motion where we had asked that the court look at the underlying conviction for purposes of mr hale's deportation was a nine divisible case that was decided wrongfully under the modified categorical approach and we cited the leading supreme court case which is the scamps which makes clear that deviation from the categorical approach is permitted in only one scenario and that's where the relevant criminal statute expressly defiant more than one offense and it gives as an example in that case the burglary to a dwelling versus the burglary to to an automobile this case we had argued was more like an overbroad statute that criminalizes a broad range of conduct for the injury to a child as you know this case began when two boys  the boys were seventeen the girls were fifteen one of the boys was a caucasian boy the other boy was not an immigrant resident alien the attorneys who dealt with this case at the time thought they were trying to do this gentleman us service this boy young man a service by having him ple to a lesser offense because at the time he was charged with a rape and they made no difference whether it was a statutory rape or a violent rape the law recognized that if he was convicted of those counts he would be a sexual offender and he would be subject to deportation so rather than face that his counsel advised him to plead to this charge of injury to a child the problem of the idaho statute is that in fact it does provide it that a statute is divisible before you can apply the mout the modified categorical approach otherwise it has to be the categorical approach and that is if a statute has a broad range of conduct one which shows willful intent and another where you can be guilty of the exact same statute for reckless behavior or reckless conduct then the categor or approach applies and therefore this case is not an aggravated felony so that was my argument to the lower court the lower court was confused about the argument and in some sense you know it requires a little bit of a balancing of whether we're talking about a statute that is defining two different offenses or a statute that is for defining a broad range of conduct for one offense mystically injury to a child i'm sorry to interrupt the argument that statutory interpretation but how do we reach that argument given that in two thousand and four when the decision was made to to remove mr hill he waived his right to challenge well that's that's a horse of a different color judge pepper and the reason for that is that we never got to that argument we never got to argue whether there was a waiver or there was no there was no waiver you know as you know a waiver has to be knowing and it has to be signed by the individual who says i knowingly understand that i am waiving my rights when in fact his rights to appeal that decision was reserved within five days his attorney sends a note saying my client wants to leave the united states he's tired of being in custody he's a nineteen year old kid who who  doesn't want to be incarcerated remember sarson multi member with this case was difficult because initially when he pled guilty his lawyers advised them that this is your first offense you qualify for boot camp you're going to be out and you know less than twelve months whatever the time was for boot camp but lo and behold he gets sentenced to three years no boot camp because he doesn't qualify for boot camp because he's not a u s citizen so therefore he's stuck in jail for three years and has a seven year determinative sentence indeterminate sentence so he's looking at it like well does that mean that i have to stay in jail for another seven years of fighting this case while in custody we don't know the situation he was never allowed to testify as to whether that waiver was a permissible waiver or not whether that waiver came from him certainly it wasn't signed by him and that we never reach that level of the argument i would have loved to have reached that level of the argument just up so that you're giving us reasons why he might have wanted to waive and maybe that wasn't the best judgment given that he was nineteen years wanted to get als right but but but you're explaining why he may wanted to wait what information is there in the record to indicate that the waiver was not knowing more volunteers well the fact that it signed not by him but by his attorney i mean if you're if you're going to purchase a house you know your attorney could do a lot of things but he can't sign for your purchase of that house one that involves substantial rights for my client i will drive to wherever and i need to get to to get an actual signature for my card so perhaps you know the interesting thing about this is that you know i'm challenging two very respectable attorneys and the first attorney that he had is now a member of the of the legislature and has his second attorney that that left his case in the middle ok she's she's a member of the idaho supreme court so i'm not saying that that that these attorneys you know essentially let him down because of immigration was a very complicated area that labrador labrador labrador she i know for a fact i left the case in the middle of the case and when i went up to the supreme court about so and  narrow it down to two what my argument here is is that you know i know the seventh circuit as is one of the circuits that that has in the past that hasn't dorce the application of the modified categor but really what it says is that you have to apply the categorical approach and if and if the drafters of legislation want to make a statute that is sole overbroad that includes both aggravated and you know reckless behavior then then the consequences for purposes of of deportation for purposes of removal for purposes of the armed career offender statute you know that they take it as as is unless they're specifically defining two separate two separate offenses one to a house or one to a building in this case may be one to a child one to a teenager you know if they're defining the different age groups that certain things would apply and i know that that one of the things that that that judge shader pointed out is that  this argument that i was making only dealt with the argument for a child care provider a daycare provider but that is not a different offense that's the same offense that's required by different may please the court my name is timothy strain i represent the united states in this case and the district court properly denied the motion to dismiss the indictment as the disk or properly found in correctly found the defendant's idaho conviction for injury to a child qualified as an aggravated felony but in addition to that is the government argued below the defendant also failed to demonstrate the other requirements that he must do under eight u twenty sixty that is that show that he's exhausted his available administrative remedies to show that he was deprived of judicial review in the deportation removal proceedings and then to show that the removal was fundamentally unfair were specifically addressing those in order first mr philip as never filed a motion to reopen in the removal proceedings he never appealed to the b i instead as your honor noted he waived his right to appeal and in actually the letter in which his attorney sent to the immigration proceedings he asked to be removed his soon as possible and there is no evidence in the record your honor of anything to the contrary there was no af submitted to the court from the defendant indicating that that was not his signature that it was a fraud or that he never agreed to that document the defendant also failed to demonstrate that he was deprived fundamentally unfair getting to the issue that counsel talked about whether or not it qualified as an aggravated felony the court appropriately found the dischord appropriate found that it did inappropriate found that the immigration judge was correct and the reason is this counsel talks about they can cordon united states first baptist the circuits opinion you apply the law at the time of the removal they can't came nine years later so under the law at the time of the removal in august of two thousand four the idaho conviction for injury to child qualifies as an ag felony but in addition to that if you look at the statute at issue in de camp the justice kagan was talking about that was a california penal code defining burglary it had no oar in it to use counsel's phrase it was a broad statute this statute dido statute has at least two different ways for someone to violate it and this court has said in united states v woods that it the visible statute is one that can be divided or can be violated in numerous ways lashley your honour's even if the court was incorrect about the aggravated felony issue and the defendant was otherwise removable because his conviction also qualified as a crime of child abuse under immigration