morning good morning it please the court don sure as on behalf of the petitioner lorenzo alvarez certain thing you know essential e the issues are simple in this particular case was for goes over says holder correctly decided and or are the decisions of the b i a and sore and well ask us herrera different and should be given deference and secondly and more importantly is the nevada statute on child abuse almost identical to the california statute because if it is then for goes a versus holder should be extended to applying to this case and to say that mr alvarez his conviction was not a conviction for child abuse and i think what also happens in these particular the other things also happens in these particular cases is sometimes there is confusion between what it requires for a felony conviction and what it requires for a misdemeanor conviction and for girls or versus holder it was a misdemeanor conviction that this court looked at insead the b i l s interpretation is overbroad in our why do you want to take that turn on as opposed to accepting so far and say you went anyway well i believe your honor the i've noticed that ourselves only if it's a felony your honor i think it's under two seventy three a that for goes i says there has to be actual harm actual harm and that will make it a felony but if it's five awaits the parentheses two it's a misdemeanor and that's if there is no harm so that both know not as what may suffer physical or mental suffering maybe not must right but that's the precondition that they have on both of the statutes may suffer physical pain and actually the caliber of the song says it has to be a cases on child abuse where there's no harm is the typical situation is it's one hundred degrees outside or hundred ten in the middle of the summer somebody leaves their child in the car they run into seven eleven they come out maybe a police officer comes up hey you're guilty of child abuse you left your child in the car they plead guilty and nothing ever gets reported that's your typical situation where no injury occurs now the cases that have been cited by the nevada supreme court comparison and i think the most important point is what we brought out in our brief as a result of abuse or neglect or to be placed in a situation where the child may suffer that was the critical language that was used in the california statute that was the critical language it was used in for those of so where his or her health may be endangered so for me it is overbroad well they have that opportunity probably ok very much ok probably but see then you know i guess this was poor charging on behalf of the district attorney they could have easily charged him with you know battery is not considered a removeable offense child abuse is abuse which which involves a physical injury to the child is but that but under the  way nevada pled the case there was no physical injury can they re brief recently replayed it at this stage you know five or six years later i would say no they i mean that ice can replete it when they go back to remove the proceedings can the state replayed it probably not good morning your honor is that american miles for the attorney general first i'd like to address the question assuming this court records deference which it should to a matter of so that actual harm is not required a matter of sorum says endangerment type statutes can constitute child abuse under the eye and a if there is a fist sufficiently high or sufficient risk of harm is the charm or a likelihood of harm those are decisions use sufficient risk of harm and likelihood of the language so i say but probability is within that same sort of realm on the spectrum i would say here this likelihood don't we have a situation here where the statute talks about whether the child may suffer abuse we do that a lower standard than likelihood that is but that is only the third element of the statute i submitted to the court at twenty eight j letter with a nevada supreme court case called clay and in that case the court definitively said there are four elements to the statute the third element is that the child may suffer physical or mental suffering the fourth element is as a result of abuse or neglect and the supreme court of nevada definitively said that a prosecutor under this prodding of the statute under any problem actually must prove abuse or neglect in addition to that the child was put in a situation where they may suffer physical harm and so i may neglect this putting the child leaving a child in the back of the car that's unclear that i had is that anything to the to the risk factor of harm because it's in this statute where where a person having custody or control over a child is allowing an existing abuse or neglect that must be proven to happen or permit and puts the child in a situation where that w  which is at least neglect yes and the issue is how what's the connection of that to harm to the child that makes the child abuse so i don't understand what you've added by your point what if you had your lawyer saying is there has person does if you look at what the i ne see the provision that provides for child abuse rendering it a removable offense it's called child neglect and child abandonment are included with child abuse it is a unitary concept and child neglect is in the statutory language itself and the supreme court of nevada has said in another case called ryme definitively said child abuse and neglect is damage to a child for which there is no reasonable explanation so the supreme court of nevada and looking at its own child abuse and abandonment neglect you have neglect which may cause a child suffer which is a broader liability claim were you have to show likelihood the supreme court of nevada considers the fourth element abuse or neglect to still be harm or damage to a child the third the third element the may cause injury or may cause physical physical harm or mental suffering the third element that's elevate it elevated sort of immediate presence of i understand identifiable physical injuries but what i understand to be saying is that you know if you something more than that some actual physical harm to the child and at some degree of likelihood is that not right the federal statute the statute itself says child abuse child neglect child abandonment the board has interpreted that but you're arguing with zorra because you're basically saying that that neglect alone should be enough for her with a child is has any likelihood to be i mean the child if the child is you know locked in a rise to the level to to be a criminal not a civil conviction so here the criminal court the nevada court must determine that at least some level of criminal negligence was involved in it in addition to this level of risk of physical pain or mental suffering because of the prove in abuse or neglect this is this is quite distinguishable from the california statute in for go because in for goes though it's that a parent or someone puts a child at risk of harm period here it's they allow they permit the child to be put in a so situation where they may are at risk of physical pain or suffering because there is a proven abuse proven it lacked let's say you have your proven neglect of some kind yes but let's say that that neglect is not necessarily physically harmful in and of itself but it's it's neglect recognized as neglect yes but and it's proven the way the statue works is that you're still dealing with the third element that says they may suffer physical harm or mental injury from that and they're using the term a for that they are versus and sorum they were talking about having a criminally  negligent act or remission and that it's creating a reasonable probability that a child will be harmed so is that not different because it's a reasonable probability of harm as opposed to proven neglect as you say followed by the fact that that neglect may yes cause either physical and eerie or mental suffering is that a difference the difference with the may here is may plus because it's may so for certain defined type of physical harm or mental suffering plus there was actual proven abuse or neglect which in and of itself maltreatment is damage to a child so those proven acts are in and of themselves something damaging which is heightening because you have to prove abuse or neglect it's heightening that they may get injured that they may suffer mental illness it creates the likelihood because we know there was abuse or neglect and so it's a given that there's a stronger chance that they would suffer this elevated or defined type of physical or mental harm physical harm is defined in their statute as well so your position is that having proven the neglect or the abuse that is proving harm having exploitation negligent treatment or maltreatment under circumstances which indicated the child's health or welfare is harmed or threatened with harm so it doesn't have to be armed but under here i don't think we are i don't think we're going around in circles where we have the california statute just says may be harmed and here we have may suffered specific to specific types of harmed because of proven abuse that abuse and neglect are damage to child and damage i would think this would would agree would accrue equate with the term maltreatment which the boer uses about treatment is hard to say that  ninety seven and rhymer v state says that child abuse and neglect is damage to a child for which there is no reasonable explanation definitively this statute is an actual harm statute it's not so much an in danger mn statute this actually fits under of alaska's herrera if the court were to view it through the nevada supreme court's lens this is an actual harm will be a felony if no harm occurs then it will be a misdemeanor and so even though the statute may talk about actual harm at the beginning when you go down to subsection two three or four it'll talk about the difference between the the two different results and if you look at our charging document here it said under did willfully unlawfully unknowingly neglect cause or permit a child under the age of eighteen years to with ulysses alvarez be in approximately fourteen years of age to suffer unjustifiable physical pain or mental suffering or by permitting said alvarez to be placed in a situation where he might have suffered unjustifiable physical pain or mental suffering by the defendant punch punching said ulysses alvarez so because there was no there was harm i mean he was hit in the mouth he was hit in the face he was punished that is conceded but the way than of that the state of nevada district attorney's office chose to prosecute it they gave him this child abuse offense a gross misdemeanor offense and i do think that's the distinction in nevada between a felony and a mist and a gross misdemeanor and i think that's the distinction in california with two seventy three a which is a felony and two seventy three a b which is a misdemeanor but in both the critical languages in california it says to be placed in a situation where his or her health may be endangered it doesn't require it doesn't is guilty of a misdemeanor that's how the california statute concludes and in the vadra says be placed in a situation where the child many suffer physical pain or mental suffering as a result of the abuse or the neglect so the critical language we believe in both is may suffer or may be endangered and that's where this isn't an identical twin to the california situation but it's a close brother or sister so now is it how do you respond to the argument of the government that the fourth element does require proof of actual neglect and that that neglect should be considered harm well i think that would be as judge be pointed out earlier if there is a special way and by the way pardon ok pardon your honor my my spanish is not what it should be but it in any rate i believe that when he pointed out mentioning the neglect the nevada statute does a lot of difference and i don't believe that just because it says neglect equals harm i think the statute is overbroad in that particular context and so we shouldn't give deference to soar or mendoza lists oriel or th