victims of domestic violence that leave their relationships and the abuse simply by moving out maria was threatened with death on countless occasions at the hands of her own husband after a decade of her reflect abuse maria left her husband but the threats continued with little stalking maria were sending arms killers to her hired killers to her work and at last after she filed for divorce threatening her that she would pay forty dollars to have her killed rather than pay child support the ultimate question presented to this court the question isn't whether she left the abuse it's whether she left the alleged and i call it an alleged particular social group because i had some her membership in the particular social group of salvadoran women into relationships who are on able to leave the relationship today i will focus on three primary issues first does moving out of the marital home preclude membership  social group may particularly in a catholic country be different so what what's the significance of this change in the definition of a social group between married and in a domestic relationship question he actually married she was actually marrying a why did they change that why isn't she actually fits both social groups and so i was using the single social group as a sort of a matter of that she fits both social groups so she fits married salvadoran she applied for a divorce and petitioned for a divorce while in the country in el salvador that the divorce was in granted until after she had left salvador that's only because she left before was granted i mean there wasn't any hold up in the granting of it it was just you know divorces take a few months or whatever and she left before it could be granted and it was granted in el salvador so obviously she was able to leave the marital relationships in and in el salvador she legally got a divorce that occurred in el salvador right they were fused to granite or we don't grant divorces or whatever the grade of the divorce in the due course of proper seedings in el salvador there's no evidence that they wouldn't grant to write a prison that there's no evidence that they would grams and there's no evidence that she would have survived hobson procedure continued with the divorce given the threats that were made by her husband that were backed up by prior rights that were pretty significant box of bombs so i don't think we can say for sure definitively that she would have necessarily been on the divorce because she may not have been at the bar in your answers just now time back to your first the effort you were starting to go in which was moving out doesn't mean you've left the membership correct that's correct because the b i a e a said oh no more abuse now that she's left and you're saying there's no substantial evidence to support that because she said after she left he said i'll get him and kill you and he stalked her so the simple failure of fact you're saying the b i made was she walks out maybe trying to get divorced maybe trying to live to the time she gets divorce but in that time she was abused be made a fact finding error as to that is that your position is correct but that's again based on the abuse not the relationship she got the divorce she left the relationship she was free to have other relationships she didn't live with them anymore he never came to her new house he never touched her so he did continue to color and all of that i understand that and i'm not giving in to that because i think this man was a terrible man from all the evidence here that said the question is whether the evidence compels a contrary conclusion to the notion that she left she did in fact lea i think there's two issues that are raised by this first i think that you could even look at it as a question of law that could be read to review de novo in the sense that they misapplied the standard of what it means to leave relationship leading a relationship does not necessarily mean continuing the marriage it does not mean that you continue in the home we said we can see how that relationship continued even after she laughed through his stalking her at work stocking her parents home threatening phone calls hi hitmen all of those things continue a relationship and when you look at the definition that the b i a made in a r c g they say unable to leave the relationship they don't say unable to leave the marriage they don't  divorced they don't they don't use that they say i'm able to leave the relationship and so our position is that she was unable to leave the relationship because even after some physically separated herself from him and even after see apply for a divorce and petition for a having trouble with the idea that your position is essentially you can never leave a relationship so as a matter of law be i is can no longer find that somebody left a relationship because in at least in el salvador you just can't leave a relationship even if you move out and the guy never comes to your house he's you still haven't left the relationship i mean that syria theory that as a matter of law that is not the theory that we are presenting here that theory that were present here is a is on the legal question is is moving out of the marital home does not preclude you from being in this room considered in this relationship unable to leave the relationship just i think like us that isn't the problem is we are very deferential standard crack lines and the question is does it compel a conclusion to the contrary not could that be i have come out the other way again assuming argue endo that this particular social group is valid which i have grave doubts about but even assuming that we have to give deference to the conclusion unless the evidence compels a contrary conclusion and so the question is whether he him continuing call her means she has and left the during this two year time period when she was living on her now let me go through some of the facts that i think show that no reasonable time her could make that statement she when she left the home she even though she was when she went to work when she went to work so she was trying to escape from vigil and he got into the earth he keeps chased her car tried to get again i'm not in any way saying this guy acted well or that i would want anybody to treat me that with as and question the questions you're saying either stay in the argument about mental abuse but he never touched her after she left that's correct ok there is no touching however i think it would still be considered an attack if you've been you know if you've had a gun held to your head before you go i mean i problem you have is again we're having to say the evidence compels a country not if i was a juror in a case what would i think but the evidence compels a contrary conclusion and we have cases where you know gang members threaten people and we say well you were threatened but you weren't attacked and so we have those kinds of cases and we have we this panel have to deal in the world we're in and the world we're in is congress hasn't said all victims of domestic violence from other countries are free to come here and get asylum it could say that and in the vala circumstance for example it says that for people that are married to u s citizens or a lawful permanent residence but it doesn't say that for the world and whether it should say for that for the world in for up to us we got to play the hand we're dealt which is this particular social group understood so that let me address a couple issues that  raised by your comments first of all i think i think you're right which says if i don't think the question of this social group is necessarily present here in the be i recognize the social group and the d o j does not contest it in the contest or membership in it but does not  are you aware of any circuit yet saying that that makes for an unworkable cognize of the social group ok so go ahead so it's not it wasn't presented below hasn't been presented to us and no circuit has yet disagreed with that concept ok that said then we walk back to where we are which as i stated before a big there's a legal question but i think there is also that there is a i think you can find under the substantial evidence that there is not substantial evidence here and let me walk through each of those continue to threaten her by phone at her at her work continued identified hit men and have been stationed outside of her home chased her her car at work and and then one month before she left all salvatore called her and threatened but he would pay to have her killed rather than pay child support so all of this in our position is an ongoing psychological and mental abuse on maria regardless of whether they physically live together and he continued to exercise control and abuse her and we know that in rick constant says if you can have emotional and mental abuse and so the question presented here is and is not is is it enough and i want you to weigh the facts and in that sense of them but let's weigh whether or not this is the question that i think we're presenting here is that the core in its opinion the b i in its opinion essentially used physical presence or physical touching or physical abuse as as mandatory when you look at that opinion on the record a peach nine he that they're focused on respondent moved out of the home husband did not come to the respondents rental home she was not forced to return to live with them and we think it is an untenable position that when you look at the history of violence in this relationship and that you couple it with the continued threats that are very likely real given the physical violence that existed previously  to require that he actually asked her in order to our allies the government hasn't raised it but i want to just be clear is there any evidence that this man persecuted anyone else in this group is it is there any evidence that this husband went and abused other women who he was not married to i don't believe that's presented worker ok is there any other evidence that anybody else abused her other than this is alleged hit man that he hired but anybody just randomly her because of her membership in this group besides him believe him because i am just flabbergasted at the notion that this is on account of this isn't on account of her membership in a group this is because she was his wife and he wants to control his wife again i disagree with that as an approach to marriage that's not my point but how is this on account of because the social group that is defined is salvadorian married women or women whichever one you're using in a domestic relationship who are unable to leave the relationship that he is being he is the busey because she's not able to lead she is not able persecuting and you happen to be a christian then it's not because you're a christian it's because they're you know your next door neighbor they don't like that your trees or whatever so i mean what i'm saying is she's only in this group because he abused her not she abused her because she's in the group i don't i don't think that that the social group to start up in a way to incorporate some abuse into it that's why it's phrased in the way it is that they're on if you want to leave it's the so it's the evidence would agree that here there hasn't been that fact inquiry certain and i always thought the group there are c g logic was on the notion that in these cultures some of them on close inquiry we would determine that the man perceived  woman to be property and therefore that group was a group where instead of human they become property and you can do with property what you want that's the group that is korea if i could ask one other question because we've been asked a lot of questions  my difficulty debating the finer points of substantial evidence as to whether she left the group is that the i a e a in their very specific dipping in seem to misunderstand the idea is finding that there even was a group the i j a had found the opposite that this isn't some of the questions that my colleagues been asking and you acknowledge that in footnote four so we're in a sort of artificial world why wouldn't it be better to for us to to make sure it understood that the i j a had said this wasn't a cognizable group we get the details acting kori all aspects of of it was there police acquiescence or participation could she relocate everything gets fleshed out more rather than these very conceptual questions your honor i think that would be one option ok also there was a decision from the eleventh circuit in the last couple of weeks addressing this issue and making the point that the situation in el salvador from the standpoint of the government is changing and so you know this is something that we need to get the position of the board and to i would think do you see that eleventh abuse you say because of this very problem and they're making according to this opinion some effort to alter the situation and the eleventh circuit actually had that point made a couple of times in their opinion so i guess the question for the board would be is this any longer is your position altered by this merging fact parent like so and i had to march twenty to twenty one thousand a citizen one circuit so anyway thank you save time for a bottle after all that but at least you you made your trip here worthwhile right court nicholas hurling for the respondent the record in this case demonstrates that torres was able to leave her marital relationship because she is no longer married and was able to leave her domestic relationship because she moved to a new proposed social group is cognized but what the i g then said is you're simply not in that group so i don't believe that there there was a misapprehension but perhaps starting with the i j a the government is allowed to show up and make take positions why has this been allowed to be these ill formed groups continue just kind of be floating around and you all are taking it on this case  is the hand we're dealt the way the immigration statute is read for the immigration judge the board of immigration appeals the government is represented by the department of homeland security when it switches into the article three courts my office of the partner of justice comes and represents  as you personally i'm talking about the united states of america however formulated is the is the other party to the petitioner here correct and that thing that is  the verses to the petitioner here why have they not addressed these issues that's my question but what's interesting about air c g is in air c g that the diploma security stepped forward and said we do concede that in that back to the board and maybe ultimately the immigration judge just to determine whether in that case the government of i believe those hundreds was unable or unwilling to protect that individual so this point there's no real reason to rule in a real basis to challenge  is no compelling evidence to reverse the agency's findings that this miss perez was able to leave the marital relationship and was able to leave her going to know your counsel opposite has very passionately made the argument that actually there is a reason to challenge it because although she physically less she got her car and she went somewhere else she was not free of this man because he kept calling aren't talking or and all of that what's your response to that what the reason why in this case in many other cases like the a circus pointis case the reason why they focus among many other factors that there was a physical separation she moved to the new home is that's the that's one of the clearest most important indicators that you have left to quote because their job did not abuse her during the two year period when she was living on her own were and therefore the question becomes is that the government's position that it is not abuse when death threats are made against you when a hit man is hired when the person chases your car is that your position that doesn't equal abuse or the government reads the board statements of no longer abuse as being represent the physical abuse now of course the other the other experiences the the harassment the death threats the hitman those are all present in this case but they don't like count for physical abuse and i'm not saying that the only way is this is to have a sation in the physical abuse but but as was pointed out the question is is there compelling evidence that every reasonable fact finder would not only say your ability to move out but also for get but what ever reason effect on or would excuse the ability to move out but say no no these other acts you experienced however atrocious also indicate that you are in a continued relationship  problematic because as judge has pointed out you can get a phone call anywhere there are also you there unilateral acts and we talk about domestic also hiring him anywhere that's true i mean these are unilateral access i'm just asking the question is it the government's no longer focus on what's the best case that says that has to be physical abuse i e touching or dragged back to the house there's there's not a case but on the butt that i can cite but i will tell you on the facts of this case if you look at the some of the abuse the horrific abuse of middle aged this woman experienced for years she was physically and sexually abused when she tried to leave often he would he would hold her back forced her to reside with him however at one point she was able to physically insert the word physical into this analysis i don't i don't see any other way you could read the words wording and and see other as the other was admittedly it was not as clear as i wish it were the  assume that i'm reading that correctly and that the i j a actually did not find a connives of a group and also found that she left the relationship by great i found she left the relationship absolutely did find that does it's not necessary to affirm the board's decision so we could assume argh so of course if i just correct that there is no group were done if we assume argue endo that there is a group then she left it she wasn't a member of it anymore under both  we're just saying you left it now there's been a big discussion about sort of leaving physically versus sort of leaving mentally i guess the question to me there is how would you define domestic relationship and is that something we need to send back to the b i a for further explication because of domestic relationship means living together which is kind of what it's been a then she left that if we talk about marriage she left that but if we're talking about connection in some way with somebody that you had a prior sexual relationship with that's  clearly didn't do that any more for two years nobody's arguing that at all and if that's it then we're done no no no contrary evidence much less one that compels it but if it means something else something more metaphysical then we get into this debate that you we've been if we have the eleventh circuit opinion accommodated and integrated into this discussion and it isn't all metaphysical i mean you have marriages where one spouse doesn't live in the same house as another spouse there commuting would that not be a domestic brief focuses a lot on when the divorce became final when the marriage ended but it's really a question of her ability and so as soon as she wanted to get the divorce it was in march twenty third she applied for divorce she had the divorce by december twenty third and have a commuting relationship were during the week she's living somewhere and then coming back on the weekend and living with him and considers that her permanent home is none of that and unlike an heiress e g where the board talks about there might be cases where there would be societal religious or or legal constraints on the ability to obtain a divorce on this record here none of that is here so i want to on the domestic relationship point because they didn't raise a definitional attack on that you're saying that's not the horse we should goodness now what about the on account of why did you all not challenge the on account of because i still i mean i understand what to chickens is saying about the views here as property but i still don't see that as being part of a group the fact that men might we view women as property to me we've already said women is too broad a group i don't he she was his wife and that's his problem with her she's trying to leave him many don't like it she she stands up to him and he doesn't like it there's no other woman he feels that way about whether she's in a relationship she can't leave or not it's not like you know you're persecuting a christian and a christian being christian see like we see in some countries or political opinion and everybody gets persecuted for that political  and i understand not saying they need to make an irrelevant finding but if they were to find this is a cognizable grouping she didn't leave the relationship because of this this continued interaction if you will whatever you want to call it his continued behavior then you i think you have to get to the nexus right that would have to be part of the evaluation on remand because it wasn't addressed previously because it didn't need to be you know points one to in three we stopped it the one with the i j a two with the b i hey ed but if you get past that you got to go to three and the on merits remain on this particular case because we're looking at how it existed at the time though if it were the reverse if cheerier it texas had deteriorated for victims of domestic violence and if the petitioner saw that as being impactful to their case the proper remedy would be a motion to reopen with the board based on those country conditions me ask you something we haven't talked about the role of the government up until this point in this case so tell me acquiesce to the abuse and there's numerous examples of the steps that specifically to her and more generally that the government of south of el salvador does for domestic violence civically to importantly most importantly the police commissioner personally moved miss perot's to a new home and that is what ended that the b s a doesn't when you stress the word personally that would not go to acquiesce since we have to look at whether they acted under color of law well i think what i'm saying personally am i right about that i don't want my wording to confusion i'm not saying that because he personally did it that it was done outside of his role as a police officer there is no evidence yet there's no evidence in the record that this was done after hours off the clock oh no that would be vital right if because we have a unique situation here where the police chief happens to be a coworker so my question to you is did the b i a distinguish between color of law activity and personal coworker activity argue that it's not but there's other there's plenty of evidence to demonstrate that there was no acquiescence and  the government's otherwise and additionally governor would argue that inciting and pointing that the commissioner moved her mean he's a police officer i don't know there's any evidence that it was done in any other way or the other way and off the clock t police officers were helping him we would be hearing about it and they have the but but there's no question that aside there's no question that it was at work when the police commissioner in another police officer noticed i think it was scarring on her hand and he said are you being abused you really is do they enforce a protective order i thought repeatedly protective orders were gotten but the refer record fleck she is brutalized sexually in spite of them what is important is the acquiescence this court has caseload that there's no requirement of quote complete security in these matters complete security complete security was tamara gomez the lack of complete security did not rise to the level of state action necessary i mean people you can't turn to the police can't in their official capacity be blind to ineffectual protective orders constant repeated raping and say well later on we're going to help her out into some other place that i don't see that that's a clear cut no cat violation i think what we've got is we've we've we've got a mix the police are not a monolith they're different individuals we have i think in the record there's there's even talk or suggestion that the police officers when they went to her home actually lived near her even though she was quite remote and so i wondered when i was reading the record of those police officers might somehow be departmental a different than the police officers where she worked but i don't know  several i mean and i think that's a fair question here i'm i'm not familiar with what the status of the law is if it's possible rape is recognized and salvador i would hope that it is but i don't i don't know what about threatening dad i would imagine that murder of your spouse is a recognized crime now interesting that you're interesting me on that point the record is clear that although there was the hidden and that vigil said is written and we know we didn't do there's no evidence that she reported that to the police address a few issues that have been raised first the social group at issue there are two social groups that issue myriad salvadoran women and domestic relationships who are unable to leave and salvadoran women in domestic relationships who are unable to leave the be  found recognize the social groups and the government doesn't challenges i don't think that is at issue here i think the only the only question is that the on able to leave question and and also that there's additional i think clearly the  that he continued to abuse her maybe not physically but emotionally and psychologically following that relationship that she was unable to leave it i don't think that opens the door to every relationship going on forever when you look at the cases where they found that there was no instance like for example the fuentes and also case they specifically she had five years with them cons hop she had a child with another man she moved on to a different relationship that is not the facts of this case so there is a way to  box this in a way that doesn't create sort of this this undefined social group it is a defined social group and his continued actions reflect not second i think that there's reversible error in the fact that the b i x that digital did not abuse petition are in the in the months following her or her leaving that to the factual record and i think the government had difficult time addressing this which is there is abuse it's emotional abuse it psychological abuse and it's with  backdrop of very significant life threatening abuse with that that that factual financial report the hit man issue to the police i i don't think that's in the record in that kind of significant i mean if she's saying if she's being threatened with their lives and she's not reporting that is that's something the jamie i can take into account in determining that maybe that's not really happening or not really abusive or not really whatever i don't think that's present in the record first  and i don't think there's any fact the government never cross examine her on that question so our knowledge and i would add to that that they found her credible and they found there was no current reeling evidence that that happened and i think i think for a cat purposes certainly it's pertinent to the issue it whether she's reporting the because i would think regardless of whether your spouse you can't murder them so i think you know in any country that's a crime so that being the case if she's there's i think the easiest one to start with is the police response which is there there was no police response to her or to her protective orders there was one instance in which they came they were people who were paid off by her husband the undisputed record is and they said ok no arrest was made there was no there was no arrest there was no trial he never went to jail most of the cases cited by by the government not those are the facts and so and the police didn't come again even though she called the police and so i think that her you need to act like a good wife and domestic violence is just part of the part of the deal that alone i think would entitle her to catalyze what about the police commissioner moving around the police commissioner moving her out was done on his personal time and  moving her out does not change the fact that the police never responded they never arrested him they never they never prosecuted him and we have on the record in multiple places where this is in fact a crime and they are not enforcing it and so even even if the so we don't have the issue of if the government did not make it a crime was that acquiescence we don't have that issue we have the police not enforcing an existing law acquiescence ok that's correct there and so even if there is disagreement with the government about the social group as as it is the question presented to this court is is a real person maria do we send her back when we have a situation where we have theories that your persecution in the past and we have willful blindness going forward in the future with all a problem that i have is again if i were making social policy for the united states i might come at this very very differently but then i would have had to run for congress or the senate or the presidency or something of that nature i'm in the third branch where in the third branch we are bound by the law were given which is this very odd phrase on account of membership in a particular social group and we have to apply that under the standards we've been given by the supreme court of high deference to the b i and so forth so please understand what i might do if i were queen for the day is not at all the same thing that i feel that i'm supposed to do as a judge following the law so i mean i think i completely respect that she had a very difficult time and i  think there would be prosecutorial discretion here not to pursue removal of her that the government actually absolutely could do but has apparently chosen not to and again that's not our branch so i appreciate what you're doing and your position but i just want you to understand at least how i see my role i can do anything about the social policy or the prosecutorial discretion aspect of this very sad case here to understand that i just ask that you look closer at the cost and or because i do think there is a plea under the law to address that thank you thank you and we're appreciative you're taking this case pro bono and we also appreciate the government's arguments and we will