the the chevron deference issue this also affects how they come up with a have they permissibly have they come up in a permissible way with what should be a generic definition for perjury and of course the rd thing is even if this court were to find that they owed deference that it's a permissible construction then three we have a statute in california that still doesn't match what they articulated here to same way i mean let's say hypothetically that this court were not to give full chevron deference to all over all of it hypothetically i haven't heard by arguments beyond the brief and that but if this court were to say look we don't have to give full chevron deference to overrun and this court we're looking at what would we do in this case or what would we instruct the board do to this case or would we just grab this away from the board in the st place i think it's very important to bear in mind that this case the mission that the board just came up with is not only going to affect people in immigration proceedings this is this definition that the jury came up with that i thought that went to prison usually lied in a murder case or something like that i was i was a little it was a little bit different than what the perjuries i've usually seen i was just curious and and you know your honor taking it off script just a  nd but it's the think that bothers me the most about what the board has done here and i'm getting into a little bit of policy level but you know if you look at this from a perspective of you know and authorized are not the same i guess the opposing counsel said this is a state court case that said they are for purposes of state law but more important for our purposes is there a because the state of california the legislature of the state of california knows the difference between authorizing and permitting because they don't have to what does it make in a perjury context because the california perjury statutes nose or a certification or certification from and by law the b a s as where it's authorized are required by law so so i need to understand in the perjury context what is the difference between it  unless i've been given an authority or required to exercise in the context in which i'm exercising so this is why be asking somebody to to make it just to let you know we had the courtroom deputy stop the timer judge this for perjury because they where they made an oath or they may as certification before a random individual who was not authorized or has it never has or never range of things right all the way up to i stood in court and i told a lie nobody's going to deny that that's perjury all the way down to say i told  deference because there isn't any case i'm playing well this is almost a case on point and this is i filled out of the application in front of the d m v i didn't necessarily i wasn't standing there i wasn't taking an oath in front of anybody having taken your blood alcohol if requested by police officer i mean all over the place it's it's it's not a right it's a privilege and you know that's a very you know i mean people have a driver's license that's something that we shouldn't be asking to be but that's specifically why we asked the b i a come up with a definition that has some certainty that has some consistency that has some parity among the states don't make us do this we're job was to give us a workable definition so the one thing that everybody agrees on that it just is with one exception is that there has to be i'm sorry with seven or eight exceptions that there has to be there's there's one more line in that definition were it's required or authorized by law that's what's completely absent from california statute you know if it if people the truth fall under penalty of perjury is not an offer arise legal document that that that you can just say whatever you want on that form without consequences well i think in order in order to use that i'm sorry i'm not sure i'm following your argument because there are a lot of state agencies that license people they have people thought forms they have to be truthful to get some license prevalence to be able to drive to be able to perform some kind of occupation and they're not put under oath they fell out the form letters penalty of perjury those organizations and agencies are authorized to do it that way so how is that what 's wrong with that i'm i think i have a disconnect with why you're saying there this is not clear your question is with this presumption sitting in the middle of it these agencies are authorized to do that or they permitted is there a specific authorization in the law that says this is agency can put that perjury language in such that somebody would go to state prison for doing it it's not just nothing says we can't that's permission where does the law say you can't in california it's irrelevant where does the law say you're authorized you're required to do this in california that's an irrelevance it doesn't matter if the law doesn't say i can as an agency right then penalty of perjury attaches even if the state legislature didn't specifically give an authorization or didn't further began andras argument i think i think i'm not why i don't know whether we agree with your possession but i think you've articulated your position so let's hear from the government and then you can respond to that and i'll give you two minutes on that even explain that the board's definition is actually consistent with all of the states so i think there's a little bit of confusion in the way that it's been portrayed in the different footnotes within the board's decision but the important point that i would like to refer the court to is a sentence in the board's decision that talks about no meaningful distinction between an official proceeding and one when it was as authorized as part of the proceeding in that paragraph the jump and ninety nine and nine hundred and alvarado in that paragraph there are several footnotes that reference the different states and what the whether the states use the term official proceeding or proceeding or office authorized as part of the law if you look at each of those states they all involve the same thing for example of the nineteen states that use the term official proceeding either the statute itself or the state's definitional statute defines official proceeding and almost all of them have the exact same language and all say any legislative judicial administrative or other meant the other government agency official authorized to hear evidence under oath some of the states then go on and explain who that would include for example a referee a hearing examiner a notary a parole revocation judge or other person taking testimony or depositions one state missouri describes a public body that is often authorized to administer oaths even though the word official proceeding is used in the main one hundred states they all mean the same thing and a body of agency government agency legislative agency judicial agency that can take the oath and that somebody provides a statement that is supposed to be true under th parts to the answer one is no the board's definition requires that an oath be authorized or required by law so have to be a situation in which the state law or federal law has authorized an individual to take the oath and take a statement under oath whether it's written or oral the nd component is perhaps an explanation to the perp to the discussion about permissive versus authorisation and the materiality component of perjury is the same across jurisdictions it's called sometimes material false statement or just a material statement but the reality is that the statement has to be immaterial to the proceeding that it's in so for example it would have to be a proceeding to somebody or testifying in a criminal trial and district court they could not be prosecuted in state court in a different state for the perjury that as a perjury statement it has to be submitted and material to the statement that it's being offered for to me is address the fact that the the language of a loved one a forty three seven that's a two thousand and eleven case and in that case is talking about relating to forgery and counterfeiting and it talks about offenses that could have a different name so in that case it was unauthorized intimidation of a trademark and that wasn't the same time as forgery or counterfeit but it was an offense that related to that and underlying elements were the same but they still  still looked to whether or not the elements were out of touch and that's what the court has to do here so i think relating to doesn't necessarily have any effect in this case because we're comparing perjury to perjury but if you look at  forty three dollars s as a whole it talks about perjury subordination of perjury obstruction of justice bribery of a witness and deception as a whole would be any offense relating to that category of crimes would constitute an aggravated felony that does not absolve the court from looking to the board generic definition of perjury and then comparing the california penal code one hundred and eighteen to the kinetic definition that answer your question but i disagree respectfully with that if you look at the telephone especially this is permitted by law of the state so there's a lot of the state that permits that oath to be taken and i think permitted unauthorized synonymous in this situation and i and i would relate back to your questions about trying to solve this there's no cases that could possibly demonstrate that someone would be convicted of perjury for a situation in which an oath was not at the state statutes the board engaged in the proper analysis and it looked at the federal statute the model penal code scholarly commentary and all of those sources all have the same common denominators a willful false material statement under oath or affirmation in an official setting and that's exactly the definition of the board that came up with and so under the acquired analysis the court should defer to that definition of perjury in comparing the two statutes we've already discussed some of this but i'll just go through a little bit of it in case there are any additional questions the california state statute does categorically match that generic definition that has all of the same components of material statement the statement has to be false the statement has to be knowing or will fall have to be under oath or affirmation and oath have to be authorized the word permitted is willful false statement so even if competence competency is not in the sense there's this thought the prosecutor thought to prove the willful false statement in order for perjury is a specific intent crime so i not only is the california statute a specific and not general intent crime but the falsity is an element it has to be an actual false statement there are no convictions for perjury if the statement is not full so i just of well so i did i did a little bit of digging on that and i think it's a joint us argument there in that there's no there are no convictions if the statement is not actually false if you look at the hague in case that the government sides materiality and willfulness all of these all of these elements overlap to the extent that in order to be convicted of perjury under california or most other all other states the model penal code the federal statute an individual has to provide a false statement that the material to the matter before the agency or the special setting has to unknowing or willful statements and has to be under oath or affirmation and once all of those requirements are met it's a generic match we don't have additional questions if you don't have any you're not required same or things i did i do not have anything else other than just to sum up in that i think that the generic definition of perjury is entitled to the same issue the same issue and that is if it's permitted is it the same as being authorized or required under the state of the law government says hey look there can cite you a case burke is saying look if there's a reasonable probability it can be applied this way then i don't really have to show you a case because that's the standard reasonable probability standard is and show me a case this statute is designed such that you can't really challenge a conviction based upon this was a permissible thurston's a mandatory were authorized you can't it's absent in the statute it's absent in the jury instruction which i think the jury instructions actually cited by the government but instruction it says it uses the permissive language rather than the authorized or required line and authorization and permission or are two different things but i want to come back  haven't asked me a lot about it but i really i do think that that coming up with a got real viable generic definition of something of this nature especially when it carries these consequences is is something where the court could use a lower level of skin more or less level of scrutiny because this has application in crimes as well because of the sixteen dollars and hansen that comes up under federal sentencing so when they do something where they're saying well we're taking you know we're taking a statute we're saying authorized are required really we mean permissive and if there were a state in which it was permissive in there was a case on it and says it doesn't have to be authorized they would say but you say it really fits because you yeah but the point is it comes up right no it doesn't anymore if we don't use that anymore in that case i'm being old fashioned in my argument your honor but i read that you've