held that a ten percent likelihood of persecution is enough for an asylum case and they did not make any distinction between male and female applicants and yet we find that now women are being left out of the spear of asylum by various cases recent cases women are limited in their access to political opinion because of the oppressive regime in which they find themselves in central america often the only way that they can express themselves politically is to escape an abusive to mystic situation which is what tryst by the dominant male society in which they live when a woman does manage to escape her opinion  punished on medically many times as in honduras where women are killed for trying to escape from a horrifying situation in this case ortiz marino left the abusive domestic relationship only after being beaten repeatedly and threatened with death then she returned to hundreds only to rescue her female child who was also being beaten and abused and threatened by the same abuser the father of the child g s returned to see the child the abuser showed her a gun and said this is for you he threatened to kill ortiz the child and her parents but bravely ortiz remains until she was able to rescue the child she was only able to rescue the child because the abuser fled the scene fearing being harmed by gangs she the seize the moment and came to the united states however in the hearing the immigration judge misstated the facts in both the  and nd opinions the judge stated jose never hit her or physically abused her and yet in the transcript the judge says quote you believe this man who you don't trust who beat you and your daughter all the time  judge herself repeated the fact that ortiz marino was beaten by this man the judge found that there was you know even if this particular social group is cognizable can you talk about the nexus finding that the well in the lead in the nexus finding they talk about circular reasoning if someone is abused on account of what group they happen to be in that self defining and therefore not it doesn't have a nex disagree with that reasoning and so do several of the circuits the th circuit and the th circuit but looking at it from another angle if someone is is persecuted on account of their social group that should be enough they shouldn't need to be some other reason why they are persecuted in order for that person to be eligible for going on the case was remanded by the board the st change that if you change the social group slightly to be women as opposed to women who are abused doesn't that solve your nexus a so i mean we do have some decisions in the circuit that say that right and yet women who stand up for their rights are distinct from all women women who stand up for their rights in one way or another in this case she left and came back bravely to rescue a female child i think the court should take into account the gender of the child because the child was being abused as well the female child so it's not only the wife it's also the daughter and they're both of them a part of a social group also there's been testimony in this case that the abuser had several women and had abused all the women not all but many of the women in his life had beaten had subjected them to severe violence so she's a member of a social group in so far in a narrow social group in so far as she is a part of this rather dysfunctional to say the least family in which the women are abused i mean you're just you're indicating there were many people that he was abusive to in his life that's on the record how does that not just establish that hears about person well the reason why i'm saying that  is because the judge that he just abused her because she's his wife quote unquote but actually he was abusing women because women in that context who are abused more or less wear a badge ok i've been abused i'm not going to protect myself go ahead of an abused me again because i know that no one is going to help me that's the social group say again what social group you're arguing we should find this case women who actually are able to stand up courageously and and be able to leave a situation but in this situation she didn't just leave she went back again risking her own life to rescue her daughter who was also being a the articulation of your social group is women who stand up to their abusers yes and try to escape and then are threatened whose lives are threatened on account of trying to escape and was that articulated below to the agency  it is not clear from the record that that was clearly delineated it was said it was written however if this case goes forward it will definitely be more narrowly  in the st social group that was defined was women from central america fleeing their abusive partners however this case presents other nuances in so far as she was able to leave she went back to rescue a child who was basically not going to make it much further the child was or sick which is the only reason and the child testify the judge totally discounted the child's testimony the child testified that the abuser had told the child that he was going to kill the mother and also threaten the child's life if the child took phone calls from the mother while the mother was in the united states after she left the st time she sent money to the home and you've just articulated a child is also a female the child happens to be a female and she's being persecuted by this same person who persecuted her mother so this this abuser tends to abuse vulnerable females in his in his surroundings she's a part of that group so it seems from the argument that you're making that the only immutable characteristic that your you think applies is just gender is that fair well gender is the main but she's also in a domestic relationship with him she's been with him although not legally married for four years he's the father of her child so they're definitely in a domestic situation and he asserts authority over the child telling her that in fact she can't when she goes st when she st goes back to honduras and wants to rescue the child that the father says no you don't have custody i'm not letting you take this child the only reason why she was able to rescue the child is because the husband was afraid that he was going to be killed by the gang so in that moment she grabbed the child and left was able to actually leave the country i'm going to keep some time for re dispositive bases whether it's a coed nies a full social group i want to start with nexus which was just brought up because i'll say even assuming and i'm and we're not agreeing to that but even assuming this is a social group let's look at the next us the problem with petitioners argument about nexus is that the harm to petitioner herself does not qualify because of the way she defined her group so she looked to the daughters harm so in other words the harm to herself predates her fleeing her search her social group a central american people who are able to leave our constitute a particular social group so what exactly are you saying that you have to stay in the abusive situation in which case you'd never get to the united states so you couldn't climb no your honor st of all she was able to leave and in fact her abuser wanted her to leave page three hundred and nineteen of the record he called her fat ugly i want you to leave she fled but not because he wasn't preventing her from leaving so i just want to start by saying that this is not an error c g case it never really was and that i don't understand i mean you're not going to be in the united states making an asylum claim if in fact you are unable to leave your honor yes that case married women on able to leave i want to say i'm just saying obviously error c g fled because so i don't see that that's a distinction from this case because she wouldn't be in the united states making an asylum distinguishes this case from a r c g ok so assuming that i again i'm able to lead you can't be the distinction because obviously air e c g was here so she left it's so the with it she defined her particular social group was up to her she defined it as women fleeing abusive partners or husbands so we have a number of these cases yesterday are you arguing all i'm  willing to recognize i mean we have a or c team that was recognize we have a we have our own decision a couple decisions women from mexico women from el salvador and as your honor saying actually it's women rights so she's trying to change her group now women from these countries women from this country i think you brought it up before the problem with putting domestic violence in the definition of a particular social group is it becomes circular so the violence is is what how do you do or c g did not evaluate the m t v and our criteria that i just mentioned there was a concession by the government in that case that said we're going to agree that this is a particular social standing by that concession no your honor the government in that particular case made a concession and the attorney general said you have to evaluate the criteria you can't just concede that this is or is not a social group you have to go through the criteria so the problem in that case was that the m r criteria was missing and that's what the attorney general was saying he never said domestic violence can't be a particular social group can be i'm saying that it has to be articulated as the social group and then it has to be evaluated she defined it as central american women so the whole a whole bunch of countries included in that and so the so again you know this was also your distinctions among the countries in central america regarding domestic violence a terms used and said you know what does it mean to st of all abusive doesn't necessarily mean domestic violence i want to start with that she's changing her group ok so she said abusive so abusive could mean any forms of abuse and in fact she's bringing her daughter into it now to the daughter you know has a different set of circumstances going on what i'm saying is that didn't characterize those circumstances as abusive no it is what i'm saying is that domestic violence is different than  characterizing a group just based on abusive it could be abusive to a non domestic person to look at it in the context of this case and the testimony in this case but your honor he would say that in this case there was not abusive behavior between the husband and the daughter there was abusive behavior the question is whether that was on account of a protected ground and the abuse describes the harm which makes it that's part of what makes things circular it's not the basis for denying a petition for review here but you see sort of the problem with that because it describes the harm here's what happened to me so i deserve you know protection and asylum it's just describing your own circumstances and it's reversing the cause and effect what caused the harm what was and  so the social group has to exist before the harm so that's the problem with using her own domestic violence circumstances is that that her group is based on her fleeing and it predates that so how could it be on account of her fleeing if she hadn't fled so this is the problem i have to live up to plea in order to make an asylum claim yes but their group if it's based on fleeing if that's how they articulate the group and she's had counsel throughout  actually counsel had two chances to raise any number of groups before the immigration judge this case was actually reminded previously specifically because the board said you're focusing too much on a or c g here let's look at the group that she evaluate the criteria for the group that she was raising and this court is true assuming the testimony is true exactly and so this is a fact based inquiry you can raise any number of particular social groups before the immigration judge there's no limit this was the group that she chose to raise so what is your take on the petitioners argument that we can sort of restyle the group at this point our position is that you cannot our position is that it must be raised this court recognized and of recently that the board ha decision w y c which specifically talks about delineating a group before the agency so that the court has a proper record upon which to base a decision it is entirely fact based so every time you articulate a group all the facts surrounding that have to be developed in the record in terms of the country conditions and societal distinction and so you cannot change a group for the st time an appeal as this court recognized and even the board can reject a group that is mutated that wasn't raised before the i j a that's not what happened here but what i'm saying is how important the factual inquiry is is that it has to be developed on a factual record before the i j a now in this case the group was the one that she articulated and that's what was decided and you the court should not lop off or provide surgery to this particular social group and now evaluate just women or just domestic violence that's not what was raised again she's had coun throughout and to check says before the immigration judge to raise as many groups as she would like to race i see my time is running out and i just want to add that there is an alternative no well founded fear conclusion here and so remained would actually be futile because the board meeting alternative finding that because her abuser has not been heard of for years and went into hiding that she does not have a well founded fear of persecution and remained would be futile in this case anyway i see that my time is up and i'm happy to answer any additional thank you your honor sir with all due respect i just want to correct the government attorney who said that the harm occurred only before she left the st time actually when she went back to rescue her child the husband threatened her life again by showing her revolver and saying that this is for you and also saying that he intended to kill him or her the daughter and himself and then the balance something yes if we were to remain and this is your would you redefine is that what you want to do is redefine the social group well i would add the matter of a b as you're familiar with is the case that said that you honduras and women who have fled an abusive relationship and who have fear for their lives and for the lives of their female children so is it your position that the rule about the court not being