good morning runners as i assume the court is aware this is a case involving the application of the categorical approach in an immigration context to whether  specifically new york state statute misdemeanor reckless endangerment is a crime involving moral turpitude categorically i'd just like to review a little bit of the the history though of the cases as they relate to the briefing in this case the timing of the briefing as i'm sure the court is aware the matter of silva trevino number one which was decided in two thousand and eight  laid out the rules for the categorical none of us is modified categorical which doesn't really apply here a standard for what crime involving moral turpitude would be particularly in a case like this where there is no intentional conduct it's some other level of intentionality but then in april of two thousand and fifteen the attorney general vacated that decision third circuit case in napa back sort of describing what what aggravating factor might make a reckless crime something that involves issued trevino silva trevino three in which they essentially reinstated most of what sylvia trevino number one had said came up with a solution for the conflict between the test for whether something is a crime involving moral turpitude of being the combined elements of some level of c enter coupled with reprehensible conduct reprehensible conduct being defined in the various cases that as per se and other really pretty pretty bad conduct and in a sense that was supposed to resolve the issue of where you had negligent reckless indifference deprived indifferent conduct anything short of intentional conduct how you might apply that to the idea that something could be a crime involving moral turpitude about three weeks later the board then issued the decision in this case without suggesting that maybe the parties should instead what the board did is me is there anything that you can think of that you would say to improve your situation under those circumstances would give them this brief because under the realistic probability test which they say is what are circuit follows i suggest actually that under the f e s case which i have trouble pronouncing but it cited on page nine of brief that we actually have a kind of a combination of minimal conduct and realistic possible probability but under the application of the realistic probability test you look at what cases have actually been prosecuted by the jurisdiction that has the criminal jurisdiction in this case new york state in order to see whether there is any case that's been prosecuted that would not be a crime involving moral turpitude and under the indivisible rule this is an in statute if there's any case then that statute itself categorically is not a crime involving moral turpitude that's why i cite several new york state so where that how would that help you but those cases that you cited in new firemen from from acting all of those involved very serious issues right but what they don't involve is reprehensible conduct they define the reprehensible ity of the conduct again based on the state of mind and one of the examples is the police officer who opens his car door and hits a bicycle with a kid on it that the conduct of opening a police car is not reprehensible the conduct of going on strike is not reprehensible you haven't even the mission of conduct but a doctor you don't i mean i guess maybe we have a different perspective on that if you if you sentially more like negligent conduct for example of the cleaning of the petroleum tank which was an obligation by that particular it's well what was negligent he can open the car door what what he should be doing is watching cops cop tensional disregard it's intentional disregard of a risk that's what that's what recklessness a mouse to criminality under those circumstances so there's an intent element  favor of the other side i just don't think so because again if you look at the definition from the original sin of the trevino even restated in the richard's case that the government provided a couple of weeks ago from this circuit the the conduct has to be reprehensible and what we're dealing with is an ambiguous situation where the conduct itself under normal circumstances wouldn't be until you add the intent element the reckless or the intent element because again there's no words i would say when police officers are running to a scene they may well open their to our car door while the car is still in motion i would say that that petroleum company that's trying to clean the tanks of its of its  storage facilities or transport facilities as has an obligation to do it that in itself isn't isn't doesn't rise to anything like the standard of mallam in say and represents of reprehensible conduct what does is to the extent that it's informed by a level of intent or negligence or recklessness and to an extent there has to be some point where it's it wouldn't be a crime involving moral turpitude i mean if something could be very reprehensible like shooting a gun into a crowd  and that would be my element say something else like leaving a gun around in a house where there may be children is stupid and negligent but i'm not sure that it would be technically  law i mean i'm not even sure that some of the examples you cite wouldn't qualify but they are now taking the definition they've said reprehensible conduct and they're telling us that it applies to a circumstance such as this and you're saying oh no new york doesn't always require reprehensible conduct and we're suggesting to you that the cases you're citing in support of your argument could well be thought of this reprehensible conduct now why are we why  following your argument i guess because there has to be a level of conduct which simply isn't reprehensible enough to be considered a crime involving moral turpitude because the level of reprehensible protracted disfigurement so not every push up is going to be reprehensible conduct but if you violate one twenty point twenty by risking that kind of serious physical injury why can't the board say that's deficits within our reprehensible conduct definition because it seems to me that in some of these cases at least that have been prosecuted in new york state even though under the law certainly they can prosecute somebody who has engaged in conduct which creates serious risk of serious physical injury and imminent risk and risk of death that some of these don't really rise to that level at least in what would have been foreseeable by the act or to agree with you or these cases in order well i think there still may be but again under the under seal the trevino three just going back to my point there are these two ways of analyzing one is the realistic possibility one's a minimal conduct and when you look again at the case i cited on page nine of my brief from this circuit it looks like they're talking way more about minimal conduct and again the defer deference they give is not in that instance to the yeah it's to the court the supreme court of the state of connecticut where they certified the decision on how to apply criminal law correct me if i'm wrong here but my understanding was that minimal conduct conduct that doesn't fit within the generic is is is is is analyzed in terms of reasonable possibility in other words you just can't use your imagination to come up with minimal contact there's got to be a really great i don't think there's a legal difference and i think i think realistic possibility is what is how you think about minimal conduct you agree with that but that brings me to the hernandez case which was cited by the by the government who said it was overturned on other grounds the other grounds was that the fifth circuit so they applied the wrong test but they didn't say you applied the realistic probability they say you applied the realistic probability test and that was the wrong test but but they didn't apply either test so i don't know what happened on re there but the i would say that's what the b i a did here as well they didn't apply either test in in the decision they made third after the tribunal came out three weeks earlier they they didn't they didn't look at what could or could not be prosecuted under the new york law they looked at the wording of the statute the wordings of some of the cases the five for one had cited the following case in the the other cases that appeared to apply an aggravating factor not just reckless conduct that might create a risk but that there had to be an aggravating factor one of the judges said the eminent conduct thing is no imminent level of serious conduct is no longer a requirement but that came out of her notice which was reversed i'm not so sure th your morning your honour's margaret o'donnell for the united states i just want to address a couple of things brought up first the problem when silva trevino when this whole history doesn't come from the categorical approach applied in cases it comes from the modified categorical approach in the visible cases how do we determine which charge the person was charged with so we can see if a c i m t applies or whatever this case involves a very clear statute it's not visible it's a misdemeanor and it has recklessness as its inten and then a resulting consequence the difficulty we get into i think is with the language because it is so inflammatory when we talk about moral turpitude one invasions whole mass of horrible things when we talk about reprehensible conduct we all think we know what that is in this case these cases however this court's role is to review the board's decision whether or not its determination was reasonable the board cannot interpret new york state law criminal law so the board has to reach out to precedent and other things to be able to say is this a crime involving moral turpitude this is not a moral imposition on the petitioner in this case this is an analysis of a legal analysis that does not involve equities looking at merely the statute of conviction doesn't matter who this person was and this is important because this ensures that every person who comes to us grace such as this is being treated the same way if we are looking only at the statute of conviction are applications of this of this particular statute that do not fit the the generically apply apply here as a crime involving moral turpitude you know if if somebody wants to come in and argue and is able to argue that there is a a they prosecuted under this particular statute in new york conduct which was not it was relatively mild compared to what happened  and still got a conviction and then then that argument can be made to be correct so this categorical approach is relevant and i would i would but they didn't they didn't your adversaries pointed out that there was no real analysis of that part refers to its own board precedent which is exactly what it did i don't think you're understanding our point as the argument is being made to us today it's look at these new york cases that are finding this statute violated with conduct that would not be viewed as malum per se and sorrow it seems that the new york statute does not always require reprehensible conduct that's at least how i understand the argument and it's pursued by saying look the board never considered that fact it never considered that new york was upholding convictions for the statutes without requiring mallon per se conduct now you know we went back and forth with mr neuter on the persuasive argument but that's what we're now asking you to address is how could the board make a decision on one twenty point two out being reprehensible conduct categorically when he didn't look at these cases in which new york was applying it to the kind of conduct  sizes and i think the answer to that comes in the remainder of my argument is that reprehensible conduct is not the sole determining factor in the definition of crimes involving moral tur in in that list of things one of the things is a breach of a duty or responsibility to other citizens and in those cases that he cites almost every one of them stalks about a deviation or you know a failure to meet a standard of care or a standard or duty to other citizens and so whether or not they they reference a new york state case they can still make a determination from the recklessness which is sufficient for you enter to a consequence well they can make a reasonable that and that's the question now we don't there's a real question in this case as to whether they've they've made that showing but my question is why the didn't didn't consider this point i think because   i cannot in writing my brief i did try to imagine what under the statute what would not be a c i m t and i was really alarmed by it because your felony reckless endangerment charge traces the language of c i empty so i'm like why would this be a c i n t so i had to teach myself this but i couldn't think of anything where i could come in and act recklessly with an intent to take an action which resulted in someone else's injury where i couldn't have been found guilty of a really i guess in rebuttal is that in the list of things that go into the definition of what is the reprehensible conduct this duty to other citizens i don't i'm not sure that's supposed to stand out as a separate alternative as opposed to define showing the you know the words using the the list as a whole to show what is intended by determine whether it's the in our case the minimum conduct plus realistic probability to us yes that's what we were doing before the question of quite common for us to meet we as immigration lawyers as occur here before the well that's why i explained the time i was a lawyer i filed a brief during the period of time that silva trevino had been abrogated find the attorney general after a year later silva trevin three came out and then within weeks the b came up with this decision so i suppose i could have tried to run to the beach and say could you please listen to some other arguments but no at the time that i considered vacated