think we need to know over we think that this court has the opportunity and should resolve the issue of whether or not they'll transfer out of control of this case we believe that they'll transfer rado is a distinction based on the underlying conduct of but but but they didn't the court focus on the fact that it occurred within the context that has been described in the previous case which was the case in both trench rado or here in arizona statute which both prescribes the same underlying conduct the the analysis has to focus on with whether that particular underlying conduct is right or wrong be possibly part of the analysis where the underlying conduct is the same yes your honor whether you murder somebody under arizona state law or you murder somebody under federal law you've got to and that you've got to look at the underlying conduct that's being prescribed not particular source of the statute that makes it illegal that's the very heart of the essence of a crime of moral turpitude it's not prescribed by statute it's prescribed by what we inherently think of as right and wrong and that's why  amendment to arizona's employer sanctions law this actually was not intended add a new element to the identity theft statute for any particular purpose it was in title it was added to the statute for the purposes of curtailing the employment of illegal aliens in the state of arizona and there are two portions of the amendments number one the intent to use the social security number identifying information of another for the purposes of obtaining employment but also to prohibit employers from knowingly hiring illegal aliens now this is fundamental to the analysis about whether or not this statute involves inherent fraud because with the addition of this section that prohibits employers from hiring illegal aliens knowingly you necessarily removing the misrepresentation element which is necessary for any fraud and what forgive me counsel what i know you're making a larger point but w it and now you have to look at whether or not the statute inherently involves a fraud in order to do that you have to look at all stats you have to understand that this statute was not and in this case in my client's case there's no indication that he misrepresented to his employer misrepresent anything to his employer it may well be that that employer created that social security number itself and put it in the personnel file if if if we do what you ask which is to send it back in your case to the i j a in the case of the government to send it back to i we don't even get into this do we i mean that would be direct at best because you're asking us to send it back to the body that should determine this in the first instance right well not necessarily on  that's correct your honor and if that statute was not in effect at the time my client committed the crime i see no reason not to send it back to the present judge with the point that they get the first crack at looking at the right statute i i think all of us are saying the same thing which is you have said and i suspect the government will confirm that everyone agrees that the statute that was analyzed by the  because this two thousand and eight statute was passed after this particular indictment and or conviction occurred so we're really dealing with the what if situation  assuming that the government agrees we simply remain and as to the b i agree with my colleague i don't have any authority for us to send it back to the i get on the b i mean when to send it back to the i j a but the bottom line is you need to start with the correct statute and them they should make a determination whether this is a cia empty presumably apply the analysis from comp and find out where it goes with that is not what we should be doing i see no reason to screw that your honor i think that i but i i will say that if it's a matter of remaining this matter back to the v i i for purposes of considering the preaching thousand a statute i would agree with you that my client honor however i do i understand that the court has questions on this and neither party has had the opportunity to brief it was an argued by the government and we certainly didn't make this argument my only question arises about the statute that they were analyzing didn't go into effect until may of two thousand and eight that's correct ok i see you're down to about forty five seconds you want to reserve that  now i've not seen that before your honor i've only seen it go back to the court and then the board can send it on to the i j a and actually one of the other areas i noticed when i was preparing for this argument of why i might need to go back to the i j a is that there are no shephard documents in the out there and it has not been provided to the agency but that's another reason that this needs to go back also the whole solicitation argument was not raised before the board and his argument before this court that of thirteen that's two thousand and eight applied that's because that's what i raised it wasn't graceful was it as i've explained it wasn't risk low by the petition but it was raised by the government and it was actually firmly addressed by the b i a and it court and properly before this court for its decision but even to be analyzed to two thousand statute the fact is as my colleague just pointed out the crime occurred in two thousand and seven two thousand a criminal statute could not issue is directly before this court and for its decision the fact that the two thousand and statute was altered really doesn't affect the analysis of whether or not section eleven eighty two eighty two a i