immigration fraud act of the national lawyers guild who will speak to the question of constitutionality of eighteen u s c sixteen b while i speak to the statutory issue of why federal extortion is not a crime of violence within the meaning of section sixteen v mr zheng has been a legal permanent resident of the united states for almost three years he has one conviction for extortion that is nearly twenty years old his conviction is not a crime of violence under this court's precedent and our position is that this court need not reach the constitutional issue that mr ms soto will be arguing it is well settled law in this circuit that the minimum conduct analysis is the proper test for determining whether a conviction is a crime of violence within the meaning of section sixteen be federally extortion is the obtaining of property from another with his  conviction is not a crime of violence under the force violence or fear upon of the statute so we're we're not conceding that the the statute is divisible but treating it as though it is divisible we still believe that it is not a crime of in in section sixteen b by its nature do merits a minimum conduct analysis the b i a has taken the opposite approach here they've used that ordinary case standard to interpret that language however this court has established that for purposes of sixteen be the minimum conduct test is the proper test and under that test the government cannot meet its burden of establishing by clear and convincing evidence that the minimum conduct looking at here what we need to be looking at is the statute and its minimum and the statute at its minimum admitted to that's correct your honor it does say that but only for the purposes of determining what the what the relevant prong of the statute was the prong of the statute under which he was convicted of these his has made it clear as have most recently other supreme court cases two other cases in this court have established that we cannot look to the facts of the statute rather than the generic offense what you that this was a physical violence case that we then get that fact at the next step of being were you know your own or simply when we look at the statute at its minimum we find that this as this court has held in several cases i think the answer my question then is yes because you're saying after you have learned that for purposes of whether it's one prong or the other once you get within the problem then you forget that it was it was conducted with violence you think while the statute as a whole could be conducted with fear and fear of economic you very well like i think the issue here your honor is that the specific facts of the case are not what matters what matters are the elements of the conviction question alright i think i understand your point you want to share your time with your colleague yasser on or thank you good morning sanjay also to foreign miki from the national immigration project should this court need to reach the vagueness question there are two reasons why this court should find sixteen be void for vagueness first your honor sixteen b has the same that led the johnson court to declare the aka residual no your honor this court is not bound by hill because in welsh the supreme court made its rationale for johnson very clear  welsh important supreme court precedent that made johnson's rationale clear and it wasn't asked to apply it because the argument and the briefing in hill was completed months before welch came down and w doesn't even mention the enumerated crimes which is what hill rested on we would ask this and no what tourney's and hill later brought welsh to the court's attention to the whole panel's attention and so we would ask this court are identically worded there are different statutes but again hill did not consider welsh and we would ask this court to follow the approach of the sixth circuit which also upheld nine twenty four c but later distinguish official right these two elements have been interpreted separately through case and furthermore jury instructions make clear that these are two different crimes with two different sets of elements on what to do with  economic loss that you will lose business if you don't cooperate with the two leaders of the union and give them keep kickbacks we will block shipments to your facility for example what how do you deal with that and it's all fine under th that the threat of economic extortion is still so severe that there is the great potential material potential for the risk that physical force will be used in the completion of the crime based on the victim's reaction to such a which side are you on with that and why the ordinary case of extortion does not involve sun outlier example of economic harm do you think the ordinary course approach think we discussed that a little bit in our brief and johnson of course and i'll discuss this more as we discuss the constitutional issue but but johnson is is limited to the armed career criminal act it doesn't apply to eighteen u s c section wouldn't feel you were you raised as an example well to the extent that that we're discussing this forced violence or fear of law as the bail reform act context addresses the exact use of the exact same language  qualify in the first product because the issue is to whether there's a substantial risk that force will be used in the commission of the crime and such a severe threat of economic harm is substantial enough and material enough that is he charged that it's harmed by bought by physical violence a different charge than harm by economic injury in other words could you just say a fear of harm and half the jury could think it was physical injury that was being threatened and half the jury could think that it was economic harm or do you have to choose and it becomes an element i don't think that there are any cases that break it down into or very few cases that break it down into force violence fear is separate but whether the whether the the threat to economic harm or physical harm i'm asking you what you think the government would have to provide club so moving on to the constitutionality issue of sixteen b there's a strong presumption of validity to an act of congress and the johnson majority opinion specifically made clear that the term substantial risk was not placed into constitutional doubt moreover johnson never addressed eighteen u s c section sixteen b johnson never never mentioned lio howlers explicitly overturned it although they did explicitly reference other decisions that had been overturned moreover there are important distinctions between the a c c a and section sixteen b as an initial matter the a c c references a potential risk of physical injury in doing so it introduces more uncertainty it's the possibility of a possibility the section sixteen be on the other hand discusses the substantial risk that physical force will be used in the commission of a crime this narrows the risk it makes crimes in sixteen b we're not talking about you know burglary extortion arson and fences involving explosives or otherwise involving conduct or arguments that we heard with respect to almost identical language hill counsel says that hill didn't have the opportunity to consider well well she doesn't change the analysis at all well just a case that says that johnson can be applied retroactively johnson deals with the retroactivity a with the retroactivity of johnson and how that can be applied welsh did not add anything or take away anything from from johnson and it didn't change the reasoning of johnson the supreme court didn't overrule its decision of roughly a year prior when it ruled on welsh and and importantly johnson in the in discussing the e c ca not only referenced this list of exemplar crimes they also talked four has not been suggested to be in closing the court is is bound by its prior decision in hell and hell was correctly decided second supplemental briefing there was argument on welch and we also filed two twenty eight j letters on monday to deal with welch yes your honor we would ask this court to apply the minimum conduct standard here to save the statu e and that is the reading this court has historically applied and john and dalton and jokes and blank and blake and the ordinary case has now been called into question by johnson and under that standard the minimum circuit and in those cases the court made clear that on no those who are under economic harm those those were brought under official right and economic harm and the convictions were sustained under the economic harm which is the private provision we've been talking about here we've said what you're saying helps we're saying that the statute there the courts of the statute can be satisfied nonviolently and that's because one of public official demands favors the business is scared of losing contracts i mean economic harm there is no risk of violence inherent in that minimum condo the well for whatever reason your honor the the a usa is have charged them under both prongs and there are a number of decision decisions in circuits across the country that have found public official cases under the economic harm naprosyn to art from the notion that in the ordinary public official case there's not going to be a threat of violence the threat will be to other other harms we're now concerned with when you're not in the public official element if that's what we conclude that it's a distinct element why do ordinary case already concluded that this language presents a crime of violence your honor in those reformat cases the court has never applied a minimum conduct standard and no i'm not aware of any case in any circuit that has found federal extortion to be a crime of violence under sixteen b lastly your honor even though most of the vast majority time it is i mean this is the arctic  the approach you're urging is that the vast majority of crimes including your clients are crimes of violence well your honor the supremes court in moncrief has said that we must look to the minimum conduct under the statute but that is from the supreme court that's why we asked the court to interpret the statute this way however if this court is not persuaded that this mr zangs conviction is not a crime of violence and if this court is found feels bound by squarely before this well yes in light of the fact that it's the as solicitor general who's requesting search yuri it's very likely that the supreme court will provide guidance but if this court is not inclined to wait because of the potential significance of any ruling here because it's definition is applied in multiple contexts and because of the circuit split we would ask the court to consider taking the issue on bond so that the full court can provide it careful consideration