[00:00:00] Speaker 01:
25-9536, Teresillo-Sortiz versus Bondi.

[00:00:05] Speaker 01:
Counsel, please proceed.

[00:00:11] Speaker 04:
May it please the court?

[00:00:13] Speaker 04:
Your Honor, there's three strong reasons for remanding this case.

[00:00:18] Speaker 04:
The first one comes from a close reading of 8 USC 1252

[00:00:26] Speaker 04:
B4A.

[00:00:27] Speaker 04:
That statute requires that the removal decision shall be based only on the administrative record.

[00:00:37] Speaker 04:
Here, the removal order was based on an administrative record that was missing the key exhibit.

[00:00:45] Speaker 04:
The removal order was based on

[00:00:49] Speaker 04:
the fact that Ms.

[00:00:51] Speaker 04:
Tercio-Sortiz could relocate safely in Honduras.

[00:00:58] Speaker 04:
And that decision was based solely entirely on Exhibit 9.

[00:01:03] Speaker 04:
But Exhibit 9 is not in the record.

[00:01:06] Speaker 02:
Well, it seems that Exhibit 9 is not in the record.

[00:01:10] Speaker 02:
You're right about that.

[00:01:10] Speaker 02:
But aren't we looking at the basis for the IJ's ruling here as to cap protection holistically, right?

[00:01:19] Speaker 04:
Yes, Your Honor.

[00:01:20] Speaker 04:
Holistically, we are.

[00:01:22] Speaker 04:
And the basis for the IJ's ruling was that there would be possible safe relocation.

[00:01:29] Speaker 04:
Then the BIA changed that to, without notice, without any factual basis, the BIA changed that to reasonable safe relocation.

[00:01:43] Speaker 04:
What the actual facts are is that there is no

[00:01:48] Speaker 04:
possible safe relocation, and there is no reasonable safe relocation if the court looks at what the immigration judge and the BIA were purportedly relying on.

[00:02:06] Speaker 03:
Can they also rely on the testimony of Ms.

[00:02:11] Speaker 03:
Turcos Ortiz when she testified that there were areas where the gang could not go?

[00:02:19] Speaker 04:
Yes, Your Honor.

[00:02:23] Speaker 04:
There's areas where the gang could not go, but those areas don't indicate that she would be safe there.

[00:02:31] Speaker 04:
there was never a finding that she would be, that she could go there and be reasonably safe.

[00:02:38] Speaker 04:
And in fact, as a matter of law, the standard is not possible safety and not reasonable safety, but under the Torture Convention, it's under HCFR 208.16C, which means that

[00:03:00] Speaker 04:
Relocation.

[00:03:04] Speaker 04:
The applicant must be able to relocate where it is likely that she will not be tortured.

[00:03:11] Speaker 04:
And so without citing any without citing the correct standard.

[00:03:16] Speaker 04:
It's difficult to know exactly what the judgment possible relocation is definitely not anywhere in the regulations or the case law.

[00:03:28] Speaker 04:
Reasonable relocation has to do with withholding of removal.

[00:03:32] Speaker 02:
Well, Council, what I'm struggling with is how to read the law that provides eligibility for cat protection, which has a number of factors to it.

[00:03:45] Speaker 02:
One of them is the one that you're pressing here today that was based on Exhibit 9 and perhaps a mischaracterization of Exhibit 9.

[00:03:53] Speaker 02:
But there are other factors.

[00:03:54] Speaker 02:
in that list that would provide for eligibility or not for cap protection.

[00:04:01] Speaker 02:
And the IJ seemed to have considered other factors in addition to the one that you're pressing.

[00:04:06] Speaker 02:
And as I read the BIA's order, because it's a single judge order and we can look more to a fulsome presentation of the IJ's reasoning, that the BIA incorporated all of that as well.

[00:04:18] Speaker 02:
that there was sort of a broader reasoning for why cap protection was denied or your client didn't satisfy her burden to show she was eligible for it.

[00:04:27] Speaker 02:
So how should we be thinking about that?

[00:04:29] Speaker 04:
The problem with that finding is that the definition of torture was not employed.

[00:04:36] Speaker 02:
That's a different issue now that that's that is a different issue that you're raising.

[00:04:40] Speaker 04:
Yes, it comes to that point where where the IJ say, Gee, there isn't sufficient evidence here of of torture.

[00:04:50] Speaker 02:
You didn't present that argument before the agency, did you?

[00:04:58] Speaker 04:
I don't think we had a holding on that.

[00:05:07] Speaker 04:
exactly from the IJ, but we did argue the definition of torture, yes, before the agency.

[00:05:13] Speaker 04:
That's at page 19 of the administrative record.

[00:05:16] Speaker 04:
And that really is the problem, because the IJ says the evidence is not sufficient to rise to the level of torture.

[00:05:29] Speaker 04:
And the evidence is not sufficient to show willful blindness or government acquiescence.

[00:05:37] Speaker 04:
nowhere is any discussion of facts applied to the standard for willful blindness, nothing there in the decisions.

[00:05:48] Speaker 04:
And then when we come to what the sufficiency of the evidence of torture

[00:05:54] Speaker 04:
The actual definition of torture is never cited, never relied on.

[00:06:00] Speaker 04:
And the point we're trying to make is that if that definition is relied on, then according to the case law, mental torture needs to be considered.

[00:06:10] Speaker 04:
Not just the case law, but according to the

[00:06:12] Speaker 04:
black letter law of the definition.

[00:06:15] Speaker 01:
If that was true, wouldn't every case where there was a threat be a case of mental torture and everybody would then qualify?

[00:06:25] Speaker 01:
for cap protection?

[00:06:27] Speaker 04:
That's one way to look at it.

[00:06:28] Speaker 04:
But we do have the Vaclav case here in the 10th Circuit that talks about a certain test for when threats rise to the level of persecution.

[00:06:43] Speaker 04:
It's an asylum case.

[00:06:44] Speaker 04:
It deals with persecution.

[00:06:46] Speaker 04:
But it still provides a guide.

[00:06:48] Speaker 04:
And it says when these threats are imminent, when these threats are

[00:06:54] Speaker 04:
prolonged.

[00:06:56] Speaker 04:
And also the regulation deals with the fact that the threat has to be prolonged.

[00:07:04] Speaker 01:
Well, you have a finding that there was no imminent threat, right?

[00:07:09] Speaker 01:
The agency found there was no imminent threat.

[00:07:12] Speaker 04:
The agency did not make that finding.

[00:07:15] Speaker 04:
The agency simply made the conclusion that Ms.

[00:07:20] Speaker 04:
Hershios did not qualify for the torture convention.

[00:07:27] Speaker 04:
It was just a conclusory sentence.

[00:07:30] Speaker 04:
of the government made the argument in their briefing that it wasn't imminent.

[00:07:37] Speaker 04:
But that's really a factual question.

[00:07:40] Speaker 04:
It needs to be decided by the fact finder.

[00:07:44] Speaker 04:
In this case, the fact finder

[00:07:47] Speaker 04:
really didn't entertain mental torture, didn't entertain the Vasilev decision to see if it was imminent and prolonged and intentional.

[00:07:58] Speaker 03:
And it was a fact.

[00:08:00] Speaker 03:
The court did.

[00:08:00] Speaker 03:
The fact finder did rely on the fact that even when she refused to deliver drugs, there was three months where no one interfered with her or carried out any threats against her.

[00:08:16] Speaker 03:
Isn't that relevant?

[00:08:17] Speaker 03:
here, both in terms of duress and in terms of cath.

[00:08:25] Speaker 04:
I think, Your Honor, you're correct.

[00:08:27] Speaker 04:
It is relevant.

[00:08:29] Speaker 04:
But three months during COVID is a rare and different situation.

[00:08:35] Speaker 04:
There was a pause during COVID.

[00:08:38] Speaker 04:
She was able to negotiate a pause during COVID.

[00:08:43] Speaker 04:
And during that time,

[00:08:47] Speaker 04:
She planned her escape.

[00:08:49] Speaker 04:
She staged her escape.

[00:08:51] Speaker 04:
And she left during that three-month period at the end of it.

[00:08:57] Speaker 04:
And so it's not really that everything was fine for three months.

[00:09:03] Speaker 04:
Everything was paused for three months.

[00:09:06] Speaker 04:
But she knew if she stayed, she would have to go back to that type of forced labor.

[00:09:13] Speaker 02:
Do you agree that the BIA's decision incorporates all of the IJ's reasoning with respect to the cat protection?

[00:09:22] Speaker 02:
And if you agree with that, and I think that is how I read the record too,

[00:09:28] Speaker 02:
The IJ provided several reasons for determining that your client did not establish a likelihood of torture.

[00:09:36] Speaker 02:
And the exhibit nine related reason, the relocation reason was only one of those reasons.

[00:09:44] Speaker 02:
And so what I'm struggling with is why we can't conclude that the BIA's ultimate cat determination is unsupported by substantial evidence here.

[00:09:55] Speaker 02:
If, in fact, to determine whether CAD is appropriate, you have a number of non-exhaustive factors.

[00:10:02] Speaker 02:
The IJ relied on many, not just the one that you're challenging.

[00:10:07] Speaker 02:
And to agree with you, it seems we would have to read the record differently than the one that we have.

[00:10:14] Speaker 04:
Your Honor, I think the IJ had three reasons.

[00:10:18] Speaker 04:
One is that the facts did not rise to the level of torture.

[00:10:24] Speaker 04:
Two is that there was not proof that the government was willfully blind.

[00:10:30] Speaker 04:
Three, and this was really, really her main reason.

[00:10:34] Speaker 04:
Three was that it was easy to relocate.

[00:10:36] Speaker 04:
It was possible to relocate.

[00:10:39] Speaker 04:
Those were the three reasons the IJ gave.

[00:10:42] Speaker 01:
So let's talk about that.

[00:10:43] Speaker 01:
If the first two are true, why does the third matter?

[00:10:46] Speaker 01:
If there was no torture or imminent threat of torture,

[00:10:53] Speaker 01:
We don't have to worry about relocating, do we?

[00:10:55] Speaker 01:
Relocating generally only becomes relevant when somebody is likely to be tortured when they return to their hometown or a certain area of their country.

[00:11:06] Speaker 04:
Correct.

[00:11:07] Speaker 04:
And Your Honor, first of all, the main reason that both the BIA and the IJ gave was safe relocation.

[00:11:17] Speaker 01:
That might have been their first reason, or there's something they focused on the most, but it doesn't obviate the other two reasons.

[00:11:24] Speaker 04:
No, no it doesn't.

[00:11:26] Speaker 04:
And that's where I'm bringing up the definition of torture, because the other two reasons, insufficient evidence, acquiescence,

[00:11:35] Speaker 04:
were based on a recitation of facts and a conclusion without any analysis of what torture is under the regulation.

[00:11:47] Speaker 04:
Torture under the regulation is mental torture prolonged with an imminent threat.

[00:11:54] Speaker 02:
The government contends that that argument is unexhausted and the argument that the incorrect definition or a definition, a legal definition of torture was not applied.

[00:12:05] Speaker 02:
Why should we disagree with the government and agree with you that the argument is in fact exhausted here?

[00:12:11] Speaker 04:
The government is simply wrong.

[00:12:13] Speaker 04:
It's on the administrative record in the BIA appeal brief at page 19 and 20, administrative record 19 and 20.

[00:12:25] Speaker 04:
The appellant's attorney says very clearly, quotes very clearly, first of all, the definition of torture, which never happens in any other.

[00:12:38] Speaker 04:
Yes, Your Honor.

[00:12:38] Speaker 01:
Go ahead.

[00:12:39] Speaker 04:
Yeah.

[00:12:41] Speaker 04:
The appellant's attorney quotes the definition of torture.

[00:12:50] Speaker 04:
I'm sorry, I'll reserve the rest of my time.

[00:12:54] Speaker 03:
Well, before you sit down, I actually have an argument on duress.

[00:13:02] Speaker 03:
First of all, the burden is on your client to prove the elements of duress, even if we recognized duress defense to the persecutor bar.

[00:13:14] Speaker 03:
Would you agree with that?

[00:13:18] Speaker 04:
Yes, the way the regulation, the regulation is a 208.16d2.

[00:13:26] Speaker 04:
And what the regulation says is first, there's an allegation of a particular serious crime.

[00:13:33] Speaker 04:
And then second, there's an opportunity for the applicant to rebut.

[00:13:38] Speaker 04:
And then a balancing takes place.

[00:13:41] Speaker 04:
And so during that rebuttal, yes, duress traditionally

[00:13:45] Speaker 04:
would have been considered in the totality of the circumstances.

[00:13:49] Speaker 03:
And again, the question is burden.

[00:13:53] Speaker 03:
It would have been your client's burden to meet the elements if we recognized a duress defense to the persecutor bar.

[00:14:03] Speaker 03:
The elements that we recognize an immediate threat of death or serious bodily injury, a well grounded fear that the threat will be carried out and no reasonable opportunity to escape the threatened harm.

[00:14:18] Speaker 03:
Now, our case law is pretty strict on meeting those elements.

[00:14:24] Speaker 03:
Would you agree with that?

[00:14:27] Speaker 04:
Yes, your honor.

[00:14:28] Speaker 04:
And I do think facts support that.

[00:14:30] Speaker 04:
I do think it's arguable.

[00:14:31] Speaker 04:
And if we had an honest, who are working with the honest definition of torture that that we could rebut, we could rebut the allegation of serious reasons to believe.

[00:14:45] Speaker 01:
Um, well, she escaped though.

[00:14:48] Speaker 01:
I mean, for three months, she told him she didn't want to do it anymore.

[00:14:53] Speaker 01:
She effectively escaped.

[00:14:56] Speaker 04:
She did.

[00:14:56] Speaker 04:
She got away.

[00:14:59] Speaker 01:
She paused for three months, and then she escaped in the early morning.

[00:15:03] Speaker 01:
Right.

[00:15:04] Speaker 01:
And I want to be clear.

[00:15:05] Speaker 01:
I don't think by escape we mean that you were able to escape and come to another country.

[00:15:13] Speaker 01:
Maybe we do.

[00:15:14] Speaker 01:
I don't know.

[00:15:15] Speaker 01:
But I think she was somehow away.

[00:15:19] Speaker 01:
I mean, you call it a pause, whatever.

[00:15:23] Speaker 01:
She was able to get away from

[00:15:26] Speaker 01:
from the people for a period of at least three months before she came to the United States?

[00:15:31] Speaker 04:
Yeah, sure.

[00:15:32] Speaker 04:
But based on her testimony, which was deemed credible, she said she negotiated a pause because of COVID.

[00:15:41] Speaker 01:
Fair enough.

[00:15:42] Speaker 01:
I know you want some rebuttal.

[00:15:43] Speaker 01:
Let's see if Judge Rossman has anything else.

[00:15:45] Speaker 01:
Judge McHugh?

[00:15:48] Speaker 01:
No.

[00:15:48] Speaker 01:
OK.

[00:15:48] Speaker 01:
We're going to give you a little bit of rebuttal when you come back.

[00:15:52] Speaker 01:
Thank you, Judge.

[00:15:53] Speaker 01:
Thank you.

[00:15:58] Speaker 01:
Judge McHugh turned over the timer to me.

[00:16:03] Speaker 01:
She might not give you that.

[00:16:07] Speaker 03:
Well, then he's lucky.

[00:16:08] Speaker 03:
He's lucky.

[00:16:09] Speaker 03:
I'm sick.

[00:16:20] Speaker 00:
It pleased the court, Your Honor.

[00:16:21] Speaker 00:
Some remnants on behalf of United States Attorney General.

[00:16:24] Speaker 00:
I plan to argue the duress argument first.

[00:16:28] Speaker 00:
I know we're in receipt of petitioner's motion to supplement the record in light of the new BIA decision, and we don't oppose supplemental briefing.

[00:16:35] Speaker 00:
However, we also believe the board has the correct statutory interpretation of this issue.

[00:16:39] Speaker 00:
Petitioner, meanwhile, has provided no good reason for why there should be a duress exception written into the statute.

[00:16:45] Speaker 02:
What is the precedential import of the BIA decision on us?

[00:16:49] Speaker 00:
Well, post-loper bright, it's just persuasiveness.

[00:16:53] Speaker 00:
And I think they do provide persuasive reasons for why there is no duress exception to this statute.

[00:16:58] Speaker 00:
But also just going on the party presentation, petitioners also not provided any reasons.

[00:17:04] Speaker 00:
He's analogized the particularly serious crime statute.

[00:17:07] Speaker 00:
I don't think he's pointing to any case where they're considered duress in that statute either.

[00:17:12] Speaker 00:
So if his argument is to import that statute onto this statute, then that's a non-starter as well.

[00:17:18] Speaker 00:
But going to why there should not be duress

[00:17:20] Speaker 03:
Why shouldn't we do what the Ninth Circuit did and say, even assuming that there, without deciding that there is a duress defense, there's not evidence that was put forward here that could possibly meet the duress defense as we've interpreted.

[00:17:41] Speaker 00:
If the court wants to perceive that in that manner, the government does not, will not object to that.

[00:17:46] Speaker 00:
I mean, we knew that is how a lot of these courts have addressed it by skewing the larger issue.

[00:17:50] Speaker 00:
in like being out of the Sixth Circuit case petitioner sites and just finding there is no duress on the merits here.

[00:17:56] Speaker 00:
But the government did not proffer that because there's no fact finding below on that issue.

[00:18:01] Speaker 03:
Do you agree that the- Please Judge McHugh, continue.

[00:18:05] Speaker 03:
You've got to put on enough for the court to find facts, right?

[00:18:08] Speaker 03:
I mean- Correct.

[00:18:11] Speaker 03:
That's what those other cases have also decided, is that it didn't even raise the issue.

[00:18:16] Speaker 03:
I'm sorry, Judge Rothman.

[00:18:19] Speaker 02:
No, please continue.

[00:18:22] Speaker 02:
I'm done.

[00:18:24] Speaker 02:
Oh, OK.

[00:18:25] Speaker 02:
My question was, if we agree that there's no duress exception as a matter of law and found the new BIA decision persuasive, why wouldn't the fact of duress still be part of the circumstances that NIJ has a duty to consider in deciding on a case-by-case basis whether there is a serious non-political crime at issue?

[00:18:47] Speaker 00:
Yeah, it kind of goes to that as well.

[00:18:49] Speaker 00:
And that's why the government also said it to Aguirre, Aguirre, because it addressed a similar argument.

[00:18:53] Speaker 02:
That was an older, much older case.

[00:18:54] Speaker 00:
Much older case by the Supreme Court.

[00:18:56] Speaker 00:
But the Ninth Circuit below had imported a new factor to consider.

[00:19:00] Speaker 00:
In that case, it was the risk of persecution.

[00:19:02] Speaker 00:
And the Supreme Court explained

[00:19:05] Speaker 00:
In so many words, why would that be relevant when we're looking at, one, just the nature of the offense?

[00:19:09] Speaker 00:
That is, what kind of common law character does it have, shoplifting versus burglary?

[00:19:13] Speaker 00:
Does the nature of the offense make it serious?

[00:19:16] Speaker 00:
And is it proportionate to any political aspect?

[00:19:18] Speaker 00:
That's the entire inquiry, with the exception of also, was there a crime committed, which is just a probable cause standard.

[00:19:25] Speaker 00:
So when you have the Supreme Court saying, why would anything else be relevant there,

[00:19:28] Speaker 00:
risk of persecution, the board is also saying the same thing.

[00:19:31] Speaker 00:
Why would that be relevant to this inquiry here?

[00:19:34] Speaker 00:
And that's when they get into the part about the criminal proceedings and how that would work into immigration proceedings.

[00:19:42] Speaker 00:
And they say that even in criminal proceedings, it doesn't controvert the elements of the offense that have been committed.

[00:19:48] Speaker 00:
And so meanwhile, when the statute is asking about commission of an offense, why would duress even be relevant, as the Supreme Court likewise said about the risk of persecution?

[00:20:00] Speaker 00:
Beyond that, they had the textual argument stating that it's not in the statute, that you shouldn't write words into the statute that aren't there.

[00:20:07] Speaker 00:
And that's what Madame Nogusi, the attorney general, came to the same conclusion for the persecutor bar.

[00:20:12] Speaker 00:
When it looked at this history of immigration statutes, particularly the DPA, the Displaced Persons Act after World War II, and the Congress clearly knew how to write a voluntariness exception into the text if it wanted that, because it did so under the DPA, and saying here, it did not do so.

[00:20:28] Speaker 00:
It's just looking at commission.

[00:20:30] Speaker 00:
That's a very specific inquiry.

[00:20:32] Speaker 00:
It's also a probable cause standard.

[00:20:33] Speaker 00:
It's not even asking for a conviction.

[00:20:35] Speaker 00:
It's just saying, are there reasons, serious reasons, to believe a crime was committed in this case?

[00:20:40] Speaker 00:
And that's all it asks for.

[00:20:41] Speaker 00:
And then whether there's a political aspect.

[00:20:45] Speaker 00:
So I think the matter of Goosey is very persu- or the matter of Goosey, excuse me.

[00:20:49] Speaker 00:
This new BIA decision is very persuasive as to why there is no duress exception to the statute.

[00:20:55] Speaker 00:
Fischer's, meanwhile, presented no reason why there would be.

[00:20:59] Speaker 00:
So I believe there is no duress exception the court should recognize in this case.

[00:21:03] Speaker 01:
Let's talk about the cat issue.

[00:21:07] Speaker 01:
So generally, when there's an admission by you, you seem to admit in your brief that at least some of the information relied on by the IJ was not in the record and that they mischaracterized it anyway.

[00:21:27] Speaker 01:
Generally, when that happens, wouldn't we remand it back for reconsideration?

[00:21:34] Speaker 00:
I think what the panel seized upon earlier or was discussing with opposing counsel was that there's a totality of circumstances inquiry.

[00:21:43] Speaker 00:
The immigration judge provided two other reasons for why there was no cat protection available in this case.

[00:21:48] Speaker 00:
And also, my last point about duress is that it does not leave someone without a remedy.

[00:21:53] Speaker 00:
They have cat deferral, which is what petitioner went for in this case.

[00:21:57] Speaker 00:
Even the absence of a dress exception.

[00:21:59] Speaker 02:
I'm not sure it leaves her without a remedy.

[00:22:00] Speaker 02:
She has a right, but she has no remedy in this case.

[00:22:03] Speaker 00:
Exactly.

[00:22:04] Speaker 00:
She's not yet.

[00:22:05] Speaker 00:
So someone's still eligible to seek a remedy and protection.

[00:22:08] Speaker 00:
In this case, there's substantial evidence where the remedy does not apply for her.

[00:22:13] Speaker 00:
But it's a totality inquiry.

[00:22:16] Speaker 00:
As immigration said like, well, first, looking at the threats that happen in this case,

[00:22:21] Speaker 00:
They undermine a clear probability of torture because it didn't act upon them in the three months that you were still in Honduras.

[00:22:26] Speaker 00:
And you see the concluding paragraph in the immigration judge's decision as well.

[00:22:30] Speaker 00:
It says, even assuming a risk of torture in your old neighborhood, that's insufficient to show you couldn't relocate in the entire nation of Honduras.

[00:22:38] Speaker 00:
So I think between those two, you have sufficient substantial evidence to affirm the catfinding in this case.

[00:22:44] Speaker 01:
Is it your position that if you can make a showing on appeal that the

[00:22:52] Speaker 01:
that the applicant for cap protection did not prove that she couldn't safely relocate, that she loses.

[00:23:05] Speaker 01:
Does that make sense?

[00:23:07] Speaker 00:
A burden.

[00:23:08] Speaker 00:
Felder burden, yes.

[00:23:10] Speaker 00:
It does make sense.

[00:23:11] Speaker 00:
And no, it's not the government's position.

[00:23:13] Speaker 00:
It's not her burden.

[00:23:14] Speaker 00:
But what the government's saying here is that even if you remember.

[00:23:17] Speaker 01:
Whose burden is it to show that she can't relocate?

[00:23:21] Speaker 00:
Well, I think it's totality.

[00:23:22] Speaker 00:
So you're just looking at record evidence.

[00:23:23] Speaker 01:
Oh, I understand that.

[00:23:24] Speaker 01:
But somebody somebody has to make the showing.

[00:23:26] Speaker 01:
I mean, you're you're not out trying to show that she can safely relocate, are you?

[00:23:31] Speaker 00:
Well, we're looking at the record evidence.

[00:23:32] Speaker 00:
And so the government and petitioners submit their record evidence.

[00:23:35] Speaker 00:
And then the government immigration judge makes determination based on it.

[00:23:38] Speaker 02:
It's her burden by preponderance, isn't it?

[00:23:40] Speaker 00:
Her burden to show eligibility.

[00:23:41] Speaker 00:
Yes.

[00:23:42] Speaker 00:
Yeah.

[00:23:43] Speaker 00:
So there's no burden shifting regime for relocation.

[00:23:46] Speaker 01:
Right.

[00:23:47] Speaker 01:
And I guess that brings me back to what I was.

[00:23:49] Speaker 01:
I mean, the burden is on her.

[00:23:51] Speaker 01:
So is it your position she has not met her burden with respect to any ability to relocate?

[00:23:58] Speaker 00:
That's correct.

[00:24:00] Speaker 00:
And clear probability of torture.

[00:24:01] Speaker 00:
She hasn't met her burden.

[00:24:02] Speaker 00:
It's all part of that inquiry.

[00:24:03] Speaker 01:
Understood.

[00:24:04] Speaker 01:
Well, OK, so let's go back to that.

[00:24:07] Speaker 01:
So we were talking with your opposing counsel.

[00:24:09] Speaker 01:
I was talking to him about the three things that the IJ was considering or appeared to be.

[00:24:16] Speaker 01:
imminent threat, whether that acts amounted to torture in the first place and the ability to relocate.

[00:24:27] Speaker 01:
If you find that any one of those is of the first two I talked about are absent, do you ever even get to the relocation principle?

[00:24:36] Speaker 00:
No, I don't think so.

[00:24:37] Speaker 00:
It's totality.

[00:24:38] Speaker 00:
You can find there's substantial evidence.

[00:24:40] Speaker 00:
If that evidence supports the decision, that's substantial evidence in support of the immigration judge's decision.

[00:24:46] Speaker 00:
We also know, as far as this missing report goes, when Petitioner gets to the 2023 State Department report in the reply brief, it doesn't change anything.

[00:24:55] Speaker 00:
They discuss the report, and they say they take extractions from it about generalized crime.

[00:25:02] Speaker 00:
But generalized crime is not sufficient for a cat claim.

[00:25:04] Speaker 00:
So even under Petitioner's theory, there's nothing to remand for, because if this had been submitted into the records exhibit,

[00:25:12] Speaker 00:
It doesn't support her cat claim.

[00:25:15] Speaker 00:
And actually, the lines she cites don't support it, because it just points to generalized crime.

[00:25:20] Speaker 00:
She has to show a particularized risk she would be at a risk of torture in this case.

[00:25:24] Speaker 00:
And that's what the immigration judge is looking at, saying, well, these gang members threatened you, but then they didn't do anything about it.

[00:25:31] Speaker 00:
So there's no particularized risk of torture in your case.

[00:25:34] Speaker 00:
And meanwhile, this happened in your neighborhood, as the concluding paragraph states.

[00:25:40] Speaker 00:
not throughout all of Honduras.

[00:25:41] Speaker 00:
Nothing shows that this would occur to you throughout all of Honduras outside of your old neighborhood.

[00:25:50] Speaker 02:
But the analysis that we have to do is bound by how we review an administrative record, right?

[00:25:58] Speaker 02:
This is not a harmless error analysis.

[00:26:00] Speaker 02:
We have to look at the totality mediated by Channery principles and what the administrative record allows us to conclude the IJ actually considered.

[00:26:10] Speaker 02:
Is that fair?

[00:26:10] Speaker 00:
That's correct.

[00:26:11] Speaker 02:
Okay, so with those principles in mind, I don't think we could agree that just because one factor isn't satisfied by preponderance, we can kind of cobble together the record in support of the denial of the petition here.

[00:26:25] Speaker 02:
We have to point us to what is it exactly that the IJ relied on that would make the error which you seem to have acknowledged in footnote seven of your brief not dispositive here.

[00:26:40] Speaker 00:
Well, the other two aspects of the immigration judge decision, what we would point to the analysis of the threats and saying they were undermined your clear probability of harm and you get past the exhibit and immigration judges concluding thought that this just happened in your old neighborhood.

[00:26:56] Speaker 00:
There's Honduras outside of your old neighborhood.

[00:26:59] Speaker 00:
And so why would there be a clear probability of harm throughout

[00:27:03] Speaker 00:
under us in that case.

[00:27:04] Speaker 00:
And that's the record evidence in this case.

[00:27:06] Speaker 02:
Would you agree that remand would be required if the record supported just exclusive reliance on the 2023 Human Rights Report?

[00:27:16] Speaker 00:
Well, I believe this court also recognizes futility of remand.

[00:27:19] Speaker 00:
And so that's why we're arguing also futility in this case, because that's why I pointed the panel earlier to their reply brief.

[00:27:25] Speaker 00:
What is in that missing exhibit that would have changed anything in this case?

[00:27:30] Speaker 00:
Nothing.

[00:27:31] Speaker 00:
And also you have, when you remand, it would go back to the record evidence.

[00:27:34] Speaker 00:
The board would look at this exact same evidence again and say, well, you had this testimony about gangs who needed you to go into a neighborhood because you couldn't go there.

[00:27:43] Speaker 00:
And you don't know the name of the gangs.

[00:27:45] Speaker 00:
You're not certain about which gang you were participating with.

[00:27:49] Speaker 00:
So the board would make, what would be the record evidence that would, the board would look at on remand and say, you've established a cat claim in that case.

[00:27:57] Speaker 00:
The court's looking at the same record evidence, and that's why we say you can still find substantial evidence supports the agency's determination in this case.

[00:28:07] Speaker 01:
How do we know that if the district court didn't mischaracterize or misread the report that the decision wouldn't be different?

[00:28:21] Speaker 00:
There's just nothing cited at all for even a clear probability of torture.

[00:28:26] Speaker 00:
Everything undermines it at every step.

[00:28:28] Speaker 00:
So that's what the court could be confident there would be no difference in this case, because Pischer never even pointed that themselves.

[00:28:34] Speaker 00:
They look at the definition of torture, the definition of acquiescence, and that's what they're trying to put together for the court, these unexhausted claims, because they really have no great response to the absence of record evidence of a clear probability of torture.

[00:28:56] Speaker 01:
Thank you.

[00:28:56] Speaker 01:
Judge McHugh.

[00:28:58] Speaker 03:
I don't have anything.

[00:28:59] Speaker 03:
The dress.

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

[00:29:01] Speaker 01:
I don't have anything for you, Council.

[00:29:02] Speaker 01:
Thank you.

[00:29:03] Speaker 01:
Let's, uh.

[00:29:05] Speaker 01:
Give the

[00:29:16] Speaker 04:
Thank you, Your Honor.

[00:29:18] Speaker 04:
I do think it's very important that we brief the new case DGBL.

[00:29:25] Speaker 04:
But even as it stands, taking duress out of the equation doesn't take out all the other facts and circumstances.

[00:29:36] Speaker 04:
which really need to be explored.

[00:29:40] Speaker 04:
What the regulation requires is first an allegation of serious reasons to believe, then an opportunity for rebuttal.

[00:29:52] Speaker 04:
Here, the allegation never took place until the final decision.

[00:29:57] Speaker 04:
There was never an opportunity for rebuttal.

[00:30:02] Speaker 04:
It's the same with me.

[00:30:03] Speaker 03:
Are you talking about the prosecutor bar right now or Kat?

[00:30:08] Speaker 04:
I'm talking about it's not a persecutor bar.

[00:30:13] Speaker 04:
It's a serious reason to believe bar.

[00:30:17] Speaker 04:
And that's what I'm talking about.

[00:30:19] Speaker 04:
In other words, the IJ made that conclusion in her final decision

[00:30:28] Speaker 04:
The applicant, Ms.

[00:30:29] Speaker 04:
Tercios, never had an opportunity to respond.

[00:30:35] Speaker 01:
We had opportunity to appeal to the BIA.

[00:30:39] Speaker 01:
You got to appeal it to the BIA?

[00:30:41] Speaker 04:
Yes, correct, Your Honor.

[00:30:43] Speaker 04:
We appealed to the BIA, but we couldn't respond factually.

[00:30:47] Speaker 04:
We couldn't get testimony from Ms.

[00:30:50] Speaker 04:
Tercios regarding the probability, her probability,

[00:30:55] Speaker 04:
of being able to prove that there weren't serious reasons to believe.

[00:31:01] Speaker 04:
She had committed a particular serious crime.

[00:31:04] Speaker 04:
That is what, if you look at Villalobos.

[00:31:06] Speaker 04:
Well, she, hold on, hold on.

[00:31:08] Speaker 01:
It seems to me that your argument throughout has been a legal one, that she established duress and that the IJ and the BIA had to consider duress and that if they considered those, she won.

[00:31:24] Speaker 01:
Sounds like now we're making arguments about other things other than duress.

[00:31:30] Speaker 01:
Yes.

[00:31:30] Speaker 01:
That even if you don't get duress or you didn't prove duress, that there are other things that you never got to talk about.

[00:31:38] Speaker 04:
Our argument has always been that a duress exception is not needed.

[00:31:45] Speaker 03:
Well, her own testimony, I mean, her own testimony, she admits that she was involved in drug trafficking, right?

[00:31:54] Speaker 03:
She was forced.

[00:31:56] Speaker 03:
Well, again, you're going back to duress.

[00:31:59] Speaker 03:
So if you separate.

[00:32:02] Speaker 04:
Partially duress, Your Honor.

[00:32:03] Speaker 04:
But if we have a chance to brief it, I want to explain that forced labor comes under the Trafficking Victim Protection Act.

[00:32:12] Speaker 04:
It's a completely different regime.

[00:32:16] Speaker 04:
We never said there was an exception for duress.

[00:32:19] Speaker 04:
The BIA came up with that in its decision.

[00:32:23] Speaker 04:
We only argued to consider all the facts and circumstances.

[00:32:28] Speaker 04:
The BIAs and Hammers, you can't consider duress.

[00:32:31] Speaker 04:
There's no exception for duress.

[00:32:34] Speaker 01:
Okay.

[00:32:34] Speaker 04:
That is what we want.

[00:32:35] Speaker 01:
Thank you, counsel.

[00:32:36] Speaker 01:
You're out of time.

[00:32:37] Speaker 04:
Thank you, sir.

[00:32:38] Speaker 01:
I appreciate it.

[00:32:39] Speaker 01:
All right.

[00:32:39] Speaker 01:
Your case will be submitted and counsel are excused.