the st is with respect to the board of immigration appeals and immigration judges construction of what was the social group at issue and the nd issue i want to turn to after that is the issue of the convention is torture and  iranians conclusion that doesn't meet a substantial at instanter there's a matter of law that this credible record testimony and record did not establish sufficient basis for fear of future torture on because of alleged general explain to the court what the social group was and the and petitioner explained that the social group at root is women in guatemala and if you look at that there was a call that we between immigration judge and council where the person just asked what do you mean about this stuff you know look at the court with that happened to understand the context of what was being said is that this government can't protect women period and so the social group is all women it's not women who are being raped because the government is trying to control them or anything like that and there was no record evidence that was never the theory tried the only theory tried to the only record evidence given was that women period get raped in this failed state and they don't have any recourse now part of the problem i think when you unpackaged this in terms of what happened is immigration just judge just said at some point earlier in the record give me a break from your her social group and bridges file and it's filled with facts and legal argument about the horrible misfortune the petitioner suffer and arguing that she was great in harm but it's an it's an overindulgent interpretation to put it mildly we were to say that counsel was actually brief she modified it on the record and then months later the immigration judge simply said gotcha op you defined it to include rape can't you that as a matter of why you libs instead of actually having what we always do in an oral federal courts right or your client i sue must have been a different coroner attorney actually before this p s g the one that said women in guatemala that subjected to rape a requested the counsel to explain it so i mean that's that that's one challenge with what you're saying you make a sound like the government or or somebody imposes b s e it was her p s g right and she's the one who presented it to the  so then why did you make the argument i mean she was given the opportunity to brief that's i mean that counts for something when we ask for a brief we that means we want to be educated correct your honor and if someone advan counsel would be taking out the defining it by rate maybe the government the subject the government control method of government control you because that's that's what the idea was saying what do you mean by that but but but her counsel kept into it as rape it was all about rape and so i don't have the opposite she presented it had the opportunity to change it and and still continue to define it by rape it seem like they're in a colloquy and i think that's go to it's not legal to if you if you have a circular definition that's not allowed and therefore she could have meant that but i mean that's the really that's the reason we have this rule is to prevent is there and people do regularly have circular b s g s and they get and they lose d because of that but it can't be the fact that just the fact that she had a circular p s g means she could have meant to have a circular p f g that can't be right but there was nothing in the record to sustain the method of government control or the government doesn't protect women and that versus women period is not a substantial difference that can justify application about we because the waiver rule requires a had every opportunity to bring in an expert or some contrary evidence to make the point that no they really are trying to be their ass but it didn't do that and so you see i don't get even within a substantial evidence standard of review this court can sustain that and i some of my  instance to consider a social group as amended and to be told we submit that it's women in guatemala period and analyze it in the st instance create that record then we can bring that up i think you're on for her claim for this service that she is a member of a group of women subjected to break as a method of government control and before the immigration judge immigration judge followed up regarding the state and petition our firm  fifty four mercy testify credibly the police do nothing to protect women that testimony is buttressed by her parents letter that this is a violent country where nothing is done to protect women and the country condition reports don't show generalized and they show that five percent of the reported sexual rates in assaults lead to prosecutions in convictions that's a ninety five percent failure rate that is not a country that's getting close trying to if you problems effectively  failed state when you've got numbers like so the convention against torture claim is i would also submit that here's the big picture issue that i think is very very important when counsel is talking about rape they're talking about the persecution which is is the persecution was rats economic persecution rape beatings whatnot i think that's the proper way to interpret the word and what wasn't done which is so important because we demand it in the regular cases right and so what happened here is that process didn't happen if there was real confusion about the use of this word rape and are you talking about persecution or are you talking you agreed in the battle there could have been a discussion and we demand those discussions in our regular courts and what we're saying here is that this is the life and liberty of human beings and that should have been subjected to a question and it is not so accountable like this is the argument that i'm struggling with is that your basis saying we should have had a discussion but there was a discussion like i could imagine a case where there was no discussion that the attorney just presented the p s t and the idea whether to put the idea actually asked about it and and counsel answer this is what i mean this is a count because the police are not effective in controlling  investigating or prosecuting rape they're essentially giving control to the men and allowing women to be raped so there was a discussion a see my counsel double down on the finding it as rape so i can see it's like you're asking for something even more than that i'm not asking your honor the question that wasn't asked which is the one million dollars question is are you council including the work rate in there are you just talking about the harm that is part of your cost of action are you talking about the now the social group or the for the harm that alessio berger who has the burden to is permissibly circular so you can have a you know i've already talked about it i've already asked you what you what you how you define it but i defined it is wrong i mean it that can't be right because of because because this court ha and eighty four she said country conditions the state that the government do not protect their women if that's what she's talking about there women she didn't say some women such as a category of women who are raped she said they do not protect their