the first issue is regard to this court's recent decision in the case of u s versus aguilar rios the second one is the issue of the particularly serious crime issue is whether this was per se a particularly serious crime and number three is the court's failure to consider the are adequately considered the why all factors under french for it just go can we move backwards from the third one maybe you can do in it a little bit different order ok if this was statutorily a particularly serious crime and i understand your argument on that that sentence wasn't five years so we can get to that sense for a second but assuming that for is a particularly serious crime tell me why the court then has to go onto a discretionary analysis that's it well under the circumstances i think that assuming that it was a crime that was clearly an client got an aggregate sentence of twelve years for the the use of the firearm crime if you will why that's not why that's not a sentence in excess of five years so it's not a sentence in that excess of five years because the enhancement obviously is element i think that the in this particular case the reason that there was an additional time given was because if there was i believe a gang in the house well there's also there's also an enhanced my freeze of firearms there's two enhancements here one for four years and one for three i forget which is which but i think the firearm unhandsome it is for four years and the conviction is for thought with a firearm so why why wasn't the use of a firearm actually proved aggravated felony the the underlying crime would actually be the issue the enhancement assuming that the crime was not an aggravated felony but in this case as i understand it so correct me if i'm wrong the crime itself is is an aggravated felony it becomes a particularly serious crime because the penalty for next five years right correct yeah ok so you're not disputing that the crime itself was an aggravated felony you're disputing that it's a particularly serious crime because of the a dish because you think the sentence was really only three years correct so in this case now we only focus on the sentence i don't think so i think that we would not focus on the actual underlying crime in the amount of time that he got with the underlying sentence for the lycra and the reason being is and where i was going with the issue of the actual crime itself assuming that he was convicted of a crime that was not an aggravated felony however he was given additional time because they don't i understand whatever it was but there's a preliminary requirement that it be an aggravated felony before it could be as particularly serious crime c on think they should be applying because i think that it would not be i don't think the law it would be consistent with the law as it is number one because the law does not does not address that issue i think what's your best case on why we shouldn't apply  exactly yeah so that it could be considered in that analysis but i've never seen it considered with regards to the underlying crime that's determined to be whether it's an aggravated felony or particularly serious well what does does it make does it make a difference i assume for your purposes it has to if the enhancement results from a statutory requirement versus a discretionary sentencing decision by the judge in other words if in this case as i requirement of the but the sentencing judge says i can send you any where from zero to ten years if it's just simple assault i probably would have given you a year but because use a firearm in my sentencing discretion and my experience i give everybody uses a firearm an extra four years and now six years well i think on the california law whenever you are found guilty of the enhancement there is no discretion whether it's for gang or gun i think that it automatically go i don't think the judge has in the leeway but the question judge was asking slightly different which is that let's assume for a moment that the that the penalty for the crime that your client committed which is felony assault with a firearm is that from three to six years and the judge in his discretion in this case had and there had been no enhanced ment's at all the judge just gave five years is the sentence you degree then it would qualify as a particularly serious crime it would john so what's the difference between the judge in his discretion giving the maximum and the judge in his discretion giving a lower sentence for the crime itself but putting the enhanced bits on to what your client pleading guilty so that we don't have any issue of jury trial with respect to these well i think it's significant because i think that the the idea that he was only given the minimum sentence our guess maybe since for the assault with a deadly weapon the three years i don't think really has really any they're completely two different crimes and it's all that i know that they're really not too different crimes here in the sense that it's felony assault with a firearm and the enhancement is for use of a firearm so i could see the judge saying i'm going to have to give him a four year enhanced and whatever happens because he used a firearm and so i'll make the basic sentence a little lower so i don't keep him in jail too long so it in some ways what we'd be saying to the judges don't do that give them the give them the max on the underlying one in their life this one on top of it because otherwise there's where the judge and i think about immigration consequences we see my point you know the judge may have given the smaller sentence on the on the crime itself knowing that he had to impose to it handsomeness well i think the issue is the fact that the judge does have discretion with regards to the underlying offense but he does not have any discretion with regard to the enhancement so i think that's what makes it separates the two is that whenever a judge is considering the facts of a case he clearly can consider the facts and reduce the sentence based upon our increase the sentence based upon the underlying facts however what the judge does not have discretion to do is to make a determination with regards to the actual it has been well because your client pleaded guilty to correct you used up almost all your time but will give you a little extra time  start with an area we didn't bother mr ali about ok which is our jurisdiction do we have jurisdiction to consider this petition for you under this court's circuit law it disagree about our law not necessarily what it should be ok haven't we said since the menu to do two d that we least have jurisdiction to consider legal issues and one of the legal issues is whether or not so once we let's just let's assume for a second that you had found the bar to apply because mr always client engaged in jaywalking and he petitioned for review we would have the ability to say no that crime is not a particularly serious crime and therefore the bar doesn't apply would we not yes that would be a legal determination which under twelve to forty two a to the right we get to make yes his argument as a legal matter is that he wasn't sentenced in excess of five years because the enhancements got stacked on risk that maybe may be an incorrect argument when you know we have jurisdiction at least to consider you would if it is in that circumstance if he was making that argument yes that is a legal argument and we but the way i read it he didn't mention the enhancements as part of that what he sort of well i don't read his brief and mr ali can speak for himself but i do read his brief is raising the issue of whether or not this was a particularly serious crime because of the us it is right but the court should deem an issue that's been waived to be abandoned under this court's presidential law yes but if let's assume for a second we treat that issue as having been raised ok we do have the jurisdiction to say no no or yes yes now let's assume that  let's get jump right into that then that legal argument he's raising is not tolerable as your honor noted there's two ways that a specific criminal offense can constitute a particular serious crime under the withholding of removal statute your honour's alluded to it's i want to harp on it too much but you're right we don't get into the attorney general bar's in front of us today in terms of what would the government is asking the court to do it ultimately ends with the dismissal with of the claim with respect to with only if i understand but it the bar the bar is not in front of us it's the it's the in eligibility for well there's no of the bar is triggered because he was found removable i understand but what he's what he's seeking review of is the denial of his application for withholding removal yes and and the reason that that was denied because he was ineligible for it because he committed a particularly serious crime correct ok ok you know there's no consequences you're under started figure out what we're reviewing ok well so in this case there's no i don't think there should be too much of a question well i should say that in this case this is a per very first thing the court to do is look at the exact language of the statute what is the statute say the statute says that is that it's an adult it has to be an aggravated felony for which the illing was sentenced the key word there is sentenced to a term of imprisonment of an aggregate five years or more and here we have a before the supreme court had come down on the wrist is a bit recidivism and handsomeness issue you could at least make an argument with recidivism that it wasn't really dealing with the underlying crime issue it was the argument at the time was that that that enhancement really related to prior crimes committed by the criminal we don't have that kind of argument with these types of enhancements the firearm has been in the gang and has made its case these go specifically to the particular seriousness of the crime to separate those out of the analysis would distort the entire purpose if we decide that you're right on the merits or do we dismiss only if we say it's not tolerable weather let's assume we say this is a least a calmer book but but but the government's right on the say that's a colorful legal claim but they're wrong what's the result well i don't think it makes i don't think it follows logically that it's a colorable legal argument but they're wrong if they're wrong in the legal argument jurisdiction ok but that's where the case turns and in other cases of similar nature of the court has ultimately dismissed for example in the pachinko of case the court dismissed the petition for review so that is the ultimate result even if they make a legal argument but  ends up being wrong so that doesn't only have about thirty seconds left to talk about the deferral of removal under cat protection i think it should be self explanatory from the brief that the record doesn't compel a contrary conclusion to that of the agency here when we look at the evidence when we look at the activities that the salvadoran government is taking to try and tamp down the violence in the country i don't think it can be said that the record compels the conclusion that they're going to acquiesce to torture of petitioner in this case unless you i'm out of time so i don't i can't really get to in depth on that unless you case that was actually a two forty five a two conviction where the court had determined that the it was not an aggravated felony that in order for it to be considered to be an aggravated felony it would have to be statute that does not exclude antique farms and in this particular case obligated this is somewhat point in the i have not this is a recent this was actually got but that's not an issue that was raised right it was not yes you could file a motion to reopen argot yes ok counsel is judge gould if i can interject is how do you respond to the government's argument just made honor the way that that statute is actually written is it specifically talks about the conviction of a aggravated felony for which a person receives a sentence  five years or more it does not talk about an aggregated an aggregate sentence or no it does the statute has the words for which the sentence in the aggregate is more than five years for the for the five felony for the convict for aggravated felony so it's specifically talks about the actual aggravated felony it does not talk about any additional enhanced ment's or any other you know add on's with regard to the actual conviction so my position with the is that the the aggravated felony as set forth in this particular case he received this innocent three years and the statute does not mention anything about that i mean for example someone could actually been charged with more than one offense that would could possibly result in a consecutive sentence as as a result of a concurrent sentence and for example if a person has a gets a minimum sentence on the aggravated felony and received additional time for the for other offenses that would not be considered because that is four and a different offense and if the