precedents so and if you're if you're taking issue with an ongoing decision of the v a we've already held that that has deference is your is your argument that give deference or is it that i if we got past that one of chevron then the interpretations and reasonable but i think just to step back i think in this particular case under you know back would be purposeless because it's not going to change what happened because in fact the came out against you the rationale that it's not going to change would happen and in fact  it results in no meaningful advancing of of the process because the board according to the government this panel had no power to do what it did it didn't in fact legally improperly reject rodriguez rodriguez it could have done that sending it back doesn't change the result and it doesn't meaningfully move the last word because they couldn't do to make a ruling on whether or not what the court with the board of immigration appeals said and how it decided was correct great and they and they say it wasn't correct but it was harmless in other words it's harmless it was error but it was harmless saying it's not up it's not it's not our guidepost and certainly the supreme court said that too when they were saying this is how you decide on sexual abuse of minors here's the methodology and then you have the government itself one narrow question and that is age of consent and on that point and that point alone is that president controlling and it and by its terms th rodriguez when it worked because what we guess was real it was about a guy who flashed someone in an indecent exposure and they needed to get back out of court because that's how they think of the board so they kept opening it opening it opening it skipping over the criminal statutes which the the supreme court is if you use the criminal statute you follow the regular rules of statutory construction and rodriguez reduces is just i think this ingenuous the way they said we had no and i do think that that they're ripping they're making repairs they're saying we're going to that the supreme court has given us guidance and given us a methodology for properly determining what the guidepost should justice thomas inside out i think on the part of what is sexual abuse a minor and then he spends probably about six paragraphs trying to describe what it is and then he sort of just abandoned it never finished with a perfect perfect definition side merriam webster's definition w opinion and think that justice thomas has done anything more than focused in on the ages of the victim and in fact there are two places in the opinion which i'm confident you're keenly aware of that the justice says we are not coming up with a new definition and in fact it's an interesting case because there's on sexual abuse my so help us what's the infinite i think the the importance of it is that finally the highest court in the country said here's what you use here's how you figure out the generic but since that's not the case  we're not going to we're not going to define it today we don't need you but follow these rules set forth the rules and i think that's the import of it and i think when you put it contrast that to the original decision or decision which was a ninety eight decision with very strong dissent they didn't follow that methodology and i think the supreme court is sort of a little other you know a little bit rapprochement to them they're saying you know let's let's draw the line here there has to be a guidepost and when you guys do it follow these rules and i think if this court follows the rules it would never come up with thirty five or ninety eight of the definition is that otherwise we would not be getting seems to do i is to take eight a much more vigorous approach to examining context other states the other states statutes a of dictionaries beyond black's law dictionary to i took to reach the conclusion that this that the statute itself when it comes to the question of what does it mean to be a was rape is we all know what murder is and i think i know what sexual abuse of minors so but in terms of how the courts have repeatedly said that we don't know and they didn't define and they didn't point us to a particular statute binding precedent from a panel of this court and says we're going to accept rodriguez rodriguez which was on bach even if there were dissents and we're going to embrace that how how do we overcome that if if all that ask of all can thomas said was hey when we're looking at the age of consent that's clear we don't need to go to ship run deficits in terms of anything there  that there is a solid guideposts for sexual abuse of mind and it must be thirty five dollars and i think they deferred because it was a reasonable decision underneath but that was a decision by the court it was reasonable i don't think it was reasonable that rodriguez would we guess who had no sufficiently undermines the rationale of restraint that you are no longer bound by we're a panel of the court we've got a binding precedent on the book what is it about time that ask of all that would allow us to say hey forget that pale decision and restrict rodriguez rodriguez doesn't apply is it enough to say well they talked about a different methodology i think they set out the recipe for determining what a generic is and when you look back at the rigors of read it in a script but it wasn't followed and i think that's the strength of the argument and i don't think that when a appellate court defers under chevron deference for a guidepost generic means it's a president decision in terms of that locked in forever with that is the fact that the age of consent may be perfectly clear i mean that everything about sexual abuse of a minor is perfectly clear in other words the court in  was able to say we don't have to worry about chevron because age of consent that is clear we have to worry about that you know we can talk a lot about we can surveyed said sara but respective ages that's that's there's nothing mysterious about that does that mean that everything about the question of sexual abuse of a minor as defined in the eye and say is is clear and unambiguous and therefore not subject to shop around you know i don't i don't think think that and i don't i also don't think they said that the eighty's was obvious rock solid you know throughout the country they determined it by using that methodology that they set forth to find sexual abuse of mine and when they did it you know they did a fifty six survey  they saw there are some states with eighteen and some states with maybe seventeen dollars sixteen cents as the age and what goes to sort of against what we see and rodriguez would regas an infrastructure as they did the most restrictive on the one that protects the immigrant the most sort of maybe some of the terms to funk how case from the supreme court that says doubt should be in favor of and in the cuties and paper an immigrant but they could have said the age of consent is eighteen because some of the states included so we scoop up all of them but instead they restricted down to sixteen and what you see is the opposite is that instead inform us on sexual abuse of a minor such that we say to ourselves that we must over her are precedent usually when the supreme court makes an enunciation that reads a circuit or all the circuits to reexamine either the the justice speaks to statutory interpretation is nothing unique about it is you know we look to the dictionary we look to play meaning  this this age issue is a quibble so we'll look outside of those who matter or the method of making the determination and he goes through that process what does that inform us about having to pull over turn you want to overturn a precedent right and when that happens when we are compelled to do that right it's usually quite supreme court is looking at all sorts of canons of construction going to look at a fifty state survey making a determination on language in the statute that just not say sixteen doesn't say eighteen it but they conclude that the term is an ambiguous so they never get to defer to deference right they conclude we don't need to consider chevron deference because the language of the statute unambiguously foreclose the board interpretation so that's one argument i need to you're trying to make if we never even get there because of all can tanana tells us about a methodology that we should follow to determine whether the face of  that instead of looking at the the whole term writ large it focuses then on one particular aspect of it to make it the sense not whether that's unambiguous or ambiguous so that you have offense we're talking about the is the issue of the penetration with a foreign object where there is not a purpose set forth in the statute book where there's not either of those and and focusing on and on that so addressing that and that either of those issues what is your best argument that we we can do the kind of analysis they didn't ask about can time i conclude that the federal generic as to those issues is unambiguous guide it along so you've got a criminal statute in the same code that says exactly what sexual abuse of minors and what started this ball rolling this no ball was that rodriguez rodriguez was confronted with a guy who flas and that's not sexual abuse of a minor i didn't want to give him one that's really doesn't have all right you can't you can't get a sense that it's not speaking for myself it's not helpful to say in the legal analysis to say hey don't trust those b a guys they're so results oriented d with the argument you keep going back to just leave that for the night because it's not advancing the discussion what we've got to deal with is i think we've got to wait a minute ago you really want us to get to adopt the not thirty five a ninety eight but what is it twenty to forty something that's not that's that's the place you want us to concept of molestation just do enough to cover that ground that the pennsylvania statutes go that's to me a very ambiguous term and i'm not sure everyone can interpret what molest means i think it just means the bar and it means it means to do something yes very broad indeed exactly my point so why isn't it broad enough to cover any range of things of the sort you covered in your briefing whether it's ritual whether it's curiosity whether it's bizarre things with animals which you and the government  and you had come up with some ideas about why will d that be stuff that is not covered because pennsylvania speaks so broadly and the question i put to you is how do you get any broader than molestation it's about as broad as you can get and why does that i couldn't find a way a rational way i'm going to call that sexual abuse so the final thirty five thousand and ninety eight and then it scoops it up rodriguez i'm trying to get you i'm trying to get past that both major argument on that and you've made it effectively and we understand it and now i'm asking you a different question which is it is give us right we are dealing with thirty five and ninety eight we're not going back to question of the good faith of the b a a and how it got there and were and were accepting for just the sake of discussion that were struck both controls and that's our foundation that's our federal generic so we have that's our federal generic and we have to do a categorical approach how do you distinguish the word molestation in a way that doesn't cover everything under thirty one dollars a one so ok a  sixteen years or even though some states have eighteen some states have stepped up us understand what we understand where you're focusing your argument is it that if we do that analysis ambiguous ok but then you turn to look at the deference that we paid in restrict though and we only we only defer to a reasonable interpretation and your argument is that it's no longer reasonable under the things and then and then the be i a settles on is very expansive thing that has the word molestation and it you know them all right it's of if bats your reasoning then this is reasonable but i think the fundamental parts little have to be question here's a question i think i step one route your step to read is no still ambiguous but we have what we don't have to defer any more when we get to questioning what this means because the question now becomes following ask of a kid tata what's the right way to assess ambiguity or that or whether it's a it was reasonable that's what i take judge crowds to be putting to you are you make it a step one argument or are you making a set of jorgen if or you make them both you know so that's been put to you and maybe with that one will will have exhausted you and everybody else and move on but can you answer that question  what are the tools the traditional tools of statutory analysis such story interpretation and then judge justice thomas said it out and hammered it home and the very st thing you know is the miriam webster dictionary the popular ordinary people definition and then and it's has sexual contact with someone who doesn't give consent so that sexual abuse bottom line is that you're not making a step an argument you're making a step to right or at least this panel of the board did it's not clear what the board did i how can you say that when he said in hoc vrba we agree that rodriguez we agree that controls and it was a mistake for the i j a to look at the rodriguez rodriguez be they not quoting exactly i could find the quote for you but that is what the board said here didn't it yes in a very what's unclear about that they were certainly wrong and and honestly your honor i don't quite understand how they got where they got because a reading of as cobol component does not produce a new definition of sexual abuse of a minor accept for the sake of discussion that they clearly did reject rodriguez rodriguez and they clearly did say as a balkan time and now controls d does that have any legally important all in how we should be approaching this case  no as we stated both in our brief and in the molester memorandum the board's decision here was unpublished so therefore cannot reverse rodriguez rodriguez furthermore it lacked sufficient analysis to reverse rodriguez rodriguez and not mean does that mean that we should just like end of subject send the thing back for it without further discussion say hey you did this wrong and you can't do this now do it right but what will what allows us or what would permit us or why should we get into an extended discussion of what the right thing to do is with the board didn't do the right thing and everybody acknowledges everybody being everybody doesn't like something that the board did here right they don't meet in the result one way or the other's can better you don't like the board's approach why should we just send it back and say got this wrong better do right  would be an option and but we do know that there is you know present of this court and others that say that you know the remember it's not it's not a pong this court knows what the definition of sexual abuse of a minor based on is controlling president the board in this case did not follow its president so remained would be for the purpose of following a president did seem to move on when it came to mens rea a question and said we're not going to give for deference to three thousand five hundred and nine here or were the board's interpretation we're going to conclude that there's nothing in thirty five or nine mentoring and so we got to figure that out those court that is what they did your other top should we take that approach here and look at mens rea i to say we've got a clear cut disparity here the government concedes that right well as the nd circuit said that with that specific statute that there was no way of committing be offense which is very similar to the statute or question here but there was no way elements that match and once we conclude that the elements simply don't match then there's a different mens rea and that's required is it really appropriate to say well we're going to go ahead and try to interpret that in the statu here it to to i then use legal imagination and see if there is circumstance any of any circumstance that would allow us to differentiate well with respect to the judicial imagination that's the point is that you're not you have to look at the realistic probability and that's what the nd circuit did but white why do we do that if we conclude that there is not even a match between minimum that's reckless petition has not presented any arguments why recklessness would not cover and but if this court disagrees then our survey to provides an alternative analysis so do we then need to look at the way the pennsylvania statute written and the exceptions that it provides to to ascertain whether one could serious stuff because it's in there next to murder and rape murder rape sexual abuse of a minor and therefore we have to keep that in mind when deciding what the mens rea is if you're saying yourself with this has to be really bad really egregious serious serious stuff how do you how do you get to reckless the least culpable mindset for criminal behavior well i mean you're the new york statute of might have worked for the new york statute that they were looking out but we're now looking at the new york statute book at the pennsylvania statute where recklessness is always mens rea correct and what the nd circuit said though is that looking at the new york statute you  new york's co op ability they looked at that they relied on his two to look at whether you could commit realistically the conduct in the new york statute they weren't looking at new york's knowingly or intentionally correct but that's a strange thing in light of the assertion that in this statute that hey you can violate this recklessly unless what you're saying is don't worry they'll never prosecute for reckless cannot commit that recklessly well here's the that i guess i guess i'm having a little bit of difficulty because i'm not sure how we got to statute very minor i thought we were at a categorical comparison between thirty five or ninety eight and pennsylvania consolidates statute section three hundred and eleven we were asking ourselves what was a categorical man because not whether what she actually did was a crime that that yes then how do you like then how do you get to know one part maybe i'm just like travel maybe i'm not understand it yet but i understand to be saying as a favor tells you that this can only be done knowingly and that doesn't help us if what we're looking at i s a statute that says in pennsylvania you can do that recklessly and we will prosecute work as we put it right now code but the issue with us of data and again i would note that it came down so we didn't have time to fully brief it but the issue there wasn't whether new york city you could commit the statute recklessly it's whether whether they had a general provision like pennsylvania it's whether there was whether the congress in question so committing deviant sexual intercourse with them minor under the age of sixteen could you do that recklessly could it ever could it ever be done no matter what the state says in their code could you recklessly under the realistic probabilities has that is correct what we do with fundamentally different statutes now right and in other words they were looking at being eighteen years old or more engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old with that not having an injury at the nd circuit went and read one into it saying oh those two activities oral sexual conduct or anal sexual kind that could only be committed when we're dealing with a statute that is written very differently well we could include penetration however slight with a foreign object and it's for any purpose with some carve outs and well again i don't see how that can be done recklessly any even if you do go with the right with men's rights there's just even if you're recklessly inserting something into the genitals of a child  that falls within the definition of sexual abuse of a minor there's no reason not to at a minimum do reckless conduct will in your in the end you're you're falling back on the assertion i take it that there's no realistic possibility that the state of pennsylvania would ever prosecute somebody or devi sexual intercourse with a minor unless there was knowing behavior so that it yes and again the so that's just in artfully drafted statutory it is one that's why i don't want to keep going around in this circle but you seem to be leading heavily on acevedo to say you can get sort of a don't worry about that mens rea of thing and point the status of a don't but just the way you look at kobe didn't tell us hey you did you did this with a much less significant crime make a beta so don't worry about it here it was a different statute i mean the ads the problem might have been with the government's argument it seems to sort of have a sort a kind of a seriousness aspect to it as if we were looking at these crimes the same well that's really bad and this is really bad so it must be covered but the categorical approach those asks what bad is a bad categorical approach takes us into the bizarro world and asks us is there a match and that's all it has it doesn't it doesn't make distinctions about badness it just says is on a bend diagram is this circle all the way within that circle or is this circle sort of somewhat in that i want and somewhat outside it because if it's not all the way inside it it's not categorically a match bad darned doesn't matter right correct and i'm not i'm i apologize if i lead you off but the three thousand five hundred and nine and the pennsylvania century question are a categorical match  conduct the pennsylvania actually would prosecute and not imagine scenarios involving police torture or what not under the realistic probability test  have is a statute where a child is being at a minimum penetrated in their sexual organs that falls within three thousand five hundred and nine aids definition of sexual abuse of a minor yes i mean it's it's or it's a hijack there i mean there's a very limited exceptions and the imagination required to go beyond thirty five on it just is not realistic but isn't a problem that they are limited exceptions and by their terms they seem pretty formal it's not like alaska statute is you know any any act any activity that would be associated with a  a very broad exception that would seem to take out most things you could think up but if we have a carve out for something is as specific as medical or hygenic procedures or law enforcement  procedures does not leave a whole lot out there that could be done recklessly perhaps and but as we noted though that there is there are no arguments presented why reckless behavior would not be covered because again but they don't really focused on using the federal generic includes recklessness the pennsylvania statute generic offense would be something less than a knowing offense notwithstanding all of the other provisions that talk about what sexual abuse or sexual abuse of women in the u s code well but the the key important though is that you're not directly importing federal statutory law it's you're doing a broad survey including the dictionary definition how states do it which is what the board did in robbery guess robbery guess it didn't pick statute yes so if we were to follow their approach we would agree that we have two different mens rea as you find of us the federal one of knowing in the state of reckless and the nd circuit though explain though that the conduct in question and the conduct here could not be done at the at a minimum back we're back to your assertion that it isn't in artfully grafted statute even though it says it covers reckless behavior it's impossible to actually imagine that the state would prosecute reckless behavior and therefore consistent with what footnote three page twenty your brief it's unrealistic don't worry about that's what that's what we're coming back to again right we have no we have not been able to find any examples of  a knowing provision which is the only thing you've been able to point us to in that two different ones and the way you get to categorical matches say don't worry about that reckless of the stuff in the statute they'd never do it they're not they're not going to prosecute somebody for this kind of molestation if what they're really saying is a person stumbled into him in the hallway and recklessly penetrated their gente period that's just never going to get prosecuted period to only get prosecuted if you've got bad behavior going  medical work one would say or if the babysitter was just doing it because they were wacko and it got some sick pleasure out of it then you would no longer be in good faith and you might be prosecuted but the point of saying good faith medical is to say you can put a thermometer in a child airiness or you can put a suppose or tory in there in good faith and you're not going to be criminally liable because that's a medical procedure that everybody recognizes you take care of with an infant so they've got an faith there but not recklessness the babysitter is not going to say i had this a positronium i handed the baby was right there and i tripped and that's not going to happen right it's going to be an argument about whether that was a good faith action by the baby its own definition and i would recommend two thousand two hundred and forty three and the problem the respectful court had here was their contact wasn't through it didn't allow for contact with the clothing but you can just go to one subsection down