two which is assault in the nd degree subsection two is not a crime of violence under eighteen us c sixteen a which is the elements clause obviously we've heard now after sessions we  that sixteen be was found unconstitutional for vagueness but if we look at the clauses we can see that one the language of the new york penal law in comparison to the language of sixteen a are not compatible to the new york penal law does allow for omissions of actions to occur and three i believe that it is a realistic probability that one may find liability yes judge well one of the issues here i think is that when you look at one hundred and twenty five subsection two the language specifically says by means of a deadly weapon or dangerous instrument it doesn't necessarily say that you had to actively use that use is used that that eventually causes the injury why isn't that that sufficient and if it was engineered by work the mens rea is there for for the defendant why isn't that sufficient judge active use is a specific a specific action in some way it's like the the difference between conduct an action well so right but the other the other may be point i'm stuck on from your side is is is how how the is this question we asked you to brief the admissions respective it you gave some hypotheticals that were interesting but they seem far fetched to me in the sense that they would result in a prosecution and we couldn't find any and the other side couldn't find any the actual cases that supported admission and the specific language from the supreme court on that point that if it's even from the new york state court i mean the language of one thousand five hundred and ten specifically says the minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act while he is physically capable of performing and while i couldn't find a new york case specifically i did actually find and i use this as a reference a new hampshire supreme court case from two thousand and seventeen that's the people v star and in that case they found assault in the st degree an judge you know i think that one of the things that happens particularly prosecutions is that we see an evolution of cases and evolution of crimes that exist you know i mean one of the reasons why they put this in there is specifically because they contemplated the writers of the contemplated the fact that omission to act when you're physically capable of doing so might be a crime and i found several cases even as of this year where you know i use the example of the umbrella but several times where umbrellas were flying across the beach and  hurting individuals there's also been lawsuits that have actually occurred on the civil side to these beaches but they say something like thousands of these beach and rollers occur like fly out of the other tables or sand regularly and hurt individuals and they've already brought cases on the civil side to it so i don't think it's a very star you know big stretch to start seeing those cases start to become criminal especially in light of the fact that we are looking at things like social media we are looking at i mean regularly we see these like you know supremacists and it's like the theoretical the distinction between realistic and theoretical right you're saying you're describing something that could happen but you can't point to a case where actually has happened and that to me seems like the distinction between realistic and theoretical which is where the line is right well judge i mean if we if we say realistic isn't something that you can conceive of i mean theoretical is and i would hope that we see  use the word fanciful we're not talking about something that's fanciful we're seeing something that really could happen i mean i use that example of the dog as well i mean if i wanted you to walk into a room or i'm saying i knew you were going to walk in a room and i don't warn you i don't physically capable of stopping you because i know that dog's going to tack you i don't do it it seems to me that that's very plausible and it could happen you know and that's not something that sixteen encompasses but it's definitely something that one hundred and twenty know judge in all of the cases including the last case but us which was was rendered the decision in april of this year that was a connecticut statute st degree assault but similar language except for the fact they use serious physical injury and in the new york subsections there are particular subsections that use the word serious physical injury but in this particular subsection it only says physical injury i can reference the  judge's jury instructions for this subsection and that when they discuss physical injury they say physical injury means impairment of physical condition or substantial pain now in the same group of assault nd degree but  subsection for serious physical injury means impairment of a person's physical condition which creates a substantial risk of death or which causes death or serious or protracted disfigurement or protracted impairment of help or protracted loss of impairment of the function of any bodily organ that seems much more in line with the cases and the direction that your your honour's have been going in one other thing i want to just see my time is ending up but the court just announced he said there's a difference between causation of injury and injuries causation by the use of physical force and you're honored judge cashman said given the elements of fifty three dollars sixty one cents a one under the connecticut law it seems that an individual could have been convicted of intentional assault of the rd degree cause not by a physical force but by god i'll deception or even deliberate omission offense that occurred that that actually affected poland's due process you know he should not have considered anything related to the while fans particularly on the fact that it was brought up the day of the merits hearing and so there was not even an opportunity to really discuss that thank you thank you on a good morning may please the court keith mcmanus on behalf of the respondent more than a decade ago the court held in walker considering the essential elements of the state statute that the requirement that be accused intentionally cause physical injury by means of a deadly weapon or dangerous instrument necessarily involves the use of physical force on any reasonable interpretation of that term that conclusion is is true now your honour's as it was then and if anything intervening authority has only further bolstered that conclusion again to overcome the apparent categorical match between the state statute and the generic federal definition if your  think st of all there's a threshold question as every judge has already raised at this point which is about the realistic probability test meaning that well and that's important because it defeats the the question or sort of defeats the argument that the statute  somehow officially overbroad at the threshold because if you can establish that new york would actually prosecute conduct that extends beyond the generic federal definition then the inquiry and there and as everyone has again suggested there are no existing new york city cases that actually demonstrate that this state statute would be prosecuted in light of conduct constituting a deliberate omission and in a mission alone against us only in this sense that it suggests other provisions of new york state law may be actionable in light of omissions the question for the court is whether this particular subdivision has ever in fact been prosecuted or resulted in an actual conviction in light of that conduct and i think it's important to draw that distinction your honor with the rd circuit for example in considering a similar argument and in rejecting the idea that the categorical approach should extend to these sort of hypothetical said it's nearly impossible to conceive of a scenario in which a person could knowingly and intentionally cause physical injury with a deadly weapon without engaging in at least some affirmative physical products and that's important here because there may be provisions in new york even within the assault statute itself that can be prosecutable in light of an omission but that is not subsection two and again there is no existing case law to suggest otherwise and that's important for the realistic probability test because there really was no debate about the quantum of force here and again johnson teaches that physical force in this context is violent force which is really just force capable of causing physical pain doesn't require the causation of serious physical injury so the absence of serious physical harm as opposed to just mere physical injury in this state statute doesn't have any relevance to the inquiry this is this is again at the court already held in walker involves the use of physical force as johnson defines it under any reasonable interpretation of that term certainly there are not a minimum that suggests that using a dangerous instrument which could conceivably anything that falls under the category you just described as opposed to a deadly weapon necessarily involves the use of force even under you know just a definition that would somehow extend to serious physical injury as opposed to just physical pain but again the minimum requirement under johnson is just force capable of causing that pain and again this this court has already confirmed after walker that  this statute involves that quantum of force and again that was not a even at issue in this case never has been with regard to the commission issue though your honor i do want to make clear as judge walker asked that even if the court were to assume or to find that there is a realistic probability that the state statute might be extended to potentially generic conduct which include i guess arguably could include omissions the government's position is that those that type of conduct still necessarily involves the use of force as sixteen a requires and that is because in light of castleman and the court's interpretation of that decision the notion castleman rejects the notion that indirect force  conduct or inaction as it were still requires the deliberate that still results i should say in the deliberate causation of physical injury must necessarily require the use of force decisions expressly decide or consider the omissions issue there is no principal reason for excluding omissions as opposed to other indirect contact like guile or deception from the statutory and generic federal definition and so in light of both the realistic probability test this court case law interpreted castleman there is no reasonable interpretation of this state statute that results in anything other than a categorical match with a crime of violence under sixteen and to get back to one of judge catchments questions for my opponent i just want to make clear that it is the government's position that assuming mr singh is in fact removable as charged as an aggravated felony the court's review would be limited to only colorable constitutional and legal claims and here with regard to both the particular serious crime determination that bars withholding of removal and the merits of the cat determination there are no review claims and to the extent that they are  right your honor and i go specifically to the agency's particularly serious crime determination in the case like think you're referring to generally extends to findings of remove ability where the government would bear the burden of proof and so for example proving that someone had been convicted of an aggravated felony or a crime involving moral turpitude the government would necessarily be permitted to rely on conviction documents that rely exclusively on that type of information hearsay or unproven allegations to give  conviction but here when you're talking about a discretionary determination that an underlying offense bars discretionary relief or protection then the only question is whether or not the hearsay is relevant probative and its use fundamentally fair and hear what you have with regard to the wyo friends or even the underlying conviction itself certainly our police reports and investigations and hearsay but that is completely relevant to the question of whether or not mr singh's offense is particularly serious for purposes of withholding of removal and that is distinguishable from the question of whether or not it might in fact be a removable offense and so the use of that information here was fundamentally fair and appropriate under the circumstances this court has approved of the sea sort of construct that the board determined in a matter of n a a m and that allows for the consideration of any relevant evidence whether within conviction documents i see my time has expired and i may just finish answering the question whether it be conviction documents or evidence outside conviction records for the agency to make its discretionary determination whether a crime is particularly serious thank you  just i just have a quick rebuttal closing up on this one with respect to the cat claim judgment on particularly serious crime i just want to reiterate that you know it was a while offense and generally speaking especially within the immigration gratian context that wouldn't even have been considered a crime per se and then on the issue of injury versus serious injury i thought the distinction was great and well well discussed in terms of the b words serious physical injury and i think that that distinction especially in light of the fact that the connecticut statutes in many ways mimic the new york statutes and then the case in new hampshire that i brought up they specifically discussed this issue of omissions and in new hampshire it's called the code where as here it's part of our penal i see my time is just about an ok yeah but in our in our penal code it actually is defined and they specifically talk about omissions when physically capable i think that that's not fanciful i mean they they obviously were contemplating this when they came up with the idea of when probability may occur and that was the case here and i think this court should find in favor of the fact that no one hundred and twenty five subsection to is not a problem of violence under thank you judge good morning mr callahan andrew for ish bond on petitions should be limited but this is an extreme case and i want to start by pointing out what the government said about the ninety six million dollars on the callahan's guilty plea this is an exhibit before the court and also in district court it's one of the government's press releases about mr callaghan's guilty plea and it says earlier today callahan pleaded guilty to operating a ninety six million dollars ponzi scheme and then a little bit further down it says when sentenced he faces up to so many years in prison and the payment of approximately ninety six million dollars in restitution so of paragraph twenty two of the indictment paragraph thirty nine of the p s r the letter to judge bad in april of two thousand and fourteen just a few weeks before the guilty plea didn't make clear that the value of the fraud absent credits was ninety six million dollars not a penny more the press release their contemporaneous statement that they did it