your honor similar to the argument you just heard regarding skidmore deference for criminal statute here in oregon we are arguing that skidmore does also apply to this case as to why the ninth circuit should not endangering it's inconsistent and invalid reasoning which is only owed skidmore deference the two key issues on the reasoning that  due to the minimum conduct task that the fifth circuit applies rather than the reasonable probability toss that the main circuit applies thus the remaining was on that issue in the way that the b i a did not use the proper well depending on what they say about their own presidential decision yes your honor my my understanding on that case is that while the statute was analyzed it was  correct past so that it's difficult to apply the analysis to this decision that your honors need to make today because the different tests that the fist circuit applies does not apply here in the ninth circuit but yes the conduct in that statute and only hernandez i argue is materially different than the conduct here in oregon primarily because harm is the last violin the last dupree so that organ does have an overbroad statute because their concepts of risk are overbroad the president to this particular statute to show us why they're so lets or harm contemplated in this particular statute yes your honor this is the texas statute under the penal texas penal code includes recklessly engaging in conduct that places another in imminent danger of serious bodily injury and the court focused on the eminence and the eminent death portion of the statute so that the conduct prescribed in that statute is more serious than the oregon statute would contemplate and your honor in my briefing i went through the criminal commentary and the for the foundation for the my argument your honor is that without the mention of death the organ statute criminalizes less culpable or less intense level of conduct so that so that death is not a foreseeable harm in that particular statute so it's just what i understand your argument so you're saying that they should have found that the organ statute didn't rise to the level required word and that petitioner continually argues since opening at the u a r level that the word eminent and the first the ability of the harm that one says that what the cases say is that the actual risk of eminent death to another person like romero's contraire as i'm out of the ninth is why the conduct is a crime of moral turpitude so looking it at the is generally a requirement so the statute contains that yes requirement i can see why that would be discussed but if the statute does not contain that requirement is it still necessary in order for the crime to  fit with the end definition you're on to be the statues that we're looking at do you all have the word eminent in them so they are specifically the legislature drafted that statute with that word but that doesn't help us in looking at the oregon statute because the statute does not contain that language so what we would have to do then your honor is look at what the criminal commentary and what the appellate courts have done in oregon were guarding this particular concept the conduct need not actually expose another to harm if your honour's are familiar with the facts in that case there was a attempt at an arrest for a violation of a restraining order a father was going to be arrested eventually and there is a sort of standoff the facts are disputed in terms of the defense's facts of the prosecution's facts in this case  actually was reversed because the court did not find that the defendant was aware of the risk that he was placing his child his child was in his arms at some point there were tears are down by officer sides not no one was pointing weapons me at the defendant or the child and the court said that they really could not support a finding that the defendant was aware of the risk awareness of the risk it does appear to be after c p caulked does and does appear to be a requirement of the oregon statute such that undercut your argument that it's not a crime or that does it because you need in order to be convicted of this offense you need an awareness of the substantial risk of physical serious physical injury to another person right right and my argument is that that kill that's kind of brings into the intent realm that we discussed with counsel in the prior case yes or no recklessly is much different than an intentional conduct and the stevie cooke case is indicative of the organ appellate courts requiring awareness of the defendant but also not requiring that actual harm be in the situation so the prosecutor need not prove that the child was going to be shot the child was in danger the facts of that case that are interesting is that  the court holds that nothing in the record suggests the defendant took any actions of a sort that he would have recognized created a substantial risk prompting a significant physical response by the officers no evidence indicates that he became aware that any officers had drawn their teasers until after he had by this child down in the child was safe the officers were speaking in a soothing tone of voice during the encounter and no evidence suggests that the officers did anything constitute the that's correct drama and my argument is that the conduct in this case differs so that we do have the same mens rea but the actus reus is not sufficiently reprehensible in oregon statute because it's over broad that is because the commentary and the appellate decision stevie cook that the government sites on their behalf actually shows that there is a hypothetical potential risk being criminalized that a zone of danger is radically undermines or attempts to suggest that this is simply some sort of negligence crime cooke is entirely about conscious disregard it's nothing about substantial risk this is purely about a conscious disregard and they petitioner here and then when we look at the agency decision to which this court does a complicated level of deference and right of hernandez in the other situations well that's why i ask counsel whether it made sense to  remain for the court for the b eight to reconsider that because now that the fifth circuit has ruled that the i a e a presumably is going to take a look at matter of hernandez again and we don't know what they're going to say about it well th the unusual situation with circuit splits your honor the reason and the reason snow is hernandez was decided on the realist probability test that the majority of the courts of appeals follow the fifth circuit follows what's called a minimum reading test it's sort of is a non doing a solid read because they do occasionally run into hypotheticals which is the problem and the board's view so when the board revisits that they're not going to revisit in any way their decision on the realistic probability test the only way they're going to address it is under the fifth circuit test so the fact of the fifth circuit reminded the case is frankly irrelevant because it's it's on a radically different imminence in the texas statute and there is not here so we would ask that there's that sort of aspect of it should be afforded chevron scuse me skidmore deference so we are kind of an unusual situation where there's one issue under chevron and one issue under skidmore but regardless of the level of deference here this court has legal no harm is required it's we're always talking about the possibility of probability  can say eminence all that petitioner wants to say it but what we need is what is the difference between saying actual risk and substantial risk well the difference in legal though is that there was imminent substantial annoyance yes your honor because hernandez did not address that that was of obviously an aspect of the texas statute so but really what petitioner wants to hang his hat on is is one word that is largely explain what is the difference for example between in terms of moral turpitude because that is really what we're talking about here we're not talking about purely what two cases say we are talking about how does i know in don't care about the harm to other people harm so what we are always talking about is a probability of harm whether harm occurs today tomorrow it doesn't matter if you shoot someone in they die in it because you shoot in the face and die immediately that's murder them in the leg and they bleed out next day as murder what we have here is a call poor state of mind recklessness which is your concedes is sufficient and reprehensible conduct as i mentioned before the subsection seven of the statute serious physical injury is under subsection eight of the statute so we like those cases we need to be mindful that those aren't serious physical injury ca evil mind latter seeing vicious motive water saying and violence accepted moral standards when we're talking about looking at the morality of conduct we must talk about eminent see and the level of harm so the government  is trying to go why do we have to talk about imminence why is that required under this under the precedents it's required because of the statute plain language that begs the question if you're looking at a statute that has imminence of course that's required but the question is whether or not a statute is required to have that element in order to to meet the definition and you have told me there is no case that says that that's correct there's no case that says that eminence must be required in a reckless mens rea a crime to meet the threshold of a crime of all turpitude but we just we just have the progeny to look at in terms of the case law and deciding to expand mens rea from intentional conduct to recklessness to be i was making a leap so government as i can see that it is clear that the by the ninth circuit has gone with recklessness but in finding and continuing to expand which if this case if this particular statute is found to be a crime world turpitude it would be an expansion and terms of how much risk how much harm where are we going to draw the line in terms of crime of moral turpitude and finding the morality of conduct and petition and argue that the these particular crimes meet the threshold of crime of moral turpitude and that threshold is high only truly unconscionable conduct surpasses the threshold of moral turpitude that's out of ramirez contrasts and that's from last summer from your from the ninth circuit that is because the conduct must be sufficiently reprehensible and petitioner maintains that the statute is overbroad and because of that it allows conduct that is not sufficiently morally sure but to deny this reprehensible be vile because we're taking out the forsee ability and we're creating a zone of danger for potential victims to enter the zone of danger at later times and that was all in my