agreement that he drove a vehicle with the child not having a seatbelt in the car can also do we know whether mr martinez studio was advised by counsel at the time about the immigration consequences honor he had a legal representative and we're going to work off the presumption i didn't handle the case so that the right the record doesn't reflect that he was or wasn't there was no we don't have an evidence of any colloquy in which the judge says have you been advised of any potential immigration issue in a case called the last kiss her era and in that case the board said board indicated that that if the criminal act did not result in harm to the child that it wasn't child abuse now the board subsequently in matter of sauron which came down in two thousand and ten and later said that no we're going to clarify the underlying proceedings and say that no that it would require harm and in fact the ninth circuit in the case called for goes so we came down to two thousand and nine well i actually quit very specific question about where involved in the b i use decision to say that the definition requires harm to a child physical or mental harm to a child says that we're going to interpret the term crime of child abuse broadly to mean any offense involving intentional knowing or reckless criminally negligent act or omission that constitutes no treatment of a child or that impairs a child's physical or mental wellbeing including sexual abuse or expectation at a minimum this definition comes convictions for offenses involving infliction of another child a physical harm i didn't say it was limited to that well i certainly understand your wasn't correct on that you are correct your honor our position would be that when the petitioner accepted the guilty plea from two thousand and eight he was working on what was a reasonable interpretation of alaska's ferreyra and in fact was interpretation the ninth circuit had later on a year later so from the petitioners perspective when he entered into this guilty plea he did so under the belief that what he was really green to did did not  does does the the application the montgomery ward factors require a case by case analysis or some kind of categorical judgment that anything occurring prior to two thousand and eight or prior to two thousand and ten is categorically that sort of exempt from the interpretations are we supposed to look at that at the nature of the harm to your client or to the nature of the harm to all clients  that that that pled guilty at any time before let's say two thousand and eight or two thousand and ten well i think would only be fair that we hold the person that's interesting to a plea agreement that they be allowed to plea according to the law that what they were doing was not going to place him in a removal proceedings right and what my question is do we decide that categorically or do we or do we actually get to inquire as to what the lawyer told what your client was told what the what the judge said i don't i'm a think it's fair to go all time i would have said that harm now i certainly understand the government's position that hague afterwards saw rahm clarified it but i don't think the this petition or should be subject to that analysis or am analysis because a reasonable interpretation of what the last those who are said was that harm would be required to be child but you get that out of for go so well i think that you get that out of a reasonable reading about why would that be why would that why does that work to the benefit of your client if your client plaid when i think common wording when we're talking about child abuse most people don't think of child abuse is failing to put your child in the seat belt it requires of alicia lacked counsel doesn't the statute also refer to child neglect sorious says that now that the standard is a sufficiently high risk of harm well that's another slippery slope it's another ambiguous statement trying to define an ambiguous wording of child abuse or child in the  case in the tenth circuit as a much better job they did they decide look at what the legislative intent was they look at what the laws were in one thousand nine hundred six when this law was created where the vast majority the state said no a negligent where no harm is involved that is not child abuse and i think that's what most people when they walk around the streets of the united states think that that's not child abuse failing to put your kid in this in a seat belt but when i was growing up we didn't even have seat belts and were my parents committing child abuse all of those years i don't think so i think we've since learned that yes it's probably safer but you just put a minute in a in eight without a seatbelt was it was also driving drunk right well the statute what he was when he agreed to plead to was in two seventy three a and that was failing to put the child and seatbelt now there were also convictions for domestic for driving under the influence but in subsection a from the missing in a provision there subsection b because of the level of harm the statute in this case requires willful conduct under conditions likely to cause serious bodily harm or the death of a child therefore the level of risk of harm fits under the boards share it definition arguably even before a matter of strong clarified that no resulting entry is required because the risk of harm is so great that constitutes not treatment of a child or conduct through an interpretation of the i and i think and so cases like taylor where we're looking at the majority of the states are different from the type of analysis here because the board can look there's nothing by the supreme court of this court that restricts the board to looking at state criminal law and what the board was trying to get at was what is the common understanding of the term child abuse so looking at both civil and criminal law is permissible to determine the ordinary contemporary meaning of i would first point out that even under velasquez his conviction because of his the felony provision fits the board's definition at the time and second because velazquez was the was not a change in the law look at that at the at the retroactivity analysis in the montgomery ward factors are we looking at a case by case basis are we doing this sort of categorically saying every everybody who did who pled guilty prior to one thousand two thousand and eight has one standard given the lack of reliance on private prior law and the important goals in making individuals who prey on now treat mistreat children removal from the united states and permanent resident mother who are both saying you ask me if we agree with you and what are you asking for us to do now well i think that in light of that circumstance remand would be proper to the board make let the board make the decision whether or not