i can hear you fine thank you i would like to reserve four minutes of my time for rebuttal i think you there are two issues before this court one is whether the board erred in denying the motion to reopen by finding that petitioners conviction for assault with a firearm is still a crime of violence under sixteen a and the second is the motion to reopen based on changed country conditions for purposes of cat unless the court prefers otherwise i'll proceed with the aggravated felony argument as to the first issue the board held that bob the case established that petitioners conviction was a crime of violence under sixteen a however petitioners motion was based on a change in law the board's decision in matter of guzman palanker from two thousand  which applied the supreme court's decision in johnson to interpret the phrase physical force to mean by law and physical force the board reversed a two thousand and two decision in matter of martin regarding an assault conviction which had held that assault conviction was a crime of violence under sixteen a based on the board's decision petitioner moved to reopen his removal order while that was pending the court issued u s versus worley which applied johnson and found that the use of force in the washington riot statute did not meet johnson's definition of violent physical force or force capable of causing physical pain or injury to another person despite the intervening law the board held in petitioner's case  a conviction for assault with a firearm remains of a crime of violence under sixteen a matter of this month later clarified and was amended to hold that circuit law governs the sixteen a analysis regardless of what the board requirement of the use of violent physical force is determined by the circuit court or the supreme court if it revolves that correct question and the board's position is that there can be no agency change in law on the crime and violence issue unless this court or the supreme court overturns its precedent no the board relied on the court's decision in her own silliness and then obviously there are many other cases finding that to forty five days a crime of violence under sixteen but after johnson the court needs to apply the test that's laid out fairly nicely in the u s versus dixon applying johnson dixon holds that the elements of sixteen a required that one physical force use must be violent force or force capable of causing physical pain or injury to another person and the use of force must be intentional not just reckless or negligent no court has applied this two part test to two forty five is solved and that's now required by johnson now the court is aware of the recent case of vasquez gonzales that was issued last year which again found that california assault is a crime of violence under sixteen a however vasquez going salis just not even mentioned johnson or the requirement that the term physical force used in sixteen a violent physical force nor does baskets gonzales assess whether two forty five a require case cites johnson neither to have the but that's the case have to cite johnson well i tell you because johnson changed everything is as far as the use of the term force to become violent physical force and so i also want to note baskins but if the were of the of the view that johnson didn't change the conclusion wouldn't we assume that the court was aware of johnson and the fact that it was not discussed meant that it didn't change the analysis well as that is the court's aware unstated assumptions are not binding in the court i mean but we're bound by the ruling of the panel unless it's clearly inconsistent with supreme court authority correct yes and of course the issue is whether johnson's change this last analysis but if you go all the way back to her own silliness and her heda which are those first cases looking at two forty five day they say that even minimal force even a minor use of force for two forty five day is enough to violate sixteen a and not not the case anymore for purposes of johnson right johnson requires violent physical force and i do want to make the court alert to  intent to commit battery but there's actually an appellate decision called people versus as in of all a from two thousand and twelve where the appellate court from the state says williams makes clear that assault does not require an intent to commit a battery and so you know this it's a moving target on the sixteen a analysis of the court's probably aware of the recent decision from stokely from the supreme court and then of what i seen it's all moving constantly but the key in the analysis and i think this is the way to break th is that under california law there's three mens rea there's an intentional act knowledge of the facts but there is negligence regarding the risk there is and you don't have to be aware of the risk and still consciously just regarded the counts that's not confusing regarding which mens rea attaches because it's an intentional act right under dixon we have to look at the second element which is the use of violent physical force and because of the court's decisions in fernandes release that needs to be intentional that any minimal force is enough right it doesn't use violent physical force and that wasn't the standard until johnson and in fact just short of their decision in florida over a week which i'm sorry in flora's car darryl regarding  we said that he that our case is continuing validity on this point right that investors gonzales there is no use of the term violent physical force and there's no reference to johnson at all are you saying it's wrong it is it's also wrong volley but the reason i think that it's not controlling is that there was no mention of johnson had said we believe johnson didn't change the case law it would be different but it doesn't say that that just doesn't reference johnson it doesn't reference dixon in the unless they case goes through the analysis that you think it has to go through it's not binding precedent i think in last the court specifically addresses the argument which is again the johnson two part test this out and jackson's been followed we did a twenty ha i think five or six times now since briefing this is the new analysis the courts are doing but yes it has to go through this two part analysis otherwise the past decisions are not binding  that unless the analysis goes through the two step format that you are urging it's not binding precedent can't rely on that this is there a case that makes that distinction i think if the court looks at the recent dixon cases that were submitted by twenty eight say there's garcia lopez walton and stud horse they go through these analysis i agree i may go through the analyses but there's that mean that the cases that did not go through the analysis are no longer binding precedent i mean if you look at that i think it's the sakamoto decision it's the general proposition that in a case that assumes a point without it's a discussion is not binding and the court has reiterated that in the  throughout is this just a general principle this is an argument that hasn't been addressed yet in the two forty five a context with the court like me to go on to the second argument on the motions reels and will i just trying to understand that so are you trying to write are you arguing that no conviction of assault with a firearm under california statute is a crime that's correct yes your honor so as to the second part of the argument on the second motion to reopen this was based on change country conditions and want to be clear this is a cat motion to reopen and just of the court is aware we raised this under sewer spontaneous already because the motion to reopen regulations were never amended after cat so right now the board regulations say you if you show change country conditions for purposes of asylum and withholding of deportation then you can reopen it doesn't reference cat after the decision came down the case of agana for came down from the ninth circuit and said the authority is actually one of its to use that asylum regulation even though it refereed doesn't reference cat we think that regulation is too narrow but it's not even clear this is now a sewer sponte motion tree open but more importantly it is still a sponsor we don't have this is kat this is the convention against torture there is no discretion in this decision and i think the board seems to acknowledge this well but the problem i mean i think risk it being past the point of the motion to reopen and if you are asking the board to su reopened but at that threshold inquiry what authority do we have to tell the board to exercise the suicide authority rio so if you look at the board's decision you know it says that you answer that question first what  deny in a mandatory form of relief case as long as there's new evidence presenting a prima fascia claim but more importantly here we have legal issues that have been raised right bony has says that even to a spontaneous decisions are reviewable for legal error morning your honour's image please the court and runs it for the government there are two motions to reopen this consolidated appeal i plan to address today the motion alleging a change in law based on johnson the course happy to address any of this panel's questions with sakit regardless of law of the case and regardless of this court's prior decision there is no question that johnson does nothing to disturb this course long line of cases holding the california assault with a firearm is with regard to the timing of johnson and the agency's decisions here now as i just mentioned johnson's are you around at the time this court tonight petitioners previous petition for you and that's why that decision is love case but more even than that johnson was decided before petitioner was even placed in removal proceedings in two thousand and ten and that means two things petitioner could have reduced but did not the johnson case before the immigration judge for the board of immigration appeals in the second point is that johnson can't be a fundamental change in the law and it wasn't even a change in the law at all it was already around before petitioner was even placed in removal proceedings so this is all by way of saying we are you law the  course the board has already denied this motion based on law the case but there is a host of other significant procedural concerns here and there are serious concerns of repose and finality implicated by bringing up the case nine years after the fact when you had the opportunity to bring it up during the original proceedings now so all of that aside i'm perfectly happy to talk about the merits or your honors i think johnson was not raised and has not really been addressed in that literally dozens of thousand and three and because of that because we took out which otherwise it's central hall it was about mens rea and require an intentional conduct cult hocked about the level of force required to crimes of violence and described it as violent a category of to cap your honor the one point i would make is just again as you as this panel seems to recognize a very limited jurisdiction because you're talking about a suicide context there is not when you talk about what jurisdiction there is in those plateau thank you just a few points council mentions that if you go back to gray heyday it does say the least offensive touching would meet the violence standard but if you look at the recent case the supreme court again is that a sixteen a analysis essentially and still killing which is from january of this year it talks about the use of physical violent force and it it again reiterates that a minimal force is not enough that in still killing the issue is violence necessary to overcome the physical resistance of the victim so minimal touching isn't enough under the supreme court's analysis under sixteen also quite sure what's your response to opposing counsel's observation that in the context of a firearm minimal touching is sufficient with the far other wise the weapon right there are two the three california cases that i think address this point people chance supreme court case says that just pointing a gun alone is enough to meet the assault and people versus last is enough is enough you know not a person just pointing the gun people versus lathis and people versus turner both state that just touching the gun alone is enough a celebratory event shooting the gun up and as long as you're aware that a person is there that's enough so these aren't threats necessarily in lathis i believe they were shooting a gun at a parked car and so there was no threat there but because another person was present that was enough to meet assault so again we have to go to the assault with a deadly we saw with a firearm assault with a firearm these are all those cases so again we have to look at the you know we're looking at the of conviction here and overall of the elements of one is how very ridiculous that sounds to anyone who's not a lawyer steeped in johnson i mean i will still a little bitter because i was her first part of the circuit last week because they said murder is not a crime of violence in washington state oh i didn't see that case actually that was me i know obviously that is another word that they make and i think you know the dissents in these cases focus on this right they focus on or the concurrence is actually looking at the facts as opposed to but obviously we know the law under johnson is the record of conviction just finally we do present three legal issues in the motion the second motion to reopen right these are legal issues so under bon