before the court mr creme is also with me in court today is to my left in the front row your honour's mr creaming received asylum in the united states over ten years ago because he and his family were politically persecuted in afghanistan government is attempting to revoke his asylum and deport him back to afghanistan on the basis of a mere diminished touching that does not constitute a crime of violence because mr creamy did not commit an aggravated felony of violence it was error for the b i am the i j to terminate his asylum and order him deported i'd like to address that with three points before the court today number one in applying the modified categorical approach we asked the court to look at the facts contained in mr crean these plea colloquy as the facts that necessarily underlie his conviction number two when examining the  actual facts pleaded in the plea colloquy we see that mr creamy admitted to no more than temporarily grabbing someone's hand maybe for a second maybe less it's never clear respect to the movement of the head the not right or the spitting well there are there are two other facts that the government refers to which did not ultimately underline mr crean these plea and i'll address them both here on number one but i'm what i'm trying to get at is that he grabbed someone's hand for an unspecified period of time causing no harm whatever now it was advanced by the government to now the dow this is the stuff the grabbing the hand the that is in there is the own specified period of time in a thing else causing no harm whatever causing the harm for and that's in there that is that isn't our grabbing the hand causing the harm whatever is in there yes so the question is whether that today but my understanding is this that when a statute is divisible and this court has held numerous times that the section under which mr crean was convicted is divisible you say this what is divisible this court has said that and this court has applied to modify categorical approach to the particular statute under which mr crean who was convicted the may have threatened the officer that was contained in the officer statement probable cause that fact was never advanced by the state's attorney at mr crean these plea it wasn't even put forward as something that the government would attempt to prove trial  the words threat never appeared in the colloquy mr crimi was not charged with threatening anyone he didn't flee to threatening anyone so under this court's precedent that is not a fact that necessarily underlies m assault and not it can't be used out of respect for the sixth amendment of the modified categorical approach the government also advanced the idea that perhaps mr creamy spit at the officer this was something that was mentioned by the state's attorney during essentially that if it happened there would be no mens rea a his attorney went on to say that if any speeding even occurred at all it would have been a pure accident as a result of mr creaming being intoxicated now the judge accepted that amendment colloquy the state's attorney never raised any objection of problem with that whatsoever and if you're on is review the plea called we which is in the administrative record the joint appendix you'll see that there is a couple of pages of exchange between mr green his attorney and the judge talking about what did he grabbed her hand did he grab her arm if he spit on her maybe that wouldn't even constitute an assault and the outcome of that exchange is mr creamy scoundrel's clarification that mr creaming is pleading only to grabbing someone's hand and that he caused no harm when we strip away everything else that's all that is left and when your honour's come down to that fact which might constitute assault under maryland's extremely broad assault definition but it does not constitute a violent aggravated felony under federal law and i would direct your honour's course united states v johnson which features in our brief this court in its white decision has held that the supreme court in johnson determined absolutely that this type of diminished touching does not rise to the type of active violent crime that is necessary under section sixteen that recitation that you just summarize with respect to the flea collar way in the statement of probable cause that was not part of the colloquy and i know you may not have had a chance to fully digest this motion but the government by the motion remand this case to be a sensibly i guess for further findings as to exactly what occurred with respect to this conviction do you see that as necessary given what you just said about the undisputed facts of record why i don't your honor i have i have two responses to that motion number one i believe that the government's motion actually certifies several the arguments that mr crean has advanced in his brief number two i don't think there's any need for a man because the the arguments that are already before this court the record before this court already confirms that under the law mr c well you know in other cases since then related gomes here in this court the thing is your honor mr creamy would prevail either way because if you're if your honour's were to apply the categorical approach to is exactly the same statutes a matter of fact second degree assault under maryland law that's number eleven forty seven seventy responded to in two parts your honor number one i would refer me my position that even if the categorical approach was applied to the maryland misdemeanor assault consideration i would also mention your honor in response to your question that the gomez case he's not the point that features in the government's motion what features in the government's motion is their concern that the b i l was citing facts contained in the statement probable cause that were not in the right which i take as confirming mr creme is argument under the sixth amendment that those factual because i think the government's motion also seems to jettison their waiver argument since in their motion they they for instance trying to liken this to research resisting arrest but that's not what happened that's not what he was charged with it's not what he pleaded to and in fact i think it's important to note that when looking at this court's decision in white that this court also look favorably on other circuits decisions that are akin to the circumstances for instance in white this court cited the second excuse me the seventh circuit which held that listen every touch the constitutes a battery cannot be a violent touch even more so this court favorably cited to the hayes case out of the tenth circuit the tenth circuit in that case engaged a hypothetical under a similar assault statute where what if a wife would appoint her finger to husband and husband bad at that hand away and the tenth circuit engaged that hypothetical as an example of something that does not rise to the level of violent offense and that is likeable to what happened here the victim can't in and of itself make it so i think it's also important to note that there is a subsection under the maryland misdemeanor assault statute specifically for an assault on law enforcement officers and that is not what mr creamy consider it is important to parse the language involved here but one can never lose the forest for the trees as you might leo count and johnson in supreme court are very good examples of that those those decisions look closely at the language of force use what it means to use force but those decisions ultimately and finally resolved on the basis that congress was trying to define aggravated violent crimes at not just any crime involving force congress used very strong language and they coupled it with very severe circumstances the terminations of a legitimate grant of asylum for someone who fears death if returned to their home country so when you take that severe language coupled with those severe circumstance it is it is appropriate contextually to affirm beholding a supreme court that this type of de minimus contact is just not enough to be fi  the basis of the motion is essentially the board in their decision states for one thing they specifically state that the petitioner in this case not dispute the fact that his did not dispute that physical force was used in his offense and that that's what he pled guilty to the board in their decision goes through and first of all they they applied in over a review of the immigration judge decision they find that the immigration judge appropriately exercised the modify categorical approach in this case and in doing so they mention facts that support that were found supposedly in the modified categorical approach as facts that were clearly discovered in the statement of probable cause which is contrary to alf well what are we don't know is and this is what was the basis remained is was the board considering those items as the basis for firing this was a violent offense with this was a this was a fact violent force or were they simply just referencing that is this material that could it is is appropriately part of the modified category approach and are in the argument is that it's not clear it's not clear if they intended first of all that they apprehend in the first place that this but the petition in this case had in fact agreed that his force was violent or that he had engaged in physical force and therefore violent force and or johnson if that's the case and this was actually argued in our brief in the waiver section is that if that's the case then there's that was an exhibit that was improperly exhausted and there's no point in going further in this case he's an aggravated felon but after reviewing what's in their statement about the modify categorical approach talking about matters that were not found in the  specific two and two in fact if you like the boers decision there's no discussion whatsoever of grabbing the police officers hand in this case or specific to that that act maybe that could be here and that might be something that the board would want to consider in addition to the fact did they did they indeed find that the was appropriate to find them out use the modified approach that my that my view something that the word should consider as well that i would i would i would leave that to the board first to determine whether or not they find this is the vigils a divisible statute and if that line of decisions applies in this case in the first instance bonus a little bit the initial wave argument was based on the statement of the board's decision which was pretty straightforward very specific position today is not to say was it was in your very the business in the brief was that honor i think i think the the main difference is is that if you look at the statement in an opposing counsel in fact i looked at that statement as well that the the court the board found it he's not even he's not even challenging that his act was physical violence physical force involved and i believe opposing counsel so that's factually incorrect and i think my position was that it's not factually initially if you look back at the the arguments made by the petitioner below with the immigration judge those arguments are all geared towards the fact that modify carol approach doesn't apply that was there the crux of their that necessarily is specific to you don't think that's raising the issue and that's not preserving the point that what was said at the play colloquy was not i think i'd leave that for the board to decide  reconsider they never mentioned is force it was the actual grabbing of the hand amounting to physical force that under johnson and therefore the one point that the shepherd documents get in there th opportunity to file to this motion by the thirty first but i put a couple of options before your honor's for consideration if your honour's believes that the categorical approach should apply to this particular  applies such that mr creaming prevails if there is no new evidence the board's not entitled to deference the court can rule that now if the court chooses to apply the modified categorical approach we contend mr crimi still wins on the basis of what's contained in the colloquy and the court can do that now if your honour's have doubt about whether or not mr creamy committed an aggravated felony then the only thing that the government has asked for is r and so what i would i would encourage your honour's to not give him more than he wants himself and we can continue to contest it before the immigration courts if there are i don't understand that last part well i just mean if there's any if there's case is whether the modified categorical approach can be utilized or whether it alters the situation maybe you all have read it but it's a there's a there's a strong senate there's a lot of good it's all good discussion in there not the second degree assault statute of maryland the follow up case the one i mentioned is safe that but is that your final point is that in the worst case scenario there's no basis for f