case has a bit of a developed procedural history which i'm happy to stand for questions for but but i do think that there is a very narrow grounds on which this court can actually resolve a case  notwithstanding the procedural history so we have raised three issues that we think would entitle us to be to have the petition granted because the question is whether or not right the board found correctly that my client is statutor ineligible for non legal resident cancellation of removal make board found him ineligible on a statutory ground the ground that they found the been eligible for as they said he had convicted has been convicted of a crime involving  to our first argument was that you know the court the board of the first instance that signed it not as a matter of law not is but a fact actually because you can search the entire record of conviction and there is not any document do you have any cases that suggest to be i can't determine what the statute of conviction is when one is not provided i don't your honor but i think on her it seems to me that that's c i m t that's what it says to do but there's two ways right in which when a conviction causes or triggers an adverse immigration consequence there's two ways of which that can that can be found one is there is a purge in which you can admit you could make sufficient factual admissions to admit a conviction such that it can be considered a conviction as a matter of law but in order to do that much like the court observed in two thousand and ten decision that there are certain requirements that must be met in that you must present the individual with the elements of the offense with each element and the person must admit those elements i have the cites in the prior bailable i can provide the but that's that's the only way that candid admission in this court observed in two thousand and ten and applied those four decisions that hold that to find that you know even though he talked about having a sexual relationship with a minor that it wasn't enough to have to be a conviction argument well it is but if they can cite to twenty four zero eight three and that is the petty theft statute that seems to me this is a tough argument for you to make one and let's move to the easy one because i've got an easy one for you in which i was  one is that let's assume they're right let's assume they're right and legacy in the statute of conviction is eight hundred twenty four zero three sub three which is what the government argued before this court when we were here before that statu position first if you is ernie i don't hold you digital opinion that holds a temporary taking would result in a conviction for petty theft there is your honor and we cited it in that case it's united states versus hold well it's cited it docket eighteen i stand by here i might give you about docket and cite docket forty nine and that's our supplemental brief that we file post mathis to make this argument because the statute defines some three says that you have to intend to appropriate or defer to appropriate or and i want to look at that choice but because i'm not sure i really focused in on that case but the reason i ask you that question is it doesn't seem to me that the idea was statute is any different than the statutes for petty theft in california and otherwise that have been held a cia mt if i compare the statute with the statutes have been that have been held to be a c i m t they are exactly the same and so therefore i say to myself golly how my going to get around that you look at flores warres versus me casey you look at the united states versus as far upon its you look at the matter of news which is their decision from the b i that all say they are that we don't dispute that if as an element if as an element of a jury must  although of the face the statue might look the same so again there's three reasons that we really there's the arguments we have one is eighteen twenty four three itself the overall statute has several subsection some of the subsection specifically on their face say in order temporarily private but the subsection three and a number of other of those subsections don't save herman are temporary they just say you have to attend to appropriate then if you look at the definitions as to what intention appropriate means it says right there that it could be permanent but it also could be less than permanent and state because well a stake case construes it that way in the comps teaches us that we have to look just a case of we have to look to what actually a jury must unanimously  find for it to be an element in this case the subsection accepting it as true if we wish that it's eighteen twenty four three is simply indefensible nope abroad ok if i don't buy that if you've got another good argument yes i do i'm telling  reason i can't find a judicial opinion holding a temporary day king would result in a conviction for petty theft look at the jury and spatter jury instructions that does not suggested i look at deprive the word as idaho defines it that doesn't suggested in twenty four zero two three a i look at appropriate and i can't find it because appropriate says exercising control over the property permanently are for so extended a period or under such circumstances as to require the major portion of its economic value or benefit to eight hundred twenty four zero two one  prospectively we we we contend that they actually are read to the deprivation of economic value can be less than permanent then we can find that de corps and in order to deny the petition this court has to find that not only was the statute populated a fight on this record which doesn't have a statute a conviction but that the agency's determination in matter of court has which explained matter by monza the familiar name but  agency case that says that when you decide to apply the crime a moral turpitude deportation ground against a non admitted alien for the purposes of saying they're not eligible for cancellation of removal submit the first the agency is not the best position to determine what is criminal what is not but even if they are and they're right to say within five years admission it's not really criminal how do we apply it this court and the board has over and over issue cases that try to give the full meaning to all of the descriptive language that appears in a statute and that's what they've done in the board did it in rather garcia hernandez when they said you know when we apply the petty sense exception to people who are inadmissible we consider as part of that statute excuse me when we when somebody has an admitted seeking admission to united states and they ha have a petty offense that that's read into that part and parcel of that you i'm glad you got there because i want to ask you a tough question or at least tough for me if the committed within five years after date of admission language which  additional language or ten years in the case of an alien provided a lawful permanent resident status under the section we would object to such a reading that i we've argued we actually the book fair reading would be to be give us much meaning to that language would be had to separate time periods for a daily ins who entered illegally would get a greater right than those who would marry entered lawfully i mean if i said that the committed within five years after date of admission was really a political then i would go to the standard about the lp r s and it's ten years so then what i would really be saying is i'm going to give aliens who entered years and therefore we're in a tough state well this i guess this court has dealt with this problem before it was like the technical definition of  language well i understand that gonzalez gonzalez is pretty straight about what we look at when and when we're looking at this kind of a situation and and i guess i'm having trouble because probably take a country position the court here in the ninth circuit has has come and the board has noted that there are different definitions of the word emission because for instance in some of the just status this court has held that it is deemed  dicta and you know it is such a departure from how they've interpreted it really endeavor to give meaning to the language that we think that if they wish to do that they must do that in a bank decision that they can't silently and without substance yes and could you before you start cortez canal is was appealed to this court i was on that panel we heard argument we went through all of that case agreed to mediation and that's been pending do you have any idea what the status of that mediation is i do not know the status of the mediation and i can surely find out and fight the court after the hearing because presumably the government is taking that opportunity to think about its position and well i don't know that could be no and i'm not asking for a disclosure result and published in right will sometimes the mediation and i would suggest that cortez still stands as long as they don't overturn i understand i understand but sometimes that was the very opinion that the board relied on and we heard argument as to whether it was correct or not right and i don't have a clue as to why we sought mediation or if it was agreed upon by the parties to maybe further  but the board gave two rationales the mostly most lengthy one was that the statutes unambiguous that congress knew how it was legislating when it came up with this because in the stop time rule which is twelve twenty nine be friend y they talk about an alien stop continuous physical presence if they're deemed inadmissible under section eleven or twelve twenty seven so they knew how to use the terms inadmissible or deportable here they chose not to when they just was ambiguous that it was going to exercise its authority under chevron to fill in the hole if you will and say that this is the way we would interpret it so if we conclude the statute is ambiguous and the  misconstrued the ambiguity can we still affirm you can because they gave you some wiggle room they said that if the statute is ambiguous then we are exercising our authority to interpret the statute under chevron so you hiring about chevron step two at that point correct and you can find that their interpretation is reasonable and do so by citing dollars going to all of the b i ever say the statute was ambiguous i think they said the statute was clear they didn't say the statute was clear they're saying the statute clear and we think it's ambiguous i'm not sure that we need for i think we need to send it back and say we see it gives ambiguous so would you please do your job well they they did say it was unambiguous and they gave their legislative reasons why i thought i wrote it on my notes here but they did cite that and i don't want to waste a lot of time but i can provide it to the court of national porton issue to me but i guess i can look i can read it myself and find out it was there it is there it's one sentence towards the end of it but they do say that if the statute is ambiguous then we would exercise our authority under chevron to find that this is our interpretation of it i don't have that mark either so i can't point and then that's my fault i thought i wrote it down on my little chichi here but i d what i can buy for the court as well as i was if it's in the opinion it's either there is not i mean it is there and i can provide that as what the answer to judge fish question as well and to move on to the other arguments that regarding the crime involving moral turpitude she proposed to me the resolutions according to her but there is an even easier one and that's that the court doesn't have to reach that in the two thousand a petition for review all of that was time section of the statute were found to be ambiguous we would interpret it in the same manner but there's no analysis and what bothers me is that if you look at the legislative history it goes absolute contrary to what the found and they don't talk about it the legislative history and acting and acting this section congress describes one twenty nine b be wanted in the house conference report and it says this is now the conference report section one twenty nine but it doesn't look at this particular provision is said listen we we say that this is what we're sending you off this and there's a description but then it doesn't analyze the particular issue we've got here in front of us well i would suggest that that's just the house report that doesn't reflect the actual a firearms offense we're not looking at whether they're in admissible or deportable and as i was suggesting earlier they use the terms inadmissible in a portable and the stop time rule which says that an alien stops accruing continuous physical presence in the united states if they've been convicted of offense that would render them inadmissible under eleven eighty two and that's only two subsections down and congress is supposed to know what they're doing when they write in one section what they leave out and another so i would suggest that court didn't address whether of the cia m t v or any of that issue if found at the reman was limited to just this question which we've been discussing and it only decided on that issue is whether that after five years language should be removal and that's what it did in this decision and it declined to address all the arguments that are raised in the original two thousand a petition for a view which this court passed on so the easy route around that is to say it's not even you're saying well ok no they don't go to chance when they're back up here to resist shoes well we just don't have a board decision on that applying the categorical approach you're dealing with the argument that the correct statute w identified those were arguments made to the panel and the two thousand a petition for a view and from what i read in the two thousand and ten decision as it seemed like a pretty limited remain and on this issue that we've been discussing this morning is whether this after five the fact that there's this temporary deprivation issue that could render the statute non cash categorical and could then raise the modified action would have been to file a motion to reconsider or reopen with the board of immigration appeals saying you'll overlook my arguments you made an error of law or america fact and doing so second if the court doesn't want to go outside the limited  it is permanent taking some of the statute in if you look at the jury and stuck instructions that have the title petty theft the elements of that statute look at an intent to deprive or an intent to appropriate and the definitions of depriving appropriate in the idaho code talk about their either permanent or it renders the item so no good it doesn't have any value left so it's all equates to permanence does it with respect to sort of marching orders for the tickets as i understand the panel's decision at the moment we'd like you to report back on the status of mediation but as a further briefing for any order from this court sure yes sarah and if you'll have any further questions we would just ask that to just the last point first you know we also seem to know the cleanest way to resolve this would be to reach the legal question whether eighteen twenty four zero three is divisible or not we would suggest that this case shouldn't go back t board to consider that question it's concerning the criminal statute that's really the province of this court and we also think that the remained was actually not restrict that the purpose of the remit was that the board took an overly narrow view when the problem identified in the two thousand and ten decision was that the board did not provide a substantive analysis in order to a about how it apply the relevant statutes in this case then it said for example the five years language pay offense but if we do with that and said we instruct the board to look at the statutes and go back and enter a proper order and we argue that the first logical step of deciding how to apply those statutes and produce a proper order is figuring out what the statute of conviction is so we think that had a fair opportunity to address that that they chose not to and that this we would not object to a supplemental briefing on that argues that she the board yes we did so you had your opportunity to argue to the now you're saying the re man was broad enough to for them to full well address it without you having to make the motion but you didn't address it no we did address it i did but we didn't address in the opening was hey to me man really got enough for you to get to this because we thought that was obvious and so we said so hey first step find out the statute a conviction you can't do it if you don't have a statute in the record then we got a response brief saying oh that's outside the scope agreement and then we replied it's like we did here that said no you're taking it