i represent petitioner i have three issues relating to the mens rea element and the abuse element to explain why mr his offense is not an aggravated felony first on the men at wrangel perec as hell that the utah statute is overbroad to the generic definition because quote the government does not have to prove that the defendant knew the age of the victim unquote the government argues that wrangled presence holding applies not to the age of the victim but to the defendant's knowledge of the prescribed sexual act at issue this argument is contrary to the to the language i just quoted at consent six o seven quoting to utah supreme court's interpretation and that statute as having a strict liability element because quote the government does not have to prove that the defendant knew the age of the victim under duenas alvarez rangle arrest had to point to an actual example the realistic probability of that over breath it did so by set into march enos the utah supreme court that explained that the statu age element was met with strict liability and not knowledge the government's claim then that randall praed stands for applying knowledge the sex element is contrary to the tenth circuit and the utah authority but also the government's interpretation makes no sense none of the person described sexual conduct under utah statute is criminal unless it's performed with conduct unless the conduct is performed with miami the utah sacked statute criminal specific unlawful activity quote not amounting to rape unquote that you try to find in three subsection a is sexual intercourse b acts involving particular body parts and c penetration all of that activity is lawful if it occurs between adults only when an activity involves a minor that's become unlawful so rangle presence focus on knowledge goes to the element of age and not the element i thought i thought the case said just the opposite the government didn't have to prove that and new age of the victim correct and so so with the generic definition the is overbroad which shows that the over breath comes to the age element now second the same effect in wrinkle pres that the government does have to prove that the defendant knew the age of the victim applies to wyoming under the least of the ads an eighteen year old can be convicted under wyoming's third degree sexual abuse of a minor statute for having consensual sex with someone he believed to be fifteen when she in fact was fourteen the age element in wyoming statute is strict liability the bull's lead a citizen from the wyoming supreme court affirms us by explaining that quote when the defendant's knowledge at the victim's age does not have to be proven in every case it is not an element of the crime unquote the jury instructions also affirmed that the age element elements six under page one thirty eight of pattern jury instruction doesn't have a man's rare which both he says is significant especially when other elements in the jury instructions do page one forty for example and or element five of twenty three twenty three points to statute makes that age element a strict liability element and thus overbroad to the generic definition now third if the court agrees that these issues it can decide the case on that issue alone however as an additional ground of over breath the generic definition of sexual abuse of a minor is left in an abuse element as quentin ok i'm sorry go ahead noted that it could be appropriate for the generic definition to have an abuse element to limit and aggravated felony only to predatory conduct this limitation is important many sex crimes involving children target consensual contact between teenagers or young adult thomas in that opinion specifically rely in defining the generic effects for sexual abuse of a minor on eighteen u s c twenty two forty three d which specifically says that the that there is no direct statute the congress cross reference an aggravated felony absolutely but i don't know that that's my question my question is when the supreme court and ask a bill was divine defining the generic  independently of the rodriguez richard rodriguez case didn't the supreme court specifically rely on twenty to forty one and twenty two forty three d which specifically says that the defendant may be guilty of sexual abuse of a minor even though he does not know the age of the victim you're honor i'm not familiar enough to answer that question but i assume that that knows the age of the victim yes your honor as discussed in the wrinkle pres and the strata cases it did a survey of the states and i could provide the factual citations and supplement the brief the court asks but some to get the exact numbers but there is a split in half and how the courts decide that will if there's a split we typically would define a generic offense based on what is prevailing out there and if there's a handful of states that used was martina's which said it was the age element in the utah statute that was strict liability and thus overbroad to the generic definition martinez did not discuss whether the the defendant needs to know whether he's engaging in the sexual it please the court matthew george for the attorney general turning to the knowledge requirement the wrangel courage as set out for a said explicitly that the defendant must knowingly commit the prescribed sex acts it never connected the knowledge requirement to the age the knowledge of the age of the victim and that's consistent with the federal statutes that rankled her as cited as well as the the federal statutes that the supreme court cited and s q l both of those statutes as we point out in our brief explicitly disclaimed the need of the government to prove that the defendant knew the victim's age now the ninth circuit in palaeo garcia which is a case the court cited in wrangel went further and there explicitly said that the fact that those federal statutes twenty two forty three twenty forty one explicitly disclaim that knowledge requirement means that the knowledge requirement does not apply to knowledge of the age of the victim that's seems to be the logical reading of the federal statutes which is what the court looked to in wrangel purpose and looking at the underlying state statute and rangle pres there was no knowledge requirement that is correct that's what the utah supreme court said in martinez what the statute is simply different there than it is here there it was merely engaging in sexual intercourse or the or the least conduct was engaging in sexual intercourse with  differential and age of the victim and there it was a strict liability crime so the there was no mens rea element with regard to the prescribed sex acts in this case there is a men's re a requirement for the prescribed sex acts there is a specific intent that the touching occurred with the intent to abuse a rally or gratify so in terms of knowledge of the prescribe sex acts that element is present here in the wyoming statute it was not there was no knowledge element at all in the utah statute at issue and rangle sort of going on judge bac question about the majority of states the martinez case cited in wrangel actually pointed out that the majority of cases at least at that time did not require knowledge of the victim's age or the age differential it pointed out that they were the majority are strict liability crimes and so in terms of crafting a generic definition the majority of states at least at the time martinez was decided and this is what the court is relying on and wra there was not this knowledge of the age of the victim requirement or age difference differential and that also was an issue in escrow fall where the supreme court again looked to the federal statutes as as a guide for the generic definition the statute at issue an escort also did not have a knowledge element for the age of the victim or the age differential and it was a strict liability crime the supreme court had no issue with that if that were something that were a concern of part of the generic definition surely the supreme court would have said so in essence of all but like the court did in wrangel it relied on the federal statutes as the source of the generic definition that federal definition is federal statutes have merely a knowledge requirement for the prescribe sex acts that element is present in this case therefore it is categor sexual abuse of a minor aggravated felony regarding the abuse element almost the same analysis applies that was an issue raised in s q l whether the age differential is important whether something else should come into play the supreme court explicitly declined to address that issue in a strict liability case therefore for the court to come along now and say that some just particular larger age differential a higher age of the defendant is necessary or some other abuse element this is going to be important for the first time without sort of bypassing the board which is the primary interpreter of session torie language and should be the first have the first crack at deciding that generic definition and i'm aware of that martinez is not a very satisfactory board decision in that it merely lays out a guide it cites the say it another a different federal statute that that has the same intent requirements that the federal statutes that the court in wrangel looked at i know that's not very satisfying i know we'd like more from the board but the board is the one that gets the first crack at it agency is the first in the first instance gets to decide these issues  is an element of the offense the state court cases say merely touching someone with no intent is not enough it requires that specific intent to be approved by the government as an element of the offense that satisfies wra definition of knowledge of the prescribe sex acts therefore it's categorically sexual abuse of a minor aggravated felony i'd also like to say just a quick comment on the possible jurisdictional issue that we raised in our brief i think that's basically now moot given that the withholding only proceedings are complete i don't  thing given that we are where we are now arguing this case this is the the aggravated felony issue really is the heart and soul of the case now those sort of collateral issues have fallen away and it's really appropriate for now the courts to decide the case and decide the aggravated felony issue and because it is categorically a sexual abuse of a minor aggravated felony the court should deny the petition and this or any other questions from the court thank you thank you i have four quick points first in response to your question judge coding at fifteen seventy one of escobedo quote petitioner does not contend that the definition in twenty two forty three eight must be imported wholesale a and we do not do so one reason is that the ion a does not cross reference section twenty two forty three so it's your answer that any dicta question is truly so you don't import it wholesale in other words the definitions are not coextensive but didn't the supreme court specifically say that one of the four factors that i'm going to take into account in determining what the generic offense is is what twenty to forty one is yes yes your honor i don't know that i would regard part of the rationale for holding his dick well what they focused on the set that the victim has to be at least has to be under sixteen years and then said everything else is still up for grabs and second on the point where the government said rendel pres never talks about the age again he never addressed the quote that i've read now three times at six o seven quote the government does not have to prove that the defendant knew the age of the victim unquote rangle perrette cited to that relied on that to say that it was overbroad to the generic definition it was creating in that case third on the jury instructions which that page when thirty eight element five there is no element no knowledge on whether sexual conduct is needed and number six there is no knowledge as the victim's age these jury instructions are quoted in the the problem then is that this case is a far out one immigration officer made the determination and he can only remove someone someone who's been here for twenty years if there is quote clear convincing and unequivocal evidence if there is uncertainty as to what the definition is you cannot have one officer do this he needs to come come back and states be put into regular proceedings in the the i a e a have an opportunity to to determine this decision offense you say that because the statute here was for years if we define the requirement to be more than four years for the generic offense then there's a mismatch conduct and non consensual conduct so the that isn't the easiest way to go about the piece i lament another way that states use is require the defendant to be over twenty one years old to get out of the realm of high school and college relationships but