right can only be severed two ways when the b a affirms an immigration judge's order or when the time during which an appeal may be taken has run these two avenues are the only two ways prescribed by congress that make an conflicts with eleven zero one a forty seven b because it adds an additional avenue of finality this conflict is much like the one in torah vs lynch which led this court to invalidate a departure by regulation seemingly placing a physical presence requirement on the filing of motions to reopen when congress refused to do so to say that he did not intend to appeal the decision of the i g through counsel why is that not a waiver regardless of finality why does not just become a waiver of whatever right he has who appeal well your honour's intentions can change and the burden remains on the government to prove a waiver existed by clear and convincing evidence they must prove that the intent to waive was clear and unambiguous and that the individual waived his right voluntarily and knowing involuntary is that how you're running a different argument yes  yeah stay with the first argument which you're you raise more directly an argument that's only lightly touched on in the previous case and your argument is that because a waiver is not present as i stated before a waiver must be messy proven by clear by clear and convincing evidence by the government what's unclear and convincing abo honour's i would like to point to point this court to the record at page two hundred five where i'd actually reserved his right to appeal through counsel this can taken in conjunction with the ambiguous statement that he does not intend to appeal does not meet the burden of clear and convincing evidence of a waiver if if for example an individual had stated that they were counseled on their rights and they understood the rights that they were relinquishing and the implications of that within the if taken this document the request through of or which contains us languaged that robert does not intend to appeal if that instead stated that he is waiving his right to appeal and that he was informed of his of  do not intend to appeal to not effect weaver if they require the use of the words we appeal not off the top of my head your honor however however intentions again as not stating that the individual understands the right that he's waving and the implications of waving that right so you require recitation by the believe in that he fully understands some sort of colloquy like we do let's assume for the moment that we say that and let's further assume that we find on this record there was such a knowing and halogen waiver and that the events that occurred there after were based on that knowing and television waiver do you have anything to say about whether it's even legally possible to make that waiver within the periods of time set out in the statute or have you waive that part of the argument is your argument simply there was no intelligent waiver here or is your argument that even if there is an intelligent waiver here he can't have waived his rights and julie's statutory periods have been allowed which is or is it both we it is our position that our client did not waive his right to appeal and so that's your focus your focus is there was no intelligent waiver here yes your honor and furthermore because because the b i has to follow their own regulations whether or not there was a waiver this is still properly before the court because the b a would still have to follow the departure waiver regulation that is in effect currently and the one that really essentially put presents this this conflict much like the one interest is lunch which led to the end validation of of the regulation the departure of the departure by regulation there  moreover you're as i would like to touch on the crime crime of violence issue in the event that to my eye is overturned we contend that alberto was not convicted of crimes that meet the categorical definition of a crime of violence a crime of violence is one that carries with it a substantial risk of force and to be a categorical match the conduct punished at the state level must be narrower than then or the same as the generic offense where the by the by the elements of the offense in the ordinary case of the crime carries with it substantial risk of force it can then be said to be equivalent of a crime of violence but here your honour's the touchstone of a crime of violence is the lack of actual consent and here could have been convicted of these crimes with with actual consent being present the jury instructions for the convictions that he was charged with for the crimes that he was charged with only require a lack of of legal consent because because the state statute punishes conduct that is broader than the generic federal counterpart it cannot be said to be categorical match this is your section sixteen and a sixteen b argument do i understand that correctly sixteen be your honour's you're arguing it's not a sixteen b yes but you c cede in your brief that it is a sixteen a violation right there's a specific concession in your brief that yes this would have been a violation  no further questions i'd like to reserve the rest of my time for a bottle thank you ok mind and his counsel informed the department of homeland security that he would like to be removed and so that it was in writing and a fax to the h s and in effect that constituted a waiver yes let me pursue that with you  by offering a hypothetical case all right let's assume that the only thing in the record regarding waiver of the right to appeal is a statement by the immigrant's counsel that quote my client does not intend to appeal unquote makes that statement to the i j a the only evidence in the record with regard to this whole question of waiver of appeal does not meet the government's burden to prove by clear and convincing evidence that this was a intelligent knowledgeable waiver yes you are that is our position and that actually can that be your position if all there is in the record is a simple statement my client does not intend to appeal this is nothing in that that even says a waiver or in what was going on in the case stay with my hypothetical you have a simple this situation in which counsel says my client does not intend to appeal never uses the word waiver there's no evidence of what in fact the petitioner may or may not have intended or understood that's all we know is my client does not intend to appeal counsel says to the i j a the government has a burden to prove by clear and convincing evidence that there has been a knowledgeable and and waiver as the government carried its burden in any case where that's all the evidence there is i'm not aware of a specific case in that those exact charms but you know there is case law where this court has held where a pro se individual was not aware that they could a way of their appeal this court has stated that that's one reason why an attorney is necessary or helpful in those situations because an immigration court typically they are in your hypothetical the immigration judge would have asked the petitioners counsel do you waive her right to appeal or would you like to appeal this decision to the board of immigration appeals and if counsel states my client does not intend to appeal this decision that in effect constitutes a waiver and that actually is typically done in i proceedings throughout this country so generally that constitutes the waiver and then the order of movement is final on that day and oftentimes that happens where the petitioner was detained as the physician in this case was detained and frequently individuals don't want to sit  detention for another thirty days before they could be removed some of them just want to go home so and often there could also be a stipulated removal order which is a different scenario so this court has held this court has case law i forget the exact name of the   would it matter if the petitioner or the is present when the statement is made rather than perhaps just a letter or telephone call to the i j a with no information about whether the petitioner him or herself was present does that matter i don't think it matters your honor because counsel is presumed to be acting on behalf of their client so typically the counsel would have discussed waiver appeal with their client prior to proceeding before the immigration judge and then in this case prior to finding the facts with stating that he wanted to be removed and actually in this case the facts states why the petitioner wanted to go home because mother was ill and he wanted to return to mexico to see her so we can infer from that that of course the counsel had discussed this with his clients prior to filing this with us and so for that reason we would argue that it was a voluntary waiver of his right to appeal let me ask you about that because i agree with you that to me the most convincing evidence is that letter it's a reason flatterer it's not simply i i waive it's there's a reason why he wants to visit be with his mother and i think frankly for me that's more compelling than the fact that he was removed but when i read the b i v order in this case the d n a order seems to focus far more on the removal than it does on the letter and i'm wondering can we essentially deny a petition based on the letter when the self did not and three subsection point three subsection and that regulation the effect of the part of the united states is that the individual way of their appeal so following the regulation we presume that that individual are we and further intent that they intended to waive the appeal so that's what the board was relying on it was following its own regulation when it held that he waived his appeal but first regard to your question the petitioner in this case had the opportunity to respond to the h s as motion for summary disposition prior to the board issuing its decision and in this case petition as counsel actually did smith something else in addition but he failed to respond to the excesses argument that that he had waived his appeal by being removed so in a he actually had been removed and the fact that he had requested removal versus whether his waiver was actually voluntary so the petitioner for the first time before this court is now asserting that his waiver it was not actually voluntary but that's actually a separate issue than whether as a matter of legality whether his departure constituted a waiver of appeal but i guess i'm saying is that if we if i find of the court finds the letter very persuasive can we deny the petition on the basis of the letter its order did not rely on the letter yes or no and that's actually why we're arguing exhaustion because he failed to respond to d s s this argument that has waiver was a voluntary request to be removed so for that reason that's why we're asking this court to petition because he never addressed that issue before the board which is why the board to not address it in its decision and it's your view is that we even though the b i did not spell it out the way you just did write very articulately that we still to go beyond the board and decide whether the waiver is voluntary it would have to decide that the position fully exhausted that argument to the board and that the board i guess or that it should have addressed that issue so in this and our position that it does not violate the immigration and nationality act and the reason for that being is that the petitioners argument although this case involves the departure bar underwent a far one thousand and three point three what the position is really challenging here is the regulation it's the a far one thousand and three point three nine which states that in order for removal is final if the individual waive the right to appeal so that's really the focus of the removals final when the board affirms the decision or if the expiration of the time permitted to appeal expires so because that statute was and acted after the regulations had already been in place for almost a decade or almost a decade we can infer that congress was aware of the regulation of that they did not intend to change that regulation and that that's not actually what they were doing with that subsection of immigration and nationality act and further even more wouldn't we normally think that he later and acted statute my congress could over term prior an act of regulation that proved to be inconsistent with the statute yes your honor why would we infer that the statute is intended even though it doesn't used the right language is intended to incorporate a facially inconsistent regulation i don't quite get your argument they're going to help me with that ok so in the statute itself it says that the order becomes final upon the expiration of the time permitted to appeal and at the same time the congress and acted that statue  different provision of the i stated that regulations should be promulgated to include to explain what that means so our position is that that section of eleven zero one a forty seven b is ambiguous and that congress actually intended at the agency decide to decide how long and the video has to appeal the decision so the agency through regulations has a side of the thirty days with certain exceptions that apply if the individual waive their appeal which is what happened in this case so you're reading the statute just saying the period you have to feel mange whatever it is the agency says you're doing right or at least the agency has the authority to issue regulations that describe what the i am left open if that makes sense and in addition this court already has precedent on a slightly different regulation but it's very similar in the case of police in that case right there is a different regulation one thousand and three point four that states that if an individual already filed an appeal with the board of immigration appeals and later departs that that in effect constitutes a withdrawal of the appeal that was filed with the board so this case is slightly different because you didn't file an appeal yet and the regulation issue is different but the same promise applies and in that case plays this court held that because eight u s c eleven zero one subsection g states that if an right are we believe that that case that she was focusing on the provision of the statute that left it open so it actually there actually is no conflict as she was concerned about and in addition her concerns that the individual would not have time to think over their appeal that's actually not an issue in this case where he waived his appeal weeks after he has final order of removal and the record it indicates that he conferred with counsel prior to making that decision and finally i know a lot of time but once again we argue that the  not exhausted to the board of immigration appeals and that even if it had we believe the court would hold the key to this case for the supreme court's decision and my own feeling thank necessarily include a substantial risk of force however under discoursed precedent and rodriguez kathy young the court does not give deference to agency interpretation of state or federal criminal statutes as they do not or have any particular expertise if we look to the clear elements of the crimes for which governor was charged under two hundred eighty eight to eighty nine beat the elements are the sexual acts that the victim was developmentally judicial interpretations of the statutes indicate that a developmentally disabled person be sent to a sexual touching but may not be able to give their legal consent under under that not that they couldn't give legal consent but they couldn't give their actual consent as giving their actual consent the lack of actual cause that presents with a substantial risk of force would be used as a victim taking advantage of the development leave the able holler and do instill the state has restricted the ability of developmentally disabled people to ever have consensual sex legal consent presupposes an intelligence capable of understanding the