agency wrongly found his convictions to be aggravated felonies in doing so the board of immigration appeals failed to apply the guidance of the supreme court's decision in the sessions regarding the contours of the sexual abuse of a minor aggravated felony ground a these convictions do not constitute aggravated felonies because the new york statutes do not require a heightened men's rights cover conduct following outside the federal generic offense or both the be i made three serious errors  this court should reverse st and generally the b a refused to acknowledge any effect of the supreme court's decision in us which really analyzed this aggravated felony ground in critical ways that changed the result in this case nd the b i fail to acknowledge that a aggravated felony of this type requires a heightened mens rea which this circuit had already noted before s q l cantona in and has refused to give any definition of what level of sexual abuse of a minor aggravated felony rather than as the supreme court directs to use traditional tools of statutory construction and the far more relevant criminal statute at eighteen u s c two thousand two hundred and forty three dollars to properly limit the conduct th sources of guidance that the supreme court used to find that the question in that case was not ambiguous and that there was no need for chevron deference to even be considered the other the st tool that the supreme court said to use is simple a statutory construction to look at the context of this phrase in the eye and they and the u s code to see that it was put as an aggravated felony that was it was put together with rape and murder to show how serious this offense needs to be an importantly to note that that two thousand two hundred and forty three was the same phrase in the u s code and that it had been amended into the u s code at the same time that sexual abuse of a minor was added into the ins and so right it's not a complete guide and i think that that refers mostly to the supreme court wanting to reserve for another day the issue of whether there needs to be a certain age differential between the parties that question was not reached there and it's not presented in this petition we think that that statute still continues to be a very important source of guidance it's really the only source of guidance that's been proffered in this case as to the core issue of whether there should be mens rea a in this very serious immigration ground since the days answer to that question is basically not to answer the question covers conduct so broad in the new york sexual contact definition that this court had previously expressed concern in james even casey and flora's beholder that that was not a sexual use of a minor offense even even using definition so the universe of state statutes that cover sexual conduct and they have a cover a very wide array of conduct and mens rea the statute in each has a knowing mens rea and the court in specifically talks about how that's necessary uses the word  stringent to say that that's necessary to this ground the one part of that i think doesn't survive is just simply the difference to the be a definition i actually think that doesn't even need to come into play here because using the tools of statutory construction and the court can reach the mens rea issue without without dealing with the bia its definition which simply refuses to answer the question what are you doing with yes your honor i think this court's decision in magali largely cannot survive on a for several reasons the holding plainly doesn't survive because he deals with a statute with that covers people right sixteen but i think it's much more than that because the grant of deference can't must use traditional tools of statutory construction and respectfully the magali panel doesn't explain why the statute is ambiguous and it does something that the supreme court rejects which is simply to say well because you know it's not it's not defined in the u s code and then jumps to the grant of deference supreme court in s q l can thomas specifically notes that it's not the phrase is not specifically defined and then goes on to apply those tools to find that it's not ambiguous and it's not an aggravated felony so we ask you to good morning your honor may please of course eric anderson representing the attorney general mr acevedo has two new york state convictions for sexual abuse of children and the issue is whether there's any realistic probability that new york punishes conduct under these probability of a conviction forming outside the federal definition and to start with the federal generic definition this court should use that provided by the board of immigration appeals in matter of rodriguez treated is both because it merits deference and because this court has already deferred to it so in one thousand nine hundred and six congress added sexual abuse of a minor to the list of aggravated felonies in the immigration and nationality act notably it did not pick the name of common sense it did not provide a cross reference to another federal section in the federal code and it did so at the time where it was an acting other penalties immigration three for good reasons st of all two thousand two hundred and forty three is limited to crimes involving touching or contact that excluded the most heinous kind of lewd and lascivious displays it excluded offenses where the victim was under the age of twelve it excluded abusive conduct that is made abusive by this statute defining a relationship to a family member or to a person in trust or  tarna does not provide any reason to revisit that difference as just one issue and it did so on the basis of chevron's step one when you have a state offense defined solely by the age of the participants state sexual offense defined slowly by the age of the participants the victim must be under the age of sixteen it did not get to any issue of and thirty five three thousand nine hundred and five looks like a nice definition even though comes from a kind of procedural statute but the fact that we deferred in some cases we have a different statute before us we required by those cases to defer to that interpretation in the context of this case i'm just not sure what the whether there really binding on this case well you are  at the last step where you're analyzing whether a state offense falls under it that would be different it's not binding to that effect but i do think when you're depressed you decide you're deferring to that definition th n you're kind of saying well all these problems like mens rea and all that stuff away because they're not in that definition is that what you're saying yes and your honor i mean guideline and not a true definition they have addressed that your honor except for the fact that mr acevedo's two convictions both involve intentional conduct and there for me any standard yeah there's well there's different mens mens rea as to knowing what you're doing mens rea as to knowing how old the victim is right well if you're if you're skipping that he's committing a sexual act or something like that wasn't a mistake and he may know he's doing this but he has to know the age that's a different kind of mens rea if you're looking at the mistake of age issue then if you write out state statutes that don't provide from the state of age you're writing out the majority of state statutory rape offenses we know that in one thousand nine hundred and ninety seven it was the vast majority of states penalized statutory rape without providing for a mistake of age difference  and and it's the same reason that the board to conclude that excludes too many congress would not have wanted to have to want to exclude these kind of contacts years old having oral or you know sexual conduct with an individual under the age of fifteen to age fourteen or younger notably new york has provided a significant defense to this when they increased the age of the victim from thirteen to fourteen in the year two thousand and they created a they created offense where there is a difference of less than four years between the perpetrator and victim which given the other age limits we're dealing with and all their fourteen year old and someone who has just turned eighteen and new york has said not only is that a defense you don't even need to be mistaken about the age this is a defense under our law and it is not and it's shown to be an outlier in this case where the majority that involves certain contact for the purpose of sexual gratification not simply describing the effect on the participant but scribing a purpose and requiring the state to demonstrate purpose  their victims i think it was at least sixteen or maybe sixteen and seventeen year olds it was not confronted with a situation in which you're dealing with sexual gratification and the victim who is thirteen years old or younger and sure there's no reasonable probability that new york penalizes conduct under these statutes that falls outside the definition of sexual abuse of a minor think your eyes briefly to the extent that the government suggests that two thousand two hundred and forty three is a narrow statute it's not it's been amended and i think you don't have to take my word for it the supreme court says that it's relevant we think that it's a superior source of guidance array element it's certainly not heighten men's riots mark into negligence if anything this court can still find that that statute is overbroad because of the sexual contact definition so each statute has more than one way that it's overbroad we're asking don't is removable he had other grounds of remove ability we are only disputing whether he's removable for an aggravated felony which we think is simply the in line with the hierarchy of immigration consequences that congress intended to impose on federal and state offenses and if and if he secures relief the relief that you're seeking for him he would be eligible for cancellation of removal as to those other grounds in my understanding the immigration law correctly yes your honor the other grounds o child abuse or neglect and we're not disputing those we think that that is exactly in line with the idea that there's a universe of offenses and that some of them have more serious consequences than others these statutes because of their lack of mens rea and because the nd one is additionally overbroad as to either the government's definition or or what we think is the proper federal offense are not aggravated felonies and so do not trip those hard harsh consequences for that reason we're asking you to reach those issues as legal issues and re main for further proceedings thank you so thank you both