all right we have mr tucker and i believe dana campbell larry it's going to be an audio only are you there yes i'm here your honor all right thank you very much then let's proceed mr tucker to declare very similar statutes unconstitutionally vague the phrase moral turpitude itself has no determinant meaning in the interpretive gloss that the board of immigration appeals has placed on it this categorical approach was really right and your argument seems to suggest that the this crime of involving moral turpitude is inherently vague but that would also be the as you're kind of mentioning goes towards maybe this concept of male and say but it's also you know going back to johnson to my davis again it's not just the phrase in the text itself because determining whether statute is vague minimum conduct that stands a realistic probability of being prosecuted under the state criminal statute involves moral turpitude that that part of this this categorical approach is what the supreme court very clearly set out johnson the whole line just in court case just a case that the difficulty of applying the categorical approach with the categorical approach plus the the risk analysis confinement intentional confinement for a child was cruel confinement to the child in a way that congress harms well if it's only that they deny the state court that there's an intentional or knowing act by a parent or guardian of some sort and then separately nd that the conduct that they intentionally engaged in kind of and then you know putting aside the intentionality and knowing requirement that they that that conduct was likely to cause kind of a list of harms that the indian cases have set out judge from an objective standard and so in one of the in one of the lowest pressure olds there is mental distress so this statute this indiana statute that we're talking about geragos was convicted under if it reaches anyone any parent who basically does something knowingly and then also at the same time you can objective say that that was likely to cause mental distress and at the same time the way these cases are produced drugs etc have described the harm they explicitly carve out that there doesn't you don't have to endanger the dependent life or he so there's really a very low threshold for what the statute captures yes that's right your honor that i think i'm making the distinction i'm making is a separation between the intentional or knowing requirement of the statute in the harm that's required if you if you look at a case like matter of silver trevino a case that we cite pretty extensively in our breeds in that case there was a real direct connection in the way the board of immigration appeals described the conduct that was you know had to knowingly and that involves sexual relations with a minor so that you knew you were having sexual relations with a minor but here this indiana dubois those two from a direct connection and there's only that it separating the intent from the harm in in this exact same distinction as what other circuits to conclude that very similar child endangerment statutes that did not involve moral turpitude did not involve moral turpitude that's the result in the th circuit in a case called rodrig castro and also in the rd circuit in a case called hernandez cruz in taking a look more specifically ernie and his crew that that involved texas child endangerment statute which you know just like the statute contain the words  intentional but even so the th circuit pointed out that the statute still reach conduct only really involving negligence and temporary leaving the child with the intent to return in a situation of unreasonable risk kind of like what you said your honor but without actual harm to the child ever occurring and so that description of texas child endangerment statute very easily describes as neglect of a dependent that you're in to me think the same result is warranted you are returning to the vegas issue and focusing on the supreme court one hundred and fifty one decision in jordan to george that case does not control here and what that this case apart from jordan is that categorical approach  determining whether a statute is vague necessarily involves looking to how the text of the statute has been interpreted in the board authoritatively interpreted istead you like said two thousand and sixteen jordan did not consider in any way that whether this categor approach is big so jordan does not control here in to be really clear our argument is that jordan simply doesn't speak to the relevant legal framework applied here not that this court unless it was overturned jordan in any way the government's approach to jordan in this case is inconsistent with the board when the board considered this case he concluded that mr gross is conviction involve moral turpitude based on the categor approach to the phrase crime involving moral turpitude that is not the same interpretation in approach to the phrase crime involving moral turpitude that the supreme court apply and upheld in jordan which only look to whether  fraud was an essential ingredient so it's fundamentally unfair to conclude here that mr gosa should be removed from the country based on one of her protection of this phrase for a matter of silver trevino addressing the merits but then separately sort of defend the constitutionality of a very different interpretation of the phrase from jordan yours i'd like to turn next to that the defense exception mr goes is not qualify her for the petty offense exception to removal in this case really one way or another if as the government has argued the definition of a term of imprisonment from eight u s c section eleven to one is ambiguous and the attorney general's interpretation is therefore entitled to deference as the government has argued then this new interpretation creating new adverse immigration consequences for mr gosa cannot be given retroactive effect as the board previously concluded in a matter of the text says that sentence suspensions and not executed sentences should be disregarded when calculating the term of imprisonment so congress gave clear instructions here as to what it wants judges to ignore for that purpose so having these very specific circumstances congress is silence with respect to sentence modifications let me read to me only sentence suspensions and on executed sentences should be disregarded there is no ambiguity in th statute that would allow or that would open the door the attorney general to read sentence not if occasions into the text in what the attorney general said in a matter of thomas is the wrong way to read this statute the real difference between the way we read the statute and the way the government reads it is that we read the statute based on the text and the government very much tracking with what the attorney general said in matter of time as read the statute based on its belief about congress intent but the attorney general stated belief that congress intended the original sentence to govern is wrong for a few reasons to the extent that congress intended the original order to govern that can only be true for the definition of a conviction from paragraph and interpret in paragraph a to focus on the original order may be consistent with the text of that paragraph because their congress instructed courts to ignore deferred adjudication but we have not argued in this case that mr  grocer was not convicted for purposes of paragraph a we simply argue that the term that her term of imprisonment is less than one hundred and eighty dollars days based on her modified sentence and there is there is no similar basis in the text of paragraph b to focus on her original sentence when calculating the term of imprisonment the attorney general saying that congress must have intended for the original sentence to control is also seriously undermined by the approach taken in cases like ramirez these cases say that when a parole revocation leads to a longer sentence or longer sentence determines the term of imprisonment well if congress really intended the original sentence to control that can't be true only when the original sentence is longer but the reality is that nothing in the text of paragraph says to disregard a sentence modification so it must be considered when calculating the term of imprisonment regardless of whether it stems from a parole interpretation to the parties agree here is that the the issue of whether the original sentence controls or whether the allow the attorney general to read sentence modifications into this the text of the statute our argument is that paragraph b the silence with respect to silence or with respect to sentence modifications doesn't create any statute says what it says that and that and  gosa sentence thought of them as different because not only did it modify her sentence it also suspended the modified sentence as it did in the original order as well so the indiana courts certainly thought of these two things as different in generally speaking courts most courts don't think of these things as the same sentence suspensions and not executed sentences as a very practical matter permit a defendant to avoid actually spending time in prison but the order imposing the sentence remains of valid unlawful order but in order modifying a sentence like mr gross is really renders the st order an old t and the modified order becomes the only valid and lawful order but if this court does adopt the attorney general's reading  attorney general's decision the matter of thomas stayed in the tent for this new rule to apply retroactively but i do see i'm going to do my rebuttal time so i will reserve the rest to actually use all of your time but i'll give you some time categorically constituted a crime involving moral turpitude there goes i have not pointed to any case her own or otherwise that shows a realistic probability of non turpitude misconduct being punished under the statute furthermore the agency properly applied the attorney general's decision in matter of thomas and thompson stance and case and finding that there goes the subsequent sentence modifications not alter the immigration consequences of her conviction finally the supreme court's decision in jordan v george remains controlling law accordingly the court should reject the void for vagueness arguments raised by petitioner and the consolidated petitions for view should be denied  just looking at in terms of the realistic probability test in petitioner's reply brief he focused on successful prosecution in order to try to make a distinction between the two cases that were vacated on direct appeal and i just want to note that in doing this alvarez was supreme court in discussing realistic probability tests said that a person might partitioner quote must at least point to his own case or other cases in which the a court in fact did apply the statute in the special non generic manner for which he argues that being said everybody agrees that the two cases that he relies on are that petitioner relies on to they were vacated by the state courts and there's no other case where the conviction was not vacated that didn't involve morally turpitude misconduct in terms of their  we're on about our argument is that that's actually not what the focuses of what the supreme court was discussing how state courts were applying the law and here the state courts clearly were applying the law found that that was not morally  shocking enough conduct that it should be punished under the statute and vacated those two convictions and that happened before there goes that was ever charged and there are no other there are no successful cases that were not vacated on direct appeal that cases that were vacated did involve some negligence on the part of the parent and the court and they need in a appellate court in no uncertain terms of that that was not sufficient to support a conviction under this statute in many ways those cases actually support our position which is that no conviction under this statute would stand unless it involved morally chopper to do this conduct such as what we see here so that i in our in our view she just has not met the realistic probability test that discussion and attempt to distinguish the case or matter of lille are really u matter leo is sort of analogous is did require reckless mens rea and there was a higher culpability in the instant case in terms of intentionally and knowingly abandoning or cruelly confining your child which is a special protected class a person it requires a dependent and a special relationship and you know that they may come to harm as a result of your actions so in our view this is really  the plain language argument failed as your honor pointed out because there is nothing addressing sentence modifications in the statute if it were then they would have been addressed there is ambiguity in the statute concerning term of imprisonment and the a g has been authorized by congress to fill in those gaps and assign those terms that are have been inserted into di thompson is entitled to deference and was a reasonable interpretation of term of imprisonment affectively using the framework developed in pickering for convictions and applying it in this context which the court has endorsed pickering on numerous occasions and also applied pickering found that it could apply retroactively to cases where the alien had a had an appeal pending before the board before why aren't those addressed in your briefing well your honor it is our position the way that we read velasquez garcia it is that those factors were a non exhaustive let's say the court the panel said that right at the beginning and we do feel that even taking into account those factors they have not made a case for that retroactive application would be wrong they www that doesn't mean we can totally disregard them does it because you didn't address them at all honor for example one of the factors is whether or not the new rule represents an abrupt departure from well established practice i think even you would agree that matter of thomas is an abrupt departure from a well established practice so is it your position that we should ignore that or that that is just one factor in looking at the other factors it tips the scale i think it's just one factor i thought i had to address some of the  their argument for roger activities that they relied on the rule and therefore didn't seek some sort of substantive make a chart of the conviction and that sort of the arguments because that's one of the factors under the last great  exactly but it doesn't make sense because if you could if you had a substantive basis for vacating your conviction you would seek out and do that and really it's it's basically not disputed that th individuals in the same position had been doing up until this time yes some people were taking advantage of the situation that way that's and that's really illustrated by thomas and thompson two individuals who were convicted of the same crime and received different categories of sentence modifications one of whom would be removable and the other wasn't and the attorney general is simply trying to create uniformity in the way immigration laws are applied in this case is and that is also a factor that flask of garcia just got this is being difficult to apply those concepts reliance interest in the criminal courts are normally reluctant to say that alliance interests attach when it comes level of our way to put it in committing the crimes that would be a moral hazard in the law and we don't normally recognise those sorts of moral hazards and give them effect in law and the other problem is that to the extent that the point is being raised that the plea negotiation calculus would be different normally a court would be sentence for purposes of altering immigration consequences that wouldn't distort the incentives pretty significantly but again this is something that it would have been helpful to have hosts and to shorthand it well that's why the attorney general to close the loophole because people were going in and that these sentences her parole probation period had already been served and going in and and russia actively changing it to be one day short of whatever the immigration consequences are there's a case in the th circuit that they just rejected fiction she was sentenced the immigration consequences attached at the time that she was convicted and now you know many years later in ensconced in removal proceedings she goes back and and tries to get one day last after the all the terms of her conviction have already been fulfilled and so yes it does create bad incentive then it doesn't it doesn't really make sense because if it's changing something that has already occurred that has already been fulfilled and to simply to come in here and that as i noted in our brief they circuit has rejected  modification that was patently for immigration purposes before matter thomas and thompson had hundreds more are finding that it shouldn't change the immigration consequences and we argue that that is the situation here  this wasn't this wasn't a loophole that you know some in attempt to sort of exploit something in the law or loophole indiana's sentence modification statute doesn't doesn't  bargain case where there's a plea bargain from there eventually being a sentence modification and she sought a sentence modification to more accurately reflect the seriousness of her conduct now she was of course motivated to have her sentence more accurately reflect her condo to conduct because of the immigration consequences that she was not aware of at the time she pleaded guilty and received her original sentence but to put some more perspective on what happened here the entirety of her original sentence was suspended thirty days were served at home by electronic monitoring without any real awareness of the immigration consequences she had little reason to care about the length of the sentence because she was not going to jail regardless addressing her reliance at the time she sought a sentence modification she no doubt relied on the prior law from cook vargas that was explicitly explicitly changing matter becomes a point of reference at the time she committed the crime or perhaps she was relying on the fact that she didn't think there was any immigration consequences that were going to flow from this that that was the real line there and then you fast forward if i can quickly just talk about a reliance interest at the time potential complication she actually could have sought to overturned her conviction on that basis that she was not advised of the immigration consequences maybe for other reasons as well like hardberger and scruggs were very similar convictions were overturned on appeal but that would have required more expense more time an attorney in the in the lot the