of title eighteen of the us code we may disagree as to the particulars of how the comparison should be done what i thought was how do you think it should be done i think it should be struck categorical pro choice why is that when the word relating to obstruction of justice is included relating to doesn't that make it different i don't i don't think it does for the for our purposes i mean i think it still means that you compare the elements of the new york tampering statute to the elements of the of title eighteen i think the government has essentially there's a separate question i guess a difference of opinion between us and the government is whether fifteen twelve see has any relevance well right six to fifteen no three ok oh fifteen no three says that the first thing i would say in response to that is that i think the case law is very clear that there's a strong nexus requirement implied in fifteen zero three meaning you have to be interfering with a judicial proceeding interfering with a police investigation or prospective police investigation which is the most you can say my client did here or potential i mean i'm wide of the high there if he wasn't trying to hide the victim so that she her body wouldn't be found for the eventual trial anytime anyone does anything that conceivably qualifies as covering up a crime or trying to hide a crime you're questioning me about about whether or not relating to is that it would effectively expand title eighteen to include any interference with any sort of police investigation on the theory that it relates to an obstruction of justice and i just don't think fifteen zero i understand but i don't think it's consistent with fifteen or three or fifteen doesn't the fact that congress and acted fifteen twelve c and put it specifically under the rubric of struction of justice and fifteen twelve c is almost you know a mirror image when you look at i think it's not that says doesn't have to be an official proceeding i mean you look at the two of them you look at the new york statute and fifteen twelve see and they're somewhere where i guess i would part ways you know in fact they both say official proceedings i understand don't even say i understand as i understand it there's a definition of official proceeding in fifteen twelve c that says something like actual or perspective so how do we reason really i understand first of all i mean as i said before and under the strict categorical pro choice think you look at the elements of tampering statute and say would that result in a in a conviction under title eighteen if you  get how the new york tampering statute has been interpreted it is in my mind crystal clear that interfering with a police investigation whether or not there's any sort of judicial proceeding perspective judicial proceeding whatever c has been interpreted interference with an investigation is not sufficient i think there have been we stew decisions i'm aware of the go directly to that point and that you might think a different object to the jury instruction where the court charge that a person is guilty of tampering under new york law by altering or concealing evidence to be used in i prospected official proceeding did you object to that instruct facial investigation and an official proceeding for the purpose of purposes a fifteen twelve c does not include a police investigate that we're talking about the instructions which were given under the new york satchel and the rest of that instruction record it eleven sixty three sixty four said they prospect of official proceedings any action or proceeding by or before a legally constituted judicial agency or official in which evidence may properly be pursued such as a court or a grand to me that sort of makes it clear i mean i don't understand why that shouldn't cover the situation i've like to hear what you have to say i mean first of all i guess i would say that among among other things we don't have to get to the fifteen twelve see question you're asking me about because i think this is a clear retroactive application of that statu and you know that jury instruction notwithstanding i don't think it changes what the state of new york was at the time which is that you can you know go to prison for vi you know interfering with a police investigation but i don't want to lose the retroactivity point because i mean i think position because it wasn't against the person because the person you know was deceased is that really the test i mean particularly serious crime goes on to say you know dangerous community i mean it's really an assessment of kind of what went on here and under i am and under our case law you can look at reliable information as to what happened in determining particular serious crime and you're not i think under a walker what i would say you can do is you can look at most the charging documents if there are you know if the government has met its burden of establishing that there's a presumption that the defendant's conduct constitutes a particular the that the crime in question constitutes a particular scene was this misconduct which is very different than sorry walker was i mean this mr and that's not what we have there's nothing here that was dismissed that was this reliable evidence about  well as a matter of fact i think the b i a in this instance considered stuff that was there are quite was not convicted of but putting that aside i mean i guess i would say that the things that you would typically look at in determining whether or not something is particularly serious crime is is it a crime against a person does it involve threatened violence which i would interpret to mean threaten violence against the living person but this is about certainly a violent forceful act and it would seem to me that you know if they said ok we'll trespassing is a particularly serious crime you know i don't think we defer to that but when it's close and when there has been violence used and there was here shouldn't we defer to their determination as to whether this is and they look at these they look at a lot of crimes and they make this decision we have held that we defer have we not  i don't think that on the question of on the exam don't think that you have to defer to them on the exact question that you're posing but i think a lot of says you don't have very we said we owe them some know i mean tell me tell me where we have said we review it without deference and make come to our own conclusion that we pine to that effect i guess i'm not aware of anything an it's unlike other aggravated felony is in the sense that there's not a generic definition that we can look to it's not like fath door it's not specifically defined in another part of the us code like crime of violence instead they look to this series of offenses to come up with a definition that an obstruction of an offense relating to the obstruction of justice has as an element interference with proceedings of a tribe you know or investigation or action or threat of action against others who would cooperate in the process of justice if you read the statute of conviction the new york code mr downey had to know that the victim's body was physical evidence you had to believe it was going to be used in  prospective official proceeding and that he altered it and concealed it with the intent to produce for prevent its production or use in that proceeding but the new york statute says official proceeding or perspective of fi proceeding but doesn't say judicial now it doesn't and couldn't official proceeding be a zoning hearing i believe it could and how would that then equate to obstructing as well also under the u s code i believe it also talks about other hearings before agencies and so that could be similar you could have an administrative hearing so it's the greater process of justice that we're looking at and so if it was a zoning hearing i believe that would satisfy both the definition under new york law as well as the federal provision and as far as the priest the fact that it's prospective fifteen fifteen after i believe it is if i'm sorry fifteen exactly and i mean we're at the very beginning of this you know if you say a proceeding comes later when he would be arrested or investigation but he basically didn't want the body to be discovered is that obstructing and official proceeding  relating to the obstruction of justice it does not have to be an exact match to the fifteen series and eighteen u s c it simply has to relate to those types of offenses indeed if you look at that there's very few circuit court cases dealing with was a failure to appear charge that doesn't appear in the fifteen series that's at a different part of the us eighteen you're a see same thing and run to rio morale us in the ninth circuit that was a contempt of court so it doesn't have to actually appear within that series or be an exact match espinosa i mean mispresent of felony is helping to conceal another's felony and yet it was determined that that really isn't obstruction of just relating to isn't all that broad is it what the way that the board reached that conclusion was first coming up with the definition of interference with proceedings of a tribunals or investigation and decided that misprision of a felony actually didn't fit within that definition it was too far to attenuated for it to be related to this i think clearly the the the and the purpose of the new york code as to the new york penalize to prevent people from being able to get away with committing acts such as mr downey did if he had mistresses the same idea what i said that this was done this was the same actor and it was done in advance i mean if you look at his own testimony he did it because he was afraid if you threw the body in the water his fingerprints would be discovered and he'd have a problem with the police we don't look at that well i'm just saying we don't look at the statute itself cold words not what he did exactly in the cold war the statutes say believing that certain physical evidence is about to be produced or used an official proceeding or perspective official proceeding and intended to be used exactly about to be used it hasn't it he's trying to prevent its use or production by destroy in this case  simply goes to trying to avoid prosecution completely it could be to the extent of the prosecution in this case he was only convicted of second degree manslaughter not murder had he not dismembered the body we don't really know what the state of the body would have been and what the evidence would have information that you know about a crime exactly and if you look at if you look at a previous four decision a matter of fact you study looked at accessory after the fact and so that actually took affirmative action on the part of the defendant and so that that was that was an interference the record is recession to some powerful position do you think is the simming everything else that we should agree man for development of the record no i do not your honor there are there are two issues with the cat as far as the development of the record the first was that mr denny claimed he was the victim of ineffective assistance of his former accredited representative how to speak up a little however the evidence that he sought to submit at the second hearing actually was evidence that was dated the first hearing so he even if you'd had effective assistance he could not have presented that information it doesn't get a second bite at the apple just because you're saying we shouldn't develop a record but if we were interested in that issue why shouldn't the senate and to find out what position shivan this is in and he duvalier i believe that's true as i said this is a claim he made at the beginning of his two thousand and five proceeding has not shown that there was any evidence he could have presented in two thousand and five time which would have allowed him to succeed on that claim so he doesn't get to go immigration judge originally got it but the decision that resulted in what is docket number ten thirteen ninety one and that decision they considered the merits of his claim based on being a former police officer and found that he failed to meet his burden of proof there he  not identified any evidence that he could have presented at that time that he would have merited a grant of torture convention relief so he doesn't get to go back merely because he had an effective assistance of counsel if you wasn't prejudice but i am concerned about his claim that if he sent back now that this person whom he had accuse is now in a position of some power he never raised this as a change country condition claim before the agency he only couched it in the context of ineffective assistance of counsel so as far as change country conditions go that would be an exhausted claim that this court should not yet reached should he wish to pursue that before they board i suppose he could do the catalyst if you will for that was a change in the immigration and nationality act in this case there was no relevant change in the i and a between the time mr denny was convicted and the time he was in removal proceedings there was an act in the fifteen twelve c that's not within retroactivity issue the only the only issue here is the board's interpretation of the definition of an aggravated felony it looked to eighteen u s c but eighteen u s c doesn't have a direct application in this case so what it really is is just a change or an alteration  to that i mean the offenses that have been found to be obstruction relating to obstruction of justice are haven't been found within that that fifteen series there are other offenses so the fact that that tampering with physical evidence was later added does not mean that it couldn't have been discovered are found to be relating to the obstruction of justice prior to that addition it still has all the elements of the board that found found necessary to relate to obstruction of justice being the interference investigation so i don't believe that we have to reach the land graff issue and just briefly as far as the withholding of remove all we do think that this is a particularly serious crime and that the board properly considered all of all reliable information specifically mr dinies own testimony relating to the facts and circumstances underlying that the tampering with physical evidence conviction so that what we look at where do we look i and i don't believe this court has no but being that this was in under the discretionary part of the particularly serious crime as opposed to the per se we would say that the we just wanted to address three things very quickly that i just heard i think the government just suggested that you know something you know a proceeding before zoning board or whatever might qualifies an official proceeding for the purposes of fifteen twelve rejected secondly there was i think a suggestion that with respect to cat that we didn't offer any evidence that could have been presented at the time of his initial hearing that's not right if you look at page forty nine of fifty of our opening brief with some of the habits that we would have submitted but more broadly than that in order to find that there was ineffective assistance in the first instance you have to find that my client was prejudiced and therefore the sort of no far no harm no foul analysis that the government is urging i think is inappropriate you know after the fact re adjudicate the ineffective assistance claim and that's you know why i think you do need a reminder here for another hearing on kat thank you do we do that all the time under strickland and you know we always have to look and say would the outcome have been different so whether we like it or not as long as due process from an actionable standpoint needs prejudiced we we do do that sometimes it's hard but we graft that evidence that wasn't presented on to what there was and try to figure out what w best i would say there's no way to know in this case that we need a new hearing that we don't admit when there's no way of knowing we we do it we have to we're totally happy my time is up how did i say no to him suits me so much means that i wouldn't in the us in the universe but in i would i would look to the atkinson decision by this court which essentially said that reliance whether you're talking about what you know or alliance of a class of persons or you know individual reliance thank you and and