in two thousand and fourteen this court indicated that it will not give due deference or the board decided the elements of a particular crime section in matter of will that's exactly what the court did the board did the board indicated that the reason that took the position that it's not primarily because in order for this particular time agree that the st issue we need to get past is whether or not matter of who is entitle to chevron deference correct so you don't contest the if have find that it's entitle to chevron deference you don't contest that matter of who is properly applied to your case even though it had not been decided and not been relied upon by the board in your case well right if this if this court determines that under several on the board should be given to deference then obviously i wanted to quite a complication but based on my analysis i don't believe that to be the case the board the board who clearly looked at the elements of the statute and by doing so if we then read and reapply several nurses holzer this particular court clearly indicated that the be a lacks the expertise to be able to identify the elements of the crime so that's the case are you contending that right so at the moment that the board begins to interpret the elements of the crime that's fine they can do that but it then allows this court to essentially reanalyze whether they did a correctly because are you saying they did it incorrectly i think so yes i think that what's your argument well they declared that the mens rea a requirement for penal code section two hundred and forty five was specific intent and i don't believe that's the case at all whatsoever in our  particular case if you look at the original brief filed by the government the opening brief it clearly indicates the elements of what took place we have an individual who was drastically in dramatically under the influence of alcohol proceeded to drive  looters and say that the board believe that this offense to forty five dollars a one involves a specific intent mental state it would be on my page eleven i'm not sure and including being criminally criminally negligent which is the case we have in order for you to be convicted of penal code section two hundred and forty five dollars under a reckless application you have to be aware of what took place i know on page eleven the language you've read there they're just setting out not unlike the way we did and surround the kind of differing polls on the one hand when an assault statute they're basically saying has specific intent that would be one thing conversely we have held that an assault statute prohibiting a perpetrator from causing injury to another with criminal negligence does not try and so they're kind of saying specific intent negligence broadly describe where it this statute falls on page fourteen i don't see the specific intent language it but even to that degree let's assume that it is below specific intent and if it's right above criminal negligence there at must if that is the case there must be something in there then where the individual that committed the offense was aware what was taking place right there has to be an awareness for recklessness there's got to be awareness and if you go higher than that there must be intent or some sort of awareness that was taking place in this particular situation that couldn't be the case because by the very facts of the underlying facts of gave rise to the condition precisely right so so in woo they went straight for categorical we don't even see modified in there so they go straight for categorical and they say this such this case this particular cold session on its face certitude and i agree with you i think they should have gone to the modified but they didn't they were straight for the top and at the top on its face they apparently agree that it's supposed to be a crime of water but i don't think that's the case i think for us to get there we may have to go deeper now in my case that may be the situation maybe the facts lend themselves to that but then go to that situation go that far and so i still take the position that on its face you know section two  based on the way it's written and based on the requirements of the mental state right cruel negligence and above it's not possible for it to be categorically a crime of all more severe just to much it's overbroad all sorts of different acts can fit in there and that's fine have the mental state and if it's criminal negligence and then you attach an aggravating a factor of some sort then yes it could be elevated but then it begs the question then is that categorically a c i n t or is it modified i think it should be modified because then you're looking at the fishery the guts of the case which is fine i do not disagree with the modified approach but i totally disagree with the categorical application it's a very blunt statement and it's a blanket application and i don't think that should be the case but if we're going to look  should look forward but i would say i read this they're saying categorically it's a crime involving more moral turpitude because it's got an elevated scienter it's not quite at the top of an elevated scienter and elevated aggravating factor in the underlying conduct and the combination of those two is what makes it the test in sarong is so why is that wrong categor and forty five dollars does not linda still to that there is nothing in the statute that's written there that allows it to have so many aggravating factors in fact one of the portions that it says or an instrument i mean what is that interment it could be almost any in a paper clip so if it's a it's automatically going to be launched has to be deadly well not necessarily the in the the end result must be that but not the instrument is a fairly for the aggravating factor is what exactly i get that there's a result and i get that there's an act but there has to be something in the middle that links these two things together and there's a lot in the middle it's a very fat middle in all sorts of things fit in that middle and that's the probably applies to both weapon and instrument replacement you instruments what are those  know something sharp and i'm just holding it it's not deadly if i thought i had somebody space it possibly could be but that's the problem it's a very broad application and that's my concern with it whether war was wrong or right we st have to look at chevron to determine chevron the st thing the st step is whether the particular statute is ambiguous or doesn't fit the exact so then why can't chevron difference be applied to it by the but the administrative agency because in soroti holder which is this court case the court clearly said the be a lacks the expertise in identifying the for the government i don't understand the petitioners theory it seems to be that any time the board discusses state cases or the elements of the offense  applying the categorical approach to determine whether or not an offense is a crime involving moral turpitude it's gone wrong that's that can't make sense i mean the thing is the board can look at the specific statute the specific elements in this and said that these elements rise to the level of a crime of all the moral turpitude that what we've got here is a general intent offense which the the the california supreme court said was the case in williams having to do with what mere knowledge of the facts that would lead a reasonable person to determine what the end result would be right the the risk of harm to another individual  and then said look this is this is not normatively different than a pure recklessness statute that we have found previously to constitute a crime involving moral turpitude that that is completely within the agenc if the board so if the board can't do that if the paired board can't evaluate the elements then how is it supposed to engage in the crime of all the moral turpitude determination at all even elements that have been set forth already by the court and that the board of immigration appeals except in any case this statute here and the board reasonably found that the statute here meets the level of crime  turpitude that is it has a reprehensible conduct and that is the the likely impact right the the likelihood of great bodily injury which is substantial or severe injury to intentionally committing a violent act i mean it's that's the way it's been described as been described by this court of aliens been described by this court in determining whether this is a crime of violence that that is the mental state and it reasonably found that it's just posing counsel which is is there any obstacle to applying matter of woo in this case even though it was not reached or applied by no your honor the board's decision a matter supplied supersedes the decision that came before and even if it didn't matter if we would make it futile to send that because matter of who has as decided categorically what the offense is is there any daylight between the b i's decision in this case a matter of decision and i can grab it over there seems a little different in its terms than matter if we would have to go back and think through because i've been thinking about will but i do remember there being some differences between the decisions yes that the rationals and the two were entirely the i don't believe there is i mean it's a different take i would say that the board's focus in this decision was on people the williams language having to do with the fact that this statute doesn't involve criminal negligence or mere recklessness but does have a general intent component and it relied on that to say that brings it above the threshold for said to be a crime involving culture with the aggravating along with the ira like right with  in the decision but that is correct your honor absolutely but beyond that there's no there's no reason to think it's any different than to move think it's any different than when any significant fashion and the government concedes that the  element of chevron the judge may was asking about is that this is big yes yes your honor and in fact this court found that answer on and that's part of the reason why it sent back to the board this court has no furthe questions the government or us i suppose the only real we should we means that the government keeps relying on this issue of recklessness and i agree that the recklessness does lend itself more to me to determine whether something is a c i n t but when it comes to recklessness under williams and several other cases there has to be some actual awareness and that's where we start were gets really complicated because at that point we're really looking at the person's mental state and the men's rail involved in this particular crimes and in williams they made it clear that for this particular code section it c be done without any specific attack obviously and that it doesn't even require the offender to perceive the injury that's going to occur as in my opinion substantially under recklessness i mean that's pretty clear that it's criminal negligence i don't