good morning your honors may please the court almost went there on behalf of the petitioner fernando insall is ramirez i'd like to reserve three minutes of my time for a bottle the issue before this court is whether petitioners section sixteen it is petitioners position that this conviction that his conviction under two forty seven be is not a crime of violence as such it was error for the immigration judge to order to him removed without first considering the merits of his application for cancellation for certain lawful permanent residents of course you've not had an opportunity to comment on the value seeing case that was decided by the supreme court in twenty it it in opposite to the present case in so far as it dresses a statue where recklessness is specifically mentioned as a possible mens rea to violate the statute the statute in question here california penal code twenty four to forty seven b does not make any reference to any mental state whatsoever negligence recklessness or intentionality as such it is our position in the supreme court's decision voicing as inapplicable and speaking with a govern council we do welcome if the court is amenable to it a supplemental filing and the costs of that issue are you relying on footnote for yes i am your honor already up with the argument thank you your honor the position of the petitioner is that because twenty five to forty seven b is silent with regards to mens rea others absolutely no mention to what the offender's frame of mind should be at the time of the commission of the crime that whether this is right what do we do with that under the law what do we do your honor it's our position that it's impossible to determine that there was a use of without the appropriate mens rea there was not use of force there wasn't the threat of the use of force in this case and therefore it cannot be considered a crime of violence with regards to the voice it stated that the most natural way you do get into trouble with voicing if you're going to rely only on the right that's what you do get into trouble well we would ask you this i'm going to back up a bit because i think i might be losing the thread of your argument is that your argument that the that the seeing any discussion that we should be considering a raid fernando's rule as it is necessary is it necessary for this court to determine whether an alternative bases exist to support the holding  so fernandez as is one of the cases that cited in the breeze of the parties yes it is your honor if i could just take a moment to review my notes here with regards to that  case basically with regards to the cases that are mentioned in support of the government's position that this is a crime of violence and especially fernandez ruiz your honour's it's our position that  state is there and the california court has established that recklessness suffices right with regard to your honor to the shooting at an occupied vehicle i would cite to cohere you to post a which this court has decided where it was found that that was not a crime of violence and the reason it seems to me is very important for your argument i want to give opposing counsel an opportunity to respond because for me this is really the crux of it and the reason seems to be that we have a very clear indication from california that it was that regarding that statute that recklessness suffices recklessness is not that is the basis i think of your argument that this doctor has over the rod yes your honor  eighteen we would argue that it's so persuasive in the person in the present case in so far as the opinion citing fernandes reste individual may be subjected to prosecution under two forty six if consciously disregards the risk that the shots fired will hit a dwelling but the subject of awareness of possible injury is not the same as the intentional use of physical force against the person or property of another indicated you want to say some time for a bow yes your honor please the court i'm jonathan robbins here on behalf of the respondents jefferson sessions the attorney general to jump right into on this question about the california law i think europe referencing people against overman and the application and the and the finding of the california courts with respect to two forty six that that statute is different but you are correct that the california courts have found that recklessness is implicated in the two forty six context now that statute of a little bit different than the one we have here first of all the statute here doesn't have a mens rea were two forty six does a malicious and willful and there's also the element of occupancy with respect to two forty six it's very easy to see how reckless conduct is implicated in two forty six because if you fire a weapon and or you can it's easy to see how you c reckless with respect to the occupancy of a vehicle or the inhabited well now i don't know whether california law would extend the rationale to forty six to forty seven they haven't done so yet i couldn't find any cases where they've done that but i can't i have to concede it's possible that they could but in the absence of the caseload with the board here is they said well we'll look at the resources we have with respect to the statue we have here which is two forty seven b and in doing that they looked at the jury instructions at the onset of injury sections right well i don't know that it's necessarily wrong set i mean  so well if you disagree with the government's argument that reckless conduct is implicated in two forty seven and then the court has to then i would turn your attention to the twenty eight year letter which we talked about boys in the supreme court that obviously happened after briefing was admitted in this case and after the board's decision but it may not matter whether two forty seven includes reckless conduct because under the supreme court's decision in which they interpreted the term use they said that means and after the employment and in the criminal and in the context of domestic violence or the misdemeanor domestic violence they said that reckless conduct is included in that generic definite really just in case i mean think media what about it no form well they did leave open the question of whether their rationale from that case is applicable to sixteen a but subsequent to the supreme court is this if it were not reaching fair they did but subsequent to that the federal courts have begun to fill in the gap not this court but the other circuits and the overwhelming majority have held that the rationale of boise is applicable to sixteen a there's only one circuit that's gone the other way that's the first circuit but the fifth the sixth in the tenth of all held that the way the supreme court defined the term use is applicable to sixty day but i would say this about it is a really important issue it's has wide reaching implications beyond immigration context it also affects the criminal context because it has to do with the a c c and sentencing guidelines and it's really an issue that you probably least briefed in its entirety so we would request supplemental briefing if the court disagrees with our argument regarding recklessness in the in the two forty seven conte t but that being said if you don't issue supplemental briefing we do think that the overwhelming majority of circuits are more persuasive than the one circuit that's gone the other way i think probably the most persuasive is the six circuits case in the united states against the way they were they actually respond to the first circuits arguments and they explain why they think they're not really valid but again this is a pretty hyper technical issue and it's probably appropriately dressed in supplemental briefing and i looked around to see if this issue has come up in other cases that are currently pending before this court it's hard to tell because i don't have appearances in some of those cases but i think the united states against the game might be one i know that the in the criminal context i believe the government has filed a brief arguing that voicing should be applicable to sixteen a in the criminal cont think i believe so but i i can say i'm not sure what the number is but but that was what i had gathered but i don't know that it is that's a done since the so some of the circuits have come up with their decisions so if you want supplemental briefing that addresses sort of a more current state of the law we've certainly had to do that and we think it would be extremely appropriate in this case given that it's a very important issue so thank you ok so let's there is from the questions  looks like we don't thank you thank you very much your honour's with regards to the issues discussed in the disk in the supreme court decision and boy scene the government counsel brings up a number of of issues that were not discussed in the breeze and we've not had the opportunity to respond to those to those issues and those points that the government brings up as it was brought up in a twenty eight j a letter so do you also requests a subliminal briefing yes your honor we would actually ask for the opportunity to  supplemental brief in that regard as i do agree with government counsel that it is an important point and highly it has a high impact in this case with that will submit the case ron thank you thank you to for both to both of you for your arguments will go into the