a two thousand and one conviction out of the california penal code that he had committed a crime of domestic violence and because of that he was not eligible for the cancellation of removal so those two things we need to do here today number one is determine whether or not that crime was a kind of a domestic violence into what is actually appropriate analytical tool to determine the first question now there's three things we pointed out in our brief that we provided to the court first is that the categorical approach which is the match up because the california code or the california elements of the crime or still more broadly there's extensive california case law on the issue of cohabitant the third issue we brought up in our brief is the residual clause being unconstitutional available i believe that is the approach that the court genda take in this case and doubt this circumstance pacific approach i would ask that you would adopt that and if the court did adopt the circumstances difficult prochoice it want to be favorable for my client but  into the categorical approach there's going to be circumstances where a state statute is going to be more broad than what the generic federal funds had interpreted and i believed in in every case under your theory of the appropriate test the court would cases and it promotes judicial economy and i agree with that should if it matches up we should absolutely use that if the modified a categorical approach eyes we should use that but i think kind of lost in the washington and well maybe in bianco and hernandez the rayleigh is how do we move from the modified categorical pro choice to the circumstance pacific approach because they give analysis x clarify one thing on this just to make sure you're arguing consistently with your client's interests to make sure i'm getting your position on this we have this initial question categorical versus the hayes approach circumstance specific right correct in your initial reaction was facebook good to you you're ok with that and i just want to make sure before we finish that conversation i understand why you think that the mix let me tell you why i'm i'm a little surprised by that answer so under federal law because what he says you look to federal law as to whether they had a domestic relationship right that's right that's the whole point right and then when you look at the relevant federal statute that says the couple is by an individual your client who is cohabiting with there has cohabited with the person as a spouse that doesn't seem like a great definition for you i would have thought you would because that's your client actually it's a fantastic approach you're ok go ahead if you look at the board's decision in this case it points to people versus jackson people versus jackson identifies only two elements for the california penal code section two seventy three point five and that is that there is a direct contact use the correct terminology that there is the direct use of force and it causes an injury we're talking about the nature of the relationship right now correct but we have to start there and then we get to the nature of the relationship because if you look at hayes and you look at bianca spouse was living with his girlfriend they weren't they weren't spouse that they were he was living with his girlfriend correct ok this is what the federal statute says who is cohabiting with or has cohabited with the person as a spouse like another word like a spouse that kind of relationship yes yeah but they were technically the spouse that's how i'm reading it if you look back at the california law what is a cohabitant we have people who are here you are i think we're just talking i'm talking about is the federal statute that pretend there is no california law yes ok the point of hayes is to look to federal law to figure out whether you have the relevant domestic relationship ok i'm telling you that twelve twenty seven eighty two eighty two he does not look helpful to you unless i'm misreading it if you do have you looked at this statute you know what i'm referring to have the statute your honor why do you think that statutes good for you  common if i understand the record your client and his now wife then girlfriend had had two prior joel groom who were living in mexico with his mother in the days a those child's birth those children's birth i'm not familiar with your honor those prior to two thousand and one but they clearly are children of your client and his present wife then girlfriend correct so they were clearly he in the girlfriend shared a common child so that fits the federal definition even beyond as a spouse or not it was clearly a domestic relationship wasn't it it would depend on but i don't it so be a domestic relationship but it would meet at least the definition of there being a child and common but again i don't know the dates of those children's birth  so i can't you know they're older you know they're older than the new child that was born subsequently because they were living they did not come with them they they remained with the wife's mother correct correct i'm made obviously had a relationship that resulted in two children i would have suspected as much but i didn't know for sure that matter their ages are irrelevant it's just they shared a child at the time of the crime that he committed the pled guilty to in two thousand  you know my recommendation is to look we just put this on the table whatever it was a week ago and maybe it's appropriate for you to just think a little bit more about it and if you want to amend your answers with a letter brief you can and if you do the government can respond but i guess i'm inclined to have you shift toward strong hatch was leading you to the categorical versus non categorical or modified categorical approach which was what was briefed to it we should talk about that and less you have other insights if you have insights that help your client only we're glad to hear and i just don't want i should say things that might be something we should think a little more about i appreciate that the only thing that i would have mentioned as far as back in two thousand and one  the situation been different had my client been living with a man what would the federal statute still come into play if he would have come in illegally and been a dispute with another man that he'd been cohabitate with with the result of been the same and i don't know what the answer to that would between us and the governor whether or not the issue of the california penal code has elements regarding what is required no moments from ings surveys if you use a categorical approach and you take the position that the different relationships are elements the categorically the california penal code section two seventy three point five there's a match up with the generic federal offense because and what your best california case for showing that those are elements as opposed to me and there wasn't anything on point that we could find that would necessarily delineate whether there are elements or means the i believe it's a pattern jury instruction but i may be incorrect it may have been just a jury instruction in and one of the cases doesn't that in fact have a parent third a call that a liles the court to select among those different relationships which has to indicate doesn't it that they are all means to satisfy one element as opposed to different elements are if you get to choose one if they were all element you would have to have them all right that it was a divisible statute so this is the only ways to meet that is i'm struggling with that because the if it is a list that is a b c and you have to satisfy all of those then i could understand the concept being elements but if you have a here's a little group choose which one you fit into then isn't that in fact a choice among establish one element but i wish we had a case law from the ninth circuit that went over that and gave it to us because there was nothing that necessarily said it was element i mean you can't be a mother you know you can't be a spouse you can't be as a spouse you can't be someone who you share a common child with i mean it couldn't be that you have to do all of those things in order to have a domestic relationship it sounds like to have a domestic relationship you just have to have one of those things well i believe that an example that we we had from justice kagan supreme court regarding burglary from a building or burly from an automobile and that was determined the modified categorical approach needed to be used in this situation because you could either committee burglary from a building or from an automobile not necessarily both so to your question your hon you know you may not be a so michael habitate as a spouse and you may not also at the same time being someone with a child in common but the fact that there are multiple ways to commit the same crime does just may please the court i'm jonathan robbins here on behalf of the attorney general good afternoon to all of you the issue the primary issue in this case is whether the board correctly determined that petitioner was you know with a bill for cancellation of removal for having been convicted of a crime of domestic violence and i know the court issued a letter asking the parties to be prepared to address the court's decision the supreme court's decision in united states against hayes the fifth circuit decision in bianco against holder and the fourth circuit decision and her against lynch and all of this in your letter you said well if we lose them to the categorical approach we suggest you use this circumstance specific approach i call the question i have for you is that's a very seems like a strange answer to me it seems like the first question is which comes first has told us that you use the circumstance specific approach this is similar statute and the reason haste they were just making this up it was the word element that was the key textual point we have a similar textual point with this statute so the question i would have thought we were we have to start with the hayes approach here but maybe i'm wrong well the board actually has published precedent i mentioned  where they said essentially the same thing in matter of ages strada so not an alternative if you lose one of the categorical it's the first thing you're supposed to it's the approach it's circumstance specific or not when it comes to defining the domestic relationship it does so i mean i would concede that the board here made things harder than it had to be this particular statute happens to be a categorical match to the federal statute and they did play they did not apply the circumstances of the approach they did apply the categorical prochoice my colleague mentioned that that is sometimes much judicial economy sometimes you have if you have cases where you determine that something is categorical for example if this statute because it's categorical it will necessarily always meet the circumstance pacific test so i agree that the board made things may be harder one thing i hadn't thought of before because the board relied on the categorical approach just chattery require us to only review that approach but we kind of stuck here well that's why we certainly were stuck briefing it in that way i think but i i think this is the way you should only do it but it so happens it works on the categorical the answer the question varies from circuit circuit and i'm not one hundred percent sure about this circuit to one of these your answer well the futility is often considered an exception to genera so i believe in this case it would be futile to remain for the circumstance pacific approached its there's no dispute in this case as to who the victim was everybody agrees it was petitioners then girlfriend who is now his his spouse i'm right thinking chan or you would i should we should be thinking about when we think about what to do you agree with that i do agree with that although you should also be thinking about potential exceptions to generate as well so but nevertheless the board applied the categorical approach here that was correct it is a dispositive rationale for  r resolving this case and so that's the rationale that i think the court should look to in that regard that's the board's rationale is essentially split into two sort of steps first whether this is a crime of violence under title eighteen u s c section sixteen  a there's no dispute in this case that this qualifies as a crime of violence they have they've way of their brief and it with good reason i think because the statute itself defines traumatic condition and that seems to implicate the type of physical force that's necessary to render this and why was this it was a guilty plea to a misdemeanor as opposed to a felony i don't know why the we don't have the record proceedings other than the guilty plea i don't know if it was the result of a plea bargain i'm not sure all we have on the record is that it was so but the big argument here is that the catechism categorical approach doesn't apply it doesn't really work because the california definition seems to be broader than the federal one well that's with respect to the domestic relationship that's that's actually the second part of the test i get it and the rationale of the board gave was essentially to rely on the nicer circuit decision in korea against holder which examined this precise issue specifically under the california law which  so there was no danger the definition of cohabitants would implicate a platonic relationship which would render that overbroad with respect to the federal definition at that section twelve twenty seven we think that rational is persuasive and we think that the board was correct to rely on it  so there's no danger here that the the way that petitioner wants to interpret cohabitants would be implicated by the california statute in this case under section california penal code section two seventy three point five if you were to disagree with that then that would essentially petitioner wants to get us to the modified categorical approach but i think under us they can say that this wrong if you were to disagree with the ninth circuit's rationale and disagree that this is a categorical match then i think you would be stuck with the circumstance pacific approach under a haze and with your honor's diluted to this with in europe my colleague if it becomes a circumstance specific case it's open and shut because there's no dispute about who the victim is here and it clearly falls within the definition of the federal statute and i would disagree with my colleague that  that has the fantastic case from i think it really significantly hurts their case and foreclose that if we get to the circumstance pacific approach there's also a distinction perhaps related to whether there is a domestic violence provision in the state that can then be compared to the federal act and the circumstance the syphilitic may be more functional where there is no state reference to domestic violence i think that's true because of course the remember this case is different than the cases in bianco internet is a ball and has because those and estrada and also yes which were the in those  situations the individual was convicted under general solar battery statutes which is often in many states and certainly at the time this provision was an act it at the time i think it was about two thirds of the states that didn't have specific domestic violence laws so people would be charged under general statutes and so that there the circumstance pacific provision would really be important because you don't have as an element of the offense a domestic relationship like you do with respect to this california statute because this california statute has the domestic relationship is an element  it's almost it makes sense to apply the categorical approach because if you resolve that in in court and it gets resolved that that case is always categorically a match you don't even have to look at the specific circumstances of each individual case any time somebody if convicted under the standard struggling a little bit with if we applied this this circumstance specific standard that it wouldn't wouldn't really overwhelm almost the approach that de camp and mathis have tried to use to avoid asking courts to always lift the veil and to try to figure out what happened below which you've been here long enough to know is an absolute morass yes i would agree with that why would that why would that be the first thing that you would do well i don't know that it's ever really been made clear that you can't apply the categorical approach if the circumstance pacific approach applies i don't know that that's a question that's been answered i certainly understand the impulse to want to avoid the categorical approach if it's possible i'd say certainly the board could make  his because the the statute itself says that the when it's referencing the domestic relation to ship it says committed by so i think underneath one and under and under united states against hayes i don't  how you could get around the circumstance specific approach if that's where the case turned that it leaves open an incredible number of variables i mean we could have a line problems who is who is in charge is it the judge  in charge of making that those kinds of determinations and i think that was resolved by the supreme court in hayes a needle on where they said it has to be a clear and convincing evidence and that the alien has multiple opportunities to actually address that and this and i think hernandez a volunteer uncle also addressed this with this particular statute you're only left with one real threshold question which is what is the domestic relationship if you would remove this case in this case for to apply the circumstances of approach i mean essentially the trial is one question who was the victim right and so i think the already all of those cases have no domestic relations provision in the state statute is that is that a driving distinction that the board has made that only authorizing the circumstance specific analysis in cases that lack a domestic violence provision well the state i don't know that they have the school sadly said it but i think it's possible to infer that based on what they did here i don't know that it's specifically spoken to that direct point that if the board i don't think it spoke to that direct pointed matter of asia strada because they were dealing with a statute like we have here where the domestic english tip is an element but based on their decision here i would say that's a pretty reasonable inference that maybe that is a distinction that is important to them but the bottom line is we don't have to go they are correct there's also your friend mentioned divisibility indivisibility towards the end is that some we have to worry about you know i think i'm going to follow them down a rabbit hole that i didn't need to there i don't think the court is to really deviate from the ninth circuit's rationale in krio were i said you have to compare the elements with respect to crime of violence but i don't think you really have to get into the divisibility of the relationship because it's not an element in the federal statute right  well first of all we would suggest of the statute itself isn't vague i think it's pretty clear here what the statute is trying to do what it has this catch all you have to say the categorical indivisibility approaches are vague oking a little bit because i  find them very painful they are quite painful but you know the petitioners are trying to make this seem like the residual clause of sixteen b that was at issue and johnson putting aside the fact that that issue the before the word now i don't think that this is really you don't even have to wait for it to my because this particular statute doesn't implicate that same problem because under his right johnson implicates the categorical approach so they were looking at in that case it what is the they were comparing the conduct in the ordinary case of a of a crime which is in itself what does that even mean it certainly lacks the position in detail that you would expect for a course to be able to apply that consistently brenden they were comparing that to the how much serious risk what is a serious potential serious risk of harm or injury which itself is another vague so there's a lot of electricity there's not really any lack of precision in this in this statute petitioners seem to be suggesting that the fact that it might be ambiguous with respect to certain issues would render this void for six sixteen years later when he committed an offense that these against the victim who's now as wife it was only a misdemeanor he was even jailed was put on one put on probation thousand why is the government trying to get rid of this man now  well i mean when they filed in india just fell a new superior i'm not quite sure what what the timing was with respect to his criminal conviction but at the end of the day if somebody has been convicted of this particular crime of domestic violence discretion was and instigating procedures in this case i'm not sure what the rep rationale behind it was but at the end of the day the petitioner is removable and is ineligible for the relief that he's seeking to to get relief from that removal i don't know that i have much more sound than that your hon just two things i want to touch on that were brought up just a moment ago the judge gellman brought up why are you deporting someone sixteen years after the fact and something my client spoke little to no english there was an argument that he had with his wife known as touched known saw any medical personnel it was a verbal argument my client went to court and the prosecutor told him if you fight this you're going to go to jail for three to six months if you don't fight it then you're going to get probation some fines or to go home where are you going to do he said he pled guilty no attorney went home what we want is a approach that is fair my client has lived here he has not committed any other offenses he's had children here what we need is a fair approach and what we have this point is not a fair approach that those circumstances should be taken in consideration by this pan and any panel that has to review a situation like this so there is a humanitarian aspect to it and i like the court take that into consideration the only thing i know i'm short on time that i want to bring office that ju the court to look to the i think it's persuasive reasoning from morales garcia from the ninth circuit and although they're looking at a crime of moral turpitude as opposed to a crime of domestic violence we're talking about the exact same california statute with the exact same federal statute in that case the court said that you can't say this is a categorically a crime of moral turpitude because the class of victims is far too wide i wonder how we have that logical step that and one hand this is can be a of circumstance specific why don't we believe that given what you just argue that the assumption is that hayes is not helpful to your client let's leave it with that is the assumption if you think otherwise that there's a way in which case helps your client you're free to find a file better brief in the next couple days on the ball that that make that makes sense that as you are right good our thanks to both of you for your helpful arguments we appreciate the briefs and your answer to our questions the case will be submitted and the clerk may call