your honor and may it please the court richard mark of gibson dunn and crutcher or the petitioner stephen moore in this case the board of immigration appeals erred when it concluded that mr moore's plea bargain to conspiracy in the th degree a misdemeanor under new york law is a crime involving moral purpose to the d i a read the th degree conspiracy statute to be a divisible  offense and use that to look past to the elements of the conspiracy statute and considered whether the record showed other conduct by mr moore that amounted to a crime involving moral turpitude that look through was error categorical analysis applies when the government relies on a prior conviction to prove a crime involving moral turpitude as a basis for removal as the court stated in james against you casey this court for convictions following a plea the da the i a e a may rely only upon facts to which a defendant actually and necessarily plead in order to establish the elements of the offense it's those elements necessary for conviction not the specific backs of any defendant's conduct that determines whether the state statute the fines a cia empty we know this but from cases like james and particularly from supreme court authority like mathis versus united states those cases put the statute of conviction at the center of the analysis so the statute of conviction here which we know from the certificate of disposition that appears that age seven hundred and seventy of the record has two elements it is conspiracy in the th degree and it has these two intent to commit conduct constituting a felony an agreement with one or more persons to perform that conduct neither of those elements is divisible the intent element significantly relates to any felony in the new york penal law and thus in compass is crimes that do not require rise to the level of a morally turpitude in this offense for that reason the statute is over what we are describing here and what the supreme court emphasizes in cases like mathis is that a statute is not divisible if the elements if the elements of the statute encompass different means of performing an offense and don't require different things to be proved or agreed to by the jury unanimously in order to establish a particular offense so for example this court in the was divisible or not and the court held it was not in the know it encompass sales of everything from a schedule one to a schedule five narcotic if it's a schedule one and it's heroin one might have a particular view of the offense if it was some you know high class decongestant that was a schedule five but perhaps not you with the same moral nature as heroin it's the same offense it did not matter which drug was sold in order to be guilty of two thousand and thirty one sale of narcotics under new york state law similarly general conspiracy statute new york penal law one o five point zero five any felony satisfies the intent requirement that is the st element of the offense and we know that there are such felonies that are not crimes than involving moral turpitude mr morris notice to appear in this case specified a nd one in during prosecution immigration judge decided that was not a crime involving moral turpitude and that was  with no object crime as the basis of conviction we have the notice to appear in this case a seven hundred and eighty two of the record which again specifies pledge purposes of this element or specification five five with no object crime specified and so again what is actually and necessarily required in order to convict for that i've already decided what those two elements are the significance of this of course is that mr moore pleaded guilty in this case and undoubtedly the question arises whether the immigration court can go beyond the elements of the statute and survey other materials in order to address the crime involving moral turpitude question and what the mathis case teaches is that in offended in particular what the court observed there was that statements of non elemental fact in the records of prior convictions are prone to error precisely because there pro unnecessary at trial and still more at please hearings a defendant may have no incentive to contest what does not matter under the law and the court noted there know there in particular that the immigration context was one in particular where someone who like mr moore had been in pretrial detention for two years facing a much higher level offense trudged in the indictment when he was offered a class a misdemeanor to get out for time served during which he had over served frankly then he has no incentive to contest certain things and he'll just we need to get the deal there what mathis says is that can't be relied on for fact finding we have other arguments this is real but this is  that well i guess footnote two says addresses immigration context specifically footnote three gives the example of a murder conviction with three different levels of intent in it and notes that it doesn't matter to the defendant at that point whether it's intentionally knowingly or recklessly the person is simply going to plead but it may have great consequences down the road if you use hell to say oh you picked the wrong door here and that has consequences for cia entity even though the other door would not have been a cia mt it's that you can't after the fact go back and ratchet up the penalty and treat mr moore as if he pleaded to the original indictment which would have required showing an intent level to commit a class a felony very different from any found in this case which is what he plead to i was simply going to say before i turn out my initial time that we do have other arguments in the brief relating to the way fact finding proceeded and in proper consideration that the i j a took into account duress on points  court can ask questions here we know that mr moore does not dispute that nd degree murder is a crime involving moral turpitude so at bottom for this court to agree with mr moore that his conspiracy conviction is not a crime involving moral turpitude it must agree with his contention that the object of that nd degree murder that the object is not an felix was decided after math and after harvest even saif mathis as to the proper methodology for doing the matching once you've identified the proper statute of conviction to murder would actually be completed so your case law as well as this course this isn't how to felix adam is wrong you recognize that the courts must ascertain the object and then looking to the documents of the conviction yes it's true that the one minute order she identifies only conspiracy but we have indictment and we have the plea call a query and there's no ambiguity that the criminal judge a status what the object crime was they got confirmation from mr moore that that murder was the object of the conspiracy it cannot be possibilities can come out as a basis for a plea agreement that is acceptable for practical reasons here a misdemeanor level of conspiracy to a class a one felony of nd degree misdemeanor as the object of that but that's what the prosecution accepted as the judge but still they still had to have identified improve and three would have had to agree that murder was the object offense conspired to or the the conviction could not be sustained finally to my last point as to the relief applications as it did in the brief they were decided on a tourney to ground the board's review of discretionary determination you know though and the board explicitly stated that the two negative factors of his conviction for conspiracy to commit murder and his admitted ten years again involvement were what outweighed his positive acma equities did not factor in the immigration judges credibility terminations and therefore and he has waived all of the other dispositive grounds of nineteen pace ever identified it and that person is no longer there and they undertook strict measures to ensure that that person was segregated from the population that i don't want but i'm happy to answer any relied on gang activities that were charged as cries in those indictments you know the they also took have to moni from him that he fully admitted during his immigration hearing about it being involvement with the relief from removal or protection from removal in the remove the ability contacts you're right you do not rely on allegations you only rely on facts of conviction and you ascertain the facts what the statute of conviction is and then you start undertaking the categorical approach not the underlying facts and circumstances not the indictment and the board docked to the proper approach which is you know consistent claims that the reason for denying it through failure to meet his burden under the statute in the regulatory requirements for those applications for relief and protection so credibility average credibility doesn't matter for all those three as for a credibility as to cancellation of removal the last one that it could possibly apply to we have the board the spite of affirming the adverse credibility determination ringback for no clear error at that and proceed to the final standard hear under his claim show he was prejudiced but we didn't get into that because our main argument is you don't need to look at anything the thing about the adverse probabilities terminations because all four of those application think it could be but i would i would not want to give you a firm answer without having researched it and providing you a letter greek or some sort on that because i would want to give that further  that that that is covered but you know and encounter to counsel grain here that you say you start with the statute of conviction and use it with only a conspiracy th specify which object offense because they overturn a conviction where more than one object has been presented to a jury and then they cannot know for certain that the jury agreed on which object of that distinctions there one matter of law and the nd a matter of fact in the record the legal question is this the predicate offense in that case that was that issue was  conspiracy in the nd the gray ok a much higher level offense than what mr moore pleaded to and significantly in that case and we have this from looking at the record in that case you know that the notice to appear specified convicted of the crime of conspiracy in the nd degree with the underlying offense the murder in the nd degree in other words the n t a took the position from the beginning that you had to look through and see the object that there is no similar thing here either in the certificate of the certificate of disposition or in the notice to appear and  perform a class a felony that we know for a fact we heard as a matter of law that any felony certainly includes many things that are not crimes involving moral inextricably affected by reference to improper materials and the fact that the those materials are not properly part of consideration we now imagine how how how might a figure th and that it should be remembered for that for that purpose the thing that's all that i that i can say about the the opinion the overriding presentation throughout from the government and the treatment by the decisional already tends to go immediately to this to this underlying fact and use it for him proper purposes  r the underlying issue that was put in the indictment and roving through the and the firing material that becomes the basis for the decision and so that's what he said was would be improper on that school said consistent with your arguments and does it matter to the since in a felix court that he was convicted of a different of conspiracy to a different degree yes thank you for that question  i don't believe i was dividing up the if you view than your conspiracy statute as all of the sections you know from one o five to one of five point whatever it is you could say that's the disability what i'm treating as an  individual statement of what the elements of an offense are under new york state law is i'm saying one hundred and five point zero five is conspiracy in the th degree that's one offense and we look at whether that is divisible or not we do know from this campus that even if you were to say ok let's look at the that section of the penal law and treat all all those subsections as one big chunk of conspiracy and are they divisible between them what you would then ask is this camps you divide it down to a point to say what are the elements in the statute that a jury must agree on in order to have conviction again you don't look through individual conduct you say what's the element in that and so you would stop and say it is different to have conspiracy in the nd degree because the jury would have to agree it was that we had to agree there was a certain level of a certain level of objective sense so then what do you do with what the government just said a moment ago that actually we know that in new york the jury has to agree on the specific object offenses an element well two things about that i don't believe it is actually clear that that is the case and i will give you as an example the recognizing that is not exactly the same kind of crime as we've been talking about in people versus goldsmith which is cited in our brief we have the person who struggled with burglary that requires entering a house with intent to commit a crime and that's what the statute specifies the state's theory in the case was that mr goldsmith and then the back house with the intent to kidnap someone during the trial the kidnapping count was dismissed and he argued at the end of the case that he therefore could have been convicted of burglary because the state had the burden to show that he went in there to kidnap somebody and the court said no you can still be convicted there was enough evidence in the record to show that you had the intent to commit some cr that would be your argument but what we did say and santana feel like that that is not how the new york conspiracy says she works in santana felix i don't know that the issue had to be confronted directly because they just need to agree that it's above a certain level and all of those would be crimes of involving your altered you're correct your honor that's not stated in the case but again one other i would point again back to the record where the a actually put that in so the key piece of evidence ok the certificate the disposition the n p a which you look at and say what was a guy convicted of according to the record from new york state it says you know conspiracy to do x and it specifies the act that is not the case here and the last point i would make on this again in terms of how carefully we have to consider mathis and know how to circuit authority is always a dangerous thing in talking to this court of appeal but acknowledged that mathis have abrogated that the pinion and that that analysis could no longer be relied on that is why we say the mathis case is pivotal and how this particular question should be addressed i don't think that we have found frankly any case where you can tell clearly from the record that the underlying offense was specified in the way it was here simply conspiracy as stated one of had to in fact tend to agree on the object offense then you would say well the net makes an element right you're just saying we don't know that that is correct but again i would point back to mathis the combo footnotes two and three and it may also be that there are different circumstances that that that could be viewed in the context of a trial after all the reason why at a trial evidence gets developed and the theory gets selected for that reason may have to do with reasons of due process in the trial notice to the defense of what issues are being raised and how you and how you prepare for that trial none of that is at stake in the context of a plea and therefore as mathis recognizes other cases recognize the need for the defendant to be particular about you know what is this and you know if i have i think i'm agreeing to the to the bare minimum here is you know do i do i crime and how would you apply that statute under your theory i think that in the hand would not make a difference to the analysis that i'm presenting here because the evidence of it's of whether you could could meet that part of the statute would be if you look back to the same kind of evidence that the government always has to put in to establish  highlighting the difference between something like the n c a a and santana felix and the one in this case take the the language of the statute that your honor quoted if the government wants to say you are a movable  because you gaging a conspiracy to commit acts crime that's what the m t a ought to say and he does say that when the government proceeds on that basis it didn't say that you so i don't think that basis is