and they did that year he threatened her again and tried her mother later on she came to the united states and sought asylum and that was the night before the immigration court she appealed to the board of english appeals and she was another again and  are why don't we do this why don't we go forward with the argument but if the two of you would talk afterwards if you do think that it would be fruitful to pursue mediation we do have mediators available at the ninth circuit if you just send us a letter right away and let us know you're going to go that route then we'll vacate submission and just sit on the case and tell you  authority why doesn't she fall into the one of those social groups i appreciate why you didn't brief and i appreciate you can have that that authority but i judge thomas questions really pivotal and you've defined it several different ways  were to go along with your recommendation do you have any idea how many potential saya lees we would be talking about you mean  kids i'm thinking new asylum is if we were to render the opinion that you're asking us and declare that all women who are the victims of assault in guatemala would be a recognised social group how many cricket and in fact on the record i have proof of the case canada has recognized gender in this form for much longer than the united states has and yet there was no appreciable difference in their ratio of claims brought  this basis there than here so because of that it's not like we won't be inviting half of what the mama cause that's really what i was asking as would that be a potential ramifications i always like to know what the practical consequences are going to be of the ruling  women because they are women can be can show an excess yes purely because of the fact of the act itself women then you have any controlling legal authority that supports the proposition under our law that that rape is a form of good morning may please the court my name is justin right i'm here in behalf of respondent united states attorney general the question before the court is whether one central reason at least one central reason for the suffering that was experienced was on account of her gender petitioner's argument in the brief is that rape internet by by its nature it is persecution against women persecution on account of the fact that she is a woman forgive me for interrupting there is another argument in the brief and council didn't want to pursue it today i recognize that but i am concerned about uniformity of how we handle these cases and that and this your honor because the board's decision expressly assumes that for the purposes of this discussion the validity of the social groups as defined should that should your honour's decide that the next issue is not dispositive then you would have to remain for the board to actually address whether or not the proposed social groups are valid that is exactly what i'm asking you because these and i appreciate your your clarification but of course neither of these decisions were available at the time of the briefing one of them wasn't available to even to the b i haven't had a chance to consider it at all with respect to this case that you get and so of course you wouldn't i think i agree with you i certainly don't mean to suggest that we would reach the issue or decide it my question is should we remain on this to the so they can take a fair run considering this new authority and that would entail course a different social group right if the court decides that the nexus issue is not dispositive then i would i would agree that remained to the board for to for it to address the particular social group definition would be required but because nexus is independently dispositive i think the court can resolve this petition on that issue well let's talk about that for a minute next it's a little bit tricky to talk about next if you haven't first figured out what the social group is because there's a question about next as to what right is are you asking are suggesting that if we were to assume the social groups that were established in and wreak history was improper like that there's still wouldn't be nexus is that your is that your position will know what she's arguing in this case the definition of pursue the particular group she's posing in this case is guatemalan women i know but you counsel again i'm asking you they haven't that's because at the time of briefing they didn't have this other authorities so my question is should we not remain so that the petitioner has an opportunity to brief and the immigration court has as an opportunity to consider these other social groups which of course have to do with folks who are opposing gang violence rape but again that has never been the claim that she advanced the letter you just seem to want to fight this question  it well no i'm not asking an answer as i do not have the authority well no i understand your honor but the fact is she had the opportunity to advance it when her case was before the board had she wanted to make that part of the definition of her particular social group where the of ninth circuit authority that says she hasn't failed to exhaust if that is the law didn't exist until subsequent ninth circuit authority is in other cases has certainly been an opportunity not only opportunity it's been the reason for that we have so that it could be considered and you're not you're not addressing that so maybe i haven't asked that clearly enough ok i understand that the court is concerned about the gang aspect of this case but again there's there's rape her argument i guess the question i have is if if through her counsel she says i don't want to remain to the board of immigration appeals and the government says you don't need to remain why would we remain here you would i would we would as much as like a waiver or i'm not quite sure how to really waiver in the traditional sense but if counsel doesn't want to authorities to require one now because in all those other cases the petitioner was perfectly happy to go back to the board and have the issue looked at right and i think that that's still the appropriate thing to do if the court finds that nexus is not dispositive we would one reason we might not do that is because you might be concerned about manifested justice and making sure that the claims are treated consistently by the court another is in the interest of trying to get cases to the government as the case is presented to this court in the briefs the next case is dispositive she's arguing that rape is necessarily persecution on account of the church of gender and the government's position is that her position answers why that particular type of persecution may have been inflicted but it doesn't answer the nexus question the question before the court is is not why was she rate the question before the court in every nexus determination is why w empt over father i think it's the first yes that the initially the father had had been the victim of an extortion attempt rape he refused to provide money the threat was if you don't we're going the implication is that's because she had reported to the crime to the police i don't mean to suggest that the initial incident was anything other than a criminal act right and yes and the board and the immigration judge found that the last two incidents were basically me if i'm wrong my understanding is that the individual who came back a second time and held a knife to her throat identified himself as a member of a gang and then threatened her because she reported the conduct to the police about that wrong the particular saillant who committed the rape eight years earlier as well right and so the fact that it was the same person who came back on the second and third occasions only underscored the board's finding that this wasn't a personal this court actually talked about the fact that women want the mother was raising the race but not before it was always so your argument would be the evidence there is substantial evidence to go the other way that the nexus was based on the fact that he was her assailant in the rape case and he committed assaults against her on two other occasions and as a result of the fact  guess i'm trying to see if there's a distinction given that you gang member there's no there's no actual distinction you're on there because effectively she's with being a witness against a gang member but being a witness against him you know in there she could not have reported the entire eighteen gangs  you now changing your position do you now want the remain and like the court to consider that point but i would counsel it's a simple question are you changing the position from the position that you took in your opening argument i just want to yes or no answer