good morning may it please the court care hartzler on behalf of mr leavis the question in this case is whether the b i a can retroactively apply its decision and matter of liao to hold that mr levy says conviction for arizona endangerment is now a categorical crime involving moral turpitude and the answer is no for two reasons first of all the five factor montgomery ward test leans heavily in mr leaves his favor but even if the court disagrees with us that would necessarily judicata applies and that would bar the application of matter liao so either way we believe that we should prevail on our petition so we'll start with the montgomery ward test under the five factors i think the only issue that is seriously disputed by the parties is the second factor and that's the question of whether this was the decision in matter of layout was an abrupt deprive departure from well established practice do we didn't do this unless there's a change of  we do your honor and i think first of all how if there is no change in the law how do we get into ritual activity well i think that first of all the question of whether there is a change in law is a factor too and so it sort of subsumed within the test itself so i think the court should err on the side certainly of applying the test and then looking at that as the second factor in the test why why why do you say we should do that usually we take the easiest way to superfluid ok you don't even have to get to the rule ok so what is that why why do you conclude that there's been a change of laws seem to me that a pretty strong case that there wasn't your honor i would disagree and the reason that i disagree is this at the time that mr leaves pleaded guilty there was on point precedent be a case law saying that when you have an offense that has a mens rea of recklessness you have to combine that with an aggravating factor of for instance serious bodily injury or death for those published yes published or unpublished published so that i agree with your honor that it was published  law that said what i just said that there has to be an aggravating factor of death or serious bodily injury there were unpublished cases apply and that specifically to arizona endangerment but we don't believe that that means the law was unsettled we actually think the opposite that because the law was so clear it wasn't necessary for the bee i h actually do a published decision on arizona endangerment because the law already said under controlling b i a precedent that you have to have that aggravating factor and arizona endangerment did not have that aggravating factor and that's why in for instance every single unpublished decision that was in effect at the time of mr leaves this case including i's decision and his own case they applied to be applied that precedent decisions those present decisions that i just mentioned and said arizona endangerment is not a crime involving moral turpitude to find whether they're published or presidential by the usually your honor it's in the citation we can tell the puts it on their on their virtual law library and it usually says the twenty seven ins and decision the unpublish unpublished decisions are a clear indication of what the b i believe the law was at the time that mr leaves pleaded guilty i don't think you answered my question i'm sorry is the b i a bound by its prior un published decision it is not bound by its prior unpublished citizens but it is we believe it is bound by its presidential decisions and your honor i think on the issue of whether the law was settled or not all we need to do is look at the fact that the first time around when categorical approach the second time mr leave us went to the b i a they held again an unpublished decision that we don't apply the modified categorical approach and so i don't see how we get from the b i a saying that the modified because your honor it would be the same as if for instance the this court said all right we say that state x s burglary statute is not a crime involving moral turpitude and then state wise burglary statute had the exact same elements you wouldn't need a separate published decision from this court you might because it depends on how the states themselves have defined the statute so i don't know if that's the best example for you to use because we grapple with that all the time with burglary statues from different states and depending on how those states have defined the burglary statutes the jury instructions the cases the prosecutions we may come to two different decisions based on statutes that read pretty much the same and i totally agree with your out of my my hypothetical is presuming that state x and state why have the exact same elements and that they do define the elements exactly the same if two states do  fine the elements exactly the same i don't think it would be necessary for this court to have a published decision for state x and a published decision for state y and essentially that's what was going on here everyone agreed at the time that mr leave us the pleaded that if you have a mens rea of recklessness you have to have an aggravating factor of actual serious bodily injury or death arizona endangerment did not have that aggravating factor and that's decision there was that to which the third circuit ground sharon difference was was that published or unpublished the third circuit decision i believe was published your honor it wasn't controlling in the ninth i mean and that's where we were at but the b i it recognize that's right so what i was trying to get out right if that decision was published you were stressing that there were no published decisions involving the arizona dangerous that's correct but it sounds like there were published decisions involving endangerment statutes of other states that actually are quite similar to arizona is right i mean i apologise if i answered incorrectly or on i believe that in the third circuit the third circuit's decision was published i don't believe that the they're not even if the court disagrees with the on that then i think we move into the question of would read you to caught apply and the answer is yes so if you disagree with me on whether there was a change in law i think we could still look at that and the question with rested cottage is are the issues identical with the parties identical and was their final judgment on the merits now here the only again there's only one factor that the parties dispute and that's whether there was a final judgment on the and there was not and we know that from the plain language of the statute which says that when you have an agency decision that's a final order that is a final order and we also know that from the supreme court's decision in utah and there the supreme court set think that that matters and there it doesn't matter for two reasons first of all it hadn't happened yet in other words the b i had yet applied the matter of layout and so you can't really say that it violated when we didn't know if they were going to apply or not the only way a that we could exhaust is once they had applied it and at that point all we could have done was a motion to reopen it and but this court has said that a motion to reopen to reconsider is not required to to do an exhaustion of administrative remedies and then the other reason your honor is because essentially we did we weren't given an opportunity to brief anything on remand we did submit something and just said we don't think utah and so if the court disagrees with us that there this didn't didn't merit a change in law then that necessarily means that residue caught applies and so is it your view that the case was final yes under under the supreme court's decision in utah you don't need judicial review a case is final for purposes of rest judicata if the agency has made a final decision and here on his i'll save a little bit of my time but i do that there has been a petition for rehearing on bhaag filed in that case and so i don't think there's there's a final decision on that yet in the mandate hasn't issued but also as we pointed out in our twenty eight j i think there are some serious questions here about that  not necessarily foreclosed martina's day ryan specifically that this court there's an emerging consensus that even if a statute itself is not void for vagueness that an agency interpretation can render  vagueness and that under the doctrine of constitutional avoidance you don't necessarily have to strike down the statute in order to invoke void for vagueness and so i won't go into that unless the court has for the questions but i'm happy to talk about i have a question of certain race through the conduct so at the point that the case was remanded to the what was the final judgment in your view the final judgment was that the the b i a held that arizona endanger an agency decision and it was final under the plain language of the statute and the supreme court's decision in utah thank you thank you i will hear from the government morning may please the court server on behalf of the respondent the attorney general this court should die the petition for review because the board correctly determined that felony endangerment and violation of arizona law is categorically a crime involving moral turpitude this case is controlled by this court's precedent decision in leon v holder and in that case the court held that arizona felony endangerment is categorically a crime involving more turpitude and the court did not say that its decision would apply only prospect of lee so under the default principles of retroactivity a judicial decision just applies to all cases currently pending including this one if the court had wanted it to not apply retroactively the court would have said in its opinion that it only applied prospectively so with regard to our response to the retroactive challenge here we have kind of three layers the first layer and you don't necessarily have to reach all three the first layer is just that the court's judicial opinion inlay all controls and applies two all currently pending cases then the second  if you decide that for some reason lay off the holder does not control the second layer would be that matter of lay all the board's precedent decision doesn't trigger the retroactivity issue because it's not a change in law for purposes of retroactivity certainly every new president decision is an intervening development in the law but in order for retroactivity issue to be triggered it has to be a change from a prior precedent beyond the you know taylor shepherd documents but as far as whether or not recklessness was that's not the aspect of the decision i'm talking ok what i say shifted the way that you would analyze a recklessness crime d change the standard by which that would be judged going for it it basically incorporated prior cases and explained and clarified but i would say if there was a change in six there were two unpublished cases that said that it was not categorically those were legally erroneous is how i would explain it they were actually trying to interpret precedent decisions a wrong conclusion on them and matt the standard at that time was just as your opponent described it if you had a recklessness crime you needed some aggravating factor which was on the order of you know injury or or that kind of thing and that's not what the arizona statute requires i don't think i think that was one interpretation of the statute but it proved to be o ur of the standard time i don't think that actually was the standard at the time under the precedent board decisions for example matter of medina was a reckless mens rea it was the first time the board held that recklessness was a sufficient only culpable mens rea and there was no bodily injury or death or mention of the requirement for an aggravating factor instead that was assault with a deadly weapon but there was no use of the deadly weapon it just was present so the contention that bodily injury is required simply doesn't hold up to the precedent not that particular thing but an aggravating factor of some sort pretty narrowly defined either like a protected class of victims or some kind of serious injury so it's not wasn't just one type of aggravating factor but there needed to be something more and that the arizona statute blacks that something more at least as the law was to find that at that time some cases mentioned an aggravating factor including say the third circuit's case that you mentioned earlier which said that again the aggravating factor was for assault and because even if the mens rea is sufficiently culpable the recklessness there has to be it has to be viewed in concert with the reprehensible conduct so the aggravating factor goes to the reprehensible conduct and in that two thousand and four published third circuit decision the third  creating a grave risk of death was sufficient and that was based on unpublished board decision us that earlier the underlying board decision was unpublished and if you survey the law at that times at the time of two thousand and seven when the titian or pl guilty there were unpublished for decisions on reckless endangerment various state statutes going different ways when you put it in these terms because i guess i'm not persuaded by your position at this point  at the time that the petitioner here pleaded guilty there was at least a chance that his crime might be classified as not involving moral turpitude right right i think that it was an unsettled area of the law and there was a chance liao there is no chance we know for sure that it does qualify and is now settled right right so i don't see how that's any different from what's the case i'm thinking of from our circuit guaranteed win for the petitioner under the old law and after the change in the law it wasn't even like it was a guaranteed loss but it was a much much greater likelihood that he would lose and we nonetheless know that yeah that that that certainly qualified as a change in the law and in fact he prevailed on of the montgomery ward you know well here i don't think it qualifies as a change in law garcias rodriguez on bach this court said that it has to be something that overturns precedent or otherwise change is a settled expectation and here as we just only just went through it and you agreed that it absolutely did change it because under the prior law he had a chance and you agree that after matter of the all he had no chance a house not not a change in the wrong i think that that in terms of the plain language of the meaning of change certainly every intervening decision every new precedent decision clarifies and settle something that was previously not settled so yes under plain language it is a change and so so you know we would say why not he relied on the state of the law then i think in fact your opponent might have been the lawyer who advised him she looked around and said oh there are actually specific decisions albeit unpublished the deal with the exact same statute and they say this does not qualify as a crime involving moral turpitude so that's the state of the law when he pleads guilty after matter of the whole world is turned upside down and we know for sure that it now does qualify so i just don't see how you can stand there and say there was no change in the law and everything is just remain exactly the same from two thousand and seven until the present not trying to say that it's remained exactly the same i'm saying that the type of change in law that triggers a retroactivity analysis is one that overturns precedent you're right he relied perhaps on a chance a hope that if there was a precedent decision it would come out in his favor and you know facing criminal charges when deciding how to plea if there's no precedent you just have to the defense counsel has to say there is no precedent but you can hope that it will come out in your favor but in this case even if you go to the third layer of our argument and say ok it was sufficient change in law then when you look at factor two  factor three they weigh heavily in favor of retroactive at location war that's where you stand right of montgomery ward and those are the two factors that are most salient because the extent to which a new rule departs from a well established practice be a precedent by regulation or mean b i non presidential decisions simply cannot establish a well established practice and as i mentioned the state of the law at that time in unpublish some change in the way recklessness offenses are analyzed for purpose and i disagree silverton vino actually cites in a footnote the reckless cases dating all the way back to seventy six and is reiterating the standard that and reiterated trying to make it more clear but not specifically to recklessness but to any means re add that that in order silver trevino was to say recklessness plus reprehensible conduct forget about aggravating circumstance reprehensible conduct it alone would be sufficient and that that was a deliberate and intentional change on the attorney general's part to broaden the scope of offenses that could qualify as crimes involving moral turpitude is that and i incorrectly i don't think that's correct silver trevino i don't think it uses it discusses a requirement for an aggravating factor and then overturns that requirement i think it merely says recklessness as has long been a stablished really just didn't you just agree with my whole premise of my question that they did change the law the prior standard required an aggravating circumstance and you said just a second ago that it overruled that and said that no i said i don't think it did or did not exactly what i what i was trying to say is that i don't even think silver trevino discussed any aggravating factor or requirement there i think that silver trevino and to the extent that the aggravating factor is an aggravating factor it comes up most often in the context of a simple assault in a protected class that goes to the reprehensible conduct and this court in the holder discussed that and found that that was really if you followed the line of cases anything about aggravating factor when into whether or not simple assault which normally the conduct is just a mere touching which is not sufficient could regardless of the mental state could have an aggravating factor sufficient to make it reprehensible conduct so so if so over trevino in two thousand and eight did explain that there was the mens rea a and then the reprehensible conduct but with regard to the recklessness mens raya it didn't overturn or specifically change the law in that regard it changed the law in terms of the third step which this court subsequently overturned but as i recall so overture of you know in two thousand and eight specifically just reiterated the state of the law as it already was with regard to recklessness being the conduct is you can't have a mens rea to intend something without looking to see what it was that was intended or what risk with recklessness was created and here at the time of the decision or at the time of his decision to plead guilty there was only one published decision that i'm aware of from any court own reckless endangerment and that was the decision holding that a grave risk of death was judicata we would say that it's not exhausted and also that it does not apply because this is not a separate proceeding rez judicata applies when there's a separate proceeding but here and this was all part of the same i'd like to go back to judge what for your line of questioning on sivits or vino because i think it it really hits the nail on the head what happened was that when mr leave us pleaded guilty in two thousand and seven basically the only case law that was i think our best case that i would point the court to is matter fool out that's twenty one i n n decision for seventy five that said that if you have an offense with a mens rea of recklessness and you don't have one of those aggravating factors it is not  the first time if you have you can have a c i m t that has a mens rea of recklessness but it then only has to be reprehensible conduct and so the change in law came because there is a gap between what is reprehensible conduct and what the b i had to find to be an aggravating factor in other words a reckless with was this before or after your client put my this was after my client pleaded guilty in other words my client pleaded guilty at the time you had to an aggravating factor then the year after the attorney general said to be a c m t you have to have reprehensible conduct which is lower than an aggravating factor and that's really the heart of what we're saying here is that that was definition of recklessness plus reprehensible conduct and because of that that's precisely where we think this change in law happened i think the other thing i would just point this court very to very quickly is  in two thousand and one in a decision called taurus for ella there's a concurring decision are concurring opinion by laurie rosenberg who is a board member at that time and she does a really long x discussion of why recklessness required that aggravating factor so i would encourage the court to look to that to also see what the b i consider the case law to be at that time all right thank you thank you to both counsel for your arguments your helpful arguments in this case a case just argued is that minute for