good morning everyone and welcome to the ninth circuit judge friedland and i are happy to welcome judge block from the eastern district of new york who's coming out to help us today we will hear the cases in the order on the to consider the court's intervening decision in barrage from merrill lynch as the record before this court compelled a finding contrary to the agencies for relief in the form of withholding of removal and or protection under the convention against torture this is a mixed motive case where the agency and immigration judge completely disregarded the record before them by watering down the facts and by doing so applied the law incorrectly the petitioner similar to machinery suffered from past persecution from the cumulative effect that she was severely psychologically traumatized from witnessing around fifteen mexican police officers and communitarians april quas i governmental entity shoot in the air effect of her political beliefs your honor the agency failed to realize at the ministry of record the civically on pages six forty five six fifty five six fifty four actually indicates that there are violations that are done by the police and she wanted to sanctions against them for the disappearance of her husband and her family member so did she say they were politically corrupt or that there was corruption she said they were they had been involved in the original kidnapping was at her point i mean i saw the complaints that she made that the police were intelligent enough to follow up on her or her claims she made the complaint to the trainee general's office she made the complaint to the minister and what specifically are you saying is the complaint well the complaint that she made was specifically regarding the actions of the police officers failing to press criminal charges against her family members and then kidnapped and disappeared then this was a forced disappearance and because of those issues and what she complained about their actions against the family members when they what i saw was she said eight when they commander when they were kidnapping and disappearing her husband works she was watching them however later on there was no criminal investigation no charges filed against them and this turned into a forced disappearance that's why on august second after she was informed by the local police that she had to go to the human rights commission to be able to make the complaint is when she went to the human rights commission and that's when the subsequent threats began to occur towards her and her children that she would face the same fate as her husband and they say on account of her political opinions or did they just say you should stop investigating us what they indicated was you should stop looking for your husband and what she understood was that those were the threats because she was disclosing the actions of the mexican police  this quiet like governmental entity the communitarians a rural police force had done against her husband and her family member you're saying that anytime somebody complaints about police misconduct that constitutes a political belief that that person is expressing it is a whistle blowing action and by her whistle blowing and her disclosing what they had done on july fourth of two thousand and thirteen it is an imputed political belief because they know she witnessed it and the fact that she actually took action and to be the same as she did not do that if she had not disclose it to the human rights commission and she would have not been complaining against the actions of the police so it was the disclosures to the human rights commission would she say driggers the political opinion issue yes your honor and also triggers the threat that she receives when she only filed reports regarding the missing persons her husband and her brother in law she did not receive threats she only received the threat when she actually filed it with the human rights commission and that is established in the record when we look through the get the difference then what was the difference between the earlier complaints and the later did they have different content they did have different content your honor the first ones were basically going to the local jails going to the hospitals to find out what if they needed bail or if you need to hire an attorney it looks seen more as if but when we look at the human rights commission reporting she actually is complaining about the specific actions that you're weak irregularity of the police actions towards her husband and her brother in law that disappeared forcibly and that is what she's complaining about and even sinking sanctions for and it's pacifically says in her complaint to the agency the petitioner in this case filed many reports and complaints with various agencies she filed the the regular court she didn't begin receiving threatening calls to the number that she provided and her actual complaint to the human rights and that's when the caller threatened that she did not look for her husband it was between august second and december third of two thousand and thirteen that the petitioner moved with her children three times after the first threat her youngest child was a toddler her children were ranging between age two to fifteen who was also battling brain tumor at the time on december third she finally filed her second complaint with the human rights commission and that's when the petitioner specifically requested sanctions against the mexican federal police and community part of that an administrative records six  during the second phone call the petitioner received in addition to threatening her the color reminded her of the previous phone call where she was instructed to stop looking for her husband that's administrative by twenty nine the anonymous threat the petitioner rece the cap you don't have to deal with that but you have to show torture and acquiescence by the government how do you support that in your petition your honor it was the phone number that she provided to the human rights commission to file these complaints to get in for mation that phone number is the exact phone number that she received the threats on this phone number was her husband cell phone it was only used for the purpose of filing the complaint and if her husband called the direct correlation and the strict time line between her filing the complaint and then a week or two after receiving the threat is why we can prove the acquiescence it's either a government official calling or the government official provided the number to the person that calling to threaten but you see she has fear of torture because of this she's going to be tortured yes your honor by the fact that she watched what happened to her husband and then these phone calls are specifically telling her that it would be to her and her children it would amount to torture the psychological what do we do about it seems like she was in mexico for about eighteen months though even if she was moving around she wasn't actually found during that time what do we make of that part of the record during the time that she received the threat or exactly from august january of two thousand and fourteen during that period of time she actually moved seven times after january two thousand and fourteen with the last threat that was to her specifically but it wasn't until january of two thousand and fifteen that her husband i'm sorry that her again it is a cartel slash gang and we would believe that the because of the phone number that was provided and it happened right after the murder that happened to her to her neighbor and after she had contact with the mexican federal police and identified who had living there is may please the court i'm jonathan robbins here on behalf of william barr the attorney general good morning to all of you know the facts of this case are certainly sympathetic what happened petitioner was terrible and chloral but unfortunately sympathetic facts don't always establish eligibility for relief in immigration law and the board in immigration judge's decision in this case did follow the law correctly and did reach the correct result the board in this case did properly find a petitioner failed to eligibility for withholding of removal and protection under the regulations implementing the convention against torture with respect to the aspect of withholding of removal the board based its decision or upheld the immigration judge's decision on two primary findings based on petitioners failure to demonstrate past harm arising to the level of persecution and also based on petitioners failure to demonstrate and nexus to a statutorily protected ground now of those two findings the most important one is the nexus finding and the reason it's the most important is because it's dispositive of the entire case if the court agrees or disagrees with the immigration judge in the board on that point it doesn't need to reach the issue of whether the threats that she suffered are sufficient to rise to the level of persecution so given that it's the most important part of the case let's listen to seventy questions i'll start with the nexus requirement it's well established when it comes to withholding of removal that not every type of harm even serious types of harm are sufficient to establish eligibility relief and what the supreme court has said when we're looking at nexus is that the first question that we ask in any nexus analysis is what is the persecutors motive that's critical did the persecutor know that the person had a characteristic and did they care that they have a characteristic that petitioners claim is based on her political opinion she's going with the whistleblowing case the problem with that claim is there isn't really evident any evidence to support the notion that these anonymous callers had any interest in her political opinion or withholding of removal the nexus requirement is dispositive of the claim in the court wouldn't have to reach the past harm so with respect to the evidence of the record the petitioner herself doesn't really know what the motivations of these callers are is the problem you have when you have a case where you have anonymous callers at one point she speculates that it's the cartel that she ordered to the to the board that she thought that maybe these were cartel members because of the final call that her son had received from the caballeros templar but at one point she also suggests that maybe it's just government officials she she doesn't really know and the problem is that we do have evidence they don't really know what the motivations of the persecutors are you can have a very difficult time proving that the record compels a conclusion in the record from the record and so what we have here is i think the board an immigration judge appropriately pointed out this is look what we have years an individual who was reporting the disappearance of her father and me her husband and her brother in law and we don't really have anything more than that and given that  counsel is focusing on the difference between the complaints that were made that weren't really complaining about the police and i think first thanks and then the ones that were in that the threat came after that on the phone number with connected with the ones that asked for sanctions so how do we the not trying to inference from that the documents or the complaints that were that are in the record not all of the reports that she filed are in the record i believe these are the most recent ones on the record from what i saw from those reports those reports are not making any whistle blowing accusations there are report think the board an immigration judge correctly found that that just simply shows that she was reporting the disappearance of her husband with respect to the phone number she testified that she received a phone call from the brother in law and husband the next day and so they had apparently presume it's not clear phone she was talking about but i believe it was her husband cell phone that upon which they received those calls so the inference that this is somehow something that the government told them it seems like this she had also received phone calls because the husband and brother in law had provided this because that's how she had originally spoke to them in that phone call that that that she received a week after this incident after the incident where the the house was i guess the raid on the house essentially so i don't know that it can necessarily be in does i mean she yes she does report that she has made other complaints but this is sort of a series of complaints that she's made in trying to figure out different avenues of relief to try and figure out where her husband and her brother in law are i don't know that this is necessarily properly read  a whistle blowing activity and again it's not the actual document that's the most important thing the question is what is the persecutors motive is the persecutors motive that such that they are attributing her or viewing her as a whistleblower i don't know that there's really evidence the record that suggests that the case when she received the phone calls from the anonymous callers they didn't make any mention of political opinion or attribute any political opinion to her this isn't the type of situation where petitioners railing against a governing institution it seems like she's going against people who are i guess defying the institution right i mean clearly whoever the unanimous colors are are concerned about the governing institution right that's the whole point of threatening her to try and prevent her from reporting because obviously they are not in with what they're concerned about whatever these reports might but whatever consequences these reports might bring or at least presumably that's what we it's sort of feels like we don't really know because we don't know who the callers are in the i mean it's possible the cartel members it's possible there  people within law firms we just simply don't know so that the problem when you have a record like this is under the standard of review the record has to compel a conclusion that the persecutors have attributed this motive to her and based on evidence the scans i don't think the record compels that conclusion may be reasonable fact finder could make those inferences but i think it's perfectly reasonable for the immigration was pretty much down by the fact finders determination here correctors of the political correct and i don't think it was an unreasonable determination by the immigration judge in this case i mean given the scans of the evidence seems like the appropriate decision but the cat issue concerned about that because it seems like she did report that she was threatened with death if she continued to contact the  that constitute torture or death yes death would constitute torture but in order to establish eligibility for capper to action an individual has to demonstrate several things they have demonstrated clear probability of torture in other words a more than fifty percent chance of torture one of the things that the immigration or judge and board looked at was pointing out that she hasn't really been able to establish a series of different things at that are related to that one of the problems is that she can't show mexican government acquiesce going through up to you you know i just excavate from the brooklyn federal courthouse where we had the pleasure of el chapo scum for the for the last couple of months and my successor judge kogan actually presided over that case what if mean that the mexican government is going to acquiesce it's always a case by case circumstance and under the circumstances of petitioners case when she was making reports to police they were opening investigations it's we can't just say you would agree that it was  the president of mexico a hundred million dollars it's common knowledge that when a cartel threatens you from mexico that's pretty serious there oftentimes look we do know that the cartels do oftentimes corrupt mexican government officials but there is countervailing evidence in this record that does show that the mexican government is taking steps to try and combat this type of corruption but they will not tell chapo what else that is well well that's true they did arrest el chapo but the point is that look nobody would argue that there isn't any corruption with respect to the cartels in mexico but under the standard of living under the burden of proof an individual has to demonstrate a clear probability of torture and given that there's evidence here that the police were in fact trying to open investigations into what happened given the fact that the country conditions reports in this case does demonstrate that the mexican government is trying to combat these these cartels and the corruption that the cartels do sometimes successfully perpetuate i don't think the record compels the conclusion that she's met that would is frankly a pretty onerous burden of proof she also hasn't demonstrated that we sort of skipped over this but it goes to the past harm she certainly hasn't suffered any past torture past which you can obviously very very important in determining whether or not there's a likelihood of future torture but this sort of brings us back into the the persecution area with respect to the past harm that she suffered she did suffer threats and the board an immigration judge as this court of acknowledged the threats are deplorable their unpleasant their disturbing  threat they said the safety what happened to you that happened to you as well that's not entirely clear your honor whether it was an empty threat is not clear because what's clear from the record of the she's not in a similar situation as her husband and brother in law when the these federal police or the community oreos or whoever these people were came to the house they didn't similarly attack her children they were only focused on the brother and on the husband and she has given several reasons as to why that might be she speculates that perhaps her brother in law was involved in a kidnapping is not really sure again it's sort of goes back to the scanner's of the evidence but what's clear is that she's not similarly situated to her other family members so the only reason that she's facing harm is not the same reason that her other family members are facing harm she's facing harm because i seem over time is wrapped that ok so with respect to the decision we respectfully request of the court uphold the board the decision of the board of immigration appeals in the night of just for review and unless the court has any other questions honor if we look at the affidavit on a r five twenty nine of the top paragraph that specifically indicates that she received a threatening call they had told her to stop looking for it and that she still needed to find it and that's when she went to the human rights commission to continue to file against the police there is a clear nexus of her whistle blowing in the past persecution we do believe that this amounts to torture based on the psychological harm of her watching and witnessing what fifteen