issuer if i'd like to request five minutes of a bottle granted thank you for your honors this case involves a man who is at most six months shy of being a us citizen he's got a daughter in the country his family's here his entire life has been built in the united states and the only reason that he's been ordered removed is because a single member of the beyond a in an unpublished decision decided that the pennsylvania stuff by deception statute is a cia take and it made a mistake when  that it although the theft by deception statute uses buzz words like deception the pennsylvania courts of expand the statute beyond the bounds of this with a b i have traditionally considered to be fraud under the cia empty statute to crimes that are punishable that would not be considered under the fraud statute and were not there would not be sufficient warning to a petitioner for example de minimus takings is the best example i think that we have in our free and under diaz right now you're focusing on the amount of the taking or the time of the taking but i take the board to be drawing a different point based on whether there was a fault she will or deceptive heart of a crime then we've decided that makes it inherently base you're just trying to distinguish the statute is not necessarily involving fraud or deception i understand that there are cases out there that say they're flawed as defined by the b i a is has punished that by deception that's the distinction that we're going for a real i'm sorry why is punishment relevant well i think that the b i a has in the theft cases that we are talking about has drawn the line between something where someone has been permanently trying to deprive someone of their property or money or such and so in for example the pennsylvania statute as written and maybe not as applied but as written for sure there are punish many de minimus crimes that could be punished as that by deception for example if a teenager walked into a candy store and said to the clerk hey look over there i mean and grab the can even take your part and just stop you for a nd because i think you're giving off the distinction i want to put punishment over there so i want you to tell me why it comes into the conversation and then if we can get rid of that and i think we can get back to what's troubling us so i think that putting punishment aside and it's not the amount of punishment i the amount of the taking that's occurring so i think that there's a distinction between the punishment and the amount of the taking i think society as a as a general matter your honor has not would not see a child stealing a candy bar by pointing the clerk or i misspoke an eighteen year old that steals a candy bar from a candy store or do you want to say so you want to say whether theft is inherently base depends upon the amount of the theft or the degree of does says that a temporary taking though it diverted diverges from its prior precedent that a temporary taking meaning and taking where you're with withholding something from somebody and then returning it and therefore by diminishing its value that's where he has makes something as to what's wall with their reasoning or in the polls i would say your honor there's there's two problems with that st that pennsylvania statue so but the st one is that we think that far under the pennsylvania statute which is not a fraud statute doesn't include the definition and the model penal code for example the model penal code including includes a definition of depriving somebody the word deprive appears  pennsylvania statute does not appear in the theft by deception statue the deprivation that's defined in the pennsylvania as a statutory scheme which is and thirty nine dollars o two i believe is talking about  permanent or long term takings of a certain amount the theft by deception statute does not incorporate that definition and so therefore we think that for now i'm not ground alone it falls outside of the true b i use traditional circumstances where the property rights are substantially routed that doesn't draw the distinction i think where you'd like it to be drawn with this notion of them in the miss you you can have something that's  great value monetary or otherwise but if the orders property rights are substantially eroded and it would fall within the ambit of the statu found us laws or ragas definition to be retroactive and that be i have long held that temporary taking all the way back to mckinney i'm sorry excuse me kenny and others have as far as the right itself recognize that i was departing from deed the temporary taking dr and i think is the same as comes down to the same thing as the de minimus in many ways for example in commonwealth versus grief there was a decision where there was the temporary taking with the intent to that's an outdated view and the b i eased view as of d s laws of aga and i believe i was two thousand and sixteen but before that when mr sharif was convicted under the pennsylvania statute he could be punished for a temporary taking within even if you had the intent to repay and yet still face and he would not be guilty of a cia mt under the president that we cited in our brief do you have any precedent in which a crime involving fault or deception hold up to be i don't have a case that i can point to at the moment your honor but the under the categorical approach it's not we don't have to show an actual application that is and that's in the hernandez cruise case that this q court held that we don't have to show an apple actual application is going to be the possibility of continued vision for a non turpitude misconduct however moat is sufficient to avoid removal now i see my time's up but the last point i would make is that we would say that the conviction under the theft by deception statute there's a mismatch between what the b i e has traditionally and the common law talks about is fraud and what is punishable under the theft by deception statu what i think is the age is a factor in this and it's not because of just age i think that it has not weathered well and the you know judge posner if it's just i mean there are statutory repeals right but you haven't really given language that congress has gone in a different direction but i think that congress that the supreme court if asked to condemn it we've got to look the court do that probably has to keep us it's their prerogative to overrule jordan's not  ours i think that's true that's true in some in some instances however i think it is incumbent on this court if they believe the supreme court we are is going to go in a different direction and there are many instances throughout the case law where the president the supreme court has not aged well and the circuit courts have recognized that through hints in decisions or volution to the circuit courts that the court's going to go in a different direction i think this is one of those cases felt that all i'm  specific subject subsection it at issue if you look at page three hundred and fifteen of the record petitioner in the phase of proceedings where he was making the initial admissions admitted that allegation that he had been convicted of a one so he admitted that to the immigration judge now the government thinks that a categorical approach from the fact of conviction is appropriate given the bet's exactly what the supreme court did in moncrief against holder in moncrief against holder the supreme court was looking at an individual who had been who had pled guilty to possessing a particular didn't perform divisibility analysis didn't do anything of that nature and so we think that it's perfectly reasonable for the immigration judge to have done the same thing here and at the end of the day there was no dispute and petitioner admitted that he had been convicted of that subsection and so we think it was reasonable for the immigration judge to look at that subsection instead of other subsections which were relevant now the end of the day if you don't agree with us that the supreme court allows them them to do that it doesn't really matter in this case because well for two reasons st of all the statute is divisible dollars a all have different jury instructions which the courts have held a pretty good indicator that there are separate elements as opposed to means but even if you didn't agree with that even if you thought that it was that it wasn't divisible it is really harmless  the agency anyway because this entire statute is one of that punishes conduct akin to fraud so even if the government lost on either of those two issues the entire statute is still bond on broad deceit and the board correctly pointed to the pennsylvania state in doing so the court specifically talked about fraud and deception with respect to the statute and noted that that this in this case deceit is a species of fraud and so we're not looking at the type of deceit that would implicate just simply lying right the  but the board pointed out that this species of theft theft by deception is an inherently fraudulent crime so it didn't have to go down the road there's a different line of cases as to how you determine whether a theft offense is the i'm t but because this is a specific species of theft  which fraud and hears it didn't have to go down the issue of whether there was a permanent taking or are temporary taking suggestion or is attempting to conflate those two analyses the theft in the fraud because it's so well established that fraud crimes are crimes in isn't really applicable here and the board specifically noted that now there's you know the petitioner has made a lot about the notion of intent to repay but the board correctly pointed out that intent to repay doesn't really help here st of all when you think about the larger picture and how fraud is universally recognizes the mc i can't think of a situation where intent to repay is a defense to fraud and that would mean that if his argument revalidate all these fraud crimes which have been recognized busy ideas would be  be the only point that i was making and the reason it was a footnote is because i don't think it's actually applicable here when the board relies on its own published president in a single member decision if it's relying on that president to the extent that it will lies on th of versus joy for the for the for the proposition that the person has to intentionally obtain the victim's property to be deceptive conduct in other ways it has the intent to defraud and this court but i don't remember that casing that one to whether these were elements or means that the entire line of sort of analysis that is i believe predated joy so i as i understand your initial argument all that's beside the point because rather than engage in the sort of least culpable conduct circuit authority to that effect would be i think because it's partly relatively new i think if you go into the sick i don't i can't think of any cases names off the top my head but i think if you go into if you if you if you research the issue you'll see that there's issues where things have been admitted to a judge and the courts have found that they don't have to look under what's underlying those admissions because the whole point of admissions is to narrow the issues for the parties so when the so when you have a fact of conviction here that specifically admitted by the petition er at the hearing it's perfectly reasonable for the judge to say ok that your she's been narrowed to that that's what i'm going to analyze now again the government has the alternative argument here as to divisibility and to the fact that the entire statute even if you're saying even if we have to look at the general framework for the categorical a modified categorical approach so it's just it's just fighting for a general proposition blood's not clarified so i think in the absence of any clarification we have to go with what the supreme court said it was doing which was applying the modified categorical approach moncrief opposed dated a lot of law on the modified categorical approach so it's not like the court didn't know what the modified categorical approach was and when it was doing that case they said they were applying the categorical approach so given that the supreme court did it we think that it was perfectly reasonable for the immigration judge in the board to do the same thing in this case it isn't also true though the way this was presented to the agency was rather vague i seem to recall a slash you know in this area the court applies the modified slash categorical approach there wasn't really a clear presentation as i read it to the agency as to which of the two was supposed to be applied it was sort of all jumbled together was not that's fair but what wasn't jumbled was that petitioner admitted the allegation that he had been convicted of a one  one party insisting you apply the modified the categorical it just didn't seem to be presented in a clean way to the agency i think that's fair i mean i think there's a lot of confusion on these cases particular down below they're struggling to crack i mean i can barely get my head wrapped around some of these cases the quite difficult but at the end of the day i think the board did the right thing here and even if you disagree the alternatives still lead to the same conclusion because the statute is divisible and because even if you look at the statute in its entirety sections two dollars and three dollars those also encompass fraudulent conduct you mentioned a harmless error but you know chattery this is a strong presumption we normally don't fix the board's mistakes for it why why would this be the fit within the narrow carm just well i'm i'd have to look at this but i believe one of the established exceptions to generally is futility so i believe it would be futile to stand back because the board does site to the pennsylvania cases that talk about this being fraudulent conduct and those cases all deal with  foregone conclusions and so that would seem to be a foregone conclusion given the state of this court's law in the state of the pennsylvania state law so i see i see i have twenty four seconds left i want to just briefly touch on the void for vagueness issue i don't harp on it too much because it sounds like not as understand that it's foreclosed by the supreme court president i know that petitioner is making the case that this is old law and there is some validity to that it's not an off the rails argument there are judges  other circuits that have noted that this is old law but that's something for the supreme court to deal with not for this court to overturn the supreme court and i would say that at least with respect to the definition of crime involving multiple since two thousand and eighteen when this court issued merino i would say that the definition generally is that this is an error a structural error and i do error of law that the b i a has committed below and it peek behind the document and look to see what the conviction underlying conviction was and if you look at the which is the decision  that was referenced in our brief the footnote that talks about moncrief it defines the categorical approach as a court may determine sorry excuse me the modified category and footnote for a court may determine which particular offense the non citizen was convicted of by examining the charging documents and jury instructions or in the case of a guilty plea the plea agreement peak plea colloquy or some comparable judicial record that's exactly what the government is inviting this court to do and is exactly what they told the to do below in this in this argument today counsel for the government pointed to the charging documents part pointed to the colloquy below and asked the court to look at the modified how to apply the modified categorical approach and that's a structural error that should be reversed and you should just send it back to be i e to correct because the pennsylvania statute is divisible if you look at excusing one second if you look at the statutory language itself and in the joy opinion if you look at the statute for theft by deception it's a double fence is defined as a person is guilty of theft if he intentionally obtains or withholds property of another by deception those are the elements and then it goes on to tell you different ways that deception could occur this is exactly what happened in math us where the courts gave a hypothetical statute which says an aggravating factor could be a deadly weapon including a gun a sword and i'm forgetting what the actual examples are but that's when you're trying to figure out how the crime was committed that's the point council's organization or standard he simply saying the record is quite clear that this is an a want a fence so you evaluate whether the least culpable conduct warden constitutes a c i m t and that's the modified categorical approach no no the modified categorical approach is when you're trying to figure out which subsection of divisible statute to apply right but here we don't even have to look at a one and two a three because the record draws our attention directly to a one a two an a three are part of the case well the test to determine whether to do the modified or the categor the crime of pubertal the typical modified categorical approach is a case where you've got a defendant and usually we're we're looking at decades unfortunately decades old state court records right so you've got a crime of conviction blank p a c s blank and that crime of conviction may have five or six subsections you don't know which subsection the person's been convicted of and then you drill down to the shepherd  the record tells you which of those six subsection of the person that's work that's our typical approach here the government is saying we've even need to go down that road because right at the st level we know that this person was convicted of the one he's admitted he was convicted of a one i disagree your honor i respectfully i wasn't convicted of a one he was convicted of theft by deception which is under a wonder what was he charged where the charging documents say he was charged with indictment are the charging documents it's in a one case well i disagree i think you want us to pretend that we don't know that the record tells us that i think that we need to show us a case that tell us that we should we should ignore what we and that's why i asked him a question yeah so tell us why math is supersedes math this tells you the exact tests that you're supposed to apply which is to look at the the offense that spend convict that can advance offense of conviction which in this case is that by deception you start there you look at the statute you determine whether it's divisible if it's divisible then you can look at the separate subsections it's not and you can look at the charging documents below if it's not divisible like in this case which is pretty clear from joy and from the statutory language on its own you look at what the least culpable crime is under the entire statute now this is just a list of an alum and sear i mean sorry a list of means of committing it rather than separate offenses in the subsections here so it's just like the example in mouth as in the hypothetical statute in mouth as which had an aggravating factor of having an aggregate weapon such as a gun a knife so on and so forth if the charging documents had said he committed assault with a gun and then he would be i believe that the map this court would have you look at the entirety of the statute and determine what the least culpable conduct was under the