statute allows conviction for unintentionally causing a death the board's decision in tough the dish feeley draws a clear line for determining whether the statute describes a crime involving moral  two and at the removal carrying your client did not dispute whether your homicide is a crime involving moral turpitude instead it was arguing about the u s aggravated assault conviction after the immigration judge found him to be removable he said there and so far as this conviction was concerned it was not like art was swerving all over the place   nothing in order regulation no agency practice required him to do so we're aware of no case that is impose such a requirement and likely that springs from the practical realities of what proceedings before the i j a look like in proceedings before the i j a the government bears the burden of proving that the non citizen is removable and because i j s regularly deal with pro se legally untrained citizens who may not speak english and are often appearing remotely from a detention facility the i j a will often do what the i g did year which is to take the lead and require the government to defend its legal theory on the complex and technical issue  convictions were legally capable of supporting removal mister smith never conceded remove ability he held the government to its burden and after the i j a accepted the government's arguments mister smith did exactly what he was supposed to do under agency regulations you peel to the board contesting the i j a its legal conclusion not remove ability and raising exactly the legal challenge that you raise is here and raised a new argument for  two thousand not your honor but i'm happy to submit supplemental briefing on the effect of that case or any other government to establish that he was removable because he committed a crime of moral turpitude and they asked for he wasn't of allies to say or do anything with regard to that as opposed to a circumstance where he was seeking asylum or the withholding of removal on one grounds or another well founded fear of persecution and violation of the convention against torture or something like that where he couldn't sit on his films and not say circumstance say nothing and then for the st time raise it evidence that he was removable because he had committed a crime of moral turpitude is that the distinction you're drawing subsequently correct your honor and i think that rationale is underscored in a case like this where the i say made clear that he was inquiring himself into the legal issues surrounding remove ability under those circumstances a pro se a non citizen representing himself is going to sort of take the i j a at his word the fact that the i j a is looking into these legal issues and holding the government to its burden the other thing i would say you is that the rationale for this courts issue exhaustion precedent set set out in my act and why is that the exhaustion requirement ensures that the agency considers the issue and all of its contours in the context of adversarial presented and compiles a record that's adequate for judicial review mister smith detail briefing before the board satisfied both of these requirements and you know we may have a different case if the board had ruled on some kind of exhaustion or forfeiture or waiver rule but here mister smith did everything that he needed to do before the engine see the agency never said otherwise certainly was free to the government's searching that this was a crime of moral turpitude and he didn't i mean he was given the opportunity equal have argued with the i j a said ok i want to look at whether this is really a crime of moral turpitude government you've got the burden give me a brief moment supplies very he could have turned around and said nah that's wrong it isn't the crime of moral turpitude even if it isn't a question of subject matter jurisdiction which they have been away for his part for not having controverted the government's position that this was a crime of moral turpitude and having raised that issue only for the st crime went down to before the b i a we're not aware of any cases that would make that to the extent that it is a way for we're not aware of any cases that would make this court given that a waiver where it was raised presented argued to the agency without any objection from the government without any ruling of waiver forfeiture by the board well i agree that government is not argued waiver here in any way i'm just asking the question whether it was  when he said nothing and gave the i j a every reason to believe that he didn't really dispute that this was a crime of moral turpitude after all the whole debate was whether he could present mitigating circumstances to leave the i j a to conclude while the cry was a bad one it really wasn't as bad as it otherwise sounded because x y and z occurred as opposed to saying this is not a crime of moral turpitude the i j a would have walked away saying this guy's not disputing that it's a crime of moral turpitude as a matter of law he's just giving you some facts that are upon given africa c of exercising my discretion which is a completely different question that's how i see what happened here and i'm just asking whether that was in the waiver let me change it suppose  the government's assertion that it was a crime of moral turpitude but you then turn around and raise it for the st time in the big whether or not under board regulations they the board would have been entitle the underlying question of whether or not this was a crime of moral curfew and it would certainly help me if you could dress that certainly or other the board in this case didn't cite mccreary the mccreary a driver carelessly ran a stop sign you should have seen but didn't causing a fatal crash it wasn't intoxicated it wasn't even speeding the florida supreme court acknowledged that this conduct could not be prosecuted under the manslaughter statute which covers the unintended which covers unintended deaths arising from quote gross and flagrant conduct that quote raises the presumption of a conscious indifference to consequences close quote conduct like drag racing or playing chicken but mccreary held that the prosecution was permitted under the vehicular homicide statute through which the florida legislature intended create a lesser included offense with a lesser standard of proof and the prosecutor in mccreary could carry that burden by showing the sign was clearly visible and the driver had run it and the death resulted vehicle or homicide statute in other words empowered prosecutors to proceed against less flagrant conduct from which actual indifference to risk life and that but it may have been left through culpable negligence the florida supreme court clearly says it's more than common law or statutory negligence right that's correct it is more than ordinary supply this is that takes it out of common law  degree of the whether or not a sort of reasonable driver sitting where the drivers should have realized that that conduct was risky and i think it's it all of us it seems to me goes to a couple mental state and it seems to me that's irrelevant if it's nevertheless reprehensible conduct no i don't believe so your honor i believe that under board precedent to come to treat a crime involving moral turpitude there must be both a culpable mental state and reprehensible conduct and i believe my time has expired what can you i just i have an additional question and i'm trying to understand why this isn't a crime of more of her to your argument if i get it right boils down to th negligence and that's not enough to constitute the requisite state of mind of willful wanton something like that the problem that i and it seems to me that this is not just common law negligence we're talking about which is the language of reasonable foreseeability we use that when we talk about proximate cause but the florida supreme court has told us clearly that enough is clear that for a violation of the reckless driving criminal statute that's the something more and something that really falls into the range of moral turpitude conduct not necessarily your honor and the reason for that is that willful and wanton don't have a sort of fixed meaning across jurisdictions so what the categorical approach obliged the board to do was to look at how that standard is applied and concrete cases and what we have struck with reckless driving and convicted of reckless driving under three hundred and sixteen in order to be convicted of that it is absolutely clear in florida that you need more than common law or reasonable foresee ability you need evil willful or wanton which means either conscious act or intentional indifference is for the consequences personally subjectively by the defendant if that's what he was charged with wouldn't that be a crime of moral turpitude if he was convicted of that not necessarily your honor and the reason for that is that if in practice prosecutors are not tasked with proving an actual awareness of a risk and under the standard florida jury instructions for the behavior homicide statute instructions and most difficult part of this case for me at the supreme court has said that the jury instructions do not constitute the law of florida as we're deciding we get to decide the issue not the probable geishas of a standard instruction and if in fact a violation of reckless driving requires some kind of will wanton conduct and it seems to me that the as clear as night follows day and if that's a lesser included in the greater crime is a homicide and i think that one side would have to require the same kind of wanton conduct one of my missing and that scenery what you're what you're at or maybe missing is the frequent language of reasonable for see ability is used to describe what it is that a prosecutor has to prove in other words if we take the facts of in a sense you know for example we have a driver who makes a pass in foggy conditions on a two lane highway causes a fatal accident there are two potential drivers there right driver and a realizes that this is extremely risky and decides i don't care i'm in a rush i'm going to go ahead and do that anyway driver b is just maybe a bad driver misjudges conditions is over confident in her ability to pass quickly doesn't realize that this ability is impaired to the degree it is and causes an accident surely not through an intentional you know deliberate indifference to the mortal peril she's creating but just makes a makes a mistake that another driver could well make what mcqueary holds is that the vehicular homicide statute was an acted in order to lift the burden from prosecutors of having to show that it was driver a driver be behind the wheel rather as long as the conduct you'd objective is sort of sufficient that a reasonable driver's sitting where that driver driving and we see that the florida statute defines wanton as a conscious and intentional indifference to consequences and with the now which that damage is likely to be done to persons as i understand petitioners argument it's a little nuance state which is one of the four intermediate how courts cases they rely on it says the person must have reasonably foreseen that the same general type of harm might occur if he or she knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm to another so they must have now each of the facts of how they are driving i think that alone coupled with the fact that serious time is likely is enough and that's enough even to put it under the matter of the wildly decision which is now one that so that kind of puts it out of the negligent case law and that as far as support is concerned for me and i want to let me ask you a little bit of that after that the problem that i've had with that argument and looking at the intermediate appellate court cases is some of them state two things they say yeah it's true that under florida supreme court of  law the law requires something more than negligence and something less than culpable negligence and the legislature created this statute to cover something more than  less than what they called culpable negligence and then when they describe what that means at least three or four of those these cases speak to whether it was reasonably foreseeable that death of great bodily harm could result that's the language of common law negligence we speak of reasonable foresee ability when we look approximate costs and that's a standard that's generated by negligence not something more and it's a standard that looks at what a reasonable person would after you and rather than the subjective state of mind of the criminal defendant in the case and that's what threw me off but it's clear that even though they use the language of reasonable foreseeability they know because the florida supreme court has told them that it's more than negligence i'm just asking you to help me deal with this use of whether it was reasonably foreseeable that some great bodily harm would result well when they say that they said so again the border matter of lou had a similar statute to that in california and it said you know we know that the perpetrator might have now age of the risk of having caused the actual injury but they must know that the facts that make that injury likely that they were driving under circumstances that would make that injury likely i think even under the intermediate sort of appellate court decisions that is the case and that would be enough under the for his definition scuse me under the board's generic definition of whether reckless crimes qualify as mor is we agree with the government that under florida law more than ordinary civil negligence is required for a vehicle or homicide conviction the question is whether it requires more than the sort of criminal negligence the sort of roes deviation from an ordinary standard of care that was required it was insufficient to support any of turpitude in tough didn't really now the government has said that the florida statute quote requires awareness that you are likely to cause harm those quote that just isn't supported under the cases if we look at mccreary what we see is the court saying killer homicide was designed to cover those cases where the conduct doesn't deviate so far not like playing chicken not like drag racing through a stop sign where we can't necessarily presume a conscious indifference and that's why lower courts applying the cleary have held it to be sufficient for the prosecutor to prove the elements where all that the prosecutor demonstrates is that a reasonable driver sitting where the driver sat should have discerned a risk now the government a case involving careless driving errors and that's probably why the government didn't cite it below and the board didn't rely on you that if you read the case law all the prosecution has to establish in order to sustain a conviction for vehicular homicide is a standard involving whether a reasonable driver should have discerned the risk how was that different from common more steps or a necklace of i think it's a matter of order i think it's a matter of degree your honor depending on how far from the reasonable benchmark the driver departs and i say my time is expired if i may briefly conclude it since you're a right big killer homicide statute can be and has been used to prosecute tragic results of negligent driving errors like accidently running a stop sign that conduct is not so categorically base file and craved that it can justify deporting a lawful permanent resident