i'd like to address the issue which i believe is the which i believe is the point that will me or break this case and the issue is is sex assault in the in the federal statute or for in this particular case immigration purposes i think the answer is no it's not a categorical match it's not even a divisible statute and the reason we know that is this we take a look at the statute not the underlying facts we take a look at the statute that's what we always start and we take a look at it defines sexual contact by looking at the statute the statute doesn't tell us what is sexual contact it tells us intimate body parts but the court the hawaii courts have said that intimate body parts unlike its federal counterpart in compass in compass this any part of the body including the mouth and cloudy for example it was kissing including the tongue the touching of the tongue they had sexual contact that's under the hawaii states that you sexual abuse of a minor i'm certain not sexual abuse so it's the whole why they says and i think you can accurately any body part that's typically associated with sexual relations correct that is correct and if we take a look at the federal counterpart they need to be some sexual motivation to constitute abuse forget about the age fourteen years old which we can see it is if fourteen years old is fourteen years old but in the context of the federal definition there needs to be some sexual motivation that's why when we take a look at the washington case every called name where the person was charged with a a minor but there was a special provision in the separate statute that indicated that the context of the assault was for sexual motivation purposes here when you take it when you take a look at the hawaii statute state which is kalani had to go to a legislative history to indicate what exactly does sexual contact mean and they pointed  yes initially there's thought about a contact in the nature of sexual gratification one satisfying one's own gratification for sexual purposes fairly that might be a way to distinguish the facts of this case from diego pushing sessions which analyzed the organ statute it's very similar but includes an element of sexual gratification but what about the hawaii supreme court decision in the state versus  and and help there has to be it has to be in a sexual context for to be criminalized and so it seems this is why supreme court seems to have drawn that distinction that would make this case really  well then you take a look at the next case which is a lot smaller which counsel here is cited in the supplemental memorandum to this court in matsumoto the court there has to be some sort of have to be in the context of a sexual contact and again in matsumoto as in silver the instruction the issue was the instruction as to what isn't in the body one of the main issue was the in the middle of the body part again it dealt with but it's in makes the distinction as as you want to have stated the factual basis the factual differences of playfully look at the statute in its health it is simply overbroad well we don't just look at the statute though we can look at how state case law how the state supreme court has defined the elements of the statute and what you're saying seems to be the same as what the court said in silver which is that it has to be in a sexual context which would then satisfy the st prong of the nd definition of the generic sexual abuse of  minor definition for the federal definition so you've conceded that the statute protects a minor that's a nd prong and our court has held that sexual contact of any sort with them person fourteen or younger is per se abusive so that leaves the st prong of the definition is whether the contact is sexual with the prohibited context a sexual but sexual the definition of sexual in itself requires some sort of  that there's some sort of abuse physical force two actually cause contact that would be that there would be const the that would constitute some sort of sexual motive motivated motivation on the person you take a look at the generic definition federal general definition of sex abuse and again i point out it is sexual abuse in the context of the federal statute and in the whole a statute is sexual contact sexual contact in the federal state in this hawaii statute this define is any contact and as far as i can tell matsumoto silver they have not overturned the supreme court where a supreme court understanding of what sexual contact means in the state of hawaii under the statute sexual contact is contact of any intimate body parts and they define intimate body part as opposed to the federal statute of sexual intercourse or penetration they define if the mid body part as kissing for example the mop but counsel we've gone over this a few times with red silver it more than that it says that it has to be in a sexual context it's not just any touching even if it's a particular body part that is typically associated with sexual relations that's not enough it had to be in a sexual context so it seems that the supreme court has filled in that gap that would satisfy the st prong of the nd federal definition which is that the contract prohibited by the statute is sexual in nature which is different from whether it's abusive that's the rd pro definition there are two different parts and i think what you might be doing here is conflating the st in the rd prong of the definition well i think in a way they're somewhat related because st prong is the as you stated the sexual conduct the nd prong is of course  day in fact abuse equivalent to that of the federal counterparts and it's our position that it's not because the federal counterpart requires very specific abuse on the state side it is overly overly broad that is why it's our position that it is not even a divisible statue well we haven't really touched on that part of your argument but you said at the outset this statute is not divisible and then moved on from there but the statute appears to criminalize different conduct and set out ways that are listed is a through f and finally the statute says that this is sexual assault in the rd degree and one of the ways that you can commit this offense is under subsection b which we are discussing which  having sexual contact with a minor and then there's another way to do this which is to have sexual contact with the person who is competent and that's section d spear to be different crime sexual assault on rd degree is categorically a sexual abuse of a minor aggravated felony as relevant here the generic definition of sexual abuse of a minor includes three requirements requires conduct that is sexual against the minor and a statute of conviction covers only sexual conduct that fact is made clear by decisions of the hallway supreme court which is said that that the conduct must be viewed in context and must have sexual connotations or be he argues that he is not a danger to the community this court has repeatedly said that the agency is not required to make a separate finding regarding dangerousness and moreover to the extent he argues that he was sentenced to one year of imprisonment that fact alone does not preclude the agency philippines he did not show that he faces a particular arise threat of torture if he should be returned there and he did not show that he cannot reasonably relocate within the philippines and then mr i did learn his family safely moved to manila for more than two years before they came to  particular case constituted the sex abuse of a minor so our position that it is not the record is clear he entered pleas to to amend the charges