rahn incurred in two thousand and one that conviction was for california penal code section one thirty six point one and it address conduct was towards witnesses and victims of crimes the judge in the v first you have to establish what the elements of the state statute were and then compare those elements to the common notion of a cia in federal law federal law doesn't or federal immigration law doesn't define c basically they have been acknowledged to look at the intent of the mind and that intent has to be evil has to be vicious it has to involve a corrupt mind and intent to harm so it's reserved for what is considered base vile and dupr of conduct what the b i a and the judge erred in doing was they rolled their inquiry almost into one step rather than two steps they looked at the california statute which coincidentally included the word malice senate the common notion of cia does state that it looks at whether malice was involved but the problem here is that california specifically defines malice whereas the federal definition or there is no federal definition but there is no such definition of malice in federal immigration law when i was preparing for the oral argument i did come across a case of matter life wicked deprived and malignant heart inflict intention to inflict great bodily harm so that is the level of malice that the federal notion considers when we're talking about c i and t here the judge in the b i i stopped at the word malice in the california statute and that was inappropriate the california statute and there has been case law the discusses the need to look into the statutory scheme and most recently that was rivero versus lynch and judge verizon was on that panel we need to look at the entire statute to determine what the elements of that crime were so section one thirty six defines you the as california statute is overly broad what should we do in this case first we have to determine determine what the elements of the crime were and it's contended that that is an element of the crime because malice is specific and i appreciate that but could you get to my question please oh sure that's so because the b i did not specifically consider the elements of these crimes this court can say that malice is an element of the crime and then agree with you that this that the comparison is such that the california structure is overly broad because of the state statutory definition of malice that we should remain because the b i get to take a first crack at doing this modify categorical approach for determining whether it's doable right is that right yes ok thank you so having determined with the court the cia and she issue and we managed to go back for the issue of cancellation of removal i can also address the asylum issues of the court which is me to do that or is that where you can turn to that can i just i just want to verify that under the cancellation you know the fourth prong having to do with whether the removal would result in an exceptionally and extremely unusual hardship turpitude the definition includes the understanding that it's something that shocks the public's conscious that this is the general definition of we're going to look at the bickley our problem is the california definition of malice yes it's much broader isn't  it i would say that the definition of malice goes directly to the intent and the knowing and malicious intent in attempting to dissuade an individual or prevent into an individual from test but don't we look at specifically at how california it in conjunction with the specific intent of knowingly and for no good reason essentially they're being annoying or vexing someone and attempting to prevent them from testifying and kind of interfering with the ministry but we're talking about the definition i would say that this is a tough case but but i would also indicate that i would responded saying that that intent is still focused on ultimately interfering with justice and that's that taken together yes under that under that definition and that definition also continues to say it's something that's contrary to society into general duties zero to one another and that involves the influence influencing someone in for and having a negative effect or possibly a negative effect on the administration of justice and that would be the government's position in terms of why this would be fall under the evil intent of the the corrupt mind to be willing to specifically intending to influence a digital proceeding so we are trying to ask a question earlier no it was your question was the same question ok but i don't think that any further questions counsel as to regarding to the asylum aspect of this claim i would just rest on our briefs all right thank you thank you for your time sure anything for that you want to counsel i would just like to simply point out to the road to the extent it may be relevant to this court's determination there are some case laws that they do discuss similar offenses i referenced the rivera case and that was perjury and that was determined not to be a c i m t even though there was a specific intent to commit the perjury and furthermore the valens way like a switch judge christianson you were on that case and that was id theft and that was also determined not to be empty thank you thank you the next case on the calendar is climber versus elder