thank you your honor david zimmer on behalf of petitioner mr gerard matthews the immigration and nationality act makes non citizens removable of convicted of one of three specific crimes against children child abuse child neglect and child abandonment mr matthews was not convicted of one of those crimes instead he was convicted of misdemeanor child endangerment a distinct and less serious offense that in new york only rarely results in any imprisonment indeed this court has already recognized that new york's misdemeanor endangerment provision is extraordinarily broad it criminalizes leaving children even briefly on attended and committing any criminal act no matter how minor in the presence of a child in determining that this misdemeanor endangerment provision is nevertheless points the same way that the nine hundred ninety six congress that an act of this provision would not have understood the terms of abuse neglect and abandonment to encompass the type of broad general endangerment of funds at issue in this case for instance in  chevron applies rights how can we read as quinton or as a rule as a decision applying chevron when the supreme court says it wasn't but i think what that mean that i think this is clear from the context of the decision is that chevron second step so the reasonable us analysis does not apply because one of the issues in that case was this tension between it rule of law today which is an interpretive tool that obviously says read all ambiguities in favor of the defendant and chevron which says read all ambiguity is in favor of the agency and what the court said in this case is that when you read the statutes text applying normal rules other normal rules of sasa try interpretation that the statute on ambiguously precludes the agency's interpretation if  clinton it was litigated as a chevron step one case so i think that it was actually you know it was well established the normal tools of statutory interpretation do apply at chevron's first step and that's why the court comes back in the paragraph that you quoted in talking about that's all we're asking this court to do here and it's what the scoop what this court panel in flora's did not do which is to actually look past the fact that there's no dictionary definition but sorry that there is no statutory definition of the generic federal funds and to apply normal interpretive tools to understand the language that congress used and to understand whether congress could have understood the terms abuse neglect and abandonment to encompass this type of broad endangerment of funds and if applying those tools applying the s tools of the supreme court applied in s q l quinton it's clear that congress could not the congress did not intend to make non citizens removable based on convictions for this type of general endangerment these broad general endangerment provisions at issue in this did not understand did not define their criminal abuse neglect and abandonment provisions to encompass endangerment the vast majority of states either did not criminalize endangerment at all or else defined it as a separate lesser offense that is entirely distinct from abuse neglect directly conflicts with s q l quinton in the sense that and again our argument to be clear is not that the statute contains no ambiguity but that's not the correct inquiry the inquiry as the government agrees is whether the statute unambiguous lee precludes the specific interpretation adopted by the agency in the case in this case and so the supreme court and ask about quinton a held that the fact that there is no statutory definition and the fact that there is a state laws vary is not enough to show that the agency that there ambiguity but that's all that this court relied on in florida and this court's decision like and in reason i'll make clear that when a subsequent supreme court decision reduces one of this court's past decisions to a question an answer and no intervening reasoning that the court is required to reconsider the analysis and that's all we're asking the court to hear to go back and apply the analysis the supreme court applied to and i structurally identical question and ask let me ask another question if you suggest to me that we should look to certain charging documents and police documents to establish the scope and practice of prosecutions for the child endangerment statute and i'm concerned about how we can rely on them or look to them since they were not part of the at them and especially in the context of these documents and other similar documents we don't know exactly what was before the b i a but it's clear from the b i's decision and mendoza that there were charging documents before it that it categorically refused to consider and so at the very least that decision was incorrect or we would argue that that decision was incorrect and these are not public documents that we're entitled to take notice of are they while they are publicly filed i believe the court probably could take you  them obviously not of the of them for what they are which is that there is a charge based on these documents but i gather that their authenticity is in dispute but i'm not sure that they're true as public documents on the record of the ordinary type that we can yeah  so i mean our human is not that the court should decide this case specifically based on the ten charging documents that are attached to the amicus brief argument is just that the b i a and categorically refusing to consider this type of evidence inevitably misunderstood the state statute scope and that's really the legal error that we're pointing to and we also would point this case to specific i realize i'm going over my time here but there are specific decisions from the from the courts you know judicial decisions like i like alvarez the really support that type of conduct are very similar to the type of conduct in these documents but they also show that the courts have been willing in new york to make factual findings really that certain conduct was likely to be injurious to a child cases the courts are finding that these types of charges leaving a mother leaving a child for fifteen minutes while getting groceries for dinner that that conduct is sufficient to support a charge for child endangerment but smoking marijuana in an apartment where a child who is not the defendants  may please the court part for the attorney general mr mathews seeks to challenge the agency's determination that his two convictions for child endangerment under the new york state law does not constitute it remove ability ground as outlined under the eye and they provide it is defined to be a child's a crime of child abuse neglect or abandonment but as this court has already found in flora's the agency is generic definition of what constitutes a crime of child abuse as used in that remove ability provision is a reasonable interpretation that is the title to shove on difference and nothing that the supreme court has issued particularly with respect to the case and ask of alcantara changes that analysis or that conclusion of this court the cases in published decisions both the seventh and the third circuit decided that one time i had no obligation to the analysis at hand and in fact that a spokesman tonto was a very very narrow holding with respect to the specific question of what is the egypt consent when it comes to statutory rape crimes and aside from that that there is no other impact from esk of all kuantan that would change the scope or the analysis specific and narrow scope context of statutory rape crimes and in trying to consider does a stash torrie rape crime which only prescribe conduct purely based on nothing more than age of the participants the court was wondering was trying to determine does pplying its analysis within the context of the sexual abuse of a minor charge however it's with it was looking very narrowly at the definite in terms of analyzing and looking at the specific crime of stat the subsection of crime of statutory rape and the court there was very careful and very explicit in indicating that it was not determining the federal generic term what constitutes a sexual abuse of minor it made itself very clear and its decision that it was the issue at hand and the determination it was making was with respect to what is the age of consent when it comes to the subset of sexual abuse of a minor case that involves sta and in fact to the extent petitioner is asking this court to find error in the board's series of decisions that were arrived at the federal definition of what constitutes a crime of child abuse because it did not do this analysis in reaching its generic definition for what constitutes a crime of child abuse that that methodology is certainly not something that the supreme court has required administration agencies to apply and certainly the court has already recognized that very point  of child abuse the twenty six to sixty point ten if mr matthews can demonstrate a realistic possible probability that the state would apply its statute to conduct the falls outside the generic definition and that's the path that you adversary has gone down with a series of very thought provoking documents showing that this state has prosecuted and the trial courts in the state have declined to dismiss prosecutions for a very wide array of activity where we're looking at the potential creation of a risk of moral injury for example which is very  abstract which has not been the where the state has been put to any proof about moral injury or continuing psychological injury where courts have been content to presume some kind of damage or risk and that seemed to me there's a plausible argument to be made that they fall outside of the generic definition what's your response are we precluded from examining these documents or is it not a plausible argument that the new york sufficient for purposes of demonstrating what but for showing realistic probability the government would say no i think i don't i was sorry i interrupted that there are backed up by state law decisions in which prosecutions have been upheld and individuals found guilty for child endangerment in a fairly broad array of factual settings there is a broader array that's correct your honor but it's also important to note the context in which  she ran down to the grocery store to get groceries but in that case that arose in the context that case arose in the context of the defendant seeking to dismiss the complaint as not being sufficiently support in its facts and in dismissing it declining to dismiss that complaint the state court indicated well these there are lots of factual issues here in determining whether a child endangerment the level of risk and all of those sort of elements for conviction purposes there has to be an examination of how competent was this child was this child particularly mature to be able to be put in that circumstance what was the basis for how long the parent was gone where you know so there were these sort of factual considerations that courts should have a chance to be presented before a criminal court and proven before conviction c occur and so that case for instance arose in that context and so to ask the court the court to have the agency weigh realistic probability based on those factors as opposed to looking at the conviction under which circumstance we know we would know the government would know that the elements of a particular crime have been satisfied and for a reason and for categorical call analysis purposes it is all about matching the elements of the state crime to what the federal generic definition requires we look at whether there's a realistic probability of prosecution under the state statute and how the state has enforced its law and some of that so paid to us given how many such charges particular child endangerment statute new york state courts have spoken pretty extensively as to the outer bounds of what counts as misconduct that can be criminalized under this particular provision and so it would perhaps that the situation would be different if there were no case law that the people either by the government or by petitioner in terms of what kind of misconduct is criminalized here or perhaps if the language of the actual criminal statute itself was broad or on its face a lot for prosecution in a manner that was that would be beyond the federal generic definition but here at the new york state courts have provided case law that expressly recognizes here are situations where it falls within the misconduct criminalized by the statute and here is conduct which does not and so i think that because the categorical knowledge is requires that we look at the matching of the elements from one statute to the other that makes it particularly relevant that that state court decisions are what's look opposed to a charging document of the state court decisions to include the prosecution of man who took care of a runaway child of friends for two days and the court found that by hiding the girl prosecution based on this i understand that marijuana is a defining that marijuana likely was used in the presence of children ages seven and ten who were in the apartment at the time that's right your honor and  factual the facts at issue there indicated that when the police officers came into this house there was a strong odor of marijuana that was pervasive throughout the residence that indicated it had been recently smoked whereas and so that was a factual source of moral a moral harm and danger in a criminal prosecution and for danger in a child for behavior that is no legal in most several states putting aside whatever the ambiguities of the usage of marijuana may be it remains a criminal conduct in this jurisdiction and i think given the circumstances that there were minors in the house and that marijuana had clearly been smoked and that there were eighteen bags of morrow wanted that were also found throughout i believe on the person  the adults in the in the house as well as other locations throughout the residence that these facts were enough to and indicate but that was conduct injurious to certainly the moral welfare of the minors in the house but it's also important to note that on sort of similar factual grounds that the state court of new york has also found that it has had a case where just having a legal substance in the house the presence of illegal substances in the house where there was no other additional fa regarding whether had been smoked or any of those other sort of relevant factors that were present and alvarez that those were not enough that that in those circumstances that that was not enough to sustain a correct and your honor this court has in flores defer to that as a reasonable interpretation and as the court noted in florida as to fit deference to the board's decision doesn't always flora's held it is that that doesn't necessarily mean that you know at that point this court is simply required to revisit that analysis and apply the tools we've identified beginning to chevron step to the first point i want to make is that the government is simply wrong that flora's held that this co held that that classifying new york's indian provision as a categorically a removable funds was reasonable for as explicitly did not reach that question and in fact judge loki's concurrence and for as made that abundantly clear and i would court to read that concurrence because the petitioner in that case simply didn't preserve that question so the question of whether mendoza osorio the decision that actually classified new york's provision as a removable funds has never been addressed by this court at chevron second step and for the reasons that you were getting at judge carney it's quite clear that that was an unreasonable decision new york has new york courts have interpreted this provision incredibly broadly including conduct that as your honor noted has cultural implications also frankly the type of conduct that single working parents often have little choice but to leave a sleeping child at home for fifteen minutes while running out to get groceries for dinner and you know whether new york chooses to make that a crime under its misdemeanor endangerment provision a crime that almost never only rarely results in any imprisonment that's one thing but to think that the one thousand nine hundred six congress and making it non citizens removeable for convictions of abuse neglect and abandonment intended to sweep in that type of conduct and potentially separate for the rest of their lives potentially a parent  from their child simply because she trusted them to be home for fifteen minutes while she got groceries for dinner is simply not a reasonable interpretation of the statute thank you very much thank you both will reserve