d under settled principles of administrative law and under the categorical approach under the cheney doctrine an administrative agency decision can only be sustained based upon the reasoning adopted by the agency and under the categorical approach when you analyze a conviction in the context of those a crime involving moral deter turpitude determination you utilize that you rely upon the least culpable conduct the least legal all that's necessary for conviction here of a board of immigration appeals a stain the c i into a determination based upon a line of cases holding that obstruction by graft trickery and his honest means turpitude in which they sought to place my clients i would submit square peg of conviction because if you analyze the obstruction stat if you analyze the statute here dishonest me dishonest trickery etc are simply not necessary legal elements for conviction and under these circumstances that the c i n t determination should be should be so this case i submit resembles eased into the microphone yes this case i submit this case i submit strongly resemble a scandal already of the rd circuit decision in which a similar obstruction statute was held to be a crime involving moral turpitude but in that very persuasive decision the rd circuit reversed because these means dishonesty graft were simply not necessary legal elements so under these circumstances i realistic probability but as the hilton case makes abundantly clear the real probability test is satisfied is satisfied by the fact that the the legal elements of the were somebody spray painted somebodies car that was the damage or threat that was real bases of a conviction so that it's been applied really very broad argument and vagueness is an interesting one in view of what the supreme court has been doing and especially in view of justice gore searches recent approval of judge justice jackson's dissent in the george way back then which suggests that the supreme court may be rethinking the question of  took this proposition that under the line of cases which they can do i suppose that you have to have graft trickery and dishonest means those are not necessary legal counsel's argument yes your honor that this statute doesn't give rise to a c i had to try and respond to that he has your honor the statute has two elements some one is normally threatened to damage the tangible property of another and that would be probably the minimum conduct to be convicted and let me give you an example suppose somebody has violated parole or supervised release which was statute specifically speaks to as being a violation they violated supervised release because if they want to go see their sick mother and them where and they haven't told the probation officer  somebody hearing of this gets med and friends to let the person who has said it to let his dog do it duties and that person's lawn that is a fret of physical harm under fifteen for thirty four visits kind of behavior is specifically what the statute well i think if the the most common minimum example would be something along the lines of threatening someone's car threatening someone's on well before was saying spray painting a car but i'm just giving you you one can find things now if that is so doesn't that subtle than that settle this case well i disagree that doesn't involve moral turpitude under the board stuff initially the board has a variety of definitions but the one that applied to this case and it's on page six of the ministry of records says appearing in obstructing a function of the department of government by defeating its efficiency or destroying the value of its off operations and then the key here is by deceit fraud something of the sort that i have said is actually in or is out then we're talking about a degree of uncertainty about what this statute means that is specially under the supreme court's recent decisions on vagueness gets a whole thing and out so that i think the government is in a way in a difficult position because if it says that what is literally under the statute can be moral turpitude then we're raising questions today of vagueness which may not have been very in the past well if instead you say ok sorry under a categorical approach then vagueness may be something which can be avoided but i think you've got to be careful that if you win you may lose in the bigger picture yes forward and give evidence it's not like assault there's a specific intent requirement it may involve threats to property but that's when you look at the intent element and a threat to a property interest that's enough it's reprehensible it is and it and the board has been very clear that if it was strictly obstruction of justice without that specific tense without something more that would not be morally turpitude us but this is obstruction of justice with an aggravating factor it's very similar to the  and they have a court hearing you know say anything you just misplaced them and if they want to found the court the he could have gone to court something something similar to that or a more even a better example would be that rd circuit case was brought up the calderon case that statu reads attention only obstructs in pairs or perverts administration any law obstacle breach of official duty or any other on a lawful act it's a much broader written statute in this intent to retaliate statute so that would be another example   rd circuit said that not all permutations of that would be morally turpitude turning to the within five years of admission part entered the united states without inspection so he had no technical admission date as the act of fines or term admission under board case law has a mission date and since he was an officer permanent resident it would be the date he just had a status and that was in may two thousand and six and since this conspiracy occurred within the timeframe of this case we have concrete evidence of two threats being made over a several year period there is also no evidence of governmental acquiescence whatsoever outside of the testimony from a person who hasn't lived in a poem for seventeen years any fears of the polish  i make an error and concluding that the test was clear probability that he would be tortured well not in error well clear probability means more likely than not that is a standard that the board want to see the not is the correct standard on its face and that's that's a plain a legal error with respect to the issue of relocation within the european union that whole does that whole era which the board didn't even address which the board didn't even address i submit infects the immigration judges fact finding and when you couple that with an affirm and so on the basis of clear probability the case certainly should be remanded argument saying that that is immaterial as it would be futile because there wasn't sufficient evidence or any evidence other than your client's testimony about fearing that the government would acquiesce in its mistreatment and that he gave he gave the immigration judge found incredible he gave his lay opinion on that particular point but there were certainly other facts in mind in the owner of the letters the threat letters actually indicated that they you know regardless they were going to be able to get him so that's an expression of then the then the writ that's the sole charge would remove billeted the case should be terminated i want to get back though to the cia and t issue to be sure is as you point out judge livingston's the board might have made another decision or a new rationale but it it didn't and it's the board's rationale on which we have to rely and the fundamental premise that the silage the primary syllogism of the board is this has to be by graft trickery or dishonest means and the minimum calm and those are simply not necessary legal elements of conduct that you think would not sleep th who it's not the minimum conduct i submit but the absence of the necessary conduct the board of immigration appeals said that to be a crime involving moral turpitude we're relying upon these lines of cases that say that the following means fraud or dishonesty is necessary they may appear but that was their reasoning that was their reasoning substitute different reasoning here and that that broad dishonesty is not the necessary legal elements here that's exactly my argument thank you thank you both i will reserve decision