redress for two sets of clear legal errors that occurred that occurred before the board and before the immigration judge number one that the criminal statute that led to the petitioner being placed in proceedings is not negative felony number two that there was insufficient legal standards used and apply in deciding the petitioner is claimed for protection under the convention against torture which implicates serious due process concerns let's begin with criminal sexual conduct and the sexual abuse of a minor so there are three reasons why criminal sexual conduct in the th degree in michigan is not an aggravated felony number one after asking not in two thousand and seventeen the supreme court strongly hinted that in another section of federal law sexual abuse of a minor so why should we find it for that i guess is the short sharp except that's a great that's a great question your honor so we did address this back in the underlying the st round before the immigration judge and that's found secondly we did raise divisibility we raised what was considered abuse or not abuse both with the underlying immigration judge and then when the porn addressed divisibility back in its st decision what do you think it seems like a case to suggest but exhaustion might be jurisdictional do you have a view on whether the supreme court has in recent years both lower courts have been labeling everything jurisdiction when in fact it's not  just a claims processing rule do you have a view on whether exhaustion of administrative review remedies the statutory provision creates a jurisdictional limitation on our review so i don't i don't have a case on point for that your honor i would i do allege that we that we have maintained that this is not yet been exhausted and that the claim was not the claim was still right for review because it was cited in the  immigration court case and then raised the be a send back down to the to the lower immigration court sent again to the b i eight and then we're bringing it here so kind of that claim remained right throughout the entire course of the litigation so  in regard to that the nd point the minimum conduct under the michigan statute is broader than the generic federal definition for sexual abuse of a minor relying on two thousand two hundred and forty three dollars which means under the match to see if the conduct is greater than what the generic federal definition applies and we argue again that there is no match and so therefore it would not be an aggravated felony and then the rd basis is the the evolving federal definition of sexual abuse of a minor which is not defined anywhere in the immigration and naturalization act requires knowledge and there is no mens rea at the federal definition for the crime  dollars refers to sexual abuse and then it says oh can include sexually explicit conduct and then it says oh sexually explicit conduct can recruit can refer to sexual contact where as tw one knowingly gaging to the sexual act with another person three who is between twelve and fifteen years of age and number four with at least a four year age differential so if we apply we go back and apply the michigan criminal sexual conduct in the th degree to that that the generic federal definition under criminal law of what sexual abuse of a minor is we see that in michigan the minimum conduct requires number one and intentional touching of a genital growing in the breast or clothing number two touching done for a sexual purpose or reasonably construed to be done for sexual purpose and number thirty one dollars of every be developments such as an age differential would still be to commit the michigan act by offensive touching through clothing whereas under the federal statute two thousand two hundred and forty three touching through clothing is actually not  offense of indecency with a child and in that decision the court said this there's not enough here for it to be sexual abuse of a minor in a twenty to forty three so we need something broader and it applied to thirty and looked at three thousand five hundred and nine if you if i may i'm going to return that the petitioner to an impossible evidentiary standard for proof of similar situated or rockey women who are torture upon deportation number two they fail to consider and address in writing all bases upon which the petitioner could be tortured and the three they read and misapplied manner of at j f f for more than it stands for before these errors the board and or the immigration judge would have seen that it is more likely than not that the petitioner would be tortured upon return to iraq so we're getting the impossible evidentiary standard it is a almost no women who have been deported to iraq and so similar to tron versus the two thousand and six case which focused on a vietnamese man of ethnic chinese origin who the board required to prove similarly situated  persons being tortured upon return to vietnam this court's determined that it was essentially impossible burden and if it is due process rights to point to to require him to prove a nonevent next i want to address one of the concerns raised by strengths thank you and her per curiam stay of removal for our client granted this august who stated that in that it was not clear enough that the board or the immigration judge fully considered her claims independently so nowhere in the three page board decision from september th does the board analyze independently her non prostitution based immutable traits for fear and torture it does not really consider that she's a christian convert that she's western that she's a perceived lesbian that she's a felon that she's a trafficking victim in no thesis factors but mentioning a fear just based on a trait alone is not the same thing as analyzing how to respond to our  the court's acceptance of kind of the in the aggregate approach but i think that you corey is different from the petitioner here in chicago the court actually did examine them did examine kind of the independent factors and compain them together  student specifically that fear of torture at the hands of the p m s in the iraqi government is too speculative in this case neither the board nor the immigration judge analyzed independent bases separately let alone together so it just stated these are factors and then nowhere in the decisions either in the board decision from september two thousand and eight through or the immigration judge's decision from april two thousand and eighteen does it actually focus and provid this for why each of those factors why she would not more likely than not be tortured on them independently work in the aggregate has been refined by the supreme court for crimes such as this where the sexual offense prescribe based solely on the ages of the participants and for that they narrowly looked at a definition of minor and for a definition of minor for a crime like say this statutory conviction doesn't qualify under the agur of aggravated felony statue why wasn't that enough to exhaust why do they have to allege specific arguments in support of that general  i think they're just argue divisibility and they're appropriate to the board and what they're now trying to argue is challenges the definition itself of sexual abuse for minor and that is something this court previously held before supreme court decision that the claims i have to st exhausted for the board because a board gets an opportunity to say what the definition of sexual abuse is or to minors what's true for told us is that the board was wrong in what the minor is for these types of crimes a minor now is someone under sixteen for these types of crimes that's all that supreme court did meanwhile what this court did leading up to escalating time and its decision as washington it granted deference to the board's term mission the broader determination of what constitutes sexual that would eliminate statutory rape crimes from definition of sex abuse of minors so they clearly believe that the th circuit has believed that and so that's essentially it's record of same stature a crimes definitely do have a part in this definition so you can accept that kind of argument that would potentially so even trying to import that element into this definition of sex abuse a minor which again has to be exhausted if you're claiming that this definition has new elements the board has to perch addressed that but it's not even a properly made argument because it's not in fact exhausted as well do you think the exhaustion requirement is a jurisdictional requirement meaning that if we have no authority to waive it on equitable grounds i would argue it is jurisdictional because when these from courts looked at claims processing rules versus jurisdictional rules the difference i've seen this involves the knolls which is a two thousand and seven case it discusses how when there is a time in prison or a limit rooted in congressional statute that's not waiver or that's not subject actual remedies that's unpublished disposition we think the force also get deference on how to define cat classes purely regulatory creature but keeping that as law the case in security didn't have benefited from our the board did not but th still found it properly applied the law regardless because what the board edges and did which is these are very parallel claims here it was someone claiming i possess pichler traits that are going to get me arrested at the baghdad airport and then that's going to result in my torture and the traits were christianity they were a felony conviction and the westernization was another the trades and security and the board's opinion and the i just opinion both cited those factors and found those aren't going to get you rest of the airport based on the evidence you presented and then looked at the interdependent links in the chain which this court explained matters if it works together with this human of risk assessment for independent why should we say that those are independent because each of them  p record cites in front of me but it talks about these factors and then it goes to production macdonald the expert testimony and states looking at these factors you present to these proxy factors they don't nothing shows that any of these factors are going to get you arrested at the airport so they didn't consider that you didn't use the magic words cumulatively because also they did have the benefit kamar yet or discourse adoption kamar badly the looked at these all these factors together and basically said zero equals zero  jennifer these factors which are not readily apparent to a rescue because of one of these factors and the rd link in the chain is that to have to detain you and then subject you to harm that rises to the level of torture and the immigration judge very fulsome decision where they went over the state department courts and chose to credit the absence of evidence and state department which had a whole section on the societal discrimination and if you so women would not make any mention of the claims of proffering and credit that more heavily than i'd like to donal's testimony petitioner is trying to challenge this case is trying to get through back and acknowledge test one way to more heavily just the only evidence you really had otherwise the documentary evidence on her side was a few media articles discussing the killing of prostitutes  baghdad but the title of one of the articles is who is killing these prostitutes there's no answer in the articles we don't know who it's purely speculative it was the iraqi government one hand or forces or just a rogue force that we don't know they don't support the fact that iraqi government is torturing prostitutes much less arresting them at the airport so i think the board properly assessed this claim that look at these factors just found there was no evidence that he's factors even together would lead to arrest the it was just like security that was five states specifically they contended miss mcdonald agrees that response arrival at the airport alone will put the partners at risk she explained that because respondent is a felon under criminal code to ninety one she could be sent to jail however the court finds that respondents arguments are pretty principally based on speculation about what could theoretically happen however there is no concrete evidence that establishes a direct threat of torture against iraqi women similarly situated to respondent as defined for purposes of  cat relief or to respond specifically this goes to the impossible evidentiary standard which i raised earlier and that it's responded to is on the petitioner was unable to prove to similar situated persons because no such person had been deported to iraq period and the judge the immigration judge says yes it was speculation of course all this is speculation according to someone who has know endured past persecution in iraq the reason she's likely to experience torture more likely than not to be tortured in iraq is based on circumstances that arose after she came to the united states so under the board decision matter of these you know when there is an objective chevron the supreme court has to my knowledge and the nd never recorded chevron deference to the b ira or to board courts interpretations of aggravated felonies i can find no case where actually  opposing counsel statement that limited wouldn't apply anyway so i actually think that lenny does apply and that's similar to judge sutton's concurrence in the th circuit version of  in time where he said it's similar to the sherman argument but basically that the statute should be applied most favorably to to to the respondent to the petitioner rights and not have the greatest adverse when we have a choice we have a reasonable choice of approach of defining an aggravated felony provision and congress has not indicated which of the reasonable approaches it prefers when there is an absence we are constrained which is what the board said to apply that which least impinges upon the availability of relief from a movable so while in this case the petitioner could still be sent to removal proceedings for you know another you know for this crime sessions which is the th circuit case it said that there is a two year requirement that the age difference should not be more than two years in one day and if we were to look actually at michigan criminal sexual conduct in the rd degree  there is actually not an age differential required so therefore if a person you know if if an individual who is fifteen years old is a victim and the perpetrator is seven you know is sixteen and a half or seventeen that person could not be considered an aggravated felony because there is more than a two year if there's less than a two year age differential between those ages and that c