conviction for attempted aggravated assault and petty larceny were categorically crimes involving moral turpitude if this court holds that either of those convictions is not a crime involving moral turpitude then the case should be remanded to the pre aggravated felony narcotics offense was not an aggravated felony then he would be eligible for to twelve h relief which the b i d not consider because he had aggravated felony so there's kind of two different paths of the bar on the table yes all of them are on the table but if your honour's were to find that one of the two post ira crimes was not a crime involv found it was an aggravated felony if it is not an aggravated felony he would mr garcia would be eligible for waiver of removal under two twelve h not withstanding to the two crimes of yesterday they actually looked at the crime was committed as opposed to the statute which is they're confined to do so you like yes sure and that's that's one of the things that you would like like us to do yes or no is to to analyze this that way and i take it that you and you've made arguments and in all of these cases that there are ways in which these crimes can be committed that would not be crimes of moral turpitude material and that's what's required garcia was convicted he was convicted under statute that does not require a controlled substance at that that particular one is raises the issue of whether it could be subject to a modified categorical approach think your position is that that would be incorrect that's exactly right your honor and the reason for that is because the statute he was convicted of is criminal sale in the fifth degree and all that statute says is that somebody is guilty of criminal sale  when they knowingly and unlawfully sell a controlled substance that's it then that would refer to the statute that defines what a controlled substances other new york statutes like criminal sale of a controlled substance in the third degree break it out so that you are convicted of that if you sell so much of certain drugs so if you sell a five hundred grams of cocaine for example that would be one this statute the one he was convicted of just this controlled substance there is no requirement under new york law that the people prove which controlled substance is just that it was a controlled substance so our argument is that it is not divisible so it's not visible because it deals with the means rather yes your honor that's exactly right anything federal schedule which would make them make it not an aggravated felony to sell those if i might your honour's i do want to just take a moment to talk about the petty larceny conviction as your honour's undoubtedly saw with the twentieth letters that both sides admitted one of those cases specifically found that the statute mr garcia was convicted of new york penal law one fifty five point two five is a crumbling moral turpitude we request in our twenty eight j letter the opportunity to brief that issue to have supplemental briefing on that issue and i think it's important because the board of immigration appeals in those two opinions departed from seventy years worth of precedent that set a distinction between different kinds of thefts different kinds of larcenies some were crimes evolving moral turpitude some weren't the parties brief that issue under the seventy year precedent and then all of a sudden two weeks ago the b i changed its mind and argument is that  should have the opportunity to challenge the is whether this court you give the b i def rents under chevron for the first the interpretation of whether it is a crime involving moral turpitude but more than that we would ask for the opportunity to explain to the court  regarding for example the attempted assault in the third degree i'm conviction first of all they looked at documents that were improper under shepherd you make the point that that can apply because you actually have to have an injury physical injury  substance offender and a third as an alien you committed two or more crimes involving moral turpitude you're basing four separate convictions under new york law and as we go through them of the many these challenges are not exhausted and otherwise they lack merit but politically also like to know schedules on have different the new york schedule has additional drugs on it that the federal schedule doesn't have wrecked so we start with the first part of the statute which is the actual drug trafficking actus reus that's not challenged he concedes that elements inspect to see whether it's divisible means for committing a crime committing a single element and here it's trafficking in a controlled substance is that the element and not without regard to  prosecutions an element of the offense is the specific controlled substance involved so it's interesting that ticket or substance apparently doesn't have to be charged to the jury it's just controlled substance and then the government can satisfy that like people can satisfy that by proving a control why is that different from a statute that makes it a crime to commit a murder and then specifies that the murder may be by a b c you know hanging by stabbing shooting strangling i think it's different because what we do have that broad stroke just language in the statute which says any controlled substance substance schedule and each one of these convictions there will always be the specific drug no matter what fell out maybe in the indictment or do the have to ask the question and and you know a  world therefore does that make it make it visible i mean normally the divisible statutes are numbered sections right that you know robbery can be there for different sections of your robbery and first that charge so for example if there was a charge of fit to greed distribution for sale of heroin or cocaine that is not a valid count under new york law they have to allege only heroin or only cocaine in separate charges and that that's the mathis test for divisibility which what a jury needs you know actually convict there be no disagreement over the drug involved in that case because it can only be one drug per charge they would have to sustain that charge by finding her and was the drug that's treated aftermaths and which basically says you look at the statute you don't look at the actual crime i mean the crime the crime is whatever one thinks of this room i mean you know that you look at the statute and you can only just and you can use these other things to determine how the statute is divisible but then once you when you reach the question when you want you find you do this to go and you settle on a saying you actually have to determine whether or not the race in which that crime could be committed under state law that do not affect the federal the federal question well if you want to start for example the assault certain in certain circumstances and then then the crime could be committed and the you could be convicted under state law but you wouldn't be guilty under the family friends and therefore it would not satisfy the test and so i'm not sure he's pronouncement by the b s a sometime in the past is necessarily conclusive i think went maps alone for example when it looked at this assault statute on this need for a physical injury and that's removes it somehow from the definition of his attempt to do that physical injury removes it from the definition of moral turpitude but this court stated about moral turpitude the most important part of that analysis is evil reprehensible in this case is that intent to do harm to in cause a substantial physical injury that's beyond the minimum is beyond offensive touching and that's what's important and so attempt to do that same crime is no less morally reprehensible than doing the crime itself is still the same mindset for a jury murder example it's shooting a bullet someone to kill them and missing them as the same intent is no less morally reprehensible and actually killing that person and that's what the board's now just to start with the attempted aggravated assault in the third in the salone opinion the two different things that i think are telling the first thing is and this is a quote in previous cases we held that neither the offender state of mind nor the resulting level of harm alone is determine of of moral turpitude i also said quote the reasoning from these decisions these are the decisions addressing salt under as a crime involving moral turpitude the reasoning from these decisions reflects that at least in the context of assault crimes a finding of moral turpitude involves an assessment of both the state of mind and the level of harm required to complete the offense so the be h is recognizing that there's two things that make assault a crime valving moral turpitude there's an intent to do something really bad and then there's the doing of that thing and this court a panel of this court in the unpublished  basically gave indorse that view and said well in this case because there was this evil intent and because the harm was completed we agree that  aggravated assault in the third is a crime involving moral turpitude but in this particular case mr garcia did not cause any harm he attempted to do it so that would be like looking at assault as it was a common law as distinct from battery assault a common law required no actual injury only the intent it was battery that required the actual touching and that's the way the seems to have treated this statute as far as the drug  would refer this court to the decision which was two terms ago i believe from the supreme court that's the one where kansas did not identify did not require the identification of any particular controlled substance and u nder the categorical approach the supreme court agreed and said that because it's not listed in the statute there's no requirement that it be an element of the offense thank