was sixteen years old and thus he would be eligible for grey here that's a ninth circuit case and another plant also considering whether that case is still good law a lot of a supreme court case called sessions vs the my and so what i wondered was if that other people said screen it is not good law any longer wouldn't matter of there the board had agreed that in my it actually results in an unfair application of the law to give the categorical approach to two forty five one convictions so i think that in fact matter who did not completely do the job this court had set for it to do in deciding the question about  whether that particular crime has the kind of conduct that would be described as inherently  reasonable basis for finding that the holding is correct then we don't we have a certain amount of deference that we have to give to the the b i in the circumstance  recognize that this that a c i m t needs to have this aggravated factor and to forty five it doesn't necessarily encompass that kind of conduct so i think the court should now give difference to you don't think that the use of a deadly weapon is to speculate i think the use of a deadly weapon could be aggravated but it would depend on the relationship but if that's the case and why was the b i's interpretation at least a reasonable one because it leaves the door open to an unfair application of that statute  you know all convictions under that and what is the situation where it would be unfair in that in this situation  the government cannot prove that there is always a domestic relationship involved in a situation where someone is charged with two forty five and in order to disqualify one from cancellation of removal benefits you have to prove that there is a relationship a domestic relationship so in this said he was brought up location of good morning your honour's may have please the court eric macarthur for the responding i will turn momentarily to the question whether section two forty five a one is a categorical crime involving moral turpitude but before i do i do think it is important to emphasize that counsel's presentation to the court this morning did not mention either of the arguments that were the only two arguments that the petitioner presented to the b i a and in his opening brief to discord as to why his two minor and that contention is clearly foreclosed both by this court's binding precedent and by the plain terms of the i and a the only other argument he raised with regard to his assault with a deadly weapon conviction was of that should be treated as a petty offense if you first knock out the petty theft conviction once that premise is taken out and you're counting the petty theft conviction the petty offense exception clearly does not apply because by that by its terms it extends only to an alien who has one c i empty and has issued or has two we do think that the court's merits analysis can and should and there and that the court should not proceed to consider the issue that was raised for the first time petitioners supplemental brief whether california penal code section two forty five a one is a categorical crime involving moral turpitude we believe that issue is forfeited and not properly before the court but if the and the culpability of the mental state here the b i a reasonably and correctly determined as to the conduct that what section two forty five a one requires is an act that by its nature will directly and immediately cause death or great bodily injury and the b i found that that factor was an aggravating factor the heightens the reprehensible of the conduct and clearly distinguishes this offense from simple assault which can be committed mere offense of touching turning then to the mental state to be i e correctly determined that section two forty five a one requires both one an intent to commit the sort of act that i just described and to knowledge of the facts that would cause an ordinary person to appreciate the risk of that conduct and the b i a quoting the california supreme court's decision and williams specifically said this is not an  fense that can be committed to mere negligence or reckless conduct judge gould addressing your question whether if there is no longer good law you should nonetheless defer to the b i is determination and i think that proposition is quite clear from the california supreme court's case law alone i don't think that the a needed to rely on for that proposition and if i could just elaborate a little bit on this distinction between the intent part of the mens rea here and the knowledge because i think that's important to recognize that this offense doesn't fact require two mental states it requires a mental state with regard to the act itself and it requires a mental state with regard to the consequences of the act and the requirement for the act itself is it must be intent and i believe that is why the california supreme court and why the board relying on the california supreme court said this is not an offense that can be committed through recklessness or negligence second the knowledge requirement is somewhat similar to a negligence standard but it is not a pure negligence standard again this was clarified by the california supreme court and the b i a relied on the court's reasoning when the court said this is not a negligent standard because a defendant cannot be convicted based on facts that he did not know but should have known and so what i think the board did here is what it called these building together of elements it looked at the aggravated nature of the conduct and two culpable mental states required the intent to do the violent act and the knowledge of the facts that an ordinary person would recognize pose a serious risk of death or serious bodily injury to another person and then finally the i observe that it was aware of no case and in which section two forty five a one had been applied to conduct that is non trivial judas i believe the supreme court has conduct by by identifying either the facts of his own case or the facts of other cases in which that statute has been applied to non turpitude in this context and a petitioner has not done that here you can't just dream up a situation that's correct what the supreme court said is it requires more than an exercise in legal imagination if there are no further questions and he further questions not only are the banks thank you with their requests that the petition be i would just conclude again the matter of the board recognized the men's wear in time for two forty five a conviction could be outside the generic federal definition any for the questions i thank you the case just argued is submitted for decision