immigration judge pre term it in a cancel of cancellation of removal case on the basis of a crime involving moral turpitude conviction having been in the courtroom earlier this morning and heard the prior arguments i'll just jump right into it is this require the intent to permanently deprive we agree with the immigration judge on this case however in the footnote at the end of the opinion the b i a determined that nebraska statute twenty eight dollars dash five hundred and seventeen dollars does not requir intent to permanently deprive so that's the st point that i would like to address so what is the general eric definition of a crime involving moral trooper to theft by receiving as it was in place in the brassica in two thousand and eight appellant was convicted offense does a crime involving moral to produce if it requires an intent to deprive the owner of the property permanently or substantially that was the case law that was the gray's lee case from the from the b i a that's pretty clear that in two thousand and eight it required an intent to permanently deprive only in two thousand and sixteen in the diaz leader liza raga opinion was that changed so what we're looking at here is at the time that the appellant entered his plea in two thousand and eight did the nebraska statute require an intent to deprive permanently so what is the realistic probability of a prosecution under that statu the minimum conduct with the reasonable process of being prosecuted under that statute involves an intent to deprive temporarily the classic example of this type of case would be a joyriding where the individual takes a car deprives the owner of the possession of the car goes for a ride and then ditches the car doesn't return the car to its owner only deprives the owner for a temporary period of time and then subsequently ditches that that is the the horn book case for a temporary deprivation now a number of states including nebraska in arizona and this is noted a footnote put no four of the d as liza raga opinion adopted the model penal code and that was in place in two thousand and eight and the d s leader lizza raga opinion had to change the law with regard to this model penal code because a number of states had adopted the model penal code to state that we don't need to determine if this was a fast or theft receiving if it was temporary we're going to classify all of these offenses as fast and it doesn't matter if a defense attorney can get in there and prove that there was not a and intent to permanently deprive that's clear from the  footnote four and it's clear from the hornbook position in nebraska of a joyride in a fence so the b i a disagreed however and they said that the statute does not cover less than permanent takings i would submit the but with regard to an aggravated felony and intent to temporarily deprive for a number of years has always been an aggravated felony if the person is sentenced to a year or more however the c i mt it so does the minimum prosecuted conduct necessarily come within the generic definition and the answer is no a person who receives property with intent to deny the owner temporarily can be convicted under tw not the generic definition therefore the statute is overbroad and is the statute divisible no because it's not phrased in the alternative you don't have an opportunity to commit this temporarily or permanently so that was the law in two thousand and eight and this both both parties in their brief and the response brief were arguing whether or not nebraska applied to a permanent taking i did supplement yesterday to the court i apologize greatly for the late submission however a number of sr circuits to this court have determined that diaz lisa raga opinion in two thousand and sixteen is not to be applied retroactively because an individual in two thousand and eight if they were to go to an immigration attorney if they were to seek advice before entering a plea they would have been told that the nebraska statute as constituted under the model penal code does not involve an intent to permanently deprive annulment that could be used back in two thousand and eight that's correct under the gray's lee opinion in the geraldo opinion from the b i that was not an element that was considered back in two thousand and eight and was there and is there in nebraska a case involving joyriding that would show us the statute applies to that case and unfortunately i have not found one the closest that i have found and it was not cited in the brief anticipation of this grain a grain dealer appropriated grain for himself intending to return it to the owners after he had sold it but it nebraska supreme court makes it explicit in that opinion they say that a permanent deprivation a case to make it up on appeal where we would have a decision like that because two thousand five hundred and seventeen would clearly apply to a joyriding case on just the fact that we don't have an appellate opinion on something that's not even a close call in my mind does not mean that that would not exist in this district you don't think you could be joyriding charge by showing intent to restore there you abandon the car you're essentially intending to restore it because you know it will be found in the owner will recover it that would be the argument that i would make in that position however why isn't that correct restoring it to the owner is an affirmative act ditching it in a ditch or or leaving  know in another state or in a different county something like that that would not apply to the restoration the restoration is an affirmative step to bring it back into the possession of the owner the act required is disposal  intent is to restore correct he's intending to bring it back that else would he be intending to do it to discard it in some remote location where ultimately it will be return to the owner but the intent was not to bring it back to the owner i just wonder if that requires an intent to bring it back to the owner it says dispose with intent to restore it to the i don't know i just wondered if you might have a good defense there  you intended that someone would find it and return it to the owner and therefore you're not guilty of theft when you under this statute at least when you joy ride and abandon the car i'm out of time your honor if i have you intended permanent taking in this case with this statute we have that intended permanent taking because i lack of intent to restore the property is an element of the crime the damascus supreme court has stated this in state b hubbard and made clear that it was something that the prosecution must prove for conviction so we know that in this case because petitioner was convicted he did not have an intent to restore the property to the owner in addition this statute also requires knowing cmdr the court and the number of the court almost already stated that knowledge is an essential element of the crime and that the focus is on the knowledge or that the state can prove no intent to disk to restore necessarily means that there was intent to take permanently or to deprive permanently well if when the person  convicted given that there is no lack of intent to restore return that property then the logical step on that is that he intended to keep to to  keep that property from the owner and return it because if there had been an intent to restore presumably he cannot be convicted under the statute and he could not the prosecution cannot show that that permanent intent so because what i'm getting at is whether that is essentially because it are there are cases where a person would not intend to restore but also not intend to deprive permanently just have no intend on it at because there is this lack of intent restores the element that that necessarily entails that where there is a conviction the receiver of that property intent intended to permanently deprive that true owner of his property there's no intent that he's going to return that to the true owner at any time and again i would also emphasize that under the realistic probability test which petitioner bears the burden for he has to show that there are cases where nebraska applies deprive use because they're just going to ride around town for an hour or two and then abandon the car but they're also intending to return it to the owner would that qualify first i would say he hasn't again cited a case for that but nd if in the brass to the individual was convicted under twenty eight thousand five hundred and seventeen even if the action was joyriding because the prosecution has to show this lack of intent to restore if he's convicted under the statute he doesn't have an intent to restore the car to the owner because it is an element they have to prove it so i would say that to the joyriding hypothetical know that if he's convicted he  doesn't have that intend to return it to the owner why he may ditch it but that that's still you know that's still a step removed from actually intending to to get it back to the to the owner in his a hypothetical  he assumes there's no intent to restore it to the owner but that he's only going to temporarily deprive the owner of its use for a couple of hours and therefore it's a temporary deprivation not a permanent  again there's no there's no storing of that stolen property to the owner so he has it isn't intended permanent taking on his part unless he drives it back into the driveway  he hasn't had any cases where that happens and under the statute as as what is required for prosecution there's no indication that that conduct would you know would fall under this given that it is expressed that there has to be this lack of intent to return you know to restore the property to the owner and as a result  and then just briefly i just wanted to address petitioners claim regarding pereira and here the  circuit which have all held that post pereira a notice to appear combined with hearing notices are sufficient to vest jurisdiction with the immigration court if there are no further questions what is the attorney general's position rago may be applied retroactively well for this case of course the matter of those rather doesn't come into play because the board didn't rely on it and this court in damascus where has the case on the theft defense being the intended permit taking as a result i didn't address it in this case that as you well know most likely is an issue the board did not rely on it at all if we disagreed with your position on the statute in nebraska we'd have to remain on the case the board could then decide whether to try to what constitutes a theft offense so i know that's your position i was trying to follow through on if we were not persuaded if we thought there was some daylight between if failure to prove intent to restore an intent to deprive permanently then what would happen i guess you're saying would after remand you could you could remain and then the board in the st instance could could consider this particular statute with a matter of years was around which they didn't apply here of course you know there's nobody to the do that my government to decide what position to take that i suppose excuse me i didn't hear you if there were really man the government would have to decide thank you your honor in response to your question to me about whether or not ditching a vehicle in my hypothetical would be restoring it to the owner wouldn't be restoring it it would be disposing it to restore that it's a question that was the question be clear what the question what would it be disposing of the item with intent to restored to the order i do not believe so i think that would take  stretch of the word restore because the individual who had the car is not affirmatively returning it and has no intent to bring it back into the possession of the owner it requires a rd person to take a step to then but restore it to the owner so i would want but you could intend something knowing that it would require a rd party to affect your intent in fact the statute seems to contemplates in the f b i when it says disposal is one of the possible actions doesn't it that was my question at least i think it says  thank you to both counsel the case is submitted and the court will file an opinion in due course