morning morning honors me please the court my name is david zimmer and i represent the petitioner mr anderson richards in this matter mr richards moved to this country as a baby nearly fifty years ago and lived in new york ever since the b a ordered richards removed based on what concluded was a conviction for misdemeanor child endangerment under subsection one of new york penal code section two sixty dot tun that class a misdemeanor covers an enormous range of conduct including committing minor criminal acts in the presence of children and leaving children archers did plead guilty to subsection one instead of subsection two and that was that was really based on there are two different reasons to be a erred in that sense the first was the administrative law reasons we set out in our brief as to why the b s a abused its discretion and remaining for the government to introduce the previously available police called plea and the second reason is that even with that police colloquy there is not definitive evidence the richards necessarily pled guilty to subsection one but i'd like to focus unless your honour's have questions on those issues on the question of whether or focus on why even if richard's did plead guilty to subsection one that provision is not categorically a crime of child abuse and the b r a's errands in this case stemmed from its failure to recognize the true scope of subsection one failure to recognize its full breath and that's really clear in two different ways two different aspects of subsection one scope and the first is the extent to which subsection one criminalize is committing even minor criminal acts in the presence of children the provision is effectively used as attack on when a child happens to be present for the commission of a crime and the case that most clearly demonstrates this is people v alvarez greg i would start first with the text of the statute child you're familiar with it so i'm having trouble seeing why at the first up we should go immediately to where you want to to how this is charged when it's tacked on to all the plea bargains in the world because that seems to to completely undercut the counting the supposed benefits of this categorical approach that we're looking at the text of the statute and these small amount of charging documents we're now going to explore hypothetical cases in the world not looking at this the court so your honor that is what the statute says but nothing in the categorical approach prohibits looking at what those terms actually mean under state law and new york is interpreted the word likely incredibly broadly to include basically the potential for harm to a child and that's what all johnson exactly said johnson interprets likelihood to basically mean the potential for harm and then all of these trial court decisions that we cite take that very literally as which is not surprising and sorum the b a and storm specifically recognize that words like likely and like substantial are going to have different meanings under different state statutes and that's in fact necessary to not just stop at the statutory text but to look specifically at how those phrases are applied and that's consistent of course with the supreme court's decision and moncrief which instruct courts to look at how the states actually prosecute the crimes and so i think in that sense it's crucial to go beyond the text of the statute to understand how in general when you see how the states prosecute decline the crimes you you're arguing then that the proper definition lies in the hands of the prosecutors as opposed to say the courts the courts interpreting what the legislature so that's right your honor and we're not arguing that a single charging document pulled out of the ether would be enough to establish the breadth of the statute but the point is that when you have charging documents that are consistent with judicial decisions and to putting the statute those documents are relevant evidence to understand how the state the statu actually prosecuted we don't understand moncrief to even if these are not successful prosecutions well if there were if there were reason to think that the prosecutions were not successful if for instance a judge dismissed the charges as insufficient you know then that would not be relevant to the scope of the minimum conduct criminalized by the statute but in this case that's what happens if a jury properly charged with what the statute means decides that particular prosecution the defendant didn't do a jury decides that the defendant didn't do it that's an entirely separate question than the minimum conduct criminalized by the statute you could have a charging document that alleges conduct that if the jury believed it would violate the statute and that would prosecutors don't criminal ze the legislature does and the courts interpret what the legislature does you're arguing that it's basically the prosecutor i mean if prosecutors overreach that doesn't change the meaning of the law does it no not at all and that's not our argument at all our argument is that what the court and what it's supposed to do and what the b s a is supposed to do is understand the scope of the statute as it's as the as the legislature intended it and as the courts have interpreted it here as our briefs explained the courts have interpreted this statute incredibly broadly to cover things like giving an eighth grader three cigarettes leaving a child home alone for fifteen minutes while getting groceries for dinner for these were unsuccessful prosecution no not at all these were these were charging that these were charges that were up held by a court now it's unclear because it's almost impossible to find out whether those charges were ultimately up held whether a jury actually convicted those people you know well but what we do know is that courts held that the charges made in those cases were sufficient to violate the statute because if the facts alleged in those documents did not violate the statute or a reasonable jury cannot conclude that they violated the statute the court would have been compelled to dismiss those charges and the court specifically didn't dismiss the charges they specifically upheld them they said this conduct if true violates the statute and there couldn't really be any clear evidence of what new york judges are interpreted to be the scope of the statute and the charging documents that are before this court and that were before the b s a are entirely consistent with the reasoning in those cases even though it's those it's not  whether each individual charge was upheld there's no reason to think that they weren't given that they fall squarely with and for instance the alvarez decisions holding that committing any criminal act in the presence of a child violates the statute or the court's holding and read is that leaving a child home alone for fifteen minutes while getting groceries for dinner that dock could be enough to violate the statute and so it's relatively clear that new york courts interpret these statute incredibly broadly and the be a just simply fail to recognize the breadth of the statute finally failing to consider these these types of judicial decisions and failing to consider these charging documents at all will systematically misconstrue the scope of the any sort of misdemeanor statute that to which the categorical approach is applied only at reported decisions you would have thought the statute looked nothing like that even though actual guilty pleas under the statute did and i ask a quick question returning to the argument that we didn't make you didn't make this morning but before we get to the was the i j why was why didn't the b i a get it right the first time around you have a criminal complaint it charges a violation of subsection one and you have a certificate of disposition that doesn't specify subsection one but he pled to that provision in the facts in the complaint are consistent with a violation of subsection one and don't just seem to establish a violation of subsection two why is that enough for clear and convincing evidence sheppard says you could l a charging document the complaint is a charging document why do we have to care that there's a possibility there might have been an information that's not in the record so you have just to be clear it's the idea isn't that there would be an information that isn't in the record the idea is that under new york law a defendant can plead guilty to a different provision than that in the charging document and the court of appeals held this explicitly in keizer so that's why the charging document isn't enough you can have a charging document and information that charges some sections it was in correct me if i'm misunderstanding you look at what actually happened in keizer the defendant was charged with a with a drug crime and that up pleading guilty to basically disorderly conduct which is not i mean it's a lesser offense but certainly not a lesser included offense to the drug charge and and there is some lesser included offense language but nothing in the actual holding of the opinion limits to pleading guilty to a lesser included offense the holding is basically you can plead guilty to as long as it's a misdemeanor not a felony charge you can the defendant can plead guilty to a different misdemeanor than that charge in the import of your argument is that the existence of the complaint in the record is completely meaningless as to as to what mr meaner defendant may have played guilty so in this case that's true but if you had a case for instance if the if in the plea transcript here the judge had said do you plead guilty to count one of the charging document and mr richards said yes that is what i plead guilty to that would then be enough because count one was subsection one but here that's not what happened the judge said do you plead guilty to two sixty generally and richard said yes but there was no richard never pled guilty either to subsection one specifically or to a specific count in the charging document well i mean to the extent the argument is we still don't know what he's pled guilty to even when we consider the  difficult for me to take except and tell me what i'm missing because if you read the plea transcript he's clearly allocute into the elements of the subset in one of  but again your honor that's not so the reason to explain and i'm happy to go through them again the actual facts he pled guilty to would violate either subsection and in fact he one of the facts that here allocated to was that he was the guardian of the child that he lived with  that mr richards pled guilty to subsection one of two sixty point ten as your honor pointed out the complete what petitioner is trying to do is essentially atomized the conviction record instead of looking at it as a whole you have the complaint which specifically lists subsection one you have the certificate of disposition which while it doesn't list of section one we know were in that universe counsel using the kaiser case suggested where he could apply to anything well he didn't just plead to anything on top of that you have the rap sheet which again by itself standing alone perhaps would not be enough but again it specifically lists subsection one then on top of that you have the plea colloquy which while again doesn't  explicitly illicit subsection one in terms of that number being spoken there's nothing in the context of that plea that suggests that he was pleading to anything else but the complaint let me see if i can't  contrary to regulation and haven't i heard noise in the government stand where you stand one hundred times saying that when a petitioners can see that the evidence was to impose a motion to reopen standard which is for the parties on this case and use and abuse of discretion standard rather than what actually happened d h has to not move to reopen this case the board on its own first agreed with the h s at that august two thousand and twelve board decision in what sense in the sense that they agreed that he had  subsection one that was the first court decision so there was no reason for d h asked to do anything at that point because they didn't know they did not do you just did not do anything at that point the case came back to the all right why did the b i remained for supplementation of the record you don't usually do that if you say well we have enough but we'd like more they they remanded for supplementation the record because the record was insufficient they felt that it that's their hold to it could have again you're out of the when they reopen for for the party is to expeditiously on this final opportunity to submit documents related to the conviction record or when really final opportunity come from i mean there was that hearing the government could have put in whatever at hand and a didn't it and the e i a obviously concluded the evidence was insufficient i don't understand this if you have a hearing you have a trial and the evidence is insufficient then you lose basically or your honor of the year the government or or a petitioner i mean it can't make a difference the regulations state that the board can at any time reopen or reconsider a decision that it's made previously that unfettered discretion without judicial review that they can reopen or reconsider a decision at any at any point this was not a motion to reopen by either party this was a suicide a decision by the by the board not to have to explain why they're making to a spontaneous decision to reopen the record they didn't explained and pretty obvious the reason is because the there was evidence of the government had but didn't submit and if it submitted the evidence then the government's case would be a lot better and well they prevail that's the thing there are it could have just as well have gone the other way the plea colloquy could have revealed something totally different and it would have benefited petitioner so like a judicial body wanting a complete record the board felt that it perhaps was incomplete and wanted to confirm that maybe there was nothing else that was looming in the play called me that would've suggested that he had pled to something else and in fact there is nothing else that the regulations allow the b to grant a motion to reopen or presumably to do is to spawn time to present new evidence if if quoting to the rig the evidence ought to be offered is material which was and  was not available and could not have been discovered were presented at the former hearing i mean it's a mouthful but that's eight c f r section one thousand three point two c one but this was not a motion to reopen at the time after the first board decision the board found that he had pled guilty to subsection one and simply remanded at that point for the immigration judge to explain why subsection one is a categorical child abuse this is what the board said and the board is tell me that so there's no reason at that point for d h s s to do anything moved to reopen that issue at that point had been decided as far as the case was concerned subsection one that's what he pled to now we're just talking about whether or not it's a generic child abuse offense so when petitioner appealed to the board the board agreed that in light of matter ceramic and that's rare guilty to subsection one so it reopened sue a spontaneous to the parties to put in whatever and it just so happens here it wasn't you know well i think reasonable minds can differ there is as judge livingston pointed out the fact that you have a complaint charging subsection one and at that point even a rap sheet that also said subsection one i think it's reasonable to conclude that there's clear and convincing could disposition and not to put in the plea even though the i g said i like to see colloquy as in all cases well the thing that they didn't wave however is the issue they always argued and maintained that either to sixty point ten was a categorical child abuse offense and removal on that ground or and in those days you could just move right to the modified categorical but under either the categoric or a modified categorical approach is he this he was convicted of that subsection and it fits comfortably into the board's generic definition of a child abuse offense so they didn't you know waive the cases that counsel cites in his pleadings are ones where the government affirmatively waves a defense or a complete issue in the case one was appealing a evidence that they felt at that point for whatever reason they felt that the record that they submit was enough and the board at least for the first go around agreed with them so at that point that issue was off the table i see my time is somewhat winding going back to the reasonable possibility that we that counsel began the conversation with you know the reason why petitioners pushing this court essentially beyond the supreme court is because as  judge jacobs and just live it's in pointed out you're supposed to look to cases to cases not charging documents to see about the breath of a statute what about a case that says that mentioned and with respect to those specific cases said we would also find that they fall within the generic definition it's the government's position that you really that a as you honor was pointing out a state doesn't punish someone based on a can a charging document it isn't punishable conduct unless a jury finds the person guilty beyond a reasonable doubt and that is why the supreme court and  thank you guys i just want to make two quick points about this administrative law as you in the first i just want to clarify that there is no ambiguity in the b i's decision that they they were remaining just to develop the record and some as that unambiguous way and i just want to read what they wrote this is on three ninety six of the record they say upon further review we now agree with the respondent that the current record in this case does not sufficiently establish what subsection the respondent was convicted of violating and d h d h s s not to date submitted evidence to prove that the respondent pled to the facts as alleged in the misdemeanor complaint as the descending board member recognized that's the end of the case the government had its opportunity to make its case to satisfy its burden of proving or movability the be a concluded it failed to do so and that should have been the end there is not another case that either party has found that the government of the fide that we have identified in which the b a has ever remained a simply for a party to get a second shot to meet its burden of proof and in fact for all the cases we cited in our brief mainly matter of a see the be a repeatedly refuses to remain and for exactly these reasons so the descending born just a matter of whether they are willing to do the do or don't question what the regulation exactly when that's why they don't because it's explicitly barred by their own regulations and in this case the government says it's barred enlistees newly available evidence when you're talking about a motion by a party this is pursuant to this it was found to authority and they can do it for whatever reason the nero themselves to extraordinary circumstance they could may have thought is extraordinary we've got a lot of disagreement here about this conviction we think we've worked it out now but we want to make darn sure the transcript  forms with with the complaint well so your honor the regulation the government cites involves motion moving to reopen its own decisions it doesn't involve remains there is not a single regulation that authorizes the b i e even su and for the for a party to basically get a second shot to meet their burden of proof and again the government can't identify a single decision in the history of the board of immigration appeals where they've done this other than in this case and again just i realize my time is expired i just want to emphasize that this  point is a second reason independent of that as to why the b a abused its discretion because this wasn't just an issue that the be a came up with that hadn't been an issue the government had been told by the i g numerous times ten sixty eight to ten sixty nine is the clearest example that down on that basis your client still in immigration custody he's been there six years i guess he could pursue this back to us again on the categorical exception depending upon what happened with that explanation  remedy here for the administrative law violation is to terminate the appeal because they're supposed to terminate the removal proceedings because that's what the b a should have and in fact as the descending board member recognized had to do at the time it realized or started at the  thank you thank you both we will reserve decision