it i'd like to reserve two minutes for a bottle if i could please sure the v a erred as a matter of law in determining that petitioner did not identify a particular social group this court has jurisdiction to identify that legal heir and to remain to the v a for optional reconsideration as the court said in bosnia versus lynch the jurisdictional question is whether there is a law to apply in reviewing a denial of no your honor the question under bania vs lynch is whether the b i a relied on an incorrect legal premise in reaching its decision and we think that it did for two reasons first it explicitly did say that it was relying on its determination about whether she was a member of a particular social group but getting to the core of your honor's question in the second part is that the social group determination and the finding that the government was unwilling or unable to protect or are reason is that police unwillingness to protect depends on their perception that the domestic violence victim is a member of a social group that is entitled to less protection under colombian law and so with the b i am assuming that she was a member of a protected social group you're saying there's a slight shade of difference between making an assumption and making the finding that that would affect the determination of an able well while we're saying that it's more than a slight shade we're saying it's in fact very difficult to make that assumption given how interconnected the two findings are again i think the question is whether the police understood her to be a member of a group that was entitled to less protection and given  that they had that understanding they didn't arrest mr vi care after she reported the crimes of the mastic violence and immediately thereafter she left the country and i think i'd like to offer an analogy if i could do this in a factual issue though i mean were on an incorrect legal question as to the alternative holding which is that she had established that the government was unable or unwilling to protect her afterall it's it's it's not that it's wrong it's that the said that's not a fundamental change in life just incremental so even if we have jurisdiction to look at that tell me why the board's determination that this was just an incremental and they gave it they have their own case law i think it's g g d where they define where they have let out they have stablished a legal principle for applying fundamental change in the law so tell me why even if we assuming we have may err in determining this changed the law was anything more than incremental we rely on the work of scholars that we cited in our opening brief who have said that this is a r c t opinion it was a sea change in the law and so when you had just matter of a that was the decision that denied asylum to a woman with r and r a r e set the standard for when there when the b i a would recognise a fundamental change in the law and they said it if the change in law show or demonstrates that the applicant is in time is entitled to relief then that would be a fundamental change in the laws so how did they miss apply that here  their own law requiring a fundamental change in the law yeah a r c g was the landmark decision that had been handed down since this court's opinion in her case this court's opinion was january tw on that point so it was a significant difference but i want to resist the premise that i need to identify a fundamental sea change difference in the law if you would suppose for a moment that the b i just made an egregious error of law without any difference in the law without any change to new precedents from either that body or this court this court would still have jurisdiction to correct an error of law whether that was a little bit different than what you're arguing here we have argued that there was a change in the law but that was the whole basis for your motion to reopen there was a fundamental change in the versus lynch doesn't require a fundamental change of the law requires law to apply in order for the court to have jurisdiction and then the next question and bony of vs lynch is whether the there is much to apply because there was the established their principle of what constitutes all these initial straight there's there's pretty sound evidence in the record insofar as we appended unpublished decisions of the b i and which under similar circumstances the b i a reach a contrary conclusion one different than the one it reached here the third decision that we attached to our opening brief on appeal in particular involves a woman from the honduras the honduras has laws that prohibit domestic violence it has the same sort of safe houses but based on a finding that those laws were under enforcing onder as the be a remanded to the i j a and it should have done the same thing here and we submit would have if it had made the correct determination about the particular detail to that given the vagueness of it's what what constitutes a fundamental change as opposed to merely incremental development if it's we're sort of in the a kenyan situation aren't we where we purpose of bania versus lynch is to permit this court to review decisions on a motion to reopen after a discretionary determination would otherwise be under viewable so that the court can evaluate questions of law your time is please the court i mean carmichael for the government the position in this case is essentially requesting that the court focus on one issue to the exclusion of all others in order to create jurisdiction and the exercise  jurisdictional rule that created allowing the court to review the decision solely for legal or constitutional errors but even then states that this review is solely for the purpose of determining whether the board's decision was premised on that legal or error the board presented three separate reasons in this case to deny sue a sponsor reopening the first was that the change in law was incremental not a complete reversal that is based on matter of g d and matter of g d does not for this court review that issue the second is the particular social group merits that petitioner focuses their argument on and the third is that the petitioner cannot succeed on this motion on the merits of the asylum application in any because based on the law of the case that she didn't raise any arguments challenging the prior holding that the government was not unwilling or unable to control the persecution so opposing counsel are is th differences in the underlying decisions of the agency merely assume that she was a member of a particular social group whereas if they had found that she was a member of that reasoning  only one of these questions not both of them as does the board and there's no reason that that that they can't that they have to analyze every single legal issue in order to deny case where the petitioner bears the burden of demonstrating that she meets every single qualification the second is that this argument doesn't really make a lot of logical sense the determination and hurricane turns on whether the government is able to protect her a deeply factual question she doesn't explain how that determination would be altered where none of the facts in her case have actually changed this is a factor of an analysis there's been no change in the facts so there's no reason to re does not give you jurisdiction to review so i mean and in any event like that that's the law of the case and there's been no argument that there's been a sufficient change either in the facts or in the law on the area where they request you to take jurisdiction the particular social group argument the this this does not solve her problems there's an independent reason to find no jurisdiction in that over that question because she failed to exhaust the particular social group that she's raising now in her briefing to the board and the petitioner identified the group as well in two different ways the first is women and a latin american country where violence against women is common and not prosecuted and who has experienced past persecution based on such sexual and domestic violence in her briefing she points to a separate passage where she identifies the group as colombian women who fear violence at the hands of their domestic partner so she raises the particular social group issued does she have to articulate it the same exact same way before that she doesn't appeal in order to exhaust a so the particularities a requirement is the issue that's at issue here the and i think that the exhaustion is quite important the court has applied exhaustion in basically just women because the only the only the only way that she's narrowed that group is based on the persecution but that's not permitted persecution is a separate issue here the way that she has narrowed the group is based on women who are in a long term relationship she's making an attempt to make that particular social group closer to the social group that was an heiress e g where the group is defined as married women who could not leave their relationships  but again he although the legal framework is certainly reviewed as a legal question the particular aspects of whether or not she's demonstrated that those are viewed as a group within society are factual questions so term a long term relationship that she cannot leave that was not included in the briefing to the board and what's the case you're relying on that would help me see that well just exhaustion principles in general so there's no case directly on point that in for example the particular social group context as as you have to identify articulate the particular social group you're a member of precisely before the in order to exhaust the issue not that i have in front of me ok thank you and your point is that that difference means we don't have jurisdiction correct because she has an obligation to exhaust her administrative remedies but in any event it's it's sort of irrelevant because the board separately found that she can't meet her burden on asylum based on the law of the case so again any exercising jurisdiction over that question would be entirely academic because she ultimately still has to lose five the change in the law recognizing guatemalan women who've been in long term relationships was a fundamental change in the law which would under clearly acquires eligibility for relief by virtue of that particular change in the law and that seems to be a standard that we could apply in just in determining whether or not they accurately appl it's presidential for the board but it's not it doesn't have it on their own long run it doesn't create a standard for this court to review the question is whether it's a sufficient change and that's why i mean the the board creates a standard for particularly serious crime and then we look to see whether the board applied that correctly looked at all the factors so we look to the board's case law to determine what standards appliance if it was in error me the difference with susan to reopening as i command states is that it's a determination that's left to the unfettered discretion of the board and in this case when we're talking about this whether it's a change in law the question is really whether it's a sufficient review but again i think that it's ultimately not particularly relevant in this case because there's not been any this there's there's not been any claim that that she's demonstrated a change as to the there's not been a change in law in that regard there's not been a change in facts in that regard the court is bound by that determination i think i'm right or over time so for those reasons the court should dismiss the petition for you thank you terminations and this is like asking first whether barn ball is a sport deciding that it isn't and then asking whether somebody is good at bball the second question is difficult to answer if you've answered the first one in the negative and then if we assume that our ball is a sport i think we could answer the second question well it's pretty hard to do when in the back of your mind you've already decided ok that it isn't right and that's the fundamental point we're making and as to the that your honor was just having with the government sue a spontaneous opening is discretionary that much is admitted and it doesn't really matter why its decision is discretionary could be because the petition missed the statute of limitations or it could be because the v a decides that a fundamental change in the law hadn't occurred that might render it discretionary also but our point is this court has jurisdiction to review even discretionary determination