good morning judge schwartz may have police the court josh brolin or the petitioner if you would like to reserve five minutes for a bottle be granted the pennsylvania statute an issue in this case covers every kind of risk that a child might face it is therefore not a crime of child abuse because the definition of that covers only some but not all kinds of risks child might board's definition of child abuse implies that there is some risk that constitutes risk that is too low to constitute child abuse therefore a statute like the pennsylvania statute th  i believe more accurately we focus on the language of the pennsylvania statute which says in danger pennsylvania case law defines an danger to me does threaten so it's not  o absolutely under that could threaten language that the courts use as the elements of the pennsylvania statute does not qualify but even if one looks at the plain language of the statute which so i believe the government has two principal merits arguments i'll start with the latter because it's more recently i suppose doctor i'm interested in and you can tell me if i'm not going where you're interested the government's  response brief says it's some length that what what matters is the facts of actual cases that pennsylvania courts have decided under the supreme court's going as al gore has caves however the government's august fifteenth  if it were the case that the pennsylvania statute requires that the net would be a very good argument however that is not the case the government arrived that argument from the pennsylvania superior court's decision in common practical certainty standard the government seeks is hidden in that words knowingly pennsylvania law in this context defines knowingly to mean that the defendant was aware that her conduct was practically certain to cause the specified result but that only raises a second question what is the result specified in section forty three a court it's not that the child be harmed the statute does not require harm to a child rather the only result specified in the pennsylvania statute is endangerment thus to put it all together what the wallace court held and what section point three zero four requires is that the defendant was aware that her conduct was practically certain to cause in danger meant not harm to do so from your point of view the practically certain language really speaks to the state of mind in the awareness but not the result that's not to make harm more likely than not not to put at substantial risk which is a phrase the legislature used elsewhere in the statute but merely to put at risk which is what the board has twice help is not enough to constitute child abuse how do you respond to the exhaustion argument when asked about a particular one particular point on that in a footnote in the i use opinion the v a says that the petitioner failed to contend the degree of in danger meet required by his statute of conviction is insufficient that's correct what did you understand that to be referred referring to and why isn't that an indicator that he didn't raise the very issue you're raising with us that footnote asserts that mr wood now did not raise the argument yes just for the record because that case wasn't cited in the briefs that's a two sixty fed appendix for forty seven to return to the exhaustion point unless a court has other specific question a me rephrase that and make sure that there is no distinction between my understanding and the court's i believe the government's position which is the position i'm advancing and that this court stated  case among others is that if the elements of the state statute are clear and those clear elements exceed the federal definition in this case of child abuse then there is no need to conduct a realistic please the court my name is jonathan robbins i'm here on behalf of the attorney general and good morning to everyone as my colleague alluded to there are two primary issues in this case the first deals with whether petitioner exhausted his administrative remedies with respect to the arguments regarding degree of risk and the second argument is of course to the merits and whether the pennsylvania endangerment statute in this case is a categorical match to the board's federal definition of child abuse child neglect and child abandonment as defined within the immigration and nationality act with respect to the exhaustion argument i certainly take petitioners point regarding the little construction for crows aliens but there's a big problem here about exhaustion because the board has a series of cases was this correct us or rom and and  mendoza story in which it said that what we're looking to is the degree of risk that's how we determine whether a state statute falls within the ambit of the federal definition but the board hasn't specifically set a bright line as to what level of risk is acceptable and they do that on purpose because different states have different ways that they describe the degree of risk these terms like substantial genuine likely reasonable except so the board hasn't drawn a line so the board in each has said it looks on a state by state basis to determine what level of risk is going to fall actually interestingly the board in a footnote put in a footnote i think maybe the board was worried the that its interpretation might not be accepted by the court because it said look we don't think that petitioners argued anything regarding to rip degree of risk here that's something the board is really supposed to look at him first instance on a case by case basis because they're the ones that are tasked with a function of determining whether the level of risk is sufficient to meet the definition we were could conclude the board was mistaken as your adversary encourages to  or can we decide decide the issue because one could argue its opinion of itself to decide the issue it found the pennsylvania statute qualified as a covered offense under the i n a or an equal offense to the nice definition child abuse  implication it means it meets the level of risk necessary to equate to the child abuse in a definition right well if you're asking me whether you think it's implicit in the board's decision whether they looked at the risk here the practical certainty and said that that was there it is implicit but the problem here is there's an argument being made that the level of risk isn't practical certainty so if the court were to disagree and say that some lower level of risk were included in the statute the board would have had a fit and an opportunity in the first instance to determine whether that lower level of risk would categorically meet i mean i think you just look at the case that this case is very similar statute to the statute in mendoza soria and the way that i read the board to read it's the way the board wrote his decision it was essentially addressing petitioner's argument adopted its stated to the ninth circuit said we agree it and the ninth circuit looked at a statute i think you just said looks a lot like the pennsylvania statutes or sister circuit has already found that particular statute is insufficient to fall within the because we are dealing with the overall subject matter of what is required of a state statute to determine whether it meets the  immigration definition of child abuse and yes once you step into that subject matter i think you better be prepared to understand  the pennsylvania statute you're dealing with how that might compare to any other description of child abuse once you start talking on the scented matter it's it's like privilege you see a few words and you open the whole thing up no  i agree but my my only point is that this statute the government is arguing that this statute is more akin to the statute that was actually considered in mendoza story of the new york child endangerment statute which also had the element of knowing knowingly endangering a child and if this is distinguishable from the from  exhaust argument the step statute requires exhaustion the board hasn't had we think the first instance to look at this situation but and that is what induced me to say i think you're parsing keefe on a fair enough your honor will even if the court disagrees with everyone agrees here that we're applying the categorical approach and the supreme court has put an important qualification on the categorical approach is that when we're comparing the pennsylvania statute to the federal definition we don't just invoke the statutes breath in broad terms there has to be a real probability that the state statute would punish the minimum conduct in question so if you're out of a story describes your letter of august fifteenth that's conceding that you don't apply the really stick probability approach that would mean not misunderstood your letter kno my understanding of what it is that there are certain circumstances where the statute on its face has elements that would show minimum so for example there's an eleventh circuit case that dealt with the georgia shoplifting statute and that under that statute under this on the face of the statute you could be convicted of an intent to deprive or and intent to appropriate so the intent to deprive would be a categorical theft offense the intent to appropriate would when there's a statute like that that on its face has two separate elements that is not a statute that invites any legal imagination right you can still tell from the face of the statute that it covers minimum conduct that would fall outside the generic definition that is i think most course agreed is a situation where you don't apply the realistic probability test now you compare that to this statute here this is  statute that invites legal imagination your honour's need look no further than petitioners opening brief to see the hypotheticals imposed hypothetical after hypothetical with respect to this particular statute your position on the realistic probability not only is the face of the statute parsed without any consideration to the elements as articulated by court no you definitely have to look at the elements by force we do that in our brief and we point to the different pennsylvania courts and to how they've interpreted to set the statute i mean i guess we could start with the text of the statute  itself the statute requires that the relevant person knowingly endanger the welfare of a child by violating a duty of care protection or support now that term knowingly is defined in the statute under section three zero to be two and among the different things that have to be shown for the knowing element it's as if the elements involved a result of his conduct he is aware that it is practically certain that his conduct will cause such a result that's exactly what the board has said that we're supposed to look to a massive practical certainty about that he knows what he's doing is going to cost something the question here is is that thing a threat to a child substantial threat to a child risk of harm to the child so i think where the disconnect might be is that practical certainty component seems to speak of was the actor or aware of the consequences  of his action as compared to the result of that action which is the risk and isn't that where the pennsylvania statute falls outside of the definition of child abuse i don't think so in those the state court  commonwealth against wallace spoke to this practical certainty standard and he said it is the awareness by the accused that his violation of his duty of care protection and support is practically certain to result in the endangerment to his children's welfare which is prescribe that which is about is the risk of harm to substantial risk of harm well the if you cancel practical impact of your conduct or it's for different things knowing about what you're the results of your actions and what they pose or not and so the scene i think the answer lies in the different cases regarding this in the pennsylvania case law they talked about the endangered statute here this endangered statute is really intended to cover a wide swath of conduct because it's just not really possible enumerate every type of act that would endanger a child so it's drawn up in such a way that it encompasses a large amount of activity what level of risk is required but that is a that is reined in in the case law by this is what the courts have deemed a common sense of community so in other words that's why petitioners nabl to point to any situations where somebody has been convicted of driving twelve miles over the speed limit or drug rolling through a stop sign it's because the pennsylvania courts have limited this sort of broad sweeping statute what level of risk under pennsylvania law that seems to be the focus of the opinion so what level of risk is required it is i think it's practical certainty because i don't think the practical certainty here can be divorced from the level of endangerment the board has said that we're looking at the risk of harm  essentially smoking crack in the presence or with a ten year old maybe child endangerment ok let's assume the hypothetical is smoking crack in the presence of the child is that does that pose a risk of harm to the child the child not smoking just in the house where it's happening that might endangerment but where's the risk of harm there to the child while there is no under the board's definition of child abuse child neglect and child event and i think that might pose a risk of this a sufficiently high level of risk of harm because it's not just actual injury to the child that is included it's also psychological harm as well what if the child isn't is in a bedroom and the parents are in the basement not happening same conduct the risk of it and that the child doesn't that with the parents are doing this is i'm sorry i'm not familiar with this case this is a case where the produced a conviction on television when they were discussing they were discussing the context was like a murder case they were discussing whether the simple assault was  akin to a child in danger but they had this line in there to make clear that that might be child endangerment pathetic all that we're sharing with you but it would be like simple saw ok we all agree that's not simple saw but my question is how could that be the kind fit the definition of child abuse as the i needs to find it when there's no risk of harm to the child at all well i don't i don't know whether that level of risk would be sufficient because again the board have when you're dealing with a close line like that it's really the board the boards up to the first instance determine whether that level of risk would be sufficient to encompass it within the federal definition but again it sounds like you are saying that that was a hypothetical in that case and the supreme court has said that we don't engage in hypotheticals we have to look at the actual conduct that's been punished under the statute so nobody's been punished for smoking crack in a situation where the child's in maybe in a different room i don't think we can use that to show that the show minimum conduct punished but state statute under supreme court law which is the law and this make laws before in danger or risk or something like that the pennsylvania courts discuss this statute as could have seen and if that's the case and how we would you ask is to deviate at least the prism that end community they say the i want to see if i can find the exact quarter of the common sense of the community as well as a sense of decency propriety in the morality which most people entertain is sufficient to apply the statute to each particular case and to individual what particular conduct is rendered criminal but again remember the less than the conduct that fits into the immigration the definition of child endangerment without that limiting concept of community of the common sense of the community yes the concept of common sense of the community that can that can vary from the community to the community it can which you have a little think i think basically at argument shoots you in the foot i don't agree your honor because again this is a state by state that yes the common sense of pennsylvania might be different than the common sense of california but that's why the border gauge is in a state by state analysis to look at whether the the minimum conduct that is actually punished by the statute falls within the federal definition if i see  time ok so so in this case because there are no pennsylvania statutes i mean the because there are no pennsylvania statutes that cover the bare minimum of conduct that is akin to the so to the main danger standard from gozo and under the real estate probability test we can see that the common sense of the community in pennsylvania is such that nobody gets convicted under for driving twelve miles over the speed limit or for wall or through a stop sign or any of the bare minimum conduct that opposes the hypotheticals and petitioners opening bri most the court would like to start with specific questions i have three points to make one question what level of risk do you think pennsylvania requires there is no other work risk it requires in danger man which is the commonwealth he was decision states covers any kind of risk my first point is that the government made the argument that the board determines on the state by state basis what the risk of harm is enough that is correct and therefore if the pennsylvania statute required something beyond your risk for example if it said that risk was likely then the appropriate disposition would be for this court to exercise hand to the board for it to make that state by state determination however because the pennsylvania statute encompasses every kind of risk there is no minimum threshold at all there's no judgment for the board to make on a state by state basis and therefore remand is unnecessary my second point is that the government argues that we look at the facts of individual seat cases if the statute on its face differs from the federal definition and it's my position that the statute here does differ on its face from the federal definition the statute on its face says in dangers and as i was saying to judge shorts a moment ago in danger's covers every kind of risk which makes it broader than the federal definition rendering it unnecessary for the court to consider the of actual decided cases and to conduct a realistic probability inquiry my third point concerns the government's closing remarks about the pennsylvania supreme court standards regarding the common sense of the community it is true that the pennsylvania supreme court has held that words like in danger meant are to be given referenced to be given meeting by reference to the common sense of the community however what the court is doing in that case is merely defining what risk means it is not setting a lower threshold on what risk is  required and if you think about it any indeed hermant statute has to have that commonsense definition as opposed to say a more philosophical definition of risk under which say we're all at risk right now because there is some chance that the ceiling could collapse because otherwise every endangerment statute would remember every parent a criminal every day the borders hell but that's not enough even if you define risk and a common sense way as the pennsylvania supreme court has instructed us to do you need something more than that like substantial risk which the pennsylvania legislature used elsewhere in the statu thus the court has any further questions your first point that you said that we don't need to re man because there's no minimum risk and therefore no state by state analysis is necessary isn't that exactly what you have to do with a look at the statute does it have the sufficient level of risk articulated to make it covered by the child abuse definition that we have isn't that what you are doing in this state by state analysis you're looking at the statue presented and comparing it to the eye in a definition yes i mis understood your point guess judge schwartz that is what i'm saying we have to do i think the government's argument is that it is a decision for the board to make in the first instance whether a particular threshold of risk is high enough when they think that decision when they said the statute qualified i absolutely agree with that and thus think that there is no money conceivably to remand however with the court to disagree and to believe that because the board did not explicitly conduct an analysis of the level of risk required the court might be inclined to what the board address said in the first instance and that might be warranted if there were anything here for the board