will be patel versus attorney general number fifteen three nine one five india aai came to this country ten years ago legally as a lawful permanent resident is married to a lawful permanent resident he has two two children one one of whom is a us citizen now and the other is still a lawful permanent resident the reason why he was ordered removed is because he was convicted of violating eight us code thirteen twenty four a an element that that section if one has is reported as a result of violating that if one is convicted of violating one of one of the five that controlled substance decision completely different from what we have here though well i think the only difference is that the parent thought of coral it is before the section of of the criminal law that that somebody was convicted of here the parent protocol is immediately following the the section of the criminal law that he was descriptive or restrictive i mean the next case i guess it was restrictive in that case well maybe yes maybe maybe no or one of the supreme court cases of all but one indicate that it's an elements only situation and and so for in order for to be an aggravated felony the crime must contain all of the elements that would fit the section of of the rod that is found in the immigration and nationality act and in this particular case it does not and if you accept if you exist if you if you don't accept the the the the section here that we're that we're dealing with unless unless you give some weight to the parent thought or call related to smuggling you are in effect here illegally which doesn't answer the question that puts an entirely different meaning on the section of the law that he was convicted of a person can come to the u s illegally without any smuggling element involved into it i hear she can do it on his own for example walk across the border all by yourself you're here illegally you haven't been smuggled you can apply for a visa one be admitted to the u s from it to the terms of the visa and you can overstay that that the your your status that you were admitted for and you are now here illegally that has nothing to do with smuggling the council how do we reconcile that with our statement to tell that we think it i b s that even the nontechnical offense of harboring immunity and does relate to it's not going because the fence requires if a person does not affect you come to the u s with if you enter the u s without inspection you can do it on your own or you can do it with the help of the smuggler one out of two if you come if you come to the to the u s with a visa you may have unlawfully but you've overstayed or violated your status in some way you haven't been smuggled in at all and and knowing that you have a passport you do it all by yourself you get of these all by yourself you or your admitted you've come here illegally no smuggler involved the third way you get help from a smuggler so one out of three so you've got forty percent chance to us five for a two out of five chance regardless of whether it's a wy or entry of with inspection you only have a forty percent chance of a smuggler being involved now i don't know that but it's all case i happened to be involved with before the board and the immigration judge lost both and was not hired for the appeal before the scores not that it would necessarily mean any difference but so i am familiar with with there is there is not a situation where it's necessarily involved with smuggling  come to the u s illegally and had to arrange for the employment at the time that they at or before they enter and that could have been i'm only the sizing and that could have been the state facts before the court but that isn't the stated facts before this court with this mr patel if you do if you look at the the documents that are submitted in the appendix for the conviction me to be indictment that he pled to does not contain any facts that relate to relate to smuggling if you take a look at the plea agreement that that was what part of the section of the law the person was convicted to convicted up there is another way of looking at it as a result of the supreme court case back in two thousand and nine that was not cited in either british to you were where the facts when the statute because of the very nature of it that there were that there would not have been any element in in that statute or in most of the other statutes that were similar that would that would correspond to an aggravated felony and in that case it was a question of fraud in fraud had to be over ten thousand dollars and there are a week and a half ago or actually we go friday a case came out of the board called stroud yes t r a d n a came down on may twenty seventh and the site is twenty six i n n decision seven forty nine where they use what they call from this one the circumstance of the approach and this has to do with the domestic violence conviction and the person was convicted under regular of assault conviction and notwithstanding the fact that the person could have been convicted under a domestic violence section he was he was not but violation you must be dealing with a controlled substance that identified in the federal drug schedule and that makes it restricted i'm not aware of a case that has this gust that language in the context of controlled substance a and i i believe the court to tell went through a let's let's leave analysis and indicated that congressmen that section thirteen twenty four were to encompass the broad scope of needs to address that that because if you're being duped into this provision is because you've been convicted under thirteen twenty four in a different court if you're appealing that conviction i think that raises that issue but i think that well i think the reason that that point about harboring relating to smoking is enough but when it's because it wasn't this positive and tell at the un under this definition all that and perhaps i'm not quite getting just a fair question but  my understanding of this is that all you have to show is a conviction to be removeable best the issue here is the removal as an aggravated felony for having been convicted visit fence so all that border the immigration judge and the board here had to do was to determine whether there was a conviction under this exact if we keep saying a categorical analysis unless it is a true categorical analysis we're not comparing anything to anything this the statute conviction is exact same facts you identified in the definition so all you have to do is show conviction under that exact same statute and you are moving as an aggravated felony and that's the end of the inquiry we need not compare to smuggling teen smuggling is restrictive and so we're only looking to actual smuggling now we have a footnote in tell that suggests that we don't need to talk about whether it's restricted or d c or descriptive because it harboring there can be harboring without any relation whatsoever to smuggling i don't think are espousing that position your honor i think that that's just the that reference is just helpful or or like a fourth or fifth justification for how to tell came out we don't we believe that you don't that because the parent that occur is scripted you don't even look at it in fact there's an argument that you don't have redundant language in the statute so why statute to say to describe it that it's con subject matter of the statute deals with alien smuggling i don't think our position is that you look at it the premise behind looking at the very narrow set of circumstances it's not congress that it was it's brought but we don't have to go there to decide this case they can keep him back he runs them to proceed as if it was not there that is in effect a real legislation of of an obligation that is that under the constitution congress has and not and not the government the law this court that intervening supreme court decisions arose a panel go over the rule of previous published decision without and bank review so i think you have jurisdiction to to do that if i'm citing approach and the modified categorical approach both require an examination of the elements of the crime of which the alien was convicted when you examine the elements of this particular crime there is no element that relates to smuggling that should that's the issue is as i see it hopefully that's the issue as you will as well