comes before the court after the board of immigration appeals concurred with the immigration judge in pre term meeting petitioners application for the cancellation of a rule for non legal permanent residents it's our position that the board of immigration appeals erred in finding that the brassicas false reporting statute is categorically a crime involving moral turpitude the nd position that we want to address today in light of the decision and period  bar that the board of immigration appeals should remand with instructions to give the petition the opportunity to clear the record concerning this two thousand and seven false reporting conviction the most recent line to going talk about one of the two convictions in this case right crypto again ok so the two thousand and seven is the one that we're not concerned about in this case right it's possible that we are concerned about it depending on the analysis of the false report of the statute because it's possible that if a subsection was violated that's not a crime of all in worlds or that he would only have one conviction for a crime of all the moral turpitude and therefore the petty offenses exception would apply in this case but st we need to elements and see if there's a realistic probability that one could violate this statute and violate the statue without committing an act that's a bass viol or to pray ved or contrary to the accepted rules of morality and the duties of between persons or society in general if we look at the statute and realize that there's multiple ways that one could violate the statute this is it's considered a divisible statute and therefore we need to go forward with the modified categorical approach it's our position that the nebraska false reporting statute is not categorically a crime of moral turpitude and what i believe the government has wrong in the b s a has wrong here is that no one did a thoughtful analysis of each subsection of the nebraska false reporting statute to decide if there if one could violate the statute without committing a crime involving moral turpitude we go forward with all the subsections of of the false reporting statute in the one so section we're concerned about here is the furnishing false information to a peace officer with an intent to instigate or impede a criminal matter it's not disputed that that was the subsection that the petitioner violated in the two thousand and nine dollars conviction for false reporting however we need to decide if categorically this that we need to make between fraud different types of fraud i don't believe all fraud is created equal the why in a case is that the government sites in their brief have to do with deceiving and fraud however deceive deceiving deceiving and fraud in their cases everyone is gaining some type of benefit for for lyme i'm not saying that that you're honest if you're if you're convicted of fal reporting but you're not gaining any peculiarly benefit you're not hurting others for example the v a tour of the holder case that the government cites refers to an iowa statute for records tampering in that statute it includes an intent to injure someone that does that is absent in the false reporting statute went to realistic scenario in which you think a person violates the statute without officer not because you want to injure someone but because maybe you're scared a lot of people a lot of immigrants the united states raid they want to go home to their wife and kids and i had there they may have been dishonest in providing a false name but they were just hoping to go home to their wife and kids that night i don't believe that's morally praver or revile act and i believe that there's a realistic probability and the false reporting statute here in nebraska that one could you can also look at the kashima beholder case and that's a tax evasion case of the government sites and i think that's distinguishable as well because clearly you're gaining up canary benefit at the expense of the government and none of that none none of that type of reward or or injury is occurring in all circumstances of the nebraska statute for false reporting most importantly i believe that this court presidential decision is a is the same realistic probability standard or analysis that we need to to have here today considering this statute because it's involved in an attempt to mislead the police not necessarily deceive them for a particular area benefit or to see them to injure another person and one thing that i believe that the be i has wrong here in the immigration judge has wrong here is that clearly this is a just the visible statute and therefore a thoughtful analysis needs to be to needs to be made for can i turn to a different issue the and i'm going to ask government counsel about this as well that is i understand the government's position in this case there are really only arguing one offense  footnote in their brief and now it is discussed in more detail in the reply but what's your position about the petty offense acception as i understand the statute says if the offense carries a punishment more of more than one year and this is exactly one year is the maximum sentence what's your position on that statute or on that exception well in this case it's kind of interesting because there's two convictions and i guess if the court decides that this is categorically a crime involving more turpitude than you would have two convictions for a crime or more attributes that turpitude so the offense exception wouldn't apply to this case however if this court deems that you can violate the statute with non moral turpitude this conduct then than a thoughtful analysis needs to be made and like you i could say maybe i should be asking the government bought this but i don't see that's how they're out of the government's argument the case is i understand the government's only arguing one conviction maybe if there was a remain and they'd order they'd argue too but at this point they're only arguing one conviction honor the reason why they're only arguing one conviction is because if they don't win on this argument that it's categorically a crime over moral turpitude then remained is necessary to decide whether  another subsection was violated if they don't win on their categorical approach argument then it's possible that one of the convictions is not a crime involving moral certainty so that i thought you just said if one then the exception doesn't apply because it's a are i guess you're right that the win on both but with the period if they went to was said that if they win on one conviction the petty offense exception not apply is that your position if it's if they only prove that they only went on one of the two then the petty offense acception does or does not apply does apply if they are convicted of  i think the morse most important question that needs to be answered is is whether or not the false reporting statute in nebraska is categorically a crime involving more than i was in my question can you address the question is the argument waived because you didn't brief it and number two if it's not waived why would it apply in the scenario that you're describing with only one qualifying conviction i believe in light of the period of decision conviction but it doesn't label exactly which subsection the person violated in this court found that they without more presidential decision they couldn't speculate as to which sub section the petitioner respond in that case violated and that it's their burden the petitioners burden to show that which exact subsection of they violated now the issue that's raised there is that when an immigration judge preterm it's a application for cancellation of removal for nonpayment residence they don't get necessarily give the respond in that case where the petitioner now an opportunity to clear the record as to what exact subsection they violated and so my nd issue in this matter is that i believe in the light of the period  that something needs to be done to inform or or correct the record at the stage where the immigration judge preacher mitt the application because if it's the person's burden to show which subsection they violated then they need to be given an opportunity to clear the record and that clearly was not the case if you got them if you got the immigration court level and the immigration judge preterm it's your application for relief you don't get an opportunity to supplement the record and also you don't get an opportunity at the be a level to add more documents to the record so i believe that in light of that decision it's an issue of st impression i believe that something needs to be done if it's there indeed their burden to show which subsection they violated that be given the opportunity to clear the record at the at the at the base level where the immigration judge pre term if the application you're in your good morning your honor dan levin on behalf of the united states judge collen judge malloy judge sheppard may please this court the only issue on appeal today is whether adam hernandez has met his burden to show that he is eligible for the discretionary relief cancellation ball and i'd like to make two preliminary points and then i'd like to address the so called petty offense exception whether applies which was the subject of judges collins and noise question so st adam a hernandez needs to be convicted of only one crime involving mor other statutory provisions and nd adam a hernandez can't meet his burden of showing that he has the requisite good moral character under eight u s c one thousand two hundred and twenty nine b one b and that's because of his criminal conviction history i mean hernandez has two  convictions for duis he also has two convictions for false statements under nebraska law now in terms of what's in dispute what's not in dispute is that one of those convictions and that both convictions were guilty pleas in the year two thousand and nine  the cancellation of the move a context that opinion dealt with nebraska's criminal in person ation statute and the opinion went through and said the record was not clear as to which subsection of that divisible statute the alien petitioner was convicted opinion focused very heavily on the fact that the statute issue in that case had the obstruction of justice intent standard which judge loken found to be very amorphous in vague and not typical of the types of intent that you see often  in crimes that are found to be turpitude inus nd the burden in that case was on the government the issue in that case was remove ability in the st instance the issue in this case is in the cancellation of removal context the burden for each and every element on the show that they are in fact eligible for cancellation of removal and what why would boba dia have lost if the burden more on him i think that was clear from judge locums majority opinion as he cites the burden is being is being significant i understand that once we're in the crime involving moral turpitude context we're looking at the law at issue but i do think the burden is significant especially in light of the per parader and i know that we're dealing specifically with twenty eight  a peace officer and the specific intent relates to either to instigate the investigation of a new criminal matter or to impede the ongoing investigation of a criminal matter and that is much more significant on the breadth of conduct briefly your honor judge loken describe a situation where someone could potentially give a false name to a police officer and then immediately sort of attract and say no my name is actually i think that the twenty eight  makes clear that it's not just casually giving a false name to a police officer not an amorphous standard if you were to be convicted and a false name could the government concedes be a type of materially false information that's proffered to a peace officer but in that instance it would have to be with a specific intent to impede a criminal investigation well let's say you get pulled over and you give a false name so they can pursue you for  filing the immigration criminal statutes the criminal immigration statue if you proffer a false name with a specific intent to deceive a peace officer with it and you know about the ongoing criminal matter i would i would say that so called petty offenses yes i'm sure you have eight minutes short while part of that quickly so it wasn't raised in the opening brief your honor and you're correct that we only sort of noted it in a footnote that some eight circuit cases suggest that the offense must be only cross referencing the offenses it's not incorporating by reference the rest of the immigration provisions at issue otherwise it would be nonsensical so what does eleven a do to apply to what kind of what is what is the purpose of  and two has a requirement in the immigration context for determining remove ability in the st instance which is why you only incorporate by reference the offense is listed under that it must be within five years of the dative admission that's another argument it's raised st in  there not the rest of the immigration provisions that have to do with remove ability in the st instance so i think that that hopefully addresses your honour's concern that if if if the one thousand one hundred and eighty two exception did apply does a statute that has as its maximum penalty one year fall within the petit exception i wouldn't can see that it applies i because i think that the government st little question wasn't whether it applies the question was assuming it does apply  question i think there are cases that suggest both ways on that mention the up at least a year requirement some that meant that don't mention it it's an open question whether you're required to have a conviction of at least one year max penalty adam hernandez can't meet the requisite good showing showing of good moral character under one thousand two hundred and twenty nine dollars b one b now i'd submit the analysis on this point is not as thorough as the immigration judges analysis on this point but the immigrat cited both b one b and b one c on page three of the administrative record for reasons why adam a hernandez was not eligible for discretionary relief and the immigration judge went further and said that the crime for which he was convicted under opinion was in a different context but in terms of defining fraud the mole on opinion looked to the dictionary and looked at common law principles and said fraud is involving trickery to see especially when it involves a misrepresentation the act criminal investigation or instigating a new one now in terms of whether the issue the harm is economical or not i i don't find that persuasive in the context of wasting government resources and potentially potentially creating a public safety service providers subsection c this is knowingly furnishing false information regarding the need for assistance to the fire department fire department personnel and subsection d deals with bomb threats its knowingly furnishing false information regarding location of an thank you your honors thank you for your argument mr later the bottom line in this case is that the government needs to convince the court that the intent to impede a criminal investigation is somehow different than the intent to obstruct justice in the bo video case and i don't believe they can we don't even need to get to the petty offense argument and waste the course time and figuring that out i believe that this case is decided on the fact that the false reporting statute is analogous to the realistic probability scenario in the boba da decision because the same realistic probability scenarios that realistic probability scenario for each one of the subsections however the government nor the we're going to ration appeals nor the immigration judge a thoughtful analysis for each of the subsections when they're required to do so if this is somehow analogous to the cases that they cited would be a tour of the holder and co washing the holder where there is clearly an intent to injure someone in the v a tour of the holder and an intent to course counsel are excused