have consistently counsel this is not a circus the question i'm really seeking information do you do you are you aware of any california state felony that has an element  interstate commerce the federal predicate now so it would be your theory then that no california felony could ever be fall within the same r other types of cases like let's say sexual abuse of a minor or a drug trafficking crime those are would be defined just under state law there's no element or there's no directive in the statute to look to eighteen yeah and that's that's pretty unusual i mean if you look at the different grounds of the different statutory definitions for aggravated felony the minute there's a minority of them that say that you have to look to a certain federal how you know so reckless a lot of this conduct was so i thought i think it's interesting that the staff that my client was convicted under in fact doesn't have a reckless disregard element that you can be guilty under this was california vehicle code section twenty three one fifty three which you can be found guilty of based on negligent conduct not reckless conduct and i don't think that the board of immigration appeals looked at whether or not  circumstances of this crime with in this case that my client would be a danger to the community after all it had been thirteen years before the hearing for the immigration charge and my client never driven drunk again after that nine hundred ninety s incident so i believe that the board of immigration of appeals and the immigration judge focused extensively only on one of the four friends has to factors which was the circumstances of served i think so i'm frankly i think that my client may not have been totally accurate because basically it was the only thing on the record about that conviction was testimony and then the allegation of the prior and the conviction records for the the felony possession of  offending drunk driving case it's all the reserve and i'm sorry excuse me counsel did you find any cases in either at the immigration level or at the federal court level that has faulted the determination because it was only a particularly serious offense and did not take the step one further and ask was this particular serious offense committed it under the circumstances in wh ninth circuit last year where the court did say that the board of immigration appeals that only look to the circumstances of the crime and did not have not adequately looked at the circumstances and then didn't determine whether or not clearly found that the petitioners conviction under twelve to twenty one a one is an aggravated felony for immigration purposes as well the analysis performed in the case was under the taylor approach which is what this court looks to assumed that the language of the statute that talks about particularly serious crime because the first sentence talks about the per se particularly serious crime which is it's an ag fell with an aggregate sense of five years that's a particularly serious crime the next  descriptor that the end clauses are mentioned where the previous sentence shall not preclude the a g u from determining that notwithstanding the length of sentence and elian has been protected convicted of a particularly serious crime if you go back to  felony with five years in the aggregate that's per se we don't need to look any further it takes the next step saying if it's less than five years it's up to the attorney general to decide whether that aggravated felony but that would be true under subsection  that this is just giving some clarity to the aggravated felony provision for the fact that an individual convicted of an aggravated felony but i don't think that this limits the board or this court attorney general doesn't have discretion to find any her well i have two responses that the first being more general response that the statute clearly provides for the attorney general in his or her discretion to determine whether something is particularly seri and that's always been the government's position if it continues to be the government's position by the board's case in a matter of outlasts bears that out as does the seventh circuit which granted there is some circuit conflict there but we believe the seventh circuit has the correct approach and they did a very good analysis in the decision of matter ali but i think more to the point in this case is the fact that petitioner did not raise that specific issue to either the board or really to this court he has never challenge to the agencies  probably true let's just try to target the standard we don't know what the standard that's very your honor but i think that there's nothing that would preclude this court from taking a look at this case and saying you turn in general has discretion to find something particularly serious which are you believe would deprive but we do have the jurisdiction to determine whether the b r a is applying the correct legal standard what does that mean how would you characterize the difference between those two things that is also i think also been born a little bit and afridi and to some extent  which were the two decisions that came out after the briefing was completed here what that would allow the court to do would be to look at the agency's analysis of the particular serious crime to the extent it applied the correct legal standard as soon as the court can look at that and answer that question in the affirmative yes and that i think if you look at the i'd use decision of pages forty one and forty two but he doesn't say for test you he says all of the factors that are listed in that case works rather the agency looks to the facts and circumstances of the crime and the nature of the conviction and and here again i would point out the petitioner doesn't make these new wants challenges in his brief he just makes the conclusory assertion that to be i fail to well i guess i'm not really prepared to make a real nuanced argument right now but what i could say is that i don't think that the bargain of the immigration judge did have correctly applied the francesca's factors because like i said earlier they didn't talk about whether or not my client would be a danger to the community which after all is probably the most important of them i don't we have case law i understand that the statute appears to read that way but don't we have case for specific me saying you don't need a second determination that a particular serious if it should turn out if it's a nice you're good in another case should come down to moral saying that the only particularly serious offenses are aggravated felony and that