court should defer to or otherwise uphold the board's conclusion that solicitation under section three twenty four of the maryland kernel code with the intent to violate section three of seven of the code is categorically a crime involving moral t a c i m t we contend that it should not for three separate reasons first the board failed to even acknowledge that it was departing from the prior agency position that sexual activity with a minor only involves moral turpitude if the perpetrator knew or should have known that the victim was a minor second even if the board had to acknowledge that it was changing its position strict liability statutes are fundamentally irreconcilable with the longstanding rule that an offense must require a mental state to qualify as a i'm off the top of my head i do not know what the ages were you know i can't but it under the categorical approach not relevant the court must assume that it's based on the least of the acts criminalized so in this case that that would include a seventeen year old teenager touching the buttocks of a thirteen year old teenager if the court does uphold the more determination that the statute in question involves moral turpitude we would ask in the alternative that it prevent the board from applying that decision retroactively against my client because the contrary decision in matter of silver tribunal one was still in effect at one time he did not get back that your client's already conceded remove the ability that's not relevant that's not relevant because the question is whether he was eligible to apply for cancellation of removal this is the only obstacle standing in the way of board not even say in any deference to the board or how they read it we just say that is a crime of moral turpitude for purposes of immigration law or any other law yes that the court certainly has that power and so on and then you would lose your view and then we would lose and sort of push on that a little bit assume for a minute you're for i want to get your first argument that you're bored failed to explain it's change in position explaining why you think we could then go on to say i guess like but that's kind of harmless error because we're deciding for ourselves with the statute means without sending it back to the board to fix this state farm problem i suppose in that in that circumstance  the proper remedy would would to would be to send the board back to send the case back my assumption based on judge question was that what gore would have rejected that argument but why would you have to send why would you have to send it back we just doctrine any other doctrine and it has nothing to do with why the agency has done is just this is what the law is and if you look at it any other way is arbitrary and capricious you don't have to defer to anybody or anything if a court which control jurisdiction were to make that statement would you well your honor i think the question is a bit academic because at the end of the day the same reasons why the court should not defer to the board are why the statute is not a crime involving moral turpitude in the first today we were to say we are now stating that statute is a person who violates that statute is committing a crime of moral turpitude period well we have to send it back to while agencies are of course free to change their position the supreme court has repeatedly held that they must at least display in awareness that they are changing position and address to reliance interests created by its prior position the board in this case did neither it acted instead as though it was writing on a clean slate but in truth the slate was far from clean and silver trevino one former attorney general who casey held that sexual activity with a minor is only a c i m t if the perpetrator trevino won in this case the board the board nonetheless decided or stated that it had yet to decide whether sexual activity with a minor involves moral turpitude even if the statute does not involve a couple mental state with respect to the age of the victim now to support this assertion the board relied on footnote nine of its decision in silver tree no three which left open whether a couple mental state is required for cases involving statutory rape there are two problems with the board's reliance on that footnote first and needless to say statutory rape is a far cry from the from the least of the extreme lies under the statute the former statutory rape requires penetration the latter criminal the mere touching of the buttocks or asking in other to engage in the touching of the body why why is that a crime of moral turpitude may i ask you to try to engage in sex with the minor but under the statute the person need not know the have sex with a minor why why isn't that a crime or either you tried to have sex with a minor or you in fact had sex with them because it is a strict liability statute in so far as the minor can affirm only misrepresent said you either attempt to have since you are talking about the person would know the age of the person they're with i'm saying either have to try to have sex with a minor solicit or if you have to have sex with a minor because if you have no reason to know that the person and issue in this case is a far cry from statutory rape which was the exception that was left open in silver trevino for it is just that you find a new case he does find that's his golf he put on it because he thought that was what he that because it's only morally problematic if the diff if the defendant knows or should have no it's not that the victim was a minor that is not right i suspect a lot of people would say it's problematic if you do something sexual admit to a minor the board and i don't we maybe you don't think that maybe others don't think that but why can't that be the law because the board and federal courts have held for decades that a crime cannot involve moral to moral t it requires an evil and evil intent which today is manifested in the couple both mental state requirement so this is a in every other context a strict liability offense cannot qualify as a crime involving moral  where the board did in this case was effectively create a one off exception to the generic definition of a crime involving more turpitude and i think this goes back to the fundamental flaw of the board's decision is that it can't be reconciled with the categor need the sexual act is slightly different but the judgement people make that you can't do that with somebody of a certain age i don't believe statutory rape is different i think the true no three left open the question of whether the couple mental state would apply to case involving statutory rape we can i guess i i read it slightly differently i think you know one clear this applies t nine says effectively we may change our position on that we haven't decided yet but really we're leaving ourselves room to change this position but then they never did and so there is no explanation for any change in position i just want to stand by saying we want to reserve the right to maybe change our position on statutory rape as anything how is that helpful what my point is they did change their position in this very case it right but in this but they never they didn't explain in a footnote it's not as  gap that the government says the board left open in footnote nine was itself arbitrary and capricious because the board on one hand was saying we see no reason to deviate from the holding of silver to be no one that the perpetrator knew or should have known that the victim was a minor but we reserve the right to basically hold the opposite in cases involving statutory rape and the court and the board never explained why it could purport to uphold a principle yet reserve a subset of cases involving that principle  me you think that is about to roll is not a more it depends if the state is required to prove that the perpetrator knew or should have known that the victim was below the age of consent then y sex offender isn't but isn't that under the categorical approach that is not relevant because under the category of approach you're just looking at the elements of the crime and also i'm not i'm not certain in some of the cases in walker one of the maryland cases we cite  in which the defendant was affirmatively misled as to the victim's age the judge declined to require him to register as a sex offender precisely because of the facts of that case i see them over there ok thank you very in what kind of world is sexual solicitation of a minor not morally turpitude i guess they will say when it's a seventeen year old teenager who is with like a fifteen year old girl and touches her but through her jeans thinking i'm sorry she's thirteen but he thinks she's fifteen but that's not the generic definition that the word has explained and for which we aren't offended but it wasn't suffered by this you know you think it would not be y not because you think  going to get to judge shed's question on whether or not the court could just come out and say isn't this statute a crime involving moral turpitude couldn't we just do that yes you can now i mean would you let me ask you a question what kind of  world but of your hypothetical do the facts not matter how about one where the courts have to apply a categorical approach and that in the courts have determined that facts don't matter the elements only the elements and test and one of the categorical approach you would have to either show your case or a reasonable possibility that the statute would be utilized in that way and petitioner cannot show a case under the hypothetical he talked about in his brief about asking the parent to you know text the child to come home because i'm gonna smack you on the rear end that is not this statute this was not why this statute was passed teenagers do sometimes get prosecuted under statutes like this when they are with when they do write the seventeen year old boy thirteen year old girl is not like a fanciful hypothetical it has to be a child that is under under this statute marilyn stature that we're talking about it has to be a child that is under fourteen so thirteen years old and an age differential of at least four years i think seventeen right and so now we're switching back to the because what i was trying to get to a judge sheds question about can you just say that the statutes a c i m t yes but what we are looking for what we would hope is that your honors would give chevron deference to the board's generic definition because  has legal consequences across the whole country and not just the fourth circuit if your honour's hold that this statute is a crime i'm all in moral turpitude of course it's extremely persuasive to other circuits accent or a but we would ask that but what about the fact that the petitioner here is understand it pled guilty under the old understanding of the law before the government changed its mind as it reserved perhaps reserve the right to do in but no nine right well two things one i we would disagree that they just changed their mind we would say as the board did that they either clarified or extended because if you remember in so much of you know one they were dealing with the texas statute where it was under seventeen older teenagers and frankly your honour's age matter and i'm sorry did you read sylvia trevino one as being limited you think that the language in that opinion is limited to that age differential because i read it as saying something much more general and a nun seeding a very broad principle that you need mental culpability but not tied to that age differential you just need it when it comes to making sexual contact with a minor a crime  you point me to the language that narrows it to a particular age differential while they work again they were not addressing this type of statute it was simply it was older teenagers and i think there was a it was a mistake of age defends if it's a member of the opposite sex and a three year age differential that the law wouldn't apply here we're dealing with at least a four year or six year age from rancho or not i mean there must have been even if there was a need for clarification and it wasn't a change change their mind but it needed to be clarified perhaps in a petition or pled guilty to the pre clarification if the pre problems with the first sylvia trevino however it was a statute that involved was a two kind of a two section statute one where it had willfully contributes to e you know and says that that second section consensual sexual intercourse with a child fifteen or older not about reason to know should have known that based on the terminations based on what the attorney general crimes against all children for all time i think that this is just one example one that you know we had already a case we've already cited in our brief which shows that not necessarily need perpetrator have committed the reprehensible act with some form of scienter and this is set out as an opinion that establishes an administrative framework for determining whether an alien has been convicted of a crime involving moral turpitude this is not about the facts of that case this i mean you if you want to talk to me about what future opinions hold and in the degree to which footnote nine does or doesn't leave something open that's one thing but i just don't think it would be reasonable for a lawyer reading this opinion not to advise a client listen if you're not pleading guilty to a crime that has science or you're not covered this is not a crime involving moral turpitude well thirty thirty years this is counsel likes to refer to strict liability strict liability it's not a strict liability crime you have to knowingly solicit you have to intend to commit the crimes that are spelled out and three three of you have to know the it which is what the the a g was talking about and so the neutral part but you don't have to know the  and there is no requirement that you should have known the that it was unreasonable for you not to know the state legislatures have decided that they're not hinge ing the conviction on whether or not the perpetrator knew he was having sexual contact with a child and under this a g opinion that means it's not a crime involving moral turpitude so i don't understand your argument really on the do you have any other arguments for why it shouldn't apply retroactively why with these age disparities where you're dealing with much younger children this is not like this romeo and juliet sort of scenario these are dealing with very young children and because of that the this evil intent is inherent in the act that because this other person is seventeen that's a child to seventeen importing and we talk about the victim of the perpetrator or perpetrators seventeen that's a child to it's a child too but we're not we're talking the statute only the statute only covers under generic refers to children who are either under fourteen right or fifteen or sixteen and the perpetrators at least twenty one changing its position and putting to one side the fact for now that the board has not actually explained its change in position but i still don't understand how someone pleading guilty so you know trevino won was in full effect should have been required to anticipate that you would be up here today explaining to us why that a g opinion was wrong well i think so much of you know said that it was a there's the critical factor sentence and then the sentence after that is a finding of moral turpitude under the act requires that a perpetrator have committed the reprehensible act with some form of site and then it goes on to say that this ensures that individuals will be convicted only if they will knowingly directed sexual conduct toward someone they knew or reasonably should have known was a child i just i mean what was what what the board is saying now is that that knew or should have known i mean you can i know what the  disagree i mean i board this is this is what the board is questioning what the board said then because that's the opinion that was in effect when he pled guilty this just seems like a real problem and i was wondering if you did have any argument for why there's not a retroactivity problem here if we just read you know the opinion kind of on its face all i can do is support what the board decision what the board is saying and what they're saying is well the board didn't even address this retroactivity problem did it no i'm sorry is that how do we give chevron deference to a list as the board explains that when you're dealing with such either young itself is that moral turpitude that it hears to the act itself based on the disparity in the age the age differential or both that's the basis for the board decision regarding sexual conduct and make but make no mistake i'm sorry how do we get there then in light of what they've done previously i'm sorry how do we get there was it not a change  with that and just can't see that we would still ask that it be given chevron deference whether or not it gets applied retroactively or not obviously that's up to your honor's and i'd why would you get but so is your argument that i understood your main argument to be look there's no change in position here but if there has but if there is a change in position are you arguing that they have that the board acknowledge the change in position and satisfactorily explained it under and see no motorcars whatever the case is called and see no motorcars no because i don't think as the board has said themselves they do not see it as a change or else i think you would have seen that kind of analysis as part of the published decision if there was a change we actually have to send it back and let the board try to explain what's going on yes but of course we would encourage we would ask that you decide that that's not that is not what happened but if you view it that way then yes but we would be asking that the generic as it's articulated by the board e g under fourteen years old at least a four year age gap or fourteen and fifteen with a six year age gap that that's a reasonable articulation a reasonable articulation of a crime involving moral turpitude and given that this statute the maryland statute that's under review here fall squarely with into the generic as the board is now explained it as now explain it but so did i understand you a few minutes ago to suggest that we should give this chevron deference but them we could also say it doesn't apply to the petitioner in this case so go ahead and give it the stamp of approval but don't apply it to this that's not what i'm advocating and i just wanted to i know it's not relevant really it but it just to answer your honor's question this was a online sexual solicitation case with a law enforcement officer posed as a death fourteen year old  on and i want to make it clear he find my theory of decoration of the stage of the more moral turpitude more attractive now than you did about ten minutes ago well i mean i think what ultimately what the government is looking for is for you know when when you know we want them to get some sense you may not win when you get some sense of it i mean well i guess i mean i'm obviously what we'd like is for chevron deference to that i got a narrative whether it be you know would like it to be retroactive if not generic going forward and of course what do you think about us what do you think about that whole idea that i floated that i did float it yes i didn't see you f laws and sidespin a consequence consequences for certain acts across the country so this court saying that this maryland statute is a crime involving all or part of which which it is well i think also giving if it first find that the statute is a c i n t and we would urge the court not to do that ok what if we do if you do then yes i would say we would make our retroactivity arguments and that it should not be applied to the petitioner in this statute is simply a fatal flaw if it is a reason why it cannot ever qualify as a c i m t if we go back to kind of first principles of the categorical approach while a c i m t is not a generic offense like burglary it is still subject to a generic definition and just as breaking into a building or structure is part of the generic definition of burglary so is a couple mental state part of the generic definition of the phrase c i t so carving out an exception to a generic definition is simply antithetical to the categorical approach imagine if you will the board held in a case involving burglars who after the bring it and entering intended to commit a sexual if the board were to say well in cases like that the generic definition of burglary is no longer limited to building structures it now also includes boats in vehicles creating such a one off exception would clearly be in permissible under the categorical approach it that is exactly what the board did in this case it created an exception to the generic definition of the phrase c i empty for a small subset of cases now the reason that the board gave for creating such an exception is that laws banning consensual sexual with minors are based on a quote community consensus that such behavior should be unlawful but that logic is entirely circular because by definition every crime in acted by a state legislature represents a community consensus that the underlying behavior should be subject to criminal punishment so under the board's logic every crime would involve moral turpitude the board also relied on the purpose of strict liability sex offenses such as maintaining chastity and protecting minors from sexual exploitation but again under the categorical it wrote about the new view not just that every statute but every statute that criminalizes say she will conduct with a but a statute on hand contact sexual involvement solicitation with a minor that's codified in the shows that minors we know they're protected folks that would show evidence of more trouble to not every state to be this type so it's because you're on a court upheld again and again that the cornerstone of moral turpitude is evil intent and if the statute does not require the perpetrator to know or have reason to know that the victim under the age of consent then they have no evil intent they have no more even turned on an evil act that they've done an evil that's not enough under the longstanding definition of a crime involving more turpitude that definition requires a culpable mental state of they've done an evil act with a minor you don't think that could form the basis for a court decision or more talk to an evil act with a minor not a not according to the longstanding definition of a crime involving s unreasonable under seven to come out the other way right the board has addressed this question and it's come out the other way and said at least as non statutory rape cases involving sexual conduct with a minor yes bad inten that the last one i would quickly like to make goes yes sorry yes your honor ok it goes back to your original question your honor about whether this court can reach the issue on its own or whether remain as required in encino  motorcars the supreme court did not remain the case back to the department of labor for another bite at the apple it was made in the record to the ninth circuit simply to review the question free of chevron deference and this court typically when it declines to afford chevron deference it does review the matter to no vote so simply because the board did not acknowledge its change in position i don't think that would read the court's necessarily reaching the question you know yeah i thought i struggled with that a lot because i know that the court did that and so you know i think that must have been because the court also says in that case this is a state farm problem this is a very and capricious and when we find that something is arbitrary and capricious and violation of state farm we definitely do send it back to the agency to let the agency either provide an explanation or change its mind so i think and say you know must have been different because once they had declared these hadn't there were no more regulations in force i struggled with this i hear what you're saying about helen's you know dealt with it under chevron but i still think if a failure to offer an adequate explanation is a state  it's arbitrary and capricious you have to let the agency go next yet courts have also held though when there is no possible explanation that an agency could give might better remit is not require these i mean just listening to your panel today it sounds like you know it's possible