M-A-M-Z ( 2020 )

Cite as 28 I&N Dec. 173 (BIA 2020) Interim Decision #4003
Matter of M-A-M-Z-, Respondent
Decided December 17, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Expert testimony is evidence, but only an Immigration Judge makes factual findings.
(2) When the Immigration Judge makes a factual finding that is not consistent with an
expert’s opinion, it is important, as the Immigration Judge did here, to explain the
reasons behind the factual findings.
FOR RESPONDENT: Hillary Gaston Walsh, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Joey L. Caccarozzo, Assistant
Chief Counsel; Lois B. Agronick, Associate Legal Advisor
BEFORE: Board Panel: MULLANE, CREPPY, and LIEBOWITZ, Appellate Immigration
Judges
MULLANE, Appellate Immigration Judge:
In a decision dated November 22, 2017, an Immigration Judge denied the
respondent’s applications for asylum, withholding of removal, and protection
under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”), and ordered him removed
from the United States. The respondent has appealed from that decision. The
appeal will be dismissed. 1
I. BACKGROUND AND IMMIGRATION JUDGE’S DECISION
The respondent is a native and citizen of Mexico. He is married to a
United States citizen, and they resided together in his late mother-in-law’s
house in Mexico. He has United States citizen stepchildren who live in the
United States.
1
A three-member panel of the Board heard oral argument in this case on December 5,
2019.
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In February 2016, the respondent’s car was set on fire outside the
mother-in-law’s home in Mexico. It was the middle of the night and a
neighbor alerted them to the fire. The respondent went outside but no one
saw who started the fire.
A second incident took place on May 2, 2016, when he drove to the
veterinarian’s office with his wife’s granddaughter in the backseat of the car.
Two men parked next to the respondent and one of them asked whether the
respondent knew him. The respondent said no, and the man pointed a gun at
the respondent and said, “You know who I am. You stole from me.”
According to the respondent, the man hit him two or three times with the gun
and also punched him. He threatened to kill the respondent but noticed the
granddaughter and said he would kill him the next time. The respondent
testified that he did not know the man or what he was talking about and did
not owe him any money. The respondent filed a police report about the
incident.
When asked whom he feared in Mexico, the respondent said he was
“afraid of the mafia. I mistrust anything.” He admitted that he did not know
the identities or group affiliations of the individuals who attacked him.
A private investigator also testified as a witness for the respondent. The
private investigator previously worked as a law enforcement officer for the
United States Government. The Immigration Judge accepted the witness as
an expert on general country conditions and cartel activity in Mexico. In
the course of an investigation, the witness learned that the respondent’s
step-daughter was arrested in January 2015 for attempting to smuggle
methamphetamine and heroin across the border. He concluded that the same
man who provided the drugs for her to smuggle into the country also attacked
the respondent, because their physical description of the man matched. He
also testified that the respondent’s step-daughter told him that she was
working for the Drug Enforcement Administration (“DEA”), but he did not
verify her claim with the DEA. His theory was that the assault against the
respondent was related to the drugs confiscated from his step-daughter,
because the assailant wanted to recover his lost money. The witness testified
that drug smugglers will threaten the family members of a person who has
lost drugs.
The Immigration Judge issued a written decision wherein he summarized
the evidence presented, including a detailed description of the testimony
given by the respondent and the witness. He then set forth the applicable
legal standards for asylum, withholding of removal, and protection under the
Convention Against Torture. The Immigration Judge found that the
“respondent is a member of the cognizable particular social group composed
of ‘family,’ with a particular subgroup of ‘immediate family members of [the
respondent’s step-daughter].’” He concluded that the mistreatment the
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respondent suffered in the arson incident and the assault outside the
veterinarian’s office was not severe enough to constitute past persecution.
The Immigration Judge made an alternative conclusion, stating that
“[e]ven if the two events mentioned by the respondent had constituted
persecution, the respondent would not have met his burden to establish a
nexus to his social group of family.” The Immigration Judge focused on the
timeline and said that “[t]he car burning and assault against the respondent
did not occur until over a year after [his step-daughter’s] loss of the drugs.”
He found that the evidence presented did not show that the arson and assault
were even related. He focused on the fact that the respondent did not know
the identity of the arsonist or the assailant. With respect to the assailant, the
Immigration Judge pointed out that he “made no mention to the respondent
of [his step-daughter] or the lost load of drugs.” Furthermore, the respondent
did not have a close relationship with his step-daughter as she had never
visited him at the home in Mexico, and he could not recall the last time he
spoke with her. All of these factors led the Immigration Judge to find “the
timeline of events and the two events themselves to be too speculative to
establish any sort of nexus.”
The Immigration Judge next turned to the witness’s testimony and found
his “testimony and affidavit to be unhelpful and full of speculation.” The
Immigration Judge explained that the witness’s testimony regarding the
“match” between the respondent’s assailant and his step-daughter’s drug
provider was speculative and based on “general descriptions,” and gave it
little weight. The Immigration Judge was also not persuaded by the witness’s
claim that the respondent’s step-daughter worked for the DEA because the
witness admitted that he did not confirm the information with the DEA, and
that the reasons the witness provided could be explained other ways. The
Immigration Judge also pointed out that the witness “did not address the
typical timeline of retaliation by cartels” and that he “did not address the
significance of strength of relationship between a smuggler and a particular
family member.” The Immigration Judge concluded that the witness’s
testimony did not establish a nexus between the harm the respondent
suffered and a protected ground, so the respondent had not established past
persecution.
Turning to the respondent’s claim of a well-founded fear of future
persecution, the Immigration Judge reasoned that the respondent had not met
his burden of proof. He concluded that the respondent had not shown that
there was a pattern or practice because “no one in the respondents’ family
has suffered harm that rises to the level of persecution.” The attempt to steal
vehicles from his wife and his wife’s other daughter lacks a connection to the
arson or assault, and “there was no mention of [the step-daughter] or the lost
load of drugs from January of 2015.” The Immigration Judge also noted that
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the other threats and messages were connected to the step-daughter, and that
the respondent’s other family members have not been harmed. For these
reasons the Immigration Judge concluded that the “respondent has not
demonstrated that similarly situated individuals are persecuted pursuant to a
pattern or practice in Mexico.”
The Immigration Judge also reasoned that the respondent had not
individually shown a well-founded fear of future persecution. The
Immigration Judge pointed to the respondent’s concession that “he does not
know the identities of the individuals who have harassed and threatened his
family.” This included an admission that the respondent does not know
“which cartel these individuals belong to, if they belong to a cartel at all, or
how involved they are in the cartel.” The Immigration Judge noted that the
respondent’s fears regarding the cartels “does not have a nexus to his
membership in the particular social group consisting of his family” and that
a generalized fear of cartels is not a basis for asylum.
The Immigration Judge also denied the respondent’s claim for
withholding of removal and protection under the Convention Against
Torture. The respondent’s withholding of removal claim failed for a lack of
proof, for largely the same reasons that his asylum claim failed. The
Immigration Judge denied the respondent’s Convention Against Torture
claim because “the respondent has not established that it is ‘more likely
than not’ that he would be tortured if removed to Mexico.” He described
the respondent’s claim that he would be tortured by cartel members as
“speculative and not corroborated by objective evidence.” No other family
members have been tortured. The Immigration Judge also pointed out that
the respondent did not receive any threats while in the United States.
Furthermore, the Immigration Judge found that the respondent’s claim relies
“upon a series of speculations” and that he had not met his burden of proof.
II. ANALYSIS
A. Standard of Review
We review findings of fact determined by an Immigration Judge,
including credibility findings, under a “clearly erroneous” standard. 8 C.F.R.
§ 1003.1(d)(3)(i) (2020). We review questions of law, discretion, and
judgment, and all other issues in appeals from decisions of Immigration
Judges de novo. 8 C.F.R. § 1003.1(d)(3)(ii).
An Immigration Judge’s finding regarding the motive of the persecutor is
a factual issue that is reviewed for clear error. See Matter of J-B-N- & S-M-,
24 I&N Dec. 208, 215 (BIA 2007). The Immigration Judge has broad
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latitude as to how to interpret the evidence before him. See Matter of D-R-,
25 I&N Dec. 445, 454–55 (BIA 2011), rev’d on other grounds, Radojkovic
v. Holder, 599 F. App’x 646 (9th Cir. 2015). Moreover, the Board is not
permitted to substitute its own view of the evidence on appeal. Clear error
exists only where the Immigration Judge’s findings “‘are illogical or
implausible,’ or ‘without support in inferences that may be drawn from the
facts in the record.’” Matter of A-B-, 27 I&N Dec. 316, 341 (A.G. 2018)
(citations omitted).
B. Expert Witness
An expert witness is broadly defined as someone who is “qualified as an
expert by knowledge, skill, experience, training, or education.” Fed. R. Evid.
702; see also Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir.
1994); Matter of J-G-T-, 28 I&N Dec. 97, 100–01 (BIA 2020). An expert
has “scientific, technical, or other specialized knowledge [that] will help the
trier of fact to understand the evidence or to determine a fact in issue.” Fed.
R. Evid. 702(a); see also Matter of Marcal Neto, 25 I&N Dec. 169, 176 (BIA
2010) (stating that Immigration Judges may rely on experts “regarding
matters on which they possess little or no knowledge or substantive
expertise”). The Federal Rules of Evidence are not binding in immigration
proceedings. Matter of D-R-, 25 I&N Dec. at 458 n.9. Nevertheless, Rule
702 provides a useful guidepost for Immigration Judges in making factual
findings. See Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015).
In other words, Immigration Judges must consider whether evidence is
probative and fundamentally fair when deciding whether to admit evidence.
But the question whether to rely on specific portions of the expert witness
testimony for making a factual finding is different. See Alaska Rent-A-Car,
Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). Expert
witness testimony is evidence, but only an Immigration Judge makes
factual findings. The question of what probative value or weight to give
to expert evidence is a determination for the Immigration Judge to make
as the fact finder. See 8 C.F.R. § 1003.1(d)(3)(i); see also United States
v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (stating that the
finder of fact decides how much weight to give to expert testimony).
Thus, even where, as here, an Immigration Judge finds an expert to be a
credible witness, it does not follow that the Immigration Judge must accept
all the testimony and opinions provided as facts. Expert witness testimony
is evidence and so is treated the same as all evidence in immigration
proceedings, where the Immigration Judge is the trier of fact and weighs the
evidence in accordance with that role. That said, when the Immigration
Judge makes a factual finding that is not consistent with an expert’s opinion,
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it is important, as the Immigration Judge did here, to explain the reasons
behind the factual findings. Cf. Matter of J-G-T-, 28 I&N Dec. at 104
(“There is no indication that the Immigration Judge reasonably considered
whether the witness’s opinion had a sufficient factual basis to essentially
establish the respondent’s claim.”).
The respondent argues that the Immigration Judge denied him due
process of law when he gave little weight to the expert witness’s opinion in
his factual findings. The respondent contends that the Immigration Judge
should have given him notice and provided him the opportunity to present
additional evidence, relying on Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011).
We do not agree that Ren requires such notice. In that case, the United States
Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises,
concluded that an Immigration Judge needed to inform a credible respondent
about the specific corroborating evidence necessary to meet his burden of
proof and provide a continuance to obtain the evidence. Id. at 1091–92. Ren
did not address this situation, where the respondent provided an expert
witness to establish his claim for asylum. Nothing in Ren suggests that the
respondent is entitled to a pre-decisional determination about the sufficiency
and persuasiveness of the expert testimony.
In the context of an asylum application, a respondent bears the burden
of proof. See sections 208(b)(1)(B), 240(c)(4)(B) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1158(b)(1)(B), 1229a(c)(4)(B) (2018). The
statute and regulations, moreover, do not contemplate an advisory opinion
from an Immigration Judge to the respondent—during the proceedings—as
to whether the respondent has submitted sufficient expert evidence to meet
his burden of proof. See section 208(b)(1)(B)(ii) of the Act; 8 C.F.R.
§ 1208.13(a) (2020). We are not inclined to fashion such a procedure for
expert testimony where it would inevitably require multiple hearings and
advisory decisions by an Immigration Judge. See generally Avelar-Oliva
v. Barr, 954 F.3d 757, 771 (5th Cir. 2020) (holding that an Immigration
Judge is not required to give “advance notice of the specific
corroborating evidence necessary to meet the applicant’s burden of proof”);
Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009) (stating that “the alien bears
the ultimate burden of introducing such evidence without prompting from
the [Immigration Judge]”). The respondent has the obligation to put forth
the necessary proof to meet his burden and cannot complain after the fact
when he has not satisfied his burden of proof. Accordingly, the Immigration
Judge’s conduct of the hearing and consideration of the expert testimony did
not violate the statute, the regulations, or due process.
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C. Asylum
The Immigration Judge denied the respondent’s application for asylum
because the respondent did not meet his burden of proof regarding nexus.
An applicant for asylum must show that “at least one central reason” for the
persecution was on account of a protected ground. Section 208(b)(1)(B)(i)
of the Act. However, before we address this issue, it is important to resolve
two preliminary issues—particular social group and the severity of the harm
that the respondent suffered.
The respondent’s claim is based on his membership in a particular social
group consisting of the family or immediate family members of his
step-daughter. As the Attorney General held in Matter of L-E-A-, 27 I&N
Dec. 581, 586 (A.G. 2019),
An applicant must establish that his specific family group is defined with sufficient
particularity and is socially distinct in his society. In the ordinary case, a family
group will not meet that standard, because it will not have the kind of identifying
characteristics that render the family socially distinct within the society in question.
We need not remand on the issue of whether the respondent established a
cognizable particular social group. This is so because even if the respondent
articulated a viable particular social group, he also bears the burden of
demonstrating that he was persecuted, or fears persecution, “on account of”
that membership in a particular social group. Reyes v. Lynch, 842 F.3d 1125,
1136–37 (9th Cir. 2016). We address the “on account of” or nexus issue in
detail below, and decide the case on that basis. Regarding the severity of the
harm that the respondent suffered, we note that the Department of Homeland
Security (“DHS”) has acknowledged, on appeal, that the harm rises to the
level of past persecution under applicable Ninth Circuit precedent, and so we
do not rely on the Immigration Judge’s contrary conclusion.
The determinative issue in this case is whether the Immigration Judge
clearly erred in finding that there was no nexus between the threatening
encounters the respondent has experienced and his membership in a
particular social group. See Matter of A-B-, 27 I&N Dec. at 343 (“Whether
a purported persecutor was motivated by an alien’s group affiliation is a
‘classic factual question’ which the Board may overturn only if ‘clearly
erroneous.’” (citation omitted)).
The respondent’s testimony does not establish a nexus between the
harm he suffered and a protected ground. The first incident the respondent
testified about was when his family’s car was set on fire in front of his
mother-in-law’s house. No one saw the perpetrators, and the respondent does
not know who did it or why. In the second incident, which happened about
3 months later, the respondent was violently assaulted in the parking lot of a
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veterinarian while seated in his automobile. The respondent testified that he
did not know the man or why he attacked him. The man told the respondent
he should know him, stating, “You stole from me.”
The respondent’s testimony regarding these incidents does not establish
clear error in the Immigration Judge’s findings regarding the motive of the
assailant. The primary flaw in the respondent’s “theory” of the attack—
retribution for his step-daughter’s drug delivery failure—is that it is not
consistent with the respondent’s interaction with the assailant. The
assailant’s insistence that the respondent should recognize him because the
respondent stole from him does not support a connection between this event
and his step-daughter’s drug delivery failure. The Immigration Judge’s
factual findings regarding motive are not clearly erroneous. See Rodriguez
v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (stating that an Immigration
Judge’s factual findings are clearly erroneous only if they are illogical or
implausible).
The respondent also claims that the Immigration Judge’s factual findings
are clearly erroneous based on the expert witness’s testimony. As discussed
above, an expert’s testimony is evidence, but not conclusive fact. The
Immigration Judge is charged with making factual findings. On appeal, in
order to prevail, the respondent must establish that the Immigration Judge’s
findings are clearly erroneous.
The expert witness tied the assault against the respondent to his
step-daughter’s loss of the drug load. The Immigration Judge, however,
provided ample reasons not to make this connection, and his factual findings
are well supported. The Immigration Judge did not clearly err in declining
to accept the witness’s conclusion that the man who assaulted the respondent
was the same person who gave his step-daughter the drugs for transport. The
witness based this “match” on the verbal descriptions provided to him by the
respondent and his step-daughter. The problem, as the Immigration Judge
found, was that the descriptions were so general that they applied to many
men in Mexico. There were no distinctive or special characteristics that
supported a definitive match based on the verbal description. Furthermore,
the witness’s testimony regarding the “match” is not part of his purported
expertise. As a former law enforcement agent, the expert witness does have
some experience with descriptions, but that is not his claimed expertise. See
Matter of J-G-T-, 28 I&N Dec. at 103 (discussing the importance of clearly
establishing a witness’s area of expertise).
The Immigration Judge also provided adequate reasons for not accepting
the witness’s claim that the respondent’s step-daughter was working for the
DEA. While her conviction for a drug offense was verified, the witness was
not able to confirm that she was working with DEA (and to describe the scope
and extent of the relationship) or to corroborate other aspects of her story.
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Indeed, the Immigration Judge noted other plausible reasons that the
respondent’s step-daughter may not have received a long jail sentence, none
of which were refuted by the respondent. Furthermore, she did not testify
despite being the key percipient witness in this theory. While expert
testimony can serve an important role in immigration cases, it cannot be a
substitute for important fact witnesses who are otherwise available to testify
or provide a declaration.
The Immigration Judge also noted that the witness’s theory was
undermined by certain aspects of the “relationship” between the respondent
and his step-daughter. Indeed, the relationship was not particularly close.
The respondent married her mother only 6 months prior to her arrest, she
never visited the respondent and his wife at their home, and the respondent
had no awareness of her arrest until the expert witness told him. Without
additional evidence to support the respondent’s theory, the Immigration
Judge’s factual findings are not clearly erroneous.
The respondent now tries to rely on a new timeline, arguing that it was
his step-daughter’s conviction in October 2015 that precipitated the threats,
rather than the January 2015 arrest and loss of the drug load, which provides
a much more compressed period of time before the first incident against the
respondent in February 2016. This argument was not presented before the
Immigration Judge or in the respondent’s opening or supplemental brief on
appeal. Moreover, the respondent’s expert witness did not advocate this
theory in his testimony. Even a more compressed time frame, however, does
not make the Immigration Judge’s motive finding clearly erroneous where
the respondent did not identify the motive of the arsonist or his assailant, and
there are significant gaps between his step-daughter’s activities and the
connection to the respondent. Furthermore, this new “timeline” theory does
not establish that the Immigration Judge clearly erred in finding a lack of
nexus to a protected ground.
In the absence of past persecution on account of a protected ground, there
is no presumption of a well-founded fear of persecution. As to a
well-founded fear of persecution, the Immigration Judge concluded that the
respondent’s fear on account of a protected ground was not objectively
reasonable. Other family members remain safe in Mexico, further indicating
that the respondent does not have an objectively reasonable fear of harm on
account of his family membership. See Santos-Lemus v. Mukasey, 542 F.3d
738, 743–44 (9th Cir. 2008) (explaining that where an applicant’s claim of
future persecution is based on family membership, the fact that family
members remain unharmed in the home country undermines the claim),
abrogated on other grounds, Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th
Cir. 2013) (en banc); see also, e.g., Aruta v. INS, 80 F.3d 1389, 1395 (9th
Cir. 1996) (collecting cases).
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In addition, the attacks occurred near the respondent’s home, and there is
insufficient evidence that he could not safely relocate to another part of
Mexico. See 8 C.F.R. § 1208.13(b)(2)(ii). The respondent has the burden of
proving that such relocation would not be possible or reasonable. See
8 C.F.R. § 1208.13(b)(3)(i); see also Recinos De Leon v. Gonzales, 400 F.3d
1185, 1190 (9th Cir. 2005). There is no clear error in the Immigration
Judge’s factual findings relating to this issue. For all these reasons, the
respondent has not established past persecution or a well-founded fear of
future persecution on account of a protected ground.
D. Withholding of Removal
At oral argument, the respondent, while acknowledging that the
Immigration Judge cited Barajas-Romero v. Lynch, 846 F.3d 351, 358–60
(9th Cir. 2017), argued for the first time that the Immigration Judge applied
the wrong standard to his application for withholding of removal under
section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2012). The
respondent did not raise this issue in his opening brief. Furthermore, in his
supplemental brief, he expressly declined to address any issue relating solely
to withholding of removal, stating that he “does not address, explicitly, the
[Immigration Judge’s] denial of his application for withholding of removal,
as he believes remand for correction of the [Immigration Judge’s] errors as
to asylum and Convention Against Torture protection will necessarily
involve a remand for correction of the errors in the withholding of removal
denial.” The respondent thus conceded that there was no separate and
independent ground to remand that related solely to the withholding of
removal claim. We will not consider this issue any further because the
respondent has waived it. See Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2
(BIA 2012) (stating that failure to raise an issue constitutes a waiver of the
claim); cf. Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)
(concluding that, pursuant to the Federal Rules of Appellate Procedure,
failure to raise an issue in an opening brief constitutes a waiver).
E. Convention Against Torture
Finally, based on the entirety of the record, we agree, for the reasons
stated by the Immigration Judge, that the respondent has not shown that he
is more likely than not to be tortured by or with the consent or acquiescence
of a public official or person acting in an official capacity in Mexico and,
thus, is not eligible for protection under the Convention Against Torture. See
8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1) (2020). No clear error exists in the
Immigration Judge’s finding that it is not more likely than not that the
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respondent will be tortured. See Ridore v. Holder, 696 F.3d 907, 919, 921–22
(9th Cir. 2012) (holding that an Immigration Judge’s determination of
whether an alien will more likely than not be subject to torture is a predictive
finding of fact subject to clear error review).
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).
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