thank you your honor my name is randy tanner and together with my counsel hurst we represent the petitioner in this matter mr david florus vega and i'd like to reserve three minutes for rebuttal please can't come to town and when you get to three that means you're deportable strangle without force you absolutely can your honor and that's the crux of this case is whether and how i can demonstrate that your honor the statutes are well i can demonstrate very visibly actually do it on him we'll see how the argument goes he might come up here after me on that one but actually the the oregon statute just requires pressure to the throat or neck to implant in to impede blood flow that's all it takes and actually if i take the tips of my fingers and place them right on my carotid artery like this that impedes the blood flow in fact when a doctor takes your poles that's the very purpose of placing their finger there is to impede the blood flow with enough pressure to where they can feel your blood flow that what happened to your corn no that is actually there's no facts in the record at all to demonstrate what actually happened in this case we pleaded right he pleaded guilty to the bit to the very elements of the say we need a realistic possibility that is how this damage will be interpreted and one of the ways you see if there's a realistic possibility as you look around of the decided cases and the best one who god is the ca oregon statute there's no question what pressure means or impeding means anything like that so there's no need to apply the realistic probability test now turning to kaylor though what kaylor involved was a different element of that statute so that involves placing the hand over the mouth of a person and here we have the allegation is that hands were placed on the throat or neck now what kaylor does show though is that there is a spectrum of conduct that is working in a nursing home and the resident in that case had been known for being combative being violent and resisting care so you have the resident who it's time to have a bath given to that person certified nursing assistant comes up she's trying to manage not pain capable of causing or that was not conduct capable of causing physical pain or injury the apprehension of physical pain is not causing physical pain so even if there was apprehension or fear that pain was going to be inflicted the question is whether the conduct itself is capable of causing physical pain or injury and if you have the hands placed over the nose or mouth for a matter of seconds there was no indication in the record that any physical pain or injury was caused to the person so here this is not  the st time that that this court has addressed the question of whether a particular crime constitutes a crime of violence in our briefing we cited numerous cases where the court has held that crimes such as battery dui domestic violence resisting arrest robbery shooting at an inhabited dwelling sexual abuse stalking statutory rape sexual intercourse without consent felony child abuse all of those crimes are not categorically crime of violence now it's certainly true that those crimes can be committed in a violent way but not always and this statute provides a perfect example of that if it's possible to violate the statute by mere offensive touching what the supreme court has said is that does not qualify as a crime of violence this court or the u s supreme court's decision in stoke ling which was providing the twenty eight jailer that the government file a couple days ago that does not that should not lead this court to reach a different conclusion what is is that johnson which is the prevailing law on determining whether a crime constitutes a crime of violence is still good law but what stoking said is it examined for the florida's robbery statute and had as an element of that offense physical confrontation so as an element of that that offense the state would have to show that the offender used enough force that required the victim to overcome that resistance you do not have that element in the organ statute the victim can be completely passive with no aggression of physical confrontation and frankly the same true with the offender by just applying light pressure and in fact because it takes such little pressure such little force to violate the organ statute the statute itself carves out an exception for doctors and dentist for that very reason so that taking someone polls doesn't actually qualify as strangulation if we get beyond that and you're not successful on that argument we get to withholding of removal what's your argument with respect to why the immigration judge didn't do the job that needed to be done so what happened with respect withholding of removal was you have to demonstrate to in order to find that someone is not eligible for withholding of removal here mr florence vega the the i j a had to conclude that he had committed a particularly serious crime crime but here there was no reason the explanation for why mr forrest vega had committed a particularly serious crime there was no explanation at all there was a very limited adverse credibility finding and don't believe your story because you're minimizing your conviction but that's not the analysis of course we have to provide a reasoned explanation for why the crime that mr florence vega committed was a particularly serious crime can we infer from the from the fact that the immigration judge didn't believe your client that the alternative version of events which is  potentially violent in nature is the one that was adopted by the immigration judge there there were the immigration judge gave no reason to discredit mr flores vegas testimony in his account of the events which was essentially refuting what the government ad said was well there was an incident of choking and that's kind of if there is there are very limited facts in the records and he disputed those facts and the immigration judge gave no reason at all for assume for a moment that i agree with you on the particular serious crime issue in order to get withholding he has to show nexus there is an alternative holding by the be a no nexus show how do you respond i think he has shown in excess of what you're referring to as having a reasonable expectation a reasonable fear of returning to mexico then he has shown that through the state department country port there are clearly incidents that it has to be a reasonable fear of to be reminded to make those findings and in fact here too i guess i have to re re read to be i i thought i thought that there had been an alternative holding on i think there was an alternative holding on that your honor but i don't think that there was an explanation for why the a g the i j a reached that conclusion mexico and that he feared returning because of the demonstrated violence in mexico that was evidence and state bar which were not there yet merely showing fear of violence even legitimate fear of violence is not enough it has to be violence inflicted upon him for some protected on some protected ground and against him so what's the protected ground and against him personally i'm not i'm not aware of that in the record i don't think that there was evidence of that and there's a problem because just harm by itself it's got to be because of political disagreement religious prejudice family group i mean you've got to have something now and i agree with that your honor and i don't think that there was an individualized showing with respect to him personally having experienced that argument i just heard and you say well the doctor does that it can be a crime well that's exactly why the will of the doctor does that is not a crime which suggests that if i do it somebody it is a crime so how do you respond i guess i would respond your honor that it's statute impeding is to slow or delay we don't know whether that's any amount of slowing or delaying but it needs to affect your normal breathing in your normal circulation is you know is it delaying a breath by some period of time we would look at organ courts think my friend has cited only keillor i looked at the citing references for the stature and westlaw and could not find an organ key setting that outer balance so i don't think the statue clearly covers minimal pressure on your carotid artery but when you johnson in castleman justice scalia had said he believes johnson's capability test coverage things like hitting slapping shoving grabbing pinching biting or hair pulling now he didn't say hair pulling is pulling one hair pulling many  hairs obviously underwriter versus on a tone you wouldn't read his opinion the same way you'd read a statute but the supreme court in stoking said all of those things justice scalia had said in his concurrence constitute a crime of violence under johnson do constitute a crime of violence under johnson and if you look at the crime issue in stoke playing one of the examples the court gave was a florida case in which a person had put bills in one hand they'd move them to the other hand while searching for change and someone pulled back their fingers and took the bills that's not a lot of force that's not a lot of physical contact but that was sufficient to be capable of causing injury here the again the minimal force and contact the statute might require is we believe sufficient to be capable of causing injury i didn't say in that litany was cover if you can violate the statute by covered yes you can violate one b by covering i think the briefs might talk past one another on this point we've brief the case as you know a violation of all of one both a and b is a crime of violence my friend at least in his reply brief focuses on how one a is not divisible so if the court was uncomfortable with whether or not b is concert a crime of violence it could focus as my friend did on one day i would again say on the covering prong i think sets the outer limits the one thing i would note about cover is the strangulation conviction was not appealed there so what we do have the facts that judge fletcher discussed with my friend turning red in the face a gentleman who didn't normally open his eyes opened his eyes the court wasn't required to sort of flush out all of the elements and everything required for strangulation because that issue was not on appeal there i'm happy to talk about the withholding or the removal of the alternative regulation eight c f r twelve point one six says the cat claims the i j a in the b a a must consider all of the evidence and so that doesn't place an additional burden about relocation on the petitioner but in that same paragraph the  doesn't place a burden on the government so there will be no need to remain and here because the i j a in the v a didn't say you didn't show you were not able to relocate they said i find that you could relocate them so if the court has no furthe questions i'm happy to rest our briefs but let me just ask you this one because you've mentioned the withholding of removal is do you think the record just focusing on what the immigration judge the analysis the immigration judge provided is isn't adequate quick analysis of the french askew if i'm pronouncing it correctly factors in there really isn't anything in the analysis other than the fact that they didn't believe mr vega and then no real analysis is the crime because we don't have police reports of the like so is it really adequate yes your honor the st point i would make is factor say st you look at the elements of the crime and then in re matter of and am the the elements alone can be sufficient here the i j a looked at the elements of the crime the next step then is looking at all reliable evidence when the i g made a determination that petitioner was not credible as to his denial of the crime or his events of the crime that's no longer reliable evidence to look at and then she did look at the you know charging document and the police and as my friend stated it says you know he pled guilty to the elements of section one it did add that i think the victim's name she was an ex girlfriend it adds some of that but again under matter of nam the i j a could have stopped in the b i adopted this just with the elements but she did continue with additional analysis and actually if i could make one more point on nexus the i j a did point out that there was no showing that evangelical christians which is one of the grounds that my position relied on were persecuted throughout mexico she also noted that there was no showing that the indigenous people from the region the parishioner was from were going to be persecuted throughout mexico or with the assent of the government so there was a nexus findings i'm not sure she used the term nexus but she applied that analysis thank you would you please put two minutes on the clock i'll just make  two very quick points the st one to address the seven circuit's decision and nancy has in that case and then in the cases that mean c s discusses the critical error in those decisions is that they failed to apply the least agree just conduct analysis and this court has faced that scenario before where it has looked to other circuits how they've treated particular crimes of violence the walton decision that we provided in our twenty eight days an exam well that and have noted that when other circuits fail to apply the appropriate johnson analysis then it's not persuasive authority so what the th circuit did in man c s was it looked to the strangulation statute and concluded yeah generally speaking it's possible to violate the statute in a violent way but notably the court did not identify the least egregious conduct there's no identification of the least egregious conduct and a corresponding conclusion that that least egregious conduct would actually be violent conduct so there is no reason for this court to conclude that  of state cases so even if taylor's not squarely on point the absence of state cases is no reason to conclude that the strangulation statement or the strangulations that you can be violated in a violent way all the court has to do based on rifle is look to the plain language of the statute and that's all i have your honor thank you very much ing thing both sides with their arguments before you quit your doing this problem is that right that's correct and on and on behalf of the court i'd like to thank you for doing this pro bono you do an excellent job and as a group to put on a people do an excellent job and is normally helpful to us and we thank you that doesn't mean you're going to win you may or may or may not and i'm only thinking not thanking you in the same way because you're getting paid