it failed to find the petitioners proposed social groups were cognizable this court reviews those errors to novo and should reverse petitioner as a battered woman and a survivor of repeated rape as she applied specifically and explicitly on both grounds for asylum i'll deal with one of the time our briefing covers the issues in more detail i'd like to use my time here before the court to assess key errors and answer to the panel's questions what did the b i am dress the social group of central american women who are victims of domestic violence iran to the framework of a r c g two sets out the logic by which victim of domestic violence would be eligible for asylum based upon not domestic violence and so the petitioner raised to the b i a that issue and the i considered it albeit inadequately when they rejected it because they were not they did not sufficiently analyze it if they had sufficiently analyzed it they would realize that there is no of the actual description of the group and the group that you've just articulated central american women victims of domestic violence does not expressly incorporate the idea of an ability to leave the framework of a r c g is designed to assess the court and b i e in that case was very clear that marriage although an issue the inability to leave was what made that marriage an immutable characteristic so the domestic violence in this case her inability to leave function the same way so i think it's absurd and into the particular social group even though it's not explicitly stated out there you heard the prior argument and the same question for government council i mean that and able to leave thing just can't turn on the ability to leave or not because of faction marriage they're already here so they left right i struggle with the same logic your honor i think that the issue here is that the inability to leave helps us create a social distinction around so they were unable to leave if they had remained and i mean this nit picking these little if they had remained in their country and  i think what they're saying is that if they had remained in their country they would not have been able to leave the domestic violence situation because in those certain countries as a matter of culture or virus and or the mckees massai they just there's no place to go the police won't stop their abuse or they they can't there's no that's going to support them because that's the way it is in that culture in that environment in that world and so they have to leave in order to escape the abuse they have to get out of that country because they're not going to be able to escape the abuse in that country i agree with your honor and i think in this case we have a particular situation where petitioner was unable to leave even after renee got out of prison the st time he spent a year intimidating her threatened to kill her twice on two different occasions for two different reasons and it was only that he found another partner and that he decided to pull back on his persecution that she was able to that she was able to quote unquote leave the relationship but even then she couldn't leave his stalking and intimidation as the record which the immigration judge in the b i a ignored demonstrates that he continued to do even after he found a new partner so i understand the hesitancy with the inability to leave but i think that what the court in our c g was trying with a b i a s a r c g was trying to do was delineate the boundaries by which they're unable to leave so long as they remain in that country that's why they have to come to the united states because they're fleeing the person you know the persecution i think it also connects into the unwillingness of the police to help so for instance in el salvador there's uncontested country conditions evidence in this case which was not addressed by the b i a or the i j which indicates that domestic violence is not only under reported and socially acceptable but is also under prosecuted even though there are specialized courts never for the case in this country for a very very long time until awareness began to change the culture in the united states for very long time police did not force domestic violence laws in this country i'm not aware of that before you were born how do you respond to the record evidence that the police in this case was responsive they had jailed him for eight days and so there was a specific finding that there's a failure to show the government was unable and unwilling to protect her so i think what's interesting about that finding in the b a s decision it is it just flatly contradicted by the record so i think your honor is referring petitioner agreed to withdraw the lawsuit if he would leave her alone and in the be i they says respondent agreed and her boyfriend was released after being held for eight days inside the transcript they started transcript at eighty nine dollars the problem is if you go to transcript at eighty nine dollars you find out that he did not threaten to kill her and she did not withdraw the charges until after he got out of custody so the immigration judge to miss me has been sure and after he got out got out of custody did he come to live with you petitioner he left but he told me that did with that if i didn't withdraw the lawsuit he was going to kill me and i also had my daughters so while the immigration judge and the i did make a finding that the police were willing and able to help the record just  contradicts the logic he got out of jail we don't know why but he got out of jail and then he threatened to kill her if she did not withdraw the lawsuit and that there would be holding on that is just not supported by any record evidence is contradicted by the record ev let alone substantial evidence all right what do you do with the record my understanding of the record is that for a period of years i think it's four or five years before she comes to the united states he's in a different relationship and she's not having problems with him they don't have an ongoing relationship they live in a small area as my understanding so they would see each other perhaps out in the public out in public places but there wasn't an ongoing relationship there wasn't ongoing abuse for a period of years before she comes to the united states so on that record how do you establish persecution you know a risk of persecution if she's going to go back and that she needed to fle reason so i think there's two questions here the st question is whether or not she established past persecution which she did renee continue to abuse her or threaten her and intimidate her in stalker for a year after he got out of jail because precisely because she was a victim of domestic violence and he knew he could get away with it then there's the question of whether or not circumstances have changed such that she does not have a reasonable fear of return i think that's directly what your honor is asking about and the problem is the government has produced no evidence that there is such a change he's the one who decided this stop he it was his decision there's no evidence change there's no evidence in the record that he could not pick it up again if you want to pick up the abuse again if you wanted to or that he could come back and in fact the was she left alone before she left to come to the united states was it a period of four or five years i don't know off the top of my head or your honor but a substantial period of time i would not call forty five years is just a period of time for someone who has experienced domestic violence and who has experience in continuing intimidation by their previous domestic partner so i want to play that argument just a little bit it is your position that an abuser would have to be in prison or something  to demonstrate a change of circumstances because any time a person voluntarily decides to stop being a bad guy then that's not good enough i think even prison would be difficult because the country conditions report indicates that there's an ineffective  of domestic violence law was against domestic violence in el salvador during this time period so even after an individual for instance was given a restraining order he still returned immediately and killed his significant other the country conditions is objective evidence that his existence and his ability to be out in society is a threat to her that he can return at any moment and so she has this is not only has she she intended to presumption of a fear of future persecution because of her prior persecution of his hands but there's no evidence that that all of a sudden el salvador has become has turned its has turned around on domestic violence it has become a and i don't place referee victims of this sort so this is another problem with the group it's defined this was central america central american women who were abused as opposed to women who share this these social characteristics should be entitled to protection and of course somehow america's top soon salvatore i see that my time is running running out so unless there's any more questions i'll reserve the rest of my of the united states attorney general again i have to correct a factual i have a few factual corrections quoted one hundred and forty nine to one hundred and fifty that her views are kept bothering her and after he found a new partner did he leave you alone answer yes and you never heard from him again is that correct whenever she answered whenever he saw me he didn't talk to me and i didn't either ok and i also filed a twenty eight chain letter last week pointing out that the facts of this case regardless of you know incidents before that for four to five years as judge and sicker and sicker noted that there was no problem at all living in the same location with her abuser because he had moved on to a new partner so i want to say st and  foremost that that is a key fact in this case with respect to any threat of harm at this point i do want to point out another few he says that there was a factual error with the police and the unable unwilling and i'd like to direct the court to the to the transcript issue this is around pages one hundred and forty dollars fourteen cents she says she agreed to drop the charges because her ex partner said that he would leave her alone there was no threat it was an agreement between them then she said after he was released he did not come back and live with her he said she said that he told her she had to withdraw the lawsuit or he was going to kill her but it appeared that it had already been dropped because that was a condition of his release so that part doesn't make sense to me i would say that that is somewhat ambiguous at best in the record in terms of was it already dropped and then he threatened her because the way she presented it on page one hundred and forty is she agreed to drop it because he said he was going to leave her alone and there was no threat involved but in any event the point here is she never went back to the police in terms of the unable unwilling if he threatened her after he was released and he said i'm going to come after you you now where is the evidence that the police were unable or unwilling to help her they promptly arrested and detained him upon her complaint and only released him seemingly because she agreed to allow the charges to be dropped and if that was in dispute or there was any problem and she was being threatened she could have gone back to the police and we could have seen what the police were able and willing to do you never once in this record do you hear her say that she went back to the police or do you say or does she claim that it would have been futile and the facts of this record do not show it would have been futile because you have the ability and willingness to protect because they promptly arrested and detained him i also want to point out that this case can also be decided with respect to the unable unwilling component on the rape side of her claim  i want to clarify the record there in her testimony she says that went and she had to social groups just to be clear no we were focusing on domestic violence and here in this case she had a domestic violence case one and a rape one and in both cases we see evidence of ability and willingness to protect and that's a dispositive bases apart from nexus particular social group issues and i just explained the ability and willingness to protect in the domestic violence with respect to the reap part of this  to whatever examination she was supposed to do get found out she was pregnant and did nothing further because she knew her rapist had left for the united states at that point and did not follow up and never went back to the police with the medical examination now i understand that this conflicts with her written statement on page two hundred and fifty nine where she says police required same day reporting of a rape and therefore they were willing to take her rape complaint that's in her written statement that was not in her chest mooney and her was credited as saying i was told to come back with a medical exam but i chose not to because my rapist had already left for the us and i had found out that i was pregnant there's also a slight contradiction there she says it was a month later in her testimony and in her written declaration she says she went three months without a period and that's how she found out she was pregnant there is tension there my point is that regardless she is not showing that she followed through with getting that medical examination that the police asked her to go do and she gave up because her rapist had already left for the united states and she did not pursue it further so i want to just make clear that the able and willingness of the police to protect is a separate dispositive basis for both of her claims in this case and down turning to the other part of her case with respect to the social groups in this case you have with respect to the rape claim you do have the typical social distinction element here with respect to the domestic violence claim the the factors used here in addition to unable unwilling was the circularity component here in terms of how it was defined in the sense that it was defined by the harm suffered as i mentioned earlier when you're talking about the harm that was suffered in this case the domestic violence the violence is both the harm in the cause of the harm and the problem with circularity in this case is that you can't it creates what we call the impossible nexus problem because it reverses the cause and effect as i was stating before and as i also mentioned you can't do the surgery on the group to make it a non domestic violence particular social group and in this case it was also based on central americans who've been subject to domestic violence i understand that the actual bases used here were with respect to you know not so much looking at the central american factor but with respect to th domestic violence and so you know the government is looking for this court to you know weigh in on the fact that circularity of the way a group is defined creates this really big problem and we have i mean we have weighed  made i think i mean i've read a number of opinions from our circuit that follow that principle that i think the the thing that is different in this situation isn't that takes it out of the circularity is that there's there's this culture of victimhood like that that once you've been a victim of domestic violence or rape re peated rape by gangs that you're in fact because you're a victim even a victim before it it's sort of emboldens or enables other people to follow suit and there is that that exists i think is why a r c g came out the way it did on that your honor i just want to point out that that's what this claim morphed into was this vulnerability to have something happen again it's not the way it was presented to the repeated rape for just like one time incident well your honor a vulnerability to crime is the problem is no not in the abstract and sure you've read about domestic violence and the mentality that comes and i mean there's experts testify about it all the time so you know what i'm talking about right yeah i mean this case doesn't present those are great and right i'm just thinking for the yeah i can i understand you know if you're trying to look at the bigger picture things and i just think this isn't the case to do that because this case has its own set of facts that i will say are quite unique because in many of these domestic abuser cases we don't see the abuser saying bye bye i've got my new partner off with you right i mean that's what we have here so we don't have this perpetual cycle of you know he promptly moved out when she asked him to and after she went to the police and they did their job and as i was saying case was different facts might be a better case to look at a bigger picture systemic domestic violence i think this case presents facts that are you know showing a lot of things that are different than typical maybe domestic violence cases because as i see it here i don't always see such effective police behavior i agree with your honor i i was pleasantly surprised the police did what they were supposed to hear and everything happened the way that you would expect it to and so in the end she lived five years in this country right in the same town as her abuser with no problem because he had moved on and she had her own life and then she describes a little bit of gang interaction with her daughter and that's what prompted them to leave it wasn't actually the domestic abuser that in the end she left to come here i believe it was two thousand and fourteen because she was saying her daughter started getting some issues with the gangs which never ended up turning into any big part of her claim but her reason for leaving was not even directly related to the domestic abuse situation that she had struggled with years prior i also want to point out that in this case the evidence shows that the abuse began because her ex partner had a drug problem and this is on page one  and so i want to point this out because again it's not the typical domestic abuse where you say something's the stomach in society with this male culture she specifically says that he never mistreated her before two thousand  this is on page one hundred and thirty six it started with a drug problem so he got a drug problem he started abusing her you know and then she ultimately went to the police they detained him arrest him he was released maybe like i said did she agree to it did he threaten her afterwards i don't know never went back to the police for the next year he came to her work unclear if he was trying to get back together with her or if he was threatening her again never went to the police to try to do anything about that and what we know is since december two thousand eight beginning in january two thousand and nine she had no problems with him for the next five years so that is absolutely you know a prime consideration in this case regardless of domestic violence situations in other cases that i urge t court not to consider for this particular case i do want to point out that you know in this case regardless of the comparison to air c g or not at the time that these agency decisions were being decided it was very confusing on the role that matter of our c g should play nobody really understood but we know we have a domestic violence case what do we need to do about it and what we realize now is that you always have to apply these  criteria that criteria was actually not applied to the domestic violence claim in this case and that's because they used in unable unwilling ground and a circularity basis for them and so those are the grounds that were  again we don't have like the social distinction considerations about domestic violence are not before the court in this case because the agency didn't use that basis nowadays when domestic violence claims that other cases are raised the consider the social group yes your honor the government's not really putting forth the exhaustion we do agree that to the extent that the exhaustion argument was made it was more because of the pope perfunctory administrative appeal brief she's she has  new counsel before this court that this court appointed and so the problem is when you change counsel from before the agency to before the court a lot of additional new arguments are better counsel had before yes your honor but the problem is that  the the a lot of the arguments again like being more susceptible to rape or anything like that those those more before the agency so in terms of her articulation of her social group she made a reference and i think i know where the problem if you look at page one hundred and fifty eight of the records she actually says she's relying on matter of are a framework after her social group and then before the board in her appeal brief she then references i have these two articulated social groups and also by the way the matter of a r c d framework take up the nexus the right of particular to your honor i totally agree that circularity is completely tied up with the nexus problem but it is its own sort of as a matter of law whereas next this is a factual issue as a matter of law with the what the attorney general made clear it was already suggested in matter of and the v g and it said your person group has to exist apart from the persecution but until matter of a b came along it wasn't the nail wasn't sort of driven as much to say you shouldn't define if circularity me and her groups are i was repeatedly raped and the police were unable and unwilling to help me that's a particular social group so in other words the exact harm that she suffered is now the basis for the harm that she suffered and it reverses the cause and the a fact and it creates what we call the impossible nexus problem and this is true for both of her groups because it describes the harm that she experienced and i see that are you going to with the short time i have in her bottle i'd like to address a few points that the government has made st the government attempts appears here to be playing the victim for her own person for her own persecution that she did not go to the police again or that even when he continued to stalk and harass her after  partner that she did not go again it does not negate the fact that she experienced past persecution as an entire and as entitled to a presumption of fear of future persecution but also she didn't go to the police for the reasons the country conditions report which the i j a in the b i a are required to look at and did not look at which demonstrates that it would have been futile for her to go because domestic violence is under prosecuted and it's under it's under enforced so it's just  on from there the nd i'd like to turn to the circularity argument actually st i'd like to turn because i didn't have time in my opening to talk about the rate p s g i'd like to turn to the police is the independent issue that the government raised which is the police's support purported willingness to help this is perhaps the most galling of the factual mistakes made by the i j a where it says that she never really cooperated this completely ignores the country conditions report in el salvador the police are required by law to prosecute every single rape case regardless of whether charges are pressed and regardless of whether the victim wants to do wants to pull the charges away so that the government the police despite this legal obligation to prosecute this rape case gave one of two reasons not to she didn't go to get the exam and in fact he did go to get the exam that's how she found out she was pregnant which the government brought up to you and and nd because she did not  in their brief says to note eleven in any of e g the problem with noted levon is that the vi a there noted that the d h s was advocating for an independent requirement of asylum cases that they that the harm exclusively to find and here on either of the two particular social groups the persecution is not coextensive with the harm that was suffered she regarding rape not only that she would experience repeated rape yes she did experience that but she also had death threats that were sent to her grandfather and her her brother and she were and they attempted to kidnap her and they told her they're going to kidnap her the fact that she was able to escape at three o'clock in the morning with her mother does not negate the fact that she was she experienced past persecution precisely because they knew that she had a transform status she had a badge on her back she had a scarlet letter for lack of a better term because she had been repeatedly raped and they viewed her as there is to own the same thing with domestic violence metafile is not the only surprise is not the only harm she experienced and it also included stalking and intimidation which went even beyond where it was when even beyond the time that he had knew he had a new girlfriend and i see that my my time is up if regarding the breath of