immigration and nationality act that statute section two sixty ten of new york's penal law is not categorically a removable offense of child abuse child neglect or child abandonment under the i n a the reason for that is because new york's statute is broader than the generic definition of the federal offense in the i n a for two independent but interlocking reasons the first reason is that the new york statute punishes conduct poses a risk of harm not only the physical and mental wellbeing of a child but also to the moral well being of a child this is the category of overbred that was identified by the notion panel when it determined that counsel should be appointed for mr caesar the second ground is that it punishes conduct that does not that more than not only kind of the causes actually causes injury but also conduct that generates a mere non speculative potential for injury each of these features of two sixty ten by themselves would be sufficient to conclude that the fed the new york state statute is broader than the federal statute but together they leave no doubt that in this brief the government didn't seriously dispute a number of the key threshold points on this to sixty ten on its face criminalizes conduct that generates a potential that a child will suffer a purely moral moral harm the text of the statute actually says that it criminalizes conduct likely to be injurious to the physical mental or moral welfare of the child but even if the text were not clear there is most definitely a real a very realistic probability not a theoretical possibility  prosecution for conduct the generates only a potential for moral harm we've cited a number of published cases in our raef i think the media have cited a number of published cases as well all up holding prosecutions or convictions all permitting prosecutions or convictions of conduct that generated only a potential for moral harm those include towing a trailer full of stolen chairs with a teenage son in the car they include leaving a four year old at home alone for fifteen special something different about the new york statute that makes it broader than the general crime and as set forth in our briefs and in some detail and i think not really seriously disputed by the government those tools all make clear the child abuse child neglect and child the bin cannot be read to include conduct that generates only a potential for moral harm and the alvarez case in new york actually describes the kind of conduct that can satisfy the new york statute in a very sharp way it held broadly that engaging in criminal activity while children are present is likely to endanger their physical moral or mental or moral welfare that's not child abuse respectfully and instead of disputing that point i understood the government in  brief really to focus its main contention on the assertion that this court is bound by a forest versus holder and that as a result of that unless it is they have a good choice on their just making sure i'm understanding that's a good choice on that point because if they prevail  don't if we're bound by flores here that's true if the court is bound by flores that's true and i had i guess i don't think that either argument for what it's worth i think is is a particularly strong one on the government's part but i agree that's probably the better address the precise question before this court when it concluded that the statute was ambiguous the second reason which i would get to later is the fact that be determination rests on a misinterpretation of the state law which is something that far as didn't address at all and which is never entitled to chevron deference and so on the first point this statutory language in the i and a here crime of child abuse child neglect or child  ambiguous on the precise question before the court today and that precise question to put a finer point on it is whether conduct that creates in your potential for injury to a child's moral welfare constitutes a crime of child abuse the answer to that question  i've said before is that is an unambiguous no whether or not that term might be ambiguous as to some other question it is not ambiguous at all on the question of whether conduct that criminal a purely risk of a risk of pure moral harm to a child is a crime of china's your argument then if we accept your argument you're saying we would not be creating a circuit split with the third circuit  on whether the statute is ambiguous the third circuit having addressed this question and after ask about the entire i think that's i think that is likely correct your honor in so far as the third circuit wasn't reaching a conclusion that on this precise question at least that the statute was an ambiguous and the precise question again is one that's posed by the new york statute and the fact that the new york statute uniquely includes this moral aspect to it so what that means though is that in the court was considering a somewhat different question about the specific age of consent that seems a different interpretive task than what we are called on to deal with here but how do you it's most definitely a different statute a different different language within within the i and i but the task at a higher broader level is the same in the task is to look at to answer the precise question when you're evaluating whether there's ambiguity in the eye and a look at the precise question that's being posed and find out whether the ordinary tools of statutory construction yield an ambiguous answer it's not enough that there's not a definition in the statute it's not enough that the statute that the language may be ambiguous in the abstract the question is whether it's ambiguous on this precise question  so so for that reason i ask you balkan tone i think the us and ask people in town instructs the court that this is the analysis that you're supposed to conduct when you're considering whether this statutes ambiguous on this precise question now before my time is up i'd like to focus on a separate and independent reason why the court's not bound by flora's which is that the b i is conclusion that to sixty ten is a crime of child abuse rests on a error of state law the reason for that is that the definition not moral harm there's it mentions moral harm but moral harm is a subset within that definition of mental or emotional harm to new york statute and i see my time is up five may have a minute just to finish this quick thought and the new york statute obviously is disjunctive and focuses on moral harm separately be in concluding that it fell within its definition of generic definition of child abuse erred enter you good morning your honor is in may it please the court jester on behalf of the united states attorney general your honour's this whole question raised to this court this morning is whether a conviction under section two sixty five point one zero subsection one of the new york penal laws is a removable offense the government believes that this court should find that it is so because that statute of conviction is a categorical match with the board's federal definition of a crime of child abuse child neglect and child abandonment indeed the board's definition states at a minimum it encompasses convictions for offenses involving the infliction on a child the physical harm mental or emotional harm and includes acts injurious to a child's morals and viewing the board's definition of as a whole on its face both the statute of conviction in this case and the board's definition includes acts injurious to  the child's more welfare and because of that the statute of conviction and the the section of the immigration nationality act  you with the litigation ongoing in matthews versus sessions in this court i am your honor yes i believe my colleague song park argued that case in may of this year and do you agree that that is a decision that cases likely be controlling here or is there  some distinctive aspects of this case i believe that these two cases are remarkably similar on i believe they involve the same statute of conviction under new york law and at least part of that case could have effect on this case namely mr cesar's argument that this court is not bound by its prior decision in florida as to say so however mr caesar has to rely on this on this court's ability as a three judge already and argued already yes but you are then going on to to address why this neither the math is panel nor this panel has the ability to to set aside the decision and floor us we can't overrule did not say that a panel of judges and any court need gaijin statutory interpretation in one specific manner the holding of that case was simply that the age of consent for a part of the sexual abuse of a minor statutory rape was sixteen years old sixteen years of age that court did not hold that there is a method of statutory interpretation had that court held so in  fact i would believe that the supreme court would have given more instruction to the circuit courts of appeals and how to further apply that because it could run amok if you if you would say in the circuit courts of appeals because you have many many cases that apply chevron step one such story ambiguity between chevron and it would not be limited to say this case or the matthews case and it and even on a recognized this fact when it said that the type of expansive multi jurisdictional survey conducted was not a requirement in determining whether a statute is ambiguous so in order for this court to two or the matthews court to overrule florida's this court would have to find that rescue so fundamentally altered the relevant analysis in flores as to require revisiting and overruling that precedent and it simply has not occurred here where the supreme court made no new instruction about how to apply chevron step one in s q l can tama and in fact itself said that it was not requiring the type of analysis done in that case in every sexual abuse statute caress your honor it was addressing it believe it was the california rape statute that was addressing what the age of consent was i believe california said it was eighteen and the individual had been found removeable for sexual abuse of a minor and a supreme court said that under after doing this expansive multi jurisdictional survey that the age of consent should have been sixteen years old for purposes of the i a e a and it did not even address the rest of the state of the sexual  statute it was only looking at this one very specific very narrow question that in the context of determining the appropriate what is the age of consent when not specified in statute that multi just actual analysis might be helpful i mean i'm just trying to understand your argument but it is open to this court as it did in flora's to say in construing words like abuse and neglect a different approach might be required yes you kind of child abuse but many other states state statutes apparently don't would it be possible to do the same kind of survey and infuse the they with meaning in that in that way is the same way that justice thomas did  it certainly would be possible your honor but as as this court has already spoken in flora's to the issue and that it's not necessary and everything in every case i believe that the government's argument would be that is it would be appropriate for again there's not one set method of statutory interpretation the supreme court has many many different tools that employs in statutory interpretation cited on pages thirteen and fourteen of the is it did a survey of federal statutes it looked at the tax it looked at the legislative intent it looked at a survey of state statutes and it came to this definition based on what i believe the legislative intent was  and also your honor to answer your question about the inclusion of morals in this in effect statute of conviction in this case i would point out that the board's definition also includes acts injurious to a child's moral welfare why isn't it why why are morals and a threat to morals properly included in the definition of risk to a child when the statutory language is abuse neglect or abandon analysis to determine that moral should be included that the intent of congress in one thousand nine hundred six was to protect children and also in all spheres of life and that included protecting a child moral welfare but we've had we have decisions here in which a child's moral welfare has been found to be have been endangered when the infant in this in the room where there is marijuana i believe and to have that lead to a deportation or remov order seems extreme answer your question your honor is the government's position is that mr cesar's failed to show any reasonable possibility or probability that he that type of case would lead to a removal and in fact in the board's decisions statutory language of abuse neglect or abandon what's there to prevent that from serving as a predicate for removal your honor the predicate for removal would be the new york statute in this case the statute at issue and in that and for the new york statute there have been shown and i apologize i see my time is run but the in in your case is that mr caesar has shown none of those that are that are the types of cases to which you're alluding have resulted in or are shown to have resulted in convictions and indeed those that have resulted in conviction if they've resulted in prosecutions we talk about realistic probability of having legal consequences when people guilty plea rate in these kinds of cases has to be extraordinarily high with very little few cases in which a penalty is actually imposed a prosecution is certainly different from a conviction mr caesar may point to cases where there may have been prosecutions but none of the cases he's really pointing to in context show that there have been a conviction for some of these cases and indeed in baskets her and mendoza soria the board points to cases that have been dismissed under this new york law saying that there are significant limits that if there's a difference between having a handgun locked in a safe that no one knows about that a child somehow gets his hands on versus having multiple guns in the home that are not locked up those that there are factual differences like that that lead to either convictions or unsuccessful prosecutions and a prosecution a conviction is what the board is looking for when categorically matching a federal definition and a state statute thank you  yorkers so your honour's a two or maybe three three points depending on whether i've got time for that on the first point there have been convictions of conduct that generates a pure risk of moral harm the wise had  case in the third department affirmed a conviction in it for of an individual who was arrested for towing stolen chairs with his teenage son in the car the richardson case in the third department's also a conviction drugs in the home and in addition to  that the notion that there needs to be a successful prosecution is a misreading of moncrief which is where this comes from moncrief talks about a realistic probability that the state actually prosecutes the relevant offense and as your question implied judge carney  to try to avoid rulings that are based purely on the legal imagination or hypotheticals that people think up it's very clear here that this statute gets prosecuted all the time for conduct that would generate only a mere risk of moral welfare to a maybe maybe it's just something that's gone awry with the categorical approach generally but if it extends to prosecutorial decision i thought the purpose of the categorical approach was to keep courts out of having to get into the facts of the case before them they is that the court the court should do that when it determines whether or not this statute itself is actually covered or falls within the generic federal offense you still have the benefit of a categorical approach not requiring individual assessments of fact in individual as i understand that to be the purpose behind a categorical approach the last point i just want to emphasize is that we have offered a ground for for vacating the b a s order that would not necessarily even require the court to judiciously i think that to sixty ten fell within the definition it clearly doesn't and for that reason that independent reason that's an independent reason why the court need not follow