here the next case floors versus bar remand under to bedrock principles of agency law the st is that agencies act arbitrarily when they reject their own precedent without acknowledgement or explanation and that's exactly what the board did here by setting aside soba trevino's knowledge of age requirement without any justification nd courts may not supply a reason basis that the agency itself never gave in a particular they may not except appellate councils post hoc rationalization as well as we've said that in a number of cases but this isn't so we've also said that if the answers to the question not resolved is so clear that it would be futile to remand we can deal with them on that basis we've had we've said that haven't we eat yes your honor in narrow circumstances so here is go man question is is this the kind of case where it's so obvious what they would say if we sent it back and it would be futile because then it is not your honor and i think the contrast to that we get to the issue that you want have well this the statute that he put in that that is involved covers a young woman ten or under under eleven which means ten or under yes right that's the crime yes and the question is did he did this crime involve a person of the age of consent under new york law right no your honor so it going by what the board did  here the board's decision below that said that the question as to see enter is whether this crime categorically required the pursuit of sexual gratification that is the sole definition knew or should have known that there was a violation  the board did not say that in this case and that is the critical procedures the era passed that on passed what they said on the on down to the point of what we can assume they would say if we sent it back because it's so obvious  your honor you don't want to talk about that because you're saying we shouldn't send it back but if we send it back the question is is it futile to send it back so st of all i we are arguing that you should set it back and that's precisely because what we need here if the board is going to depart from that knowledge of age requirement that you are correctly saying trevino imposed which is what the board did here unmistakably it departed from that it will act and they say and the i j a says i find it the on any dispute that a person looking at a seventeen year old girl would not think she's ten or below is not the end of the  case that would be an issue for the next appeal in this case it would be one that would be an issue for the next appeal in this case that's well maybe you'd appeal it but isn't that what the i j a would say no reasonable person could think a seventeen year old girl is less than eleven i don't know how you don't think they would say that i don't know what a rule what definition of moral turpitude they would choose to have and you imagine anyone thinking a seventeen year old girl and a ten year old girl and seventeen again you're on about that issue simply is not relevant on this appeal because i know you say that because you are fighting not to you are fighting to have a rematch and so i'm going with you to your next step to find out if your next step is worth taking and if nobody in the no rational person or no reasonable person would think that a ten year old girl was seventeen then it's futile to send it back isn't it a bit so i don't mean to keep dodging and i will i will get to the merits and once i can but i just want to know that the antecedent question which would be a question on remand is what definition what tests for c enter and more broadly f for a real event given those facts yes your honor so that the purpose is is at bottom to enforce basic separation of powers principles that require the agency to answer this question in the st instance and it is not the question that judge newman is ultimately posing although that is another thing that will come up in the end of the answer is obvious but the v the antecedent question that needs to be answered is what definition of moral turpitude is the word applying how is the board interpret ing that ambiguous language in the i n a which of course is a delegation to the board to exercise its authority as an agency to interpret once we have the answer to that the answer may be what judge newman is imagining which is that they will you should have known so by citing that case aren't they essentially adopting the reasoning of the case well they are not and two answers to that st of all the very one parent thought of where they described the holding so why why isn't that some indication that they agree with the reasoning in that case and that's a nd reason for their decision so the ultimate problem there is that even if you generously read that citation to import the c n tower analysis for them in a city even though as you'll note it's actually cited only for reprehensible a t v other problem but even assuming this is relevant to see enter and in a city you categorically did not endorse the idea that knowledge of age was somehow inherent in the offenses issue there is said just the opposite and so if you start at page four of that decision the premise of the analysis was that the defendant quote can be convicted under sections three through seven a three hundred and forty five those are the ones parallel to ours here even if there was a reasonable mistake as to the victim's age and then there's a cite to this more case so the premise was these were offenses that could not meet so literally in his knowledge of age requirement and the board immediately went on to say it had yet to decide whether there might be a different alternative definition of moral turpitude that could cover those offenses now that within us was remanded anyway it was as it was was even by its own terms not a decision applying the knowledge of age requirement and finding that offenses implicitly satisfy that it was a case that developed an alternative definition of moral turpitude that was a strict liability definition you can see that on the next page of that decision they rely on rd circuit law to say sometimes you can just say with morality offenses strict liability is enough and ultimately it's six it says we are now applying this new rule or see enter is simply implicitly satisfied without attention to knowledge knowledge of age and if you look at the parent federal in the board's decision here that is exactly the principle that it is reading and arguably government says that in sylva cherubino the board said it is  reasonable person could fail to find that if you would have known i would i would respectfully take issue but but ultimately was dispositive here is that that merits question is simply not right yet for this panel it's not right because we have that's just another way of saying you needs remand and a question that is certainly not futile and a question that is uniquely within the agency's competence to answer is how it is going to construe and apply that language moral turpitude in this case what standard applies here we have an unexplained an acknowledged arbitrary departure from its own precedent on that issue and that is why we need a remand and that is not an issue that this court could decide so clearly now that are amanda's futile it's an issue that the board must resolve in instance you don't think they've said that if a person should have known the victim was below the age of consent that is a crime of moral turpitude they said that in sylva trevino and they they categorically said the opposite in this case and without explanation and so good morning your honor may please the court rebecca haas for the united states attorney general the court should affirm the agency's finding that petitioners convictions for st degree sexual abuse of a minor is a crime involving moral turpitude for three independently  offender knew or should have known that the victim was a child the statue before us absolutely satisfies that standard because in every case the state must prove that the victim is under eleven and there's absolutely no remain would be absolutely few tile because the conclusion is so obvious that this is a crime involving moral turpitude even within the initial sofa trivino knowledge standard this where the agency had found that the crime before it was a crime of violence under sixteen b which is now invalidated under supreme court precedent and the court went on to reach the issue that the crime before it was a crime of violence  case shows us that the court is hesitant to reach issues that are within the agency's discretion but this isn't an issue we're not asking the court to supply the generic definition of crime involving honor i think it's a foregone conclusion in and just to finish my thought this is this is an instance where we're asking the court to step in for the board and define an ambiguous term all we're asking the court to do is  the new york statute which the agency doesn't doesn't get deference for if you want us to hold that when you are talking about under the age of eleven it is obvious that it is a what and he said it needs to be such a defender knew or should have known and the government is asking is to find that that element in the new york statute that the victim be under eleven implicitly satisfies that generic just applying the definition that the a g supplied alternatively if if the court wants to go to the medicine  issue we would argue started before i get there i noted that there are three independently dispositive reasons that government should prevail i mentioned that we should prevail on the should have no requirement we should also prevail on an another ground which is that the board has longstanding precedent that states that any statute that has an element of non consent is a crime involving moral turpitude and that precedent has been longstanding since  deal recently affirmed that finding and the new york statute before the court is unique in that includes on its face an element of not consent unlike some of the other sex crimes against children where the non consent isn't an element but rather it's a crime by virtue of the child's inability to consent and the potentially another reason to remember because we don't know with the eye is going to pick the consent argument that you're making which has some compelling aspects to it or the should have known they could pick either right i think arguably it's it shows how obvious this decision is how unnecessary it is to send it back it would just be a formality for the board to feel an wouldn't it be helpful well we have him in a city which applies this lack of consent precedent and in fact the four circuit didn't touch that part wasn't before the court that part of the decision yes a lot of the elements worst were similar between the texas statute and the statute before us but the one really significant difference is that age of the victim the age of the victim here is under eleven  besson child that is a completely different universe of crimes than silva trevino which is a older child under seventeen and so when the a g was defining crime involving moral turpitude and so much of you know it was defining it in g s reasoning and so much of you know supports this conclusion that a g said look we don't want to sweep an innocent conduct and and deem morally turpitude in this sort of this morally legally acceptable conduct of initiating sexual contact with someone that offender genuinely or reasonably believed was an adult that's just not a concern in this universe of offenses involving very young children because again the department of homeland security that represents the government below before the immigration judge and the board of immigration appeals exactly and i'm not your point is well taken  category of offenses that require either a victim who is known to be incapacitated or abusive physical force but when that decision turned to the offenses there are parallel to those here that simply require your victim no mention of consent and again this the strict liability theory drawn it's a core function of the board's decision making to decide which of these various definitions now floating around in the ether it's actually going to apply and as clear as it may feel that particular