right united states court of appeals for the th circuit is now in session your patience and helping us out with this remote argument we can proceed to the argument just i'll just however rise with sparser to please no done over your time so you should try to complete your argument within ten minutes if you can and if you want to reserve to have for a bottle should stop before it's all  also of course you should we should take whatever time you want to respond to every question from the  cases have no textual support for the proposition that you cannot house are included in the definitions in fact those cases say that the particular social group cannot be exclusively defined it can element of the definitions so for example rape victims so this would be a particular social group that i think might not be co case law that harm cannot be included i fully appreciate it can't be exclusively defined because by harm because that makes the that's the circularity problem that makes would make this a catch all but where have they ever said that harm cannot be included yeah i mean not our position would be that it hasn't said that it can't be defined solely by that but it has never said that it can't be included ok so vince and i can go back to judge russell question if i could because he's he's pointing out the word independent really is as opposed to exclusively is used in a b so is it your position that a b announces a new rule or that a b tell us to look at the existing case law well i think that it is announcing a new rule is the rule saying that you can never have a particular social group that has any element of harm and if the matter of a b is really going back to  and c a and w g are then those cases say you just can't have a particular social group soley defined by the harm that's right wouldn't wouldn't maybe have to come out the other way wouldn't the recommendation maybe have been the  opposite i'm not sure i understand the question let me try a different way i think in a b you had the social group that was partially defined by the arm but it was also defined by other characteristics petitioner such as are gender or their nationality and so it would seem that on your logic a b should have come out exactly the opposite well i mean if they're the rules that they the the end result should have then the same rules that we've had before which is that it just can't be defined by the harms but that isn't what i guess the the board is is interpreted this rule or the integration c to be sure express it overruled it really reminded eighty five the existing case law do you think i have that wrong i mean i think that that matter the r t g was correctly decided rather than doing a cursory  that is required of every case so even if this court does not want to make a finding of whether the particular social group is cognized will or is my interpretation or not of eighty's interpretation of  circularity would rule is correct about this court should remain and anyway because the board of immigration appeals certainly did not do a analysis of the facts as want this case they just said this of course says that there are some claims that can be salish if it would be involving them i said last involving harm so they left the door open and it didn't even do that analysis even saying  what would that look like well the board of immigration appeals that in the one sentence basically just said this particular social group looks like this particular social group looks like that of a r c g and therefore it's dismiss the case based on the particular social group that i think the problem here is that the b i did not do any type of analysis they just automatically rejected the the case because the particular social out and we asked for we not to be able to really articulate another particular social group and they did not do that so so i understand the three men that's required is that the attorney general  go over a little bit however after the government makes its argument we'll give you an extra three minutes for a problem think of the government  wants three minutes extra time for their argument will give that to them too so we think recess process and now i think we blame anywhere so does that mean you think that forgive me for interrupting but this is an important point do you think a b announced a new rule no your honor i believe that the attorney general violated the law by analyzing  and now you're going to g r and that is that the particular social group has to exist independently of the persecution it is you and independently are really looking at the dictionary to mean separate statute if you're doing that if you're doing that counsel it seems to me you're definitely reading a b to announce a new rule and then we have to worry about the a p a so how to because it because they'd be a has not said that in the past quite the contrary and even you focus on this same thing but not quite right so i think that the case law does a very expressive that you see whether you look at the common characteristic and you have to apply the three part test on remand that was the question judge press was asking about a minute ago but it ought not be a poison pill  return to their home countries women who flouted social norms and therefore face honor killings the courts in those cases have defined the group differently and they look at that three part test you are right they look to see whether that a group is socially distin relevant community whether the group is sufficiently specifically defined was with sufficient particularities and they may have problems the larger groups for sure on of at me come to nexus which is a whole different layer but i'm i'm really sweeping a little too broadly there help what you said a minute ago i think it's quite helpful when i listed the examples and used that while there are other there are certainly cases where that where those individuals had other traits or characteristics that are common i think that's exactly right which is why i'm saying i think that we have to define it with exclusive of the arm step apartment side look at the comic characteristic and apply the test is that what you mean yes and i just i think that i'm not sure i'm following you bet you're saying that the group has to be defined independently of the harm that's absolutely true the question as it has the role i don't have the fact that they may have suffered persecution and the board has made it just has to make findings of fact about social distinction about particularly about whether there's a nexus and so that needs to be the group that you need to be talking about the same group that they are gratian jones was talking about because otherwise all those findings go for not the case would have to be remanded we would have this perpetual bluefish and machine i were not think something different on this point ok ok so i just tried i would just remind you of if you have any more questions about i will answer that's ok it's like you  the jurisdiction to order a stay in the case and neither of those give the court jurisdiction to order the release of the alien through or the non citizen through the petition for review process do you know whether the do you know whether the government is going to be filing any requests in that in that case to stay the order otherwise i can't answer that question right now it's still being explored whether the government will because it just happened last night so that we have not had currently pending in the district in havana and so we would argue that there are two avenues that she can take she can either file in other motion where and you bond hearing based on changed circumstances that she believes that the current situation is a change circumstance situation or seeking a decision in that court so for those reasons the government believes that outer court should not order this one has released at this time i and that but if the court wishes to consider whether it can or can't or whether it should the government requests the opportunity to gr twenty eight table so how well review it subsequently and what we have access to it in our system but i do have it today but i don't know if the other  before argument but what will do is if we have questions that require supplemental briefing on that we'll send an order for th to just kind of confirm with you in the i don't know how to pronounce it either so i thought guys this is a case that we're discussing see why did the government have but was there in order to show cause or anything else that you had yes this is correct and that's completely incorrect government judge christians and cited two cases that the board has issued where the harm is part of a particular social group which means that the still has recognized that you can have a particular social group that includes a hard it just can't be the only defines a factor it has to be something else there so in this particular case where we have el salvador and women spouse unable to leave which again we're not saying that that is per se harmed a candy bar but it can also not be harm it can just be part of the her social status as being involved in the relationship and and all the social constraints and  that make her stay in a relationship but if the government is saying that the particular social can can never include the harm this is this is completely wrong and the support that they've cited says matter believe that none of the cases out there support their position that harm can never be included in the definition i think that i think we can all agree that it just can't be the only defining characteristic is almost in every case there is going to be some other characteristic that the person inevitably has whether it is their nationality or their gender or some other feature and so i actually kind of hard to think of a group that would i don't i don't think that it's in any characteristic right we stuck to go back to those three elements which we do need to belittle particularly and social distinctions so i don't think that that would defeat the social group if you allowed it and i think that the reason that they're saying this is because at the end of the day the government of this case is the particular social group is really l salvadoran women and they obviously have a problem with this case because on this case there is not a record that was the argument that was made with her nd unable to leave was based on the domestic violence there is not another argument made about say for example a social customs or some other feature disconnected to the harm that would have created that inability to leave so even if you have the right in theory it would seem that i don't see how that would work in this particular case understanding of what ability we need and then they're going to have i don't think i can agree with that because i think in this case with the argument was was that you know going to to leave was based on domestic violence and so that's what the b i focused on which is the argument being letter yet so if we need something on that will issue a supplemental