[00:00:00] Speaker 04:
And we'll call our next case, 24-9562, Lopez Martinez versus Bondy.

[00:00:12] Speaker 04:
Council, please proceed.

[00:00:17] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:19] Speaker 02:
My name is Luis Cortez.

[00:00:21] Speaker 02:
I'm here from Novo Ligo on behalf of the Petitioner.

[00:00:23] Speaker 02:
I'll endeavor to reserve three minutes for rebuttal.

[00:00:25] Speaker 02:
And I'll watch my time.

[00:00:28] Speaker 02:
Your Honor, there's two main points that I would like to focus on here today.

[00:00:30] Speaker 02:
First is the waiver issue that was brought up and whether the unable or unwilling issue was waived and how that fits into this.

[00:00:38] Speaker 02:
And then I would like to then jump into what we argue was the misapplication of the particular social group analysis to the board and why that is an important thing to resolve today too.

[00:00:49] Speaker 02:
I'm going to the waiver issue first, Your Honor.

[00:00:55] Speaker 02:
The government contends that that is a dispositive issue here, that whether the government is unable or unwilling to protect the petitioners, and that because they contend that that issue was waived and that the court should dispose of that case here.

[00:01:11] Speaker 02:
The legal sequence here matters, and the particular social group has to be evaluated first, and whether the individual fits into that particular social group, so that that would advise and guide the context of whether the government in question is willing or unable to.

[00:01:29] Speaker 04:
Well, let me ask you about that, because the BIA and the IJ ruled on both of those, right?

[00:01:36] Speaker 04:
There was a ruling that your client was not part of the social group, and there was also a ruling that there was no showing that the police were unable or unwilling to protect her.

[00:01:52] Speaker 02:
Yes, but there's a lot missing there.

[00:01:57] Speaker 02:
Because when the immigration judge made the evaluation about whether the government is unable or unwilling to protect the petitioner, the immigration judge did it with a very specific context.

[00:02:10] Speaker 02:
disposed of the particular social groups and really just broke it down to whether enduring women, and found that to be a recognizable social group.

[00:02:19] Speaker 02:
And then only from there did she evaluate the country conditions and whether enduring women are able to be, or the government is able or willing to protect her.

[00:02:29] Speaker 02:
But that analysis did not happen with respect to the other social groups.

[00:02:34] Speaker 02:
And we can see that from the immigration judge's decision that the immigration, that the Board of Immigration Appeals adopted,

[00:02:40] Speaker 02:
which says she talks about enduring women generally in her decision and makes other analysis and other parallels about other women or other females, and it's within that context.

[00:02:53] Speaker 02:
The immigration judge does not evaluate whether somebody in the specific context that was proposed to her, whether the government is unable or unwilling to protect

[00:03:03] Speaker 02:
somebody like that.

[00:03:04] Speaker 02:
And this is why it's important, because whether the government is unable or unwilling to protect an individual, it matters whether they're part of a group that the government is unable or unwilling to protect.

[00:03:15] Speaker 02:
The protected ground is important, because there might be an evaluation that the government is unable or willing to protect people on this kind of spectrum, but it doesn't go to the heart of whether they're going to be able to protect

[00:03:28] Speaker 02:
individuals in the particular social group that was proposed.

[00:03:31] Speaker 04:
Now isn't that though I mean that's I'm gathering that you think that was an error by the by the IJ and I mean isn't that something that you should appeal that should be part of your opening brief.

[00:03:50] Speaker 04:
There was also this finding that

[00:03:52] Speaker 04:
the government was able and willing to protect my client, or there was a finding that we hadn't shown the opposite, and that was error as well, because it's all part of the analysis.

[00:04:04] Speaker 04:
At some point, you have to make that showing, don't you?

[00:04:07] Speaker 04:
No, Your Honor, and I think... You never have to show that?

[00:04:10] Speaker 02:
Well, the Neon versus Gonzalez case, I think, really is instructive here.

[00:04:16] Speaker 02:
And let me explain why.

[00:04:17] Speaker 02:
In that case, the board found that someone did not fit into the particular social group.

[00:04:24] Speaker 02:
It was a FGM case.

[00:04:26] Speaker 02:
And so what the 10th Circuit said there is that it reversed the finding that the individual was part of a particular social group.

[00:04:34] Speaker 02:
And then it remanded back down to the agency to figure out whether the government was unable or unwilling to protect.

[00:04:41] Speaker 02:
And I think that's what we're advocating for here is for this court to follow the neon case and say, OK, there's a particular social group here.

[00:04:49] Speaker 02:
That is the central question, whether or not the government is willing or unable to protect somebody in that group.

[00:04:55] Speaker 04:
Well, let me stop you for a minute, because in that case,

[00:04:58] Speaker 04:
I didn't read that as being one where the court said, OK, we're going to rule.

[00:05:05] Speaker 04:
They ruled on a credibility issue basically and remanded it, as I read it.

[00:05:11] Speaker 04:
And they didn't say, we're not going to reach the unable and unwilling question, because it would be improper to do it at this stage.

[00:05:20] Speaker 04:
They just sent it back as a matter.

[00:05:22] Speaker 04:
It was how they did it, but they didn't explain the same way you are.

[00:05:27] Speaker 02:
Is that fair?

[00:05:28] Speaker 02:
I respectfully disagree, Your Honor.

[00:05:30] Speaker 02:
I read the case differently.

[00:05:31] Speaker 02:
I read the case in that once they reached the particular social group aspect of the case, whether she belonged to a particular tribe, they were mandated to figure out whether they were unable or unwilling to protect, that government was unable or unwilling to protect her within that context.

[00:05:45] Speaker 02:
Because there was no findings of fact that were made within that context.

[00:05:48] Speaker 01:
But there was an allegation of her particular social group.

[00:05:53] Speaker 01:
Yes.

[00:05:57] Speaker 01:
You don't know what's the chicken and what's the egg.

[00:05:59] Speaker 01:
She had to prove several things.

[00:06:01] Speaker 01:
One, that she is a protected social group.

[00:06:04] Speaker 01:
Second, the government was unwilling or unable to protect her.

[00:06:07] Speaker 01:
And it was her claim to prove both things.

[00:06:11] Speaker 01:
She had two things she had to prove.

[00:06:13] Speaker 01:
So I'm not following your statement that until there was a correct ruling on protected social group, she had no obligation to prove unwilling and unable to protect.

[00:06:23] Speaker 01:
She had to prove both things right from the get-go

[00:06:26] Speaker 01:
Because they're both elements, aren't they?

[00:06:28] Speaker 01:
I just don't understand your argument.

[00:06:29] Speaker 02:
I see.

[00:06:30] Speaker 02:
I'm sorry, Your Honor.

[00:06:30] Speaker 02:
I think I misunderstood.

[00:06:31] Speaker 02:
Yes, and that book absolutely has to show both things before an immigration judge.

[00:06:37] Speaker 02:
But when an immigration judge is making their decision,

[00:06:39] Speaker 02:
and they're deciding whether or not the government is unable or unwilling to protect the individual, it has to be done within the context of the particular social group.

[00:06:47] Speaker 02:
So that has to be resolved first, whether the individual, whether the particular social group is recognizable and the individual is part of that social group.

[00:06:55] Speaker 02:
And so with the immigration judge, the applicant absolutely has to provide that fact in that argument.

[00:07:00] Speaker 01:
What particular social group was the immigration judge assuming when he concluded that

[00:07:08] Speaker 01:
The government could protect that group.

[00:07:10] Speaker 02:
In this case, Your Honor?

[00:07:11] Speaker 02:
Yes.

[00:07:12] Speaker 02:
The immigration judge concluded that enduring women was the cognizable particular social group.

[00:07:18] Speaker 02:
But the social groups that were proposed were more nuanced.

[00:07:22] Speaker 02:
It was enduring women who are viewed as property and enduring women who are unable to leave a relationship.

[00:07:27] Speaker 02:
And those are particular social groups that were previously discussed by the board.

[00:07:31] Speaker 02:
There's been a lot of litigation back and forth on that.

[00:07:34] Speaker 02:
But those were the ones.

[00:07:35] Speaker 02:
And I think it's important.

[00:07:37] Speaker 01:
I don't understand how that differs from the plaintiff's claim here.

[00:07:40] Speaker 01:
Sounds to me like you're saying the immigration judge postulated the proper particular social groups and made a ruling that the government was able to protect them.

[00:07:53] Speaker 02:
She articulated a much different social group, Your Honor.

[00:07:56] Speaker 02:
And I think we could see the example here.

[00:07:58] Speaker 02:
Why?

[00:07:58] Speaker 02:
Because when she was trying to figure out, when the immigration judge was evaluating her decision based on that social group, she drew other comparisons saying, oh, well, the abuser in this case, the persecutor in this case, didn't abuse some of the children who were women.

[00:08:17] Speaker 02:
And it made other comparisons about other women.

[00:08:20] Speaker 02:
But there are other elements here that tie the persecution here.

[00:08:24] Speaker 02:
So just enduring women wasn't enough.

[00:08:26] Speaker 01:
But you're not alleging a particular social group that included consideration of the child, as I understood it.

[00:08:32] Speaker 01:
You were alleging a particular social group that only related to her.

[00:08:36] Speaker 01:
So why should the... I mean, your particular social group was women who can't get out of a relationship.

[00:08:44] Speaker 01:
That's right.

[00:08:44] Speaker 01:
It didn't have anything to do with children.

[00:08:48] Speaker 02:
The immigration judge made those comparisons.

[00:08:51] Speaker 02:
When she was evaluating enduring women, and that's the social group that she ended up evaluating and made the rest of her analysis in, when she was concluding that the government either was willing or able to protect the petitioner or that she wouldn't face prospective harm, she drew analogs from other women within the context of the story.

[00:09:12] Speaker 02:
And one of the things that I think highlights the importance of the particular social group that should have been evaluated was that it excludes other members of her family that weren't part of that social group.

[00:09:27] Speaker 01:
I'm sorry I'm dense.

[00:09:29] Speaker 01:
What particular social group did the immigration judge use in concluding that the government could protect them?

[00:09:42] Speaker 01:
Honduran women.

[00:09:45] Speaker 02:
Other Honduran women.

[00:09:49] Speaker 01:
Honduran women was the particular social group that she evaluated.

[00:09:53] Speaker 01:
So that's a broader group.

[00:09:55] Speaker 01:
If the government would protect all Honduran women, wouldn't that include a subgroup of Honduran women that have children, for example?

[00:10:09] Speaker 02:
Not necessarily.

[00:10:10] Speaker 02:
Because whether there's an evaluation of whether Honduran women can be protected, it's very context-specific.

[00:10:16] Speaker 02:
Protected of what?

[00:10:17] Speaker 02:
From who?

[00:10:18] Speaker 02:
Of what kind of things?

[00:10:19] Speaker 02:
And so if we're looking at these very broad strokes of Honduran women, then it ignores the particular nuances, the record established of women where they're in a relationship that they're unable to leave.

[00:10:35] Speaker 02:
And there are country condition reports that talk about the specific dynamic that a woman has when they're unable to leave a relationship with a man in Honduras, including, for example, there's a statistic that 80% of people in Honduras believe that a woman needs to be obedient to the man.

[00:10:54] Speaker 01:
So I'm still confused.

[00:10:56] Speaker 01:
I'm sorry to take too much time.

[00:10:58] Speaker 01:
I don't want to.

[00:10:59] Speaker 01:
But I thought it was important here

[00:11:04] Speaker 01:
she was not married to this man.

[00:11:08] Speaker 01:
And that there may be a different Honduran response to the desire to leave your husband than to leave just a live-in boyfriend.

[00:11:26] Speaker 01:
But you're not articulating that.

[00:11:29] Speaker 01:
And I just try one more time in one sentence

[00:11:35] Speaker 01:
What do you think, why do you think the determination of unable to protect did not apply to this particular plaintiff?

[00:11:47] Speaker 01:
Just one sentence, and then I want to drop the subject for now.

[00:11:50] Speaker 02:
Sure.

[00:11:52] Speaker 02:
My one sentence answer would be that the cultural norms

[00:11:57] Speaker 02:
of when someone is in a relationship they're unable to leave is different than a different type of danger than any other woman would face.

[00:12:05] Speaker 02:
OK.

[00:12:05] Speaker 02:
Thank you.

[00:12:06] Speaker 02:
Counsel, can I ask?

[00:12:07] Speaker 02:
You proceed with your argument.

[00:12:08] Speaker 03:
My understanding is Ms.

[00:12:09] Speaker 03:
Lopez Martinez may not have even notified the police or any authorities regarding the persecution she claims.

[00:12:16] Speaker 03:
So why doesn't that defeat the claim she's making now?

[00:12:20] Speaker 02:
Yes, Your Honor, and I'll try to wrap up quickly because I know I'm running into my rebuttal time.

[00:12:24] Speaker 02:
For two reasons.

[00:12:25] Speaker 02:
One is that the responding could show, and we would argue that she did show, that it would be an exercise in futility if she were to have reported it.

[00:12:34] Speaker 02:
One, because there was a neighbor in a very similar position where the police was unable to help.

[00:12:39] Speaker 02:
That was a first-hand account of what she witnessed.

[00:12:41] Speaker 02:
to the country condition reports indicates that specifically women facing danger from men in a relationship that they're in are unable to receive help because of the social and cultural norms that are there.

[00:12:55] Speaker 02:
And that's different than maybe a woman outside and being robbed from somebody that they don't know.

[00:12:59] Speaker 02:
This is very particular.

[00:13:00] Speaker 02:
Although she was not married, the component of her being unable to leave was tied to other parts of it, including having a child in common with this person.

[00:13:09] Speaker 02:
And so the legal articulation as to whether someone is unable to leave is not just whether they're able to physically distance themselves or whether even the individual said, I think I'm done with this person, is whether they're actually able to leave given all of the components in mind.

[00:13:25] Speaker 02:
And the immigration just didn't get there.

[00:13:27] Speaker 04:
So I'm concerned that we may be talking about something that's unexhausted.

[00:13:32] Speaker 04:
Did you bring up before the BIA this idea that there was no need to ever address the unable and unwilling component of this?

[00:13:43] Speaker 04:
Because the IJ had just been talking about women in general and not the two social groups that you brought up.

[00:13:53] Speaker 02:
In the motion to reconsider, Your Honor, yes, we said that the particular social groups need to be reconsidered and re-evaluated, and I believe the motion to... That's a different question.

[00:14:05] Speaker 04:
Did you say that that also rendered invalid the IJ's conclusion that the authorities were unable or unwilling to help your client?

[00:14:14] Speaker 04:
Not invalid, but incomplete.

[00:14:17] Speaker 04:
It's an incomplete analysis.

[00:14:18] Speaker 04:
OK, so I'm going to see that if I look at the record and what you raised before the BIA.

[00:14:23] Speaker 02:
What was raised before the BIA?

[00:14:25] Speaker 02:
Yes, and I can provide a record situation to you on rebuttal.

[00:14:28] Speaker 04:
OK, thank you.

[00:14:29] Speaker 02:
And I'll reserve 20 seconds for rebuttal.

[00:14:32] Speaker 04:
We're going to give you just a little bit more time.

[00:14:34] Speaker 04:
OK, thank you.

[00:14:36] Speaker 04:
To be determined.

[00:14:52] Speaker 00:
Good morning, Your Honors, and may it please the court, Corey Farrell on behalf of the Attorney General.

[00:14:56] Speaker 00:
The petition for review in this case challenges the board's denial of petitioner's motion, which requested reconsideration of its prior decision upholding an immigration judge's denial of asylum and withholding of removal.

[00:15:11] Speaker 00:
However, in their opening brief, petitioners do not challenge the board's conclusion that there was no error of fact or law

[00:15:18] Speaker 00:
in its underlying decision relating to the unable or unwilling determination.

[00:15:23] Speaker 04:
You don't have to, because as a matter of law, at least as I'm hearing them, you can't ever make that decision until you have a proper determination on the membership in the social groups.

[00:15:38] Speaker 00:
Your Honor, that flies in the face of decisions of this Court and the Board, which have decided

[00:15:44] Speaker 00:
asylum and withholding cases solely on the unable or unwilling element.

[00:15:50] Speaker 00:
Respondents filed a 28J.

[00:15:51] Speaker 01:
In cases where the protected social group has not yet been clarified?

[00:15:58] Speaker 00:
In different contexts.

[00:16:00] Speaker 00:
Respondents cited the Singh case in a 28J letter.

[00:16:03] Speaker 00:
And that was a political opinion case.

[00:16:08] Speaker 00:
That matter of MSI was the recent board decision.

[00:16:11] Speaker 00:
But there has been

[00:16:14] Speaker 00:
No case law from this court or the board requiring this sequential analysis.

[00:16:21] Speaker 01:
If I said to the immigration judge, they're not going to protect my group.

[00:16:30] Speaker 01:
And I'm the judge.

[00:16:31] Speaker 01:
And I say, well, before I can tell whether they would protect your group or not, what is your group?

[00:16:36] Speaker 01:
And then I get a response, well, it could either be this, this, this, or this.

[00:16:41] Speaker 01:
And I say, I got to know what your claimed group is before I can even begin to evaluate whether it will be protected or not.

[00:16:48] Speaker 01:
Maybe some of those groups would be and some wouldn't be.

[00:16:51] Speaker 01:
Why is that a wrong approach?

[00:16:53] Speaker 00:
Why is that a wrong approach?

[00:16:55] Speaker 00:
Because as this court has recognized that there are three different elements that

[00:17:00] Speaker 00:
An asylum applicant must satisfy.

[00:17:03] Speaker 00:
And one of those elements is unable or unwilling.

[00:17:06] Speaker 01:
And here, I think it's also important to point out... So you're saying it's just up to the applicant.

[00:17:11] Speaker 01:
The applicant chooses a social group.

[00:17:13] Speaker 01:
If it's ambiguous, that's their problem.

[00:17:15] Speaker 01:
But whatever they choose, then they have to prove unable to protect.

[00:17:19] Speaker 01:
And the court has to accept whatever applicant group is presented to that judge.

[00:17:25] Speaker 01:
Is that what you're saying?

[00:17:26] Speaker 00:
The judge does not have to accept that group.

[00:17:29] Speaker 00:
As we saw in this case, the immigration judge went through three separate proposed particular social groups and determined why either they were not cognizable, petitioner was not a member, or that there was no nexus between any harm and the group of Honduran women.

[00:17:47] Speaker 00:
And then the immigration judge went to the additional element, unable or unwilling, and found that

[00:17:55] Speaker 00:
there was no evidence that the government was unable or unwilling to protect Petitioner.

[00:18:01] Speaker 00:
And I would just like to point out as well that Petitioner doesn't argue how the evidence that the immigration judge considered in this case would have been any different had there been a different determination on the particular social groups.

[00:18:16] Speaker 00:
And here also, we're also talking about the denial of a motion to reconsider.

[00:18:21] Speaker 00:
So we are removed from the immigration judge's underlying decision.

[00:18:25] Speaker 00:
And the board considered relevant country conditions evidence relating to violence against women.

[00:18:31] Speaker 00:
petitioners have not pointed to any evidence that said the board should have looked at this instead of this because of the particular social group issue.

[00:18:41] Speaker 04:
So I suggested earlier that maybe we're dealing with something that had not been raised before the BIA.

[00:18:49] Speaker 00:
That's correct, Your Honor.

[00:18:50] Speaker 00:
I believe in the 28J respondent noted that this was an argument raised for the first time in the reply brief, this sequential analysis or

[00:18:59] Speaker 00:
this argument that the immigration judges' unable or unwilling analysis seemed to only apply to one particular social group.

[00:19:09] Speaker 04:
Let me ask you another question.

[00:19:11] Speaker 04:
I think in the briefing there's a suggestion that the authorities are, in fact, unwilling or unable to protect the respondent.

[00:19:21] Speaker 04:
Is there evidence in the record that would show that the BIA's finding or the IJ's finding

[00:19:29] Speaker 04:
that that has not been established, is there evidence in the record that would support that they are willing and able to protect her?

[00:19:38] Speaker 00:
The agency cited to specific evidence in the record, which it noted was some more recent evidence showing services and laws to protect women.

[00:19:49] Speaker 00:
I believe the board cited it at AR 6, and they cited AR 353 to 364.

[00:19:55] Speaker 00:
So I'm sorry.

[00:19:56] Speaker 00:
No, that's all right.

[00:19:59] Speaker 00:
And they also considered the fact that Petitioner didn't respond.

[00:20:02] Speaker 00:
And in this court's recensing decision, the court discussed why failure to report was important in this analysis.

[00:20:11] Speaker 00:
And so the board properly considered these two different pieces of evidence.

[00:20:16] Speaker 00:
Petitioner's particular situation where she did not report

[00:20:19] Speaker 00:
So we don't know how authorities would respond to her.

[00:20:22] Speaker 00:
And then the country conditions evidence showing that while there are problems with domestic violence in Honduras, the government is taking steps to address those problems and to provide services to protect women in these situations.

[00:20:36] Speaker 03:
Council, may I ask, going back to the waiver question for a minute, it seems that once the government invoked waiver in your response brief, that in the reply,

[00:20:45] Speaker 03:
Ms.

[00:20:46] Speaker 03:
Lopez Martinez puts a lot of weight on this Niang v. Gonzalez case.

[00:20:50] Speaker 03:
And, you know, as you heard, I think Judge Carson asked the question.

[00:20:54] Speaker 03:
That may have been what our court did when we remanded back, but I don't read that case to explicitly hold a certain order of operations or sequence, nor do I recall the context of that case being appellate waiver.

[00:21:06] Speaker 03:
But having read their reply now about Niang, what is your view on how we interpret that case?

[00:21:12] Speaker 00:
Your Honor, my view is the same, is that the court had not addressed the unable or unwilling issue, and so it remanded to the board to consider it in the first instance as is appropriate.

[00:21:24] Speaker 00:
I have found no case law from this court or the board requiring a step-by-step one, two, three analysis.

[00:21:33] Speaker 00:
In fact, the opposite is true.

[00:21:36] Speaker 00:
Both this court in Yang and in Singh lay out three elements.

[00:21:41] Speaker 00:
And the INA, the definition of refugee in the INA includes unable or unwilling.

[00:21:47] Speaker 00:
And so if you cannot satisfy that element, then the

[00:21:51] Speaker 00:
So the failure to challenge that dispositive issue is fatal to this petition.

[00:21:58] Speaker 04:
So I presume that the country conditions report doesn't have specific discussion in it about married women in Guatemala who are unable to leave their relationships or

[00:22:15] Speaker 04:
Oh, that was the difference.

[00:22:18] Speaker 04:
They were in Honduras.

[00:22:19] Speaker 04:
So Honduran women in a relationship they are unable to believe or Honduran women viewed as property by virtue of their status in a relationship.

[00:22:28] Speaker 04:
The country conditions report that they submitted doesn't reflect specific analysis of those social groups.

[00:22:36] Speaker 00:
That's correct, Your Honor.

[00:22:36] Speaker 00:
I believe the closest is what my friend pointed to about the

[00:22:42] Speaker 00:
obeying the view of people thinking that women need to obey their husbands, but nothing specific to these particular groups.

[00:22:51] Speaker 00:
And that's why it's important when evaluating these claims to look both at petitioners' particular situation and then just these overall country conditions.

[00:23:00] Speaker 01:
So... How would... Go ahead.

[00:23:02] Speaker 01:
Prove that.

[00:23:03] Speaker 01:
I mean, if there's not a... Usually everybody relies on the country conditions report.

[00:23:07] Speaker 01:
That's the official report.

[00:23:09] Speaker 01:
That doesn't narrow it down to this specific claimed protected group.

[00:23:15] Speaker 01:
How does the plan approve it?

[00:23:17] Speaker 00:
That's why this is a case by case adjudication before the immigration judge based on not only the country conditions evidence, but the testimony of the

[00:23:27] Speaker 01:
Petitioner or anyone else the petitioner calls so the way they prove it is there's no country report your honor But I asked the police three times and they never showed up Another friend of mine in the same situation acts asked the police they didn't show up And that'd be the kind of the way you'd prove that could be one way.

[00:23:46] Speaker 00:
Yes, your honor But and as this court stated you look at both the petitioners situation and and the country conditions evidence, but again

[00:23:56] Speaker 00:
That's why it is important to address this issue in briefing, to present all these issues.

[00:24:02] Speaker 04:
Well, I guess what I'm getting at, at least, in that discussion about the country conditions report is they tend to have general information in them.

[00:24:13] Speaker 04:
They're not specifically addressed to these very narrow social groups.

[00:24:17] Speaker 04:
It doesn't mean they're irrelevant.

[00:24:19] Speaker 04:
They can be considered.

[00:24:20] Speaker 04:
They do have maybe relevant information about how

[00:24:26] Speaker 04:
the petitioner in this case would have been treated, we can consider them, but it's the same evidence that we would have received if it was the way Honda and women were treated.

[00:24:43] Speaker 00:
That's correct, Your Honor.

[00:24:44] Speaker 00:
The evidence that the agency considered is this broad evidence.

[00:24:49] Speaker 00:
And it's not like an argument that the agency considered

[00:24:53] Speaker 00:
completely irrelevant evidence to these claims.

[00:24:56] Speaker 00:
The agency considered the evidence pertaining to how women in Honduras are treated.

[00:25:02] Speaker 00:
Okay.

[00:25:04] Speaker 03:
Counsel, may I ask you about your 28-J last week?

[00:25:06] Speaker 03:
Yes.

[00:25:08] Speaker 03:
The petitioner here relies or makes an argument that there was an error in the application of that certain case, the matter of ARCG

[00:25:16] Speaker 03:
As you point out to us in a helpful manner, that decision has since been overruled by the attorney general.

[00:25:22] Speaker 03:
But the one point of your letter that wasn't clear to me is, once that is overruled, is it at the time that the petition was before the immigration judge that the judge may have to apply that law, or does it have retroactive application now that it's been overruled?

[00:25:38] Speaker 00:
I would say that it hasn't been determined on the retroactivity, in this case likely

[00:25:46] Speaker 00:
It would not be retroactive, but it doesn't really matter because the board distinguished matter of ARCG instead of applying matter of ARCG, so the result would be the same either way.

[00:26:00] Speaker 00:
If there are no further questions, Your Honors.

[00:26:03] Speaker 04:
Okay, thank you, Council.

[00:26:03] Speaker 00:
Thank you so much.

[00:26:07] Speaker 04:
Can we add a minute to his rebuttal time?

[00:26:14] Speaker 02:
I appreciate the generous minute.

[00:26:15] Speaker 02:
Thank you.

[00:26:15] Speaker 02:
You bet.

[00:26:16] Speaker 02:
I'll be quick.

[00:26:18] Speaker 02:
Your Honor, the issue of what comes first is more about the waiver and how these issues were presented before this court, more than so how they were presented before the agency.

[00:26:27] Speaker 02:
Because on page 37 of the record, the motion to reconsider does ask the agency

[00:26:33] Speaker 02:
to relook at whether the government is unable or willing to protect her, given the particular social group and urges the board to look at the particular social group and that the error of the IJA was that it was applied more broadly and not in this particular context.

[00:26:49] Speaker 02:
So when presenting it to this court, we urged the court to find that it was misapplied in this case, that the board misapplied ARCG and MEVG

[00:27:02] Speaker 02:
and then remanded for the rest of it, and that the issue of waiver of the Unable or Unwilling has something that has to be dealt with by the agency.

[00:27:11] Speaker 02:
And then they can figure that out instead of this court figuring out, so the issue's not waived.

[00:27:16] Speaker 02:
And I think that that has to happen first.

[00:27:18] Speaker 02:
And lastly, my last 30 seconds, Your Honor.

[00:27:20] Speaker 02:
on page 17 and 18 of our brief, excuse me, 18 and 19 of our brief, we cite to all of the different country condition evidence that is specific to enduring women who are viewed by, who are viewed as, who are unable to leave or are viewed as property and that they are a particular social group.

[00:27:38] Speaker 02:
So we... Hold on.

[00:27:40] Speaker 04:
Those specific terms are used in the country conditions report?

[00:27:44] Speaker 04:
No, Your Honor.

[00:27:44] Speaker 02:
Okay.

[00:27:45] Speaker 02:
No.

[00:27:45] Speaker 04:
I'm just saying, if you were proceeding on

[00:27:48] Speaker 04:
Tell me if I'm wrong.

[00:27:49] Speaker 04:
If you were proceeding on the idea that she was a Honduran woman unable to leave, your country condition report evidence would be the same.

[00:28:05] Speaker 02:
Yes.

[00:28:05] Speaker 02:
And we are challenging the application of MEVG and ARCG.

[00:28:10] Speaker 04:
Yeah, fair enough.

[00:28:11] Speaker 02:
OK, thank you.

[00:28:12] Speaker 02:
Thank you, Your Honor.

[00:28:12] Speaker 02:
I appreciate the answer.

[00:28:13] Speaker 04:
Okay, we're going to recess for 10 minutes and we'll be back.

[00:28:19] Speaker 04:
Counsel are excused and the case is submitted.

[00:28:21] Speaker 04:
Thank you to both counsel for your nice arguments.