[00:00:00] Speaker 04:
morning as 23-9609 OCV v. Garland.

[00:00:05] Speaker 04:
Ms.

[00:00:05] Speaker 04:
Dutton.

[00:00:06] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:08] Speaker 01:
I'm Anne Dutton for Petitioners the CR Family, and I'll try to reserve three minutes for rebuttal.

[00:00:15] Speaker 01:
The presidential decision issued by the Board of Immigration Appeals in the CR Family's case, which was captioned a matter of MRMS, establishes a heightened test for proving nexus in an asylum claim.

[00:00:27] Speaker 01:
This interpretation conflicts with the statute, which provides that NEXIS can be satisfied so long as at least one central reason for persecuting the applicant is their protected ground.

[00:00:38] Speaker 01:
As the Supreme Court recently instructed in Loper-Bright, the task now before this panel is to independently determine the meaning of the NEXIS statute and then decide whether MRMS comports with that interpretation, giving no deference to the agency's views.

[00:00:53] Speaker 01:
And because MRMS does indeed conflict with the statute, we would ask that this court join the Sixth Circuit in rejecting MRMS, or in the alternative, find that legal and factual errors in the application of the standard to the CR family's case provide separate basis for remand.

[00:01:09] Speaker 04:
Did MRMS correctly establish the applicable legal framework in the sense that it did cite to and

[00:01:23] Speaker 04:
refer to lea and or ianis And is are you challenging the correctness of those decisions or is it merely the application in?

[00:01:35] Speaker 01:
This case of the legal of a correct legal standard We're not challenging lea1 or the oriana racinos decision your honor we're challenging the framework of mrms to the extent that it goes farther than the

[00:01:48] Speaker 01:
the framework set out particularly.

[00:01:50] Speaker 04:
So it's a misapplication of the case law?

[00:01:52] Speaker 01:
Yes, I think you could look at it that way, although I think the board sees it as kind of the evolution of the LEA-1 test.

[00:02:00] Speaker 01:
But we argue, of course, that MRMS goes farther than LEA-1 because while LEA-1 set out the principle that a family being a means to an end is insufficient to establish centrality under the statute

[00:02:15] Speaker 01:
MRMS takes that reasoning and says that if the family is a means to an end, it's impossible to establish centrality.

[00:02:21] Speaker 02:
So you don't challenge the means-end framework itself that Orion has used, right?

[00:02:26] Speaker 01:
Pardon me, Your Honor.

[00:02:27] Speaker 01:
We do challenge the, I think yes, we do, Your Honor.

[00:02:31] Speaker 01:
We think that that contorts the test asked by the statute.

[00:02:35] Speaker 01:
The statute is focused only on whether the protected ground was one central reason for harm.

[00:02:41] Speaker 01:
An MRMS instead asks whether the protected ground was a central part of the persecutor's overall goals or their overall scheme.

[00:02:49] Speaker 05:
So you're saying that this distinction that comes up occasionally between the means and the end doesn't matter?

[00:02:59] Speaker 05:
Or are you saying that only ends matter and means do not?

[00:03:05] Speaker 01:
We think that the distinction between means and ends that the board makes a mandatory part of the analysis in this case is not the question asked by the statute.

[00:03:15] Speaker 05:
So that still doesn't answer my question.

[00:03:20] Speaker 05:
Are you saying that if there is a violation of the statute in the sense that there was one of these prohibited reasons that was the motivator,

[00:03:32] Speaker 05:
but it was only as to the means and not the end, would that violate the statute?

[00:03:40] Speaker 05:
To make sure I'm understanding.

[00:03:42] Speaker 05:
You could have one of two things.

[00:03:44] Speaker 05:
You could say it has to be an end that is protected or you don't get that protection.

[00:03:51] Speaker 05:
Or you could say you get that protection any time there is an action against you that violates that, whether that action is the end result intent or an intent

[00:04:02] Speaker 05:
of a means to accomplish the end result.

[00:04:05] Speaker 01:
So I think if I'm understanding correctly, Your Honor, and please let me know if I'm not, our position is that so long as the family membership in this case is a central reason that the applicant is targeted for harm, it's irrelevant whether that was as a means to a separate end or as an end itself.

[00:04:20] Speaker 05:
And that seems to me the way the statute is read.

[00:04:24] Speaker 05:
I'm frustrated about the opinions elsewhere in this country that try to

[00:04:29] Speaker 05:
add that additional complexity distinction, which I just don't see in the statute at all.

[00:04:34] Speaker 05:
The question is, what was your action, not whether we characterize it as an end or a means, and that's your position as well.

[00:04:41] Speaker 01:
Exactly, Your Honor, and I think that also comports with the Board's long-standing, the prior way that the Board talked about the test, which was always only focused on identifying the centrality.

[00:04:52] Speaker 01:
What was the central reason this applicant was targeted by the persecutor and didn't require applicants to go beyond centrality

[00:04:59] Speaker 01:
to show why the characteristic was central.

[00:05:03] Speaker 01:
Was it a means?

[00:05:03] Speaker 01:
Was it an end?

[00:05:05] Speaker 01:
That was not historically relevant.

[00:05:07] Speaker 05:
But you have to decide that it was a motive.

[00:05:09] Speaker 01:
Certainly, yes, Your Honor.

[00:05:10] Speaker 01:
It has to be a central reason.

[00:05:12] Speaker 01:
It cannot be minor or incidental.

[00:05:14] Speaker 01:
And we agree with that interpretation of the statute.

[00:05:18] Speaker 04:
Didn't the board, though, find that family membership was not a central reason?

[00:05:26] Speaker 01:
In this case, Your Honor.

[00:05:27] Speaker 01:
Yes, that's correct.

[00:05:28] Speaker 01:
The board found that the family had not established that their family membership was a central reason.

[00:05:33] Speaker 01:
And we think that's error.

[00:05:35] Speaker 04:
So looking at through that lens is really not a means and question that matters because your client lost on the essential motive determination.

[00:05:46] Speaker 04:
I guess your response to that is a lack of substantial evidence.

[00:05:50] Speaker 01:
That's one of our arguments, Your Honor.

[00:05:52] Speaker 01:
But I think also when you look at the manner in which the board applied the MRMS framework to this family's case,

[00:05:57] Speaker 01:
It was done in service of this means to end framing and a separate issue with the decision, which is the imposition of an animus requirement that we haven't discussed yet.

[00:06:05] Speaker 01:
But the board started its analysis by identifying and looking for evidence that there was animus against this family.

[00:06:12] Speaker 01:
Then they turned to identifying the ultimate goal of the cartel, which they found to be possessing the family's land.

[00:06:20] Speaker 01:
And so we would argue that

[00:06:23] Speaker 01:
The factual findings made in this case were made in service of that legal framework that is not consistent with the statute.

[00:06:30] Speaker 01:
is one basis for overturning the board's analysis here.

[00:06:35] Speaker 02:
Is that why you would probably say it's not DICTA?

[00:06:37] Speaker 02:
Is that your position?

[00:06:39] Speaker 02:
The Sixth Circuit case that you, 28J, treats it that way.

[00:06:42] Speaker 02:
Why shouldn't we?

[00:06:44] Speaker 01:
So the Sixth Circuit, when they talk about the framework that MRMS sets out as DICTA, does so on the assumption that there's no record evidence in our family's case showing that there is a central reason for harm.

[00:06:56] Speaker 01:
They said basically that this family would have lost in any event.

[00:06:59] Speaker 01:
So the board didn't need to go into the framework and the broader legal analysis.

[00:07:05] Speaker 01:
There is substantial evidence of nexus in this case.

[00:07:07] Speaker 01:
And of course, the Sixth Circuit didn't have the benefit of reviewing the record.

[00:07:11] Speaker 01:
So that is why we think it's not simply dicta and it's not appropriate for or wouldn't have been appropriate for the board to simply deny on the application of the one central reason test.

[00:07:22] Speaker 05:
Before you talk about nexus, the evidence for or against it, you have to decide nexus to what?

[00:07:29] Speaker 05:
And that's what 1101A says.

[00:07:32] Speaker 05:
There's four or five things that are the what's.

[00:07:37] Speaker 05:
And family is not mentioned.

[00:07:41] Speaker 05:
And yet, in some of the case law, the family is assumed to be always mentioned, always included in this particular well-founded fear in a particular social group.

[00:08:01] Speaker 05:
Is your position that family by itself is a particular social group or does it have to be only a family that is widely recognized as a social group such as a dynasty in some countries where families were the ruling dynasty for a long time?

[00:08:23] Speaker 05:
There has to be something

[00:08:25] Speaker 05:
special about the family before it's a particular social group.

[00:08:28] Speaker 05:
Because I was struck, if Congress really intended family to be by itself the test, I would have thought they would have surely included the word family in the definition.

[00:08:40] Speaker 05:
And they didn't.

[00:08:40] Speaker 05:
So I'm having trouble with that very premise, not before you get to nexus, is nexus to what?

[00:08:47] Speaker 05:
And I don't see how you can find in this statute that nexus to an ordinary family is enough.

[00:08:54] Speaker 01:
Yes, Your Honor.

[00:08:55] Speaker 01:
So since 1985, in the matter of Acosta decision, which was the Board of Immigration Appeals' first decision really looking at the statute, at the Refugee Act that establishes the standard that you were just quoting from, in that very first decision, the Board recognized that family can be a cognizable social group.

[00:09:12] Speaker 05:
The Board did, but now we are told by the Supreme Court, no longer do we need to give deference to that.

[00:09:16] Speaker 05:
So all of a sudden, we can look at it de novo.

[00:09:19] Speaker 05:
And in some ways, I'm unhappy with that change by the Supreme Court.

[00:09:23] Speaker 05:
In other ways, I'm not.

[00:09:25] Speaker 05:
In this case, it somehow frees me up to say maybe that premise wasn't right right from the very beginning.

[00:09:32] Speaker 01:
I think it was, Your Honor.

[00:09:33] Speaker 01:
And I think looking at the Acosta decision, which sets out why it's appropriate, continues to be an appropriate manner of statutory analysis.

[00:09:41] Speaker 05:
So every family, not just a uniquely

[00:09:45] Speaker 05:
Widely recognized.

[00:09:47] Speaker 05:
I mean everybody is a member of a family and so that basically will would mean That's just an enormous expansion of this statue Yes, your honor a couple points in response though first I would note that the board itself agrees and has I know the board does okay?

[00:10:05] Speaker 05:
This would be a question of saying the board I think you got it wrong Where is the word family in there?

[00:10:10] Speaker 05:
And if it's family then it has no meaning at all because everybody's a member of the family

[00:10:15] Speaker 01:
The same is true, though, Your Honor, for the other protected grounds listed.

[00:10:18] Speaker 01:
Almost everyone has a nationality.

[00:10:20] Speaker 01:
Almost everyone has a religion.

[00:10:21] Speaker 01:
Many people have political opinions.

[00:10:24] Speaker 05:
Those sides... Yeah, but those are very widely broad groups, and you can imagine people having real hatred for a different nationality or a different ethnicity.

[00:10:36] Speaker 05:
But if you just say, well, the family is involved,

[00:10:41] Speaker 05:
I just think it's a staggering expansion of the scope of the statute.

[00:10:46] Speaker 01:
So in the Acosta decision, the board looks at the other protected grounds and identifies the common thread in all of them, which is that these are characteristics that are fundamental to someone's identity and that they either cannot or should not be required to change.

[00:10:59] Speaker 01:
And in applying that analysis to the particular social group ground, the board listed examples of other characteristics that are inherently fundamental to one's identity.

[00:11:08] Speaker 01:
And if you are subject to persecution on account of those protected grounds, finding that that is a circumstance where that person would qualify for protection.

[00:11:18] Speaker 01:
Family membership is an inherent part of your identity.

[00:11:21] Speaker 01:
It's something that you cannot change.

[00:11:23] Speaker 01:
And if you're faced with a situation where you are going to be subject to serious harm or death because of this characteristic that's fundamental to your being that you have no way of avoiding, that the board found that that was an appropriate

[00:11:36] Speaker 01:
application of the social group ground.

[00:11:38] Speaker 01:
And we agree with that.

[00:11:40] Speaker 01:
I think, too, the other thing to keep in mind is when setting out the contours and the scope of the particular social group ground, there are other elements of the asylum definition that have to be met before the applicant is eligible for protection.

[00:11:53] Speaker 01:
So family may be a big group.

[00:11:56] Speaker 01:
Everyone has a family for the most part.

[00:11:58] Speaker 01:
But that certainly doesn't mean that everyone who has a family is entitled to asylum in the U.S.

[00:12:03] Speaker 01:
They have to meet all the other elements.

[00:12:05] Speaker 01:
just the same that someone who has a nationality, that fact alone isn't what makes them eligible.

[00:12:10] Speaker 01:
It's what lets them proceed with a claim to see if they can show the other elements.

[00:12:16] Speaker 01:
And so if there is nexus based on the family membership, on the submutable characteristic that the person holds.

[00:12:23] Speaker 05:
So you just have two neighbors, Hatfield and McCoy, that don't like each other.

[00:12:28] Speaker 05:
And they can say, well, I'm a Hatfield and McCoys don't like me.

[00:12:31] Speaker 05:
And so I want to get out of this country.

[00:12:35] Speaker 01:
I think that this is something that, depending on a number of factors, there could be.

[00:12:42] Speaker 05:
Everybody's got neighbors who don't like them, or you probably, if you extended the word neighbor broadly, you could find somebody, not everybody, but certainly it's not uncommon, to have a neighbor with a conflict.

[00:12:52] Speaker 01:
This is where the nexus element comes in, Your Honor.

[00:12:55] Speaker 01:
If this is a simple issue of a personal vendetta over a boundary dispute in your land.

[00:12:59] Speaker 01:
But the nexus is there.

[00:13:00] Speaker 05:
As long as you accept family, then that is why I'm being discriminated against, for sure.

[00:13:06] Speaker 01:
I don't think that's true, Your Honor, looking at the number of cases that have found that family membership was not a central reason for harm in different cases.

[00:13:14] Speaker 01:
It sometimes is simply a personal vendetta where the family membership doesn't play a role.

[00:13:20] Speaker 01:
But there certainly are cases as well where a family is targeted specifically because of the family that they belong to.

[00:13:26] Speaker 05:
The care is not the family because of any characteristic of the family.

[00:13:32] Speaker 05:
It is simply a means of getting to who has title to the property.

[00:13:36] Speaker 01:
I think that in this case, the ownership and possession of this ancestral land is the flip side of the family membership.

[00:13:44] Speaker 01:
These are two sides of the same coin.

[00:13:46] Speaker 01:
And it's true that the cartel had a central reason of obtaining the family's land.

[00:13:51] Speaker 01:
But the fact that the cartel continued to threaten the CR family even after they left their land,

[00:13:57] Speaker 01:
gets to this very point about the immutable characteristic that I was making earlier.

[00:14:01] Speaker 01:
They continue to be threatened after complying with the cartel's demands.

[00:14:05] Speaker 01:
That shows that even under MRMS's more restrictive framework, the family membership was a central reason for harm because the cartel had achieved their ultimate goal.

[00:14:15] Speaker 01:
They got the land.

[00:14:15] Speaker 05:
They hadn't achieved them until they neutralized the ability that that family would ever come back and reclaim the land.

[00:14:21] Speaker 05:
They had to get that family completely out of the picture.

[00:14:24] Speaker 01:
Exactly, Your Honor.

[00:14:25] Speaker 01:
And if the family is returned to Mexico,

[00:14:27] Speaker 01:
After facing these death threats from the cartel, there is every reason to suspect on this record

[00:14:33] Speaker 01:
that the cartel will again go after the family and attempt to either seriously harm or kill them to prevent them from taking the land because of their family membership, because their family membership gives them the right to challenge the cartel for the land.

[00:14:46] Speaker 01:
And that's the exact point of the asylum statute, which is to offer protection when that immutable characteristic puts you at serious risk of harm or death.

[00:14:55] Speaker 01:
And I see that.

[00:14:57] Speaker 04:
I don't think it's a part of the case.

[00:15:02] Speaker 04:
Isn't there some reason to believe that the family could have relocated somewhere within Mexico and is there any showing that the Mexican government was unable or unwilling to protect them from the cartels and I think at least one family members stayed in Mexico relocated in Mexico Why isn't that?

[00:15:26] Speaker 01:
Factor an indication they don't need asylum in this country, but they can be relocated within their home country So you're correct your honor that that's not on review before this board or before this panel excuse me But it is something that would be considered before the family would be granted asylum so finding nexus established is the next part of the analysis and

[00:15:48] Speaker 01:
And if this court finds that nexus is established, the case goes back down and the analysis continues.

[00:15:53] Speaker 01:
The judge would consider in the first instance that exact question.

[00:15:56] Speaker 01:
Could the family relocate?

[00:15:58] Speaker 01:
Could the family seek protection from the government?

[00:16:01] Speaker 01:
We think that there's record evidence showing that both don't work.

[00:16:04] Speaker 01:
But those would be factored before the family would be granted protection.

[00:16:08] Speaker 01:
They just haven't been considered yet.

[00:16:10] Speaker 01:
and are independent elements from the nexus element.

[00:16:13] Speaker 01:
Thank you, counsel.

[00:16:14] Speaker 02:
I have one more question, if I may.

[00:16:16] Speaker 02:
We've been talking just now about assuming that the rule is what it is, whether substantial evidence would play out here against your client's position.

[00:16:26] Speaker 02:
I want to direct you back to the rule that you are challenging as in accurately stating the applicable law.

[00:16:33] Speaker 02:
that begins if a persecutor is targeting.

[00:16:36] Speaker 02:
So if you were gonna take a red pen to that sentence and make it correct, what would you do?

[00:16:42] Speaker 02:
What would be the, leaving aside sort of the more holistic arguments presented in your brief, just, it seems to me, and I'm not gonna tell you what I think yet, I wanna ask you what you think, there's a simple fix that would make this lawful.

[00:16:58] Speaker 02:
But I'm curious to know if you see that in here.

[00:17:01] Speaker 01:
I think that one way to make this lawful, Your Honor, would be to go back to the way that Matter of LEA 1 talked about this, saying if a family is being targeted solely as a means to an end, that's not sufficient to answer the nexus question.

[00:17:17] Speaker 01:
I think as written, the two issues that you would be fixing there would be the kind of categorical pronouncement that family membership cannot be a central reason if there's an ultimate goal.

[00:17:27] Speaker 01:
a separate ultimate goal in the persecutor's mind, and you would be removing the requirement that the means to an end framework be satisfied rather than the statutory central reason test.

[00:17:38] Speaker 02:
So if the court had said, the BIA had said family membership may be incidental, or if the BIA had said family membership is only incidental and it is therefore not one central reason, would those be more likely to comport with a correct statement of the law?

[00:17:56] Speaker 01:
I think that would be moving it closer to a correct statement, Your Honor, but to the extent it still suggested that the core question was this means to end framing, we would still take issue with that as a contortion.

[00:18:07] Speaker 02:
So put aside the means to end framing for a second.

[00:18:09] Speaker 02:
Do you agree that

[00:18:11] Speaker 02:
if we could get in time machine and go back and rewrite this.

[00:18:15] Speaker 02:
Those sorts of changes would be more consistent with what the applicable law requires.

[00:18:19] Speaker 02:
Do you agree with that?

[00:18:20] Speaker 01:
I think they would be more consistent, yes.

[00:18:21] Speaker 02:
OK.

[00:18:22] Speaker 02:
On the means end piece, I'm not understanding how your argument with what's left of it, assuming that there is a way to fix this, comports with how we analyzed this area of law in Oriana.

[00:18:34] Speaker 01:
In the Oriana Recinos decision, Your Honor?

[00:18:36] Speaker 01:
Yes.

[00:18:37] Speaker 01:
So in that case, this court applied the LEA-1 framework.

[00:18:41] Speaker 01:
And the court was very clear that they weren't weighing in on the validity of that framework.

[00:18:44] Speaker 01:
So that remains an open question in the circuit.

[00:18:47] Speaker 01:
The application of that framework to the Oriana Racinos's family case was consistent with LEA-1 in that the fact that the gang's motive could be seen as a means to an end was not taken as dispositive.

[00:19:03] Speaker 01:
It was an appropriate consideration on the facts.

[00:19:05] Speaker 01:
But the court also looked at other evidence to find that there was not central reason established in that case.

[00:19:14] Speaker 01:
So it was part of the analysis, and I think it's permissible for this to be part one way that the court thinks about the Nexus test.

[00:19:21] Speaker 01:
It's the making it the new framework that's the issue and making that the dispositive question versus the statutory one central reason.

[00:19:30] Speaker 02:
Thank you.

[00:19:31] Speaker 01:
Thank you, counsel.

[00:19:32] Speaker 01:
Thank you.

[00:19:33] Speaker 01:
Chair from the government.

[00:19:45] Speaker 00:
Good morning.

[00:19:46] Speaker 00:
Sarah Pergolese for the government.

[00:19:48] Speaker 00:
May it please the court?

[00:19:50] Speaker 00:
The Supreme Court has held in Elias Zacharias that the statute makes motive critical, and the statutory text that the Supreme Court quotes there is the full phrase,

[00:20:00] Speaker 00:
persecution on account of a protected ground.

[00:20:03] Speaker 00:
I think the main frustration that you Judge Abel have really articulated in your issue with family cases in general speaks to the importance of nexus, as my colleague also said.

[00:20:15] Speaker 00:
It's really where the rubber meets the road.

[00:20:17] Speaker 00:
in these cases.

[00:20:19] Speaker 00:
Excuse me.

[00:20:19] Speaker 00:
It's where there ever meets the road in these cases.

[00:20:23] Speaker 00:
And critically, it's where if there is a lack of an intent to overcome or animus, an applicant has a hard time showing that their protected characteristic, their protected trait, is sufficiently central to meet the motive standard.

[00:20:41] Speaker 02:
Can I ask you to focus on the same line that I just discussed with the petitioner?

[00:20:50] Speaker 02:
So do you agree that this statement, this sentence, is a clear if-then statement?

[00:20:58] Speaker 02:
It's a clear categorical statement?

[00:21:00] Speaker 00:
Yes, I do.

[00:21:01] Speaker 00:
I do also think, though, that the petitioners ignore a really critical word in that sentence, which is the words unrelated to.

[00:21:09] Speaker 00:
And that really points again to what the agency is talking about, both in this case, dealing with the facts of this case specifically, and in a way where they're holding maybe applied prospectively to other cases.

[00:21:23] Speaker 02:
Okay, so accounting for the word unrelated, it's in the sentence.

[00:21:28] Speaker 02:
In your briefing, you

[00:21:31] Speaker 02:
Twice added the word only to the Bia's rule which in my discussion with your friend I think would would make this rule a whole lot more consistent with the applicable law the problem is that's in your brief and not in the Bia's decision sure it's also in this court's decision in oria oriana racinos and how it describes the standard, but it's not in that so the problem that I see here is that I

[00:21:57] Speaker 02:
The law as stated, this categorical rule as stated, and now with the instructions we get from Loper-Brite, we are interpreting the INA.

[00:22:09] Speaker 02:
The INA allows mixed vote of claims.

[00:22:11] Speaker 02:
This doesn't seem to.

[00:22:12] Speaker 02:
The INA requires examination of the record as a whole.

[00:22:17] Speaker 02:
This seems to prevent the BIA from doing that.

[00:22:22] Speaker 02:
And the INA applies the same NEXA standard across claims.

[00:22:26] Speaker 02:
And leaving aside for a moment my colleague's concerns about family-based claims generally, this seems to disaggregate those and apply different standards.

[00:22:36] Speaker 02:
So how are my concerns misplaced?

[00:22:40] Speaker 00:
Well, again, I do think that the unrelated to language is doing a lot of work with respect to your concerns.

[00:22:45] Speaker 00:
Maybe I don't understand your own.

[00:22:47] Speaker 00:
Yeah, let me explain.

[00:22:47] Speaker 00:
And let me just also point to that exact language.

[00:22:55] Speaker 00:
And I think the exact language that we're all talking about is on the page seven of the record in that final complete paragraph.

[00:23:04] Speaker 00:
Again.

[00:23:06] Speaker 00:
If a persecutor is targeting members of a certain family as a means to achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal, and therefore not central, one central reason for the harm.

[00:23:22] Speaker 00:
So I think, again, that the unrelated language is doing something similar, if not identical, to the way I've articulated the standard and the way this court has articulated the standard in Oriana Resinos that

[00:23:36] Speaker 00:
a means as only or merely a means to a non-protected end.

[00:23:44] Speaker 00:
This case, MRMS and LEA-1, they both are dealing with family claims specifically, but I think they're also dealing more broadly and more generally with an issue that we are seeing in asylum cases generally where there is the problem where there's widespread generalized crime

[00:24:05] Speaker 00:
in a country and typically the statute doesn't protect against that.

[00:24:09] Speaker 00:
But as this decision does not hold and I am not arguing and the statute does not require, right, the presence of that non-protected motive is not preclusive.

[00:24:19] Speaker 00:
The agency cannot credibly in accordance with the statute and the plain text of the statute find that the presence of that generalized crime ends the inquiry.

[00:24:29] Speaker 00:
And the board explicitly says that elsewhere in this decision.

[00:24:32] Speaker 00:
But they then must do the careful fact-specific work of whether a protected trait, be it family or something else, is also sufficiently central.

[00:24:43] Speaker 00:
And central means more than incidental, tangential, et cetera.

[00:24:49] Speaker 00:
And I think, again, what this sentence and this discussion of means to ends generally is really getting at is that

[00:24:58] Speaker 00:
where the protected trade is really only relevant to the extent that it makes someone attractive for generalized crime, then it is not a sufficiently central motive.

[00:25:10] Speaker 02:
But that's not what the sentence says.

[00:25:13] Speaker 02:
Your statement of the law isn't incorrect, but that's not what the sentence says.

[00:25:17] Speaker 02:
So the perniciousness, I think, here is that this is a published opinion, and this statement of law is

[00:25:26] Speaker 02:
dubious sure and so if you could answer the following question for me, let's just assume that we find a problem with the statement of the law that's Warrant some some reversal you haven't argued that we shouldn't remand this because It would be futile to do so or on harmlessness grounds Because the substantial evidence, you know would support you Am I right in understanding that you have not asked us to do that?

[00:25:56] Speaker 00:
Not in our briefing, but I would like to make the point here that the agency in applying the standards that it describes in the first part of this decision do not rest solely on the fact that the family membership was simply, or was, sorry, I don't want to add simply and again, but was a means to an unprotected ground unrelated to the family membership.

[00:26:21] Speaker 00:
Rather, the agency does do that fact-specific work

[00:26:24] Speaker 00:
in the application portion of this decision and finds that the record evidence as a whole showed that the non-protected motive was central and showed that the protected motive was not sufficiently central.

[00:26:36] Speaker 02:
So is it your position that it's DICTA?

[00:26:41] Speaker 00:
What this sentence is really saying, and I think the description both of animus and means to an end, is further clarifying and explaining what centrality means and doesn't mean.

[00:26:52] Speaker 00:
But I understand your concern with this exact sentence, but I urge the court to look at the decision as a whole, both in the description of the law as a whole and its application of that law in this particular case.

[00:27:12] Speaker 00:
After Loper-Brite, of course, I also agreed with my colleague that the court is no longer required to afford any deference to the agency's decisions, but the Supreme Court left intact, skid more respect, and

[00:27:26] Speaker 00:
The board has a particular expertise in determining what the words of this statute and especially the contours of persecution and motive mean in the context of asylum and withholding and of removal.

[00:27:38] Speaker 00:
And so the board's articulations of those standards are deserving of respect.

[00:27:43] Speaker 00:
in this case and in the long line of cases, that my colleague does not challenge.

[00:27:48] Speaker 00:
I think Judge Robson, you were getting to that issue in your questions in the sense that the petitioners in this case have made explicit that they are not challenging LEA 1.

[00:28:01] Speaker 00:
And I don't see very much, if at all, if any, room between LEA 1 and MRMS.

[00:28:09] Speaker 00:
Maybe the exact braid of

[00:28:14] Speaker 00:
Phrasings and explanation and incorporation is different in MRMS, but the hairs, the individual strands that create that braid come from published precedent from the board that the petitioners have not challenged, and some of which that this court has explicitly deferred to, including matter of JBN in Dalekati.

[00:28:36] Speaker 04:
Motive seems like such a nebulous element to prove by

[00:28:45] Speaker 04:
family on the run trying to prove the motive of a drug cartel in northern or central Mexico I just it seems like the proof problems here enormous

[00:28:58] Speaker 00:
But that's a nature of asylum claims in general, not this case specifically.

[00:29:02] Speaker 00:
I think even in matter of SP, the board made very clear that it is difficult to prove motive.

[00:29:11] Speaker 00:
It doesn't mean the board in SP made clear that an applicant is not required to

[00:29:17] Speaker 00:
definitively prove the exact motive or motives of their persecutor, but they did not dispel the applicant their burden of proof to provide direct and circumstantial evidence so that the agency can ascertain what the motive or motives may be.

[00:29:33] Speaker 00:
And in this case, that's where the applicant has failed.

[00:29:35] Speaker 00:
They have not provided enough evidence to prove that motive.

[00:29:40] Speaker 04:
You use the phrase

[00:29:44] Speaker 04:
substantially central.

[00:29:48] Speaker 04:
Is that just a rephrasing of incidental?

[00:29:55] Speaker 00:
Yeah, yeah.

[00:29:55] Speaker 00:
Sufficiently central was just my paraphrase of how the agency and courts of appeals, including this court, have defined what central means.

[00:30:03] Speaker 04:
And why is family membership incidental in this case, given the fact that we have

[00:30:11] Speaker 04:
I'm not sure who owns the title here, but presumably the children would be heirs to the property at some point.

[00:30:19] Speaker 04:
Why is family membership incidental rather than central?

[00:30:25] Speaker 04:
Because that's the only way to extort this land.

[00:30:30] Speaker 00:
Well, again, because the applicant failed to provide evidence that the family membership as such, per se, is what motivated the cartel to act.

[00:30:40] Speaker 00:
This court in Oriana Renzon and in a number of cases, both applying LEA-1 and just approving of an agency's conclusion of no nexus in general, have really made that family membership per se must be the motivation.

[00:30:55] Speaker 00:
That's a standard that this court has accepted.

[00:30:58] Speaker 00:
In this case, the evidence that we have is that the applicants lived in a community that was the subject of a territorial dispute with this cartel.

[00:31:10] Speaker 00:
The cartel was interested not only in possessing the land that the applicant and their family possessed, but also the land of the entire community.

[00:31:19] Speaker 00:
And the evidence in this case is almost the strongest I've seen of that non-protected general motive for the community at large.

[00:31:27] Speaker 00:
When we zoom into the applicant's own personal circumstances, again, the evidence is not sufficient, especially at this stage, to compel reversal of the agency's conclusion because the threats that the cartel levied against the applicant were tethered to the possession of the land.

[00:31:46] Speaker 00:
In Oriana Rosinos, I think the court noted that another important factor, which I think gets to your question, Judge, about relocation, whether it's possible within Mexico, the court looked at the question of if the non-protected

[00:32:03] Speaker 00:
desire had been met, would the family be continued to be pursued?

[00:32:08] Speaker 00:
And again, the evidence in this case does not cut either way, but that also means it doesn't compel the contrary conclusion.

[00:32:15] Speaker 00:
The applicant received one phone call while they were in Juarez, but they weren't pursued in person.

[00:32:21] Speaker 00:
It's not clear that the threat remained menacing.

[00:32:24] Speaker 00:
And it's also the applicant never told the cartel that they had no intention of coming back to reclaim the land.

[00:32:31] Speaker 00:
That threat was tethered to an assumption.

[00:32:33] Speaker 00:
that they would return and reclaim the land.

[00:32:35] Speaker 04:
I think this dropped out of the case but I think I might have heard you say that a particular social group might be

[00:32:47] Speaker 04:
landowners in Maduro, Mexico?

[00:32:50] Speaker 04:
Would that be a cognizable social group?

[00:32:53] Speaker 00:
It's a possibly cognizable social group, but the immigration judge specifically found that the applicants had not provided sufficient proof that they were members of that social group and they did not challenge that decision to the board.

[00:33:05] Speaker 00:
So that is a fact of the case.

[00:33:08] Speaker 00:
a non-litigated issue.

[00:33:10] Speaker 00:
And so even if it were possible as a ground, it's no longer an issue in the case and outside the scope.

[00:33:19] Speaker 00:
I did also want to acknowledge that while the petitioners challenge language in MRMS that discusses the fact that motives, a family motive, and another protected trait could be intertwined and takes issue with that language, almost identical language exists in LEA-1, which again, the petitioners do not challenge.

[00:33:39] Speaker 00:
So again, I think the threads here all exist in other precedents that the applicants haven't challenged.

[00:33:47] Speaker 00:
And maybe the way the board has woven those threads together into MRMS is clarification and articulation that differs slightly.

[00:33:57] Speaker 00:
But the threads are clearly traced back to other published board decisions that are not at issue in this case, and some of which this court has explicitly deferred to.

[00:34:08] Speaker 00:
I also want to quickly make a point of addressing a point in the applicants, if I can very briefly.

[00:34:15] Speaker 00:
I see I'm almost out of time.

[00:34:18] Speaker 00:
In the petitioners' reply brief, they cite an example of modern slavery in Mauritania as something that would not satisfy the board's test if this means to an end language is applied strictly.

[00:34:31] Speaker 00:
And I really would like to, I know it's not an issue in the case, but I would like to push back

[00:34:35] Speaker 00:
on that assumption because the evidence that the petitioner cites provides clear proof of animus against the portion of the Mauritanian population that is subjected to modern-day slavery.

[00:34:48] Speaker 00:
And so again, I think it really, the petitioners have tethered animus to an intent to punish, but the board has not described it that way in LEA 1 or MRMS and critically did not apply it that way to the facts of MRMS's case.

[00:35:06] Speaker 05:
Give us a one-sentence definition, your definition of animus.

[00:35:12] Speaker 00:
Of animus?

[00:35:13] Speaker 00:
I would describe it as a synonym of persecutory intent or intent to overcome, and I do think it can encompass an intent to subjugate or an intent to control.

[00:35:31] Speaker 00:
Could I say one more thing about animus and the definition thereof?

[00:35:34] Speaker 00:
I'm so sorry.

[00:35:36] Speaker 00:
I did really also want to point out that I don't think Pineda Maldonado from the First Circuit or the Sixth Circuit's recent decision in Masaryagas wrote us deal with this exact argument.

[00:35:48] Speaker 00:
they did not address how animus is defined by the board in this specific way in MRMS, and to the extent that Pinedo Maldonado, the panel noted that the board hadn't defined animus, and if it means only hostility, it's not required.

[00:36:05] Speaker 00:
And then in Missouri, Auguste Rodas, the court rejected the possibility of animus being a requirement, but never even attempted to define it.

[00:36:14] Speaker 00:
Sorry.

[00:36:14] Speaker 00:
I did want to make that final point.

[00:36:18] Speaker 04:
She went over a little bit, so if you want 90 seconds for rebuttal you're welcome.

[00:36:22] Speaker 04:
Thank you You're gonna ask me anyway, right?

[00:36:28] Speaker 01:
I was but appreciate the offer.

[00:36:30] Speaker 01:
Thank you

[00:36:39] Speaker 01:
So just a few points on rebuttal, Your Honors.

[00:36:43] Speaker 01:
Regarding the language about whether the ultimate goal is unrelated to the protected ground, that doesn't save MRMS from being inconsistent with the statute.

[00:36:53] Speaker 01:
The point of the mixed motive standard established by the statute is that there can be a myriad reasons why a persecutor targets an applicant, some related to the protected ground, some unrelated.

[00:37:05] Speaker 01:
There's the fact that a protected ground is unrelated to the ultimate goal is the exact point of the mixed motive statute and what Congress intended to protect when it enacted that statute.

[00:37:18] Speaker 05:
If this family didn't have ownership in that land, they wouldn't have been prosecuted, would they?

[00:37:25] Speaker 01:
I don't know that it's clear, Your Honor.

[00:37:27] Speaker 01:
If they, so for example, if we assume that the family was, well, I would say this.

[00:37:31] Speaker 05:
They say they were tenants, but they didn't have

[00:37:33] Speaker 05:
any ownership in the land whatsoever.

[00:37:35] Speaker 01:
I think if they were tenants and didn't have ownership in the land at all, there's no reason to suppose that the cartel would have continued to target them with death threats after they relinquished the land to the cartel.

[00:37:46] Speaker 01:
It's the precise fact of their family membership and their historical possession of the land.

[00:37:51] Speaker 01:
that gives them the right to continue challenging.

[00:37:54] Speaker 01:
They complied with the cartel's demand.

[00:37:56] Speaker 01:
And this is a point that I think the board doesn't grapple with, which is one of our substantial evidence arguments.

[00:38:02] Speaker 01:
The board assumes that all of the threats were just predicated on getting the family off of the land.

[00:38:07] Speaker 01:
In fact, the cartel continued to threaten them after they left, which I think puts them in a different situation than if they had just been tenants,

[00:38:16] Speaker 01:
because the threatening after the fact really shows that the cartel is going to inflict harm or death on them if they return because of that family membership.

[00:38:29] Speaker 01:
And I realize I'm out of time.

[00:38:31] Speaker 01:
Thank you, counsel.

[00:38:32] Speaker 01:
We appreciate the arguments.

[00:38:33] Speaker 01:
Thank you.

[00:38:33] Speaker 01:
Anything else?

[00:38:35] Speaker 04:
Counsel is excused and the case is submitted.

[00:38:37] Speaker 04:
Thank you.