ok before you stand up and argue let me just tell you briefly why we've done what we did we found in our so called people this opinion the french we've just alerted you for this morning but it was not going to be published until this morning so we knew at the very end of last week that there's opinion was coming down but we want to liberty to tell you so we figured the next best solution is to tell you this morning that we treat them as of course established law on the record activity question would davis we want to give you a chance to do both read it and then think through as best you can what's left your case ok so fire away i'm not i'm not sure we got fifteen minutes worth of stuff left to say that's not all of that was what was originally set out was th not a permit taking we have arizona case law on point that did shows the deprived definition it issue here does not require a permanent intent to deprive the first case on that is state v more such the arizona supreme court case cases your honor but nevertheless they show that arizona shoplifting is not a crime involving multitude because there is no permanent enterprise right to know that that seems to be pretty clear now the government may have a different view of the matter but ok sure our two thousand and six case where the b i a looked at a statute from pennsylvania and found that in a retail theft situation there could be a presumption of an intent to a private permanently for the reasons i just articulated the arizona case has been before the circuit he's been to detention for five years and these are for two shopping offenses that he never received jail time for that he's now been in federal immigration custody for a lengthy time i know he'd appreciate resolving the case it seemed decided the case on the basis of retroactivity well but if this is not retroactive what's what what kind of deference are we talking about difference for using in other cases your honor it because  say that there's nothing to defer to because the b i a decision saying that shoplifting is a crime of moral turpitude isn't retroactive to this man's case or you would prefer that we say fails on them again reward factors it is also not entitled to chevron deference in any case i'm pretty sympathetic to your entire argument my problem is with reaching your entire argument yes or if this man gets relief without it are we as a matter good judicial work supposed to reach your honor and that is a question i've been i asked myself as well and probably would research if i had a little more time to so it's a research that point but i did want to put the because something is illegal does not make it involve moral turpitude in the phrase moral turpitude cannot be written so broadly to include all offenses you know the board can change its position under brand x but it has to give some re explanation for why it's doing that and the explanation is gave india says that aga has nothing to do with moral turpitude it has to do with changes in the criminal law so that the board says because the model penal code and state criminal codes now consider theft to be theft regardless of whether it's a permanent or nonpermanent taking we must also consider it to be a crime involving moral turpitude and that conflates those two concepts in a way that is not a permissible construction of the immigration nationality act and therefore is not entitled to deference i was also prepared to talk about vagueness but i don't believe your r s would like to hear that at this point i am curious about something i don't know that we need to get anywhere near it in this case we've got a nine hundred fifty one supreme court decision saying it's not vague arguably it can be limited to distinguish but there's a problem that because our circuit law says ever since that decision not fake now there are some really good language by judge posner in a seventh circuit decision where he says nobody even knows what words mean anymore i remember no one thinks that anymore and nobody knows what as judge posner said what base and vile and depraved even knows what those words mean anymore or morally turpitude us because they're no longer words used in ordinary speech the way they were in one nine hundred fifty one so i see the strength of everything you're saying but i just i don't think we're allowed to overrule the supreme court until it overrules itself and i don't know why i would reach it is there any reason force to except that it would protect a whole lot of people who have committed petty offenses that maybe they shouldn't be deported for your that would be a reason for reaching at them there's an argument about constitutional avoidance if there are other ways that you can can resolve this matter but just to address your decision about about jordan versus george or george court was quite clear there was really limiting it to fraud but i don't think that you need to do that because of the changes that have taken place first we have the categorical approach which has completely changed the way we analyze crimes for immigration purposes  and then we have intervening authority that undercuts jordan versus george in the first one is pretty diverse it's kentucky which emphasize how important it is for people to be able to predict the immigration consequences of criminal conduct to the extent  that counsel defense counsel now must advise their clients of the immigrant possible immigration consequences but then we have the johnson case in two thousand and sixteen and there the supreme court highlighted the difficulty of turpitude and analyze it under a judicially hypothesised least criminal least culpable conduct and that results in two indeterminacy either of which might be acceptable by itself but together  said is a task that is it best guesswork so because of those changes in the law those changes don't foreclose this court from reaching the question of a vagueness although constitutional avoidance might thank you very much your honour's and there through three minutes left on the clock morning is distinguishable for the same reasons that i said that the second circuit decision that came to the same conclusion o by a was also distinguished or they brought that up in a twenty eight j letter and i responded i think that in this case we're talking about something narrower than just stuff we're talking about retail theft and so you know and guess this court on box talked about the montgomery ward reliance factors and change so if you go to the montgomery ward factors the second one is whether it was an abrupt change and the third one is whether there was reliance there where you are you telling us that is retrospective retroactively in this case yes that's exactly what i'm changed the landscape of how these cases are in allies but both before and after diaz retail theft where on the face of the statute not looking at the underlying facts but looking just at the language the statutory language if the murder what was taken the property taken was merchandise then the board had already had precedent case law from two thousand and six saying that that is categorically a crime involving more because there is an assumed intent to permanently deprive well but what happens if there is not a statute does not have that instilled assumed down while the board in this case held that it did we don't have to guess what the outcome would be under the old rule because board actually addressed this case under the old rule and that's why i think this case is different because in garcia the one you just handed me in that case no one it was clear that under the old rule it was not a  he pled guilty to a second offense in two thousand and ten there was precedent board decision looking at a pennsylvania retail theft such another ridgers saying we don't need b s well right because the outcomes are the same yes yes so outcome is the thing i'm not arguing that the analysis is the same deal as changed analysis as to how they got to that outcome but the outcome you're right in order and that's why i think the retroactive factors weigh differently here because there was controlling board president at the time of his conviction matter of geraldo gado that said that when on the face of the statute if you look at the pennsylvania delgado as compared to the arizona statute here they're very similar and when on the face of the statute what's being taken is merchandise then it's categorically a crime involving more turpitude so had he received that important criminal defense lawyer guidance they should have told him this is a crime involving moral turpitude because it was at that time i thought the pennsylvania law was different in some respects i can't remember for sure but i think under the arizona law you don't actually have to take it no asportation is required when you just move it on the show so so that the store doesn't notice and you can come back in a week when you've got the money for that shoplifting under arizona law but i don't think it is under pennsylvania law my understanding is that it's not under arizona law either i agree with you arizona and the wording is not word for word the same i'm not claiming that it is not undertake element is what interests me but the asportation so i think you're referring to shoplifting by concealment under arizona law that's one of the ways that it was done just to move it on the shelf but that is that is asportation moving asportation you have to remove it from the property well the arizona court and arizona construing it statute it does not require asportation in the commonwealth sense moving it is enough the arizona court in slovakia said that it did they were dealing with shoplifting by concealment and they said that it did involve asportation they address that i think you mean and so therefore you let your argument if we bought it you wind up with the ninth circuit decision deciding whether shoplifting and other such petty offenses are or are not crimes involving as your adversary well i want to go back to something you said that you could move something with the intent to come by and purchase it and i'm whipping you going to sam's and there's a gadget for your computer you'd really like it but you have no money for today so you put it in another part of the story the part and that has pads of paper and pens and stuff for offices and hopes no one else no notices for a week to come back with money that shoplifting in arizona i don't think that that would meet the intent requirement for arizona that yes that would be concealing and it would have asportation because you are moving it but it would not get it it's likely to lose value during that week so the store suffers a loss in value during the week i don't know who comes out i think it depends on how long and i think that that's what it would come down to is whether at the time you moved it did you have the intent to substantially erode the property value of it or did you just as you discussed have the intent to try and come back and buy it when you afforded it but the intent you're discussing isn't intent at apple rumors sites and you know they're going to come out with a new model this week to go you clearly have the intent to prevent somebody else from buying it which means you clearly  the in town of depriving the company of the money for the purchase price during the time you're hiding it but then you have the intent to give them the purchase price which i later well and you're depriving them of the interest of getting the money on time i think it again this is in some ways it comes down to the difference between joyriding which you're taking the car for just a brief period and then of course you could take a car and put one hundred thousand miles on it and then return it that's a temporary taking but that substantially erodes the property value which is why the board decision and diaz is reasonable that they say look some there are times when sibs even a temporary taking a road to the value of the property so much that it is practically permanent for purposes of the owner they've lost something permanently and that's the type of thing you're talking about but under hereto delgado at the time of this individual's convictions there was controlling board precedent that said that shoplifting where merchandise on the face of the statute looking categorically just at the statute where my dice was involved because people don't typically borrow merchandise and they don't typically joyride with merchandise it just didn't fit into the exceptions that had previously been carved out were temporary takings that are just borrowing without that it was having to deprive merchandise remember reading a story in the wall street journal not long ago that retailers were having problems with people who took merchandise for a particular use used that and then returned it and the stores were having their either blind does happen but that probably presses kind of thing right sometimes but that is up to the store to change their return policy if you know and that joyriding the prom dress it would be and this statute doesn't cover that because this statute talks about intent to substantially erode the property value or permanently deprive but under corrado delgado which this court has never overruled no court has ever that i am aware of said that that precedent board decision from two thousand and six was wrong or was not entitled to deference this arizona conviction was a c i m t at the time it was can committed so then that that means that under the old rule it was a cia t and now under the new rule it's not impermissibly retroactive because there could be no reliance the outcome is the same so now the board has clarified how it gets to that outcome now it just includes substantially eroding instead of relying on this presumption but under either analysis the outcome is the same in this case and so i think that that is where  this court's decision and garcia is different because in that case the outcome was totally different and dancing on them on the way to campus i think the name of it was to consider whether we ought to give deference to that particular position  positive so they basically say that oh i don't i don't have it right here in front of me i thought i did but they cite it and they say that it's out there and also in christie oh cruz i think that's actually the case i'm thinking of cruz sided gado and said well that falls still within the analysis that we've always had that theft where it involves a permanent taking intent to permanently deprive is a crime involving more turpitude so that's the one i'm thinking of i don't know about compos but this court has consistently held and i understand the arguments that are also being raised that shoplifting is small that it's just small and so but this court has consistently held all that stuff i don't know the other definition the other is just against the the the duties owed between people in society and that is that it's against the duties owed to people in society and right out of the liquor store with a six pack in your hand and they're not to see to it you just hope that's true it's not the same thing as fraud but it is another way for all that me and other way going it's put it under your jacket but it could also be just said but it still it's that intent the the culpable conduct plus the intent that the board has long looked at as what is the definition of a crime involving more turpitude and there's no surprise that retail theft is a c i empty because it was before and it is after diaz and we address that in our board i mean in our brief and talk about how the outcome is the same both under the old test and under the new test so that's why i don't think there's any issue of impermissible retroactivity here and the board said as much in their decision on the motion to reconsider their first decision the november tenth two thousand and sixteen decision they relied on ger law and then he filed a motion to reconsider and they said well we don't need to reconsider because there's no air of law this is now controlled by our new law and the board said there's no retroactivity issue because our previous decision was based on the earlier precedents and came to the same conclusion so for those reasons we would argue that this case is on a case by case basis looking at whether there's impermissible retroactivity this case there isn't because the outcome is th would you like to respond to that argument  t analysis to pennsylvania shoplifting claim that in that situation you can brew soon there's an intent to permanently deprive that doesn't work here for three reasons and that's because we have arizona case law explicitly saying that there is no intent the decisions in arizona case law and addition as i mentioned for the last time we were at in front of the circuit the government agreed with us on this point and cited the yarborough decision for the for the proposition that arizona shopping does not require intent to permanent deprive and now and because the d s was a rocket development they've apparently switched that position and are going to something completely different and i would urge the court to look at that it's on page one hundred four and the record  in their motion to remain and the government concedes that arizona shoplifting under the old rule does not require an intent to permanently deprive and is therefore not a crime involving all turpitude on the council much in the studio crew's case  d that case that construed california theft defense but to find the intent to personally deprive there the court relied on on california case law that had that intent that the scribe attend as requiring a permit and to deprive