appeals upheld the immigration the baltimore immigration courts determination that mr deported removeable from the united states based on his conviction for maryland third degree burglary because it constitutes a crime involving mor turpitude we are here today because we believe that that decision was made an error because of the reliance specifically primarily because of the reliance on matter of louis sont it does not control the present case as the florida burglary statute in question in matter of the response has an additional element of occupancy that the maryland third degree burglary statute does not second the traditional interpretation of burglary offenses under the board an issue of first impression presented to this court the maryland burglary third degree statute has never been presented as a crime involving more turpitude and there is no controlling be a precedent therefore we are requesting that this constituted the conviction of the individual in that case requires that at the time of the breaking and entering the swelling is occupied and for that reason a lot of the language in that decision and the subsequent decision by the immigration court and the board of immigration appeals invokes questions of privacy and both questions of potential confrontations between the individual burglarizing the dwelling and the person occupying the swelling at the time of the breaking and entering that concern is not a part of the maryland third degree burglary statute maryland burglary third degree merely requires that it's defined as breaking and entering a dwelling with the intent to commit a crime nothing more nothing less and for that reason to engage in the factual kind of considerations that the government and the those examples i think would be a a vacation home that is it say a summer home on the eastern shore that throughout the months of september october october to march or april is not occupied and there's no habitants there's no habits he said in that home during well period would a burglar have any reason necessarily to know that and would that address the instant in which a neighbor might suspect burglary and might be alarmed and might call police within so in confrontation that a that assumes a lot doesn't it so that's really why i'm asking about the dwelling and i'm not sure that the vacation home gets ok another example would be a home that is in a dwelling however the structure does not lose its character is that welling simply because of his left vacant for a length of vacancy does not of itself disturb the character of the place as well it would seem to contradict your potential that's not correct and i think this is the president have an opportunity to respond to this previously but the potential for conflict and the potential for confrontation with the owner of the tenant the police the neighbor is not an element of a crime involving moral turpitude and that's where the luis analysis is misplaced because if that were the whether confrontation could occur the alleged crime then something like trespass would certainly result in a police officer showing up or a neighbor seeing something and that would under that analysis it would be misplaced because it doesn't certain instances and i think in louise on the board itself addresses the matter of them which continues to be good law and has never been overturned by  decision or a circuit court decision so matter of them is the original case law that that creates the idea that for a burglary offense to be a crime involving mor turpitude the underlying offense must be most involved morally turpitude misconduct what occurs in luisana is that the court is confronted with a statute that does not specifically fit within that mold of the new york statute and matter of them so the court is tasked with well we have a statute here that requires this additional element of occupancy occupied dwelling so the conversation is not how it's welling is defined it's whether the state statute has element of occupancy and occupancy in the florida statute is very strictly defined as that an individual is present at the home at the time of the breaking and entering converse leave the florida maryland the maryland legislator has decided to create a burglary statute with varying degrees and statute in which first degree burglary in maryland is breaking and entering welling with the intent to commit a theft or a felony and we have a third degree statute that maryland does not need to look far to see other examples of statutes like the florida statute like saviors own a statute and say you know what we're going to make occupancy an important part of our burglary statute this chosen not to do so and for the government then to use that maryland burglary third degree statute and compare it to state statutes that their state legislature has purposefully included an element of occupancy and then playing at the very specific factual situations that benefit the government position and say well you know there could be a situation where somebody is home and this could happen and there could be confrontation that would certainly be morally turpitude in his conduct i don't disagree with that the problem is that that's not the only type of factual scenario that exists under the maryland burglary thirteen i said actually agree with you which is why i started by asking you what's the least culpable conduct  interests so that one that was sort of why i started because i understand specifically what you're saying that we could so we should take the least culpable you selected and your honor i think part of what should be considered by this court and what was maybe not considered with enough weight in the lower courts was also how a drawing is defined not only vacation home or the home in between and between tenants but that it could be a boat home that it could be a motor home it could be a vehicle and those concerns of the the government presents an argument that burglary is always an invasion of privacy and certainly i agree that the home is a secret police but that's exactly what makes the florida statute so different that it ensures and guarantees that the mystery been i differ is a situation where the government's brief presents a statute that at minimum requires is a situation where during the day somebody has gone to work and the house is there empty and therefore an occupied at the time of the breaking and entering however that person returns home and sees you know a a burglarized home and certainly should feel that their home has been invaded and there has been an invasion of yes i believe that the maryland courts have have have said that in situations where a suitable home for living is not being lived in that that is burglary and i do not agree that possibility of either confrontation with law enforcement or with neighbors or with somebody that happens to see the crime being committed you do realize that that's not what that turnaround welling retains its judicially determined meaning if it's a place used regularly as a place to sleep regardless of whether it's temporarily unoccupied the question is whether it remains suitable for occupancy for rebuttal thank you very drawing with criminal intent is contrary to the accepted rules of morality and societal duties and it is that's a crime involving moral turpitude i'll jump straight to the matter of louisana issue and regarding the occupancy requirement of that case because the government that without distinction for this case there is no where in the florida statute does that occupied element include in intent its own intent therefore to violate that section of the florida law the burglar does not need to know dwelling is occupied does not need to intend for that dwelling to be occupied it just needs to be occupied  for people to sleep and reside and contain their personal belongings and that would constitute a dwelling and it would retain the same privacy protections as any other an occupied home in between tenants  that would go beyond what the florida statute provides for but it would still never the last involve moral turpitude misconduct the burglar intends to enter a house or a drawing that is meant to use to protect an individual as a place to sleep place to store coming to investigate a potential burglary particularly if it's a new house that no one's moved into i would imagine that somebody seeing someone else enter that house before someone new den would cause someone to call the police and and invoke a response from the authorities therefore i believe that the occupied prong of the florida statute is a distinction without meaning in this case i also believe that this court need not follow that the matter of and line of reasoning regarding the underlying intent and the underlying criminal pran the statute manner of them is vastly different than the statue in this case that statute punished breaking and entering buildings unoccupied rooms or any parts of buildings it is a very divisible my only other comments are about the least couple conduct and although you haven't asked me the question i will go ahead and answer in that i believe that actually hobby versus state which is the maryland case decided in our briefs its two thousand and fourteen case would demonstrate the least couple conduct and in that case is a former owner of a house that sold the house to the bank where the bank foreclosed upon the house and the breaking and entering occurred after that former owner had moved out a new person and moved dead and the house was empty for eight months in between and the maryland court found that it never lost its suitability for occupancy it was still a breaking and entering it was still burglary even though it was a former owner that entered the house and i believe that that still involves morally turpitude misconduct even though it's someone that once had a property interest in that house and it used to be that person's dwelling that person still had the intent to break and enter somebody else's dwelling would no longer belong to h someone else's drawling with a criminal intent to create a crime to to do some sort of crime with within that dwelling and it was no longer his own protected space so i believe even that conduct would constitute a crime involv not more similar to the maryland statute then the florida statute which requires an additional element of occupancy i disagree that luisana should be given chevron deference because  interpret the marilyns that's you and we have clearly identified a significant distinction between the maryland statute and the florida statute i would like to bring to the court's attention  where this language of the potential for confrontation with a police officer or with a third party comes from and matter of luis on pulls that language from the u s b james supreme court decision that relates to the a c c a and the specific provision there in which the supreme court was tasked with figuring out if it a burglary statute could result in potential risk of physical harm which is a very different concern then what a crime involving moral turpitude and what considerations a reviewing court should take in deciding whether something is a crime involving moral turpitude with respect to mckenzie i think the issue the most pertinent situation that i think i would like this court to consider is that situation in which a home suitable for a dwelling is on the market has not been sold and has been on the market for a period of up to eight months maryland would be doing itself a disfavor if it permitted the breaking and entering of that home to not be considered burglary because the defense would raise well nobody lived there and it was empty for a certain amount of time and even though it retained its its element of being a place  walks off the hook for burglary we are not determining whether burglary should be expensive or at least are less expensive when it comes to how the maryland courts convict that we are determining whether when a conviction for maryland third degree burglary is presented before the immigration court or the board of immigration appeals whether it should be considered a crime involving all turpitude and that specific issue of letter in which the board of immigration appeals i'll be it in an unpublished decision has agreed with our analysis that maryland burglary at their degree is not a crime involving role turpitude now certainly that case is not controlling if it were i'd be back at the board of immigration appeals but i do think it's important to note that this is not an argument that is being pulled out of left field that you know has no roots and no grounding in the legal analysis and legal analysis that the board has accepted and you know had mr reed be you know been before that specific panel member maybe we wouldn't be here today but this is why this decision is so important because of the inconsistency that is currently happening at the immigration court level and at the b i a level and why the fourth circuit is so important in holding that marilyn berger a third degree which is a very generalized form of burglary with the breaking and entering with the intent to commit a crime nothing more nothing less no occupancy dwelling that cannot be considered a crime involving moral turpitude because the florida statute which requires occupancy is