it please the court bend winograd for the petitioner please reserve two minutes for rebuttal the question in this case is whether the board of immigration appeals erred in finding that my client's conviction for conspiracy to commit money laundering qualifies as an aggravated felony under the immigration laws we contend that it did air for three separate reasons first because my client was only convicted of conspiracy to commit money laundering his conviction could only qualify as an aggravated felony under subsection you of the statutory is subject to the same punishment as the subset of offense so that's why it's not a simple statement conspiracy is covered by nine hundred fifty six year ago your argument well because your honor the board said in matter of richardson our reading of it is that convictions under nine hundred fifty six eight can only be charged in immigration court under subsection you so we believe that the board is trying to have it both ways and matter of richardson it saying you can only whether matter richardson was correctly decided we don't think that question is before the court we think the question before the court is assuming that matter of richardson was correctly decided can the board's unpublished decision in this case be reconciled with the presidential decision in that case i think at a minimum it would be worth remaining for the board the board in this our first argument was based on matter of bridget's and the board didn't even acknowledge matter of richardson and its decision in this case it  and we would also point you aside from out of richardson we think there is a technical basis for argument if you look at the venue provision one hundred fifty six i in the criminal statute which refers to which says has one venue provision for an offense under th section or section one hundred fifty seven and then has a second venue provision for an attempt or conspiracy fence under this section or nine hundred fifty seven so i think we have the same type to me the same distinction in the aggravated felony definition as we have in section one hundred fifty six h one hundred fifty six itself if the court is not moved by that first argument our second argument is that the board simply applied the wrong standard of review in determining whether the amount of funds laundered exceeded ten thousand dollars under its own precedent in federal regulations the board there's no way of inferring from the amount of forfeiture what the amount o laundered funds woes is that's the point yes that is our third are going on the merits yes that the amount of forfeiture for one thing and for future proceedings the standard is only preponderance not clear and convincing as it is in deportation proceedings but as it's not that you can say well we can draw some inference from the amount of forfeiture because you could be one percent it could be one hundred percent and that was a tribute to the irrational judge to infer anything about the amount of laundered funds from the minimum for precisely that is your argument your honor and there have been cases decided by this court it's two thousand six decision in nickel off where the defendant was found to have laundered fifty five thousand dollars but was required to forfeit lose diamonds that could that valued at up to two million dollars forty times the amount that he actually laundered here the amount that he was required to forfeit hundred twenty thousand dollars was you know if it was he was able to somehow multiply that by twelve times i mean even if he was investing in a ponzi scheme he couldn't have generated that level of return well you're honored to be cleared it's not limited to investments it could be simply purchasing if he if he'd used five thousand dollars of tainted funds to purchase a property valued at one hundred twenty thousand dollars the entire property one hundred twenty thousand dollars could have been forfeited so i think at trial the  board just to back up to the point on the standard of review the board has repeatedly held that it must apply to no review in determining whether the parties have met the relevant burden of proof we cite those cases there at least ten of them in footnote five of our opening brief and the i g in this case never made a specific factual finding about how much money was actually laundered the only basis for his decision was that in his view d h has satisfied its burden of good morning your honour's i'm erica miles for the acting attorney general to very quickly address the first point about which statutory provision of the aggravated felony definition whether or not the d provision as the charge basis for the charge is correct i wholeheartedly agree with judge calibur easy that the language in sub part d is an ambiguous and where it is an ambiguous what the board might have said in  dict talking about only the u provision is irrelevant if this court agrees you would agree that charging de instead of you was a bad practice i mean the government then takes upon a thing on which they can win well when you when you charge under the you conspiracy provision you have to additionally charge under the eighth routine you have to show that one of those aggravated felonies a provision interpretation by the board because this is squarely within d and you is just not necessary at all i'll move on to the forfeiture order did you have a possible impact on this case yes that's what i understood as well and no that's that should not happen in this case because again it as long as you view the language in d as an ambiguous it doesn't matter what the board might have been inferring or getting at in richardson maybe not so clearly but my reading of richardson is clear that it's limited to interpret ing the provision and not d and it is in  to this case so remained would not be would not be requested here as for the forfeiture order for this court to accept jurisdiction in this case the court would have to find that mr brick ian is showing you that the evidence come powells you to find that homeland security did not meet its burden by clear and convincing evidence of that ten thousand dollar threshold by clear and convincing question clear convincing evidence using basis for the inference that the amount of laundered fines can be estimated from civil forfeiture and in that context we have supreme court case law saying that a punitive forfeiture must bear some relationship to the gravity of the offense that it was designed to punish that would be united states versus five twenty four us three twenty one at three thirty four and what that case further than held is a punitive forfeiture violates the excessive fines clause if it's grossly disproportionate to the gravity of a defendant's offense here if we were to accept mr breckon promise that he laundered ten thousand dollars or l only that would mean that over one hundred in ten thousand dollars of legitimate funds were also ordered forfeited to the united states government that to me and over ten times amount more than a purported laundered amount the illegal amount is excessive and grossly disproportionate the cases you're referring to the supreme court cases are under the excessive fines clause and they dealt with things like forfeiting an entire yard on the basis of a marijuana cigarette forfeiting entire farm on the basis of a small plot of marijuana plants and some for the reform for  greater than what you're well in the case i'm citing it was a five thousand dollars versus three hundred fifty thousand dollars here we have ten thousand dollars versus one hundred twenty thousand dollars i don't think they're all that far apart we also have new york law new york law in order for a legitimate funds to be forfeited so commingled legitimate funds with the laundered money for it to be legally ordered forfeited must have a substantial nexus to the laundered money and under that in the eastern district of new york which was up held by the second circuit in the sub nonny case five sixty six  one forty eight the court hears to the facilitation theory so the facilitation theory is that untainted money is still considered involved in the laundering not just traceable actually involved in the laundering because it's used to facilitate or cover up the crime it makes it less difficult or more or less free from obstruction or hendren so they have to make that finding about the forfeited you know allegedly legitimate funds it has to have to have been used to facilitate the laundering in order for it to be did the the why did the government rely on them for future when it could have because you know the pre sentence report or something like that would have given specific i think by the very nature of what was going on with him cooperating in the witnesses that is exactly why there isn't more evidence available with this and as missed as counsel pointed out the indictment does not list the amount either but so what we do have is here well we don't know precisely how much money was laundered we don't have to know precisely how much money was laundered we just have to know by feel that there's clear and convincing evidence through this forfeiture order that it was at least ten thousand dollars just over ten thousand dollars we have a one hundred twenty thousand dollars forfeiture order here in the supreme court would say that you cannot have an excessive fine that is grossly disproportionate to the offense i think all of that put together a rational judge is wholly irrational that the immigration judge found that homeland security met its ten thousand dollars threshold with but with this one hundred twenty thousand dollars forfeiture order agreement but we do know that judges that in entering these orders due to do need to look and feel convinced by a preponderance of the evidence that before they enter a sentence or before they enter a forfeiture order judges are free to throw out pled to amounts and pled to sentences if they don't think there really is a factual basis  and it's not for an immigration judge to look to you know to collaterally or retry what happened just know that there's nothing in the record here challenging the reliability of this amount or the validity of the forfeit thank thank you your honor just briefly on the matter of richardson issue i would say that the court does not need to remain for clarification if it is prepared to rule for us on the merits of the court believes that the that the government didn't sustain this charge under subsection d it would be purely academic to remain for the board easy which is the case that said the amount of funds in subsection d to the amount of funds laundered not any other funds that may have been commingled with it in terms of the eighth amendment issue all i will say is as i said would vehemently disagree i would also say that many of the government's arguments that were made in argument today appear nowhere in the board's decision and under the doctrine which is a cornerstone doct administrative law this court is limited to the four corners of the board's opinion in determining whether the agency's decision can be affirmed and then finally your aunt is correct that this this case the criminal case was resolved agreement and it's simply baffling why d h s s did not attempt to submit additional evidence relating to the amount of funds laundered the immigration judge specifically invited them to do so the immigration judge also invited d h s s to file  amend the charging document to reflect the charge under subsection you d j s disregarded both requested it appears that d h s was simply trying to see if he could win with as as as little evidence as possible in this case  if the court has no further questions thank you the court is grateful for very helpful arguments by both sides we will reserve decision