requires an intent to cause physical injury and the causation of physical injury doesn't include or require the intent to cause serious physical injury or the causation of serious physical injury this court in two thousand eighteen in the villanova case and this is footnote six which is so important to this argument held that there must be an intent to cause serious physical injury and the causation of serious physical injury for a similar result statute to be a crime of violence under the elements clause of sixteen as a result the statute issue here lacks a necessary element or requirement to make it a crime of violence going the court is bound by the st issue decision it's just the converse or the flip side of the idea that the a panel is bound by a prior panel so the saying decision interpreting the statute one  fifty two came out the other way and said it's a crime of violence the problem is it didn't grapple with it cited bill in a way for different proposition but call it missed the boat call it didn't recognize the causation of physical injury rather than serious physical injury but assuming without deciding that this difference could be material then it goes on to talk about why the deadly weapon or dangerous instrument prong would matter assuming without deciding  the way we decided the only way to said there has to be serious physical injury for a simple assault statute to be a crime of violence and so missed the boat didn't recognize the import whatever the case and the causation of serious physical injury nothing in the hatchery a decision that the government cites from october changes that one it's a summary order to the court didn't address the argument i'm making now indirect act but with regard to the force required it was necessary to the decision and ultimately the conclusion of l in a way the over judge fuller's dissent is that it was a crime of violence for armed career that it was a crime of violence in any of them then say that it would not be a crime the violence in that would be detected and if it was then s one which is going bad so that i think your reading of the order your case is very understandable but if the case didn't turn out that a comes after castleman and of course is the court knows castleman has two parts one is the indirect force aspect and the other is the violence aspect and castleman said justice sotoma over the strong dissent of justice or the concurrence of justice scalia is that we're finding that this meets the requirement in the specialized domestic violence context but were were refusing in two or three different places to acquaint the result injury with violent force and even stokely after that after castleman after or around that i think it's after villain a wave of rejects the concept that kurdish jonson viol force is somehow not necessary going forward so the situation we have is and just back to what singh dinner or didn't do even if it was directly your honor i would have thought that the panel would have addressed  instrument and then what the per curiam decision and focused on was the risk of a dangerous instrument with all due respect to the saying panel's decision i think it's showing your dissents worst fears are coming true we have a sixteen a situation that is now being read is the new sixteen b risk is being infused for a statute that is very closely cabin tied to the elements of the offense and sixteen is being opened in a stoking which is a specialized robbery context so the fundamental question the court has to determine is the one that you put your finger on but i think it's an important one and i think we have the better of the argument rejected petitioners position but it also declined to revisit it in any in bank proceeding which thought and bank and a majority of this court denied rehearing that issue in bank despite all of injury it was victim because there was no reason the statute was a misdemeanor statute it was mr mean or assault and there was no possible way that it was going to qualify as the mean violence under any circumstance in that particular case it was it was definitely not going to qualify so anything about making the distinctions are irrelevant the other part of  way and in terms of trying to make some distinction between serious and serious physical injury actually misses the entire point because maybe by petitioners arguments with respect to a mission maybe even serious injury should be could be fall omission and i can i can get to that in a minute the critical part is the use of a deadly weapon and that's what's not addressed and that's what he keeps skipping over so he skips over this element of the statute before this court just now he was citing and reading from thing  e skips over that critical part of thing where the court is acknowledging implicitly what happened in the linda wave and the argument that may or may not have been actually expressively raises in terms of any conflict the courts recognizing to the extent there could be any distinction between serious and non serious physical injury the critical part is that the dangerous weapon the dangerous deadly weapon or dangerous instrument i'm sorry those are the exact words of the statute they import the serious bodily injury in that regard because the court said we can't imagine any scenario where you could basically have a deadly weapon or instrument involved and you could basically use a deadly weapon  act that causes injury essentially is what his his position it would be asking the court to do to the extent that he's trying to bring in an omission component to it what the court basically found in thing is they were looking at whether this could be  committed by an omission which is really actually the much more important distinction rather than serious versus non serious and sickle injury because the fact is if you cause death if you cause serious injury or if you cause regular injury if the court action is that  it's the omission part that matters then serious versus non serious physical injury doesn't matter what matters is that a deadly weapon can't be done by an omission if you can you can even concoct a fanciful hypothetical  and that's what the court in singh was looking for it seemed to me that the court was interested in knowing about the omission of facts and when i would say that that is that there's plenty of arguments to be made by the government that actually even though there's some distinction between saying as a general matter you can commit a crime by an action or omission the way that act is defined in terms of basically to act includes both performing an act and omitting it to perform an act prison off that no longer exists is the part regarding indirect force and so the question now is whether omission is a type of indirect force that's really what this now comes down to and the government's point in this case is that this particular act this particular statute cannot be be committed by a mission even if it could there's arguments that the omission would qualify as an act and i can get to those of the court would like but our st and foremost position is that it can't be committed by an omission and that's what that's what's really critical that has been followed by every court and i understand judge he did have a dissent there you were concerned about the realistic probability test among other things but you did know that stop playing was going to be on the way at that point i'm not sure i councilman and still going definitions of force and all of those are harmonized in the court's precedent as it stands there is no conflict whatsoever the only thing that the court has not expressed they ruled on and i did the sierra case in brief where basically an omission was seen as an indirect act in a direct x count in that case it was murder and i was saying that's why the distinction between serious and non serious injury non serious injury doesn't matter could be death is the question is whether omission or commission doesn't count that's what matters it doesn't matter the level of injury in this case you can't have an omission any of those more complicated questions for causation of physical injury would be for another day because this this case involves the intentional you have to use a deadly weapon and a deadly weapon brings in the serious bodily injury to the extent that that does matter to the court and that's what the same court was getting at so it's harmonize with willing to waive all because what the injury to the extent the villain the way the said we need serious bodily injury is here because of the deadly weapon usage and that's the part that he keeps skipping over and that's the part that makes this distinguishable from prison off the and make that case not matter and any distinction within it  did not involve a deadly weapon nor do any of the cases that he cites they do not involve deadly weapons failure to hold medical treatment food not using a deadly weapon none of them show that realistic probability t i can't i can't think of anything i don't think he ever came up with anything either i can't possibly think of anything i do want to say that i feel my time is running though this issue has been squarely decided the other issue in this case is whether the government established the identity of the petitioner in the conviction documents and that our challenge is often meritless and that's because there is clear unequivocal evidence in the record particularly in exhibit three which the immigration judge specifically relied upon in his decision and if him taking the appeal from his prior conviction for nd degree assault that is the most important evidence on that issue i see that my time is up and if the court does not have any further questions the government will rest on its brief   one is a dangerous instrument or a deadly weapon i heard dangerous instrument about three dozen times the statute is dangerous instrument or deadly weapon it's helpful because  the idea that counsel was advocating the court that it's a deadly weapon which must necessarily involve no matter what possible use violent physical force and that the dangerous instrument prong which is what he was actually convicted of by the supreme court's decision in castleman footnote six you go to footnote six and that's the indirect use the poisoning concept that cetera where there's not a direct physical touching footnote six then says there's two reasons sure enough   dicked on that point you were hurt that you're not ski and the government even said from the podium here that sharon oscar was abrogated with regard indirect force nothing in that holding and sure not ski has been touched whatsoever with regard to the emission problem the government is very sensitive to this because the reality is under the penal law in this statute it can absolutely be committed by omission the case is that put this or to this up for the court the court of appeals decision in one new york nd six hundred a caretaker with a duty to act with the requisite intent sees another person or a spouse or a partner committing violence to a child in their care has a duty to act can be criminally liable and with regard to how that could occur by omission the principal actor is doing something illegal using a dangerous instrument or a deadly weapon or for example the wire handle of a f because it can be occur or be conducted by omission and the final point and this was addressed as in my principal argument with regard to saying is there's this idea that the dangerous instrument prong makes it necessarily a crime of violence if you read the definition in the penal law dangerous instrument it's one created it can be ten issues it can be a swimming pool it could be this water bottle my pen when used in a particular