as a valid mean or for a valid reason.

[00:08:29] Speaker 01:
But they're still intending to inflict pain and suffering on the individual.

[00:08:33] Speaker 00:
That doesn't answer the question.

[00:08:35] Speaker 00:
Inflicting pain and suffering needs to be the end, not the means.

[00:08:40] Speaker 00:
If I'm inflicting pain and suffering because I'm trying to, I have some therapeutic goal in mind, then that's not torture, is it?

[00:08:52] Speaker 01:
If the actor intends to inflict pain and suffering, then that is sufficient.

[00:08:57] Speaker 00:
Well, they know that pain and suffering will follow.

[00:09:00] Speaker 00:
Let's try that.

[00:09:01] Speaker 00:
Is there a distinction between those two?

[00:09:05] Speaker 01:
I believe so, yeah.

[00:09:06] Speaker 00:
Okay, well if I decide that, and if I decide for a non-therapeutic purpose, let's assume that in a mental health institution, they have one staff member per 100 patients.

[00:09:22] Speaker 00:
And they recognize having one staff member versus 100 patients, that boy, they have to create a certain level of interim effect to maintain control of that place.

[00:09:32] Speaker 00:
Which means that they impose punishment on people.

[00:09:35] Speaker 00:
They hit them.

[00:09:36] Speaker 00:
They corporal punishment in order to do that.

[00:09:39] Speaker 00:
Okay, bad, bad thing to do.

[00:09:42] Speaker 00:
but is that torture within the meaning of the convention?

[00:09:45] Speaker 00:
And I would like to understand why it would be, because along the lines of JRGB, all that is is a reflection of lack of resources.

[00:09:56] Speaker 00:
They're not doing this because they get kicks out of it, they're doing it because they have to maintain that facility.

[00:10:02] Speaker 01:
So Your Honor, in Pierre V. Gonzales, the Second Circuit said that evidence of prescribed purposes, which include punishment,

[00:10:12] Speaker 01:
often overlaps with evidence of specific intent.

[00:10:15] Speaker 01:
And so the example you gave, if they're beating these individuals in order to punish the individuals or coerce certain behavior, that is sufficient to demonstrate specific intent.

[00:10:30] Speaker 03:
Does the Mexican government have to acquiesce in this conduct?

[00:10:36] Speaker 01:
No, Your Honor.

[00:10:36] Speaker 03:
Do you have a cat claim?

[00:10:38] Speaker 01:
No, Your Honor.

[00:10:40] Speaker 01:
That is the major error of the agency here.

[00:10:44] Speaker 01:
By considering evidence of the Mexican government, the agency didn't consider the specific intent or the acquiescence that is possible by individual public officials.

[00:10:54] Speaker 01:
This court in Augustui, as well as the Ninth Circuit in Madrigal, have said that the entire government is not the relevant inquiry.

[00:11:06] Speaker 01:
is the conduct of these individual public officials.

[00:11:10] Speaker 03:
But if the government is taking action, even if that action is not fully effective, then you can't show the government acquiesced, can you?

[00:11:21] Speaker 01:
We do not need to show that the entire government acquiesce.

[00:11:23] Speaker 01:
We need to show that individual public officials will acquiesce to the torture.

[00:11:28] Speaker 03:
So you think the standard is that if any, any person tortures

[00:11:36] Speaker 03:
That's enough.

[00:11:38] Speaker 02:
Yes, Your Honor, I think it would speak to the likelihood of torture, so if... But that person has to be a public official, right?

[00:11:46] Speaker 01:
To acquiesce to conduct, correct.

[00:11:49] Speaker 02:
Without the government acquiescing.

[00:11:51] Speaker 02:
You don't need governmental acquiescence if it's a public official, right?

[00:11:54] Speaker 01:
Yeah, you don't need entire government acquiescence.

[00:11:59] Speaker 00:
You don't need acquiescence at all if it's a government, if it's a public official.

[00:12:04] Speaker 00:
Yes, Your Honor, yes.

[00:12:05] Speaker 01:
If it's a private individual, then you need acquiescence on the part of individual public officials, but not the entire government.

[00:12:12] Speaker 00:
And if a public official tortures, then that's a whole different ballgame, right?

[00:12:16] Speaker 00:
That would be, there's no acquiescence component to that, right?

[00:12:20] Speaker 01:
Correct.

[00:12:23] Speaker 02:
That's your argument, right?

[00:12:24] Speaker 02:
That's the legal error that you're asserting here that the BIA made?

[00:12:28] Speaker 01:
Correct, yeah, by looking, if you look on page 208 and 209 of the record, they spent their entire analysis discussing the entire Mexican government, and that simply is not relevant.

[00:12:40] Speaker 01:
Mexican government's anti-discrimination laws or closing of a single mental health facility doesn't negate the specific intent or the acquiescence on the part of individual public officials.

[00:12:52] Speaker 00:
Why isn't that, I'm sorry, go ahead.

[00:12:53] Speaker 02:
Oh, thank you, Chief.

[00:12:54] Speaker 02:
Are we permitted to look at the IJ's order to more fully understand the BIA's conclusion on acquiescence?

[00:13:00] Speaker 01:
Yes, Your Honor.

[00:13:01] Speaker 01:
Why is that?

[00:13:05] Speaker 01:
When the board does not engage in its own lengthy analysis but merely just adopts the analysis of the immigration judge, you can look to the analysis of the immigration judge.

[00:13:16] Speaker 02:
So it's your position that the board here adopted the faulty analysis of the IJ?

[00:13:20] Speaker 01:
Yes, Your Honor.

[00:13:23] Speaker 01:
I see I'm running low on time.

[00:13:25] Speaker 01:
If there are no further questions, I'd like to reserve the remainder for rebuttal.

[00:13:29] Speaker 01:
Thank you.

[00:13:52] Speaker 04:
May it please the court, I'm Duncan Fulton for the Department of Justice.

[00:13:56] Speaker 04:
Substantial evidence supports the agency's finding here that petitioner failed to establish a specific intent, among other elements for cat deferral, which Congress intentionally crafted as a limited form of protection for aggravated felons such as petitioner.

[00:14:10] Speaker 02:
But substantial evidence review doesn't apply to legal errors, right?

[00:14:13] Speaker 04:
Substantial evidence review applies to factual funding underlying those legal errors,

[00:14:19] Speaker 04:
This court does have de novo authority for assessing the legal standard.

[00:14:23] Speaker 02:
So I'd like you to help me with kind of framing where the government sees the error in this case.

[00:14:30] Speaker 02:
So likelihood of torture seems to encompass two inquiries, right?

[00:14:34] Speaker 02:
First we need to know what is likely to happen to the petitioner, so that's a fact question, if he's removed.

[00:14:40] Speaker 02:
And then we need to know if what is likely to happen amounts to torture.

[00:14:46] Speaker 02:
Where do you see

[00:14:48] Speaker 02:
the petitioner's arguments directed here.

[00:14:53] Speaker 04:
Judge Rossman, if I'm understanding your question as to petitioner's position, I think they're kind of doing both, if that makes sense.

[00:15:00] Speaker 04:
They're both attacking the legal standard, which I'm happy to get into this morning, but they're also asking that this court mandate fact-finders to make specific findings.

[00:15:10] Speaker 02:
Well, it seems to me that what they're arguing and the trouble that I had with the BIA's decision

[00:15:16] Speaker 02:
is that we can't do the second step, we can't determine as a matter of law whether what's likely to happen meets the definition of torture if we don't know what the BIA thinks is likely to happen.

[00:15:28] Speaker 02:
There doesn't seem to really be a complete factual finding on exactly what is likely to happen to the petitioner here if he is removed.

[00:15:41] Speaker 04:
Your Honor, I think we do have that here.

[00:15:43] Speaker 04:
Where is it?

[00:15:44] Speaker 04:
We can look at both the board decision and the IJ decisions to respond to your honor's earlier point for petitioner.

[00:15:54] Speaker 04:
This court can look at the IJ decision here to the extent that it provides a more complete explanation of what the board did.

[00:16:02] Speaker 04:
That's from the case we cited from this court and the scope and extent of review, this court has that authority.

[00:16:08] Speaker 04:
So we can look at both decisions.

[00:16:12] Speaker 04:
If we start with the IJ decision,

[00:16:14] Speaker 04:
At 207, at the top of it, the IJ talks about what is likely to happen to petitioners.

[00:16:24] Speaker 04:
It says first, he is not sufficiently established without his medication and treatment, so these are factual findings.

[00:16:30] Speaker 04:
Farther down the page, the IJ starts to make an alternate analysis saying even if we assume, arguing though, that this individual was unable to access his medication, Mexico did not have adequate support

[00:16:45] Speaker 04:
Here is, here are specific intent findings, so.

[00:16:47] Speaker 02:
Do you read the IJ and BIA to have found, the BIA refers to primitive medical practices.

[00:16:54] Speaker 02:
Do you read the BIA to have assumed that Mr. Garcia Boteo would have, is likely to experience a lobotomy if he is removed to Mexico?

[00:17:05] Speaker 04:
No, your honor, I don't read that the board made any assumptions like that.

[00:17:09] Speaker 02:
Why is it fair to assume that he's not going to experience the most extreme treatment if that's what the record shows?

[00:17:17] Speaker 04:
Well, Your Honor, petitioner has to show that he would more likely than not experience torture for all the elements here for the cat definition of torture.

[00:17:27] Speaker 04:
So that includes specific intent, that includes acquiescence.

[00:17:31] Speaker 04:
There's also a particularized risk requirement for torture here, so he has to show that he himself

[00:17:36] Speaker 04:
more likely than not would experience torture, including, to your honor's question, lobotomies.

[00:17:42] Speaker 04:
So I don't think the evidence here shows at all that he would more likely than not experience a lobotomy.

[00:17:47] Speaker 04:
There is country conditions evidence that lobotomies have occurred, but if I can just cite some of the authority here.

[00:17:57] Speaker 04:
Your honors were asking about lobotomies earlier.

[00:17:59] Speaker 04:
If we look at page 629 of the record, it specifically talks about lobotomies and how they did occur

[00:18:06] Speaker 04:
to individuals who were showing aggression, and the intent behind this was to remove the potential for danger of that person to other individuals.

[00:18:17] Speaker 04:
So this kind of gets back to Chief Judge Holmes' question earlier about, you know, even if, and I'm not trying to discount that there are some troubling incidents in the country ignitions report, but petitioner still has the burden to show a specific intent to inflict severe pain or suffering.

[00:18:36] Speaker 04:
So even though lobotomies have occurred, we don't have enough evidence here that it was done with these specific intent to inflict severe pain or suffering.

[00:18:44] Speaker 02:
And I'm sorry, I keep coming back to this, but if we're writing this opinion and we're reading the BIA's decision and we're reciting what the factual findings are about what is likely to happen to the petitioner for move, just that factual finding, not the legal consequence of it,

[00:19:01] Speaker 02:
Do you read the BIA's reference to primitive medical practices to include the most extreme form of mistreatment that the evidence supports?

[00:19:15] Speaker 04:
Your Honor, I don't see that specific finding by the board here, so I don't think we can assume that that inference was made by the agency.

[00:19:24] Speaker 04:
If we look at the board's decision at page five,

[00:19:27] Speaker 04:
It says we will not disturb the immigration.

[00:19:29] Speaker 04:
This is the first full paragraph at the top.

[00:19:31] Speaker 04:
We will not disturb the immigration judge's finding that even assuming the board will, that the respondent will engage in erratic behavior that attracts law enforcement, he is not shown he would more likely than not be tortured.

[00:19:41] Speaker 04:
So.

[00:19:42] Speaker 02:
I'm talking about the next paragraph.

[00:19:44] Speaker 02:
The respondent asserts he's more likely than not will be subjected to primitive medical practices and abusive treatment in mental institutions in Mexico.

[00:19:53] Speaker 02:
We will not disturb the immigration judge's finding that such mistreatment would be the result of.

[00:19:59] Speaker 02:
So that goes on to talk about neglect, lack of resources.

[00:20:02] Speaker 02:
I think that gets to Chief Judge Holmes' point about the second piece of the analysis, which is the legal consequence.

[00:20:09] Speaker 02:
But are we supposed to read the first part of this as

[00:20:12] Speaker 02:
mistreatment in a narrow way or mistreatment as the most extreme form of mistreatment that the record would support to make our legal determination of whether that's likely to satisfy the definition of torture under the statute.

[00:20:27] Speaker 04:
Your Honor, the language you just quoted, the respondent asserts he will be subjected to primitive medical practices.

[00:20:32] Speaker 04:
I don't read that as the board making a finding about that he would have a likelihood of being subjected to these police practices.

[00:20:39] Speaker 04:
I think to the contrary,

[00:20:40] Speaker 04:
In this paragraph, the board is specifically saying he hasn't shown a specific intent.

[00:20:44] Speaker 04:
He hasn't shown a likelihood of that specific intent.

[00:20:47] Speaker 04:
He needs to do both of those things to prevail.

[00:20:49] Speaker 04:
I want to focus on the fact here that petitioner has to make four showings here in order to prevail.

[00:20:56] Speaker 04:
If he fails on any one of them, this court should deny the petition for review one.

[00:21:00] Speaker 04:
He has to show he will more likely than not be tortured.

[00:21:04] Speaker 04:
Second, specific intent.

[00:21:05] Speaker 04:
Third, acquiescence.

[00:21:07] Speaker 04:
And fourth, the record must compel

[00:21:09] Speaker 04:
a finding as to each one of those three elements.

[00:21:12] Speaker 04:
So I don't see the board as conflating anything here.

[00:21:16] Speaker 04:
There are a couple times where it talks about acquiescence and specific intent, but that's simply because those are two separate elements that the board and the IJ analyzed here.

[00:21:24] Speaker 04:
I do want to spend a couple minutes, Your Honors, talking about the legal standard here for specific intent.

[00:21:32] Speaker 04:
I just want to underscore the fact that

[00:21:35] Speaker 04:
This court has not looked at the issue in a published decision, but all 10 other regional circuit courts have explained that the specific intent requirement requires a very stringent showing.

[00:21:47] Speaker 04:
For instance, we can look at the Ninth Circuit's Villegas case where the actor must specifically intend the actual consequences, severe pain or suffering of his conduct.

[00:21:56] Speaker 04:
So this court should not break away and essentially create a one to 10 circuit split which

[00:22:02] Speaker 04:
is how I read what the petitioner asks in part.

[00:22:06] Speaker 04:
I think there's some inconsistency there, but.

[00:22:09] Speaker 03:
Well, does the actor also have to have undertaken that action for the specific purposes that are listed in the regs on, it has to be for obtaining information or a confession, punishment, intimidation or coercion or discrimination of any kind?

[00:22:30] Speaker 04:
Yes, Judge McHugh.

[00:22:32] Speaker 04:
There could be some debate about whether that's a sub-component of the specific intent requirement or a separate motive requirement.

[00:22:41] Speaker 04:
But regardless how we look at it, it is a requirement for cat protection.

[00:22:45] Speaker 04:
The wrongdoer must be acting with a prescribed motive such as punishment.

[00:22:52] Speaker 04:
But I think what is most important is this court should not define specific intent here

[00:22:57] Speaker 04:
to essentially include this acting with knowledge requirement that petitioner puts forth, that pain may well occur.

[00:23:05] Speaker 04:
That's the reply brief at 20, for instance, where petitioner puts forth that standard.

[00:23:10] Speaker 04:
That reading would run afoul of the great weight of these other circuits as well as the board.

[00:23:19] Speaker 04:
This acting with knowledge requirement that petitioner submits is essentially a general intent requirement that has been roundly rejected by the other circuits.

[00:23:27] Speaker 04:
For instance, in the Third Circuit's Augusti decision where it specifically distanced itself from its prior dicta in Zubeda, which petitioner quotes, but I think this court needs to know that that dicta has been rejected.

[00:23:41] Speaker 03:
Let me ask you this, turning to acquiescence.

[00:23:47] Speaker 03:
How does the evidence that the Mexican government has actually

[00:23:54] Speaker 03:
adopted anti-discrimination laws protecting the mentally challenged and has actually closed down some facilities and made some effort.

[00:24:07] Speaker 03:
How does that tie into the acquiescence piece if you have a government actor who is the one inflicting the pain?

[00:24:21] Speaker 04:
I think there may be two separate inquiries, if I'm understanding your question correctly.

[00:24:25] Speaker 04:
If the government itself is perpetrating the torture, we don't have to look at acquiescence, but I think in this situation we have here, where there are allegations that there are private individuals who are perpetrating them, such in private medical facilities, we do need to look at acquiescence as far as what the government was or were not doing.

[00:24:48] Speaker 04:
In this case, we have evidence that

[00:24:51] Speaker 04:
The board and the IJ did discuss the government at large, but we also have a lot of findings from the IJ, such as at page 207 and 208, talking about specifically what individual actors were doing.

[00:25:05] Speaker 04:
So we know the IJ and the board looked at individual actors here as far as the cat elements, including acquiescence.

[00:25:14] Speaker 04:
I would also note that

[00:25:16] Speaker 00:
what individual actors were doing in what context?

[00:25:18] Speaker 00:
In other words, elaborate on that point a bit, please.

[00:25:23] Speaker 04:
Well, for instance, we need to look at, when we're looking at acquiescence as far as individual actors, we're talking about whether the government efforts were sufficient.

[00:25:35] Speaker 04:
So we can talk about mid-level supervisors in a medical facility, what they were doing in the terms of acquiescence.

[00:25:43] Speaker 00:
What they were generally doing.

[00:25:45] Speaker 04:
Correct.

[00:25:46] Speaker 00:
And correct me if I'm wrong, what this sort of country conditions reports, these general comments about what the government does, it seems to me go to two things.

[00:25:58] Speaker 00:
They go to one, whether it's more likely than not that this individual will be tortured.

[00:26:04] Speaker 00:
Because if these practices are universal, then it increases the likelihood, it's more likely than not that he will be tortured.

[00:26:12] Speaker 00:
Two, these government condition reports and what the government is doing in the mix, i.e.

[00:26:17] Speaker 00:
these sorts of efforts to control it, they also go towards the acquiescence piece because if the government has been engaged in vigorous efforts to address this problem, it also makes it, it cuts against the idea that it's more likely than not that they would acquiesce if this issue came to their attention.

[00:26:40] Speaker 04:
Yes, yes, Your Honor, I think that's right.

[00:26:42] Speaker 00:
Okay, because I guess I tease this out because as I understand it from your opponent here, one of their concerns is the argument that we're not focusing on what individual actors, what individual government officials would acquiesce to.

[00:26:58] Speaker 00:
We're only focusing on what the government would acquiesce to.

[00:27:02] Speaker 00:
And I guess what I'm trying to get at is it seems to me that the evidence as it relates to what the government practices are inform

[00:27:12] Speaker 00:
our conversation as to what it's more likely than not that individual government officials would do?

[00:27:21] Speaker 04:
I think that's generally true, Your Honor.

[00:27:23] Speaker 00:
I would also make the point here that... Generally true suggests you don't agree with me.

[00:27:29] Speaker 00:
And so I want to understand.

[00:27:30] Speaker 00:
Am I making sense here?

[00:27:32] Speaker 04:
No, I think you are making sense.

[00:27:34] Speaker 04:
I just want to make the point that regardless of looking at acquiescence or specific intent here, I think the most important factor of this case is

[00:27:42] Speaker 04:
we need to be giving deference to the factual findings of the IJ here.

[00:27:47] Speaker 04:
And this is where I think the biggest problem with petitioner's argument, where we're talking about what specific intent needed to show, these are factual findings by the immigration judge who is considering all of the country conditions evidence.

[00:28:00] Speaker 04:
So even to the extent petitioner disagrees with an inference about what the evidence shows, it would be improper for this court

[00:28:11] Speaker 04:
to require a fact finder to make those same inferential leaps in every given case.

[00:28:17] Speaker 04:
And I think that applies to specific intent.

[00:28:19] Speaker 04:
I think that applies to acquiescence.

[00:28:21] Speaker 02:
I would- So is your position that we can't infer being appropriate to enforce specific intent from the nature of the anticipated acts that is in the record?

[00:28:31] Speaker 04:
I'm not saying a fact finder cannot infer.

[00:28:34] Speaker 04:
I'm saying that that authority needs to lie with the fact finder about what the inferences show.

[00:28:42] Speaker 04:
And the evidence here simply doesn't show that it was necessary for the immigration judge to reach those factual findings.

[00:28:50] Speaker 04:
I do see them over time, Your Honors.

[00:28:52] Speaker 03:
Yes, of course.

[00:28:53] Speaker 03:
I have one follow-up question.

[00:28:55] Speaker 03:
Yes.

[00:28:58] Speaker 03:
Would you agree that if we found the first part of the decision that this chain of events that have to all occur in order for us even to be dealing with

[00:29:11] Speaker 03:
a potential torture that if that wasn't more likely than not to happen, which is what the finding was, we don't even get in to all of this other stuff.

[00:29:22] Speaker 04:
That's correct, Your Honor.

[00:29:23] Speaker 04:
These are all alternate findings.

[00:29:24] Speaker 04:
So again, this Court only needs to really uphold one of these issues to deny this Petition 4 review.

[00:29:31] Speaker 04:
And it doesn't need to get into all the other issues to do so.

[00:29:34] Speaker 03:
Thank you.

[00:29:35] Speaker 04:
Thank you, Your Honors.

[00:29:41] Speaker 00:
Would you add a minute to her time, please?

[00:29:51] Speaker 01:
Sure.

[00:29:51] Speaker 01:
I want to raise three points, if time allows.

[00:29:53] Speaker 01:
The first, speaking to Judge McHugh's and Chief Judge Holm's question about whether evidence of the anti-discrimination laws or closing of a mental health facility speak to the acquiescence piece.

[00:30:08] Speaker 01:
In Madrigal v. Holder, the Ninth Circuit said that the acquiescence of individual government officials is the relevant inquiry, as I've already stated.

[00:30:17] Speaker 01:
That includes when government officials are acting contrary to the policy of the entire Mexican government.

[00:30:25] Speaker 01:
While I think you're correct, Judge Holmes, that it speaks to the likelihood that individuals would acquiesce to such conduct, here we've presented evidence that

[00:30:36] Speaker 01:
multiple government officials.

[00:30:39] Speaker 01:
It's not just isolated incidents.

[00:30:41] Speaker 01:
Many government officials acquiesce to conduct done by private individuals, specifically for employees of private mental health institutions.

[00:30:55] Speaker 01:
there's evidence on page 401 of volume one and 111 of volume two that government officials will often take the individuals, the adults with disabilities to these institutions and that despite being aware of all of these grave instances of torture, they do nothing to prevent or stop the torture.

[00:31:17] Speaker 01:
My second point that I would like to make, the government asserts that

[00:31:22] Speaker 01:
The applicant must prove specific intent and acquiescence.

[00:31:27] Speaker 01:
That is conflating the standard under the CAT.

[00:31:31] Speaker 01:
We're only required to prove specific intent or acquiescence, and acquiescence, of course, only comes to play if we're talking about private individuals committing acts of torture.

[00:31:43] Speaker 01:
And then my third point.

[00:31:47] Speaker 03:
I need to understand this.

[00:31:49] Speaker 03:
If a private individual has specific intent, you're saying you don't need to show acquiescence on the part of the government?

[00:31:57] Speaker 01:
You do need to show acquiescence, but it's sufficient to show.

[00:32:00] Speaker 00:
You need to show both.

[00:32:01] Speaker 01:
Only if you're, you could prevail under just specific intent of public officials.

[00:32:08] Speaker 00:
Of a public official.

[00:32:09] Speaker 00:
Correct.

[00:32:10] Speaker 00:
If the public official is the actor.

[00:32:13] Speaker 01:
Correct.

[00:32:13] Speaker 00:
Okay, and going back to your point briefly about

[00:32:18] Speaker 00:
acquiescence.

[00:32:20] Speaker 00:
Are you saying then that if I as a government official take, let's say, your petitioner to a mental health place and I know they do lobotomies, that by definition I'm acquiescing and torture?

[00:32:33] Speaker 03:
Yes.

[00:32:34] Speaker 00:
All right.

[00:32:34] Speaker 00:
Well, all right.

[00:32:36] Speaker 03:
Does it matter what likelihood it is that your particular petitioner will have a lobotomy?

[00:32:44] Speaker 03:
I mean, we don't know how often they do it.

[00:32:46] Speaker 03:
You have to have more likely than not, don't you?

[00:32:49] Speaker 01:
Yes, Your Honor, and if I may respond to the question.

[00:32:54] Speaker 01:
Mr. Garcia presented evidence that he is specifically likely to be tortured for three reasons.

[00:33:01] Speaker 01:
His disability, specifically the way his disability manifests in having outburst and aggressive behavior toward authorities.

[00:33:09] Speaker 01:
His status as a U.S.

[00:33:10] Speaker 01:
immigrant makes him more likely to be tortured, and also his lack of community support.

[00:33:16] Speaker 01:
If he doesn't have people around him to protect him, it makes him at a higher risk of being tortured.

[00:33:21] Speaker 01:
Thank you, Your Honor.

[00:33:23] Speaker 00:
Thank you, Counsel.

[00:33:24] Speaker 00:
Case is submitted.

[00:33:25] Speaker 00:
Thank you for your fine arguments.