morning runners may please the court my name is kyle mclean and i along with student co counsel page out of scabbards appearing on behalf of the petition and we are joined here today by supervising attorneys tiffany gates and car testified that the s two persecuted any individual let alone the individuals that he transported though mr santos additionally never testified that he had prior contemporaneous knowledge during this transport that any individual would be persecuted me make sure i understand the factual record here as i understand it mr santos apprehended or at least took on in this custody individuals that  took to the s to correct a more than one occasion correct on one of the occasions at least on one occasion he brought them there and heard shots coming from inside the building that's incorrect  santos testifies on page two eleven of the record that while in the national guard on five or six occasions during the night he heard gunshots but not that these gunshots came from the s two building and on page two a for the record he specifically testifies that he never heard any noises incredibly i might add he testified that he never heard any noises coming from the us to building so hearing these five or six gunshots at night time during the civil war is not the same as hearing rumors of persecution is not the same as a government report indicating that persecution was taking place is not the same as being a member of a tally and that is the most notorious for raising civilian for raising civilian towns what  about the statement the most troubling statement for me is the one on a r two fifty five more he's asked point blank basically like didn't you think you know he says yes that's the way it had to be maybe you could address that because it seems to me a reasonable  adjudicator here could maybe get statements debatable but a reasonable judicature could interpret that as his basically saying yeah i kind of knew that that is what was happening want to run the people mr set a statement on page two fifty five of the record  does not speculate well is speculation but it does not indicate that the us to persecute individuals because the science or requirement is prior contemporaneous knowledge and when he was asked what did he think would happen that's came with the benefit of twenty years of hindsight why do you just let me read the question and you tell me why you think it's speculation he's asked did you think to yourself that if they were not cooperated meaning the people who were turned over that they might be tortured or killed and he says yes that is the way it had to be why why do you think that it's grounded on pure speculation based on the fact that the previous question before that one was where did you think what happened to these individuals when you transported them  said if they cooperated they would be like oh and there's another point the record i believe right but that's the problem when he's asked well what if they didn't cooperate didn't you know didn't you think that they would be tortured or killed and he says yes that's the way it had to be  think that was what happened that doesn't indicate prior contemporaneous knowledge he must have known when transporting for the person you are to apply he must have known when transporting these individuals that they would be persecuted well let's go back to your answer to my first question i'm looking at page two twenty three of the record these were suspected guerrillas you were turned over to as to yes ok you never worked in yes to building no but you would hear gunshots coming from there but but i understand but i have no idea what would have come after the bite but he answered the question the way we ask lawyers to answer questions here's the question what's the answer yes but let me give you an explanation but he started with the yes he said i heard gunshots coming from there from the building and and the records i think quite clear that after that he continued to bring people to the as to why doesn't that establish the requisite  it here on page two twenty three he says i brought people to the building i heard gunshots coming from there and then i believe the record is quite clear that he kept bringing people into the building so when he kept doing so didn't he do so with the knowledge that they were going to be persecuted once put inside the building if in fact as judge watch for the as they turned out to be uncooperative the fact to stop that there is a spectrum or a continuum of knowledge as this court is held and so hearing gunshots in a building this is not the same as hearing rumors of persecution in that or the are there other military police testified they had knowledge that that individual or that the serbian police were were persecuting individuals or killing hundreds of bosnian muslim men so hearing gunshots even though he did say he heard gunshots it's unclear from the record if you heard it from the us to some people what's the sea have to require view isn't it enough that he should have known that he was aiding and persecution its official knowledge on it according to the better the our standard and saw the spectrum there's no house hearing gunshots there's hearing rumors of persecution as the government reports indicating that other individuals in his unit knew that persecution was taking place there's other there's testimony if they had heard persecution was taking place or had knowledge of persecution so your view is that the reason your client should win is because while he met might have suspected that bad things were going on in that building he didn't he didn't know with the requisite degree of certainty is that is that what you're saying is the defect here in the in the government's case that's one of the defects ron and regards to science or that would be that the fact that he did not have the requisite knowledge because he only speculated based off these gunshots in this newspaper article the person has to have a just a more definitive level of knowledge in order to trigger the persecutor bars that that's what you're saying about the presumption that the bar plus yes you must be more sufficient knowledge is that a defense assuming that he has a fair amount of knowledge let's assume that it would be of enough knowledge if he were saying officer in the army or in the national guard is a defense here that once he enlist in the military he has no choice but to do this and he has a low level c but the defense is unnecessary because there's no reckon there's no indication in the record that the s two persecuted any individuals the us too did not mr settle to not testify that yes to persecute people if they were suspected guerrillas which is to say those with political opposition to the government i brought them to us to if they were just criminals i took them to city all right so he was sorting out people based on political belief w correct but and then he says i'm looking at page two eleven again he says i took him in the building and there were shots and who was going he said someone was killing someone someone who did not want to cooperate and so why doesn't that provide sufficient evidence to show that he was you know i've been putting all aside the government's other records and reports and everything but just from his own testimony it does not establish that these folks were being persecuted by us too because of their political beliefs no your honor because mr santos x must have played a material role in actual persecution and the only evidence that an individual he transported was persecuted was this newspaper article that he read but he never testified when discussing this newspaper article that the s two was the one who persecuted that individual the only evidence that someone he that he transported was persecuted is this newspaper article and the newspaper article when asked about it on page two fourteen of the record he said the paper when it come out with the complete full name so i don't know if it was them or not there's no evidence in the record that that's to torture any individual and also  said his newspaper article said someone might have been tortured he never said that someone was tortured he certainly had never said someone was killed by the us two can i ask you this let's say that on the basis of the statements on two eleven and two twenty three and two fifty five that i focused on let's say that we concluded both that they showed that the statement showed that he did have the requisite degree of knowledge and that he actually did know i mean and as to was in fact torturing people because that's kind of what he seems to admit on two fifty five do you have some other argument about i don't know what the nature of his involvement in the in the persecution it's not it's you know it doesn't rise to the level that would that would be sufficient is there some and then once he left the national army he did voluntarily join the national guard but only after four suspected guerrillas not suspected realist came and tried to kill him they went to his home and meeting he had to excrete from his home and run into a field of banana leaves which they didn't burn down and so mr santos because of his fear for his life in that instance had to then go relist in the national guard because that was the only way he felt he could be protected nexus in there was science or he had the rest due to the fact that he was conscripted in the first instance and only rejoined the second time due to the fact that he feared for his life maybe evidence that supports this argument evidence specifically linking mr santos exacts to material and persecution through nexus and there's no evidence that he knew with the sufficient knowledge while transporting these individuals that they would be persecuted and absent such a been killed like him out of the are the speculation that that was the way it must have been is not the same as testimony testifying from other agents that this persecution was taking place so the evidentiary provide the evidence was taking place why don't we have you save the rest of your time we'll hear from the other side and then you'll  good morning again this case is ultimately a dispute over the board immigration judges interpretation of the facts interpretation of what his testimony meant the board ultimately found his actions assisted in the persecution of killed saying this is the way it had to be he admitted that he heard gunshots which he believed had to be soldier shooting and cooperating people not only cooperate he said the gunshots came from the dusty building and that they led him to suspect the s s who was torturing or killing people finally he said he never saw again the people he turned over to the u s to now this evidence certainly enough to indicate that the persecutor bar may apply and that is important because that's the burden the regulation dealing circumstances well under d r to no actual not actual knowledge is not required the the issue is whether the knowledge is sufficient to know the actions may assist in persecution so although he didn't know for certain he did know that his actions may assist in the persecution of the of of these suspected guerrillas on behalf of their political opinion so th know your honor this is a rather old case but this time period in my experience i've seen a lot of cases that were very delayed from this particular time period i'm not sure exactly what was going on and a lot of them were for something from central america we don't see delays like this as much anymore what bothers me about this i'm not sure how about all of it might be legally he's lived in this country for a very long time he and his wife have three citizen daughters he and his wife are both gainfully employed but a low level jobs their combined income is enough to support the three daughters his wife's income if that's the only support she works basically as a housekeeper one of the hotels may or may not be this is going to impose significant hardship i'm less concerned about mr sometimes and i am about the rest of the family in a case where he's a very low level person with no direct involvement in any torture or killing he is doing his job this one's a this one's a tough case for me in the sense of who you know what where's the fairness here there's he's been here ovarian long time with circumstances i've just just following orders it's not a defense no i understand to go this is a probably something that he doesn't qualify for for a new car relief flights the question is government probably knew that in one nine hundred eighty nine and we're here in removal proceedings thirty years later after he's established routes and and it is frustration i think more than a legal question we can't do anything about this but we do see the human drama in this and it's a little disturbing that we get to this point you didn't cause it personally i'm not sure how you can respond to it i did i find it difficult for that reason even though it may or may not be legally well understand your honor can i ask you about the newspaper article but i can't figure out what the relevance of the newspaper article is at some point not specified in time in the record it's not clear whether it's before or after the legit events occurred he reads a newspaper article that says someone he brought there was killed you agree to me if you read and read that article after all the events occurred it wouldn't be particularly relevant what or so and the record doesn't demonstrate when he read it doesn't know doesn't your honor so why so shouldn't we just ignore the newspaper article carrying his burden to show the bar doesn't apply one of the things he could have testified to was i didn't read the newspaper until after i stopped delivering people i didn't hear these gunshots and come to the conclusion of people being killed until after i had corroborating evidence because it corroborates what he's saying that he suspected these people may have been tortured and killed the evidence is showing yes there were human rights violations going on in these places at that time case called the goosey it's currently pending right i understand but whether or not one is available it's one wasn't sought it's not exhausted and in any event being conscripted into the army isn't generally considered to be addressed defense unless it's you know involving imminent threat of death and the other almost address just clarify the statement on pace to twenty three of the record his other testimony makes clear that he had no knowledge of where these gunshots were coming from  what was taking place or why they were fired it could have been a misfire or some other accidental discharge but the standard for c enter is that he knew or should have known when transporting these individuals that they would be subject to prosecution and these gunshots simply did not provide sufficient knowledge that persecution was taking place where he did believe that people were being executed for not he says on page two eleven you heard a gunshot and believed other soldiers shot somebody not wanting to collaborate he answers it had to be because nearby there was that was the only place perfect language but he he did believe that the time they were being executed because of their political beliefs their response to the government asking him to speculate he speculated but he testified to a fourth that he had no knowledge and knowledge is what is required for scientists without this knowledge the persecutor bar is not  i'm running the train to auschwitz and i'm like charging childes i know nothing i just deliver the boxcars to the front gate i don't know what happens there i have an assistant persecution well i think the difference there your honor is that similar to matter of the yard where a criminal research specialist testified that they stuff troop movements based off the pattern of buses and the fact that persecution was two miles away from the applicant to me the statement that he had no knowledge incredible but the i j a here never me the credibility adverse credibility finding and mr santa statements that he had no knowledge of but i'm again everybody loves to change the hypotheticals at least slightly let's assume i do i truly have no knowledge and the i j a finds that i didn't i'm just a just a guy putting people in boxcars bringing them to a concentration camp i haven't assisted in their persecution under your you know your honor because if you have no knowledge the science requirement is not met and without the science or the persecutor not enough that you should have known or it's reasonable that you should have concluded that without any other rumors of persecution without any government reports indicating that person would have known regardless that since insufficient knowledge on it ok thank you very much before we finish with this case i'd like to say on behalf of the panel that this was not argument on behalf of mr santos presented by the students at hastings and i would like to congratulate or compliment both the briefing on the argument thank you very much a case of santos the bar now submitted and we'll take a recess for five minutes