we'll hear argument next in case sixteen fifty four king town of vs sessions mr fisher mr chief justice to may please the court the key statutory term of the i n a in this case is the word abuse and the federal statute criminalizing sexual abuse of a minor as well as the state statutes dealing with the same subject dictate that sexual relations become abuse only on account of age only the younger partner in the activity is younger than sixteen at the very least the federal and state laws that i just mentioned dictate the california statute as well outside of that which congress would have us act i'm sorry mr fisher you just said something that i think you did not say in your brief so let me ask you about that you just gave us your definition of what the generic offense is under sixteen because i understood in your brief you just said whatever the generic offense is it doesn't include  but do you have a definition of what the generic offense is and if so did you just say it justice kagan what we think is that if you want to give a definition for sexual abuse of a minor at least in the context  of the allegation of abuse being due to age that sixteen would be the appropriate cut off and we do say that in our reply brief in response to the government's point that at least it's argument that you need to go further than we argued in our bloop did you have any further views of what the generic offense is are there other elements of the generic offense that you're willing to tell us you think i mean usually in these cases first we did find the generic offense and then we see whether the state statute i think those are four elements and so what we think is enough to decide this case in fact it's more than is necessary to decide this case is to say when dealing with the element of abuse and the allegation is soley because of the ages of the partners in gauging the sexual ations you have abuse then sixteen should be the age of consent now we didn't go that far in parts of our briefing because we don't think the court has to go that far into anus alvarez and other cases are examples where the court has said we'll just look at a particular element and say that as long as the state statute falls outside of that element that's enough so you could decide this case by saying that the seven states that have laws like california has at issue here that draw the age of consent at eighteen automatically fall outside of sexual abuse of a minor and remember even the seven states that have those laws most of them are misdemeanors and only one of those seven states calls that conduct abuse it was suppose that there were no that the why wouldn't this phrase sexual abuse of a minor be a phrase that is sufficiently ambiguous to justify chevron now in order to get around that you have to invoke something like the turn to those one by one in the categorical approach cases starting with taylor when the court has confronted a generic crime without a specific cross reference definition what the court has done is look across the sweep of state laws and federal laws  criminalizing that conduct in a case like perrin where there were forty two states that had a common core definition the court explicitly said in a footnote in that case there's no ambiguity involved in that situation because we assume it's sufficiently clear that that's what congress would have been intending to cover even if i didn't win that i don't think that if we look at this incredible array of state laws it becomes clear what congress intended by sexual abuse of a minor we think yes for two reasons one is because remember justice alito in the very legislation this provision in the ira was and acted congress amended section twenty two forty three of the criminal code that uses precisely the same language sexual abuse of a minor so there is a precise definition in federal criminal law when congress was criminal there were the federal statute is the only one on the books all the other state statutes are different with the federal statute than control i think that we b a harder case justice kennedy what you have to ask in that situation is did you have an explicit or implicit cross references are strong enough reason to believe in that hypothetical that congress was thinking of only the federal version of the crime i think there are strong reasons here to think that for the reasons i was just describing but this is the easy case justice kennedy immigration defend this brief page thirteen positive theory as to why congress may not have included a cross reference here where it did other places and has to do with the jurisdictional nature of the element in the federal crime but even if you set that aside what you have is one canon and you have other canons on the another canon that's very strong to the court's cases that when congress uses the identical phrase multiple places in the same legislation we assume it meant the same thing and so that would be my argument primarily as to why congress here may well have been thinking of section twenty two forty three but as i was just describing to justice kennedy this is the easy case this is the case where section twenty two forty three and the state multi directional survey plus the model penal code lead you to the exact same place so it's enough in this case to say at least with those two things line up it is certainly the case that congress would not have been intending to sweep in a state statute like the one involved here you can leave for another day what might happen in a hypothetical statute like justice kennedy described in on this statute if you had a situation where states covered certain conduct and treated it as abuse that falls outside of section twenty to forty so what do we do with shirk from if we think it's ambiguous so it is not clear if you think i want to make sure i understand the question if you think that the text is not clear for the reasons i've described so far exactly then you were so efficiently unambiguous fair enough to be clear then what i think you would do is have one more set of questions you ask before you ask the traditional chevron reasonless questions and that would be whether a traditional another traditional canon of construction resolves the ambiguity the slows or general acknowledges the page forty two of its brief that other clear statement rules in the courts jurisprudence like the presumption against preemption the presumption against retroactivity come before you get to agency deference likewise here there are two such canons one is the rule of lenity which justice alito mentioned and we think for the reasons in thomson center arms company and more recently in the brahms key case you have a separation of powers problem by deferring on chevron grounds to a statute like this one that applies both in the civil and criminal realm and secondly even if you set that aside and i think that was just as alito is hypothetical then you'd have the the longstanding rule in immigration law which predates chevron by decades that says that deportation statutes if they are ambiguous should be construed in the favor of the nine eleven we've always said though that the rule of lenity or at least most often said that the rule of lenity is something you apply when you've already exhausted the normal tools o statutory interpretation so why is the order of battle the other way around why do you apply the rules lenity before you get to chevron why i think you said more or less the same thing in the chevron context mr chief justice and the two things i would cite to you  first the thompson center arms company case where the court said we have an ambiguous statute and now we're going to turn to lenity not to chevron and the reason why is because in chevron itself the court said you exhaust all traditional canons because you assume congress legislated against those ambiguous vision and the rule of lenity you say well if it's ambiguous you know apply it is strictly used as the government may be arguing but each point in the in the opposite direction based on the same predicate which is a degree of ambiguity in the statutory provision i think that premise is correct and i think there brodsky case from of just a couple of terms ago answers that problem by saying it would be a separation of powers violation to let the executive define criminal statutes remember we have stature to share that if we turn chevron off we have to turn lenity couldn't there be a middle ground between the two another words some space where you say because of this the criminal application of this statute we don't apply ordinary chevron deference but at the same time we don't go straight into the kind of grievous ambiguity that triggers lenity there's some middle area where the court gets to decide just what is it thinks is the best construction of the statute it's hard for me to imagine exactly how that works but i'm happy with the bleeding what also said what he said well you think that ambiguity doesn't necessarily lack of clarity a lack of clear meaning in the allows the court to decide what the best interpretation of the language is so if that were the situation here what i would tell the court is when you do that job as a court you should take into account for any ambiguity the rule against considering deportation statutes against non citizens and more generally what you say i don't really understand that that can and because that can and would suggest that we never give the  never deferred to the i a e a in terms of considering what an aggravated felony is for purposes of deportation and insincere the court said that that can applied in with respect to quote deportation statutes but even if you set that aside and just i more than happy for the court simply to ask what the best reading of the statute is on its own terms could i take you back to the argument that chevron is inappropriate here because the definition applies in both f say there's a and ambiguous phrase in an immigration statute and it applies only in the civil case up only in immigration and has no criminal has no criminal applications civil previously in the civil context goes away i think you see anything odd about having the same phrase interpreted using a different methodology in a civil case and in a criminal case i think it would go away sense for something other than a citation of cases where i would chevron deference be appropriate up to the point where congress decides to use the same phrase in a criminal statute and then it disappears because it would violate the separation of powers pong we talked about chipper as applying to that act and the board's interpretation and said that back for the board to give us a proper reading of the statute or explain its reading how many statutes administrative statutes today don't include a criminal sanction you know one part or in whole almost all of them do so we're with chevron the then i'm not empirically that's correct i think it's more of an unusual situation but here's what i would say about the kinds of cases i think you're thinking of just sort of i over the court hasn't even thought about this issue and the reason why is because in those cases congress has made it a crime to violate a regulation issued by whatever agency has control over that statute so their congress has to find the crime which is violating a regulation but most of the regulations are interpretations of the statute that's right but congress has created the crime of violating the regulation just like of congress says it's a crime to violate a court order and the court issues an order the court is creating criminal law congress did i don't want to hang my whole case on this chevron that it is it but it's why i think people are discussing it and i may have you know you don't have to accept my view my i may be the only one with this view about it and i'm curious to know what you actually think about it you have cases here a law chevron is not the tax code we are not it is not a rule of tax law it is a general kind of standard which has judges asking what congress would have thought about a question they never thought about which is what kind of deference should a court give to an agency interpretation and the answer will vary depending upon statute i would not even give you this lecture were it not for the case that i believe this court wrote this view into the it's opinion in need which i think is pretty good law and so if you're asking the question what would a reasonable legislature think about that question which he never thought of it's surprising to me that he would think prosecutors should have deference as to what the statute that they're prosecuting somebody under means i would find that surprising i would find surprising some aspects of the immigration law where the result is just about as bad result is they leave without any discretion to keep them here and then i would proceed case by case but i'm not asking what i think i already know i want to know what you think what i think and what we're asking for today if the court reached the question is for a very small exception to chevron or carve out to the extent doesn't already exist in the courts law think it already does exist but if it didn't it should and that is where a statute has criminal applications and congress has not delegated to the agency the authority to create crimes through its own regulatory process chevron is off limits it would be very small i'm i'm still having the problem as to why that distinction is meaningful reason i most of the crimes that are reg are set out in regulation almost largely parrot the statutory language and then explain what the agency means and it makes it a crime to violate the regulation which is really the statute so it's a distinction without meaning for me so two things about that situation just a sort of my or the first is if you're just parroting the statutory language you don't need chevron at all and the second answer is if you get to the only thing that matters is where the agency is reading a statute under chevron in a way that is not the better reading and in that situation almost all the exits reading on reason of almost all that's right almost all the examples you're thinking of are ones where congress has delegated authority to create crimes through the regulatory process now you don't have to reach that question this case for all the reasons i started with the statute is unambiguously clear as the question presented in this case the california statute fal far outside of what federal law the sweep of state laws the model penal code to find a sexual abuse of a minor even if you were going to ask the question under the traditional lens of chevron was the b i a analysis reasonable here i think it's helpful to point out a few things first is the b i a in its definition of sexual abuse of a minor look to a different federal statute section thirty five zero nine which is a state which is a section about witness testimony this goes back to the rodriguez rodriguez case in one thousand nine hundred nine this letter general no longer defends that analysis so the core of the b i a s reasoning that led it to where we are today is something that is not being defended anymore in this court so that's the first thing the second thing is the b i a totally ignored the state by state sweep just saying that the lack of a definition isn't enough in the statute itself but that runs directly into the taylor case into doing this all over us and to all the other categorical approach cases where the court has said to to define a generic crime possible answers through multi year sectional survey the first and the easiest answer is that any state statute like california or creating an eighteen age of consent with a minor age differential a very small age differential would be well outside of the mainstream and forty three states do not even criminalize the conduct at issue here let alone make it a serious crime remember we're asking in the end of the day whether something is an aggravated felony not just whether it's criminal and you have an extraordinary case here where this where the government is trying to deport somebody for committing something that isn't even a crime under federal law or the vast majority of states and justice ginsburg a second answer about a multi drug jurisdictional survey if you wanted to give more guidance or felt like the solicitor general's argument that a more comprehensive definition is necessary was correct would be the one i started with when i talked to justice kagan about which would be when you're dealing with an allegation of abuse based on the ages alone that sixteen is the age of consent and that is found in federal law it found in the model penal code it's found in the sweep of state laws and just this is what judge wilkinson did for the fourth circuit in wrangel kasten otto which is side in our briefs and we think that decision is correct even if you did with the solicitor general ask you to do which is ignore all of that and simply pick up black's law dictionary as we've shown in our reply brief you end up in the same place because black's law dictionary when it defines sexual abuse says that it we're talking about illegal sexual activity and to define  illegal you have to ask what the age of consent is and when you look in black logic dictionary for the age of consent in this situation you find the number sixteen so this is again a very easy case for all roads are going to lead you to the same place and you don't have any of the interpret difficulties of the categorical approach that you normally have in fact there's one other way with this is an easier case in almost all categorical approaches cases that you see and that's because the consequences here are so been on the ordinary to ation involves a scenario i think with the court sometimes worried about is that by virtue of the methodology the will there will be some state statutes that are a little bit overbroad and that people who have done some very bad things that the federal law would consider to be aggravated felonies are going to get the benefit of the way the categorical approach works and not be subject to automatic removal but here that problem is taken care of in the state laws like in the states like california that have laws that reach up to eighteen because as we've shown in footnote one of our reply brief all of those states have other statutory provisions that are in line with the federal law or very close to it so really all you are dealing with in this case is a few outliers actually seven outl statutes that go further than the federal law and that have backup provisions they're going to still allow the federal government to seek automatic removal or some other immigration remedy against people that commit sexual offenses against minors remember the corp the core of sexual abuse of a minor i think are things like child molestation and other really horrible things that nobody's even talking about here the only issue in this case is how it applies to offenses like statutory rape and we think working your way up to the federal definition of statutory rape when age alone is the only thing that justifies an allegation of abuse is the right way to resolve that case and not go any further the federal government's definition if i point out one more thing about it it doesn't even track to be i a s the federal government's position at least as i understand it is that any sexual activity that's illegal is sexual abuse of a minor as as long  younger participant is under eighteen so under the federal government's view as i understand it the two states that criminalize sex between two seventeen year olds would constitute an aggravated felony even though only two states do it even though it is not commonly thought of in this country as abuse and even though it is a misdemeanor in both of those situations that's an extraordinary request out of this court and we think goes far far far beyond what congress might have imagined when it was created in sexual abuse  minor subcategory if there are any other questions about the presentation of made thus far i'm happy to answer them otherwise i'd like to reserve the remainder of my time thank you coun mr chief justice and may it please the court congress has charged the attorney general with responsibility to administer the ins to conduct removal proceedings and to render controlling interpretations of the statute within those proceedings in this case the board of immigration appeals exercised that authority in a manner both reasonable and consistent with the statute and for that reason should be afforded deference i think perhaps a good place to begin is where petitioners counsel begin with the idea of multi jurisdictional service first of all by my count there are roughly thirteen cases in which this court under the categorical approach was called upon to define or give meaning to a federal provision so that the categorical approach could be applied to it in only two of those cases taylor and when it's alvarez has the court relied on something that could be compared to a multi jurisdictional survey in all of the other cases the court either didn't look and multi jurisdictional surveys at all or as in johnson basically specifically rejected the relevance of those multi jurisdictional surveys saying that they would shed no light on the central inquiry mr kagan you don't disagree do you with the premise that the first thing that we should do is to define the generic crime is that right that's correct that's what we consider to be step one of the category ok so you say that's step one and then you say well you define the generic in this case you say the generic crime is whatever is illegal under state law that's one of your that's the first argument that we make in our brief so that seems to be like just not what generic crimes are in other words you're just saying well it's whatever the states consider legal when the whole idea of a generic crime is that it's not just anything that is illegal it's the prototypical case even though that differs from what some states do sure a couple responses first of all it's certainly not whatever states make it illegal it still has to have sexual content that's directed at a minor namely someone under the age of eighteen yes but you're carving out one element which is the age element and saying whatever state does so i thought that that was sort of the antithesis of the generic offense approach i think not because what we're dealing here is not one crime what we're dealing here is an umbrella with with is an umbrella term that applies to several different categories of crime and i think it's maybe most analogous to the court's kalar shima case in which the court was interpreting a provision of the ironies aggravated felony definition which didn't have a cross reference offenses involving fraud or de which are sort of a broad category of different types of crimes and to figure out what that means the court did not look to a multi jurisdictional survey it looked to the dictionary to the context of the provision to what it understood to be the purpose of the provision and abuse of a minor a couple couples thoughts about that provision first of all it was adopted more than a decade before the term sexual abuse of a minor was added to the ironies definition of aggravated felony it has been amended a number of times both before and after the amendment that added the aggravated felony of sexual abuse of a minor and the congress simply did not do what it did in a number of other provisions which is to include a cross reference so if anything i think the inference is that it did to testify in court and seems a lot less in twenty to forty three so i don't i don't think it's accurate to characterize the board's decision as treating that as the definition and i think if you look at the board's opinion what it said is that is a pretty common sense definition for the type of activity that might be covered but it didn't otherwise rely on it and the board's decision below relied instead on a practical construction of the word abuse the sort of intuition that there are certain types of activity that even though they are ostensibly consensual nevertheless they contain the potential for harm or risk because of something about the relationship between the parties involved either the ages of the parties involved or because there's a familial relationship for instance parent child or there is a relationship of authority or trust something like a student teacher and what it said is when there is a meaningful age difference such that the perpetrator and victim are not in the same age group as a result of that the victim may not be able to advocate for themselves they may not be able to protect themselves against certain risks things like pregnancy or sexually transmitted diseases and that was the case is an eighteen year old in the same age as  one i don't think we're dealing with eighteen year olds i think in all instances we're talking about people under the age of eighteen what the boy said really like of a freshman in college going out with a junior in college sometimes it is true that sometimes there are seventeen year olds who are in college that's certainly not the typical instance i think to a certain extent we're dealing with an a little of arbitrariness no matter where you draw the line but if you draw the line as the federal offense does you essentially statutes in almost all of the fifty states because first of all there are nineteen states that set the age of consent either at eighteen or at seventeen so you'd be ruling that them out and most of the remaining ones said the age differential at something less than congress passed a long immigration statute which is this all over no one hundred forty three which lists about thirty or forty crimes and it says if the person has committed one of those good bye and the attorney general can't stop  it right it's right with this one caveat which is that the definition of aggravated felony actually came much earlier and has been amended on about what happened at that time is they stuck in the words sexual abuse that's correct ok sexual abuse of a minor and then it has a definition so why not think that when they use the same word to do about the same thing list a crime they meant to pick including deceit rape murder a whole bunch even this is that you don't use cross reference even petitioner does not claim that sexual abuse of a minor is defined entirely by the bounds of the federal provision and they couldn't because it would lead to some absurd results for instance almost all states now as they did in one thousand nine hundred six have statutes dealing with of sexual offenses that are offenses because of familial relationship or relationship of trust or authority such as student teacher plus state laws so at the least and i write that you can see that you can't win unless chevron applies is that correct no certainly not you think it's an ambiguous this kind of pragmatic construction about what did you say like power differentials no no no i'm sorry i didn't mean to suggest that we would win because it's unambiguous that it means only the government's first argument the point is simply that if you're going to interpret the words that congress wrote the interpretation that we put forward we think is a much more meaningful one than the one that petitioners put forward to the extent of even offer any i guess i don't understand that you're saying that it would be that clearly better read than to go to say notwithstanding the federal statute notwithstanding third plus state statutes notwithstanding the model penal code we just know that when somebody talks about sexual abuse of a minor they're talking about age eighteen with a three year differential so i think i would just step back to say that when this court is giving content to the federal provision of the first step of the categor pops eighteen plus a thirty year differential i see so now you're asking about the boards looking at as opposed to looking at thirty plus states the model puno code and the federal statute which all define it differently sure so first with respect to all the different state laws even in the two cases under the categorical approach where this court has looked to multi jurisdictional surveys it did not apply petitioners methodology in other words it did not ask in taylor whether second degree burglary under missouri law would have been criminal under the penal codes of fifty different states and i think sec state surveys can be relevant only in so far as you think that they will tell you something about the words that congress you mean this quest for the  generic offense of sexual abuse of a minor seems to me to be a meaningless quest there's no there there it's not like burglary where it's like there's a common law definition you've got some who are this is a phrase that doesn't have a common law counterpart and if you look at all the state statutes and throw in all the federal statutes that you can find that have some relation to this what you have is a a big or rare a a very disparate statute so this seems to me like a classic example of congress saying we have this category sexual abuse of a minor and we know that there's all this or ray of state laws and so you attorney general define what should be within this for immigration purposes we agree with that justice alito before we turn to issues of chevron and deference in general i'd like to just identify him can i say that i think you disagree with two parts of that because the first thing you said to me was that you agree that the first thing that has to be done is to define a generic offense justice alito was suggested than in this case we shouldn't do that at all so you disagree there and then justice alito said in this case you just have to think like what a think about this but you said to make even without deference you win so so you're taken a very different view than justice alito as you're saying that what the b a a interpretation was is the best  understanding of the generic offense so maybe the best way to answer that question is to describe what the government thinks is the relationship between the two arguments that we make in the brief the term sexual abuse of a minor would naturally support the interpretation that we offer in the first section of our brief to cover all sexual activity directed at a minor under the age of eighteen years old however the board has chosen a more modest interpretation based on a practical construction of the word abuse and because the board exercises the attorney general's authority to interpret and give meaning to the statute because it chose a definition that is both reasonable and consistent with the statute this court should defer because that is what congress wanted and so you are first of all before the board the board has recognized that lenity can come into play but it is conceived of it in the same limited way that this court house namely that you don't apply lenity simply because the statute can be read in more than one way you apply it only when after trying everything else you simply have to throw up your hands because you cannot figure out what congress wanted there is a grievous ambiguity that simply cannot be resolved secular you necessarily apply share of run before you apply the rule i think i think  that you do but i think there is still work for lenity to do even after applying chevron certainly if the board has spoken to the precise question at issue then i think it would be hard for you to be left at the end of the day after giving that deference with a grievous ambiguity but often agencies speak only to a related question or feel only part of a statutory great gap in which case after giving appropriate deference to that answer you would still possibly be left with a different aspect of the problem th you simply cannot resolve in which case lenity would apply but we don't think it makes sense to apply lenity at the first step of the counter at the first step of chevron because at that step the court is asking or the words sufficiently clear that there's really only one way to read them and it doesn't make sense to apply a tie breaking canon that says you only come into play at the end of the process after you simply cannot figure out what the words mean at all and certainly this court has never applied lenity in that way first that i can understand chevron in the context of an agency that has special expertise in regulating the environment or the forest service or fisheries or nuclear power why does the ins have any expertise in determining the meaning of  criminal that are so first of all justice kennedy i think it's important to orient ourselves around the fact that this is a civil statute that's being applied in a civil context but i do agree with your point that it's not as if the agency can read a dictionary or look at legislative history any better than any other and any court certainly and that's true of agencies generally but when agencies give meaning to a statute they bring to bear practical wisdom and experience in ways that are important and for instance in this case the board of immigration appeals first of all decided that because there are so many so much variation among the different state offenses that are involved here it made sense to apply an incremental approach to engaging case by case adjudication rather than trying to cover the waterfront of any better position to make that determination of the american bar association or the four service so i think that the board exercises delegated authority from the attorney general who is administering the scheme in an administrative capacity and i think to a certain extent talking about chevron deference while accurate is actually a little bit misleading because often when we're talking about chevron we're talking about the concept that when congress gives an agency the power to engage in rule making or formal adjudication we basically assume that that power comes along with the ability to interpret the statute but it's a bit implicit what he's saying i think with the question is is this there are many agencies security that have statutes that are incredibly detailed and have to do rather directly with how this program is being administered sure and they see some words over here in part one on page three thousand eight hundred sixty and they know but we wouldn't know that if you interpret it one way rather than another it's going to be much harder to do the thing so as a practical matter that they have over there on page eight hundred and forty two all right they'll know that we won't know for sure but you've just listed things that we seem to be able to know just as well as so just as prior one thing to keep in mind is that the aggravated felony definition is a spine that runs throughout the ins and determines a whole range of administrative consequences not merely whether it's a person is removable but whether they're eligible for instance for cancellation of remov detention consequences voluntary departure readmission and in this case we're dealing with a delegation of interpretive authority that is not merely implicit in the sort of general sense and i haven't talked about it but an expressed provision eight u s c eleven zero three subsection a which says that the attorney general not only gets to conduct removal proceedings but gets to render interpretations in those proceedings that are quote controlling and this court has relied in cases like  make a third was or third i want to know so if there was a third it might have been that a sixteen year age of consent and for your age differential would disqualify statutes from most states certainly all of the states that a higher age of consent but a number of the other states as well if i could return just briefly to basically the questions i've gotten about whether this statute seems to be a bit of an outlier and why not just rule out this statute i think there are a few really serious problems with that the first is that it would leave very patchy and meagre coverage because most state statutes are not continuous meaning that they don't have one provision for thirteen year old minors a different one for fourteen year old minors and so on and so forth they tend to clump them into age ranges and arizona is a good example of this arizona has one provision that covers minors ages fifteen and up a different provision that covers minors fourteen and below if this court were to say that the fifteen and up provision is disqualified because it applies to sixteen and seventeen year olds or because it has a two year age differential that would leave only the fourteen and below provision which means that a fifteen year old minor would get no coverage regardless of the age of the perpetrator and it's not alone there are other state statutes that are just like that includes a reasonable mistake of age defense that most states don't have i think it's also actually quite difficult to determine what is or isn't an outlier first of all because state statutes differ on a range of different categories simultaneously we focus on four of them the age of the victim the perpetrator the age differential and the offense conduct but again there is a mens rea requirement that some states have and other states don't some require an element of sexual gratification that other states do not moreover it's difficult enough when you're talking about current state statutes you have to go to all of the criminal go through all of the criminal code of alabama arkansas arizona and so on and so forth and that's difficult because states don't label these crimes the same way but it's possible because all states currently put those online but as petitioner has conceded we're talking about state codes as they existed in one nine hundred ninety six which means to do that you really have to go to the statute books and petitioner himself for all his talk about first argument that the government makes it's the term is not just abusive it's sexual abuse which has its own definition under the dictionary in its own understood meaning a or illegal sexual conduct usually and the word minor added to this statutory provision sort of reinforces that we're just talking about minors here so in addition to the problems that i just been discussing with this multi jurisdictional survey and looking for outliers it would also pull the cord into a number of very difficult line drawing problems for instance what's the right numerical threshold is it fifty percent two thirds three quarters something else you also have to figure out how to deal with state populations seems somewhat anomalous to treat wyoming statute exactly the same as california's even though california statute applies to more than fifty times the population you also have to figure out how to deal with defense is the element of sexual gratification that some states have and other things so mr kind of mr fisher said and i just want to make sure that this is right that you no longer rely on the statute that to be relied on is that correct i think i think the itself relied on it only in a very general way if you read the decision bill if so the answer is no so what what what do you rely on what are the sources that you rely on to generate this definition because you're not relying on the federal statute you're not relying on the most common state statutes you're not relying on the other federal statute that to be relied on what are you remind on to generate this definition so we treat this as an ordinary  one that is but you're not using by a parent guardian relative or acquaintance is that right no that's not right it doesn't apply in this case because we're dealing with a subset of those offenses just dealing with someone who's a different age but we would also think that it applies ok anything else dictionary definition what else we point to legislative history which is relatively sparse but i think strongly indicates that congress wanted to get a lot tougher on crimes involving children and to context in which other i any provisions talk about minors as being people under the age of eighteen but it would do those so we say two of them in the in this in our brief i don't have the citations and my fingertips there are provisions dealing with different things but they both said what was in my original ones one deals with the rights of child witnesses the other is a rule for calculating the duration of unlawful presence that's right the two those are two so those two which really have nothing to do with the generic meaning of sexual abuse of a minor that's every single dictionary definition and some legislative history that even you indicate a sparse i think that's accurate but if the court engages in ordinary tools of statutory interpretation those are the sources that usually it's relying on it doesn't usually rely on either your understanding anything other than if a stranger does anything to a minor other than commit a rape then that would not be sexual abuse of a minor because the person would be a relative or an acquaintance i'm not i'm not sure i understand what your definition was it had to be relative parent relative or quaint yes is that right i think those are probably what it targets i'm not sure that but i would say that if if if i could turn to the question of deference in this case i think petitioner often raises separation of powers concerns but doesn't actually explain why those come into play in this instance and i think let me give you the sort of doctrinal response of the government has and then the sort of more general response the nearer doctrinal response is that for more than one hundred years this court has upheld the statutory schemes that impose criminal consequences on decisions that are made by administrative agencies now it may be that there are concerns under that about notice or concerns about delegation concerns but petitioner himself obviously has no notice problems here given that we're talking about a core administration in the civil scheme and that any criminal conduct that he might engage in in the future he would have a very clear notice that his prior state offense was an aggravated felony perhaps there would be someone in some hypothetical case who engaged in this court dealt with a provision covering offenses involving fraud or deceit it may be that there are certain of those offenses that apply to in one state that don't apply in another state and that's just a feature of the categorical approach i also think there are a number of features of this case that distinguish it from maybe some of the more problematic criminal applications that the court might have in mind first of all we're talking about a core and a provision so if you're talking about which is the tail and which is the dog in this case the civil application is very much the dog it is applied civilly thousands of times a year the number of applications in the criminal context is vanishingly small second of all second of all we're talking here about an explicit delegation of interpretive authority which is actually quite rare it is rare that congress says that an agency explicitly gets to render controlling interpretations of the statute furthermore we're talking about only instances of further culpable conduct it is not a violation of the board decision alone that gets you into criminal trouble you have to engage in further conduct and that conduct has its own culpability and finally all of the potential criminal consequences that we're talking about these three statutes are ones that come for people who are trying to violate and frustrate the civil scheme so section twelve fifty three talks about people who were ordered to be removed but refused to comply section thirteen twenty six talks about people who have been removed but then try illegally to reenter the country and thirteen twenty seven applies to people who try and illegally assist others who are entering the country and so they're all directed at frustration of the core civil scheme so that would be another way to distinguish this case from other more problematic instances finally i think part of what the court is reacting to again is the idea that drawing a line is very difficult and it's something that will be a little bit arbitrary no matter what i think that's a strong reason to defer to the board because administrative agencies are actually quite good at drawing these sorts of lines and converse lee they're sort of problematic for courts to do it and there's a layer of political accountability that comes along when an agency does it because if the agency puts the long the line in the wrong place if they make it too strenuous too or too lenient then they can be held accountable for that if the court has no further questions thank you counsel mr fisher seven minutes thank you like to cover criticizing multichannel surveys because that's precisely the pros the government asked this court to adopt and when it's all over us in the court did unanimously like if i could just read one sentence of that opinion because it's not just a multi jurisdiction analysis but it's conducting it in the precise manner we asked the court to conduct it here the court says a page one ninety one to succeed when it's all over us must show something special about california's version of the statute that was a theft statute that criminalizes conduct that other states would not consider illegal that's the question the court posed at the government's behest and answered in tweet us all over us and that's the question we asked the court to ask an answer here today and for good reason you don't just you need to have something that's replicable and objective when you confront a provision that doesn't have an express definition imagine the person in his lawyers office saying show i plead guilty to this crime or the other crime which one's going to render me deportable you can't imagine a defendant slowly or conducting his to dia duties and having to imagine what the b i m might come up with when it surveys family planning journals from twenty years ago when imagines the kinds of things this is their general was describing and so there are good instrumental reasons for using multi drug surveys finally if you did end up in the situation the sr gen would like you to believe exists here but we think doesn't but if there were a situation where you just had a scatterplot among the states and it were too difficult to find any common core what you would do in that situation is what the ninth circuit in and leading opinion by judge kozinski did in a case called anderson which is revert back to the federal statute defining that federal offense the crime itself where congress acted like a criminal lawmaker and said here's what we want to come second as to the topic of ruling out some state statutes depending on what rule the court would adopt here we say for the reasons in footnote one of our reply brief that you actually don't have a serious problem with over inclusiveness because yes there are some particular state laws that are going to get  rendered not aggravated felonies all of those states have laws dealing with sixteen year old or seven or fifteen year old ages of consent or slightly younger so you're still going to get the people that congress most wanted the law to apply to and just take an example like georgia it has a law making it a crime for anyone to have sex with somebody who's under sixteen with no age differential at all even if you wanted to pick up that age differential in section twenty two forty three it still would be a problem in that state because georgia has a second law making it a felony as opposed to a misdemeanor when there's a for your age differential so you find this time and again in the state laws that you don't have a serious problem with consequences next this or general talked about section twenty two forty three if you do adopt that definition and leaving out things like familial abuse or abuse of authority and the like now we agree our position is that you don't have to answer that question i think in all candor that is the hard case it's the one that falls outside of section twenty two forty three and the reason why you don't necessarily have to choose in this case but there would be good reason to choose section twenty two forty three is because the structure of the b i a i'm sorry the structure of the eye in any has other provisions that make other things to portable offenses most notably child abuse or crimes against moral so the familial abuse like my friend here is describing would be picked up in a separate subsection of the i n a so you don't have to worry about that consequence either and then finally as to statutory construction  and the rule of lenity first i'd say you don't have to reach that difficult question about how chevron in the rule of lenity interact when it comes to hybrid statutes i think if i understood other side's argument all it's down to is a black's law  dictionary citation primarily and and even that has its problems for the reasons justice alito pointed out when to deal with people who are not acquaintances and secondly because even that provision itself uses the word illegal and to make the word illegal have meaning as just as kagan points out you need to do you turn to a different page of black's law dictionary to find out when sex is illegal based on age and it tells you that sixteen is the age of consent so even black's law dictionary leads to where we would have the court go so the be id's interpretation cannot possibly be reasonable but if you did want to address or need to address the question of how chevron and the rule of lenity interact  at the end of the day this is for general has to be arguing one of two things to this court either their position has to be that statutes can be chameleons and mean one thing in criminal side and a different thing in the civil side and that would be in the teeth of many of this court cases or they have to be arguing that the b i a has the power to constrict to considerable i'm sorry to control what a statute means not just in civil settings but in criminal settings and that would be a dramatic departure from anything in the court has ever held at least where congress hasn't delegated that power expressly to the agency to control not only civil applications but also the scope of criminal law if there's a problem with that if you're troubled by that consequence remember congress can always draft two separate statutes at the end of the day it's congress's choice whether to have a statute apply in both settings i think it's reasonable can to conclude that if congress has a statute applying in both settings it wants it first of all to mean the same thing and second of all it doesn't intend the agency to have power over  that particular provision if the court has any questions about our approach or about what i've said i'm happy to answer them otherwise i'll submit the case thank you counsel the case is submitted