yes i would like to reserve two minutes for rebuttal time and also it to the extent that the parties and i submitted additional information quite recently before  patients everyone a problem at all i understand all of a sudden my video stopped working right before we were supposed to know these things happen have strict liability regarding knowledge of the age of the victim is sufficient to render petitioners a conviction and aggravated felony under section one or one a forty three dollars a to do so the court consider the statute structure the agree just innocent the conduct not of the actual conduct but of the least culpable conduct that would cause sustain a conviction under the state statutes and the severity of the immigration consequences and finally turpitude ok yes that's correct so i'd just like to know before you get into your into your argument here if that's the case why isn't this why isn't your argument about the aggravated felony particularly since your client is already has already been removed to guatemala why isn't moot well for  several reasons your honor st of all my client can return to the united states if the court finds that in fact he was not to have been removed he's a lawful permanent resident second of all your honor and i had previously addressed this in my letter brief which i submitted several days ago and that is that st of all the immigration judge in this affirmed in one sense that's a mistake of law and center of doctrine would say that they shouldn't be allowed to stand on that basis even and i don't think that's what judge fisher is asking you if i understand correctly i think what he's asking you is putting aside the fact a client could return there is an order of removal but on two grounds one based on how great a felony status one based on a c i m t and if i understand it's vicious question if he is the c i and t conviction is not challenged then why are we even engaging in a review process there are courts that say if there's an unchallenged ground for removal like in this instance the conviction for c i empty we lack jurisdiction to review the removal  exactly what i was asking and it's seems more clear in the face of the letter that we received just today from from the government and they could really the question is say yes because whether or not they responded has a conviction for a c r you know it's not dispositive of the merits of this case and the respondent is eligible not for discretionary relief but us catch atory mean the should this court find that it's not a particularly serious crime and so therefore the court retains jurisdiction a court the petitioner is not arguing that the respondent is petitioners argument that that only applies when we're discussing to scarcely marry forms of relief this this is an fundamental issue your honor before we even get to that and that is the a mistake of law has and it was not harmless error it was a mistake of law that had absolute consequences because the respond  any excuse me the petitioner does not need to challenge the ca and t ground in order to be eligible for statutorily priest prescribed relief from remov that's a big difference if this is not a particularly serious crime it doesn't matter whether it's a could see i am t your honor he would have been eligible for withholding of remove and withholding of removal under the convention against torture rested on on two grounds aggravated felony slash particularly serious crime and nd c i m t and and what you're saying is ok the c i m t wasn't isn't isn't really before us right now but but what you're saying is we shouldn't resolve that that doesn't change things from your client's perspective because there would be options because by because the egg abated felony has certain consequences immigration consequences that a c m might see a mighty removal does not have my understanding that correctly that is absolutely correct and so so so just can you just carry that maybe a little bit downfield to say i think you said it but i just want to be exactly clear if it's an aggravated felony basis for removal then what options are available that are options that are available d in the c m i t space for vice versa that as the rd circuit has found that it does not have to be an aggregate felony in order to be particularly serious crime he would not be eligible for withholding of removal under the immigration act and withholding of removal under cat convention against torture he would only be removable under the foreign of removal under cat which is a much lower form of relief however both with holding of removal and the federal of removal are not discretionary forms of relief had the immigration judge or the board found that he met the standards he they there is no exercise of discretion he is eligible to stay in the united states and that that's a huge difference and your honor and again you know only i only received ms kemah larry's response yesterday at ten o'clock at night i honestly did not have a chance to respond should you want me to go through a list of federal cases in which someone is a has a ca and decommission and in fact in this case it also has a sexual abuse of a minor  e and i think it's very important your honour's that we get to this issue i would with all due respect to counsel i would say that she raised that argument at the th hour precisely because the government is can't look to restructure anymore that's that's not good law whereas in this case the b a a said no we're still really like a strip of whether or not the court this court or any court of the rd circuit over turns or strip o does not make the petitioners in the federal generic definition of knowledge of age of the victim that the important gift distinction here is that the federal statute at issue that we have been guided to look at parts the relevant parts in this case are that there is an affirmative defense which is subsection c of sexual abuse of a minor and subsection b is the state of proof requirement saying that the government need not show that they're the petitioner responded defended had knowledge of the age of the victim that is missing in the new jersey statute there is no affirmative offense is different from a firm defenses available to a certain offense and so it's interesting to me that the way that the federal statute structure knowledge is and from the defense or lack of knowledge i guess is an affirmative defense but knowledge is not in element and so i guess one thing could we could just say hey it's all part of the process required it would just just throw it all into the mix and it's all part of the truth and it's a generic federal statute and that's it all goes into the suit another option is to say no there's actually division in what we look at as we look at elements and affirmed offenses distinct from elements and therefore the fact that this appears is not from the defense as opposed to an element doesn't matter for purposes the analysis that we're in gauged it so so can you kind of speak to whether you want to put it all into the soup all at once and if you don't then why should we what difference does it matter that one sort of from the defense yes your honor absolutely the cases that i cite actually give a roadmap to answer that very in which the supreme court recently more recently held that statutorily specific requirements are part and parcel of the generic federal definition of the kind of issue we would argue that because it's the affirmative defense actually subsection c rather than subsection d it is part and parcel of the statutory elements in addition range all paris be which if you look at that that case that the court found st of all that because the utah statute was a strict liability offense by primarily addressing the fact that the government does not have to prove that the nothing that he knew the age of the congressional intent and the fact that congress specifically defeat deleted the term knowingly well in this case congress specifically put in the affirmative defense and so so i analysis in terms of whether or not it's and i give it a felony we need to look at the least couple conduct and s q l tells us that right when we're considering and that's very important that's why i laid those detractors out in the beginning because this court has to decide whether or not respondants conviction under the statute is so great just that it falls within sexual abuse of a minor like murder and rape do this sort of analysis certain state crimes have different statute of limitations in certain federal crimes and so when we get into the least capable and now with the least culpable conduct analysis shouldn't we also get into mirroring statute of limitations to make sure that that the state crime doesn't allow you know a longer period of statute of limitations in the federal crime or something along those lines because once we cannot turn a categorical approach on its head by defining the federal to net deficient offense as whatever is illegal under the particular law of the state i think the question is is there a federal  and the issue we're trying to decide is a much narrower one in my opinion it is simply does the new jersey statute is that a categorical match to the federal statute the closest actually that issue and government in that case arguing the opposite position but that had it been in the statute that was the fact it would have been a bit filmy mr ripert we've over state our time with you i just want to make sure i understand you do you agree that under new jersey law there is no obligation to prove a defendant knew the age of the victim yes your honor and if i if i may just wrap up i think  section of the statute called affirmative defense it is and it is an element not an element of the crime and if that's your position that we have a match because in both circumstances we don't have a requirement to prove  that judge if i may in that case i think that's where moncrief comes into play the modified categorical approach which is what the government has  argued applies in this case and the be found in this case so assuming argumenta that the modified categorical approach of life and we're allowed to look beyond the strict statutory construction then we can look to the statute in the judgment of conviction the elements and whether or not it's your position that somehow the elements don't match when they appear to work or are the same crew or non obligation to prove both statutes don't require proof that defend it knew the victims exude there is a match or act that's not completely because and that's my whole argument is that the federal statute allows an affirmative  move along here but i did want to ask miss roy what about what about decisions what relevance does the fact that in tyson and we have courts and nobel all rd circuit precedent decisions that considered similar statutes and similar analyses and really did not refer to restrict pull or a larry for the attorney general the government is happy to answer any questions about sexual abuse of a minor or the aggravated felony but as we pointed out in our answer in briefs and reiterated in our filing yesterday we have and i believe the distress counsel has conceded that there's an end challenge for movability ground and moving to particularly serious crime after the start oh the agency no longer needs to reach aggravated felony in order to decide that a crime or conviction constitutes a particularly serious crime and i do want to clarify this one point in particular is opening brief she said a lack of five applied in this case an agency and that's why we need to reach aggravated felony she doesn't even cite the start however when it was before the immigration judge she requested that the immigration judge conducts the matter of an am case by case analysis for particular serious crime that request is on pages a reply brief to our our answering brief counteracting our points concerning that particular serious crime and that with the case by case analysis his conviction constitutes that so it's our position that the court may not reach aggravated felony that's no longer the law on the circuit and that the agency and i will say the board adopted and affirmed that portion of the immigration judge's decision so that is properly before this panel so i'll tell you why yesterday's letter your honor as we did mention all this on our answering brief there was no reply brief we were answering the court's questions concerning sexual abuse of a minor but we didn't want to come in here without reiterating and alerting the panel to these facts that were raised in our in our finding in terms of case by case certainly deferral of removal is before this court if you we wanted to get into that and again i think that we can stefana on the case by case analysis for the particular serious crime but i believe the aggravated d except if we say it's moved them or leaving that ward or employees would those findings in that water still affect the future immigration possibilities for producing will your honor and reach aggravated felony because the agency did to the case by case with his conduct looking at mitt mitigating factors i believe they looked at the fact that he didn't have a prior conviction record and there's there's a lengthy analysis of that that this court can consider i would also argue it may have been waived and given the opening brief and his case and then look to deferral of removal which is relief that he is and just declined to raise aggravated felony under gallon it's not relevant to the disposition so another frame would be even assuming his conduct is not an aggravated felony your position is he has a conviction that constitutes a c i n t and that the decision that it cost you to particularly serious crime is supported yes therefore denied if you titian that your thought tree that that's correct or so that's a little different than but it's it's a way to deny the petition i mean i mean look this kind of throws it but but but there is that's a grounds to deny that decision because you say look the ultimate outcome supported assume we conclude we still need to examine the impact of this conviction as a potentially designated aggravated felony because of potential consequences your avatar is making the argument that because the issue concerning the lack of a need to prove age is as alive in an affirmative defense in the federal statute it renders it not a categorical match to the state statute please let me know what you a is the framework that the court to look to when determining mens ran for sexual contact contact we argue that it is also the appropriate statute to look for the man's rare for the victim and i  in minors and the court noted criminal statutes aimed at protecting children have long been considered exempt from gen c after presumption and just that is the tenor of all the case law is that federally  only to consider the structure of the twenty of twenty to forty three and sort of where it might appear and how it's been used by our corps in conveyed on the athens proponent but you're also asking us to look at the case law is how it's construed this th statute and by its construction it talks about what must be what must be proved or not proved and it your position that the government cannot prove a knowledge of age and that in a federal statute and if we were applying a state statute the respondent below because he's been deported and so therefore if he has an aggravated felony charge it impacts how how long he must wait outside the united states legally before he can come back into the united states and i don't have the statutory citation at my fingertips right now but i can get it whereas if it's only a c i m d and a sexual abuse of a minor you know child abuse grounds of probability he can come back sooner so whatever this court is decides i would ask that you not just find that it's that it's ok to not regard the issue because it has an clear and specific direct impact on his life regardless fellow yes but the time that he has to remain outside the united states is long how much longer i believe your honor it would be ten years over five years but i would ask the court's permission life nd of all there's nothing in the federal rules that requires a reply brief and my client went back and forth about whether or not he want to continue this case because he was in detention specifically during co times before he got to court and so i was in a difficult position as to whether or not he would continue to draw he has been the ported and he is living in fear of his life right now he is literally hold the not germane to anything other than counsel's point that he is he wants to continue this case which is why there was no reply brief filed at the time but if not require doesn't mean that i've waived issues i did petitioner did discuss at length the issue of particular serious crime in my opening brief as well as below yes the immigration judge didn't do a case by case analysis under in the end we have we argue we did argue that she got that wrong so whether or not and we would further argue that judge darcy used the fact that it was her  mistaken impression that an aggravated felony big sort of per se but particularly serious crime that that colored all of her analysis and the board did nothing to address that but started the of the conduct in the beta is significantly worse than the conduct we have here and that's really important because under ask about the beta you have to consider the of what we're asking we are asking that a gentlemen on a worst case scenario intentionally touched the private parts of the girl he did not know at the beach while they were through the waves through the clothing without any knowledge whatsoever of her age or any content necessarily to to commit sexual abuse of a minor and he continued to maintain his innocence throughout did not take pretrial intervention which would have taken care of this whole issue went to trial was found guilty the supreme court of the state of new jersey found that his criminal attorney committed ineffective assistance of counsel and he set it down for an evidentiary hearing just still pending that is hardly the kind of action in my humble opinion yes it's reprehensible but is it the same this murder must when we're under your president under the supreme court president you must consider the agree just innocent the least culpable conduct the statutory composition of sexual abuse of a minor  wanted to ask my colleagues if they have any further questions before we conclude th ok thank you you can counsel for your arguments in this out slightly unusual way to proceed and your patience as we got it together but it was a pleasure to have both of you in front of us we would like that letter by the close of business say just those citations with the parent that it will that's all we need we print thank you both stay healthy and stay safe you and your family and friends