he prefers to be called i think to reserve three minutes for rebuttal said he would like to be in court today but he has been deported to ethiopia where he is locked inside a church as we speak he is alone twenty four hours a day and being denied mental health care and medication just as he feared that he has paranoid schizophrenia a severe psychiatric trigger disorder he was a green card holder for more than ten years at the time he was convicted of two crimes committed during a mental health crisis his health and competency are interwoven throughout every issue before this court today as described by a clinical psychologist when he's receiving mental health treatment and effective medication he's described as kind insightful and he experiences great shame about what he has done during psychotic episodes but even when he is taking medication he still experiences auditory hallucinations anxiety disorganized thinking and shows moderate to severe cognitive impairments according to a clinical psychologist and despite his severe mental illness the immigration judge found that he was competent to represent himself in challenging his grounds of remove ability and presenting applications for relief from deportation we've done this you know i have on this record during our council  after that initial competency determination where the immigration judge should have noticed severe initiative incompetency including moments when the social worker had submitted a letter saying that she was having trouble communicating  and then you know toward the end of the case when the clinical psychologist submitted her own mental health evaluation and found moderate moderate to severe impairments and that he should have been taken into account by the judge and that the procedures  social worker or some other time it was at one of the next hearings and i'm not exactly sure how much time passed in between but it was where teddy was filling out the asylum application so it was relatively early on in proceedings and when the social worker said that she was having trouble communicating with him that that meeting had gone on for a very long time and she was concerned about his ability to even answer the basic questions on the form  an expert opinion regarding his competency for example and you know if such an expert opinion by someone who is qualified to give those evaluation and uses a standardized test then  then that would have fit here to due process requirements so a central issue that i'd like to get to because it's dispositive in this case is deport ability and because he was a green card holder the government here had the  to prove by clear unequivocal and convincing evidence that he was deportable and under the removal statute the government therefore had to show unequivocally that teddy was convicted of two crimes involving moral turpitude that were not arising out of a single scheme and a the government failed to meet its burden on both points so starting with c m t and the parties here in agreement that the utah conviction statute does not contain a mens rea and associated with issuing threats which means that the minimum  endanger others and if i have a specific interior to clear the occupancy of a building how is it possible for me to make a threat that is unintentional well i think that's so for example on the facts in this case so i'm not saying that the court should necessarily look at this but i'm saying it's just an example of how this could happen and is that you know teddy was in a mental health crisis at the time and so i certainly think that that would be recklessness where he was not even entirely aware of what he was doing but he had been consciously aware of a substantial risk honor might be the thinking of these cases from other circuits that the government and the agency have relied on in this matter and that explore state statutes that differ significantly from the utah statute issue here because those cases are looking at where there is a specific intent to terrorize but here there isn't even a specific intent to cause any kind of fear there's only the intent to prevent occupation about building which you know could be through something such as annoyance  to say that because there's specific intent in the nd part of the statute that it is extrapolated to constitute a specific intent crime as a whole but in vehicle itself the court goes on to say that specific intent is with respect to the result and not to the act itself so it with respect to the result of preventing occupation of a building and not with respect to the reckless conduct so i don't we have that here i mean following on what judge bacharach asked don't we have that here i mean and then to to cause people to not enter that something so going back to the of this court has said that reckless threats only arise to a certain level when there is an aggravating factor and so that's what the government saying here right is that the specific intent is the aggravating factor but the government hasn't shown or the agency hasn't cited to anything saying that specific intent to prevent occupation of a space rises to the level of the cia empty so i think we just don't have an aggravating factor with culpable enough conduct that rises to the level of the c m t here and in order for the entire statute to be i just don't think that there's support for the entire crime constituting a c m t either and there's a case that says that is specific intent crime is one where an act was committed voluntarily and purposely so that's where there's a specific intent crime which is just not what we have here because the act of issuing threats could have been done recklessly and so i'd like to move on to the single scheme determination and so this is the nd part of the removal statute again where the government or the burden of proving clearly and convincingly that these crimes did not arise out of the same scheme and this issue was also reviewed to know that so the immigration judge didn't order any briefing from the government didn't take any argument from the government and instead examined terri herself to make this determination and teddy contested that these were two separate incidents he explained that they were quote similar incidents similar cases and that both are arrests from his conflict with the university nonetheless sorry end quote nonetheless the i g noted that the incidents happened on december st and th and concluded quote they appear to be separate and so plainly the fact that the i g said the incidents appear to be separate shows that the evidence was not clear and convincing and so we have a separation they when these incidents occur and i mean it's not you know ten in the morning he does something at one thousand and thirty he did something else we have two different types of threats focusing on different entities and individuals on federal benefits yes so i am i believe that your honor but the single scheme determination is circumstance specific and there is no bright line rule about how much time passes rather it's more of an eye to talladega of the circumstances test so here and you know where teddy made these statements that they were arising out of a single scheme and they were made for the single  objective we argue that they flowed from and where the natural consequences of a single scheme and this is in the context of him being found guilty but mentally ill at the time of commission of both offenses and on top of that you know later in court he also said that he didn't mean to threaten anyone that he was not controlling himself and that's on the record as well so one other point here that is also highly relevant and it's a test that the agency should have used and should have taken that is mental health into account in making this determination and that's a test stated in a matter of attitude and several other pieces and whether teddy had the opportunity to reflect and dissociate in between the incidents rats but so other than like a kidnapping associated with this in addition to threatening phone calls we've got that still be a single scheme under your interpretation or without me no your honor i think that different threats were toward the same goal but they were similar in terms of conduct and where i think a kidnapping would be completely separate from issuing a threat for example and i see that i need to reserve dismissed in part and tonight in part i will focus my argument on the two main issues in this case the st is that the government established by clear and convincing evidence that petitioner is removable as an alien convicted of two crimes involving moral turpitude not arising out of a single compare the elements of the utah statute to that of the federal definition of a cia mt c m t is is one is a crime that involves both reprehensible conduct and a culpable mental state and the main issue here is whether or not the utah statute contains the requisite culpable mental state i'm a government's position is absolutely that it does as counsel mentioned the minimum conduct under the test under the category of approach here would be that a person would commit a threat of terrorism by recklessly threatening bodily injury death or substantial property damage and acting with the intent to prevent or interrupt the occupation of a building now as the court correctly held a recently held you have to read the statute as a whole the nd part of the statute the results of the act the has specific intent whereas the st part the threat you would only need to have reckless intent but reading those together it's a specific intent crime that's how the utah supreme court interpretive a similar utah statute that contained that had two separate intends within one statute which was perform with reckless intent the result of that statute the resulting part of that statute had to be performed with specific intent and at the end of the day it was a specific intent crime i think if the utah supreme court had the opportunity to interpret and analyze this statute here the threat of terrorism it will come to the same conclusion because it's written in the same way how do you deal with this well this is argument that particularly with someone of like that with mental illness that they may be consciously aware of the risk that their words may have harmful consequences but that's a particularly of mentally ill person could utter words like  someone with tourette's syndrome that was not necessarily designed to clear the occupancy of the building but that they may have been aware of that risk and uttered those words nonetheless and therefore there could be a threat that was unintentionally may be recklessly and so there would not be an intent to make a threat while at the in the day because spite his mental health issues he was convicted which means that he pled guilty but mentally ill which is permissible under utah law which means that he the criminal court in utah found that he satisfied the intent to be convicted under the statute so  have to say under the category in pro choice that that the crime didn't categorically satisfy the criteria for bigger motor to know because that that doesn't take into account the sa part of the utah stuff too that you have to have a specific intent to prevent the occupancy of a building that's there that you have to satisfy both parts you can't just satisfy the one to be convicted on the statute and that's what the criminal court found here that he satisfied the attempts for  least you know he pled guilty that that's that's all we know about that there's not much more about his underlying proceedings in this record here and so and so we actually look at the statute there's a two fold kind of thing part of it requires reckless or can be satisfied with reckless conduct and the nd part satisfied in this specific contest right the st part can be satisfied with reckless the nd part has to be satisfied with specific intent and that and that is the same argument that was made before the by the government i mean i hope so i don't remember what argument d h has made before the board but  yeah i would hope the government made that argument i'm sorry shore and so the nd part of that i want to touch on is that particular pitchers crimes did not arise out of a single scheme of criminal misconduct so the determine a test here is for one client crime to flow from one another to satisfy the single scheme definition the scheme must take place at one time meaning that there is no substantial interruption that would allow the is acting out against people in places he does not like and perhaps in this mental fog there is no great in activity i'm not sure that that the test is net two that the single screen test is meant to touch upon someone's psychological ability to disassociate i think it i think what matters here is whether or not the schemes taking place at one time i mean another way you can look at it as we're one crime flows from one another and is a natural consequence of the other and as one of the judges pointed out earlier i'm sorry i don't have all shown my screen here these are two separate crimes on two separate dates and he was convicted of two counts of threat of terrorism one on december st where he made threatening comments to kill people in person to three and different people entering into a building on the university campus and then several days later he sent an e mail to university employee saying that he wanted if he wanted to kill people trespass notice would stop him on then he gave the university three days to resolve this complaint so there's happening on two different dates the threats are made in two different ways one in person two people that he sees in front of a building and the other and i think that applies here and as far as the particularly serious crime issue government's position at the board apply the correct legal standard to conclude that petitioners offenses were particularly serious and therefore circumstances applying to the criminal because the boers precedent also states that it doesn't consider an alien's personal circumstances and equities in making a particularly serious crime determination and in the g d s did differently than any of its prior precedent is is that it sort of just refined that personal circumstances and equities bar if you want to call it that and said well this also applies to mental health and it and i think it also born in that case also made a good point that mental health doesn't really to the key issue in a particular serious crime analysis which is the nature of the conviction and i am it was the dangerousness to the community if you're evaluating dangerous well you're what you're evaluating under the particularly serious crime analysis is the nature of the conviction the type of the sentence opposing the circumstances and underlying facts of the conviction and i understand your point that here we have a person with mental health issues he was allowed to plead guilty with but mentally ill which was permissible under utah law so his mental health was taken into consideration for purposes of this conviction now if we were to now go back in time and nd guess that we don't know how that how that works in utah what with the circumstances surrounding that guilty but mentally ill plea and the government's position that all of that still goes to his personal guessing the conviction which i think she's saying is under in a he this is relevant not to kill under state law but but relevant to his dangerous and so it didn't bear out his to mean despite the fact that he was mentally ill it did there on the fact that he was still convicted nevertheless the fact i mean i think the other thing you have to remember here is that while the board said mental health isn't a factor when making a particularly serious crime determination the i j a did look at the fact that he was found guilty but mentally stuck mentally ill and in reviewing the particular serious crime analysis and the boer made those two points  think at the end of the day here whether the board applied the correct precedent it did it was bound to apply g g yes and it did so here the i j a took into consideration his mental health and said well nonetheless he was found guilty having the utah criminal court and having found to satisfy the intent requirement for that crime and and then went on to assess what he actually did here which is in person threaten people to kill them and then send this other threatening also university employees so whether or not he's mentally ill his his acts were certainly dangerous and caused the university to go into lockdown and put a lot of people in fear and the last point i want to make because counsel raised it so any question as to competency is a factor to compensate competency itself is a factual determination and the court lacks jurisdiction to review that the government's position is that counsel has a proposition has raised a valid and reviewable due process claim in connection with the competency claim they only argue that the hearing was deficient that the i j a didn't adequately assess is ability understand the proceedings but i think that the i j a did went above and beyond here with the competency hearing and reassessed the aliens competency at sec subsequent hearings and especially after there was that issue about the letter from a social worker saying he was having trouble understanding stuff i questioned him about that i believe mister honna said well at that time i didn't think there was a problem when i was talking with my social worker so there's a lot of there's a lot of evidence here that shows that went above and beyond now to tell me what what you're saying we have no jurisdiction to consider is the due process issue is that your  t you don't have jurisdiction to consider the facts that the competency decision itself and we're saying that the due process claim is not a valid due process point so no jurisdiction to dress the competency issue as regards hooah at at the at the hearing before the i j a correct whether or not he was competent the court doesn't have jurisdiction to review that the only way the court has  court has with respect to competency is if petitioner were to raise a valid due process claim or legal question and the only thing they've done here is try to raise due process claim which we're saying isn't a valid process one and i see that a lot of time that i'm going over to coun judge is asking a mentally or someone with paranoid schizophrenia with a diagnosis is very aware that condition and then questions him to assess his competency and takes his own statement as true i think this just shows like the procedural unfairness here that this may have been another moment where the i g could have ordered a mental health evaluation done by a professional using standardized tests i'd like to go back to the depart ability issue on c and with respect to the specific intent in the nd part of the statute again and this is related to prevention of occupation of the building and i think looking at these other the other circuit court's decisions on this is really helpful because they say that the specific intent to terrorize is an act accompanied by a vicious motive but the utah statute doesn't have that intent to terrorize and so it's just and preventing an occupation of single scheme so am the government argues that we could just let someone not be deported even if they commit a whole bunch of crimes but i don't think that's a worry here because again this is the totality of the circumstance  argument and so what we're asking is for the court to look at what the b a did here and review do novo whether here on the facts of this case this constituted a single scheme with respect to the particularly serious crime determination the criminal issues that were before the criminal court rather we're saying it needs to be taken into account for the particularly serious crime determination and this case g d s was that an arbitrary and capricious departure from previous board president and so i see i am out of time