welcome you here today so let's remind you of a few traffic signal or signals that we have one of them is when the yellow light comes on you have two minutes left in your argument when the red light comes on we ask you conclude as quickly as possible unless you are answering a question from the court we have read the briefs and record excerpts we are not necessarily familiar with the entire record so we appreciate record citations can you hear me ok i did look particularly attentive so we appreciate the record citations and with that will call the first case number eighteen six  represent the petitioners in this case along with my co counsel from the university of houston immigration and the harvard immigration and refugee clinic this is a case where the petitioners articulated one particular social group to the immigration judge during the closing argument and then articulated a semantically similar so the board of ration appeals which the board refused to review we are asking the court to do two things in this case first we are asking the court to apply a traditional pleading standard to asylum cases based on membership in a particular social group instead of the exceedingly strict exactly standard second we are asking the court to require the board to make a legal determination about whether the refined a social  yes absolutely honor because the board never reach those issues about whether she had experience pastors or whether she has a well founded fear neither of those issues are before this court the only issues in before the court now are these legal procedural issues about the standard the pleading standard for social group and whether one can refine the social group on appeal based on the same evidentiary well we don't even reach the legal issues it seems to me unless there is some evidence and th particular social group and if you say it needs to be remanded for more facts that implies that it's not a substantially similar particular social group actually got it we're not saying it needs to be remanded we believe that the board can decide this issues based on past persecution well founded fear if the if this court were to find that the board can review the social group the legal issue of the social group then the board if it wanted to go further than that it could address those other issues but those other issues are now before the court because they were never even addressed by well i will not be i will not be quarrelsome and and interfere with the rest of your remarks but i must say that you there must be something in the record that enables you to answer judge davis question which is what persecution but just fearing harm from family or from gang says i mean that's not different from the fear that individuals have been certain parts of houston  understand that you're that the court may have questions about whether she will ultimately succeed in her silent case if this case were remanded but that's really just not the legal issue before the court at this point in time because the board never  though the only basis for the board's decision was it's finding that it could not review the new social group which we believe is a legal determination in fact it's and it's not just our belief it's it's the precedents universally say that whether a social group is cognisable is a legal question review de novo so there's there's no factual issue here that we're saying the board should address those subsidiary elements of a social group that the government points out are indeed factual determinations but the reason that they're not necessary here is there is cases saying that and i didn't even need to make those subsidiary factual determinations for the board to decide if a group is cognizable and in our specific case an example of that please so there are cases where i just never address immutability particularly are to me a case of that supposed if it were a jew from russia thirty or forty years ago i would certainly understand that where everybody realizes and jews in russia were persecuted give me a more recent case where you say no subsidy because we're weird we're handling a fair amount of immigration cases and i don't social groups and there are cases where judges will find that again a group is or isn't cognisable without actually going through in addressing in fact our case is one such example the judge in our case never addressed immutability never said whether or not peculiar one because this woman was assaulted by her birth father fifteen maybe twenty years ago at this point and she never saw him again important new rules that the b i announced in this published decision which is applied across the board now and has resulted in gratian judges summarily denying applications based on social group within the first three days issuing orders that i think you know to be i had made made an alternative finding that even with the new social group assuming this new social group were allowed we would still deny this case because there is no well founded fear right or no past persecution that would be a different scenario in our case the b i never said that it didn't address those other elements of asylum at all if all it says was was we're not going to address the new social group so there's no social group well of course what we're looking at here is to me a b i two with practicing the article three courts and the article three courts if you clean one cause of action and fact we had a case like this yesterday you play one claim in the trial court and litigate that to judgment you can't come up with in the appeals court and switch say well the fact actually sued this other claim so i think the police can't do that so why is that not acceptable for the for the b i procedures so there's two points one isn't hanya which is a good precedent the court actually did allow revision of the social group they said they were not significantly different and in the same way are it in a case like edouard another published a circuit case that the individual had never even raised his claim under the convention against torture and didn't mention the words convention against torture didn't check the box on the application indicating he was applying for that relief and the court found that he adequately raised it well a lot of judges will occasionally rule on things that appear that are essentially waived just to demonstrate to the applicant that they would have lost anyway right and  happens but but you're trying to transform that room of discretion and generosity into a mandatory rule it seems to me that means that there is no limit on what the activists that's very different but here we have two very similar social groups yes there's a mentally different but all the attorney really did was cut out the part of the social group that included persecution within the definition of the group and moved new rules of law and so what we're asking this court to do is not allow such a rigid rule that the board use this case to announce right the very rigid pleadings tentative exactly ation does not appear in any other area of that the board has kept a lot of what i'm saying is can any into this lady with this background come since she has two definitions of social group the next lady comes in with exactly the  same characteristics would she use this social group or can she make her make up her own third social group and make up her own and for whatever then then what is there in the definition of persecution about particular eddie and social visibility how many socially visible groups can one be a member of there's no there's no specific finite limit although basically what you're saying it's suggesting it seems to me is that these criteria are almost subjective in nature the criteria have been challenged over and over because they are so vague so there's a circuit split still on the they're not necessary that's what i'm saying that they're not vague if you if for women coming from honduras you can point to something such as let's say jews in germany people who have tattoos on their arms are presumptively going to be victims of persecution that is a particular area and visibility at it at a there are facts but transcend the individual right and similarly here there are facts that transcend the individual we're talking about gender family status and age both groups have those character missile there are thousands and thousands and thousands of people that have a certain gender family status and the size of a group has never been a limit there's thousands and thousands of jews there's thousands and thousands of christians yet religion is a is you can't change your age when you're at that age it needs social distinction because hundred and society treats women differently than men the failure to offer them protection the lack of shelters the other evidence that women in honduras are treated differently because of family violence because evidence here is i mean fortunately she was not actually physically assaulted by this man but she never went to the police and never told anybody so where's the basis for an assertion that there's proof in the records it's in her testimony it's just all we had no country conditions were submitted by the attorneys in this case unfortunately so it's only her testimony but all of th issues all of these questions that we're talking about have really are not the basis on which this decision was made and are not the issues on appeal before this court whether or not you think she has a social group whether or not you think she should obtain asylum whether the other  i think because it's a legal issue before the court i understand it's not a satisfactory answer and it would be better to issue a ruling case with strong oh my god or it would be better if you decide a case that tells us we ought to do that and i think hung out and do that is that case  please the court and susan green for the government honors the rule that you can't raise a new claim for the first time an appeal is not a new rule that's a venerable rule and as you pointed out earlier your honor i'm it applies in article three courts as well as in the agency but in the agency it has been applied for a very long time now and this court has approved it and upheld it for a very long time and there her appeal to the blur because they haven't exhausted those claims right yes ma'am in being we yeah and the this is this her attorney argued to the board of immigration appeals that he could change the particular social group at will and he had freely admitted that the first particular social group they raised way as defective for a number of reasons and i think that's that on the record in seventy seven seventy eight he he freely admitted that he didn't he wasn't able to win on that first group that they raised and that's why he switched to a second group and he said that the board had no law that prevented him from doing that well the board took that up and asked them to brief that it got briefing on it because this is a very important point for the board because if you can't raise a particular social group to the immigration judge and lose on it and then on appeal the appeal is nothing about what happened in front of the immigration judge it's a whole new group that raises factual issues and write in the board actually use some language about that sense of stance really different i mean they're not trying to be this is not about minutia this is about important factual or important differences in the group and in this case certainly illustrates that because there were very significant difference and her first group that she raised before the immigration judge was and single under and women ages fourteen through thirty that have been sexually abused within their family and couldn't turn to the government and the immigration judge specifically asked the attorney are you satisfied with that group to think about it and she tweaked it in response to his comments that she ultimately went with that group as was her parag going to have to do i mean does if there's one thing that's clear is that the easiest way for immigration judge to get in trouble is to ignore the particular social group that the applicant is trying to raise that is this wasn't sand bagging some poor an unrepresented person she had counsel she did have counsel yes your honor if i'm yes and the i j a made every effort to give give them an opportunity to define a group i think that this is a case where professor's briefs it's not a new rule it's not some kind of dangerous or edgy rule it's an old rule and it's common sense and it's common sense because they were and the immigration court are a two tier system and it's commonly recognized that the most efficient adjudicatory system to work is to have the lower tier try the facts and try all of them and the upper tier do review only of things that have been tried but whoa now the question is and has said that there are subsidiary questions and in fact they did professor say that in their brief that i spilled a lot of it on this question that i think it was worth that because if you look at page nine of their reply brief they alternately concede that there are some city or factual questions and the reason why that is important is because the applicant has the burden of proof so those subsidiary factual questions are things that they have to win on they have to prove and w so was any effort made because i'm not sure i remember it to explain the nexus between the group and the alleged persecution the redefined group in this case the redefined group yeah under an women who cannot sever family ties and i don't i'm sorry that i can't bring up i don't recall anything that was a nexus between because if it was family ties it was what happened to her when she was fifteen and it didn't have anything to do with gains you know trying to extort or fruit stand or whatever right and right in the end nexus it not only is particular social group involve some factual determinations but as you point out also nexus and also the question of membership in the group and the board referred to does as being two other factual questions and i would say that in this situation it looks to me like the bigger factual question in her her second group the group she wanted to raise to the board was whether she is even a member of a group of people that are unable to sever their family ties because the testimony was what is severing what is suffering family i mean that i guess is the big question that you grow up and you leave home and does mean you you know you get a degree of divorce from your family what is it i mean is that that is not explained but i would say that one thing i mean severing family ties in this case she walked out in two thousand and one when her father did this improper thing she walked out and never saw the man again and her testimony in the record is that and she was asked do you have a relationship with this man and she said no was fifteen i am nuts with somebody because she has a kid yes she lived for several years with the father of her child and i don't know that maybe in the record i'm sorry camp or not but anyway she said she was asked if she could go back and live is this particular group different than the one that she raised to the board different than the when that she rose to the immigration judge i think that not only did her lawyer say it was different but i think the evidence is that  the formulation said that there were very different leads and as i said the first one included and these problems like the that it was circular that it was defined by the persecution and that was something that was key to the immigration decision he said you know if this group with people who are sexually abused within the family that is not why the father and victimized her because it'd she wasn't a member of the group until the father victimized her so the fact that she brought these groups and the immigration judge addressed them correctly and then it turned out that you know she brought up a different group or those things weren't relevant just shows that this could become a feedback loop that you if you could truly change your particular such a group on appeal and require remey and for more fact finding these cases would never get over with and that just can't be the way that it works that that's i mean they picked out the exact delineation language from an earlier board of immigration appeals decision that matter of a t decision where they had used that and they did use that language and i would point out that this court has actually quoted that language it's very hard to say what those things mean in the abstract i think what the board was trying to tell people was everything that's material that's important you need to get in your group and you need in there were simply there were pointing out to th the litigants that you need to include the things that are material that were going to happen to be examined or by the immigration judge i don't think that it was saying that you know it's a difference you know if there's a difference and spelling or something that's you know two ways of saying the same concept that that's going to prevent you friend and from proceeding on your appeal but if it was something that was really that minor this wouldn't be a big point you could just know what i said in the immigration court you wouldn't we wouldn't even be fighting about this and it in i am there was a question asked earlier about particular social group some why there are so many of them really if you look at why at the  how the board has interpreted particular such a group that they're talking about groups that are recognized by the people in society if you look at their their leading case matter of any v g and they talk about what these groups mean they say it's socially so again that there are factions they say that generally people that are in such a group are going to know they're in a group so it's not like it's and same word game it's supposed to be something that even pros say applicants even people that are not educated are going to know if they're in a group that's really an important group in their society and if the if the group that's likely to get them mistreated persecuted so i think that a lot of this is the this does persecution require government persecution persecution the word has been interpreted by the word and and the courts before it to include the concept of some governmental role which is usually distant and described as that the government is either unwilling to control that either the government is behind the persecution or if it's by a private actor that the government is either unwilling or an able to control the private persecutor or to protect the applicant so yes it is it isn't so with the term network i mean in just definite definitional terms you know honduran women who cannot sever family ties what does the government have to do with a bit well i mean they did that and it did the fact that they they the government a role does something to do with gangs or council said that and are there cases that are saying that the central american countries for instance either assist the gangs or do not do anything to control the gangs are the cases that have granted persecution on that basis i'm having her lots and lots of the slim cases out in the country and i don't want to say that are not why it exists now doesn't that sort of thing but there certainly are lots of cases that say that the governments and central america are doing their best to control the gangs and that there you have you know th they certainly do not the do not permit it to happen willingly or you know then there's certainly they're trying to fight it they have been in serious problems to deal with but they're doing their best and so that is an the board pretty much conceded that the thing that they litigated before the immigration judge wasn't a basis for a claim and the board has an interest in not having to send things back constantly this it can't be this you know revolving mean when you also say that there's i mean i think in your briefing you said there is a problem because if the b i had undertaken to look at the facts and say that even under the new lady fine social group she would lose then it would be vulnerable on review right behind her and that with the and the two thousand and two standard of review regulation that the board operates under now the board can't work and so when they do that they wind up getting reversed or often when they don't think that they're making findings of fact often they think they're just reviewing that the courts  decide that well they actually making finding a fact and get sent back so we have to start all over again so yes that is a very important point that if the board's continues to operate under this regulation which you know it has to and it can't get in the business of finding facts because then they're going to wind up being reversed and this whole thing you know starts all over again in fact and have to remind well i mean if if there's a regulation says if the case can't be decided when deciding facts that are in dispute they do have to remain but in this case the board was making a point to say that's not the case here that there there is no reason to remain here because they have abandoned their first particular social group and the second particular social group is not preserved so the case can be over with and and i think that they were trying to make the point that i s this is a housekeeping decision and i think it's actually an important one and to put people on notice that if you think things are important for your group you need to articulate it and the immigration court and not think that you can change later people should have already known that and that they they just as i said i started out saying this is not in their rule people should know at bat and apparently needed to be reemphasized and now i think that i may have been i'm already talked about everything that i thought davis was concerned about whether we be at their inner elation of the fact to the questions raised on appeal here and do you think it's appropriate for us to say anything about the facts in order to decide this case i mean the fact that they're the facts don't seem to show a danger  i mean if we had gone under the old stand if we had gone and her first definition well under either one it doesn't seem likely that she would have prevailed but it mediates it's a whether there you know i think that it is also true that very question that was before the board of the board decided this is an important one and you know i think we should win on that as well if we weren't to win on that and then you you might well decide that there was simply no evidence that she had a well founded fear because as you said she she walked out in two thousand and one and she never saw the father again so and she's much older now and there's you bet but i mean again that that goes to the question of whether there is any evidence at all and no it doesn't that isn't how i had thought of this case but i see it's possible well i do i'm ok relationship the attorney in this case defined his country or social group in accordance with that precedent which was a precedent at the time after w y c was issued the attorney general vacated matter of a or c g and issued his decision in matter of a p a b and in that case interestingly the attorney general himself who formulated the social group you know it went from el salvador and that has nothing to do with what does the that have to do with this case this is not a married woman this is not current domestic what i mean what are you trying to get at what i'm trying to say is her definition of hundred women and girls who are unable to sever family ties has the same characteristics of made is that we have always held that an issue not raised before the i j it's way except we have all of these circuit court he's considering cases where the social groups were not as i said judges in this court well i mean but we have always held i mean that is your rule in fact the case that you cite in the third circuit cases it says the same thing when when you don't when you fail to raise something in the administrative properly in the in ministry to proceeding she waived it and why isn't the definition of p s g a subset of that general rule so the question is not did she raise it because  female has of households like completely different groups here we have these key characteristics but i do want to turn to that our last argument on retroactivity as well your honor so even if this court finds that these will should be upheld there's the question of whether they should be retroactively apply to our client who was functioning at a time when it was standard practice to refine and formulate social groups you know the end of this recent former immigration judges and board members acknowledging that that was their practice that has always been the practice and we have cited those some to be i say in this opinion that they're not trying to constrain the discretion up by jayson to assess the petitioners they do this isn't about that but what we're saying is because they're trying to help them along and i presume they're not going to lead them down the garden path into precisely the wrong definition well we actually have cases interesting leigh where the court said that the i g did lead them down the wrong path but i think it's important that the congress has expressed its intent in the statute for i j is to play an active role in developing the record so it's more of a collaborative relationship between the immigration judges at least it should be and and the applicant in figuring out what the social group should be and keep in mind this is case i did attempt to give her several opportunities but that's not always the case in any case is in terms of retroactively applying this case if you apply those factors and mcdonald the watch this is a case where we see a departure from president thank you all right thank you