question yes there are two charge grounds remove the philippi and i'd like to start with the one issue that would just pose of both of those grounds and of the entire case and that's whether the statute of conviction here the false financial statement and the reason for that is that five thirty two does not include anywhere an element of tried or intent to defraud which is required for this court to find that the offense is either a c i m t or an aggravated felony here the statute of conviction and noted that it does not include an element of intent to defraud in contrast there is a parallel provision under california law as under connecticut law that actually is largely overlapping penalizes making a false misrepresentation to obtain property or kids with the intent to defraud in this case your honor the california and i could submit a twenty eight chain letter with a citation your honor the main point though in answer to your question is that even if the intent to deceive is enough to make something an aggravated felony under subsection and context and knowing false statement isn't enough to make something of a project like offense that congress wanted to penalize with removal i'll give you an example let's say you have a statute that sad any false in any financial document is a crime this state wants to penalize that but if i'm vain and i always lie about my age and so i apply for a loan and then i lie about my age it's not something that congress would have least your honor in order to qualify it has to be a knowing false statement with your reality it has to be a material false statement and i think the cases from the b i a about the federal and that the i j a is holding as to the particularly serious crimes correct there still is relief in the form of not removing him under the convention against torture of relief then the question that one of the questions that is actually before the supreme court in the alley case is why there and non aggravated felony conviction can be a particularly serious crime but your honor i think that this court can actually dicta but this court has said numerous times in various decisions that that for crying to be particularly serious it has to be an aggravated felony that question is before the supreme court in the ali case how three independent and sufficient grounds independently sufficient grounds to reverse the i j a determination that mr t johnny committed a particularly serious crime and one of those grounds  honor the ultimate decision about whether or not an aggravated felony is a particularly serious crime is arguably discretionary although i would say it's not clear from the statute and i presume th supreme court may get into that issue but whether mr to johnny gets withholding of removal is actually non discretionary that is a mandatory form of relief if he meets the requirements for it and so your honor in any event if you're asking about jurisdiction we've raised soley legal claims with regard to the determination that he committed a particularly  offense in question to see whether it's particularly serious you can look at more than what you would look at under the modified categorical approach in other words you're not limited to that those pieces of the record of conviction that you would look this case mr johns simply is not removable now even if the court disagreed with that it's clear that mr johnny is not convicted of an aggravated felony anyway because the government did not prove last time out and it could not prove last amount under this court's precedents which hold that where hurt because not only in lean but the supreme court in teller and chuck byrd emphasized that the jury has to make the requisite findings i understand your point judge help exactly the point you're making look where lost i'm now isn't an element of the offense why would the jury ever make a finding and he said that suggests in fact that you never get to modify categorical approach and that an offense that doesn't include the conviction is by jury trial the jury had to make a finding about lost and now the other point i'd make in response to your question just callahan is that when congress  that would be enough but that's not what happened here and your honor i would point out one other thing in response to your question and that is the california restitution restitution statute includes things in restitution that are not included restitution amounts for emotional distress of the victim which explicitly excluded from federal calculations of lost also includes interest on any losses accrued by the victim which also is specifically excluded from the federal definition of loss and your honor i want to emphasize that in shepard and taylor and in late the court this court in the supreme court have repeatedly emphasized that the reason we want the jury to make the finding is because when you have these consequences of a conviction we want to make sure that the standard of proof is met and that the jury made the finding now if someone is convicted by guilty plea that's a different ballgame as you noted but in this case the california restitution statute says that the sentencing judge can set restitution based on the claim of the victim or any other evidence there's nothing about the standard of proof for that there's nothing about the reliability of the evidence a sentence in judge under the california restitution statute could set restitution even if there is a lot of evidence that contradicts what the  that's right your honor but the basic point i would make again is that the president is clear as judge kozinski noted in lee if the convictions by jury trial the only end of the generic definition of aggravated felony including boston  just have to be found by the jury that's the bottom line and the reasons for that i think are bolstered by the california restitution statute which so that whatever i'm now the sentencing judge said here you can't use that as a reliable indicator of what the actual loss was as congress intended that term thank you so i'd like to reserve five minutes for th maybe the court my name is ernesto molina from the united states department justice representing michael casey attorney general united states in this case in this case the court dressed as an alien who lived since his arrival or as a mission in one nine hundred eighty five that's committed approximately sixteen different offenses against california last generally these all hold office three to lying or some sense of dishonesty here an immigration judge found the feeling was move on to ground fraud as a part of that statute here in california as a government brief points out california has construed penal code five thirty two a subsection one i don't see the case your best case on that  forty four now the the defendant came to the court and said look i can't be convicted of both of five eighty four five thirty two and five thirty two a because five thirty two any is any particular case involving this type of involving fraud now what the california court said was that's exactly correct five three t of five thirty two and four eighty four now that was important because under forty four and five thirty two personally convicted of a felony under five thirty two a it would be a misdemeanor and the court said yes we realize that  involves much more or less the same type of fraud but because five three to a is the more specific case we generally interpret the specific over the general and we find that if you're guilty of that that's have an offense under five hundred t very particular instance of five thirty two the courts continue to a group should should show deference to the california court interpretation of statute and find that indeed fraud is involved in this statu and even with regard to that the court looks to its own precedence in the case in terms of what constitutes fraud the course mean very direct as to what constitutes fraud it's more or less in the normal sense it's acquiring another's property by intentional misrepresentation well that's exactly five thirty two a day by thirty two he says a person knowingly makes false statements with the intent that it's going to be relied on in order to get money for or credit to study something some form of property well when you make a false representation expecting someone else to rely on it they rely on it to their to their detriment that is fraud in the class now we come to the question of whether or not this would be an aggravated felony simple fact the governor strongly starting this pound in ferreyra for a case decided in two thousand and three i believe it was where this court analyzed california penal code twelve or two point four f and found that yes when a loss is designated under that particular section it can be relied on and mind you and it's not contradicted by anything else in the record it can be relied on to show the amount of loss that's slightly different than lead where there was the guilty plea but we don't have a guilty plea here we have a jury finding which means that the order of restitution is standing alone and on contradicted and that context it's for mr bill or the attorney general the there is fraud or the seat resulting in a loss in the amount of x amount of dollars it doesn't mean that the person had to steal ten thousand dollars it means that the what the person did caused a loss to somebody else partner i say broader than the generic right when you crime a conviction is missing the element of the generic crime all together we can never find that quote the jury was actually required to find all the elements of the crime the government's argument on that point but only with regard to remove ability and this is where the importance of matter and i am comes in that is even you know it's certainly clear that the board of immigration it feels in the end i am case the burden switches over to the alien to show that their offense did not involve these particular that putting a problem in so says the born  can look to the outside forces to find out what was involved in the case now is because of that in this case there's a restitution order to the i'm effect of twenty seven thousand dollars there is substantial reason to believe that mr to johnny analysis what i mean the state is that there the board of immigration appeals says it doesn't necessarily have to be an aggravated felony both find out from the supreme court relatively soon so put that aside for the moment but then the question of whether or not it becomes a particular serious crime is generally a discretionary question of this court has also held that in terms of looking at the standard that the immigration judge or the board applies it may be that may be a legal question this court can review but at that point we're still looking wide open because if the crime doesn't have to be an aggravated felony the court can look at this person say you caused twenty seven thousand dollars worth of damages through your illegal activities you know this this constant fraud from ninety six allowed as a matter of discretion to come to the conclusion that this was in fact a particularly serious crime and that evaluation is what's not subject to review by this court and it doesn't answer your  right i didn't i didn't think i should go i don't think i should go on to other other focuses it at that point unless the court has any questions of for me no i don't have any questions i don't have any  four separate claims of legal error respecting the holding that mr cho johnny committed a particularly serious crime and i think we talked about those already and they're adequately briefed if the court rejects all of those claims of legal error then there still is one issue for the court and that's whether mr johnnie was entitle to really funder the convention against torture a claim about how the immigration judge improperly required crop orating evidence when that i relied on something that was particular to the testimony in other words he said either in the early we are proceeding or in that proceeding we're looking at whether he converted in eighty nine or ninety two and i thought if it no there is no adverse credibility finding then you can't require corroborating evidence that the court should at the least remain and this i j as you say expressly said i'm not finding you incredible what he said judge you know and is if because you have criminal offenses involving dishonesty which by the way were not charged and a notice to appear because you have those prior convictions i'm going to require you to present cropper evidence he didn't say i'm finding you incredible because of your criminal record this court's precedents make it clear if there is no adverse credibility finding then you can't require alleged dishonesty but he didn't say in light of that i'm find you incredible he said i'm not finding you incredible but in light of your record i want you to present programming evidence and that's inconsistent with the circuit convictions by jury trial the jury had to make the finding and also your honor i want to give you the authority to back up my point that the california restitution statute definition of lost is inconsistent with the federal definition the citation to the federal law is in the sentencing guidelines section to be one point one application three and i would compare that to the california restitut point four f which includes among other discrepancies the issue of including emotional distress and  i want to address also the government citation of the california case of brian i don't believe the government cited that in their preferred and i don't have complete recall the case but based on the government's own representation of what brian held it makes our point for us the government says that brian held that the statute of conviction here five thirty two a is a subset of five thirty two and that's exactly the point i was making the difference between them is that five thirty two it's actually five thirty two and a plus intent to defraud that's the distinction that the b i i relied on in kenny to hold that this statute that we're looking here yesterday afternoon and that is that and i am does not affect the our claims of legal error here what the i j a did in this case is exactly what the government did in its argument it looked at other convictions alleged convictions that were never charged in the notice to appear in the removal case and said based on your entire criminal record i'm going to hold that you were convicted of a particularly serious offen contrary to the statutory definition of particularly serious offense it's contrary to what anyone says to which is that you look at the offense and determine whether it's particularly serious you don't look at other facts that have nothing to do with the offense and your honor as i said before whether a crime is particularly serious may or may not be a discretionary determination it certainly isn't if you're talking about something that is an aggravated felony whether or not it is discretionary ultimately this court has jurisdiction to decide that question because we are raising solely claims of legal to consider hutchens of law and this court specifically in afridi in the context of the particularly serious crime determination sad that the court can consider whether the i j a applied the proper legal standard even if the ultimate decision is discretionary and finally even if and i did a fact the analysis of the issues in the case to be i didn't rely on that reasoning obviously a