We have five paces this morning and the first one is Bastia the attorney general number 13-3019 Miss coil and Miss Clay Whenever you're ready Good morning your honors. Can you hear me judge? I can yeah, thank you My name is Ann coil and I am with the firm of gifts and done in pressure. We represent petitioner Mr
. Bastian pro bono Thank you Your honors this case is not a challenge to any factual determination made by the agency rather our fundamental argument is that the agency aired in ignoring key pieces of evidence and but that was an error of law and in making these determinations Ultimately the overall decision was infected with these errors and there were there were several key things that were not addressed at all is isn't that basically asking us to reconsider the evidence that was found by the hearing officials Your honor, we're not asking to reconsider the evidence. We're asking that The agency be required to consider all Revitance all relevant evidence as the cat regulations require all evidence of for sure to be considered is that considered because the hearing officials In comment on the evidence or because evidence Was excluded that should not that should be considered We're not arguing that anything had been excluded below But there was no comment at all or any analysis of several key pieces of evidence which Has been found to be error in this context first there was no mention at all of a key piece of evidence that was introduced at the Second hearing which was the declaration By Max Bastian I asked the question because this goes to the first jurisdiction and I We're pointedly asking because a hearing official or a judge not make a specific comment to Is that mean that it's not being considered? Does a hearing officer or a evaluation officer have to comment on every piece of evidence? Well, Your Honor, I think there's a requirement that every significant Progative piece of evidence does need to be analyzed because if it is not then how would this court know whether it had been considered or not? Well, let me actually just hit the outset I mean since the briefing was filed we've had the the death of Jean-Claude Duvalier or so-called baby doc Who was had I'd been realized until I read his obituary that he has been living in Haiti from 2011 to now Does that have any effect on this case? You know, Your Honor, that's a very interesting question and I thought about a little bit as well when I read about his death I mean it's outside of the record or the case to be remanded
. I think it would be appropriate to consider That but my understanding and what was submitted Below was a Expert declaration which testified to the continuing political turmoil in Haiti There are there are factions of people who hate the Duvaliers Including people in the Haitian military police and even though Baby doc was able to live in Haiti his last years I'm sure he was well protected by security, so I don't think that really goes directly to the issue of whether one particular person Who's incarcerated and detained in an environment where the the police many of them do have animosity for his his family associations I don't know that that would directly answer that question And also just in looking at this at the outset one of the When your blinker response is when you have this many members of either the Bastiano Le Quas His mother's side was Le Quas Families killed six people He's sitting like notice and yet this particular person client went back in 1988 and 1995 without incident Yes, we recognize that your honor. I don't I don't think that is necessarily per say bar on a finding that He would be endangered there, but again the context is very different where he would be processed by the Haitian authorities They would know he was there
. He has no freedom of movement to try to keep himself safe and As we addressed in our brief that were extenuating circumstances when he went back in 1995 It was to help search for his missing brother who'd been abducted so his willingness to take that personal risk Isn't necessarily reflective of a lack of danger Coming in and out of the country are themselves processed aren't they? I mean it's that he he must have been aware that when he gets into What a prince or wherever he goes to that he's going to be checked his name is going to be checked If there are let's say corrupt Police officials that are going to turn him over They could certainly could have done it when he went back to Haiti on those two occasions It's not impossible that that could have happened It didn't happen and the fact that didn't happen once doesn't mean that if he weren't Held for some period of time that there would be greater access to him for retaliation And targeting have I have the possibility that these are random acts of violence as a post-Jew Individuals targeting members of the Duvalier family or people who were I Anything is possible it's it seems that the number and the brutality of the Max of violence all against one family when place in the context of the testimony of someone who was there it did have personal knowledge and to you mask mask fashion He said he fled Haiti when There were violent reprisals including hacking people with machetes one of the victims in this case was slashed with machete And we recognize it's very difficult to show Motive underneath circumstances and that has not been a requirement that there be some sort of documentary evidence to show that so It's really a question of the overall context in which this arose and there was also a state department report that was introduced at the original hearing Which was contemporaneous with some of these acts which stated that people who were known Affiliates of the Duvaliers were treated differently in the detention when when they were Put in detention after being repatriated So there there was actually outside Proborating evidence of this problem and that was one piece of evidence which was not addressed in Either the ij's or the bia's decision and we would respectfully argue that that was was clear error of law Is your argument essentially? It's that Not that you're challenging prison conditions, but that this person would be singled out for persecution because of his family connections That is exactly the argument and we put forward that opinion in our expert report and your honors I neglected to mention I wanted to preserve reputal time and may I do so? Thank you Okay, thank you very much You It's clay Morning your honors my name is Sharon Clay. I'm here on behalf of the government You please pull the microphone a little bit closer to your voice is very soft My apologies May I please support my name is Sharon Clay on behalf of the government? Do you have any perception or view as to what the recent death of John Clark DuVoye has with regard to this matter I would say that the recent death the fact that he's been able to reside in Haiti for the last years without harm would suggest that persons who are part of the duvier vision are not targeted for harm or persecution How do you explain what happened in this particular case? I mean it's like Anybody who was associated especially with Mr
. Bestian's mother side of the family is Is in deep trouble? Yes, I We'd be interested to subject the fear the farm the family in terms of fear however the petitioners as well as the expert witness Only speculated as to who the potential Percy Judas were um, well Duvoye wasn't wasn't living in an open gated community Was yeah, I mean he was probably protective of the missing Haiti in his light of the violence and threats against his life Um, well without that evidence is kind of hard to know for certain whether or not he's protected the fact that he was willing to return back to Haiti is suggested is suggestive of his fear of potential harm as well I'm not sure if I don't think it would be appropriate to assume that he felt that he could go back because he was going to be adequately adequately fortified I think that a reasonable interpretation of his return back to Haiti is that he didn't fear any trials as a harm at the time Do you discount this this assertion that there are people in Haiti who Absolutely hated Duvoye and all the people that worked for him and have killed people who worked for him and have been assaults on people who Were employees of his government? They're very well. It's likely people who are there who are anti-dual iris however the facts as presented in this particular case suggest Um, it's been many days on speculation in here said All of the members are the members of the family who typify each got before the immigration judge and said that they had no idea who attacked their family members without evidence of the identity or motives of the attackers for their family members the um I understand that in the specifics of this case, but I mean generally in Haiti where they're not people who were who sort of vengeance against Duvoye because of the The type of of rain that he he exercise in Haiti that's true, but the petitioner what is the country? I mean their country reports don't they The country because actually the country reports actually belied at account This coil refers to a 2003 or previous account, but the most recent country reports for 2009 actually say that there's no political detainees There's no there's been no record of Political disappearances or killings And in this case you've got six deaths in nine years The the most recent one is in 2004 petitioner appealed or this last case was heard before the immigration judge in 2011 which is six years remote remote
. You don't know if anything's happened Whether family members have continued to stay there and in fact one of the Family members does still continually reside in the In Haiti and has not been harmed it was miss the croix has been I believe it's a judge during a duvier refreshing He's so resizing in he's been unharmed. I mean the big the big problem I have with this case from your perspective is that it looks like the ij and also the bia talked about the prison conditions and That's not what was argued I mean and also we've decided that in in in in bank case in fact dealing with Haiti But here it was perceived support for the duvier regime and for is perceived wealth That he would be singled out and persecuted and I don't know if he wins or not But shouldn't they at least deal with the right issue? Um, I do believe that they dealt with the right issue I mean they cited the law as it was supposed to be stated and they just determined that good well Okay, show me show me where they they dealt with that issue Now I don't have the the board In terms of Mr
. the statement of the law regarding the local blindness and That's wolf of blindness to prison conditions There isn't it not or is it more for I mean where is the stable of blindness or Anything else pertaining to The family connections and the perceived well Well the immigration judge pointed to the fact that there was no identity there wasn't a motive There was speculation there was no close relationship with the family But Tisha has not been in Haiti for the last 23 25 years He's been back to Haiti only one time and at period of time Um, he left him But what I'm talking about is when they when they state what the issue is What what did the ij state what the issue was in terms of Both the withholding of removal and cat claims the whether or not it was like more than likely that he was going to be tortured or persecuted upon his return to Haiti because Because of his family ties or I The immigration did not reach that issue any back to the question of jurisdiction The issue of whether or not the prediction of a future likelihood of persecution or torture actually takes place as a factual determination But what I'm looking for is where in the bia or ij decisions Did the either of them consider bastions claimed that he would be singled out for torture in prison because of this perceived political beliefs and family connections They couldn't Evaluate that or they couldn't meaningfully evaluate it because they had no factual evidence to support his connection to his family or his Or an imputed political opinion Um, Mr. Bashin admitted that he had no political opinion and like I said he left Haiti at the age of seven So there's there's sort of a tenuous um, how do you establish that you have this kind of Most people know who his father was correct Um, I'm not sure it's that clear that everybody know I mean there's people that do know but even when the expert came over She had to do an independent research on max fashion
. It wasn't that she testified I'm clearly aware of him even in her regular travels through Haiti It was her testimony that she had an interview with max fashion and his father and then went out to to investigate the prominence of max fashion. He wasn't that she was immediately aware of it Can you comment on this? I think this is a part of Miss Coil's argument that the immigration church focused on conditions and Haitian jails and seem to ignore uh Mr
. Bastien's argument that he would be targeted in Haiti prisons because of his families association with Duvalier Not necessarily prison or jail conditions Yes, because the evidence of in the precedence for Substantor prison conditions is established the problem with this case that there hasn't been anything established in terms of Who his percuit persecutors are If if I may if I was to do an even analysis on whether or not anti-dubalayers was going to hurt him He hasn't established at this point that that is the basis that he would be targeted for harm So it's not enough that anti-dubal errors are targeted for Being attacked he needs to show that he's more likely to be targeted because they can acknowledge or recognize his connection to The regime and having been in the United States for 23 years It's not readily or immediately. I didn't didn't you have the same name as his father or was a a charge appointed by Duvalier Yes, but um He didn't have the same name that the immigration church only gave that minimum way to the extent that Most persons find it more easy to make family connections when there is a person a carbon first name But in this particular case the people that have been harmed that the petitioners relying on to establish its family ties do not have the same last name and like Any one of us who has friends or neighbors in the area may not readily know who our family members are simply because that person doesn't have the same last name So that's sort of why the immigration just gave it a little less weight Okay, can I come back to the country report which I have not seen by imagine you have had a look at it is Is there a finding that there's the anti-dubalier sentiment that still exists in Haiti? Not in the most recent country reports What what is the year the expert testimony? She actually testifies to this anti-debiliate the Liberate this was brought up before in here
. He wasn't yes, it was brought up at the hearing um However the immigration judge when considering the expert witness's testimony about the um the the Dover lyrics and the harm that they received or targeting the immigration judge actually minimize the expert witness testimony because She's an interested party. She actually serves as an advocate for Haitian criminal deportees A lot of her background is not specifically about max fashion, but about criminal deportees in general She also testified during her Before the hearing that based on her conclusions which she relied on Complete communications with mr
. Bastion and his father she also indicated that she did not base her conclusions On his threat of harm on the records on criminal deportees because she indicated that the records were incomplete and confusing One of the other issues That was very that minimize expert witness's testimony was the fact that She did not conduct an independent verification of circumstances surrounding the The deaths of his family members So no one knows within any certainty. There's no other evidence. That's anything that the attacker said Why his family members were attacked and to this at this point it appears that The whole claim is based on speculation in hearsay This sort of notion that because we're all family and we're all dead It's the reason because we're all family It's not It's pretty it's pretty telling though that five members of the same family Just meeting with a very violent death within a period of nine years There's a lot of people that meet a very violent death in Haiti as the country reports also showed that there's issues with ongoing civil Civil unrest between different political factions not just the anti-Jubilaris in the area There's also vigilanteism where some of the patients Because in some areas where they don't have adequate Support from the police they have taken justice in their own hands so to speak But a lot of these types of things are based on the community report or the country reports. There's not based on the Participation in the regime
. That's anything that the attacker said Why his family members were attacked and to this at this point it appears that The whole claim is based on speculation in hearsay This sort of notion that because we're all family and we're all dead It's the reason because we're all family It's not It's pretty it's pretty telling though that five members of the same family Just meeting with a very violent death within a period of nine years There's a lot of people that meet a very violent death in Haiti as the country reports also showed that there's issues with ongoing civil Civil unrest between different political factions not just the anti-Jubilaris in the area There's also vigilanteism where some of the patients Because in some areas where they don't have adequate Support from the police they have taken justice in their own hands so to speak But a lot of these types of things are based on the community report or the country reports. There's not based on the Participation in the regime. These are things like witchcraft and That there were lynchings because of theft and some of these other types of things I just have one one more question for you. Do you know what his current status is? To this is the best you know, I do not I'm wrong
. These are things like witchcraft and That there were lynchings because of theft and some of these other types of things I just have one one more question for you. Do you know what his current status is? To this is the best you know, I do not I'm wrong. He's a criminal deportee. I mean he's a criminal alien
. He's a criminal deportee. I mean he's a criminal alien. I'm going to see you just in detention at the moment I don't think so. I'm not sure He's not correct
. I'm going to see you just in detention at the moment I don't think so. I'm not sure He's not correct. You think thank you. All right
. You think thank you. All right. Thank you very much Okay, I'll take any questions. Don't know you've asked all the right ones Okay, I just want to close by saying because mr
. Thank you very much Okay, I'll take any questions. Don't know you've asked all the right ones Okay, I just want to close by saying because mr. Bashin was found removable for having committed an aggravated felony This court should dismiss the petition for review to the extent that mr. Bashin challenges the wing of the evidence In agency's factual determination that he fails to establish a clear probability of Constitutional torture for someone to cap win any alternative this court should deny this petition for essential record evidence For supporting finding that mr
. Bashin was found removable for having committed an aggravated felony This court should dismiss the petition for review to the extent that mr. Bashin challenges the wing of the evidence In agency's factual determination that he fails to establish a clear probability of Constitutional torture for someone to cap win any alternative this court should deny this petition for essential record evidence For supporting finding that mr. Bashin feels established eligibility Well, that's all that's on your brief. Oh, we've got it
. Bashin feels established eligibility Well, that's all that's on your brief. Oh, we've got it. Thank you Thank you very much Your honors just briefly I'll clarify my prior statement as I was assured the question was addressed to whether mr. Bashin was currently detained in the United States or in Hades currently in the United States He's not been deported and he's not detained um Going going back to your honors question about the failure of the Agency to engage the claim that mr
. Bashin would be subjected to Forchers specifically because of his family connections that is our argument that that was one of the key Errors that was addressed because I was in an error though. I thought the immigration judge didn't question Your point is that the immigration judge ignored that Completely My plan is is that the immigration judge didn't actually engage the specific intent inquiry He stated that prison conditions while deplorable did not rise to the level of torture in accordance with this circuits prior holdings But he did he did not engage in an analysis of whether there was sufficient evidence to show That mr. Bashin would be specifically targeted and and so doing he he did not acknowledge the Carstjen reports statements about this subject and While my adversary just pointed out the government's position with respect to various issues in the court Immigration judge actually didn't make any of those findings the immigration judge merely said that the court would give her Limited weight, but did not address at all any of the statements concerning the history of attacks on Duvalierists or opinion that mr. Bashin would be targeted in prison as a result of his family association And the BIA did not address that issue at all as well um The agency also air the immigration judge also aired in stating that mr. Bashin's lack of demonstrated political opinion was was relevant to the Analysis because our argument has imputed political opinion and you don't need to be shown to hold an opinion To be associated with those and especially in a case like this where you're at the son of someone who was known to be a member of a despised regime The so the purported mistating of the issue relates primarily to the caclaim doesn't not As opposed to the withholding of removal claim It does relate to the caclaim error, but I would also point out that the immigration judge didn't consider the Carstjen report in the context of The withholding claim and he actually He said that um That with respect to the At the end of the ij said was that the car shan Was an expert witness always on behalf of one side and therefore came with quote in agenda close quote That's correct. He does say that but he he he specifically confined his analysis Of the car's former port to the cat claims and didn't actually address it in the context of the persecution claims Okay, could you comment on the Judges comment on the expert expert testimony said that she um Putting aside the fact that she's a paid witness because most witnesses do get paid for Testimony that's fine, but that she had an agenda because she was it allied with a in immigrant group uh Automatic Yes um the judge did Accord her limited weight based on this purported agenda which relates to her having represented other other respondents in similar situations arguing about conditions and Haitian prisons but um to my to my knowledge there was no no evidence that there was Any any prior testimony relating to the duvalier situation So this was one area in which she was not known for having testified before and and this court has credited Miss Carson in the past in the Lavera case because she has extensive experience in Haiti and At the bottom the immigration judge didn't say her opinion was entitled to no weight But then just went on and you agree with this Comit that the entire duvalier sentiment has Receited quite a bit in Haiti You're on her time to answer that question not not having gone to Haiti or being an expert in Haitian part of the country Haitian politics I acknowledge that it is it is not noted in the 2009 country report it seems that there's Extreme political instability there and Blood feuds that may last a very long time and even though it sounds like a long time ago 1986 As as noted as as late as 2001 the country report did Have a statement that people were treated differently in detention unless your honors have any additional questions Thank you very much Thank you and thank you very much into your firm for taking this matter per bottle. It is much appreciated. Thank you very muc