the court leon has only for the petitioner ricardo andre richards back to your honor's i would urge the court especially with regard to new york penal law for menacing which is found act one twenty point one four there's no dispute candy store oh it was the fact of conduct that your honor he the government presented no evidence as to what happened or at the very best presented some conflicting documents which are question mr richards testified that he had no recollection of what happened because of issues he had with alcohol abuse or human life so the record before the board in the i a doesn't show what took place even if it did i believe it would be incorrect for both the board and the and i g to take those factors into consideration because the court needs to neither of them under the proper standards would be found to be a car more turpitude the reason i say that is because if you are to accept the government's position with regarding the one twenty point  look to new york law new york state law in defining what's the minimum conduct required to meet the definition of an assault under that particular statute with regard to the menacing there is absolutely extremely limited and new york law as to what the minimum conduct would be required to be convicted under any one of those three prongs and to cause fear of injury well isn't that what new york law requires with respect to one twenty fourteen one what i would say is i agree that we should look to the statute because there's essentially no interpretation of what those prongs mean therefore we should look to see what's the minimum conduct that one could commit and still be convicted under menacing statute for example under prong one  i would submit that a neighbor could be on an individual's lawn and the owner of the property is extremely upset that the neighbor is on the lawn and could grab his kids water gun and say you know get off my lawn or i'm going to whip your behind i would say that that could be intended to put someone in reasonable fear physical harm proof that this conduct is so vile and debased and just beyond the normal standards of society such that it would be const it considered to be a crime involving moral turpitude i think that you know such  conduct probably doesn't meet that definition you know to chase someone off your lawn because you don't want them there for example it's reasonable fear of physical injury i think if you look at the absolute minimal conduct required at grabbing a water gun for example and scaring someone off of your lawn when they've where there where the individual reasonably fears that they're in in physical one's got to take a look at every single you know type of conduct that could lead to that particular conviction so for example if you took it at prong two you know prank phone primarily where do you focus on those two or three well we've always focused on them before the court it was analyzed by the board of immigration appeals and we've always we've always disputed that the statute is going to constitute empty offense we've always disputed that in this problem one here on appeal that's what your focus i would say i would say that the court should look at the statute in its entirety because that's the statute that they're finding in all scenarios constitutes a cia ante and although this court's never addressed this particular issue some of the sister courts have for example in the ninth circuit they found that an assault with a deadly weapon does not meet the standard of a crime involving moral turpitude and if you take a look for example at the b a s decision here they're saying oh assault with a deadly weapon is always going to  that's not true doesn't always constitute also if you take a look and that's in surround versus holder if you also take a look at the sixth circuit and see versus holder they draw strong to stick and between putting a person in fear by an attempt and actually going forward with trying to harm a person and here this menacing statute as simply an attempt if it's viewed reasonably by the victim as putting them in a reasonable fear then it's always you're always able to be convicted for it and i just find that there are so many examples where the minimum conduct just isn't going to reach that level because you're asking the courts to decide a person's reasonable fear and what may be reasonable to one person may not be reasonable to another reserve good morning your honour's may it please the court john allen for respondent the attorney general your honour's the board here reasonably determined that richard's his convictions for assault in the third degree and menacing in the second degree constitute crimes involving turpitude as this court emphasized in gill it is in the intent that moral turpitude and hears in both of richards's crimes involve the most highly culpable mental state specific intent when the board has assessed assault type crimes statute as connection what do you do actually your honor and this record does not include underlying facts about his convictions petitioner has never contested the fact of conviction and because we don't have underlying facts here we are actually applying a categorical analysis and looking only at the elements of the state offense and the minimum conduct necessary to achieve a conviction  statute of conviction itself and not necessarily the policy behind not looking at the underlying facts is that we don't want to retry litigants in immigration court we want to focus it's similar to what's done in a sentencing context uilty to missing in the third degree we would compare the elements of minimum missing in the third degree to the generic definition of a crime involving moral turpitude which in this case the board has developed over the years  the generic definition is reprehensible conduct with some degree of c enter and in the assault context which is what we're dealing with here the board has historically looked at these cases on a spectrum where you take into consideration the mental state the level of harm and whether there's an aggravating factor on the spectrum you have simple assault a general intent crime which has historically not been found to involve moral turpitude on the other end of the spectrum assault with a deadly weapon has which came as some surprise to me but i'm always open surprise this court and gill actually deferred to the board's conclusion that reckless assault with a deadly instrument resulting in bodily harm is a crime involving  government's position would be no that there are that assault with a deadly weapon or with the ninth circuit i'm a petitioner would have to provide me with the citation your honor my understanding of the development of assault type crimes in the in the crime involving moral turpitude context is that assault with a deadly weapon even when committed recklessly may constitute a crime involving moral moral turpitude but that's not what we have here and to to address p the water pistol it's not an entirely accurate representation of new york law because we have when it but i'm sorry right i'm not he actually doesn't point to a new york case involving a water pistol but under new york law to be convicted under the provision for displaying what appears to be a firearm there are three elements the defendant must actually display something and importantly here it must be something that could reasonably be perceived to be a firearm and the victim no it doesn't if it work concealed perhaps in a vest even if it's yes as the board noted here the focus is on the apprehension caused in the victim when confronted with something that could reasonably be perceived to be a firearm and and on the defendant's intent to cause fear in the victim as your honor pointed out petitioner waived any challenge to the board's determination that subsection two and subsection three of menacing in the second degree constitute crimes involving moral turpitude the government's position is nevertheless that this determination was reasonable as was the termination that assault and the third degree constitutes a crime involving moral turpitude and two other panels of this court have deferred to the  rogers your honors in the statute for one twenty point one four it's talking about a reasonable fear on the part of the victim we cannot substitute or decision as to what is we would consider a reasonable fear in our and there could be a scenario where the victim's fear in our view would be extremely unreadable for example of the water pistol was a no no the statute is cabined by the following that must be a specific intent to place that person in reasonable fear of physical injury but then the victim is required to reasonably perceive it that way and the new york law hasn't developed what's what's considered reasonable by the victim or not i looked for statutory analysis by the new york boards as has i believe government counsel she comes up with a case where flashing a light was reasonably perceived as a weapon and what's reasonable to us we can't substitute that in for what would be reasonably perceived as the victim if you take a look at the absolute minimal conduct really minor offenses could fit in within the category of approach under all three of these progs if you look at number two you don't even have to be successful at making the person fearful under prong to all you have to do is attempt to place them in fear a telephone prank where you're palling to test scare a friend or or a neighbor could you know even unsuccessful in placing them in fear could be a conviction under prong two it's just too broad there's no definition that would reach the level of violence or base for the minimum conduct that you could be convicted here mere flashing of a light where you're trying to scare someone by flashing a light putting them in a fear i mean the the the government cites to that case because it's the one and only case where conduct really is interpreted so many factual scenarios could be convicted under these offenses quick question actually that i had not thought of can you pro it's over a decade and he wouldn't be deportable if he had just the one c i am just coming back to the assault in the ninth circuit the cases are on view holder and i would also say that said in your briefs i didn't cite it in my briefs but you read it would you give us a but the board also couldn't cite it in it take it into consideration because they were relying on you know all the precedent not necessarily the supreme court precedent that came out subsequent