permission i'd like to start out by addressing the question that was posed to counsel's yesterday afternoon by e mail as to whether or not the statute at hand is it a divisible statute or is it in the visible the hawaii test statute i think when we take a look at what that means we take a look at whether or not is eight thirty three because it is theft in the fourth degree eight thirty two thirty one and so forth goes to the element of the offense which increases the theft by the value that is taking the value that is alleged to have been taken dealing only with this case the value was one hundred dollars or less but the elements of or to defraud of someone else's property or services and then the value of the case law that's been cited tell us that to us the the statue divisible in that sense i was getting new york thank you and the point i am trying to make is this in the in hawaii state the elements or the crime of theft in itself is in fact eight not eight thirty it's eight thirty one thirty two or thirty three eight thirty tells us the means or the way as to how to have can be committed for example number eight tells us that you can commit teff by taking items from a retail store with the intent to defraud eight are those independently defined crimes that is to say is the statute divisible and that sounds you know you want to it's not an independent crime because there are no penalties associated with well then why are you arguing that we should look at subsection six because that sounds like you're making a divisibility argument what in subsection sticks the point that was being made was that there is no intent to the private to the fraud in that case which the i j a himself actually was of the same opinion that the subsection six in fact is not a cia m p offense and the argument was made to show to reflect to the court that even if they were to look at it as a divisible offense under the record of conviction that was present there there's no supporting ok again when hawaii charges  someone with theft in the fourth degree do that the complaints typically refer to seven eight eight thirty i don't see that on the complaints regarding your client your honor if you take a look at the sort of fight record on appeal the com the make reference to eight thirty three point five which is the penalty provisions for shoplifting where there is a man the top thirty three five yes right thirty five is an eight thirty three five or eight believe eight thirty three point five is the sentencing provision for the special double fine sentencing for the petty misdemeanor offense of teff in the fourth degree so does  divisible if they're actually charging if you actually charge your client with a particular with theft of a particular kind namely shoplifting the law state obligated self then to prove shoplifting or the or or fails in which case it sounds like it may be divisible but let me let me back up your honor i may have misspoken what i meant to say was i would put it down i would put down the nature of the offense that causes that particular to have occurred but in this particular case you can see from the record that that is not the case that the state of hawaii has elected to do they don't indicate as to what offense it is they simply state that the elements of the offense that there will be proving to establish the offense of death in the fourth degree is one you took property with intent to deprive defraud to that was someone else's property and three the value is less than one hundred dollars without specifying from seven zero eight thirty the manner in which the that was committed that is correct and that's the point that  statute when you take a look at it is really is straightforward there is no intent to defraud or to drive on paragraph six and as i've stated before and you take a look state versus atwood the hawaii case tells us in an opinion that the elements for the offense of theft is exactly what i stated intent to deprive another and the value and in the same particular case statement is that with the hawaii case tells us in the foot no that there are means of committing the path and it's under seven to eight thirty the state versus gaylord which is the and state races which is a white cases involving well let me talk about gaylord because he was an attorney in hawaii and he was hired by a client he secured obtain a settlement on behalf of the client and from another client he had pain and retainer he didn't do anything he had stra that was staff the charge was intent to deprive the property in a value the eight thirty eight ways of committing nothing more the eight ways are not separate you cannot charge one with subsection one on eight thirty eight thirty you cannot charge two three or four and get four separate convictions they can only be one and in this particular case that makes it in the visible i see i'm running out of the right why don't we have the other side and you see it a little time thank you oh at whether theft requires a permit taking or temporary taking the court said temporary isn't enough a temporary taking isn't enough with the spec to intent to deprive that does decision was issued after the board's decision in this particular case so we f a motion to remain and with this court asking the courts in the case back to the board of immigration appeals for to take a look at the hawaii statute in the context of a arenas and then in addition as the court noted we just got your question yesterday afternoon with specter whether the modified categorical approach can or should be applied i think as to both questions those are questions that in the first instance should be put to the board i'm sort of out in front of my skis i don't have a decision of the board answering that question whether the modif categorical approach should be applied or whether or the impact of all monsoon rain is the question as to whether the modified categorical approach applies in this case one of fact law mixed law in fact i think is a question of law because you're looking at what do how does the would we just decided here that because i think the board in the first instance should be given the opportunity to look at your question whether the modify categorical approach because what you would be doing is taking a look at the facts and this is storable record saying looking at this why statute and saying yes the modif categorical approach applies ok then you i think you do have to then still send it back to the board anyway to get their construction of whether the modified chemical approach applies and if you say it does then they have to go on to make a decision about the impact of whether the modify categoric roche applies or not that i think the best of both questions is does the government the executive branch have have a position as to whether the modify category approach applies i have a position i think are you going to share that with us or i'm going to share with you but i just will be clear that i'm a bit out o because i don't have a decision on the board normally we're in the context of the board and i'm here defending the board's decision on the four corners of the board's decision we got your question last out yesterday afternoon so i want to be clear about the context i don't want to circumscribe or confine them but i mean it might  know how to how to handle your case i understand your awkward position we put you in the reasonableness of your position of the government's litigation position before the panel may determine whether we think it's useful to send it back i don't i understand modify categoric approach wasn't briefed below because the board said under any approach under any analysis under the kind of court approach all of these provisions under the white the statute r c i empty does that mean if we disagree with the board as to subsection six the taking your hypothetical i think if you disagree with six in our position on six then i think you do grant the petition but as the board said we disagree with that because they think all provisions under the wife if under seven away da thirty all you have is theft in the fourth degree so and we don't have in this case we don't have the jury instructions out of hawaii in this record here but i think the hawaii test actually says you commit fifty in these eight ways and then it goes to  fit anything right and i think the way the board used that language they said these are the modes of conduct and which statute is violated which suggests those are means not elements in the overall these are they if they're loons not elements does that mean that that that you're never that the governor is never going to be able to satisfy its burden under a if we get to a modified categorical approach i mean the whole argument rises or fall i think that's right i think that's what matheson the concept is if you're if it's a if it's a in the visible statute you can look at means why is your adversary wrong with respect to subsection six because if you are right as a subsection six i gather you lose i believe that's right i think his point on subsection six was that it's a civil contract in nature i think our point was  there's i'll just read subsection six j the first sentence a person and so the head is failure to make required disposition of funds a says a person intentionally obtained property from any one upon an agreement sounds like a contract or subject to a known legal obligation maybe a fiduciary relationship to make specified payment or other disposition whether from the property or procedure from the person's own property reserving an equivalent amount and deals with the property as persons own fails to make a requirement payment  different question about the intent to deprive because that's defined in eight hundred and it looks to me like under the first definition of deprived there's there's one definition that describes permanent which would satisfy our tast and then there's one that describes about the diminution in value which would come under the current definition but we have said is not retroactive cretan apparent would not apply to this to this petitioner so why don't why doesn't that knock this out as a categorical well that was our point about adding it to the board to have them take a look at the this isn't just a matter of us just looking at this and saying look you've got there's two definitions here which now satisfy what the board has sat giving the board full deference but we have already said you can't apply it the board can take a look at whether this other language dealing with permanent versus the substantial diminution whether that still satisfies its old definition of intent to deprive that's had the board hasn't been given an opportunity how do you that that seems like a bit of a stretch council since the board has gone out of its way to to create a new definition that includes a diminution in value but as i understand garcia versus martine is the board can apply that new decision retroactively so would have to look at bridal definition under intent to deprive to go back to the immigration judge the board have an opportunity to pronounce on that and if petitioner would likely disagree we'd be back here again looking at this whether the board was right with respect to educate just feels like the only way that the board can and construe this in a way that honour's i'll be very brief it's a simple question of law and motion to you meant to be for them to review their own decision again i don't believe it's proper the question as presented to you is we've made our position clear that it isn't in the visible statute i think even the government themselves agree that a thirty hour means of committing