approximately i'll say five elements a failure to appear before a court pursuant to a court order in order to answer to or dispose of a charge for a felony for which there is at least a two year sentence the conviction the statute of conviction is eighteen u s c thirty one forty six significantly the record does not bear out which substation under eighteen u s c thirty one forty six the petitioner was found to be convicted so if we take a look at thirty one forty six i think it's significant to know first of all this very circumscribed very narrow it refers only to people who having been released under this chapter fail to appear but there are two subsection that i want to deal with eighty two first thirty one forty six a two because that one i think we can automatically eliminate that one punishes the failure to surrender for service of the sentence sort of to a court order obviously that would not fall within the generic crime which requires it to be to answer to or dispose of a charge so i think we can eliminate a two although i would like to point out that it does have this magic phrase pursuant to a court order which i think is significant it's not under a one end of the petition was convicted of anything it would she pointed out that the use of different words or terms with there in the same statute means congress intended something different by and so moving so it's our position you at the language of the information and the fact that she pled guilty because the information doesn't i mean in order to have to buy that buy into that you basically have to infer you have to assume that for approach and wonder one the government is never required to prove that there was a court order involved and i mean why would why would the congress use under age to pursue a two hundred order and not in a one which is only as required by the conditions of release i mean that contents of a release order are if you look at that contents of the release order which is thirty one forty two h i believe one of those one of the contents of a release order is not that the petitioner has to show up in because you probably would know the answer but conditions of release are typically imposed at the initial appearance at which a bail and release determination is made and that determination is made by a judicial officer usually a magi the defendant is either remanded to custody pending trial on the charges or the defendant is released on the order of the core subject to terms and conditions  specified in the release order and i am not familiar with any situation where a person is ever admitted to release without an order setting what those terms and conditions will be well i mean i think in order to reach that there you have to basically read out the pursuant to a court order requirement i mean i see it i see it in the information i read it in the statute i'm told on the modified categorical approach that your client pled guilty i think what more do i need to conclude by welcoming at the record before me that your client violated a one well because  you're basically inferring that and in connection with a charge that satisfies to answer dispose of the charge i mean i don't have a hard time making that categorical approach why can't the judges look at admissible documents including the judgment of conviction and so on  appear before a court as required by the conditions of release and and i don't know of any condition of release that isn't set by the court well i mean it's the only entity that has the power to do that guess what i'm trying to do is to understand why a legal technicality makes a difference here where you make common sense tells me looking at the language of the statue and be admissible documents that that's what happened then this is exactly what the court had i think and we versus ashcroft the ten thousand dollar requirement the problem with that is that even though you had a judgment and you had a complaint or excuse me a judgment and a complaint the court there said we're specially reluctant to rely solely on the charging document and the judgment to establish the fact that the government was not required to prove and that the and the jury was not required to fin i think what is happening here is that there's a real question well there first of all the government believes that th case and she's never come forward with any of these arguments to back up the any of the arguments said oh i was just being called to be a witness or i was being called to for something else at all and the burden would have been on her to show conviction that's go here there you what you would concede that there are circumstances under which there would be facts that you can be convicted under the statute under circumstances that wouldn't fit right categorical view and because if i read the language of the statute it includes a misdemeanor provision and as i understand the immigration regulations are the statute it has to be punishable by two years imprison just just just just the question so do you agree with what we're what we're asking you here that under the strict taylor approach before you get to the modified categorical approach you couldn't appear as required for an action the government's position is that it would have been in there it's she's been released in connection with the charge our possession with intent to distribute marijuana and that would have she would have been released well i mean the other thing is we just don't know and there it would be logical to assume that there is an order that sets forth a condition of release but there are conditions of release from which some conditions have been delegated in the past to other other people probation have a case like this where someone is convicted and then it you know it takes years to bring that person to justice again  both ways it protects the government because the defendant can't come in and say you know this never happened but that's the defendant because for the same reason that it prevents a lot of collateral litigation and so it's a tough rule when you're sitting standing as you are looking at what's on the record the difficulty i have is that the i j a makes a finding that the respondent after having been released on bail failed to appear before the district court for the purposes of the hearing and i'm not sure that that really supported in the strict record of this case we can infer it but i'm not sure the documents say that it is a really just a matter of logical inference you think  your honor the fact that congress said as required by the conditions of release on and under a one but then said something totally different and really two has to mean something and so i don't think you can automatically equate pursuant to a court order to mean conditions of release or otherwise why would these different given given the information and clearly why why it's not a fair inference that it was based on the conditions of release well because if you i mean if you look at know i agree that relates to that offense but in the information when it says in connection to it simply means it's simply identifying the level of punishment under be a b one eight two i don't think that it had to do with it but i know that but i but the government didn't have to prove that it was in order to answer to it as part of a charge as required by the generic crime and the purpose of the modified approach is for us to for the record to unequivocally demonstrate that she admitted to all of the elements under the generic crime which in this case i don't think you can because two of the elements are missing in the statute of conviction and i've gone over so i thank you thank you