[00:00:00] Speaker 02:
By the way, please counsel for appellant, make your appearance, and proceed.

[00:00:05] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:07] Speaker 00:
Amelia DeGore is pro bono counsel for petitioner.

[00:00:10] Speaker 00:
With the Court's permission, I'd like to reserve three minutes of my time for rebuttal.

[00:00:14] Speaker 00:
This is a case about basic fairness in immigration proceedings.

[00:00:17] Speaker 00:
The government did not turn square corners here.

[00:00:21] Speaker 00:
The government had in its possession, from its own detention facility, records showing that Diana, as transgender, was being housed by the government

[00:00:30] Speaker 00:
in a transgender housing unit and was receiving gender-affirming medical treatment.

[00:00:34] Speaker 00:
Yet it told the immigration judge just the opposite.

[00:00:37] Speaker 00:
Reopening is required for Diana to submit this undisputedly material evidence.

[00:00:42] Speaker 00:
Reversal and remand is also required to remedy clear error in the adverse credibility determination, which held Diana's timing in coming out against her and is otherwise unreasonable and unsupportable.

[00:00:54] Speaker 00:
Starting with the motion to reopen,

[00:00:56] Speaker 02:
The BIA legally... Well, you've started focusing on the transgender issue.

[00:01:01] Speaker 02:
The BIA found as a independent, sufficient ground to deny the withholding of removal that there was an adverse credibility finding on gang affiliation.

[00:01:17] Speaker 02:
Did it not?

[00:01:19] Speaker 00:
The BIA said that that was dispositive for the withholding of removal.

[00:01:25] Speaker 00:
However,

[00:01:26] Speaker 00:
not reasonable to uphold an adverse credibility determination based on transgender identity, based on purported gang affiliation.

[00:01:35] Speaker 00:
Those are two separate issues at the BIA.

[00:01:37] Speaker 02:
Well, they are two separate issues, and that's the point.

[00:01:40] Speaker 02:
If the BIA found that one issue, gang affiliation, to be dispositive

[00:01:47] Speaker 02:
Why does it matter whatever failings and lack of squaring the corners that the government did relative to the transgender identity issue?

[00:01:58] Speaker 02:
Why is it even relevant?

[00:01:59] Speaker 00:
Because, Your Honor, the potential gang affiliation credibility determination is as to credibility determination.

[00:02:08] Speaker 00:
It's not an independent sufficient basis just to deny withholding.

[00:02:13] Speaker 00:
It's going to why

[00:02:14] Speaker 00:
or why not the credibility determination can stand.

[00:02:17] Speaker 02:
Why is it not?

[00:02:18] Speaker 02:
I mean, the BIA said multiple times that this was a sufficient ground, I believe, to deny relief.

[00:02:25] Speaker 02:
And why is it, as a matter of law, not a sufficient ground to deny relief?

[00:02:30] Speaker 00:
Your Honor, respectfully, the BIA said that it's a sufficient reason to uphold the credibility determination.

[00:02:36] Speaker 00:
The credibility determination is as to Diana's ability to

[00:02:40] Speaker 02:
to present her case that she is transgender and fears harm on that basis.

[00:02:54] Speaker 02:
And if her testimony was found to be incredible, then why would that not be a sufficient basis in and of itself as a matter of law?

[00:03:04] Speaker 02:
And if there's some authority that says to the contrary, now's the time to give it to me, but why as a matter of law would that not be a sufficient basis to deny relief?

[00:03:17] Speaker 00:
Because the credibility determination has to be based on the totality of the circumstances.

[00:03:22] Speaker 00:
It cannot be, excuse me, it has to be based on specific cogent reasons for disbelieving the testimony and supported by substantial evidence and substantially reasonable.

[00:03:32] Speaker 00:
So it would not be substantially reasonable to deny relief on the basis that Diana is transgender based on her credibility as to a completely different issue.

[00:03:42] Speaker 00:
Why not?

[00:03:43] Speaker 02:
If her testimony about being transgender and that being a cause of concern for withholding of removal is found to be, if she's found to be a liar and that there's substantial evidence to support that, the BIA reference authority which says that, you know, on issues essentially, well, one could say tangential issues,

[00:04:08] Speaker 02:
that that in and of itself would say that why do I have to believe you on the transgender issue if I think you're a liar on the other issue?

[00:04:18] Speaker 00:
Because the BIA itself recognized that these are two different issues.

[00:04:24] Speaker 00:
And if Your Honor looks at the BIA's decision in denying the motion to reopen, it recognized that these are two separate issues and that Diana's credibility as to her transgender identity

[00:04:35] Speaker 00:
is standing alone, so it's not affected by her credibility as to her potential gang affiliation.

[00:04:42] Speaker 00:
It would not be substantively reasonable to find, based on a single factor, that she was not credible as to her transgender identity if the court concludes that there is not a sufficient basis to uphold the adverse credibility determination as to her transgender identity.

[00:04:58] Speaker 00:
And there isn't here, because the BIA based that credibility determination

[00:05:03] Speaker 00:
solely on the fact that Diana and her mother had not identified her as transgender in 2017, seven years before her proceedings in this case.

[00:05:12] Speaker 02:
I'm looking at page 440 of the record, and the BIA says there, however, under the Real ID Act, an immigration judge may base an adverse credibility determination on any inaccuracies or falsehoods in the applicant's statements

[00:05:29] Speaker 02:
without regard to whether they go to the heart of the applicant's claim.

[00:05:33] Speaker 02:
And so the point which you made, and I accept, is that transgender identity and gang affiliation are two separate things, but that does not, it seems to me, refute the notion that if

[00:05:46] Speaker 02:
the person offering the testimony regarding both issues has been deemed to be a liar on one issue.

[00:05:55] Speaker 02:
And I'm just referencing what the finding would be of lack of credibility.

[00:06:00] Speaker 02:
If the person is deemed to be a liar on one issue, why could the BIA not say, well, why couldn't the IJ and why couldn't the BIA uphold the fact that you don't trust that person on anything?

[00:06:15] Speaker 02:
Why isn't that the law?

[00:06:16] Speaker 02:
I mean, that's a law in other contexts.

[00:06:18] Speaker 02:
It would seem to me that that could be the law in this context.

[00:06:20] Speaker 02:
The fact finder could say, I don't trust you.

[00:06:23] Speaker 02:
And therefore, whatever you're going to say on transgender identity, I'm just not going to believe it.

[00:06:29] Speaker 00:
But here, the BIA did make a holding as to credibility on transgender identity.

[00:06:35] Speaker 00:
And that holding cannot be sustained strictly by a credibility finding as to gang affiliation.

[00:06:41] Speaker 00:
There is clear error in that holding

[00:06:44] Speaker 00:
regardless for the reasons that we've explained in our brief that Diana does not have the tattoo that the immigration judge and the BIA claimed that she did have.

[00:06:53] Speaker 00:
And so that alone is not supported by substantial evidence.

[00:06:57] Speaker 00:
And the statute itself says that a credibility determination must be based on the totality of the circumstances

[00:07:05] Speaker 00:
can't be affirmed based on a single factor when that factor is unsupportable as we have shown that it is because there is not substantial evidence to support a potential, there is not substantial evidence to support adverse credibility as to

[00:07:21] Speaker 00:
a gang affiliation.

[00:07:23] Speaker 02:
Why is that the case?

[00:07:24] Speaker 02:
I mean, the notion that Diana was a fan of Friday the 13th and therefore that supports why she has the tattoo, why couldn't the BIA, why couldn't the IJ and then the BIA after that find that just to be fanciful and therefore implausible and therefore incredible?

[00:07:44] Speaker 02:
Why is that, what makes sense, why, what is not reasonable about that line of reasoning?

[00:07:51] Speaker 00:
Your Honor, the BIA did not uphold the IJ's determination on that basis.

[00:07:56] Speaker 00:
The BIA said that the IJ permissibly concluded that the applicant's M13 and LOCO's tattoos were an indication of gang affiliation, and the applicant's testimony to the contrary was not credible.

[00:08:06] Speaker 04:
Counsel, you make a lot in your brief about an M13 tattoo versus just a 13 tattoo.

[00:08:14] Speaker 04:
Who introduced the letter M?

[00:08:17] Speaker 04:
Who was the first

[00:08:19] Speaker 00:
person to mention the letter M. Your Honor, Diana was the first person to mention the letter M, but she did not say that she has an M-13 tattoo.

[00:08:28] Speaker 00:
She did not say that she has an M tattoo.

[00:08:31] Speaker 00:
The DHS attorney is the one who introduced that falsehood into the record.

[00:08:36] Speaker 04:
And so the credibility determination... She said that 13 could stand for a number of different things, various things.

[00:08:43] Speaker 04:
And she said, for example,

[00:08:45] Speaker 04:
It's the 13th letter.

[00:08:47] Speaker 04:
It can reference M for Mexico.

[00:08:50] Speaker 04:
What is her connection to Mexico, if any?

[00:08:54] Speaker 00:
Your Honor, there's no indication in the record that there's a connection to Mexico.

[00:09:00] Speaker 04:
But she's the one that said that, right?

[00:09:03] Speaker 00:
She explained that 13 different

[00:09:06] Speaker 00:
Tattoos have different meanings to different people.

[00:09:08] Speaker 00:
And that, for instance, M is the 13th letter of the alphabet.

[00:09:11] Speaker 00:
So M could, 13 could be standing in for Mexico as opposed to something different.

[00:09:17] Speaker 00:
That is not, again, the basis on which the BIA upheld the IJA's credibility determination.

[00:09:23] Speaker 00:
The BIA was relying on the idea that Diana has an M13 tattoo, which she does not have.

[00:09:31] Speaker 00:
So substantial evidence does not support that determination.

[00:09:34] Speaker 00:
And at minimum, Diana should be permitted to reopen the proceedings to present the evidence that she does not have an M13 tattoo, and this was a falsehood introduced by DHS.

[00:09:43] Speaker 03:
Council, could I just ask you, I'm looking at the BIA decision, and it talks about the adverse credibility determination on gang affiliation, and said that that alone is dispositive on withholding of removal.

[00:10:02] Speaker 03:
And then the BIA turned to the Convention Against Torture relief based on CAT and says that the adverse credibility finding on transgender seemed to be the basis to uphold the CAT determination.

[00:10:27] Speaker 03:
Do you read the BIA as, I understand the colloquy between you and Chief Justice Holmes about an adverse credibility determination on one point applying to the rest, but didn't the BIA separate out withholding of removal in CAT and affirm on different credibility determinations?

[00:10:54] Speaker 00:
Your Honor, admittedly, the BIA is

[00:10:57] Speaker 00:
decision is not very clear on this point, but I do agree that the basis for the finding on Cat was adverse credibility determination as to being a transgender woman and whether or not that she was able to establish that she would more likely than not suffer torture if returned to El Salvador.

[00:11:17] Speaker 00:
So I do think that the BIA can be read to have separated these two issues and not considered the

[00:11:25] Speaker 00:
gang affiliation issue dispositive as to her credibility on the cat, because it did say it's dispositive of her application for withholding of removal.

[00:11:35] Speaker 00:
But in either event, it would not be reasonable to uphold the BIA's determination based on credibility as to the gang affiliation.

[00:11:45] Speaker 02:
Well, looking at page 442, it appears that as it relates to the cat determination, that the BIA also said that even if it could be assumed that she would be tortured by virtue of her transgender status, there was no basis to believe that that would have been with the consent of any public authority.

[00:12:06] Speaker 02:
And I didn't see any argument in your brief about the consent issue.

[00:12:10] Speaker 02:
And why isn't that in itself an independent basis

[00:12:14] Speaker 02:
defined that cat relief would not be available.

[00:12:19] Speaker 00:
Because Your Honor, in the BIA's later decision, it clarifies that the only thing standing in Diana's way in terms of receiving relief under either

[00:12:26] Speaker 00:
form of relief is the adverse credibility determination as to whether she's transgender.

[00:12:33] Speaker 02:
These are two different orders.

[00:12:34] Speaker 02:
I mean, let me know the basis for bleeding those two orders together in terms of the rationale.

[00:12:41] Speaker 02:
I mean, this order stands on its own.

[00:12:43] Speaker 02:
This order has been appealed on its own.

[00:12:46] Speaker 02:
And should not it stand or fall based upon the reasoning that's in the order?

[00:12:50] Speaker 00:
Your Honor, these proceedings are consolidated by statute and the agency has clarified in its later order what is the basis for holding against her in the earlier order.

[00:12:59] Speaker 00:
So this court can consider that the BIA, the agency itself, clarified its reasoning in the earlier order when it said that she has made out a prima facie case for relief.

[00:13:09] Speaker 00:
The only thing that was holding her back from that was the adverse credibility determination.

[00:13:14] Speaker 00:
And as a matter of the government's own evidence, medical records indicating that DHS itself was providing her medical treatment while in a DHS detention facility and housing her in a transgender housing unit that she had made out a prima facie case for relief.

[00:13:29] Speaker 02:
And what is the basis for that when the evidence that the whole point of the reopening proceeding is that you were presenting things that you didn't present in the other proceedings?

[00:13:38] Speaker 02:
And so how can we judge the merits of the cat determination in the initial proceeding by bleeding in stuff in terms of whether she made a prima facie case that existed in the reopening proceeding?

[00:13:54] Speaker 02:
I mean, how does that make sense?

[00:13:57] Speaker 00:
Your Honor, it's not whether she was able to present

[00:14:00] Speaker 00:
evidence in the reopening proceeding that should bleed into the adverse credibility determination?

[00:14:04] Speaker 02:
No, I'm talking about the, I'm talking about the, specifically I'm talking about the cat determination and the BIA's statement that, irrespective of whether she made out her case on being transgender and that that would cause some, that she would be tortured as a consequence, that there was no basis to believe that that would be with the consent or acquiescence of the government.

[00:14:27] Speaker 02:
And is that not an independent ground to deny cat relief?

[00:14:32] Speaker 00:
Your Honor, there's a conclusory statement in that later opinion that confuses the grounds on which she presented her basis for cat relief.

[00:14:45] Speaker 00:
I see my time has expired, so I will just point, Your Honor, to the case site in our brief that the BIA can clarify its later decision-making and show that its reasoning in the earlier order should be vacated.

[00:14:58] Speaker 02:
I will give you a little rebuttal time.

[00:14:59] Speaker 00:
Thank you, Your Honor.

[00:15:00] Speaker 03:
Could I just ask one more question?

[00:15:02] Speaker 03:
Sure, of course.

[00:15:03] Speaker 03:
I think this builds a little bit on what the Chief was asking you.

[00:15:08] Speaker 03:
But one of your arguments is that we should remand because the BIA didn't address a bias and unfairness argument, correct?

[00:15:16] Speaker 03:
That's correct, Your Honor.

[00:15:18] Speaker 03:
In addressing this, may this Court consider the motion to reopen

[00:15:24] Speaker 03:
fairness arguments in record given that the appeals are consolidated.

[00:15:34] Speaker 03:
I mean, I'll give you for instance, I mean, you're arguing that

[00:15:39] Speaker 03:
She didn't have the medical records, but DHS counsel cross-examined, tried to impeach her on transgender identity, but at the same time, the records, DHS had the records.

[00:15:55] Speaker 03:
I think that's the gist of your argument.

[00:15:57] Speaker 03:
Can we take that into account in addressing your request for remand for a bias fairness determination

[00:16:08] Speaker 03:
as to the initial April 2024 hearing.

[00:16:13] Speaker 00:
I think Your Honor could instruct the BIA to consider Diana's bias and fairness claim.

[00:16:19] Speaker 03:
Well, I'm looking more for some authority that would allow us to do that.

[00:16:24] Speaker 03:
Are you aware of any

[00:16:26] Speaker 00:
Well, Your Honor, the Mikavichute case requires a remand if the BIA hasn't considered something.

[00:16:32] Speaker 00:
And so if this court concludes that the BIA... Well, that isn't my question.

[00:16:36] Speaker 03:
My question is, can the record in... There's two appeals.

[00:16:41] Speaker 03:
They're consolidated.

[00:16:43] Speaker 03:
Can we consider the record in appeal number two in considering any of the issues in appeal number one?

[00:16:53] Speaker 00:
Your Honor, I think that the statute consolidates them.

[00:16:57] Speaker 00:
I'm not aware of authority giving the court permission to consider completely separate record evidence in the second appeal in order to decide the first appeal.

[00:17:11] Speaker 00:
However, the court can instruct the agency to consider Diana's biased claim in the first instance based on the record that's before the agency.

[00:17:18] Speaker 00:
Thank you, Your Honors.

[00:17:39] Speaker 01:
May it please the court, Anna Juarez, for the respondent, Attorney General.

[00:17:43] Speaker 01:
Petitioner had the burden to establish a credible and persuasive claim for protection from removal.

[00:17:49] Speaker 01:
She failed to meet that burden and now further fails to identify record evidence compelling that she established a credible claim for protection.

[00:17:58] Speaker 01:
Petitioner also bore a heavy burden to establish that reopening was reoriented, but failed to meet that burden as well.

[00:18:05] Speaker 02:
But why don't you take a crack at answering Judge Matheson's question.

[00:18:10] Speaker 02:
Are you aware of any authority that would allow us to consider the record in the motion for reopening in determining whether it would be appropriate to grant remand

[00:18:22] Speaker 02:
on fairness grounds in case number one, given that there was some notion that the government had the evidence that would have supported the transgender claim and was sitting on it and nevertheless impeached Diane at the time.

[00:18:40] Speaker 01:
Yes, Your Honor.

[00:18:42] Speaker 01:
In the consolidated case, generally the court can look at the whole record.

[00:18:46] Speaker 01:
However, I think it needs to look at what was before the agency at each step.

[00:18:52] Speaker 01:
Before the agency, in the first step, there was just no evidence that she was getting gender-affirming care.

[00:19:02] Speaker 01:
She didn't bring it up.

[00:19:04] Speaker 01:
It was her third time in removal proceedings.

[00:19:07] Speaker 01:
She claimed she was detained in pro se and did not have access to records, but no one was requiring her to access her detention records.

[00:19:17] Speaker 01:
She brought up for the first time before this court that DHS had a duty

[00:19:22] Speaker 01:
to submit those records.

[00:19:25] Speaker 01:
However, there's just no indication in the record that the trial attorney, essentially a prosecutor, would have access to her personal medical records in detention without being notified of some in some way.

[00:19:41] Speaker 01:
And so in the motion to you.

[00:19:42] Speaker 02:
Or being notified by whom?

[00:19:46] Speaker 01:
By her, I mean, she had an opportunity.

[00:19:49] Speaker 01:
She was questioned thoroughly about her claim.

[00:19:54] Speaker 01:
She filed her own declaration about her claim.

[00:19:58] Speaker 02:
And so... You use the word prosecutor, and so let me try to engraft a concept on here.

[00:20:06] Speaker 02:
Why would it not be the case that the prosecutor in this instance

[00:20:13] Speaker 02:
on what would have been material to the claim of transgender identity would not have had to inquire whether there was any record of gender-affirming care, because that would have been something that would have been relevant to the determination of whether she should get relief or not, right?

[00:20:30] Speaker 01:
Correct.

[00:20:30] Speaker 01:
And I'll retract the prosecutor analogy.

[00:20:37] Speaker 01:
She had the burden to prove her claim.

[00:20:41] Speaker 01:
at every step of the way.

[00:20:42] Speaker 01:
It was her burden.

[00:20:44] Speaker 01:
Even being detained in pro se, it's her burden to establish it.

[00:20:49] Speaker 01:
The transcript shows that the IJ did question at length.

[00:20:54] Speaker 01:
DHS had no burden.

[00:20:57] Speaker 03:
Did the IJ ask anything about the treatment?

[00:21:01] Speaker 01:
The IJ did not ask the specific question, you know, have you received hormone therapy?

[00:21:08] Speaker 01:
And all of the

[00:21:09] Speaker 01:
arguments about duty to develop.

[00:21:11] Speaker 01:
I mean, they kind of come down, in this case, to that one specific question.

[00:21:16] Speaker 03:
Could I just ask, maybe backing up and looking at this big picture, do you agree now that Ms.

[00:21:27] Speaker 03:
Munoz Ramirez is transgender?

[00:21:29] Speaker 01:
The government doesn't dispute that.

[00:21:31] Speaker 03:
All right.

[00:21:34] Speaker 03:
And there were records in the file on April

[00:21:39] Speaker 03:
for 2024 that she was getting treatment for being transgendered?

[00:21:45] Speaker 01:
There weren't necessarily in the record.

[00:21:49] Speaker 01:
DHS, the detention center, had those medical records.

[00:21:53] Speaker 01:
There's no indication they would be in a trial attorney's.

[00:21:56] Speaker 03:
Now, I understand.

[00:21:57] Speaker 03:
But at this point, we know they were there.

[00:22:00] Speaker 01:
Yes, they existed.

[00:22:01] Speaker 03:
And they're in the record now.

[00:22:03] Speaker 01:
They're in the record now.

[00:22:04] Speaker 03:
All right.

[00:22:05] Speaker 03:
So have you considered conceding that she was transgender on April 4, 2024?

[00:22:14] Speaker 01:
Even if she is, and we are conceding she was receiving that gender-affirming care.

[00:22:20] Speaker 01:
As Your Honor pointed out earlier, she's still not credible.

[00:22:25] Speaker 01:
There were still reasons the court can accept that she is transgender.

[00:22:29] Speaker 03:
Well, we're just on the gender identity credibility determination.

[00:22:32] Speaker 03:
I mean, how is that not clearly erroneous, given what is known now?

[00:22:39] Speaker 01:
She still had the burden in both of the cases.

[00:22:41] Speaker 01:
She wasn't credible.

[00:22:43] Speaker 01:
She wasn't credible for independent reasons.

[00:22:45] Speaker 03:
I'm not talking about the other reasons right now.

[00:22:47] Speaker 03:
We're just talking about gender identity.

[00:22:50] Speaker 03:
Yeah, and for the most- Isn't that credibility, determination, looking at it broadly, clearly erroneous?

[00:23:00] Speaker 01:
Just the transgender.

[00:23:02] Speaker 01:
Yes.

[00:23:06] Speaker 01:
As the board said in its second decision, it was material to that one specific issue.

[00:23:13] Speaker 03:
I didn't ask whether it's material.

[00:23:15] Speaker 03:
I just asked, is it clearly erroneous?

[00:23:17] Speaker 03:
Looking back now, I mean, we've got records that she was getting treatment before the hearing.

[00:23:26] Speaker 03:
She told the IJ she was transgender.

[00:23:30] Speaker 03:
She was getting treatment.

[00:23:31] Speaker 03:
Records now confirm it.

[00:23:33] Speaker 03:
Now, I understand about records from the one appeal and the records from the other appeal.

[00:23:38] Speaker 03:
But as a practical matter, how can that credibility determination be correct?

[00:23:45] Speaker 01:
Well, at that time, there were no records before the board when they made that decision regarding.

[00:23:52] Speaker 01:
So arguably, that was not clearly erroneous at that time.

[00:23:56] Speaker 03:
So the government, in the face

[00:23:59] Speaker 03:
clear documented evidence that she was transgender on April 4 is not willing to say that that credibility determination was clearly erroneous.

[00:24:10] Speaker 03:
Is that your argument?

[00:24:11] Speaker 01:
Not at that time.

[00:24:13] Speaker 03:
But the government also... I know.

[00:24:15] Speaker 03:
We're talking about now.

[00:24:19] Speaker 01:
Yes.

[00:24:19] Speaker 01:
What the agency had before it at that time was not clearly erroneous.

[00:24:24] Speaker 03:
Why wouldn't it make sense to have it go back in light of everything that's happened?

[00:24:28] Speaker 01:
And that would be a matter of the motion to reopen.

[00:24:31] Speaker 01:
I mean, any evidence could come out after an agency decision.

[00:24:35] Speaker 03:
Well, she's also arguing that the IJ hearing was biased and unfair, and the BIA didn't even address it.

[00:24:42] Speaker 03:
So aren't we required to send that back?

[00:24:47] Speaker 01:
That also was specifically with the transgender claim.

[00:24:51] Speaker 01:
The BIA did not

[00:24:57] Speaker 01:
The BAA majority decision did not address it.

[00:25:00] Speaker 01:
They did in the dissent.

[00:25:02] Speaker 01:
The record shows that the IJ gave a full hearing to show bias.

[00:25:09] Speaker 03:
But is that something we can decide?

[00:25:12] Speaker 03:
Can we go back and look at the IJ hearing and say, oh, it wasn't an unfair bias?

[00:25:17] Speaker 03:
Or is that something that the agency needs to decide just as a matter of basic administrative law?

[00:25:26] Speaker 01:
a couple of different responses to that.

[00:25:29] Speaker 01:
Generally, procedural due process the agency needs to look at first.

[00:25:35] Speaker 01:
The overall, though, constitutional questions are de novo.

[00:25:40] Speaker 01:
And I think in this case, it doesn't, because it goes to transgender, she's not claiming a duty to develop the record regarding all of these inconsistent claims.

[00:25:51] Speaker 01:
It's really just the transgender part of it.

[00:25:55] Speaker 01:
she really is not disputing these other grounds of adverse credibility and has no, she was given the opportunity to explain them.

[00:26:05] Speaker 01:
The BIA said we would find her adversely credible based on this dispositive ground plus a few other grounds.

[00:26:15] Speaker 02:
And help me, help me with this.

[00:26:17] Speaker 02:
I mean, if in fact,

[00:26:20] Speaker 02:
as I read the BIA decision, it was dispositive that she was not credible as it relates to gang affiliation.

[00:26:31] Speaker 02:
What difference does it make?

[00:26:33] Speaker 02:
I mean, on the motion to reopen, if in fact the issue is, is she carrying out her burden of proof and she is found to be incredible, why does that not a sufficient basis for the BIA to deny relief?

[00:26:50] Speaker 02:
And what I want to disaggregate here is a question of fairness and what should happen from whether, as a matter of law, the BIA was obligated to do anything else.

[00:27:02] Speaker 02:
That's a question.

[00:27:04] Speaker 01:
I agree, Your Honor.

[00:27:05] Speaker 01:
The Board was very clear about that being a dispositive ground.

[00:27:09] Speaker 01:
It separated it from the transgender, which brings in all of the bias duty to develop.

[00:27:15] Speaker 01:
The Board absolutely can deny, based on that ground,

[00:27:19] Speaker 01:
As your Honor noted previously, the statute says that it doesn't need to go to the heart of the claim.

[00:27:26] Speaker 01:
She's never actually denied or rejected the IJ's findings regarding the inconsistent testimony about why she got the tattoos.

[00:27:39] Speaker 01:
The only argument she's making now is she didn't even raise it to the agency that one of the three tattoos she doesn't have, there's a LOCOS

[00:27:48] Speaker 01:
a 13 and an M. She, as you pointed out, introduced the M. DHS followed up and said your M tattoo means Mexico.

[00:27:57] Speaker 01:
She said yes, and then has not brought it up until the briefing before this court.

[00:28:04] Speaker 01:
And whether or not the M exists, there's plenty in the record that the court could uphold the adverse credibility finding based on that alone.

[00:28:15] Speaker 04:
Council, I have a question for you.

[00:28:16] Speaker 04:
So I understand it's the petitioner's burden

[00:28:19] Speaker 04:
But I want to talk with you a little bit about the record that Judge Matheson inquired about.

[00:28:23] Speaker 04:
So there's a case that cited the matter of MAM, and it talks about DHS's obligation to provide the court with relevant materials in its possession regarding the respondent's mental capacity as a safeguard where the respondent's competency is at issue.

[00:28:41] Speaker 04:
We don't have that issue in this case, but we have an issue of whether she was transgender or not.

[00:28:46] Speaker 04:
What is the Attorney General's position on whether that case would support an obligation on behalf of DHS to provide whatever record it may have had, if it could have had some relevance at all?

[00:29:02] Speaker 01:
The matter of MAM and the mental incompetency

[00:29:06] Speaker 01:
That comes into play when there's some indication before the IJ that an individual has mental competency issues and then DHS is tasked with helping find records.

[00:29:22] Speaker 01:
It really does not come into play here.

[00:29:24] Speaker 01:
No one has extended it to just other medical records.

[00:29:27] Speaker 01:
And again, if it was even analogous, there would have had been some indication before the IJ

[00:29:35] Speaker 01:
for the IJ to ask DHS to go.

[00:29:37] Speaker 04:
Are you aware of any authority that would say we should expand that decision to cover any and all records that could have any relevance at all beyond the mental competency issue?

[00:29:47] Speaker 01:
I'm not aware of that, no.

[00:29:49] Speaker 03:
Isn't that what the regulation says?

[00:29:53] Speaker 03:
It's CFR Section 1242A.

[00:29:57] Speaker 03:
It says DHS Council

[00:30:00] Speaker 03:
should present on behalf of the government evidence material to the issues of deportability or inadmissibility on any other issues that may require disposition.

[00:30:10] Speaker 03:
Why didn't that impose an obligation to disclose the medical records?

[00:30:19] Speaker 01:
I think in this case, DHS trial counsel didn't know it was something to disclose.

[00:30:25] Speaker 03:
Is there any duty to inquire or check the records?

[00:30:33] Speaker 01:
It would be one thing to say that in hindsight, but there's nothing in this record that indicates that that would be something to discover.

[00:30:42] Speaker 03:
In the motion to reopen, though, it suggests that maybe it's a little more than hindsight.

[00:30:51] Speaker 03:
That is, there were records.

[00:30:54] Speaker 03:
And yet, DHS Council presented before the IJ as if there weren't any.

[00:31:04] Speaker 01:
Yes, Your Honor.

[00:31:05] Speaker 01:
And before the IJ, this was Petitioner's third time in proceedings and the first time that she claimed to be transgender.

[00:31:16] Speaker 01:
It's not entirely unreasonable that DHS would not be, or would be skeptical.

[00:31:25] Speaker 02:
Let me follow up on the regulation.

[00:31:29] Speaker 02:
Does the regulation impose a Brady-like obligation on DHS to present information that might be exculpatory?

[00:31:41] Speaker 02:
I mean, you know, there's one thing to say, you should present things as the person trying to seek, remove somebody, you should present things that are material to that removal.

[00:31:52] Speaker 02:
It's another thing to say,

[00:31:54] Speaker 02:
You should search for records that might be material to prove that that person should not be removed.

[00:31:59] Speaker 02:
I mean, is there any sort of Brady-like obligation on DHS in these contexts?

[00:32:03] Speaker 01:
There is not.

[00:32:04] Speaker 01:
And Brady is applied in criminal proceedings.

[00:32:07] Speaker 01:
This is different.

[00:32:09] Speaker 02:
And just to be clear, what I'm talking about is the need to present exculpatory or information that might be favorable to the alien.

[00:32:20] Speaker 01:
Yeah, there's nothing in the statute of regulation that requires DHS to do that.

[00:32:25] Speaker 01:
It just requires that she has the burden.

[00:32:28] Speaker 01:
DHS did not have the burden in this case.

[00:32:31] Speaker 01:
We would argue that she did not meet her burden.

[00:32:33] Speaker 01:
I see my time is up, but I'm happy to answer any further questions.

[00:32:37] Speaker 04:
Other than saying that she was transgendered at that time, did she say that she had received treatment?

[00:32:44] Speaker 01:
No, not during her proceedings.

[00:32:50] Speaker 02:
Thank you, Counsel.

[00:32:51] Speaker 01:
Thank you, Your Honors.

[00:32:52] Speaker 02:
A minute and a half.

[00:33:09] Speaker 00:
Thank you for the additional time, Your Honor.

[00:33:11] Speaker 00:
I'd like to pick up where the panel left off with my friend from the other side.

[00:33:14] Speaker 00:
The regulation imposes a duty on DHS to present material evidence, not any evidence that would be favorable to the applicant, but evidence that's material, as the BIA concluded that these medical records within the possession of the agency

[00:33:28] Speaker 00:
were material.

[00:33:29] Speaker 02:
And I'll pick up on Judge Heil's question.

[00:33:32] Speaker 02:
If she did not indicate that she was receiving treatment, why would the DHS counsel even know that they were material?

[00:33:42] Speaker 02:
That would create a very different scenario if she had said, look, you know, I've been getting treatment.

[00:33:48] Speaker 02:
And then the DHS counsel ignored that and acted like it didn't happen.

[00:33:53] Speaker 02:
We might be in a different situation, but that didn't happen, right?

[00:33:56] Speaker 00:
Stepping back here, Your Honor, DHS had to pick a lane.

[00:33:59] Speaker 00:
It affirmatively disputed before the IJ her transgender identity and accused her of lying.

[00:34:05] Speaker 00:
The DHS attorney didn't just say,

[00:34:08] Speaker 00:
She hasn't met her burden and left it at that.

[00:34:10] Speaker 00:
It went beyond and said she's lying.

[00:34:12] Speaker 04:
That's a different answer.

[00:34:14] Speaker 04:
That's not the question.

[00:34:16] Speaker 04:
The question was, did the petitioner ever say that she had, beyond just being transgender, did she ever say, I'm actually receiving treatment.

[00:34:24] Speaker 04:
I have received treatment in your facility.

[00:34:26] Speaker 04:
Did she ever say that?

[00:34:28] Speaker 00:
No, because the IJ only asked her two questions regarding her transgender identity.

[00:34:32] Speaker 00:
When did you start identifying as transgender?

[00:34:34] Speaker 00:
And when you say you're transgender, what does that mean to you?

[00:34:37] Speaker 00:
I see my time has expired.

[00:34:38] Speaker 00:
I request that the court grant the petitions and reverse and remand.

[00:34:42] Speaker 02:
Thank you.

[00:34:43] Speaker 02:
Thank you, counsel, for your fine arguments.

[00:34:45] Speaker 02:
The case is submitted.