fraud as part of the sentence he was ordered to pay restitution for the loss to the victim in the amount of ten thousand one hundred and twenty seven dollars fifty six cents however the record of residents based on the fact that the immigration judge felt the that the risk to sin of ten thousand dollars and more on his conviction in arizona made an aggravated felony therefore he order of immigration consequences and therefore he did not enter into in what we are saying intelligent voluntary unknowingly plea and that's why the court felt that because he was not informed in this back in two thousand before that because he was not inform of the of the immigration consequences that for the court of believe felt that he upon immigration status that was you only way that at the time that the appellant could follow a motion it was the government argues that he should have don't agree with our argument ok assuming we don't agree with that argument let's talk about the conviction i mean i guess i have two questions about this conviction one is what was he actually convicted  the nd site but it is one cow rather than two counts that's my understanding you're under that in order for the arizona courts to charge the defendant at the time attempted in conspiracy and as been our argument there but that's under a different clause there's there's a separate clause in the definition of aggravated felony that says you know we're tempter conspiracy and it doesn't mention solicitation but but europe in a different clause that just says that it's a crime in involving fraud and isn't solicitation to commit fraud doesn't  look at the solicitation conjunction with a fraud element in order to make a finding a fraud doesn't have to be an element it has to entail an element doesn't it which is solicitation to commit a felony in this case we don't have a federal statute there's no solicitation to commit fraud under the federal law so you're saying you're talking about whether or not i guess the question is what kind of behavior it's required the prime in obviously we're talking about the categorical approach and you know i think many judges are quite express frustration with the categorical approach because the least or the minimum behavior that could be prosecuted based on that statute to make it a match whether it's going to be categorical or not so can you give an example of how this arizona statute could be violated with when it didn't involve fraud or artifice in order to say sweeps more broadly  documents purposely showing himself as being someone else and committing fraud in front of the immigration court there's documentation that can be used  and that's completely silent and it's up to the government to be able to prove with a clear and convincing standard that the loss was tied to the specific counts and of making a well that would be more of a civil action regarding the punitive damages but we don't know whether the court to get into consideration in making this award to the victim why isn't it a crime if a she satisfaction of their burden to produce a judgment that says restitution and an amount that's over the limit that that's a judgment of orders restitution which is repair for a loss and it's an amount over ten thousand dollars if you think that was wrong well you know you could report that crime if a she case the why wasn't that enough to carry their their burden if i'm about it well at the challenge that body was never challenged there was never testimony taken either in immigration court or at the criminal courts in regards to how this amount was determine petitioner was convicted of solicitation to commit fraudulent schemes artifices as has been discussed which is to wit an aggravated felony an offense that involves fraud or just see and one in which the loss of the victim exceeds ten thousand dollars it's the government's position that anyone should be interpreted broadly based on it's own language and that the court should look to the underlying crime and not just solicitation isolation we can't look at i mean we can't look at what actually happened here we have to look at the solicit the answer that your honor would be that it does he read together petition or was convicted of a specific intent to promote or facilitate the commission of a scheme or artifice that involved the act of commanding encouraging requesting or soliciting another to become to become complicit in a fraudulent to see sergeant or deceitful scheme in order to obtain a benefit and it's the government's position that that necessarily involves fraud because there's no conceivable way in which the elements of solicitation combined so i my question is how does arizona apply that does it necessarily apply that to combine with the other parts of it is a separate crime in arizona this is a stitch it is a separate statute but it's all within one count and that was my point about looking to the underlying crime i understand that i am one doesn't cross reference any other particular federal crime and that there is no exclusionary list in which some in kuwait offenses are listed to the exclusion of others is evidence in support of them one being interpreted broadly meant to limit in kuwait offenses of the government's position is that that is not true considering the case law which supports the idea that each subsection of eleven a one a forty three dollars is an independent basis and that the subsection at issue today delineated which the court decided meant that solicitation was intentionally left out whereas here there is no such exclusionary list and the language of m one itself the plain language using involved implies that it's meant to be interpreted very broadly to incorporate any crime that might be inherently fraudulent or deceitful in addition the government's position is that the law to the victim was definitively more than ten thousand dollars based on the plain language of the order which has been discussed already clearly states that the restitution is for the economic loss of the victim and there is no evidence or legal support for the claim that the money doesn't reflect the actual loss of the victim and doesn't meet that circumstance specific ellen circumstances afic component of this statute  matter whether the rehabilitation statute is invoked by you know the defendant in challenging their conviction on grounds that include constitutional grounds does that make a difference so i can repeat to you is it make a difference that the rehabilitative statutory scheme available under state law is invoked by the defendant in challenging the conviction and invoking that mechanism on constitutional grounds that his claim is that i get that it's a rehabilitative you know vehicle that's what they gave me because the time would run for the other vehicles so i took the rehabilitative one but i put constitutional arguments into that vehicle does that make a difference in your mind and if if not why not the government's position is that that would not make a difference because although within his motion he states that the reason he sought vacant chair was for immigration purposes there's no indication that that was the reason why it was granted and more than that there's case law that directs the court to look at the statutes that were cited and to look at what the purposes of those saturates are which here a in public mendoza that the same statute which was that within the range that he cited within his motion arizona such huge thirteen thousand nine hundred and seven is for rehabilitative purposes only and may be used in subsequent removal proceedings even though the word rehabilitation is not necessarily in the statute it's clear that that's the purpose behind the statue and that it was not meant to have immigration purposes  and to the extent that opposing counsel argues that his plea was not constitutional knowing or voluntary and relies on pity that affects the government's position is to repeat that video does not have a retroactive effect and the fact that petitioner may not have been aware of the immigration consequences it's relatively set up with a lot of that's not a reason that makes his plea any less knowing or voluntary or any more final for immigration purposes and wrote that information into the document the judge signed off so just wanted to correct myself on the right thank you very much counsel versus bar