court my name is aaron choi and i'm pro bono counsel for the petitioners in this asylum case gloria marina three of us and her daughter your honour's misty has three of us and her daughter came to the u s in two thousand and fifteen seeking asylum from el salvador there are a number of issues in this case but for purposes of purposes of the limited time we have for argument i will focus on just t today unless your honour's would like to discuss others namely i will discuss the the gang persecution claim and also the equal protection claim so in this case turn first to the gang persecution that this was sort of retaliation for complaints and therefore it wasn't family based right that's correct and part in part yes and just with respect to that though it was erroneous for me so it was appropriate inappropriate for them not to explicitly assess whether membership in the family however was at least one central reason for the persecution irrespective of whether there may have been other unprotected grounds for which she was persecuted wasn't there evidence in your client's favor that some of the conduct by m s thirteen began before there were complaints or protest yes your honor well there's evidence in the record from the government that if you could actually could you refer to restate the place before the grounds that the i j a asserted yes your honor that suggest at least in one plausible view that at least some of the conduct of m s thirteen was based on family membership that's current not protest or denials by the family in terms of what the gang wanted to leave them alone yes your honor and in addition we would submit that it's not the reasons for targeting the gang are not the relevant issue here the issue is that there is an animist against this family by the gang and that the gang is targeting the family and that she is being targeted as a member of the family that is targeted is that the central issue here and that is an analysis that was not performed by mike j or the board my point is that and i don't know if i have it right or not but my point is that the magistrate judge thought in part that the reason for the targeting was that misty has rivas and family members went to the police to the military to the authorities but one critical fact that's undisputed before that is that mr gutierrez disappeared probably because of something having to do with m s thirteen before there were complaints about his disappearance that's correct and so there's it seems to me a decent basis for thinking that at least the initial targeting was family based and maybe not necessarily just complaint based yes your honor and indeed we have in this case uncontroverted corroborating evidence of it being she being targeted because of her membership in the family in the form of the police report from sergeant reyes they also had or police in the record of a one twenty four which says that the gang has given the green light to kill the gutierrez dia's family and no other reason that they targeted because if and if any of them appear at that area or the area where the gang conducts its activities they would be killed in their bodies would disappear as it was the case with the brother who had disappeared and  of whether she was sought to be harmed whether they sought to harm her because of her membership in the family and so that was erroneous and it was a reversible error when you don't conduct an explicit mixed mode of analysis that's required and so the focus on the things reason for targeting the family rather than her membership in the family itself was incorrect and indeed just to point out the i j a in this case wholly fail to consider the police report in the context of the gang violence claim and said merely used the presence of a police report in the car or the lack of a police report in the in the domestic violence claim against her and comparing as to they filed a police report respect to the disappearance but then didn't even acknowledge that the police had specifically said in this report that the greenlight license to kill was to the family itself and not for any other reason and that they had received death threats and had the necessity to move abroad in the police report at one twenty four so it's it was critical evidence that was not considered at all by the i j a and then the board did not look at that independently either so for those reasons the standard that was applied here was incorrect and the evidence substantial evidence in the record that wasn't considered compels a contrary finding and so this case should be reversed and remanded on that reason to a different immigration court as i will explain with respect  equal protection issue if i may switch gears to that with respect to the equal protection issue when you look at the mistakes that were made in this case on the analysis that was done with the mixed motive issue as well as other mistakes in the iges decision coupled with the atlanta immigration courts shockingly low asylum grant rate of only two percent compared to the average national grant rate of forty six percent and other immigration courts across the country during that same period coupled with the evidence of this in this case of the i j a deciding this case on personal bias rather than the actual evidence there are years that you're subject against yours that that latter argument is based on some of the comments that the i j a made about at the beginning of the hearing about the type of claim that was being presented and how they were many of these yes your honor he described it as this is another one of those cases in that in addition just thr ignored evidence in the record inexplicably and used but at the same time used evidence when convenient for him too but generally that's the province of a fact finder and a fact finder can decide to accept some evidence reject some evidence find some persuasive find not persuasive and again generally speaking only in incorrect legal or factual rulings by a judge doesn't necessarily equate to bias or partiality that's correct your honor but when coupled with we see an overwhelming denial of asylum applicants applications in this court and that coupled with the the statements here throughout the record more so than just saying at this is one of those cases he without even inexplicably just ignores the testimony of our expert witness based on his own personal view of the facts which is not even in the record and saying he ignores the evidence from the expert that because on the basis of he says  that he's me he says that the so it there's just a number of examples that he says everyone is ok the rest of her family is ok and also adored but there's no evidence in the record of that one where the other we don't know in the record if everyone's ok and that for him to say that everyone is ok and that's why he won't consider the experts testimony it's  not supported by the record and in addition he like i said use the police report when it's convenient on the rape claim and saying that she did you know she showed that she was able to follow place report in one instance so then why should couldn't she have done it in the other instance but then doesn't even consider the police report or mention it at all in the context of this this even though it's uncontroverted in the record no the credibility of that document has not at all been called into question and it's just wholly ignored  so the fact of that and also the statements that the judge made about her not having a fear of future harm when there was no evidence that when she was had left her home to go to the other location in el salvador for a couple of weeks while she tried to get a passport there was evidence in in the record that they received threatening phone calls saying that the gang knew where they were and that they didn't even acknowledge that at all and so for those reasons just this is theirs the record is riddled with evidence and examples of this type of group is predisposition in the fact that the judge looked at this as he viewed it as a case where these they're just fearing general gang violence but that couldn't be from the truth in this case your honour's she feared very specific threats to her family and her threat the threats were on account of her membership in that family so i see my time is up and i will know you've got a couple of more questions ok me and i'll ask  lacked the same question it appears that neither one of you think that the acting attorney general's requests for review of in re l e a a fax anything in this case even though that b i decision deals with membership in a social group like a family you're confident that that doesn't affect anything in that we should wait to see what department of justice does with l e a with that we can just go forward yes your honor we can go forward in this case in the case below there was no doubt there was it was presumed to be a cognizable social group so that's not an issue here and that the issue and  a has not been decided and we submit that it should not hold up the court's review of this matter ok thank you very much with joy you've saved your time for a bottle this lack please the court michel slack on behalf of the united states attorney general petitioner in her and her brief raises four issues before you get to those that aren't interrupt you yes your honor you also believe that the fact that the acting attorney general has requested review and briefing in l e a doesn't affect would we do here and we should go forward that's what you said and that's what this choice said in there in your twenty a j letters i just want to make sure that both of you have that view perhaps i should clarify your honor it is the government's position that based on this court's existing mode of analysis addressing what does it mean to be one central reason for the persecution that is being alleged the court can move forward because in this particular case the board merely assume that family could be a particular social group and didn't actually decide that issue that would be have to be decided if the court does not think that the mode of analysis was correctly done in this case but but that actual issue was never addressed by the immigration judge or the board of immigration on heels i'm talking about the government on the litigation side not not the i j a or the what if anything did the attorney for the government tell the i j a about that issue at the hearing that it did he or she take any position make any mention say anything about it or just proceed as though the issue were nonexistent or something else took no position that i'm aware of during the hearing and from the immigration judge about whether or not any of the purported social particular social groups were cognize of all position taken that that that was unnecessary in this particular case and the board takes the same position that it's going to assume for purposes of argument in this case that it is simple but that it they fail to demonstrate the mode of the on account of requirement ok and i just want to say that to clarify the attorney acting attorney general certification and l e a does suggest that we could see any thing come out of the certification of l e a including under what circumstances family might be a particular social group so in that vein  i won't say that it has no bearing on this case but because of this court's case law granted mostly unpublished case law doing conducting a similar mode of analysis the four issues that are raised in the brief by petitioner of the fall into two categories two of the issues relate to fact finding two of the issues that relate to constitutional cla i'm going to begin by addressing the fact finding in particular i'd like to address the fact finding that was at issue during petitioners opening argument that having to do with the gang related asylum claim the board of immigration appeals actually did conduct a mixed mode of analysis but found that to whatever extent family relates to this case it is merely tangential because there is no indication of an animus against the responded and her family based on biological ties historical status and other unique features of the family unit this is very similar motive analysis  this court conducted in the dia a cost very recently in which the court held that there was no evidence of animists against the family independent of the land dispute and a sometimes sometimes it's not like if you're born and you say i have a hatred for the gutierrez family and when i become of age i'm going to exact vengeance on the gutierrez family i mean animists comes from somewhere there's a reason for it and it's not inconceivable that something that might arise that might begin with a payment of more extortion money may then turn into a family matter and a family animists yes your honor bank of think of romeo and juliet over time i know it's a fictional story but over time that animals became family based over whatever the initial reason for the slight might have been you don't think that's a possibility over time your honor it became just a family dispute or of essentially a family feud in fact i've thought a lot about how the capulets and the montagues do present kind of a fictional setting in which family might possibly be but again as i i'm reluctant to address too much when family might be a particular social group given that's exactly what trading on that assumption aren't we and you've told us to go forward if if you didn't challenge that below and i'm not saying you waived anything but if you didn't contest it below and the i j a didn't address it in a i assumed it we have to assume it here too right because you're not asking us to hold that family membership can never be a protected social group right no your honor would have to be reminded if you found you're not asking for well if if the case cannot be sustained upon the reasons given by the agency it would have to be reminded no no i know that the your not affirmatively asking for e man no you think and i think a denial of the petition is in order so if you're asking for that and you haven't affirmatively asked in your brief for us to hold as a matter of law that membership in a family can be protected status don't we have to proceed on the assumption that it can be if we go forward now despite for purposes of addressing whether or not this particular case involves threaten persecution on account right right friends case we have to make that same assumption right yes your honor you're not asking us to hold to the contrary as a matter of law no your honor ok so on that assumption then xisten we take it to correct or not correct for purposes of deciding this case we assume at the very beginning that membership in a family is protected social status for asylum purposes and then the question for us is whether or not the b i heard in finding that whatever happened here was not an account of that family membership is that the way the analysis proceeds are no essentially yes your honor like a twelve b six you don't necessarily have to decide everything if there are some element of the cause of action that that there isn't sufficient allegations it's along those lines we would if family is a particular social group then we would address the next component required element of an asylum claim being that it has to have a mode of the persecut or on account of that particular social group now ms dia's reeva's as this is a derivative petition right yes how do we address the daughter's claim if the daughter never complained to the authorities how you count can you say that the daughter's claim was that any threats against the daughter any persecution against the daughter were on account of the complaint to the authorities and not that the daughters claim stands or falls as a derivative based on whether or not the mother's claim stands or falls you don't have making a separate claim it's a derivative of the mother claim but you don't evaluate the daughter's circumstances separately not in a derivative claim your honor but i would like to addressed the the con family context of it sons the brothers the sisters her they were all engaging in the search and they were all seen by gang members there's no suggestion that there's any particular family member that wasn't somehow involved in  reeva's and her family members had not gone to the authorities that m s thirteen would have just left them alone well they like most people like you know we took one of your family members your good well your honor it's hard to say what they would have done yes it is very hard to say what they would have done but to say that the only reason that m s thirteen poses a threat to misty is really his and her family members is because they complained to the authorities it seems to me ignores a very crucial antecedent fact that they took mr good care of before there were any complaints it's not as if threats and problems began after the gutierrez d s rivas family complained to the authorities about the extortion rick demands right that would be a different scenario so if mr gutierrez or other family members went to the authorities and said hey they're asking for i've been paying on this amount of money for a long time but now they're asking for double or triple i can't afford it i need the military selp  police's help and then something happened ok i can see that there's maybe a causal break there but here before there were any complaints to the authorities and most thirteen had already taken action they had already disappeared yes your honor but the evidence suggest it wasn't because of family that mr gutierrez is it was disappeared it was because he stopped paying the store shit but it but the question is not mr gutierrez the question is the threats to the others and once he's been taken you think there's no on account of after he's been taken that now the family is seen as getting a free pass that there's nothing else that is going to happen to the family because  thirteen has taken its pound of flesh but no it would possibly be because no one is paying the extortion anymore in this case it's the it's there is evidence to record to have church a very different yours of the way that gang activity works in latin america than i do but that that daniel activity is something that everyone in america is facing and they act and m s thirteen acts under a code of conduct that says hey you know we killed one of yours but if you pay everything is going to be ok we're not going to hold it personally against you and we're not going to have any am an animus against your family members despite what your patriarch may have done do you know if they sought f m s thirteen sought for extortion payments from their remaining family members there's no evidence that they did that they were threatening him because they wanted them to stop searching for businessman and that they sought extortion money women clothing from him to use to protect the family and that he could no longer keep up with their demands and stop paying it and at that point it appears that they sought revenge for the failure to pay the extra and then that from there it became about the reports to the police in the search for fidel gutierrez it's throughout the record it's in the petitioners testimony it's in the export parts testimony it's even in the letter from sergeant ray is that that was the reason for the threats against them i see that my time is over there are no for internationals and you're left you're going to stay were little longer ok i've got a couple more questions for you if you don't mind the b i said with regard to the equal protection claim that it had no jurisdiction to assess the claim but it cited only a b i a decision that said that the b i a has no legal authority to strike down a federal statute is unconstitutional isn't there a big difference between a denial of due process let's say let's say let's say in a hypothetical case that an i j prevents a petition or an asylum case from presenting any evidence whatsoever and says i don't want to listen to your evidence listens to the government's evidence but not the petitioner denies asylum relief appeal to the b i a the claim is denial of due process i was denied a chance to present my side of the evidence i had my witnesses there i had done everything the judge had asked i didn't present i didn't get a chance to present any evidence whatsoever that's why i lost my due process rights were violated please reverse in for an evident jury for hearing there's a b i have jurisdiction to address tackling yes your honor it even though that's constitutional yes your honor i not address the constitutional claim in this case then i believe because like legislation it's something that cuts across this equal protection challenge is a systemic challenge it's essentially saying the entire court system has this these these differences in the way that statistically cases are being handled where do you raise such a claim then in a in an original hey b s petition under twenty to forty one in a federal district court in atlanta i'm not sure where it could be raised your honor  similar let's make the facts just a little bit worse for you in a hypothetical and you tell me where this claim this claim and i'm not i'm not talking about the merits of the claim i'm talking about to just  period of five years the immigration court in a given city whatever city we can think of was denying asylum applications from wherever and by whomever at a one hundred percent clip nobody was getting relief one hundred percent for five years how would that claim get adjudicated well first of all in the first instance it would get adjudicated in the individual no talking about the systemic claim that there is something seriously wrong with the immigration court in that jurisdiction because not a single person has gotten asylum in five years and that can't possibly be correct assuming the numbers are big enough to be able to have a statistical sampling where does a claim get adjudicated i'm not talking about how that claim claim comes out i just want to know where it gets litigated be some place where you could build a record i would say and it possibly under thirteen thirty one in district court raising an equal protection challenge but in this particular case  this isn't an equal protection claim and equal protection claim but generally speaking comes when there's you can express classification and differentiation between two groups of similarly situated people in this case there is no express differentiation in his or all his or all aliens no it's because they're all being treated the same they're all being denied and they're all aliens so there's no equal protection claim there's nothing that says you have a quota you're only allowed to approve two percent no you're right you're right but numbers don't always tell a story and you've got this rail ease very famous quip that there are lies damn lies and statistics and so i'm aware of the fact that numbers don't always tell you a story and can often be misleading but numbers can sometimes begin to tell a story and the difference between the rate of asylum grants elsewhere in the country and atlanta is pretty stark do you think or not but you also have all these different factors that may be in the mix like i don't have similarly situated person is it like one of the other factors atlanta is in taking asylum applications only from people from jamaica or people from great britain they're taking them from everywhere like every other jurisdiction in the country so do you explain how do you explain that on trees different kinds of asylum claims and you're trying to bring it back to an individual analysis and i'm suggesting to you that when the numbers may get big enough the disparity may get big enough maybe there's a reason to dig a little bit more and find out why maybe you're right maybe all of that disparity gets explained by individual circumstances that many of many of the asylum applicants in atlanta were from these countries where they're generally isn't persecution and they're really in the state department reports generally say things are ok there may be there by people who had very weak claims of membership in a protected social group maybe all of those people were found not credible but without all that information these numbers create a very very troubling image and it just that your honor that we may we may need more we don't have on this record we don't have an equal protection claim your honor be careful what you wish for because if that case gets filed in a federal district court with federal question jurisdiction maybe an eis an equal protection claim but as a due process claim and discovery begins and actually your honor makes a good point this in the end this really just sound like a repackaging of the petitioners due process claim no those are different claims because that this claim whether it has merit or not whether is just demick claim her other due process claim is individual to her and what happened to her in her case this one is there's something rotten in the immigration court in atlanta because you can't explain those numbers that all of the immigration judges in atlanta are biased against asylum or that they have an unwritten quota or that they've been given a certain message that numbers are not supposed to be above a certain number and they're applying that message with a vengeance there are a lot of possible good possibilities for that disparity a lot of them innocent and a lot of them explainable there are also a lot of really bad ones but it sounds a little bit like the supreme court's decision in wal mart vs duke your honor we're talking about individual discretionary decisions made at individual cases with individual facts and assignments very fact  noticed you're not as troubled by this parity in numbers as i am so we'll leave it will leave it at that but thank you very much for your argument falk we really appreciate it mislike i'm sorry we really appreciate it thank you your honor sure you have four minutes for argument thank you how do you presume how do you win on that claim by just showing wrong numbers assuming the claim is even just a simple your honor statistical evidence of a discriminatory impact is sufficient to show intent and unequal application of the law and that not always it may be enough to get you over the prime of face or case bar in some scenarios but it doesn't always do that because disparities in numbers can sometimes be explained in a way that is appropriate and neutral correct your honor but in this case the disparity in numbers coupled with the evidence in our case of what has happened in the failure to consider the particular lies particularize circumstances of our client are indicative of this pervasive by an open now you're trying to lin no your honor we raised it in the board of immigration appeals i believe ok why do you think the b i has jurisdiction to address that claim the b i has jurisdiction to address the equal protection claim why do you think why you think it does we think it does because the claim is relating to that court's unequal application of a law that is facially neutral but that is being applied in a way that is discriminatory an client or are you suggesting that they would have a broader remedial authority on that claim your honor i believe in this case we contend that it's related to our client's case in particular  and we do believe there is a systemic issue but we've requested in terms of the relief remit and to a different court for our client because her equal protection rights have been violated  the question of the systemic issue would be happy to provide further briefing to the court on that if that would be helpful but for miss slack says in part that if what you're really seeking is systemic relief then what you're looking at are class abased allegations to be able to get some sort of injunctive or remedial relief and i think that's one of the things that judge grant was asking you about whether the b i has the authority to even provide that sort of relief should it be inclined to grant you any yes your honor i cannot answer definitively right now i would but would be happy to further look into that it's my understanding i'm not quite sure but at least as to our client we believe that this is the proper approach and remedy in terms of addressing the overall statistics and the systemic problem i'm not same two percent that you're arguing way insufficient and i remember somewhere else in regards to this record so statistically that those figures don't seem to help you any that sure doesn't show any disparate treatment if you're going to say all those courts are or are not treating people fairly is going sleep just except you respectfully your honor we're not necessarily making statements about those other courts in the statistics atlanta is the sixteen only fourteen applications for asylum were granted as compared to five hundred ninety that were denied so essentially the clear majority of people applying for asylum in that court are being denied and our position on that what and just to mention the government hasn't disputed the statistics and doesn't take issue with the grant rate being abysmally low in atlanta and so i just wanted to point that out and also  unless i guess i run over all my time are there any further questions for you can you can wrap up ok i was just going to say i'm just short and to your point you're absolutely right the enemies does not just drop from the sky and in this case the record supports absolutely that before there were these complaints a to the police there was absolutely evidence of the extortion of fidel and that turned into a family target and so that's supported by our clients testimony in the in the record and the police report as well and just for those reasons we just asked that the corps please reverse and remand this case for further proceedings all right thank you very much mature thank you very much for your pro bono service on behalf of  mislike thank you very much for your argument as well we're in recess until tomorrow morning