Good morning, May please the Court. My name is Stuart Fulinski and I represent the petitioner, Lily Marling, Constanza. And I would like to reserve two minutes for a bottle, please. Okay, please write your call. Okay, thank you. As the court is aware, there are basically two prongs in this case. There is, you know, setting aside the in-appsentia order and echo polling. And the other one is change circumstances in Guatemala. The echo bill tolling one, or give it looks like it's tough one. What we would submit, Your Honor, that she was without a new attorney. Yes. And, you know, the government's lawyer, page 101 of the transcript, or probably the record, you know, does fake, you know, the cause of her coming forward was that she was apprehended in the future of program
. And- Well, the problem with you, I mean, for me, the problem with the echo bill tolling argument is sure that it looks like the government aired and the board aired and requiring her to pay a fee for the- was the first motion to reopen. But then, yeah, she basically waited 12 years. Oh, no. The current motion, right? Your Honor, she also, the record shows that in 1998, she went to the former INS and made inquire and saying, I didn't show up for my interview, not hearing interview. You know, what is happening? And apparently, you know, the notation said, oh, you were ordered removed. What further happened? We don't know. She didn't- she doesn't recall. So, in your view, that constitutes due diligence on her part and seeking to protect her procedural rights there? On my part, no. But then, I am a lawyer, perhaps an immigration law for a long time. So, your other argument seems to have a little bit more heft to it. Okay
. Towards that end, I will take note of the government's brief footnote 27 where they say, if, you know, the issue of a particular social group and change circumstances is properly before this Court, then the case must be remanded. We happen to be in agreement on that one. And I would note that the government doesn't address our argument that there has been a big change in Guatemala. So, what helped me size up the evidence that the supporture statement that there's been changed circumstances since the filing of, I guess, when she was first in Apprehend at her since 1996 or whenever it was. Actually, she was first in Apprehend at the beginning. Or when she first entered the city? She first entered the country and within four months of memory serves me correct. She affirmatively saw the asylum. That was in 1996? No, 94. 94. Sorry. And at that time, the one-year rule was not in place
. You know, she could have waited on- From 94 until the time she filed her motions to reopen. What were the- Well, the big change in circumstance is that the Civil War ended before the peace agreement. There was just generalized violence. Everybody was getting killed, not just from women. And so, assuming that there was violence against women before 96, well, there were- That was about one reason. Now, the change circumstances now with the peace agreement and the rate of violence against women did not drop. Has it increased? Has it increased? I believe so. So, I think, Judge Pius wants to know is what's the evidence in the record that there's been additional persecution against this particular social group to which she belongs? Well, we put in all the generalized evidence and we argued that she is in the group of women subject to femisside, which this court indicated in Perdomo, and I believe Judge Pius, you wrote that, you know, would be a comfortable social group. Could be. Could be. Of course, could be
. Right. We didn't say it was. Never said that. I said- We sent it back to the BIA for them to take a look. And since then, the only BIA case that I'm aware of on that subject is in August of this year, ARCG- Right, there are two. And in ARCG, yes, we don't have the circumstance of, you know, domestic violence, but ARCG does not have language limiting to that situation. So, yes, it can be distinguished on the facts. It's, it's tasteful to talk about this because we're talking about innocent people being murdered. But it seems to me that the evidence is mixed as to whether or not there's increased violence now directed towards women. Isn't there articles on different sides and trying to sort out this mess? And it has a situation where many people, including many women, were killed in the Civil War. Now, many women are being killed as a result of some type of terribly vicious misogyny, at least that some articles recognized in Guatemala
. But is that enhancement really sufficient? Is the record clear enough that we could find that the lower authorities made a mistake? Were required to correct? Well, I could say that the BIA did not have the advantage of Peridomo, and they do say, although we're saying there was no change circumstance, even if we said there was, she still wouldn't qualify, and they do not expand on that. And I would say that they should be allowed that. Your clients spent this country for 20 years? Correct. Is there any criminal record? No. Have you sought to mediate this case with the board or to otherwise work something out under the Morton MMO? We did approach ICE and talk about what we call PD, prosecutorial discretion. And apparently the local policy is not to do it if there is a petition for review pending before this court. We would love to do it. So what would you, wouldn't you have to get together and agree to jointly seek an administrative closure of the case? That is correct, Your Honor. And again, the experience in our office is that the Los Angeles District of ICE declines to do that when there is a pending petition for review. Well, but we see cases where out of LA, where there are petitions for review, where we send them to mediation, the local ICE offices involved. I don't know if they're involved at this level when we get to this level, but they certainly worked out arrangements
. Your Honor, I will also represent to the Court that we have experience where this court has ordered it to mediation. And the request comes through, you know, the Office of Immigration Litigation. Right. It seems that the local ICE is more amenable to that. But if we just go straight to ICE, no, they will not do it. All right. So you have two months, eight, two minutes. I would like to reserve a here, Your Honor. So we reserve, I guess. And we'll talk to Council for the government. Oh, it says
. Good morning, May it please the Court. My name is Monica Anton, appearing on behalf of the Attorney General. I'll start in reverse. You're a DOJ attorney, you're not an oil attorney. Oil is within DOJ. So you are an oil attorney? I am. So beginning with the Court's discussion of PD, the case was in mediation. There's currently a request for PD pending with ICE LA. And if I may clarify what the policy is when there's petition for review pending? It is. It's prosecutorial discretion. Yes
. Okay. So the policy when there's a petition for review pending, of course, as the Court knows, is that yes, we will engage in discussions with ICE about PD. And we are in fact in the middle of such discussion, regardless of the mediation that has already happened. In this case, we sent this case to our local to the Ninth Circuit mediation office. It was a mediation, yes, for a few nights, this summer. In fact, recently, it was released in July. When the petition for review seeks review of the denial of emotion tree open, rather than administrative closure, I still agree to some form of post removal order action. So it'll typically take the form of deferred action or an administrative state removal rather than vacating the underlying order. So I do have that request pending. I will probably be a few months before I get an answer from ICE. So I can't guarantee anything right now
. So what should we do? Should we defer submission of this case and wait to see? Should we just send you back into the mediation, Ninth Circuit mediation files, so you can see if it gets worked out that way? I don't have an opposition going back into mediation if the panel would prefer that. I can't guarantee you any results, and I can't guarantee that you won't see the case again. So we can guarantee any results. Sure, so it may be necessary for you to rule on the legal issues later. And turning to that, when concern I had about the BIA's opinion concerning the particular social group was that it was decided before our latest decision in Hernandez-Rivas, and the BIA applied incorrect law in determining a particular social group. Well, the board didn't reach the issue of whether the group is a particular social group in this case. They rested on the preliminary determination of whether country conditions have changed. So in the absence of meeting that threshold determination of whether country conditions have changed, it's not necessary for the board to reach the merits of the primafacial eligibility for asylum claim. So go ahead. But there's at least some evidence on the record, some fairly significant evidence on the record that women are being targeted now as a result of what I committed to go call the sort of a vicious misogyny they don't like women moving into certain types of middle-level positions, and that sort of thing. There is evidence that that's going on in Guatemala right now, isn't there? There is, but as you said, it's mixed, and it's similar to what was happening during the armed conflict
. It's qualitatively different to them. You had armed forces at that time. There's some... There's part of the... there's part of the simple unwrap, or the conflict that was ongoing for a number of years. That's true. Everybody was at risk. Yes. Yes. The commentators have said that many of the people who are responsible for what you've described as the misogynistic violence are the same people who are perpetrating the violence in the same ways using the same methods as they were during the armed conflict. So regardless of the change in the war and the end of the armed conflict, it's the same people who are... Those people who are guerrillas during the armed conflict, they're still living there. So you're saying that there's an irony here that if 25,000 women a year being murdered as a result of a civil war, and then 10 years later 25,000 women are being murdered a year because they're women, not because of a civil war, there hasn't really been a change in circumstances that just killing women on mass, and that's not a change in circumstances that we should respond to. Well, no, it's not a change in circumstances. It seems qualitatively different, which is one of the factors we look at. Yes
. Yes. Yes. The commentators have said that many of the people who are responsible for what you've described as the misogynistic violence are the same people who are perpetrating the violence in the same ways using the same methods as they were during the armed conflict. So regardless of the change in the war and the end of the armed conflict, it's the same people who are... Those people who are guerrillas during the armed conflict, they're still living there. So you're saying that there's an irony here that if 25,000 women a year being murdered as a result of a civil war, and then 10 years later 25,000 women are being murdered a year because they're women, not because of a civil war, there hasn't really been a change in circumstances that just killing women on mass, and that's not a change in circumstances that we should respond to. Well, no, it's not a change in circumstances. It seems qualitatively different, which is one of the factors we look at. Yes. But the commentators have agreed that it's really not qualitatively different. There is evidence in the record to say that it's not, that it's the same people, the violence is the same, the methods that... Is that one of the articles that the government, one of the documents that the government's in it that takes that position, or is it part of... No, it's from the petitioner's own evidence. So, so, used to be everybody's getting killed, and now only women are being killed. You don't think that's persecution on account of gender? Well, it's not only women who are still being killed, women are a fraction of the people who are being killed. Let me, I want to go back to my particular social group question, because I wasn't clear, but with the BIA says is that it won't consider whether she's in a particular social group, because she raised that the first time on appeal
. But the commentators have agreed that it's really not qualitatively different. There is evidence in the record to say that it's not, that it's the same people, the violence is the same, the methods that... Is that one of the articles that the government, one of the documents that the government's in it that takes that position, or is it part of... No, it's from the petitioner's own evidence. So, so, used to be everybody's getting killed, and now only women are being killed. You don't think that's persecution on account of gender? Well, it's not only women who are still being killed, women are a fraction of the people who are being killed. Let me, I want to go back to my particular social group question, because I wasn't clear, but with the BIA says is that it won't consider whether she's in a particular social group, because she raised that the first time on appeal. But the idea, opinion, actually says that she claimed that she would, face, this is ER 97, that she claims she would face persecution on account of membership in the social group, while on women's, I think, to work, risk of homicide. And then it's the IJ who applies the incorrect law in light of Hernandez-Rivas. So, I think, okay, I think the IJ is wrong because it applied incorrect law, and I think the BIA is wrong, because it said she raised the argument for the first time on appeal, and she clearly raised it before the IJ. So, what do we do? Sure, how about I'm referring to, right? It's in black and white on the page. Well, what the BIA is saying is that she's raising a new social group on appeal, that her, on appeal, that her social group has changed, her, her, uh, description of it has changed. So, but ultimately what the board is seeing is that it's not going to reach the question of whether either social group is a social group, because it's going to rest its determination on whether conditions and Guatemala have changed. So, until we get past, What do you sort of depend on how you define the social group, though? Whether conditions have changed. Well, both social groups... It comes first
. But the idea, opinion, actually says that she claimed that she would, face, this is ER 97, that she claims she would face persecution on account of membership in the social group, while on women's, I think, to work, risk of homicide. And then it's the IJ who applies the incorrect law in light of Hernandez-Rivas. So, I think, okay, I think the IJ is wrong because it applied incorrect law, and I think the BIA is wrong, because it said she raised the argument for the first time on appeal, and she clearly raised it before the IJ. So, what do we do? Sure, how about I'm referring to, right? It's in black and white on the page. Well, what the BIA is saying is that she's raising a new social group on appeal, that her, on appeal, that her social group has changed, her, her, uh, description of it has changed. So, but ultimately what the board is seeing is that it's not going to reach the question of whether either social group is a social group, because it's going to rest its determination on whether conditions and Guatemala have changed. So, until we get past, What do you sort of depend on how you define the social group, though? Whether conditions have changed. Well, both social groups... It comes first. It's sort of space. And it's true that the conditions have to have changed so as to create a primafacial eligibility for asylum, so it's not a completely isolated question. But both social groups are at heart about violence against women in Guatemala. So, the broader view of what conditions are for women in Guatemala underlies both of the social groups. So, either way, the board was permitted to rule on the motion-triumphant solian, whether conditions in Guatemala have changed. And until we get past that, it's not necessary to rule on the social group itself. And of course, the court finds that conditions have changed that the board did abysit's discretion. Well, maybe if the two concepts are linked, then maybe the board should take another look. Well..
. It's sort of space. And it's true that the conditions have to have changed so as to create a primafacial eligibility for asylum, so it's not a completely isolated question. But both social groups are at heart about violence against women in Guatemala. So, the broader view of what conditions are for women in Guatemala underlies both of the social groups. So, either way, the board was permitted to rule on the motion-triumphant solian, whether conditions in Guatemala have changed. And until we get past that, it's not necessary to rule on the social group itself. And of course, the court finds that conditions have changed that the board did abysit's discretion. Well, maybe if the two concepts are linked, then maybe the board should take another look. Well... And in light of the perdoma. And in light of their recent activity in these other cases or some. Because what they seem to have done is to narrow the group. To women who have been subjected to domestic violence. Well, the group is defined by the applicant. So the board is responding to the case. But when did she first raise the social group question? That comes up in the motion-triumphant file in 2008, I believe. So... There's been a lot
. And in light of the perdoma. And in light of their recent activity in these other cases or some. Because what they seem to have done is to narrow the group. To women who have been subjected to domestic violence. Well, the group is defined by the applicant. So the board is responding to the case. But when did she first raise the social group question? That comes up in the motion-triumphant file in 2008, I believe. So... There's been a lot... there's been a significant change in the whole social group area. Their house. Both on our part and on the part of the BIA. I agree. Yes. It's just a bit of an evolving concept. There's no piece of question. Is there concern that if the court reverses the decision that any woman from Guatemala will be permitted? Is there a reason why the government is not permitted to stay in the United States? Well, I don't think that there is a generalized concern about that. It always comes down to you
... there's been a significant change in the whole social group area. Their house. Both on our part and on the part of the BIA. I agree. Yes. It's just a bit of an evolving concept. There's no piece of question. Is there concern that if the court reverses the decision that any woman from Guatemala will be permitted? Is there a reason why the government is not permitted to stay in the United States? Well, I don't think that there is a generalized concern about that. It always comes down to you. It's so specific to the social group, forth by the applicant, to the evidence presented by the applicant. We have to see this whole sociological, psychological environment in which to find the social group. So every social group claim I've seen is so different. Even though they are based on these very broad sweeping generalizations that violence against women in certain countries. So I don't think that there is a concern about an over-generalization to that extent. Well, I see that my time is... So I need to stop..
. It's so specific to the social group, forth by the applicant, to the evidence presented by the applicant. We have to see this whole sociological, psychological environment in which to find the social group. So every social group claim I've seen is so different. Even though they are based on these very broad sweeping generalizations that violence against women in certain countries. So I don't think that there is a concern about an over-generalization to that extent. Well, I see that my time is... So I need to stop... The government would not be opposed if we did send this over back to our mediation unit and lighted the fact that your request is pending. I'm fine with going back into mediation of petitioners' degrees to that. If petitioners' council agrees to that, I just can't... Okay, that's fine. I just can't go into anything. Sure. Nothing in life is certain. Well, if the court has no further questions, the government rests on the pleadings. Thank you
. The government would not be opposed if we did send this over back to our mediation unit and lighted the fact that your request is pending. I'm fine with going back into mediation of petitioners' degrees to that. If petitioners' council agrees to that, I just can't... Okay, that's fine. I just can't go into anything. Sure. Nothing in life is certain. Well, if the court has no further questions, the government rests on the pleadings. Thank you. Thank you. Thank you for being so genuine. I appreciate it. Yes. It's very unpleasant. I agree with you that it's just tasteful. The facts are unpleasant, but the genuineness is appreciated. Yes. All agreed. I'll be very short. We're amenable to being referred to mediation
. All right. Thank you. Thank you. Constanza, be hold there. It's admitted. Be previously submitted. Shaw. He's around