when you're writing it means you don't have to be happier when you're not ready so it wasn't designed to hur the relevance of the recent on bond decision in the bar lopez so i'd like to take a moment to address the court's concern in navarro look as the majority basically stated the specifically stated intel as quote the mental and physical elements of solicitation are not necessary elements of the underlying offense and that therefore solicitation is a quote completely separate crime from the find it to be portable under that standard let me ask you this then make it a slightly more generic question is it your position that regardless of how horrible the underlying crime if all you've done a solicitor the underlyin for instance as compared with attempts for instance attempt is a lesser included offense because it you must manifest the exact same intent with an attempt as you must with the underlying offense the only difference is that the crime is not completed with solicitation it is not the exact same you know all of the case law so that you look to the minimum conduct judge crater seen in the navarro lopez decision brought up numerous different scenarios under which accessory after the fact could come up and yet it would be a sympathetic situation i could solicitation a deportable offense they're free to do it they've chosen not to do it corn out of garozzo has been on the books for ten years there was a bill in congress two years ago h r forty four twenty seven which purported to make solicitation a solicitation should be deportable offense whether the board member thinks it should be a deportable offense congress has not made it one and has not clearly made it one eliseo case i think covers that as well your honor the board members theory that corn out of derogative does not apply in this case because the deportation statute for controlled substances is limited to atte can spirity if we follow that logic of the board member it leads to the absurd result not just in the abstract but in this exact case whereby my client would be admissible to the united states and y however because the deportation statute is not so limited in the opinion of the b i a because it's not so limited to attempting conspiracy the universe of preparatory offenses is included in the deportation statute so what we have is a situation where more people can get into the us and then must be kicked out and that violates the basic tenet of our immigration laws we always have broader exclusion provisions corresponding exclusion provisions than to deportation provisions because we don't want to have the same sort of result were someone can get in but must immediately be deported and i listed those for instance drug trafficking as an example in order to be deported for drug trafficking you must be convicted in order to be excludable for your crafting all the government needs is a reason to believe you don't even have to have an arrest for possession of of the drug you must be convicted to be deported but in order to be excluded you must only admit that you've ever done committed a drug offense so you don't even have to have an arrest to you can understand why it's important that the exclusion grounds far more people it's got to be harder to kick someone out than to talk and we've got we've got to point we have your argument in hand you've used all of your time but after the government spoken to make sure you get a chance to good morning your honor terry scouter and for the respondent like to start by just going through very briefly what's not in dispute here and what's not in just view is that the petitioner pleaded guilty to  marijuana for four to solicitation to possess marijuana for sale which means that he agreed that he acted with a specific intent to promote or facilitate the commission of a drug trafficking offense and as trafficking was a crime involving world turpitude and i believe that anyone would be hard pressed to find a court that has disagreed with that proposition possession offenses may be treated differently but drug trafficking has been consistently proof i don't believe there is any meaningful distinction there the question is that it's a controlled substance on trafficking in a controlled substance inducing others to use drugs is we w a violent deprived act regardless of whether it's heroin or not you might distinguish giving a friend a baggie at a party something like that but that's really not the situation we have here how do you respond to the argument that honor i would like to respond to that the argument first let me just say that under the charge we have here a crime involving moral turpitude congress has left it to case by case education to fill in the content of that ground of the portability but let me ask you this just to make sure that we're on the same page your adversary has said that if we had precisely this crime of conviction this person would not be to be pretty awful now congress has given us no guidance beyond it has to be pretty awful what so awful about something that congress has under now your agreement congress has hurt when he's quite right that the general scheme of things you can get exploited for a lot more trivial things that are required to get rid of you once you're here well that's  ok a couple responses there first of all we congress and men did the exclusion grounds in ninety four it could not have anticipated this court's rule three years later in coronado durazo coming with the have a difference between the grounds of exclude ability and the grounds of deport ability that is only a difference within the ninth circuit because no other courts have adopted that rule but even there the fact that there may be a difference between say the grounds of exclude ability under this circuit's law may be narrower than the grounds of deport ability is not enough to search result there are many instances aggravated felony grounds such as crimes of violence that the portability ground is there but the ground exclude ability is not and there are real implications to that ok i understand where the answer's going i'm going to cut you o meaning within the meaning of that statute encouraging ordinary talk is pretty broad so for example if i were to say to somebody who is thinking about possessing four pounds of marijuana for resale if i were to say well you know it might pay for your near term bill for this quarter that sounds like encouragement to me well you have to encourage that within the meaning of the arizona statute and i think that would have to be adjudicated by an arizona court however cases would they ever go seriously after and pursue a felony prosecution in that circumstance i thought that was going to be your answer this case was removed before of course the  and as i read doing this alvarez it's sort of a real world test and not confined to reported cases it's just what do they are what happens in arizona i would agree with that and i don't think that you could find a casual  just in a not shall because i realize my time is running short i would say that what distinguishes this case fundamentally from lopez is the nature of the offense at issue and excess yuri after the fact conviction is much more attenuated to the underlying offense than you have in the case of solicitation to commit a drug trafficking offense which is what we have here in fact in the vera lo all to address the solicitation of murder question earlier you can also formulate a similar situation under navarro lopez where the excess three after a fact is a person concealing a serial killer someone who's killed thirty forty people so i mean the spectrum of these issues  world a person can be convicted of this this offense by by soliciting the possession of four pounds of marijuana for sale asking another person to sell him four pounds of marijuana as an example the government has offense for personal use now four pounds is a lot of marijuana i think we all admit that it's not a baggy but some people may not want to go buy a bag of marijuana every couple of weeks there's a costco rule that might might apply well they just want to buy it once a year if there's nothing in the law absolutely requires that we're not talking about three hundred pounds of marijuana here i'm waiting for you to finish i'm waiting for you to finish your sentence now these are there is there is a in arizona supreme court case state v telling that it was for the other person to sell marijuana well you know we looked at the minimum conduct under the statute and there's nothing required in the statute that says that it has to be that