petitioner is eligible for the relief that she requested as a lawful permanent resident which was forty two e cancellation of removal the immigration judge in the be a both found that she was ineligible for that relief or not having reached the seven years of required physical presence in the country for having been convicted under california penal code section two eighty eight c one finding that it was for a crime involving moral turpitude in finding that that in conjunction with also being a crime no published decisions specifically relating to this issue the decision that do exist in the context of this involving an aggravated felony for purposes of being a crime violent for example it has not been piece of clothing clothing it doesn't necessarily even have to get the act itself doesn't even have to be lewd and we look at the jury instructions for example there's but there's the child to have to know that there's some sexual intent on the part of the perpetrator they don't have to know that there's any sexual intent and looking at the case law such as mathis which allows us to look at the jury instructions and that says look at what somebody has unanimously find i think it's important to point out first of all that with regards to the age of the child the jury doesn't you know as you know honestly have to find that they were fourteen years old or fifteen years old that those two things get completed first of all and i think it is an important thing because this or in other circumstances as looked at age as a factor to determine whether or not i'm sorry to interrupt you but it's my understanding of the statute is that the defendant can be convicted of this even if they think someone is twenty one when it turns out they're fourteen or fifteen is that because i think to me this for your perspective on the other one your best things going for you is that there's a halloween party somewhere and someone who's twenty four approaches someone that they think is nineteen the person says they're  nineteen and they have an idea that says that they're nineteen and touches them on the shoulder and a certain color suggestive way at a halloween party but it turns out that they're fourteen or fifteen so there would be the ten year age difference under the statute as i understand it if i if the defendant says wait a second i thought she was nineteen i never read i think she was nineteen under california law that's not a defense right and it's not a defense and the defense also in the content time tax for example of person under sixteen as we're talking about a fifteen year old minimum conduct would be a fifteen year old on the eve of their sixteenth birthday with a twenty one plus in adult individual to not fall into the purview of two eighty eight that twenty one plus individual just  years so they can be nine years just one day short of that ten year age gap and be falling into that statute and that statue actually involves wires sexual intercourse the statute doesn't cut it in that in that s rape we actually have to show that there was sexual intercourse that that occurred here there just has to be simply a touching and going back to the jury instructions i think it's important to note that the one and the jurors are instructed and i filed this in the twenty eight g let r that the touching need not be done in a lewd or sexual manner first of all someone can actually arousing appealing to or gratifying the lust passions or sexual desires of the perpetrator or the child does not actually require so so the the  crime there's an intent element but the completion of the crime doesn't need to actual the completion of that intent doesn't actually need to to have have been committed and and in the center then but those are important turpitude in the context of statutory rape as well given that we're looking at necessarily maybe a three or four year age gap between the victims in these crimes we're still talking about fifteen year olds in both cases that the petitioner in this case was sentenced it was sent as a as a felony but she was received a five year for five years of formal probation and one hundred eighty the county jail sentence on this case so as this court does know twenty eight  offense unlike two eighty eight eighty and because she received a jail sentence it would be petitioners contention that this offense at least with this wrist this petitioner would be petty offense covered  punishment other than imprisonment in the state prison and in this case the defense of the petitioner although charged with a felony was given to the state prison sentence in california the maximum sentence and i'm sorry the petitioner in this case was given a county jail sentence and under the california law the maximum sentence in county jail would have been for three hundred sixty five days so i would ask the court to look at that as well as i am running out of time i would like to reserve my last minute  r a bottle that would be ok the carmichael which is one seventy seven and thirty three ninety one or for something a bit more recent you could look to blending on the dean of the holder let me ask you the case that i think pretty much poses the question in front of us  someone believes that this person is over age touches this person who without the other person realizing that it's a sexual touching and is convicted under the california statute is not a crime  it is your honor i think here i think there are two separate considerations you've just raised that have to consider the first is whether the victim understands that it's a sexual touching and the definition of crime involving while turpitude effectively makes that relevant it remains  the person being fourteen or fifteen is a protected class victim which help whom california has well seem to seem to protect seems that its act and for that reason whether the person realizes that their sexual intent really has little to no impact the second consideration would be the mistake of age california has not seen fit to create a mistake by age defense and for that reason whether  turpitude but even even with that rather oddly and vaguely defined crime moral top down under federal law i just don't think the qualifiers i understand and i don't think the defendant thinks he's nineteen there's nothing to show that he was sort of in reckless disregard whereas the depravity in the defendant i believe pretty here would be your honor to defend its inability to recognize that person is here we have a question of fourteen or fifteen and a ten year age difference so the government's position is that it is a violation of accepted moral standards for someone who is twenty five not to be able to identify that they are dealing with a fourteen or fifteen year old distinctions between those two are effectively meaningless in this context it is true that we have a slightly older class a victim with two eighty eight c one but on the other hand we also have a requirement for a ten year age difference i as with respect to the other issues felony and all that matters is that there's the possibility of one year or more i just want to get back to the question the judge let your had to take my howling party hypothetical a criminal defendant is charged with hugging someone other howling party thinking that they were nineteen years old the defense is twenty four years old thinking to defend thinking the victim is nineteen years old turns out the victim is fourteen years old but the criminal  reason to think the person was nineteen year old person said they were nineteen they had a college idea with them saying they were a sophomore in college you can think of the many reasons why someone could make themselves look like in one thousand when they're fourteen or you say in that assuming in your hypothetical that there is an intent to gratify the lust or sexual passions of one of the parties to this hug yes the person the person the defendant's thinking he's interested in hugging this person he thinks is one thing to respondent refers to blend you know which does talk about two eighty eight but i don't know that face to make the decision regarding moral turpitude with regard to that specific stature i know that the that does talk about conduct i would find takes it out of the purview of the moral turpitude contra context in this case again there are there are no published decisions on this matter at at this point but but  and and and we're looking really at a four year difference between the can terrell case and somebody who is in this situation and a mistake of age is not it is not a defense even