well here the first case on calendar rubano vs sessions petitioners position are resolved by the recent supreme court decision in s q l contaminant the first issue is whether or not mr moran knows conviction for connecticut violation of risk of injury to a minor though it's not clear what it did the analysis for what purposes but let me let you continue with your argument absolutely thank you on the second point is that the whether or not the petitioners conviction again for risk of injury qualifies as a crime of child abuse neglect or abandoned meant as that is defined and again as the bill can time is very relevant on this position and the last issue is whether or not the immigration court in the board erred in determining that mr reiner was subject to the particularly serious crime bar and therefore precluded him from additional other relief getting  ground i would only apply if there's an aggravated felony however if there's you know an aggravated felony your crime of child abuse proceedings would just be terminated because mr minor was a lawful permanent resident he would in that sense receive back his green card  movable and the only grounds of removal ledge here were that he has an aggravated felony crime of sexual abuse and that he has or alternatively that he has a crime of child abuse neglect or abandoned meant if we find it is neither of those then proceedings would have to be terminated we never get to the issue of is he eligible for asylum or is he precluded because the particularly serious crime are and that's really the heart of our issue and we believe he has his the best case to keep his green card again under  relevant here and again issued subsequent to the board's decision in this case directly impacts the sexual abuse designation in this case because that is what a skill can tunnel looked at but it similarly relates to arguments about whether or not this is a crime of child abuse neglect or abandonment and i can get to each of those points in turn as to the first ground is this a crime an aggravated felony crime of sexual abuse of a minor the supreme court told us this is indeed a very broad definition and ever ejected the six courts chevron deference to the board  said no what we can do here is just look at the clear statutory language that we apply the normal rules of statutory interpretation sexual abuse of a minor in that case they focused a lot on this issue of the minor but they also talked about the fact that sexual abuse has to be sexual acts and it has to be very egregious similar to rape and murder and these other words that are used in that portion of the day we don't have that here at the connecticut statute fifty three dash twenty one for risk of injury to a minor in connecticut includes all various types of conduct that do not necessarily include sexual acts so it's it can risk the language says  threaten the health of such child confront and threaten the life or limb just very clear from the statutory language that other actions apart from sexual acts are included in connecticut school of injury to a minor stuff like leaving them too long at the school bus stop  exactly that's exactly right your honor and i think again under as the supreme court has instructed us under the strip strict application of the categorical prochoice as they found in s q l can tie into this is not a conviction for sexual abuse of a minor when we move to the next portion therefore if he does not have an aggravated felony sexual abuse of a minor we removal that were alleged which is the separate grounds where someone can be removed or charged with removal under eight us seed twelve twenty seven eight two for a crime of child abuse  the supreme court again instructed that we look at the ordinary language and definition of these terms and even if the board's interpretation is broad it's not so broad as to be limitless they're sort of guideposts here on what can and can't qualify as a as these certain crimes importantly in s q l contend the supreme court did not apply the civil statutes that the board has used in its decisions matter of summer a matter of alaska which is what the government have really relies on the matter of certain matter of alaska's the board used the federal civil definition of sexual abuse to decide what is relevant here and the supreme court said no it's not these civil definitions we need to look at the criminal definitions of sexual abuse they're different and they have different contexts and i think that's very important because that is what makes the matter of storm a matter of alaska's no longer relevant after the s q l kitana decision of the supreme court also importantly in that in that respect that's the reason why flores verse holder from this court is no longer relevant florence first holder relied very extensively on the story and matter of alaska's decisions from the board which is now under the supreme court's sixteen for purposes of statutory rape but it's not apparent that it expressed that it moved beyond that context to reject the generic federal definition of child sexual abuse of a minor in all instances is is there something you see in the union that does that no you are correct your honor i did not go on to reject the entire generic definition but again as to that respected to tell us sexual abuse has to sexual acts and when we look at the connecticut statute it includes much more type of conduct beyond just sexual acts and furthermore your honour's we would point out that and therefore i think the supreme court would disagree with this court's analysis also in florence first holder it's clear that the connecticut statute in so far as that allows different conduct is not divisible because as i understand the record there's no question that what you're climbing did this case sexual abuse and he served eight years where he was given an eight year sentence for it which is quite severe why would your honor this court has routinely emphasized as a supreme court that the underlying facts of the case are not what is relevant if it's if it's an indivisible stack even if it was so to get to your honor's in question we don't believe that it's an entirely it is a defensible statute so i should clarify what i mean by that fifty fifty three dash twenty one in and of itself is divisible into subsections a and b and subsection a is divided into a one a two a three that that part is divisible sections a one a two and three are different crimes we look at the record of conviction we known mr want to know was convicted under fifty three to twenty one a one however subsection a one is not further divisible subsection eight one itself includes lots of different conduct that qualify for a conviction under a woman and know all of that conduct meets the definition of sexual abuse or child abuse properly found as a matter of discretion that he was convicted of a particularly serious crime and because petitioner did not argue any of any issue related to the agency's denial of his captive for a claim in his opening three for four the score in there for crime both on the grounds that it was a right it was an eight year sentence it was a crime committed on a vulnerable person and a child in this case it was a crime of a sexual nature  all of these these issues contributed to it being a discretionary particularly serious crime even in the event that this court were to find that it was not an aggravated felony found that the exhaustion requirement is mandatory and but to the extent that this court is going to assert jurisdiction and it was a proper finding and so i can i can defend that if it's mandatory but it's not  offense involving the intentional knowing reckless or criminally negligent act or a mission that constitutes maltreatment of a child or that harms the child's well being physically or mentally even in the event that there is not an actual injury so long as the likelihood of the injury is sufficiently high now here it's undisputed the petitioner was convicted of violating connecticut general sachi fifty three dollars twenty one a one which prescribes willfully or on lawfully causing or permitting a be placed in a situation where his life or limb is endangered or where his health or his morals are likely to be in danger or doing any action likely to impair the health or morals of a child now cannot kids courts have clarified e vague that there that there have to be certain requirements that the state must prove in order to achieve a conviction under the act from the first when dealing with acts injurious to a child's morals it must that the defendant must have touched the private parts of a child under age sixteen in a sexual or indecent manner and if it would be this case yes in this case that is the problem that the petitioner did plead guilty to i will mention that that's only relevant to the finding that he was convicted of an aggravated felony because the agency actually found that this was a categorical match to two that a crime of child abuse neglect and abandonment felony yes the only acts that could be prosecuted under the part of the statute to which he pled guilty are deliberate touching of a child intimate parts for sexual or and he said purpose  but just to go back to that to the child abuse finding for a second all of the elements of petitioners statute of conviction do fall under the elements of the generic definition of child abuse neglect or abandonment first it so that does fall under the mens rea requirement in the generic definition second this actually requires that the defendant gange in conduct that constitutes maltreatment of a child whether or not the conduct is directly directed at a child when an adult is placing a child in a situation where he is likely to be injured he was either blatantly abused or or sexually abused or he was placed in a situation where his life or limb however they applied the modified categorical approach only when determining whether or not he was convicted of a of an aggravated felony sexual abuse of a minor so the divisibility of the statute only matters in that context in this context the entire statute constitutes both the sexual contact and sexual conduct all of that is prosecuted under the entire statute matches the generic definition e takes care of removal of a then he applied he saw on both the grounds that it's not exhausted and it's correct in any event so those are your two arguments yes as and he's ineligible for withholding of removal if he was convicted of a particularly serious crime and the agency can get to a finding that someone is convicted of a particularly serious crime in two different ways either the per se way which requires the aggravated felony plus the five year sentence or just as a matter of discretion and and as a matter of discretion the sorts of things that there is that the agency is required to be looking at our circumstances underlying the commission of the crime the nature of the crime itself and the sentence imposed and in this court the agency properly examined all of those factors determined that this was a sexual crime committed against a vulnerable member of society and it carried an eight year sentence therefore it was a particularly serious crime as a matter of discretion even if it weren't sexual abuse of a minor conviction to the elements of sexual abuse of a minor first given that the statute requires that the age of the victim be under sixteen this statute does match that general the definition of sexual abuse of a minor  such that sexual activity would not be considered abusive and so here where the statute necessarily is only having the victim be under age sixteen it comports with with the supreme court's precedent their second  the minimum mens rea or apartment of this of this crime is generally intent to commit the crime and while this court hasn't specifically i see are running out of time but i will just mention that this court hasn't found him removable for an aggravated felony do i understand you to be suggesting that no even the considered aggravated felony of what i'll call the cancellation step and that  grounds for his removal is child abuse and that is yeah i and i understand the confusion there because i agree that the board was not clear as far as what they were exactly whole thing with with respect to that but what they do say is that they're up holding the immigration judge's decision on that point so when the with the immigration judge found was petitioners removable based on his categorical crime of child abuse he was  said those decisions and not but the board does the board actually specifically says that there upholding the aggravated felony finding the finding that it was an aggravated felony on the on the grounds that the immigration judge provided in his decision so then you have to go to gratian judge's decision to find out that he's actually only talking about whether or not this person is eligible for relief based on that i created felony finding so there's no finding by the board that he's removable based on his to think you're just as to this first issue that was raised about whether prior counsel best preserved these issues for exhaustion i would just point out that the second circuit has held as i think your honor was alluding to that felony sexual abuse of a minor and then the supreme court subsequently issued this new decision i think because it's an issue of law is is appropriately before the court ok i understand that it's not the aggravated felony that there's the concern that you  did the i a e a did extensively addressed both of these issues so whether or not the petitioner may be best preserved it before the lower court the board did extensively look at these so and in some sense it has been preserved and  idea of whether or not impairing the morals of a child requires deliberate touching so on and so forth i would just put your honour's back to the statutory language that is not in there in the statutory language it does not define this issue of comparing the health and morals of the child dead later of volved through some supreme court case law but again i believe through some excuse me connecticut case law that the supreme court again has directed us to look to the clear statutory language if there is not where perhaps the mathis decision of the supreme court would be relevant because we would that need to look at well what are the actual elements that a jury is required to to determine so it would be determined in part by what the state of by connecticut's courts sure as construed by the connecticut's courts your honor but i think the important part of their analysis again is that if we're going to then take that as part of the definition and if we are going to apply matter absorbed in the board's decisions even though i don't believe that's west can time would direct even in that case the connecticut statute doesn't meet the definition because as the government pointed out there's this issue with men's rights there's this issue with is general intent sufficient to meet what the board has defined as intent that has to be sufficiently high in again the connecticut definition and the connecticut men considered this i'm looking at the decision at s p a five and it says on appeal the respondent makes no substantive arguments challenging the immigration judge finding that this conviction constitutes a crime of child abuse child neglect or child abandonment we accordingly affirm his finding as to this grounded movability and then the rest of the decision is all about aggravated felony in the context of sciri and serious crime i'm not sure where they discussed the sufficiency of the child abuse convict whether your client's conviction fit that child abuse indeed defaulted waived or whatever we want to call it here and that we wouldn't address the sufficiency of that finding for the first time you suggested to us that no the b i had extensively discussed it and i don't think so and i understand relate to that issue of child abuse even if it hadn't been best preserved and i think given the fact that this will extensively impact the petition in the future and not just the petitioner but anyone else raising these issues and the connecticut risk of injury statute that it's appropriate in this case perhaps to remain on to the board for further analysis in light of the eskimo can time a decision for the analysis to find to decide what to determine whether or not risk of injury