difference in their diff definition now is where they talk about yelling affirmative intentional and tamped motivated by a specific intent that's no different than the other one nobody thought that you could obstruct justice negligently but then they talk about there must be pending a reason we forseeable by the defendant and another's punishment resulting from a completed proceeding now there's two problems with that that certainly covers you know a grand jury iris ordered a special prosecutor questioning roger stone it doesn't cover the stop on the street or the knock on the door where there's no no before we get to that at least i'm concerned about the chevron analysis aspect of this  and i'd like to begin by asking you whether you believe that the law case dictates the conclusion in this case that section one hundred and one a forty three s is ambiguous we bound by previous panels ruling well certainly the previous panels found that it is ambiguous they certainly found that chevron deference is not appropriate i mean that was exactly the specific finding in the whole line of cases unworkable so i don't i think the chevron is not a political here it's been specifically found by other panels to not apply i mean indeed valens whaler guard to one specifically found that they said is not entitled to chevron deference that's why they sent it back in fact what they basically said is you know for matters of prudence simplicity and clarity obstruction of justice in the immigration context requires an ongoing judicial proceeding and yet they said finding so as to the alien how can i defend against what's foreseeable right the only documents that are in here are a conviction document it's unworkable i mean you know how does the government prove it but how does defendant say oh no it wasn't recently foreseeable because i mean not to my door and asked about my wife you see one saying i mean that it's it's vague as it is because it doesn't cover everything that happens again for my cloak the reasons the stop on they're basically saying penal code thirty two will be obstruction of justice forever i don't think that comports with this court case law so i mean you know we give the board c minus here i don't think they properly they don't quote a single one of the cases that propelled the remained you know the you know the most obvious cases salazar louisiana where the gentleman help people escape but they found it wasn't structure of justice because there's no charging document to they make you wouldn't be destroying records unless you were truly trying to obstruct justice so my you know this i think i want to greese this particular area of law crim a gracious is very confusing we have the opportunity here to have clarity and simplicity they require you know and which is going forward with most of the case again it's to do as it has been i was a board you can say there are times or something may actually obstruct justice but it's not obstruction of justice with a capital zero under immigration and again this is one of the particular problems with immigration law so that you know in a criminal context you can bring in all sorts of stuff people can testify here they have a different definition of categorical i cannot defend it i can bring up other evidence  a reason we forseeable so i think for purposes prudential reasons clarity and simplicity the court should just agree with the whole line of cases that say for the purposes of simplicity clarity  incorrect because we have no argument of divisibility was at the federal definition requires a proceeding thirty two dollars doesn't the board is basically saying that thirty two dollars will always be obstruction of justice and that's not in conformity with all the definition that is again i don't think it covers you know the word investigation does not cover everything that happens on the street and you know they quoted mary nello which has a much better definition which the government  recently when there's a crime volved you're covering up for it so what is the what is the board's new definition really add it or take away there's not any  me act before or after that would not be reasonably foreseeable around an actual crime so that does that create a host of other problems as i understand what you're saying is actual st route for sea ability sort of big a proxy for reasonable for sea ability as you know it to the extent you know that's basically what this statute does and yes your honor what we would say is under this statute that actual forsee ability that you have to have in order to specifically act to intend to hinder the arrest prosecution all of the parts of the process of justice basically there that the actual forsee ability is essentially the reasonable for see ability to the extent that there have been arguments made that well a crime is committed just because a crime is committed and you do something the problem there is that if you're not acting objective the reasonable the  objective reasonable standard here is what saves the definition from vagueness my opposing counsel is not raise the specific issue i have briefed it in other cases that are currently pending before the court in terms of how reasonable for  ability as a legal standard works and it is very distinguishable for example looking at the ordinary case or substantial risk that was found to be in the sixteen b context because here what you're looking is a legal standard and the objective reasonable miss standard is in no way ambiguous it is very widely understood like the entirety of tort law you're looking at what the reasonable person under those you know ordinary circumstances would or wouldn't do there's no legal imagination being applied here it is in fact a legal standard that is applied similarly throughout the country both in federal and state law and so because you're using reasonable forsee ability and that's also what the supreme court extent of the reasonable for sea ability in marin elo was acceptable by the supreme court there to sort of narrow it saw that something that was sort of in the offing on the horizon that was what i was looking at and same thing in arthur anderson in terms of these a lot of these cases have to do with spoliation in terms of the preservation or destruction of evidence when it is reasonably forseeable that that evidence is going to be needed that's when the reasonable for c ability standard generally arises in those types of statutes so looking at those lines of cases that those have been found to the reasonably forsee abilities standard has been found to be acceptable in those situations as as a as the measure of when you would expect someone to throw away or to preserve evidence in anticipation of something and it means that it's on the horizon it means that a person under those circumstances would reasonably expect that that evidence would be needed and i have to point out that the court last time around  in footnote seven i had the majority of the panel said the dissent argues that the board's definition you know is is not missing the required nexis and then they were quoting to a forseeable or contemplated proceeding and suggests that the interpretation requires a nexus to an ongoing or contemplated proceeding but this is not what the board said in an invalid's bill the graveyard of the the st time around or in our moral argument before a court the board simply said that the existence of proceedings is not an essential board essentially took the instructions of this court's prior decision and went with it i i it would be next to impossible to see how the court how the board could have gone wrong by following the majority of this panel the last time they simply followed that footnote that footnote happened the reasonable for c ability standard also happens to be in line with everything that the supreme court case law supports as well but i have to point out that it's hard to say how they could have gotten it wrong this time when all they did was take exactly what the court suggested that they do i have to point out that we absolutely are stuck with the fact that this is an ambiguous statute many of my opposing counsels in other cases continue to urge this court to take the position of the rd circuit and find that this is an unambiguous provision and that a crime must relate to chapter seventy three dollars and it's simply wrong on all levels this court has three times recognize the ambiguity of the statute st then in salazar based on went to rio and then in this court actually acknowledged the rd circuit's position on the matter and said well we're not following that we've already decided that we're not following that and so there's been already an expressed recognition and rejection of the unambiguous approach here so we are absolutely at step two of the reasonableness of of the board's definition and the what the board didn't do last time that the court found trouble with was that it didn't define the process of justice and what that means and where does it begin and where does it end and that was what the court was very much concerned about and so now we know here is where the process of justice begins  when when an investigation is reasonably forseeable and it ends when you're interfering in someone's punishment from the whatever the consequences were for all the rest trial punishment so that if that's where it ends we have a beginning and we have an because it defines a crime as opposed to a civil immigration penalty and so because there's criminal implications i'm sure you're familiar with the term job application it's a dual application statute and has also potentially severe consequences isn't that these aggravated felony provisions because of the fact that they have these civil immigration consequences because they are interpreting them in the administrative context i'm saying because it's also a crime yes and we have reserved to our province  interpretation of criminal statutes as opposed to the interpretation of civils statutes so i'm just questioning whether chevron applies usually chevron applies to the agencies interpretation of the statutes that it implements right the agency doesn't implement criminal statues parts do well your honor as as i pointed out i mean in the brief i point out the very small very very small number of actual criminal applications that the aggravated felony provision actually has an practicality the numbers actually even gone down in terms of the number you know of actual prosecutions that are using it i so compared to the huge number of applications in the civil immigration context there is a very small fraction of criminal applications and in this court as you know this court has specifically found that it must follow supreme court precedent and supreme court precedent says that chevron deference applies to the agency's findings with respect to you know the aggravated felony provisions and so this court has never found that to be a problem in terms of deference and especially looking at this particular case at no point did this court say in its prior decision that the board was not free to fashion a definition on remount in fact its pacifically gave that in the  yes your honor i mean the court's priory man specifically sad the board is free to follow it it offered the option of following its prior definition in the spinoza case or a definition that doesn't invoke vagueness  concerns and so the remained was specifically for the board to create a definition and so in this case you have the board just coming back and doing what the court asked it to do so this is all basically part of the same case here retroactivity analysis in terms of the unsettled nature of the law i just wanted to point out in terms of how do you look at reasonable for solid for see ability when it's not an actual element of the offense and you're sort of looking at the inherent nature of the offense there have been a couple instances where this proceeding was never part of chapter seventy three to the extent that congress had chapter seventy three in mind when it created this provision certainly you know there's nothing that's the whole problem with what opposing counsels and other cases they do the same thing they take the broad provisions of chapter seventy three and act like it's the entire chapter when in fact there were provisions already in the chapter but also also enacted previously so both pre both prior to the inaction and post the inaction never intended chapter seventy three dollars to be limited in any way to a proceeding but that broad provisions that seemingly would include a lot of conduct can be narrowed in a way that allows us to understand the in the tax code that was pretty much analogous and said we're talking about reasonable forsee ability here seem thing in arthur andersen something that can be foreseen and so and go and speaking of the reasons oversee ability in terms of like looking at the inherent nature of an offen court has had no problem looking at the inherent nature of an offense to determine whether it qualifies as a generic offense and so what we're saying is there may not be every crime like for example this crime doesn't include reasonable forsee ability in its actual elements but you're looking at the inherent nature of the offense as i mentioned the actual forsee ability is a proxy for reasonable for c ability in this case and in to the extent that there was ever any retroactivity analysis i mean it's kind of hard to even say that with a straight face in this case because that every point during the decision process that was made here it was always that this is an ag fell so this this particular statute from the very beginning the i j a used matter battista hernandez to say that the existing precedent at the time was finding that this statute because there it was u s c three that was found to be an act and so the i j a i'm sorry i'm sorry an aggravat person after a felony has been committed to her wrist conceals or aids with the intent that said principle may avoid or escape the arrest trial punishment so it's that specific intent to intent right that's not an objective standard well so here as i mentioned there's actual for see ability because you have a specific meaning here and i'm sorry to hear in this statute here in this particular crime there might be and states you know can vary on how they do this but really in these hindering prosecution rendering criminal assistance accessory after the fact they're all written in the same general way which is to act with a very specific intent and it is very much that specific intent that there's no you know in terms of the duenas alvarez there's no realistic probability here that somebody is going to act with a specific intent and how baksh will forsee ability that wasn't also reasonably forseeable if that makes sense well we'll think  you know the helping the prisoners escape case those cases do not stand for anything except the inescapable conclusion that for prudential reasons it must be found that there needs to be an extradition proceedings finally there is this catch twenty two this whole idea of foreseeability all this business by making it categorical the defendant has no defense he can't say oh it wasn't because it doesn't and if you make a categorical finding you can't bring in