morning your honour's michael best team for the petitioner sue each own at the table also for the petitioner whiling suazo may we're here seeking reversal of the b a decision below finding that an aggravated felony conviction from all discretionary relief from deportation reversal also requires the the court to reverse the b a s precedent decision matter of l g h which held that florida statutes eight ninety three point one three the drug sales statute was an aggravated felony so are my task and i believe your job today is to determine if the florida drug sales statute is special we can get to this determination in three short steps first the math a supreme court reminded us that the court says what it means and the supreme court has said at least twice that the immigration aggravated felony of illicit trafficking is a generic crime the supreme court has further repeatedly said including this summer unanimously and s q l can tonya that you determine the elements of a quote generic crime the courts canvass the fifty states to determine the majority view of the elements of that crime third applying federal law model penal code the laws of forty nine states and the district of columbia a prosecution fails if the state cannot establish culpable mens rea beyond a reasonable doubt for commercial commercial drug sales fences one state florida is quote special and that's a term of art used by by justice thomas florida alone in the entire us presumes culpable mens rea regarding the illicit nature of the controlled substance because the florida offenses dissonant with this generic offense they cannot constitute an aggravated felony as justice thomas wrote this summer once the immigrant shows their statute of conviction is quote special relative to the generic majority norm the inquiry ends as you said chevron deference to the agency's interpretation is inappropriate the inquiry simply ends florida is not just special it is exceptional for that reason the court should indeed must grant this petition and we believe the court must resolve this and again it sever on step one i can move my critique to two other issues one is the board's decision in l g h and trafficking the analogs a federal offense and we've got donna watch that that's perfect they traveled here on lisick trafficking and saying that believe what is correct about his position was that in some some ways the statute is into visible but we parse into the different elements the action element is definitely visible because the court has said so the mens r now the red flagging this issue to fight another day and that's where we are now we took the opposite course we didn't contest the visibility of the action element we were all in on the mens rea is the distinguishing feature and what hopeful for other cases that address the modified categorical approach and it will remain so it just it will bear a direct import on this particular statute after after and if the court agrees of our position that the irrelevant i mean that i mean i think that fails on its face because that leaves you with just sail controlled substance that does also that also eliminates it also eliminates the need to look at what the majority of states are doing other generically defined context except for this one so you can do this the step one is canvassing the states figuring out what the common perception is and look at the case this summer at the screen court  thirty five states agreed on what the age of consent was and justice thomas says that's it that's the majority if your state is special compared to majority it doesn't trigger an immigration consequence this one is extreme we're at one forty why doesn't answer what is illicit trafficking that's true it says where if we don't answer anything about illicit trafficking ok ok so then so must now go to as a listen trafficking well what do we look to for the generic so call illicit trafficking offense we look to drug sales statutes or drug trafficking saturates throughout the country and as the for the supreme court has acknowledge some elements of the statute postpaid who are divisible some are not yes and mens rea is one that is not so you've got to look at the generic rexx definition of the of the can for the offense thank you very much more  it please the court i'm christina grier on behalf of the united states attorney general your honour's this case is simple the issue here is whether the board's interpretation of the undefined term illicit trafficking in the aggravated felon statute is based on a reasonable construction of the statute as the supreme court stated in lopez illicit trafficking is not defined and therefore under chevron the court should defer to the board's reasonable interpretation of that term as set forth in matter of elegy age the question here isn't what exact how exactly the board came to its conclusion it's whether it came to that conclusion reasonably  it come to would start with up it came to the conclusion that in this case where you have a statute where the mens rea where knowledge of the presence of the substance must be shown even a statute where knowledge of the illicit nature of the substance does not have to or is not required that statute satisfies the illicit  unlawful it does not prescribe a certain mens rea a requirement second congress is language mean illicit trafficking is broader than that of the drug trafficking crime and in the immigration act of one nine hundred ninety congress intended to expand the removal of those with drug convictions and so the term illicit trafficking is intended to be a little broader now that was based on an understanding of donna was that may have been changed now that since the supreme court subsequent decision in mcfadden but also the third congress did not give a specific requirement for illicit trafficking and the board had no reason to believe that congress intended to impose a specific knowledge requirement and that's exclude a state drug trafficking crime from the aggravated felony definition solely because it does not require knowledge of the illicit nature of the substance and that's important to know here aren't you learned most aren't you supposed to look at for a generic offense like this one what the majority of states in jurisdictions are doing i have never seen a case stating that that is what the board must do well who must do it only federal courts but not the board  state whether it was at step one or step two of chevron or get what steps you're on why don't we use a framework of that case and the framework involves looking at what the majority of jurisdictions do with a certain undefined offense or term is that not correct as i stated i have not seen that as a requirement for an agency when in the opening it's that's what the supreme court did in esk of all content is that not correct yes it is and in doing so it refused to give chevron deference to the b i say they did not it did not explicitly state whether it would or not it seemed to be at step one finding the statute not ambiguous and here we know that the step but not ambiguous because the court did what you can resolve the statutory definition the court did look to the i believe black's law dictionary definition of the term minor and also did canvass the states so why don't we do the same thing here because the statute is ambiguous and so it should be the board that why is it in big us the supreme court in lopez acknowledged that the term illicit trafficking is not defined anywhere in statute but the lack of definition we've said many times doesn't necessarily mean ambiguity we have a lot of undefined terms that are not ambiguous why is this term ambiguous it's ambiguous because there's also no as judge paul mentioned earlier there's no crime known as illicit trafficking there is no generic crime we can look at we're interpretating a phrase illicit trafficking that's not defined anywhere in statute that i know of and so that first step of chevron is satisfied the statute is ambiguous and so the board the question is whether the board's but what is trafficking mean to trafficking i believe that a matter of which i do not have in front of me states that trafficking is an exchange it's sometimes an exchange so if i give judge whole a penknife trafficked in pens no it's trafficking so i want to know what you think trafficking means commercial dealing that is what the supreme court has stated so this is not so now we have unlawful commercial dealing is what you think the statute means yes that is what the board stated is that ambiguous it is at least as timmins raya there is why if it's unlawful what makes it unlawful if i if i sell a pen to judge hall and someone accuses me of illegally trafficking illicitly trafficking in pens what do they have to show to prove that i've done something wrong contraband which here the object of the trafficking was cocaine and the device of i sell her a pen that happened to be that happened to belong to somebody else and i've appropriated it i've engaged in the lis trafficking despite my knowledge of the stolen nature of the pen because it's contraband right even if i don't know it's contraband i'm engaged in the lissa trafficking of the pen right yes but generally in our law knowledge of the illegality of your actions is not required and you know it's when you when it comes to drug use drug trafficking knowledge of the substance is overwhelmingly required florida doesn't require it but almost every other jurisdiction does knowledge of if you if someone gives me a bag and tells me to take a bag to my cousin in hialeah a suburb here and i do that and i have no idea what the bag contains and it turns out that the bag contained drugs have i trafficked in florida not according to this court's precedent in shelton this court held that are this court recognized that in under florida law in state versus adkins there still is a requirement that you know of the presence of the substance of the question here isn't is this cocaine it's do i know that cocaine is illicit that is what's not required no no no no no no that's not how the florida law works that you think you think florida law requires the state of florida to prove knowledge of an illicit substance knowledge of the subs that the say the controlled substance is present what's the affirmative defense th the affirmative defense i did not know that that drug was illegal or was illicit what what started cases knowledge of the presence of this controls our state versus at cannes and  this court in the you have that the state has to prove mens rea that you knew that you were transferring a bag full of cocaine yes that's what do you think florida law means yes and that's  what the supreme the florida supreme court's jury instructions state that knowledge must be proven also knowledge of what of the presence of the substance i have to know that there was a white substance there  and that's actually consistent with it petitioner argues that the statute is an outlier but under that understanding it's not for example in mcfadden earle in a twenty fifteen the supreme court held that even the c s a the controlled substances act for a conviction under that statute knowledge may be met by two different methods one of those methods is to show that the individual knew that he possessed the substance or by showing that the person knew the substance was illicit either way can satisfy the c s a which even calls donna one into question and this brings  shelton it's it's also mentioned in the government's brief it should be in the table of authorities and what is the florida jury instruction osha or anything like that no it's not however in shelton the it's this court did set forth the two elements that the individual there was convicted of  interpreted the statute as requiring knowledge of the presence of the substance and that was in the context of delivery and for a person who act was in two thousand and five now the decision was in two thousand and twelve but the act being discussed was in two thousand  your basic position is we should give chevron deference to the b a yes your honor what about the council's point that florida is an outlier in terms of generic list of traffic petitioner argues that florida is an outlier however that petitioner did not canvass the state petitioners petitioner points to two citations in state versus adkins to a two thousand to washington state case and another one nine hundred eighty eight case saying that they canvassed statutes  and found that florida and washington more outliers but even it's not that doesn't necessarily hold today for example those statues or those canvases didn't pick up the arkansas statute the only three statutes at issue here are apparently or the only three statutes discussed in the briefing are outliers according to petitioner and that is the c s a where according to m it can be satisfied by showing only knowledge of the presence of the substance without knowledge of the illicit nature of it or arkansas which only requires a reckless mens reya and not knowledge and florida which does not require knowledge of the illicit nature of the substance you're saying that under florida law you have to know the state has to prove that you knew you had cocaine and the only thing you get to rebut through an affirmative defense is that although you knew you had cocaine you did know that cocaine was illicit yes that's your understanding of florida law it is it may not come into i mean there's i mean what what case upholds a conviction under the i mean defense lawyers in florida would love to be able to take that snippet of your answer and take it to all the judges a practice before and tell them that's the law in florida but people in florida aren't getting that sort of an instruction they're getting a presumption that if you possessed or trafficked in something that happened to be cocaine you knew that it was cocaine and then you have to prove that you didn't know that it was cocaine you thought it was talking powder ok that is i mean what case after adkins do you have any case after i can go either way on how this statute is interpreted i don't have a specific case on that point i did look for some but i did not find any what was in the will challenge in atkins that it's unconstitutional the challenge failed of course but wasn't the whole challenge that it's unconstitutional to presume that you knew that something in your possession constituted illegal drugs yes but it also states that you know have knowledge of the presence of the controlled substance the substance of the controlled substance the controlled substance so the government the state has to i don't want to belabor the point but your you think that the state has to prove if i deliver that bag to the person  hialeah the state has to prove that i knew that the bag contained cocaine to get a conviction that before i even have to come up with an affirmative defense of lack of knowledge that is my understanding ok thank you very much you're saying there not maybe not as strong as some other states yes is that what you're saying is some and there is that is even under  what the odds are us it's us supreme court interpreting what the controlled what the knowledge requirement for the controlled substances act and there in  decision the supreme court held that the knowledge requirement for the c s a can be met in two ways one is by showing knowledge of the presence of the controlled substance as in i know i have cocaine or through showing knowledge of the illicit nature of the substance but it does not require both and the first method of knowledge is analogous to our understanding of the florida statute  so when you say knowledge of the presence of the control substance that is knowledge of the presence of coca yes you'd have to know what it is is cocaine substance so you would argue then that the affirmative defense is to say that you were so ignorant about the laws in the united states that you thought the cocaine was ok but that has come up or that marijuana was ok or that methamphetamine was ok and it generally is not an issue with those drugs the drugs where that becomes an issue are synthetic drugs or drugs that for example the c s a case i'm talking about mcfadden up in the analog contact but for the doesn't have all of those identical parallels no but it does have substances on the list that people don't know or illicit one case discussed in the in our brief is about a an individual who had fenner mean but didn't know it was a controlled substance or that it was something you needed a prescription for and so was convicted under a statute in washington for having it she knew it was fun or mean but she did not know it was illicit or that it was unlawful and that's a similar that's similar to our understanding of the florida statu there more no additional questions thank  you especially judges i've got a few clarifications initially the were guarding the florida offense this is in the florida statutes it is the jury instruction says eight ninety three point one zero one  statute says the legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter lack of knowledge of the illicit nature is enough firm and of defen do you have to show does the government have to show as an element of the florida of france that the drug was cocaine they have to show the nature of the control substance but the  is you know hard to prove it's been mother law but do you let's say it's drug and that drug a is a controlled substance ok do you have to prove know the presence of  offer to have that truck ok most times you're going to know that but do you still have to prove you know that you had cocaine in your possession if you not be charged with cocaine do you have to be proven that that you have the substance and then the actual you know mentary of it is of what it was or what its nature was is preserved this is why i'm going to use you in the government have very different views about how florida law operates cocaine possession of cocaine or selling cocaine do i have to know that powder i'm giving is coking you know because you don't have to know that it's a listen it is just i know i don't have to know  i got that part but do i have to know what this substance is no ok so i can transfer talcum and know it's talcum and i can't be i can't be convicted or i can be you can be because you have to disprove or you can be because the government has to prove that would you all to merely transferred was cocaine but she can't be convicted because she only transferred talcum powder if she believed that she had talcum powder but she really had cocaine she can be convicted right for if she if she only transferred talcum powder she can't be convicted because then there was no trafficking any controlled substance right right if this perhaps we're talking past each other is there is what actually transpired transpired you know as we say jack and jill went up the hill and those sorts of facts as opposed to what's actually necessary for a conviction in which in florida you know explicitly it was one thing l g s got right as florida made it as easy as possible to convict own my own the mental state beyond beyond a reasonable doubt in a pitched battle in which i can presume to have mens rea and i must overcome that and this is why donna what came down the way it did so go back to your earlier question  i don't think the case that you've got to trouble yourselves with distinguishing is spot the case that you have trouble yourself distinguishing would be donna was and also sanders in which you've already gone down the down this road and understood the that's got you in shelton it was a different battle and you had to give the court had to give ed the deference to the state's destruction of its own constitutionality it was a different fight but if you look at akron's you understand how the how the statute works a brief is totally not on point most states all other states that don't explicitly have mens rea that must be proven in the statute or like arkansas where the case law via jurisprudence one is read in and it must be proven that was in their briefing tell you