algo is a fifty two year old man who lived in the united states for over twenty years as a lawful permanent resident the last two years in immigration detention in a remote facility now in texas over two decades ago he was convicted of the crime of attempted criminal sale of a controlled substance in the third degree for which he wasn't sentenced to one day in jail and he doesn't contest that the crime subjects him to deportation the issue is whether the crime deprives the immigration judge of jurisdiction to hear his asylum claim that he would be persecuted in the country where two of his family members have been killed and the rest live under the continued threat of violence and that turns on whether or not it's an aggravated felony because people convicted of an aggravated felony are disqualified from asylum under eight u s c eleven fifty eight b two the government contends it is because the statute of conviction is akin to an attempt to transfer their incorrect for two reasons the attempt liability is this court well knows requires commit each and every element of the substantive offense and a substantial step beyond mere preparation towards that offense mr dagoes crime fails both prongs of that analysis let me start with substantial step even if we assume argue end that he couldn't form the requisite mental state the job of this court under the categorical approach is then to look at the minimum conduct what does it actually look like to attempt to offer to sell or give and measure that minimum conduct against the federal standard for attempted transfer a substantial step towards a transfer recall that this court of course is already held in pasqual that the offer is akin to a substantial step to a transfer but we don't have an offer here we have attempted offer and by definition attempt triggers liability further back in the factual chain and so now we have the harder question of whether that earlier point in time satisfies the federal dish definition for a substantial step and it doesn't qualify it has to be a bona fide offer of the point the court pointed out and pasqual and so if police are monitoring a cell phone or seize a cell phone with a text that says would you like me to get you cocaine that's a bona fide offer if the person has the actual intent ability to follow through on that but if the text failed to go through then we have someone who came dangerously close to making a bona fide offer that's what's required under new york state law for an attempt dangerously close to making a bona fide offer but they didn't possess drugs they didn't attempt to obtain drugs they didn't make any agreement with any offering or have any communication with anybody else whatsoever and under this court's precedent in cio and other cases that doesn't come close to what this court has said is required for a substantial step towards a transfer of this court said that quote evidence of a verbal agreement alone without more is insufficient as a matter of law to support in attempt conviction and in dell that show they had agreement as to price agreement as to quantity agreement as to the place of transfer and this court said that wasn't enough for a substantial step if that's not enough for a substantial step then and near failed offer appeals case that says where a crime is simply communication failed messages make out attempt but frankly more importantly i don't need to because the test that you're referring to i believe is the government's argue argument about the realistic probability test of the doing us court referred to saying to show that it's not some fanciful legal imagination enough to show me a case of actual prosecution but in situations where the statutory text is the minimum conduct the attempt did offer no realistic probability is that you don't need a case to a sabot realistic probability because it doesn't take any legal imagination the fourth or follows  understood your argument to be was well they allow plea for crimes that are not really crimes but i didn't see any attempt to attempt plea that you  comparing the supreme court's decision in duenas similarly is instructive here because as the third the fourth the seventh miscues and up to seven the ninth and the eleventh circuit have held it doesn't take legal imagination and you don't need to demonstrate an actual case of prosecution where the statutory text is the men you work refusing to recognize attempts to commit taps as crime friend so it's not a matter of just not applying legal imagination we know that the state does not recognize that all the examples you've given us of police to something that might not be a crime involve you know recklessness versus specific intent they don't involve this kind of situation so what is what reason is there for us to think that new york would ever allow any body to be convicted of attempt to attempt there are an attempt to offer i the my time is only almost up and it is one critical piece of record evidence i want to draw the court's attention to but let me quickly answer your question what we have are two things we have the statutory text that says the words attempt to offer and we have people  are allowed in the police context it was recognized by this court in guilt by the fifth circuit in detail and by many new york cases that it's not about the specific attempt to to act recklessly but the general principle that as a matter of public policy there are good reasons why we let people plead guilty to a possible crime some time and that's a general principle that pervades over new york law if i could quickly draw the court's attention to one piece of record evidence that i think is  even if the court finds that this is an aggravated felony you are still mr doggo is still eligible for cat relief and there is a critical piece of record evidence at page four hundred of the record that entirely undermines the board of immigration appeals determination that there was no prejudice for what they found to be the wrongful exclusion it's a letter from the witness who was excluded from testifying that gives testimony directly to the contrary  that which is the organization that is doing the harm quote found out that the brother of the deceased female referring to mr ekdahl go is in new york and quote has problems and that falco was quote waiting for entirely ignored this letter when they found there was no prejudice the entire denial of cat hinged on the conclusion that they there was no evidence that they knew of him and this there's context requires them to consider all evidence if you like but what what what is our read they didn't consider it there is no mention of it in the immigration judge's decision whatsoever he only discusses testimony and the board of immigration appeals in passing mentions the existence of the letter but seems ignorant of its contents because it says there is no evidence that there were threats against him and no evidence that there was knowledge of maybe i missed communicating it's not that they credited that there were threats against the family and they credited that there were deaths in the family they said there were no threats against mr her doll go and that there was no evidence that the that the persecutors even knew about m fact the very witness who was excluded was prepared to testify to the contrary on both points thank you very much thank you good morning change for the respondent this court has already decided not once but twice that a conviction under new york penal law section two twenty point thirty nine is categorically a drug trafficking aggravated felony during the proceedings before the immigration judge petitioner counsel actually conceded that the immigration judge was bound by pascal conceded that his conviction rendered him for asylum also rendered him ineligible for withholding removal as an alien convicted of a particularly serious crime and merely sought to preserve the aggravated felony argument for purposes is not because it has the potential for being an attempt to attack that is their argument let's hear your response to that the immigration code at eight u eleven zero one a forty three you also makes aliens who engage in attempts to commit aggravated felonies removeable there's no question that can you understand what the problem with that is why whites generally not recognize including right i do recognize what the problem with that is and why it's not recognized by new york law and petitioners argument really boils down to a quarrel with what happened before the new york state courts he's arguing that he didn't have the requisite mens read to commit an attempt to attempt the new york state doesn't allow attempts to attempt if that's his argument then that argument belongs before the state court he should be pursuing an attack on his conviction with the state court the fact is he was convicted under both new york public law one hundred and two twenty point thirty nine this court in pascal determined that aggravated felony drug trafficking also includes attempts in this case the grand jury indicted him for under two twenty point thirty nine the the attempt charge was part of a sentencing reduction scheme so the offense itself already includes attempts the addition of the attempt to charge was merely an effort to reduce his his sentence so we would argue that these issues have been decided already as petitioners counsel and fact conceded before the  aggravated felony conviction render symon eligible for asylum he conceded before the i j a that this is a particularly serious crime that there is no exception for drug trafficking crimes that while he was he was convicted of both to twenty point thirty nine which this court has already held is a drug trafficking aggravated felony for purposes of immigration law and convicted under to both in passing sentence the sentence was imposed for both of the violations violations of i'm not i'm not sure what specifically the sentence refers to i know that he was sentenced to five years of probation convicted for the the record of conviction shows that he was convicted under new york public law section one ten and two twenty point three nine and that is that he was convicted of two twenty point three nine and that's why one ten is there would be the same as in a federal conviction having section kill added to the substantive crime where the attempt will conspiracy section added to the substantive crime i meet that if you're arguing to us that he was convicted of two separate crimes based on that that that doesn't yes ok so what's your argument my argument is that the court has already decided that convictions like this are drug trafficking aggravated felonies categorically under federal law that they include the requisite intent and substantial stop with respect to attempt to attempt to commit this particular drug trafficking crime well actually in united states versus go at seven forty eight f third for ninety five this court did say that an individual who was convicted under new york you know are one ten and to twenty thirty nine the exact same conviction here that an attempted sale is considered an aggravated felony under federal immigration law petitioner would argue that that statement is dicta  nevertheless the court is on record as having concluded that in an identical conviction is considered an aggravated felony under the immigration law and that would render him  ineligible for asylum he's conceded he's not eligible for withholding this court lacks jurisdiction to review his factual challenge to his cut claim the evidence he made regarding the exclusion of telephonic testimony the board acknowledge the immigration should have given greater consideration to that request but the aliens daughter did provide a letter the other unnamed relatives whose testimony you made a ruling that was incompatible with that letter saying that there was no evidence correct in saying that when there was evidence first of all is he correct that that letter did without looking again at the letter itself i can't say right now whether that is incompatible but i can say that the challenge that is a factual challenge the the  daughter may have said one thing the alien himself may have said another thing those are those are factual challenges that are beyond the scope as years ago where the the i j a said there is no the petitioner has not contended that he was beaten and the testimony of the petitioner was i was beaten and if he had said i disbelieve that would be a this is not a case like this because mr had doggo himself during the hearing at pages one to fifty three and one fifty four when asked whether he had ever been threatened he said no his daughter and again i'm not i don't have the daughter's letter committed to memory i do  decision he has never received any threats nor has he been harmed in the past there is no evidence that the camillo family or members of the f a o p o even knew a know of the respondents existence and i ok letter the letter is at page four hundred but i'm also looking at work for four hundred four zero zero of the of the record i'm also looking at the at the board's decision it's important to note that it's it's the board's decision that is before this court for review not the immigration judge's decision and the board does not say in its decision anything about whether camillia family knows about him or has threatened him the board's decision acknowledges that the nephew and sister were killed but that other families continue to live there they've not been harmed he was not personally at risk he was not there when his nephew and sister were killed he didn't have anything to do with the prosecution of his nephew's killer and he was not threatened or harmed in the past and that's wholly consistent with mr her dog ozone testimony at page one fifty three and one fifty fo the daughter says my family is really afraid of my father coming back to this country and these people take revenge against my father that goes to their fears now that they found out the brother of the deceased female is in new york has problems in their waiting for him to take revenge with whoever from our family since they are still threatening that is that in regard to the government just made the argument that they didn't make in their briefing that the board didn't make that an attempt to attempt to transfer is an aggravated felony that is entirely inconsistent with this court's decision in five hundred thousand dollars in u s currency sixty two f third fifty nine where the court called it quote absurd to interpret federal statute to create liability for attempted attempt let me turn quickly though to to the issue of the daughter's letter it's true he testified that he hadn't personally received threats but he had been threatened and the whether you look at the immigration judge's decision which the relevant part was just quoted by the court or the board's decision that says the immigration judge also found that there was no evidence that the camillo family family or members of felt even know about the respondent existence that and that's the board of immigration appeals you're permitted to look at the decision as well whichever you look at when you compare that to the statement of the daughter that felt both quote found out that the brother of the deceased female referring to mr her dago is in new york and has problems that shows that they knew about him and that phelps was quote waiting for him to take revenge that shows threats against him those those weren't considered because the testimony was wrongly excluded the board already found that the testimony was wrongly excluded simply denied that claim based on lack of prejudice we can't get this one wrong mr dog oh it's been sitting in detention for two years litigating to get to this court because he is terrified that he will be killed if he's returned to the dominican  him to take revenge those of the daughters words  sylvia dago i address you in order to explain the situation with my family and that is that daria camillo was not imprisoned because he is powerful and now they found out that the brother of the deceased female that is in new york has problems and they are waiting for him to take revenge with whoever from our family since they are still threatening and they say that daria camillo is dead but the power now is held by his brother and his son and it goes on from there i can that the outcome would have been different and so we don't need to know for certain that her testimony would have did more but is there enough in that letter to make this court uncomfortable that it's possible realistically possible that if she testified she would with an understanding of whether what the daughter is saying is something that constitutes cognizable evidence if the daughter says these people want revenge and are going to do this  what shows that she's the cheese competent to do research that is witness i mean certainly if you were testifying in a federal court she would be allowed to to to to testify about the intentions of other people she could testify to things that they said things that they had done so forth that support the conclusion that they are if they want to kill but she but just for her to say they want revenge against him why is that competent ev knowledge which is what i think the court is getting at the letter doesn't lay out the basis of our knowledge of basis in the record to think that she could say any thing more than in that letter and he can't say anything more than is in that letter there's no reason to think he's  that the threats and the killings all happened in the dominican republic mr dog of course was not in the dominican republic and mr a dog though is illiterate and was and unable to read any of the stuff that he was receiving he desperately wanted the family members who had firsthand judge the judge would say give me a proffer what's he going to say on the telephone did you do that for any one in on this record at one stage i'm sorry but the i k has the sure that the counsel below actually wanted to make a motion where they would have laid out all of that and when they stated their intention to make that motion the immigration judge said i'm going to take your request as an oral motion denied don't submit anything in writing and that's not that's not the only error here but when you're thinking about why i didn't why wasn't this laid out more fully in the record below it's entirely appropriate to think about the ways of a immigration judge deprives counsel of the opportunity to lay out the record more  obtained a more elaborate affidavit of the form of testimony from the daughter that would flesh this out am i mistaken in that and if it if i'm not mistaken  very serious logistical problems with the family that is functionally in hiding in the dominican republic and coordinating with them what happened was in the the ad when the immigration judge concluded testimony they said i want to give you a period of time i think two and a half weeks to submit  a closing statement that would have been able to marshal this evidence and then the the decision was issued before counsel even had the opportunity to marshal the evidence before that before the deadline passed and p i can't and there's nothing in the record that that indicates what steps were taken by the council that represent them below and argue to us that the reason that i think it's almost two months between the adverse ruling on the telephone that could they have fixed that problem in other ways maybe maybe not but it was a legal error to exclude that testimony and the question is is it realistically possible is it excuse me is it realistically possible that the outcome would have been different this letter gives you more than enough to say there is a realistic chance that the outcome could have come out differently if somebody was able to testify about threats against him and about the persecutors knowledge of him because those were the critical findings that under