convicted of stalking under a california code that that defines the offense as following or harassing and making a credible threat such that would put a person in fear for his or her safety the those are the basic elements of the offense that there is an intent element the intense being in making a credible threat and the following and harassing is also done willfully knowingly i guess what it no no and really that the issue is here what is the minimum conduct necessary to complete this crime because we look at by law we look at not what the ultimate possibility might be in one case or even ten cases or one hundred cases but we look and act either what does the statute say on its face are the elements of this offense and if the statutes it a natural element of the offense will carry over to sixteen b and it will carry over even if it's sixteen a inquiry into a modified categorical approach the ninth circuit has many many cases which you're citing my brief  which i'm sure you're aware in which the court has been very very clear on the question is not when we go to the modified categorical approach the question is not is there any possible set of fact any documents that indicate elements from which we flew there is a substantial risk that force may be used and the only l the only documents in this record  and minute order that just basically states that the defendant in that case pledged to the count with which which later became the basis for the order for the notice to appear and an abstract of judgment which this court has also called into question on several occasions it is consistent with the middle order it's simply recites that mr malta was convicted under the california code six forty six point nine amended felony complaint and the amended felony complaint simply recites the language of the statute it basically just says he did maliciously and repeatedly follow and harassed this person and make a credible threat with the intent statute is the story of the stalking of steven spielberg in which mr spielberg and his family were in europe and five thousand miles back here in california a stalker by the name of mr norman was you know leaped over the fence and they called the police and he's under arrest and later in the prosecution of this man mr norman in the california courts the courts found that being told by your attorney in other words once removed from the stalker actually making the credible threat to you but just receiving it through your attorney when you're geographically five thousand miles away and nothing could happen she would immediately and you know  to meet the elements following harassing and placing him in making a credible threat that places somebody in fear mr norman repeated this behavior again and made a threat towards mr spielberg when  was in jail so the court once again found him to have violated the statute when it wasn't a question of geographic proximity but that of physical impossibility he was behind bars and yet california criminal statute is so incredibly low that in a case like that there is absolutely no risk that there could be physical force used to accomplish the crime if you can send a letter while you are behind bars therefore position is that without specific information in this record indicating that mr malta actually did make a threat jump out of the bushes right in somebody's face which there  evidence of that he wasn't charged with that it wasn't alleged all that's been charged is that he was to ransom and this particular statute contemplates the harassing being done and the stalking  electronically and many of the the state cases talk in terms of the fact that that in fact the stalker can make the threats i'm running out of my time i should and because i do want to save at least one second for five time than it's even receive to page one twenty six of the ministry of record and also doing the commissioner of the crime which he was convicted he cut the telephone line of the victim language of eighteen u s c sixteen the it looks we determine whether or not there substantial risk of physical force being used when you add up the facts in this case supported by the indictment and the other charging documents appeals in which the board has actually violated its own precedents in saying that we know this is the board speaking saying we know that this is a crime of violence because it was committed by somebody who had previously been the subject of a restraining order it is checks local law that in construing an offense to determine whether it's an aggravated felony the board is not to look at what the person does did could have john might have been thinking about doing but what was the offense of which he was convicted as determined by the record of conviction and that's before this court now and what is before this court now is a minute order that recites that the individual was convicted of stalking under six forty six point nine be abstracted conviction that says the same and an amended fel but i guess i would address the issue you're raising about the the followed or harassed or followed and harassed and i would basically say that it's a distinction without a difference and here's the reason why number one what's really before this court right now is only review of the board's order as you know and what the board found was they act in fact in the record only showed that he had harass the board made but that's the decision that you're reviewing is a decision they're finding that mr maule harassed and since he was harassing under the conditions of having a restraining order and because this is a argument that's different than what the board found and the government is arguing that the charge was quality and harassed and so and in fact he pled guilty to that i can't disagree with that that's what the record says to me but that's not what the agency so i think the main point that's actually more important because as i addressed in my brief if you think about what in the conduct of following and what is the conduct harassing i think if you're concerned about physical proximity where there could be a confrontation it seems to me more likely that a finding a following would have more of a substantial risk although i wouldn't call it substantial because one can fall from a car one can follow with with binoculars one can certainly follow in the sense that steven spielberg was followed all the way over in europe so you know i think the main point here is that this decision by the board of immigration appeals which was issued as a precedent is basically looking not at what this person was convicted of but what did he do and it's not even based on evidence of what he did it's based on the board's imagination of what he did so with that i would state that i hope the court will find that void erred in making this ruling