the question is does it amount to an aggravated felony and let the age requirement there's several federal statutes dealing with the age requirements of minors in sexual abuse and there's also some definitions and it appears that the b i a is adopted a definition of the age of a minor as opposed to applying specific sexual abuse statutes to circumstances such as these and i believe errantly relied upon that supposed to as the ag ability of ated felony statutes say that you have to have a similar crime under the federal law to apply a state crime to in order to make that determination and i believe this falls outside of that and doesn't comply with their own law in dealing with this and then another issue that was raised with the supplemental briefing was the jurisdictional issue and i believe that the recent cases in the the active change that in order to lift the jurisdictional bars to questions of law and questions of constitutional issues regarding discretionary decisions by the board of immigration appeals and the immigration law judge so in that case excuse me which brings the point of serious crime and whether or not the determination by the judge that this was a particularly serious crime could be attacked or addressed by this court and with the recent changes with the relate to actively yes it does that the jurisdiction still is here to see that the proper law is followed in making that determination even though some of those factors are discretionary in their nature there still is a set of laws that are put forth by the be a that have to be followed in making that determination in this court recently and raise rates that the court must apply its own law and those factors deal with the nature of the crimes against facts of the crime the punishment that was inflicted and whether or not there's a threat of society here i believe the immigration judge short sighted this whole analysis when he made the and this was the incident with the hitchhiker that was seventeen that initiated the contact the appellant testified to all of the underlying f text of this case there was no evidence to refute those allegations or scuse me refute the facts as he reciting them from occurring on this the judge the sentencing judge in the trial court looked at the facts of this case and placed him on probation give one hundred eighty days recommended that he be placed on project and he also told them that if you get in trouble with immigration i'll recommend that you not be deported unfortunately that recommendation wasn't followed through because it needed to be done at a much shorter time than he found out but ten years later after the time it expired to get that recommendation in then as far as the threat to society i mean  already reduced this from a felony to a misdemeanor therefore he believed that it wasn't a threat to society that this person would be able to continue out in society not posing a threat to other minors and then is far as whether or not there was a factor dealing with violence the judge in this case thought that he posed a threat because it was a minor and the threat of force was great because of that but here recently and in valencia versus gonzales this court found that this did not amount to a crime of violence for aggravated felony purposes and i think that reasoning can be applied to the that he didn't consider the underlying facts but he did consider everything else and we remembered it and then the judge considered that and made a decision would that then be reviewable in any way think you'd still have the ability to review the decision based on whether or not it was a proper application of that that law to the facts or any other constitutional challenges to that it back to the trial so that this can be considered and the additional evidence can be taken and considered by the judge regarding the underlying offense i believe there was a great deal of information that this judge could a considered but refused to so or failed to do so well i believe the trial court is going to ultimately be the one that's going to take the evidence i don't believe the b i a is going to look at the evidence or take any additional evidence regarding this issue what do you mean by the trial court well i mean the immigration i lost my track i thought on the question that you just asked him to speak you and i asked you what you want from us you want to remember and for what purpose just the one purpose was this a serious crime or any other issue well the other issues regarding whether or not this is an aggravated felony that's the other issue that i would like the court to address in the remand to address that issue they need to address them and if so would this just be appropriate for we nancy they could address it oh well your honor your question is premised on a few assumptions that that feel that the government feels are in correct right and i'm happy to be educated well you know it's our position first of all that the court does not have jurisdiction to look at the french ask you factors actually there are there are two jurisdictional bars the immediate one that that would pertain most narrowly to a particular serious crime inquiry well it's for example in the end the two cases that the court brought to the parties attention and supplemental briefing those were cases where where the four circuit and the sixth circuit in order to exercise her discretion and you don't look and if that then a legal question that we look at leaving the actual discretion in the course to well to choose among and in the spec circuit case that this court brought to our attention that's exactly what what that court held and and then there's another assumption embedded in the question which that the board did look at all four factors and set out in our supplemental brief even though our position is that you shouldn't look at it if you do the board you that that it seems that they didn't talk about the facts and circumstances of the crime to talk but everything else but that in the decision so where in the decision would you point to well first of all the circumstances are that we're dealing with with a minor i mean that's another argument really that that i'd like to flesh out   also the board pointed to numerous i mean mr of three d is a is a chronic criminal offender and actually when this took place he crime against a minor is even more in the particular serious crime arena so in other words you're saying that because it was a minor and because minors for well your honor again the question really is whether the board's a valuation of that crime is within the realm of a possible construction of the term and as long as it's in that arena i think it was in it that the role of the court is to ensure that the board does not stray from the wide range and other words the outer limits of what the term could mean and surely mr afridi even even in that characterization falls within the realm so you're saying that all of the b i have to do was look at the definition of the crime sexual intercourse with someone under eighteen without looking at other you know other facts and circumstances surrounding what occurred that she may have solicit sorry i thought you were talking about the remove the loaded question now minor that is is that is a seventeen year old a minor or not that is a clear legal question but the french ask you factors talked about nature of conviction and they talked about  dancers they talked about danger to the community those are all the kinds of things that require a way of the evidence and of comparing it to other cases that they see and this court is simply were a ford member rather than a judge your honor and we're looking at this record i let me assure you that the that mr afridi as shown himself to be quite a danger to the community because in addition to to th again the board was locked out what the entitled to look at danger to the community and the circumstances and look at the whole picture but that it is very narrow that it is limited to ensuring that the board does not stray from the wide range in other words from the from the very limits and i'm now also suffer i mean i spared us talked about if the if the then the court could say oh this is a due process of isolation i don't think anybody is there something between a due process violation and the court getting into the detail and if it were mandatory that you consider each one of them wouldn't be a legal question if they considered it not how some of them then there's two parts to that question one you think they're mandatory or are they just sort of among factors to be considered and if they are mandatory then when they give us legal discretion well i think there are there are among factors that should be considered and i know that i don't think that you have jurisdiction to consider to say and i'm glad you brought that to my attention your honor i did not mean to say that the that there was a particular formula that they had to apply all four and in some combination been a better way to to phrase it right questions thank you thank you