petitioner had been dictated of an offense that was labeled possession with intent to distribute for the same amount would you be taking the same position well then i don't understand because isn't isn't there a lot clearer than that there is not a categorical approach in dealing with this particular question and therefore you look to what the facts of the offense were to determine whether it's a particularly serious crime not a particularly serious offense how can you say that categorically that inquiry is precluded because the whole point is is this the kind of offense that could be particularly serious when you turn to the facts and you already conceded that if you look at all the facts the standard could be met well it's a criminal conviction that provides immigration courts jurisdiction to predicate remove ability hansing the level of conviction the issue is whether this offense can be committed in a way that would be a particularly serious offense and i don't mean to put words in your mouth  us and i could not find any case in which a quarter of the agency itself re man did for a failure to  perform the first prong element analysis it seems to me from the cases that the agency and courts are treating it as a holistic analysis by over look at some precedent that supports you you need a third circuit opinion six hundred thirty third federal third to a one also your bill finally clear the problem is not the failure to do that i mean the agency it references the test and in in it's in it's decision it it refers to the elements test now whether it performed it incorrectly or what i'm not sure what your argument is but it's not that it over t first step if the elements are an aggravated felony or a serious crime whatever why does one even go to the second step i'm having trouble understanding what the agency was contemplat often does it actually happened that it comes out favorably to the petitioner well we think the paucity of case law in this area is a decade of the fact that for all the thousands of low level drug offenses that are brought in l i'm sure there are many cases of if there are cases of i don't want spitting on the sidewalk it's hard to imagine what could be an aggravated version but it's very easy to imagine facts and circumstances where someone is allowed to plead guilty to simple possession of narcotics where there would be an aggravating circumstance in the manner in which that particular crime was committed and i guess i keep coming back to the same point and it will be the last time i ask  what if it is true that the intent to distribute or the actual distribution in connection with simple possession could mean that the total  circumstances are of particularly serious offense how can you say that this is a crime that could never be committed as a particularly serious offense and therefore the the purpose of the second step then you see i need you to deal with the fact that the the first prong the first prong inquiry is not does it bring the offense potentially bring the offense and what does that mean suggests as judge lynch his first example gave you that you've got possession of drugs now you can have possession of drugs seen all kinds of circumstances but is possession the kind of conduct that potentially could be a serious crime because the the possession could be in order to distribute and the extra facts here show you that that's exactly what it was well no your honor possession by itself doesn't it potentially the kind of element that could bring it within and if not what is the what is the potentially qualifier me in this in this standard it is not the potentially bob i would submit refers to crimes that by their elements could pose a specific risk to victims that's the hallmark of the indicia of potentially serious crimes are potential harm to victims is the benchmark in most cases that means physical crimes crimes against persons it's about sexual abuse child pornography offenses which relate directly to the abuse their preceden drug trafficking is a serious crime i mean there's precedent that has held drug trafficking qualifies as a serious crime under the under the standard absolutely always not not necessarily with any proof of  a particular victim always with statutory proof beyond a reasonable doubt of a traffic element right you'll find hundreds of cases that are getting particularly serious crime applications based on for or dispute that before the immigration bill say that wasn't true that she distributed at the behest of her boyfriend there there are lots of mitigating circumstances here it seems to me that could go to a determination that taking all the facts and circumstances into account this was not a particularly serious offense but i was not under the impression that petitioner disputed rather than trying to mitigate the allegation that the she had distributed  testimony were very very limited and destroyed i'm not sure that she got into a factual explanation that specific event we don't review back fine right absolutely not it's a legal error that's why that's language to which we have signed on and which from which emanates the discussion we're having today particularly serious crime seems to have to step up and your adversary says that the first step wasn't applied here the review of the elements their case and so your response to counsel citation to the record at five seventy three seventy four east watch well i have that part of the record right here and i don't see it frankly it says at the bottom of page to discuss the facts and services so all it says is she wasn't convicted of drug trafficking which is an argument that's been made repeatedly and that's not that's not in dispute neither the board nor the immigration judge ever said that there was this very specific as to the opposite that this was not a drug trafficking so there's there's no i mean i simply don't see it from looking at five thirty i would consider the waiver argument but ok or the false argument but let me ask you how does the first  of the offense do not potentially bring the crime into a category of to kill a serious crimes the individual facts and circumstances of the offense are of no consequence which does kind of threshold inquiry i suggest into your adversary that i didn't find in the case law that that was how it was being applied but can you help us out with what he is that the agency is looking for at the first step or are you saying that there really is no first step and it's just a holistic inquiry of everything what i think to the extent that there is i mean i think the latter is more true if you look at the way the case mattered and i am but to the extent that there is some sort of a first i think that that the language of serious crime is it possible and this is just because the government shows some restraint in what offenses they try to characterize as particularly serious offenses when one could hypothesize that someone was convicted of a misdemeanor offense of littering and while i'm sure the government wouldn't do it if the government argued that that was a particularly serious offense perhaps the the board would say this just can't that i can imagine how this could come under that now of course the problem is if the facts of the particular case are such as to suggest that this is a particularly aggravated version of the that point but it hasn't found that yet what we see when we simply look at all of the case all the interpreting matter of pan am but you don't have to go that far of course right because you would argue that possession of narconon i take it you would argue clearly is an offense that potentially could be committed in a manner that would bring it with me and rightly so and i think there were several good reasons to find that it does tend to leave well within the first and this kind of invited the board of invited the board to move past that step get to the facts and circumstances and then the second is of course the matter of wild decision the fisher argues that point in their brief that the the government misapplied the matter of wild presumption i think it's very clear that the presumption in matter of wild was not applied what the i j a looked at was the fact that drug trafficking and immigration are serious  particularly mitigating circumstances that might suggest that this offense was not so dangerous for example an argument that there was quezada duress or some special circumstance that might mitigate the offense is that something the board well the concern i have here is that sometimes mitigating circumstances have to be out weighed against the what i'll call the abstract seriousness of the crime so if you know a life has been taken the fact that someone says well i was involved in a relationship and i participate whatever someone might not give that heavy weight to the mitigating circumstance because of the seriousness of the crime other crimes the symbols similar facts might bear might bear more more favorable for the for the keys i just had not understood from your response to judge whether you were saying that this is not a holistic inquiry i didn't mean to suggest that at all if it is a whole list because now it certainly suggests that you can consider the totality of then yeah i think that's completely fair to hope because if if you were telling us that the board failed to consider certain factors because he didn't think it could that would be an error of law if you're saying that you know he just didn't think they wa no i don't think that's what the board says munnell think that's right the question is whether the offense taken all in all is one that suggested injury to the community i think that's what an am says and the board and court have and deferring to it and to no venture or it's called have said there is not a separate inquiry into is this person a danger to the community but there is a danger to the commu inquiry determined to get to the point where it's particular serious crime at all as was necessary its case but on the other hand no such inquiry into the individual circumstances of this offender as she stands today whether she represents a danger i think when it may not may and may not be very persuasive you're writing on a clean slate i might take a different view but i'm not sure there's some logical inconsistency you're focused on the facts of this case and that might include the mitigating circumstances and so on but it might not include and i think this would be a critical distinction it might not include a reference to whether the person has rehabilitated herself since the crime now that may not be a very good policy as a correct interpretation of the federal statute is that you look to the facts of the offense that may be holistic that may include mitigating circumstances but if you conclude after doing that that this is a particularly serious of ense then a person who has committed a particularly serious offense is categorically determined to be a danger to the community independent of some assessment of who are they today years after well we've argued that  i could understand if there was if this was some other circumstance but to conclude that the facts here cannot support a dangerousness finding as a matter of law where what the facts show is drug trafficking doesn't make the immigration judge a fact finder for purposes of that there are other provisions congress knows how to condition an immigration petition or status based not on conviction but on the other provisions i get but the conduct is informing the seriousness determination and the agency has construed the seriousness determination to incorporate the possession only however i find that it was actually conduct that could be construed as that goes back to your first argument that as a matter of law and you know counsel cited those pages in three six five seventy three seventy four and i i'm it wasn't apparent to me where you raised it what what's the line where you think you alerted the agency to the fact that you were saying that as a matter of law a possession crime could not be as a particularly  five seventy three seventy four and counsel quoted so if you didn't quote the part you think is person and i want to give you the opportunity to tell us what you think is her i would refer also to the discussion of the record to seven hundred  a could not have found that the petitioner's conviction for simple possession of cocaine was a particular is there any indication that the facts there were such as to suggest distribution that's what the government says the