next on our calendar is austin versus sessions to morning honors from water please marcia austin is a sixty nine year old lawful permanent resident grandmother and primary caretaker of her disabled us citizen husband while she's been clean and sober for seven years she went through a period of serious addiction in her life and it was during that period approximate twenty years ago when an undercover officer asked her to buy him ten dollars worth of crack cocaine which she did the question before this court is whether that conviction subjects her to mandatory deportation or whether in the alternative the court the agency has the discretion to consider the hardship that would befall her and her family how many additional counts of conviction does she have on drug charges this is not an aggravated felony i want to focus my argument on our first reason our primary argument that the minimum conduct simply does not rise to the level of an attempted transfer of a controlled substance under federal law could you start had all go the lynch the second circuit in a non presidential decision recently found that attempted criminal sale of a controlled substance is an aggravated felony and in that argument however the lead argument advanced by ms austin here that the minimum conduct doesn't rise to the level of an attempt to transfer was never presented in the briefs and was never discussed in the decision as judge sack well knows because he was on the panel that decision rested entirely that decision rested entirely what is missing austin's alternative argument about legal and possibility no i'm not seeing that i'm looking at looks at what is the minimum contract criminalized by the state statute that if you if you read on the decision it says that it's proffered that the minimum conduct is an attempt to attempt and that's legally impossible and and that is an argument that we advanced in our brief but not our lead argument our lead argument is that what do you actually need to do to attempt to offer to sell you look at that minimum conduct and you measure it against the attempted transfer standard if i could take a second the it goes back to the pasqual decision which you know well  which found that criminal sale of a controlled substance in the third degree was an aggravated felony and it did so because it found the minimum conduct was an offer to sell and pasqual also mention attempt attempt was part of so the category of approach requires two steps identify the minimum conduct under the state offense identify the federal standard and measure them against each other and in pasqual the federal standard that was identified was an attempt to transfer the minimum conviction at issue criminal sale of controlled substance they said the minimum conduct was an offer to sell we all agree upon that nobody disputes that they said now what's the aggravated felony standard the aggravated felony standard recall anything is a drug trafficking aggravated felony if it's criminalized as a felony under the controlled substance act the court in pasqual found that in attempted transfer is criminalized in the controlled substance act and it found that an offer to sell the minimum conduct was a kin to an attempted transfer but here we don't have criminal sale of controlled substance we have attempted criminal sale and by its very nature attempt to move the point of criminal liability further back in the factual chain of events and so now you have a more difficult question of whether the lesser minimum conduct for attempted offer to sell also rises to the level of attempted transfer under the controlled substance act your job is made easier however because both parties and indeed the court in had dago agree what the minimum conduct is reading from dog go and indorsed on page twenty one of the government's brief the minimum conduct necessary to violate new york penal law one ten to twenty thirty nine is a question of new york law or not federal law taken together these two statutes stand for the proposition that a person is guilty of an attempt to offer to sell a controlled substance in the third degree when she intends unlawfully and knowingly to offer to sell a narcotic drug and engages in conduct to effect that offer and then the court goes on to give a very real example for example one who's prepared a written offer for sale and attempts to deliver it to the intended offeree has attempted to make an offer of sale even if the offer never reaches the the recipient the intended recipient and so the minimum conduct everybody agrees is a failed offer to sell you try to make an offer but you fail and under new york law that doesn't require possession that doesn't require agreement that doesn't require in fact any contact with any other person because you failed to deliver the for and what you need to do then is measure that minimum conduct against the federal standard articulate efficiency of evidence to support the conviction of possession or tempted possession with the intent to distribute i think which is a kind of specialised circumstance it seems to me in which the court found that people didn't show up to take possession and therefore they had done nothing got convicted of the conspiracy charge and that was up held that moving it from that that's focusing on possession did they attempt to  intent to later distribute here we're talking about attempt to sell and attempt to offer to sell which dago said one can accomplish that's not a logical impossibility and that that is within the federal statute as well as distinguishable it's not controlling here ok your honor i read it a different way but even put down becchio to the side look the minimum conduct is agreement on a failed attempt to deliver an offer where you don't possess any drugs there's no agreement there's no contact i asked this court does that rise to the level of something that could be criminalized as an attempted transfer of a controlled substance under federal law i don't think you have the  necessary to get to criminal liability underfed of your saying you would need to at least possess me what kind of looking at the circumstances around you would need to possess or would need to have reached agreement or would need to have made some prior contact with the persons in involved absolutely with the statute and to spell that out his plan element of the crime that one possesses and then with possession attempts to offer either the statute or the elements  the statute amplified by the binding case law from new york but if the new york case law has interpreted the offer to sell language as to require actual possession or if it interpreted it to require pursuant to an agreement then  agreement that was subsequently reached then that would be sufficient so either it needs to be spelled out in the statute or it needs to be spelled out in the new york case law and here we have neither went to a moment more i just felt there was tension between your two aren't comments one saying arguing in the alternative our primary argument is that is entirely legally possible that it can be done in the way that we just discussed about in terms of the minimum conduct to the in the alternative and also that there's a realistic possibility that the state would prosecute in that circumstance right don't you have to say that under moncrief absolutely your honor and we not only can show that because they have other offer to attempted offer prosecutions that we cite in our brief that offered a bribe not an offer to sell drugs but legally indistinguishable and because the six circuit courts that have considered the issue have found that where the plain language is where the minimum conduct is clear in the plain language of the statute you don't need to resort to instances of prosecution right here the minimum conduct we're proffering is the language of the statute attempt to offer to sell our terms from the statute and the first the third the fourth the six the ninth and the eleventh circuits have all held that where the minimum conduct is plain on the face of the statute that is sufficient to establish a realistic probability so we have both we have we have both agreement as to what the minimum conduct is we have new york case law stablish in what the minimum conduct is and we have a plain language of the statute establishing what the minimum conduct is if for any reason all of that does not convince the court then and you need fact finding as to whether there was ever any prosecution the b i a has said that requires fact finding a matter for error in every man would be  and you don't think we would have to have to disavow our decision to go absolutely not because that was that was that was our alternative argument which has been rejected in a nonbinding case but been rejected i think you can consistent with adolfo say a new argument has been advanced here about just what does it mean to be attempt to offer and does that rise to the level of something that would be a felony under the controlled substances act very good will hear thank you very much you have two minutes we thought  it please the court and it was harling for the respondent the attorney general the united states in this case the agency properly determined that austin was an eligible for cancellation removal given that her new york conviction for attempted criminal sale of a controlled substance was an aggravated felony and this court reviews that determination i'd like to track the analysis in my brief in which we initially started out by spice noting that this court in the pascal decision recognized that the underlying conviction in this case for section two twenty thirty nine is categorically an aggravated felony under the analogous federal statute similarly attempt under new york law is constitute categorically constitutes an attempt under federal law because there is no realistic probability the attempt under new york at that attempt under new york law would fall outside the federal definition of attempt this analysis tracks the court's decision and had our go back surely identical where the court first noted that the underlying categorical the underlying conviction had been deemed categorical by pascal and then that the combination results kind of an absurd situation where you're convicted of attempted offered itself but you don't but that's not the case because in the he dago decision the court specifically rejected the argument that an offer to sell equated with an attempt and that is the crux of the substantial step argument that he's advancing primarily of the miss austin is advancing primarily and also the improbable mens rea argument if offered to sell the government's position that i'm concerned about the implications of the government's position because it seems to me that using that metaphor of your adversary that we get way back in the line of contact that leads to the  so we can have a removal happening because of an intent or an attempt to offer to sell absent any possession of drugs absent any real assessment of the bona fide ease of the offer and that it just has such drastic consequences and as an academic matter we can conceive of all of these hypotheticals but it has such practical consequences from his austin that i wonder at the government's position could you address that concern goes back to this to another point that was also hasn't shown her her hypothetical that this results  being guilty of an attempt of an attempt it doesn't work because she hasn't had her burn to show that that is how the state of new york interprets her conviction she hasn't cited to a single case where new york recognizes that under this law these two statutes together result in a conviction for an attempt to attempt and that makes sense because the state of new york doesn't recognize a conviction for attempt for it i think i thought counsel had cited various cases in other at least it's evidence that they haven't established that new york views this conviction that way as an attempt for an attempt so you think that there is no realistic possibility that this statement actually prosecute in a circumstance where it wasn't a bona fide an offer and there wasn't access to drugs and something else to make it as substantial rather than an academic possibility that the crime might have been accomplished because the academic exercise is exactly what the supreme court in doing as areas warned against they said they said you know you it's not just about legal imagination there needs to be a realistic probability and if you can't show that then then that's the fault you really rely for it to address my federal concern about the immigration consequences we kind of rely on the state's discretion in how to charge attempt to offer attempt crimes the government thinks we have to because as the court noted in the dagoes it's a question of state law and what do you have showing that that how the new york interprets the statute in this case they were looking for a substantial step in delvecchio which they found wanting even though there have been numerous conversations about you know setting the price of the purchase and arranging where to meet and so on and so probably enough for the conspiracy conviction but not not the attempt here we don't have such kind of m for more what no not to the extent that you can look past to pass the statute on its face and that's you know that leads me i'd like to address this point where the various circuit courts have stated that you know if it's clear i don't think it's clear what it what it means on the face i mean you have you have in the dogger there saying the court acknowledged that an offer to sell was not an attempt and then today now he's saying that that a failed have two minutes mr work with thank you under just a few quick things i want to be crystal clear we're not arguing that the minimum conduct is an attempt to attempt as was just stated we're arguing that the minimum conduct was an attempt to offer to sell which is exactly the language in the statute and the government harps on the fact that i can't wave around and i can't wave around a new york case where there's been a prosecution for attempt to offer to sell a controlled substance but that's not the way this court just did the analysis in harben where the statute was clear it's a case that just came out two weeks ago where the statute was clear different statute different totally different statutes the method of analysis same as with the supreme court in the luly in s q l where the statute is clear they went straight to one of the statutes say that's the minimum conduct and that makes entirely a lot of sense if you look at the origin of the realistic probability test in doing is that over us there was an ambiguous statute where one party said it reached unintended consequence the other party said it only reached intended consequence hartman's roll and it was th e drugs harben is only relevant for the mode in which it did the realistic probability analysis it looked to what the statute was and it said i can tell what the minimum conduct is by reading the statute i don't need to find a case where the minimum conduct was prosecuted to establish the realistic probability the statute is plain on its face it establishes a realistic probability and it was just the it didn't it didn't spell it out the way the other six circuits have spelled it out the six circuits that i that i referenced previously have all said when the statute is clear you don't need to resort to finding an instance of prosecution but the that's the way the court did the analysis as with the supreme court's decision in molina and of the other circuits would you point to one in particular that has a statute that's identical to new york's no no they're all different they're i mean every circus looking at different statutes and they're not identical but what's what is i just what is identical is in those cases and in this case the proffered minimum conduct is plain on the face of the statute and if i take a second i'm doing as i say one second last but the indurain is because there was ambiguity in the statute they couldn't tell whether the proffered minimum conduct was actually in compassed in the statutory text and the case law didn't make clear in that context they said we got to figure out what the elements are you've got to show me at least a case we can't use just imagination to figure out what the elements are but as the subsequent supreme court second circuit and other circuit case law makes clear when the statute is clear it takes no legal imagination it's easy to get lost in the legal thicket on this case but i want to bring us back to judge carney's point which is at bottom this is about ms austin and this is about whether the agency has the discretion to that that's correct she that that's correct your honor she she said that she exercised negative discretion it was a close call i know because the first i j voiced favorable views of the equities the equities involve a huge u s citizen family and we're entitled to did novo review at the at the b i a of that discretionary finding we briefed it to the b i a the b i explicitly didn't reach the issue and therefore we it's not properly before this court if the court is concerned about discretion we need to get our bite at the apple at the b i note one critical point in the agency's denying discretion that digests level was that she had only been out for one year with during the fact time that she was clean and sober she's now been out for four years clean and sober