video happy to hear from you i think it's fine for you to begin your argument instead both groups consist of honduran women in particular types of domestic relationships regardless of whether those women are at any risk of harm in other words both groups exist independently of persecution more importantly however the board's entire analysis on this point amounts to a single sentence equating these groups with women who are subject to harm or threatened harm by their domestic partners and fighting to the attorney general position a you do agree that the a g s interpretation of that phrase particular social group warrants chevron deference change the circularity principle in any meaningful way and we believe that even after a matter of baby that he responsibility of the board is to conduct a case by case assessment of the but we're dealing with an interpretation of the identity and the executive branch does have a significant role with regard to immigration policy and particularly true where we are dealing with an ambiguous phrase such as a particular social group i just want to make make that you know it is entitled to deference i think the disagreement here is primarily with sort of the attempts to stands the anti circularity principle beyond analysis to the extent that changes anything but i don't think it changes the requirement that your client had to establish certain elements of a claim for asylum and so i want to focus on on that for a moment and it seems to there is evidence in the record that contradicts to you and perhaps the government want to focus on the agency's opinion here but don't want to get down to brass tacks and see if the evidence in the record actually supports the of the principle and produce more elements part of what's going on here is that the board didn't weigh in on some of these issues and so the board member a draft for example immutability and we believe that the board also did not fully addr true that in its initial decision the board found that there was no clear error with respect to the immigration judges findings that mr garcia has motive was personal but we believe the board sort of misunderstood or misstated the immigration judges finding on that point because the board and defies it was personal because he wanted to be in a domestic relationship with our client which was not part of the immigration those issues would need to be addressed by the board in the st instance on the man's most likely so when you talk about what happened here a lot of the problems seem to be that the petitioner had some sort of problem with garcia and that the personal relationship was not a good one  that must that kind of thing must be happening all over the globe where where two of the two parties to to a marriage or a household  don't get along and and have personal problems with with one another but i mean it's not convinced that that's the kind of thing that the asylum statute is supposed to supposed to cover because that would seem to me to be off awfully broad that must be millions of people millions of of of couples all over the globe who have an acrimonious personal relationship but but i don't understand how that fits with them they the whole purpose destroy an asylum claim but an important piece of that it's sort of the cultural attitudes that keep her in this relationship or that have put her in this relationship where she is due to property by her domestic partner and the fact that her partner i motivated by her membership in the woods groups and also you know related to that the inability and the unwillingness of the government to assist her and protect her from this type of harm and so we're not violence it should cover and which episodes it shouldn't and when you talk about the characteristics of honduran culture that seems a bit again and sort of a slippery inquiry to may but i also have a problem here because the the two groups that that maybe there may be some women in one of those groups so who are not victims of persecution but it seems to me that used the groups taken as a whole defined at least in part persecution which we've never insisted has to be purely physical  i don't understand when when when someone wants to leave a relationship and can't abuse this very often the reason that they are not permitted  leave then and when somebody is due to this channel or property that sounds at least to me instinctive late to be  persecuted i think i don't want to be in the position of saying that women who are forced to remain an under best it relationship despite their desire to clean and it women who are viewed in and as property to me that sounds an awful lot like like like persecution and i mean just the common sense of it all  seems to me that a lot of a lot of that is describing persecution as to why people are in these groups to begin with so your honor i agree that these relationships you know are have difficulties and are not ideal i think the essential point here though is that persecution and the asylum and they have to be of a particular level of severity and that's the reason why you know we talk about one reason women might be unable to leave a relationship is economic dependence and i faltered it sounds like my time may have expired is that all right if i continue about i would like for you to finish your thought yes so with respect to you know for example economic dependence this court has recognized that economic deprivation talk briefly to you about because let's suppose that there are a number of women unable to leave a domestic relationship because a persecution but they are all those who maybe because of it may not cover the group may not have every member who was subject to persecution but it has a large number and it's defined in part by persecution and and maybe requires independence from persecution it has to exist in a group has to exist independently of the harm and it can exist independently of the harm if it's defined in part by the harm and so when you read a one billion if we all know if we if we owe some chevron deference to that is very specific on the fact that there has to be independence from the harm which cannot be established if all the harm is if you did yesterday is defined in part by that very harm and that you know that that's what concerns me about your case in addition to the points that you are today as was raising as to whether this person is a member of that of even a member of that group but i just i worry that we're just trying to find some way to circumvent what was the clear requirement of a big and the way in which they be addressed that requirement and interpreted it and i think and they may interpret it this p s g phrase in its ambiguity they may interpret it in a different way and i think we'd be required to respect that and to the ocean ever on deference to that groups using the phrase on able to leave and matter baby the attorney general never said express for you that the issue was but the group with the find in part by the harm and in fact you know at least two circuit courts have have rejected that reading of matter baby and i think one strong piece of evidence that matter a baby did not intend to create a categorical will against groups like the one my advance was el salvador and women who are unable to leave their domestic relationships where they have children in common which is a very similar formulation to the a r c g group and so we believe that you know out a minimum b left open the requirement that the board actually consider the particular p s g to determine who they are it's to find a back to bleed to find to include only women who have been subject to domestic violence and we don't think that the is is just very close to being on on point here because the the group advanced as a particular social group  was almost almost a daily go to what we have here challenging the factual findings made by the agency and in particular three up on that i'm interested in is one finding that she had the petition had left the group the nd that the abuse i j found that the abuse was on account of a personal animosity and not membership in any particular any the group however defined and rd that th e government was not sufficiently implicated in this case referring as an example that she didn't call the police and give the police an opportunity to  group that you're trying to define and the causation the on account of membership in those organizations and the police involvement you have arguments to make but these were findings made by the agency and we've been told to leave those alone except in the most exceptional circumstances well your honor i think with respect to the to the pretty you know part of the problem is that that agency has not actually addressed all of the issue and so they bade good make what they claim to be a factual finding that her  lot different from saying because she can contact the police she wins that because it was never in any one of these opinions basically that was an observation made and the i j a went on to explain advanced nothing except a legal argument that that cabin's the finding in st because she didn't call the police she satisfied her requirement it was just the opposite the agency said why isn't the finding entitled to recognition by reviewing court other than the evidence in the record is one they she didn't call the police or make an attempt and to the conditions we cited in honduras and they address both those issues that's the only evidence that was in there and know your burden is to establish that the government was unwilling or refused to participate in and there's just no evidence to suggest that it's basically your honor our client has to buy before the immigration judge that she did not contact the police because mr garcia told her that things would be worse for her if she wanted to contact the police of course and i thanked his direct that doesn't say a thing about the government he's basically saying that if you call the police i'm going to hit you hard or whatever whatever the threat is i mean how does that affect what wasn't the police would get involved well that affects whether or it and you have tried in your brief to make it a causation issue laptop the fact that she didn't call the police air go the government was involved in all the cases say that's doesn't follow but in this case the i j made a factual attack on these three findings which which i don't know quite how we should treat that she left the group that the abuse was on account of and of course that's the language of the statute on account of  membership in the i j found that the abuse was on account of personal domestic relationship show when she left his home he continued to come to her parents home nearly every weekend he continued to threaten her and to attempt to sexually assault her and he continued to address her as his woman and say that she belonged with him and to and to threaten to take their child away and we think that all of these sort of demonstrates that even though she was able to to move from his home she was not able to leave their relationship and that's further reinforced by the fact that you know her own family continued to allow him into the home and told her that even after she had told them about the abuse told her that she had to make her personal animosity between couples could potentially lead to an asylum claim and that's a terribly broad holding and then in order to  didn't describe what's the nature of what the the personal relationship is and make it appear as bad as possible in order to establish the persecution prong are you even if your client even a member of the group and if it is a member of the group by virtue of persecution or whatever then that raises questions about whether we're running afoul of a baby i mean they just you seem multiple hurdles here to make to actually make out on a an asylum claim but at this point i'm going to ask judge niemeyer if he has any further questions paul do you have any further questions oh i'm fine not overstate my welcome already judge did as do you have some further questions i did not i think  please the court i'm christina green on behalf of the attorney general the panel has pointed out asylum is a narrow form of relief that requires persecution on account of  protected ground and this independent existence requirement gives full meaning to those terms think particularly in the situation of a particular social group the group must exist independently of the harm and from the argument that i've heard today it seems as though we're on the same page that a group cannot be defined in part by heart and so moved to sort of the main issue that was briefed about whether the phrase is unable to leave and viewed as property by their domestic partner in this case are if the if these groups are defined independently of the harm and we argue that they are not first of all for an able to leave application or claims that it can theoretically refer to things that are not the harm but at least in this situation and she has the find it by the harm when asked why she could not leave all of the factors she listed were relevant related to the harm none of them were these other theoretical things that she lists is why women may not be able to leave in honduras  least in her specific case she is defining the group by the harm because unable to lead is the hard and this is even supported in her country conditions other than that page five hundred and fifty nine is the record paragraph and also could mean the harm than the group itself is not the fine did the pendant leah's the harm and here looking at her circumstances the only conclusion is that at least she when she uses that phrase is meaning the harm and so that's how the phrase must be analyzed here that's that's sort of brings up a problem another problem with the phrase unable to leave and that is that it's it's incredibly vague and so there it's questionable whether it could pass the particular requirement because even in briefing it's not well defined what is meant by an able to leave and so resorting to the fact here to shed light on what she means unable to lead to being in her  definition it must be hard because that's the only thing he cites is preventing her from leaving if it's all of these other factors then she would not be a member of the group for he never cited financial reasons or anything else he only cited harm by the partner because he wanted her to stay in the group in the relationship and so it leaves here it must be at least partly defined by the heart but  that the group would still be defined in part by the home arm as long as there are a considerable number of members of the group that didn't leave because of the harm group should be defined countrywide or society wide and so for this group but we must the way that it becomes a factual a factual determination in a case by case adjudication is that we look at the facts look to the facts in this case to see the evidence produced here to determine how the group is being defined and its the applicant burden to demonstrate what th group is in that society so here are evidence too if you have the heart if you have somebody let's say who can leave because of economic dependency ok the problem circumstances if you're fifty you find that an individual is not as it is unable to leave because of reasons not related to the harm then the other question about whether this persecution but if you find that someone is unable to leave you because there is an abusive relationship then the group is defined that's defined by the harm so i'm what i'm saying is that there are problems either way you turn it i think what you're saying and so it sounds as though what you're saying is that the concept that a group cannot be defined by the harm an issue in the plane is the harm it is showing the claim is financial it depends because as petitioner stated severe economic deprivation can be harmed and in fact in her own country conditions as a dent in a report that begins at page forty thick that discusses financial a beat and how that part of the power and control wheel of domestic violence which is what she i understand what your discussion here but my understanding of the social group that it has to preexist the abuse the persecution and it has to be particular and the abuse persecution has to be on account membership in that group and has to be motivated so to speak by it has to be one substantial cause for it and and  the question is if you in the abstract say unable to leave includes economic and includes persecution accuse buz it just may be too broad we suppose to be talking about a membership in a particular social group and this is causing courts a lot of difficulty it has and the board someone discussed this at page four of the record when it says that these property does that just mean i feel with my spouse or does that mean i believe that i have complete the minion over you in every aspect of your life same thing with unable to leave with all of the different reasons that are cited again even in briefing there's no concrete definition of what design able to leave mean in honduras for example as i stated on page five hundred and fifty nine paragraph a d three there are many different factors  leaving and then it says that the few women who overcome these impediments and take steps to make abusive relationships often find that they are still unable to do so because their batterers will not let them go since the batter is driven by his unwavering belief that the woman is and should be under his complete control any attempts to the board sending out of the house or seek assistance from friends and family can posit that or to retaliate with even more violence so again even here at least she is defining her groups by the harm that she's planing is aries that is the basis of her cl be on solid footing by simply looking to this record evidence and saying well you know that as defined by the petitioner in this case it seems clear that as early as two thousand and twelve and certainly today she is no longer a member of that ability of the view to property group but additionally there were other issues that we felt that they would benefit from a clarifying decision by the board and specifically addressing that particular social group  and then when we went for a debriefing we felt that is so having thought remained on the ground that we would go forward on the stronger ground what we saw as a stronger ground but those findings are there  there was for example in the amiability contacts which only deals with the on able to leave group but the fact that she was able to leave that is defensible it was discussed in the context of the need ability by the immigration judge and the but the boys relied on the actual finding to draw the legal conclusion that she was able to leave and therefore was not a member and so we believe that's entirely  certain now that she's in the us molong were part of the group perhaps but any those are not facts the parroting from the united states forward those facts are part of the immigration judges of the board grounds to resolve this whether she's a member of the group or not if fact that the at the particular situation here is grounded in a personal personal quarreling not in kind of any kind of persecution in other words that really does seem to be a mismatch between the group as defined unable to leave group not the group of women viewed as property by their domestic partner but that group also is as you pointed out the fine by the higher and the problem with as you as i judge wilkinson you pointed that in truth this group is defined by the heart and i think all of this but the idea that the conundrum created the agency rejected that argument the agency pointed out that she did in fact leave to her mother's home and even though the russian continued thereafter the harassment doesn't necessarily mean that garcia and she are in a relationship the harassment suggests it's a threat  of harm but it doesn't mean she's a member of the group in a domestic relationship with him she left that sam in the relationship that they had which was living together in a house and that's what the board found they said that  she was able to leave and then she was also able to leave honduras to come to the united states to decisions which the board relied on to show she was not a member of the group correct and she  also counsel argued that you know her parents still allowed garcia to come over and that even after she said she didn't want to be in a relationship but they did tell her you need to make it clear whether you want to be in a relationship or not so this was down to her decision whether she would be continued to be in a domestic relationship and as the board found she left its home and she suffered the relationship so this doesn't judge you're correct that she was able to leave the relationship enough is not a member of a group of women in a relationship that they're unable to leave protected grounds in the in the asylum statute race ethnicity religion etc they don't have that adjective that attaches to them but this particular protected ground is preceded by the adjective particular and so that social group living in some proximity to one another in the rest but this is this is so  just so sprawling and i wonder how that matches up since the word put it that adjective particular which seems to me to suggest something more discreet than what we what we have here that word has to has to be here it means so much of this is good concentrating on the next this requirement on the on account of o before the ab decision and after both but it's not it's not just the word because of or on account of that are in danger of being seen a at all because you could substitute for this group for example you could put guatemalan women under able to leave their domestic relationship or japanese women unable to leave the with what's being proposed here i wonder what you think your honor i agreed that it take you larry is another issue here so the way that the lord and the attorney unable to lead and viewed as property that come into conflict with that requirement but in this case the board didn't articulate that is the reason for denying the group however was done able to leave even in the briefing here a petition or argue that there are many reasons why a woman may be on able to lead the main a mill many factors just to show and that shows that there really are no boundaries it's unclear where those boundaries are such that is someone who is unable to leave just because they don't want to move is that included within the group same thing as you just property to what extent you know there could be some sort of feelings proprietary relationship over just a spouse without any abuse at all but that the employee did in the group but also social distinction to the question which is does the society it is she actually conceive of this to be a group and the evidence in this case there is nothing that says that front door and women who are unable to leave their domestic relationship is seen as a group within honor in society and same with hunter and women who are viewed as property by their domestic partner there is no evidence that that formulation is seen as a group within the society and so it's those are two other issues but the board did not grapple with those two in those terms partially because there's a statement where there's only when a plane fails on one basis the agency doesn't need to go into many more so when it came to cognize ability there are some statements about a lack of particularly in social distinction but the bulk of the finding was about lack of circularity and the agency did not quite go into this much detail on those two but the government you know at i would like to start just circling back to sort of the prior around the questions regarding factual findings and i would just like to emphasize with respect to those questions that you know the immigration  were to agree with some of the back four findings regarding the ability to leave with respect to let me just let me just interject here the board seemed to say that the unable to leave and viewed as property do not exist independently of the risk of persecution and it seemed to me they concluded that women and such characteristics is not addressing the group with such characteristics appear to be those who are subject to harm or threatened by harm by their domestic partners which is of course the factual circumstance here and the so the court didn't address  to sort of the prior question but it's correct that on the motion to reconsider the board address circularity with respect to the events property group and as we explained we think that was incorrect but also anticipated this situation where there were some who were said so members of the group might be subjected to harm and others in the group might not be subjected to the harm and then but anybody just says and it's explicit on this point is that it has to be independent of the harm and if it it can't be independent of the harm if a group is defined in part persecution i mean that's the exact is it is not ambiguous on that point it says the group has to be independent of the harm and it's not independent of the harm if the harm is part of the definition even though it isn't harm in every case the definition is still defined pretty significantly by the harmfulness well when you're talking about harm that it that that is the that is the harm and it's incorporated into the end of the definition and that quite what the proposed group is describing cannot be anything other than harmful it's not it's not beneficial in any way to have women engaged in those kinds of relationships and where they can't be  they can't leave if they want to where they're viewed as as property i'm you know i think i'm so i'm very sympathetic on the idea that that on it mismatch between the claimed group and the person's actual membership in that group i think they're real i think they're real difficulties there  and whether we are in danger of having a vague definition that expands to encompass every great many relationships defined by nothing else other than you even though we can all agree that magic root abuse is a terrible thing but it seems to me that's for congress to address and they want to broaden the solemn statute beyond the particular grounds that it can do this or the attorney general can change it and say this is not an illegitimate interpretation statute to this degree and given the fact that the attorney general rule today did an a b i just wonder whether really i worry that we're engaged in we might be engaged in a just a circumvention an exercise of circumvention and that troubles me just from the standpoint of the long haul particularly here where there is one of the two particular social groups has been largely ignored and also with respect to i think the broader discussion of circularity one point that i'd like to emphasize is that while the attorney general specified that a particular social group must exist independently of the harm what he actually said was that it must exist independently of the harm underlying in filing claims and which is to say persecution and in this case both social groups even if they you know involve some level of harm which i don't we don't think that they do we think that they describe simply features of domestic relationships and recognize groups and hunter and decidedly but what they certainly don't include is the particular persecution underlying it phylum claim and that's what  or you define the group without regard to domestic violence and just say the group consists of all women in honduras who on able to leave a relationship a domestic relationship  including people who are subject to the laws of divorce it's a catholic country and the wars may not be easy there just me tons of reasons you're talking about a totally undefinable and particular group and so what the b r d a did is assume that you were indicating that the reason that the petitioner was unable to leave was because of the domestic violence and of course that gets you into the problem of now the circular business that you've defined a group by domestic violence and the persecution was because of the persecution which is circular so it seems to me if you go back to where you and i would think that setting aside legal advocacy they not proposition would be you're arguing that the petitioner here is a member of a group unable to leave a domestic relationship because of domestic violence and of course if that's if that's the group then when you charge the persecution because of that group then you have the circular problem that may be laws persecution by reason of a membership and some defined entity and here the persecution is basically domestic violence because i spot domestic not because it she happens to be a member some group at least that's what the fact finding was that the it's difficult for you i understand but the real question comes down to whether this is the type of case that the asylum